L, MITCHELL JONES (U.8.B. 5979) Assistant Attomey General SEAN D. REYES (U.S.B. 7969) Utah Attomey General Commercial Enforcement Division Heber M, Wells Building Box 140872 Salt Lake City, UT 84114-6741 TEL: (801) 366-0310 BEFORE THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING OF THE DEPARTMENT OF COMMERCE OF THE STATE OF UTAH IN THE MATTER OF THE LICENSES OF DENNIS J. BLUME UTAH LICENSE #341960-8903 & 9922 TO PRACTICE AS A A DENTIST AND TO ADMINISTER AND PRESCRIBE CONTROLLED SUBSTANCES IN THE STATE OF UTAH STIPULATION AND ORDER CASE NO, DOPL 2016- % DENNIS J. BLUME (“Respondent”) and the DIVISION OF OCCUPATIONAL AND. PROFESSIONAL LICENSING of the Department of Commerce of the State of Utah Division”) stipulate and agree as follows: 1. Respondent admits the jurisdiction of the Division over Respondent and over the subject matter of this action, 2, Respondent acknowledges that Respondent enters into this Stipulation knowingly and volunterily3. Respondent understands that Respondent has the right to be represented by counsel in this matter and Respondent's signature below signifies that Respondent has either consulted with an attorney or Respondent waives Respondent's right to counsel in this matter, 4, Respondent understands that Respondent is entitled to a hearing before the State of Utah’s Dentist and Dental Hygienist Licensing Board (“Board”), or other Division Presiding. Officer, at which time Respondent may present evidence on Respondent's own behalf, call ‘witnesses, and conftont adverse witnesses. Respondont understands that by signing this document Respondent hereby waives the right to @ hearing, the right to present evidence on Respondent's own behalf, the right to call witnesses, the right to confront adverse witnesses, and any other tights to which Respondent may be entitled in connection with said hearing, Respondent understands that by signing this document Respondent waives all rights to any administvative and judicial review as set forth in Utah Code Ann. §§ 63G-4-301 through 630-4- 405 and Utah Administrative Code R156-4-901 through R156-4-907. Respondent and the Division hereby express their intent that this matter be resolved expeditiously through stipulation 48 contemplated in Utah Code Ann, § 636-4-102(4). 5. Respondent waives the right to the issuance of a Petition and a Notice of Agency Action in this matter 6. Respondent understands that this Stipulation and Order, if adopted by the Ditector of the Division, will be classified as a public document, The Division may release this Stipulation and Order, and will release other information about this disciplinary action against Respondent's ficense, to other persons and entities.7. Respondent neither admits nor denies the following, but agrees that the Division shall mile the following findings of fact 1. Respondent was first licensed to practice as a dentist and to administer and prescribe controlled substances in the State of Utah on or about June 10, 1997, b, On June 3, 2014 Respondent performed fillings, tooth extractions, and a crown procedure on a 22 year-old male patient, hereinafter referred to as John Doe. Respondent was assisted by Dr. David A. Gutzman, DDS, who administered general anesthesia to John Doe via intravenous sedation, c, During the procedure, John Doe aspirated gauze. John Doe underwent cardiac arrest shortly after emergency personnel arrived. John Doe was transported by ambulance to Utah Valley Regional Medical Center from the dental office, where hospital staf later found gauze in John Doe's trachea. 