AUGUSTA — More than a decade ago in South Dakota, a state professional standards board suspended an eye doctor’s license because he falsified patients’ records.

Dr. John Huff appealed the panel’s decision, which concluded he was “dishonorable, unethical and unprofessional,” hoping a court would overturn the move.

His case led to a ruling that legal experts said may hold true in Maine in similar showdowns, including one before the Maine Board of Dental Practice as it weighs the fate of Lewiston oral surgeon Jan Kippax.

In its decision on Huff’s appeal, the Supreme Court of South Dakota ruled that “competent expert testimony must be introduced if issues in the administrative proceeding require establishing applicable standard of professional conduct and determining whether particular conduct falls below these standards.”

“Requiring the introduction of expert testimony in cases of this sort protects the fairness of the contested case proceedings, the integrity of the administrative record and the right to meaningful judicial review of administrative decisions,” the justices said.

The notion that “competent expert testimony must be introduced” to show a medical professional violated the standards of conduct in their field is at the root of a claim that the case against the Lewiston dentist ought to be tossed out because the state failed to provide expert testimony that supports its bid to sanction Kippax.

After four days of testimony spread over two months, five members of the dental board heard from a handful of former Kippax patients who said he failed to provide pain relief, refused to stop yanking teeth despite their pleas and other troubling charges.

But the one expert witness called by the state — Alexander Pazoki, the director of the division of oral and maxillofacial surgery and dentistry at The Johns Hopkins Hospital in Baltimore — would not say Kippax violated the standards of care required of an oral surgeon.

The dental board plans Friday to consider a motion from Kippax’s attorney, James Belleau of Auburn, to dismiss the case against Kippax. The dentist has been free to practice since a 30-day suspension ran out in March, but said he has had trouble getting patients in the wake of the charges lodged against him.

When the state handed its initial evidence to Pazoki early in the year, he relied on the complaints and dental records to reach a preliminary conclusion that Kippax had violated professional standards. He said this month that based solely on the statements by the patients, he would stand by that assertion.

Pressed to weigh as well the testimony of Kippax and two of his assistants, however, Pazoki reached a different conclusion, agreeing that considering all the evidence, it wasn’t possible to say that Kippax had failed to stay within professional parameters.

With that, Belleau said the state fell short of what it needed to move forward with the case. State lawyers disagreed, but the board took the motion seriously enough to halt the proceedings until its members could discuss the issue.

In the South Dakota decision, which several lawyers pointed out as the best summary of existing law, the judges said they took the issue of losing a license seriously.

“The revocation of a license of a professional man carries with it dire consequences,” the opinion said. “It not only involves necessarily disgrace and humiliation, but it means the end of his professional career.”

It reasoned that a licensing board could not rely solely on its own expertise to decide if a professional in the field had violated its standards, in part because the lack of expert testimony would leave courts unable to weigh the decision on appeal. There wouldn’t be anything in the record to provide a foundation for a court to make a decision, it said.

Reviewing the status of the law across the nation, the justice said that a majority of the courts that have addressed the issue “have required expert testimony to establish the standard of care to which the professional is held and whether that professional’s conduct fell below that standard.”

Maine’s law puts it this way: a licensed professional “is considered to have engaged in unprofessional conduct” if he or she “violates a standard of professional behavior” established in that field.

In a 1980 case, the Maine Supreme Judicial Court said that in most cases alleging misconduct by a doctor, it’s necessary to lay out what “a reasonable medical practitioner in that branch of medicine” would do “under the same or similar circumstances and that the plaintiff must ordinarily establish this standard by expert medical evidence.”

In a separate 1980 case, the Maine court put it a little differently, saying that a medical specialist “should be held to national standards of care and treatment appropriate to the specialty,” something assessed by reliance on expert witnesses.

The dental board members hearing the Kippax case include a couple of dentists but no oral surgeons, a specialty that requires more education. Belleau pointed out that without an oral surgeon in its ranks, the board had nobody who could attest to the standards of care required of one.

Even if it did, though, the North Dakota court’s reasoning might apply anyway.

Licensing boards “in many states are not totally comprised of professionals. Many of them contain lay members who are not trained in that particular profession,” the court said.

It added that judges have ruled that it is improper for a board “to rely on its own expertise in determining competency rather than expert testimony on the record, as some of the members do not hold this type of expertise.”

A number of courts in many states have pointed to a 1952 New Jersey decision that called it a “startling theory” that the board could lean on its own knowledge rather than expert testimony to conclude someone violated professional standards.

Using that logic, the New Jersey court said, “would not only render absolute a finding opposed to uncontradicted testimony but would render the right of appeal completely inefficacious as well. A board of experts, sitting in a quasi-judicial capacity, cannot be silent witnesses as well as judges.”

If the board opts to let the case proceed, it is slated to continue on Dec. 29 and 30. It may require more dates next year.

The board began investigating the five cases in early 2016 and suspended Kippax for 30 days last February, the longest it could impose before a hearing.

The board has the authority to sanction Kippax with fines, censure or the loss of his license.

[email protected]

Dr. Jan Kippax prepares to testify before the Maine Board of Dental Practice earlier this fall. (Steve Collins/Sun Journal)


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

Daily Headlines

  • Sign up and get the top stories to begin the day delivered to your inbox at 6 a.m.