The California Court of Appeal has found that a health care provider may be disciplined for failing to return phone calls during a critical period following a procedure.
According to the findings of an administrative law judge on a complaint brought by the California Dental Board, patient James J. underwent a root canal by Erroll Gillis, DDS, an endodontic specialist. The Dental Board judge found that Dr. Gillis “overfilled” the patient’s #20 tooth, putting him at risk of permanent nerve damage within 96 hours and causing him major pain, swelling, and numbness. The Dental Board judge found that Gillis was aware of the overfilling on the day it occurred but did not inform the patient of it or note it in the chart.
The patient’s wife called the clinic the same day as the procedure — and the next two days — in an attempt to confer with Dr. Gillis about her husband’s pain. The judge found that though Dr. Gillis was at the facility on those days, he did not return the phone calls.
Three years later, the Dental Board of California initiated a disciplinary action and filed an accusation against Gillis. Among the variety of charges related to the overfilling of the tooth, the Dental Board accused the endodontist of unprofessional conduct and gross negligence in failing to respond for seven days to the patient’s wife’s post-procedure phone calls seeking help.
In addition to other findings, the Dental Board judge found, in fact, that Dr. Gillis engaged in unprofessional conduct and was grossly negligent for failing to respond to the wife’s calls.
On a petition by Dr. Gillis to the superior court, a civil judge ruled that the Dental Board judge “was wrong to conclude that Dr. Gillis’s failure to return phone calls was unprofessional conduct…because such conduct was not expressly listed amongst the types of unprofessional conduct” found in the Dental Practices Act. The civil court judge also faulted the Dental Board judge for not providing an analysis as to why Dr. Gillis was grossly negligent, rather than simply negligent, for his failure to the return phone calls.
On the Dental Board’s appeal, the justices of the First District Court of Appeal in San Francisco dismissed the trial judge’s concern over penalizing health care practitioners for unlisted conduct. In their opinion, the appellate justices noted that the statute in question, Section 1680 of the Dental Practices Act, states that unprofessional conduct “is defined as, ’but is not limited to’ a lengthy list of behaviors including, for example…‘the abandonment of the patient by the licensee…’ ” The Court of Appeal then reasoned that the statute’s use of the term “but not limited to” in its list of examples allows unlisted conduct to be found “unprofessional” and thus subject to discipline.
“Not only does the plain language of (the statute) demonstrate its list of behaviors is non-exclusive, courts have long interpreted similar language in the statute governing medical doctors’ unprofessional conduct in the same manner, the appellate court said in Erroll Gillis v. Dental Board of California.
The court of appeal then turned to whether the failure to return telephone calls was a “substantial departure” from the standard of care or an “extreme departure” — a distinction relevant to finding gross negligence.
On that point, the justices noted that though the expert testimony on that point was a bit muddled, there was nevertheless enough of a factual record for the Dental Board to conclude that Dr. Gillis’s extended failure to return calls was not merely ordinary negligence.
“Accordingly, the Board is correct that under the circumstances of this case, Gillis may be disciplined for gross negligence based on his extended failure to return phone calls seeking help for serious, post-treatment complications.”
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc. (CAP).
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