4, Jobn Doe died on June 5,2014, The cause of death wes determined by the ‘Utah State Medical Examiner's Office to be anoxic brain injury due to aspiration of foreign body during a dental procedure 8. Respondent, while neither admitting nor denying the findings of fact made above by the Division, stipulates to the Division talsing disciplinary action against Respondent's license pursuant to Utah Code Ann, § 58-1-401(2)(a). Respondent agrees that an Order, whic constitutes disciplinary getion against Respondent's license by the Division pursuant to Utah Administrative Code R156-1-102(7) and Utah Code Ann. § 58-1-401(2), may be issued in this ‘matter providing for the following action against Respondent's license: a, Respondent shall never again perform, or be involved in performing, any procedure that involves intravenaus sedation or general anesthesia. b. Respondent's licenses to practice as a dentist and to administer and prescribe controlled substances in the State of Utah shall be publicly reprimanded,c Respondent shall meet with the Board at the next scheduled Board meeting following the signing of the accompanying Order 4. Respondent shalt successfully complete Sections 1 through 9 of the American Dental Association's on Emergency Medicine, by Dr. Stanley Malamed, or another similar course that is pre-approved by the Division and Board, within one year of the effective date of this Stipulation and . Respondent shall report successful completion of the course by fing documentation to the Division and Board immediately upon completion of the course. Respondent shall also successfully renew his Basic Life Support (BLS) qualification and maintain the qualification at all times while licensed. e, Respondent shall pay a fine of $2,500.00 (two-thousand five-hundred JOM) Fite dollars) to the Division, within 60 days of the effective date of this, pate fa Stipulation and Order. WIA LEY 9, Upon approval by the Director of the Division, this Stipulation and Onder shall be the final compromise and settlement of this non-criminal administrative matter, Respondent ‘acknowledges that the Director is not requited to accept the terms of this Stipulation and Order and that ifthe Director does not do so, this Stipulation and the representations contained therein shall be null and void, except that the Division and the Respondent waive any claim of bias or prejudgment they might otherwise have with regatd to the Director by virtue of his having reviewed this Stipulation, and this waiver shall survive such nullification, 10. Respondent shall abide by and comply with all applicable federal and state laws, regulations, rules and orders related to the Respondent's licensed practice. If the Division files @ Pet ion alleging that Respondent has engaged in new misconduct or files an Order to Show | Cause Petition alleging that Respondent has violated any of the terms and conditions contained in i this Stipulation and Order, the period of Respondent's probation shall be tolled during the period that the Petition or Order to Show Cause Petition has been filed and is unresolved.11, This document constitutes the entire agreement between the parties and supersedes, and cancels any and all prior negotiations, representations, understandings or agreements between the parties regarding the subject of this Stipulation and Onder. ‘There are no verbal agreements that modify, interpret, construe or affect this Stipulation, Respondent egrees not to take any action or make any public statement, that creates, or tends to create, the impression that any of the matters set forth in this Stipulation and Order ate without factual basis. A public statement includes statements to one or moze Boardl members during a meeting of the Board, Any such action or statement shall be considered a violation of this Stipulation and Order 12, ‘The accompanying Order becomes effective immediately upon the approval of this Stipulation and signing of the Order by the Division Director, Respondent shall comply with all the terms and conditions of this Stipulation immediately following the Division Director's signing of the Order page of this Stipulation and Order, Respondent shall comply with and timely complete all the terms and conditions of probation, Ifa time period for completion of a term or condition is not specifically set forth in the Stipulation and Order, Respondent agrees that the time period for completion of that term or condition shall be set by the Board or Division. Failure to comply with and timely complete a term or condition shall constitute a violation of the Stipulation and Order and may subject Respondent to revocation or other sanetions. If Respondent violates any term or condition of this Stipulation and Order, the Division may {ake action against Respondent, including imposing appropriate sanction, in the manner provided by lav. Such sanction may include revocation or suspension of Respondent's license, or other appropriate sanction. 