Dentist regulation: one man is vindicated, another presses on

By Peter Vieth
Published: July 28, 2008

While one Virginia dentist celebrates his apparent vindication in a three-year struggle with the state Board of Dentistry, another plans to take his case to the Supreme Court of Virginia after rejection by the Court of Appeals in a case of alleged poor record keeping.

The exonerated dentist, Dr. Farid A. Zurmati of Fairfax County, did more than simply rebut allegations during his regulatory battle with the Board of Dentistry. He went on the offensive, filing two lawsuits against the prosecutors that he claimed had become his persecutors. He also sued his original accuser for defamation.

Although he began the contest facing allegations of dental negligence and verbal abuse in the workplace, by the time Zurmati’s case reached the Court of Appeals, the only serious allegation concerned documentation of fees charged by Zurmati. The court last month found that it was not deceptive for Zurmati to list his “customary” fee as required on insurance forms, even though patients were informed only about the reduced fee that Zurmati expected to be paid based on his agreements with health insurers.

That favorable ruling from the Court of Appeals in June led to an agreement by the state to drop the single remaining record-keeping allegation against Zurmati, according to his attorney. August McCarthy said that the deal calls for Zurmati to drop his lawsuits against state officials while the Board of Dentistry will update or remove records of its allegations from public access on the board’s Web site. “Every scrap of this has been or will be dismissed,” McCarthy said.

An assistant attorney general, Christy W. Monolo, confirmed that the case against Zurmati had been resolved, but she said that she could not provide details. Later, a spokesman for the Office of Attorney General said that several issues in Zurmati’s cases were still pending and, therefore, the office would have no comment on the matter.

The Board of Dentistry in 2005 accused Zurmati of two instances of improper dental treatment, one instance of verbal abuse to a patient, deceptive billing practices, and technical record keeping violations. After an initial hearing, the board voted to put Zurmati on probation for 18 months and fine him $1,500.

After a formal hearing, however, the board found evidence to support only the allegations relating to billing and record keeping.

After an appeal to Fairfax Circuit Court, only the billing issue and one minor record-keeping issue remained in the case.

McCarthy, Zurmati’s lawyer, said that he was shocked by the persistence of the regulators in their pursuit of Zurmati. “He was steamrolled. He had the board coming after him based on some completely unfounded allegations – and they kept coming after him,” McCarthy said.

“It took a herculean effort” to fight the allegations, according to McCarthy. “He was just one man with one lawyer and he completely vindicated himself.”

McCarthy notes that a practitioner has an uphill fight on an appeal of regulatory action. The standard is whether there was any substantial evidence to support the board’s regulatory action. “That’s a very hard standard,” he said. “They give great deference to the board.”

A three-judge Court of Appeals panel, in an opinion written by Judge Elizabeth A. McClanahan, concluded “[t]here was no substantial evidence to support the Board’s finding” that Zurmati was charging insurance companies more than the amounts he disclosed to patients.

While that decision apparently signals the end of Zurmati’s struggle with state regulators, he still has a court fight underway against a former office manager who, he claims, set the entire process in motion. In a defamation lawsuit in Fairfax Circuit Court, Zurmati accuses Alicia Gailliot of deliberately bringing false allegations to the dentistry board.

Zurmati alleges that, based on romantic rejection, Gailliot vowed to “make his life a living hell.” She went to work for another dentist who was a member (and later president) of the Board of Dentistry. She allegedly reported that Zurmati verbally abused patients and was violent in the workplace. Zurmati claims she recruited a patient to make false allegations against Zurmati and used an office employee to get copies of confidential documents.

Gailliot’s lawyer, Ben Glass, said that the outcome of the regulatory battle is not likely to affect the defamation case. One critical issue, he said, is whether Gailliot made her complaint based on malice or bad faith. If not, a statute may provide immunity.

“I don’t think the outcome of the case affects whether she had malice in the first place,” Glass remarked. As for the allegations made by Gailliot, Glass said, “We have witnesses who support her side of the story.”

Glass said the case could prove interesting because a Virginia statute states that confidential information from a health regulatory board investigation shall not “be available for discovery or court subpoena or introduced into evidence in any civil action.” Glass said that it’s not clear how the evidence of what his client said could be considered by the court.

Moreover, Glass argues that the defamation suit, if allowed to proceed, could have a chilling effect on patients and others who want to report misconduct against a health care provider. He noted that most insurance policies do not cover claims of deliberate conduct. “Why would you even make a complaint against a health care provider with that risk there?” he queried.

Cautionary tale

Another dental regulation case decided the same day by the Court of Appeals, Doe v. Virginia Board of Dentistry, sounds a cautionary note for practitioners – health and legal – before the health boards.

Proceeding under the pseudonym “John Doe,” the dentist was undermined on most of his appellate arguments. The Court of Appeals refused to consider four of Doe’s six points because he had not raised those issues when the case was still before the Board of Dentistry. The court seemed to suggest that doctors who disagree with procedures used in their board hearings would be well-advised to file motions for reconsideration when they discover procedural problems, instead of rushing off to file an appeal at the next level.

One issue that was considered involved two dental hygienists who participated in the board’s decision. Doe argued that, since not all board members were dentists, an expert was required to explain the standard of care to the non-dentist decision makers.
Writing for the entire Court of Appeals, Judge Robert J. Humphreys reviewed the laws that include dental hygienists in the regulation of dentists. “[T]hese statutes contemplate that all Board members are competent to participate in Board matters….,” he wrote.

The court found adequate support for the dentistry board’s finding that Doe’s diagnosis “lacks an adequate medical history and consists of gross generalizations lacking the detail needed to describe the … course of treatment.”

On another issue, Doe complained about procedures in his initial, informal hearing before a discipline committee. The Court of Appeals said the issue was moot. In essence, the court ruled, whatever happened in the informal hearing was annulled when Doe requested a formal hearing, where the evidence is heard over again with no regard for what happened in the first hearing.
Doe this month filed a notice of appeal to request a review by the Supreme Court of Virginia.

The “John Doe” pseudonym was allowed under the general confidentiality provisions that apply to health care regulation cases. Nevertheless, the decision gives a clue to the dentist’s identity. Humphreys’ decision notes that the case against “Doe” started with a newspaper article about a malpractice suit filed by a former patient. Based on that article and documents available on the dentistry board Web site, “John Doe” is Dr. James M. Coleman of Williamsburg.

Coleman’s attorney did not return a call for comment by press time.

Virginia Lawyers Weekly

Dentist regulation: one man is vindicated, another presses on

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