13, Respondent understands that the disciplinary action taken by the Division in this 5Stipulation and Order may adversely affeet any fieense that Respondent may possess in another state or any application for licensure Respondent may submit in unather state, 4. Respondent has read each and every paragraph contained in this Stipulation aud Oler, Respoucent undorstunds each and every paraptuph contained in this Stipulation and Order, Responclent bas no questions about any paragraph or provision contained in this Stipulation and Order DIVISION OF OCCUPATIONAL & PROFESSIONAL LICENSING SEAN D, BI UTAH ATTORNEY GENERAL BY: LeMITCHELL. Counsel for the D| RESPONDENT DENNIS J, BLUME si vars bel tale BY, Glew epee TARA ISAACSON ‘Counsel or RespondentORDER THE ABOVE STIPULATION, in the matter of DENNIS J. BLUME, is hereby approved by the Division of Occupational and Professional Licensing, and constitutes my Findings of Fact, and Conelusions of Law in this matter, The issuance of this Order is disciplinary action pursuant to Utah Administrative Code R156-1-102(7) and Utah Code Ann, § $8-1-401(2). The terms and conditions of the Stipulation are incorporated hesein and constitute my final Order in this case. DATED this 23 day of _x June 2016. DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING Director Investigator: Stove NewkieDIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING MARK STEINAGEL, DIRECTOR DEPARTMENT OF COMMERCE, P.O. BOX 146741 160 EAST 300 SOUTH SALT LAKE CITY, UTAH 84114-6711 ‘Telephone: (801) 530-6628 BEFORE THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING OF THE DEPARTMENT OF COMMERCE, OF THE STATE OF UTAH In the matter of the license of DENNIS J. SCHEDULING ORDER AND HEARING BLUME to practice as a dentist and to NOTICE administer and prescribe controlled substances in the state of Utah Case no, DOPL-2016-78 BY THE PRESIDING OFFICER: The Notice of Agency Action in this matter was sent by the Division of Occupational and Professional Licensing (Division) to Respondent on February 16, 2016. A prehearing teleconference was held on March 31, 2016. ‘The Presiding Officer now enters the following Scheduling Order. 1. The parties shall comply with the initial disclosure requirement of Uta Administrative Code rule 151-4-503 by April 14, 2016. 2, The parties shall coniplete discovery by May 31, 2016, 3. The parties shall comply with the expert disclosure requirements of Utah Administrative Code rule 151-4-504 by June 30, 2016, 4, Any dispositive motion shall be filed by June 10, 2016, 5. Pursuant to Utah Administrative Code rule 151-4-504(2), the parties shall exchange final disclosures, except as to expert witnesses, by July 15, 2016.6, Any evidentiary motion shall be filed by July 22, 2016. 7. Unless this matter is settled through a stipulated agreement, resolved through an order issued on a dispositive motion, or continued for good cause, a hearing shall take place before the Utah Dentist and Dental Hygienist Licensing Board on September 8 and 9, 2016, beginning at 9:00 a.m. DATED March 31, 2016. UTAH DEPARTMENT OF COMMERCE —ls/ Greg Soderberg ____ Greg Soderberg, Presiding Officer CERTIFICATE OF SERVICE On March 31, 2016 I sent this Scheduling Order and Hearing Notice to: For Respondent: ‘Tara Isaacson tara@bilaw.net For the Division: mitchelljones@utah.gov Page 2TARA L. ISAACSON (7555) BUGDEN & ISAACSON, L.L.C. 445 East 200 South, suite 150 Salt Lake City, UT 84111 Telephone: (801) 487-1700 Facsimile: (801) 746 8600 Email: tara@bilaw.net Attorney for Respondent BEFORE THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING OF THE DEPARTMENT OF COMMERCE OF THE STATE OF UTAH IN THE MATTER OF THE LICENSES OF DENNIS J. BLUME RESPONSE TO NOTICE TO PRACTICE AS A DENTIST AND TO OF AGENCY ACTION AND ADMINISTER AND PRESCRIBE VERIFIED PETITION CONTROLLED SUBSTANCES IN THE STATE OF UTAH Case No. DOPL 2016-78 Dr. Dennis J. Blume, by and through his attomey of record, Tara L. Isaacson, hereby responds to The Division of Occupational and Professional Licensing (DOPL) Verified Petition dated February 16, 2016. RESPONSE TO ALLEGATIONS 4. Dr. Blume admits the allegations contained in paragraphs 4 and 2 of the Verified Petition. 2. With respect to paragraph 3, Dr. Blume admits that an individual was treated at the Smile Center, but denies that the Smile Center is his dental office. Dr. Blume is an independent contractor. RECEIVED MAR TA 2019 PIMISION OF 0, 90% PROFESSIONAL ‘earn ENS3. With respect to paragraph 4, although John Doe reported that he suffered from asthma, it was later clarified that it was “remote” and that he suffered from it when he was 10 years old. 4, Dr. Blume admits the allegations contained in paragraph 6. With respect to paragraph 6, Dr. Blume does not have personal knowledge about what drugs were administered by Dr. Gutzman. 5. _ Dr. Blume admits the allegations contained in paragraphs 7 and 8 6. With respect to paragraph 9, it is true that John Doe weighed 240 pounds, but asthma was noted as “remote” and from the age of 10 (John Doe was 22 years old at the time of the procedure. 7. With respect to paragraph 10, Dr. Blume admits that Dr. Gutzman placed what is referred to as a throat pack — gauze placed to protect the airway. 8. With respect to paragraph 11, itis true that neither Dr. Blume of Dr. Gutzman used gauze with string or tape attached, but Dr. Blume disputes that the standard of care requires the use of such gauze. 9. With respect to paragraph 12, Dr. Blume admits that gauze was not counted but disputes that the standard of care requires a gauze count for such a procedure. 10. Dr. Blume admits the allegation contained in paragraphs 13 and 14. 14. With respect to paragraph 15, Dr. Blume admits that once John Doe began coughing, Dr. Gutzman attempted to clear his airway 12. Dr. Blume admits the allegation contained in paragraph 16, 17, 18.13. With respect to paragraphs 19, 20, 21, 22, 23, 24, Dr. Blume has no personal knowledge, so therefore, denies. 14. Dr. Blume admits the allegation contained in paragraph 25 45. With respect to paragraphs 26 and 27, Dr. Blume has no personal knowledge, so therefore, denies. 16. Dr. Blume admits the allegation contained in paragraph 28 17. Dr. Blume denies the allegations contained in paragraph 29. we DATED this _[4 day of March, 2016 BUGDEN & ISAACSON, L.L.C. TARA L. ISAACSON Attorney for Respondent By:CERTIFICATE OF SERVICE | hereby certity that, on the “day of March, 2016, | caused to be served a true and correct copy of the foregoing by the method indicated below, and addressed to the following Mitchell Jones _X HAND DELIVERY Assistant Attorney General pe U.S. MAIL Heber M. Wells Bidg. 2 OVERNIGHT MAIL P.O. Box 140872 —._ FACSIMILE Salt Lake City, UT 84114-0872 x Email —TARA L. ISAACSON (7555) BUGDEN & ISAACSON, L.L.C: 445 East 200 South, suite 150 Salt Lake City, UT 84111 Telephone: (801) 467-1700 Facsimile: (801) 746 8600 Email; tara@bilaw.net Attorney for Respondent BEFORE THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING OF THE DEPARTMENT OF COMMERCE OF THE STATE OF UTAH IN THE MATTER OF THE LICENSES OF DENNIS J. BLUME WITNESS AND EXHIBIT LIST TO PRACTICE AS A DENTIST AND TO ADMINISTER AND PRESCRIBE CONTROLLED SUBSTANCES IN THE, Case No. DOPL 2016-78 STATE OF UTAH Respondent, Dr. Dennis J. Blume, hereby submits and gives notice of witnesses and exhibits 1. Any witnesses designated or called by the Division; 2 Dr. Aste Aste Dentistry 4885 South 900 East, Suite 106 Salt Lake City, UT 84117 Phone: 801.261.1333 Dr. Aste will be called as an expert witness by Dr. Blume. Dr. Aste will testify about the allegations set forth in the Verified Petition, will provide expert testimony as described in his previous letter, he may testify in rebuttal to any testimony raise at trial3. Dr. Richard C. Engar, DDS Professional Insurance Exchange 445 East 4500 South, Suite 130 Salt Lake City, UT 84107 Phone: 801.262.0200 Dr. Engar will be called as an expert witness by Dr. Blume. Dr. Engar will testify about the allegations set forth in the Verified Petition, and may testify in rebuttal to any testimony raise at trial 4. Dr. Robert Jones, DDS Smile Center of Utah 40 South 300 East Provo, UT 84606 Phone: 801.375.8770 Dr. Jones may be called as a witness by Dr. Blume. Dr. Jones works with Dr. Blume at the Smile Center. 5. Tia Underwood Smile Center of Utah 10 South 300 East Provo, UT 84606 Phone: 801.375.8770 Ms. Underwood may be called as a witness by Dr. Blume. She was the dental assistant who assisted Dr. Blume in this case. 6. Paula Smith Smile Center of Utah 10 South 300 East Provo, UT 84606 Phone: 801.375.8770 Ms. Smith may be called as a witness by Dr. Blume. She was working at the ‘Smile Center on the date in question EXHIBITS 1. Any document provided as part of the Division’s disclosures. w2. Any document designated by the Division. DATED this] 2 Gay of March, 2016. BUGDEN & ISAACSON, L.L.C. By: LISAACSON Aiforney for RespondentDIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING Heber M. Wells Building 160 East 300 South PO Box 146741 Salt Lake City UT 84114-6741 Telephone: (801) 530-6628 BEFORE THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING OF THE DEPARTMENT OF COMMERCE OF THE STATE OF UTAH IN THE MATTER OF THE LICENSES OF DENNIS J. BLUME TO PRACTICE AS A DENTIST AND TO ADMINISTER AND PRESCRIBE : CONTROLLED SUBSTANCES : IN THE STATE OF UTAH : Case No. DOPL-2016-78 NOTICE OF AGENCY ACTION THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING TO Dennis J. Blume ("Respondent"), 10 South 300 East Provo UT 84606: The Division of Occupational and Professional Licensing ("the Division") hereby files this notice of agency action. Said action is based on the Division's verified petition, a copy of which is attached hereto and incorporated herein by reference The adjudicative proceeding designated herein is to be conducted on a formal basis. It is maintained under the jurisdiction and authority of the Division as set forth in §58-1- 401(2). Within thirty (30) days of the mailing date of this notice, you are required to file a written response with this Division. The response you file may be helpful to clarify, refine or narrow the facts and violations alleged in the verified petition. Your written response, and any future pleadings or filings, which are a part of the official file in this proceeding, should be mailed or hand delivered to the following: Signed originals to: A copy to: Division of Occupational L. Mitchell Jones and Professional Licensing Assistant Attorney General Attn: Disciplinary Files Heber M. Wells Building (by mail): PO Box 146741 (by mail): PO Box 140872 Salt Lake City UT 84114-6741 Salt Lake City UT 84114-0872 (by hand delivery): (by hand delivery) : 160 East 300 South, 4th floor 160 East 300 South, Sth floorSalt Lake City, Utah Salt Lake City, Utah You may represent yourself or, at your own expense, be represented by legal counsel at all times while this action is pending. Your legal counsel shall file an entry of appearance with the Division after being retained to represent you in this proceeding. Until that entry of appearance is filed, the Division, its counsel, and the presiding officer will communicate directly with you. The presiding officer for the purpose of conducting this proceeding will be Gregory Soderberg, Administrative Law Judge, Department of Commerce, who will preside over any evidentiary issues and matters of law or procedure. If you or your attorney may have questions as to the procedures relative to the case, Judge Soderberg can be contacted in writing at P O Box 146701, Salt Lake City, UP @4114-6701; by telephone at (801) 530-6706; or by electronic mail at gsoderberg@utah.gov. Pursuant to a determination previously made by the Division which generally governs proceedings of this nature, the Division is providing the relevant and nonprivileged contents of its investigative file to you, concurrent with the issuance of this notice. The Division is also providing its witness and exhibit list to you, concurrent with the issuance of this notice. The witness list identifies each individual the Division expects to present ‘as a witness and includes a brief summary of their testimony at the hearing. The exhibit list identifies each anticipated document which the Division expects to present at the hearing. The Division is also providing a copy of any document to you that has not been otherwise made available to you through the investigative file. Concurrent with your filing of a written response, you should provide to the Division a copy of any documents you have which relate to this case. Further, you should provide your witness and exhibit list to the Division. The witness list should identify each individual you expect to present as a witness and include a brief summary of their anticipated testimony. The exhibit list should identify each document you expect to present at the hearing. I you fail to file a response within the 30 days allowed or fail to attend or participate in any scheduled hearing, JudgeSoderberg may enter a default against you without any further notice to you. After the issuance of a default order, Judge Soderberg will cancel any prehearing conference oz hearing scheduled in the Division's verified petition, conduct any further proceedings necessary to complete the adjudicative proceeding without your participation and determine all issues in the proceeding. If you are held in default, the maximum administrative sanction consistent with the verified petition may be imposed against you. That sanction in this case is revocation of license. Counsel for the Division in this proceeding is L. Mitchell Jones, Assistant Attorney General, State of Utah. Mr. Jones may be contacted in writing at P.O, Box 140872, Salt Lake City, UT 84114-0872 or by telephone at (801) 366-0310. You may, subject to the deadlines established herein, attempt to negotiate a settlement of this proceeding by contacting counsel for the Division. Any stipulation in lieu of a response should be jointly signed by yourself and the Division and filed within the time that a response would otherwise be due. Alternatively, any stipulation to resolve this case in lieu of the hearing shall be jointly signed by the.parties and filed no later than one (1) week prior to the scheduled hearing. Unless this case is resolved by a stipulation between the parties in lieu of the filing of a response, a prehearing conference will be conducted as follows: March 25, 2016 at 9:00 a.m. by teleconference During the conference, Judge Soderberg will address and resolve any further discovery issues. A schedule for the filing of any prehearing motions shall also be established. Subject to the Department of Commerce Administrative Procedures Act Rules which govern this proceeding, this formal adjudicative proceeding must be completed within 180 calendar days from the date of issuance of this notice of agency action. You are entitled by law to an evidentiary hearing to determine whether your licenses to practice as a dentist and to administer and prescribe controlled substances in the State of Utah should be revoked, suspended or subjected to other disciplinary action. Unless otherwise specified by the Directorof the Division, the Dentist and Dental Hygienist Licensing Board will serve as fact finder in the hearing. The hearing will be conducted as follows: July 28 and 29, 2016 at 9:00 a.m. Conference Room TBD 4th floor 160 East 300 South Salt Lake City, Utah puring the evidentiary hearing, you will have the opportunity to present an opening statement, submit evidence conduct cross-examination, submit rebuttal evidence and offer a closing statement to the fact finder. After the close of the hearing, the Board will take the matter under advisement and then submit its Findings of Fact, Conclusions of Law and a Recommended Order to the Division for its review and action pated this Ib day of February, 2016 NA Rug Wl a, Ray Giker Regulatory & Comp: Officer nceL. MITCHELL JONES (USB 5979) Assistant Attomey General SEAN D. REYES (USB 7969) Utah Attorney General Commercial Enforcement Di Heber M. Wells Building 160 East 300 South — P.O. Box 146741 Salt Lake City, Utah 84114-6741 TEL: (801) 366-0310 FAX: (801) 366-0315 EMAIL: mitchelljones@utah. gov ion BEFORE THE DIVISION OF OCCUPATIONAL & PROFESSIONAL LICENSING OF THE DEPARTMENT OF COMMERCE, STATE OF UTAH IN THE MATTER OF THE LICENSES OF DENNIS J. BLUME VERIFIED PETITION UTAH LICENSE #341960-9922 & 8903 TO PRACTICE AS A DENTIST AND TO: Case No, DOPL 2016- a IN THE STATE OF UTAH PRELIMINARY STATEMENT. These allegations were investigated by the Utah Division of Occupational and Professional Licensing (“Division”) upon complaints that DENNIS J. BLUME (“Respondent”), a licensee of the Division, has engaged in acts and practices that constitute violations of the Division of Occupational and Professional Licensing Act, Utah Code Ann, §§ 58-1-101 through 58-1-504, the Utah Dental and Dental HygienistPractice Act, Utah Code Ann, §§ 58-69-10! through 58-69-806, and the Code of Ethics of the American Dental Association, These allegations are based upon information provided by witnesses and by a Division investigator and are based upon information and belief the investigator obtained during his investigation, Each paragraph in this Verified Petition incorporates every other paragraph contained herein, PARTIES 1, The Division is a division of the Department of Commerce of the State of Utah as established by Utah Code Ann, § 13-1-2. 2, Respondent was first licensed to practice as a dentist in the State of Utah pursuant to the Dentist and Dental Hygienist Practice Act, Utah Code Ann. §§ 58-69-10] through 58-60-806, on or about June 10, 1997. Respondent possesses a Class II anesthesia permit, Respondent's was first licensed to adm er and prescribe controlled substances in the State of Utah on or about June 10, 1997, pursuant to the Dentist and Dental Hygienist Practice Act, Utah Code Ann. §§ 58-69-101 through 58-60-806, and the Utah Controlled Substances Act, Utah Code Ann. §§ 58-37-1 to 58-37-21 STATEMENT OF ALLEGATIONS 3. On or about June 3, 2014, a 22-year old male patient, hereinafier referred to as “John Doe” was treated by Respondent at Respondent's dental office, the "Smile Center," located at 10 South 300 East, in Provo, Utah.4, John Doe's Smile Center medical history questionnaire dated May 8, 2012 indicated that John Doe suffered from asthma, 5. Respondent extracted tooth #2, #15, and #31; placed fillings in tooth #3, #4, #10, #12, #13, #20, #21, and #29; and placed a crown on tooth #19 of John Doe on June 3,2014 6, Dr. David A, Gutzman administered Fentanyl, Versed, and Propofol to John Doe during Respondent's treatment of John Doe on June 3, 2014. 7. Jobin Doe was assessed as an ASA level 2 tisk classification level on the June 3, 2014 treatment record sheet, 8. John Doe was assessed with a Mallampati score of III, regarding the ease of intubation, on the June 3, 2014 treatment record sheet, 9, Twas noted that John Doe weighed 240 pounds and suffered from asthma on the June 3, 2014 treatment record sheet, 10. Dr. Gutzman placed a throat pack at the back of John Doe's throat, consisting of a number of 2 inch by 2 inch pieces of gauze. 11. Neither Respondent nor Dr. Gutzman used gauze with string or tape attached that prevented loss of gauze down the patients airway. 12, Neither Respondent nor Dr. Gutman kept a record count of the number of gauze used on John Doe. 13. Toward the end of the procedure John Doe began to cough 14, The last chronological entry in John Doe's June 3, 2014 treatment record wascentered at approximately 3:50 pm. 15, Respondent and Dr. Gutzman attempted to clear John Doe's airway. 16. Respondent's office called 9-1-1 at approximately 4:19 pm. 17. Dr. Gutzman stated in a written statement to the Division that he attempted a number a measures to clear John Doe's airway, including using an oral airway, an ambu bag, a laryngoscope, Magill forceps, a Laryngeal Mask Airway, andan endotracheal tube. 18, Paramedics arrived at the Smile Center at approximately 4:22 pm, 19. John Doe went into cardiae arrest while being treated by paramedics at Respondent's office. 20, John Doe was transported by ambulance to Utah Valley Regional Medical Center (UVRMOC), arriving at approximately 4:42 pm. 21, AtUVRMC, Dr. William T. Alward, using a bronchoscope, found, snared, and removed a 2 x 2 piece of gauze located in John Doe's main trachea, which was occluding the main trachea. 22. John Doe was pronounced dead two days later on June 5, 2014 23. John Doe's death was the result of apnea brain death caused by a foreign body in hi trachea obstructing breathing, 24, Dr. Clark Bishop was the certifying physician who reported inform: John Doe's death to the Utah State Office of Vital Records and Statistics. 25, John Doe's death certificate described the cause of death as "anoxic brain injury, due to or as a consequence of aspiration of a foreign body due to or as a‘consequence of dental procedure." 26. John Doe was weighed and his height was measured by UVRMC personnel. John Doe weighed 280 pounds (128 kilograms). John Doe's height was measured at 173 centimeters. 27. John Doe's body mass index at the time of his death was approximately 42.77, which indicates morbid obesity 28. Respondent sent a letter to the Division dated June 5, 2014 describing his treatment of John Doe on June 3, 2014. Respondent stated in the letter that "I feel that the procedures performed and efforts to maintain [John Doe's] airway were performed within the standard of care.” 29, A review of John Doe’s dental records, medical records, and the statements of Respondent and Dr. Gutzman was conducted by a board certified oral and maxillofacial surgeon who provided an expert opinion to the Division stating that Respondent's treatment of John Doe violated the applicable standard of care in the following respects: (a) Respondent fuiled to accurately assess the American Society of Anesthesiologists (AS) risk status level and the Mallampatti score of John Doe. The accurate ASA risk status level and Mallampatti score, considered with John Doe's body mass index, morbid obesity, history of asthma, and the fact that John Doe was at times under general anesthetic, required that John Doe be treated in a hospital setting, and not at Respondent's office (b) Respondent failed to place an adequate throat sereen to prevent a foreign object from causing an obstruction in John Doe's airway. Respondent should not have used, or permitted Dr. Gutzman to use, 2 x2 gauze, when a larger gauze, or gauze with strings or tape attached, would not have been as easily aspirated, and would have been easier to find and remove in a timely manner in an emergency 5(©) Respondent failed to account for all of the 2 x 2 pieces of gauze used during the procedure, which led to one piece of 2 x 2 gauze being aspirated and blocking John Doe's airway. (d) Itis highly unusual for the assisting anesthesiologist 10 place a throat pack. The practitioner performing the dental procedure usually places the throat pack, as the practitioner can directly see and access the patient's airway (©) John Doe was placed in deep sedation at times, and was under general anesthesia at times. With John Doe's morbid obesity, Malampatti score, and history of asthma, John Doe was at an elevated risk of airway obstruction given the level of sedation and anesthesia. Respondent did not adequately assess or prepare for this increased risk, and failed to adequately respond to the emergency situation, (f) Respondent failed to maintain accurate records of his treatment of John Doe, including actions taken once the emergency situation began. APPLICABLE LAW 30. Pursuant to Utah Code Ann. § 58-1-401(1), the Division is authorized to ".. revoke, suspend, restrict, place on probation, or otherwise act upon the license of a licensee who does not meet the qualifications for licensure under this title." 31. Pursuant to Utah Code Ann, § 58-1-401(2), the Division may refuse to issue a license to an applicant and may refuse to renew or may revoke, suspend, restrict, place on probation, issue a public or private reprimand to, or otherwise act upon the license of any licensee in any of the following cases: (a) the applicant or licensee has engaged in unprofessional conduct, as defined by statute or rule under this title (b) the applicant or licensee has engaged in unlawful conduct as defined by statute under this title;32. Utah Code Ann, § 58-1-501(2)(a), (b), and (g) define “unprofessional conduct” to include: (a) violating or aiding and abetting any other person to violate, any statute, rule, or order regulating an occupation or profession under this title; (b) violating, or aiding and abetting any other person to violate, any generally accepted professional or ethical standard applicable to an ‘occupation oF profession regulated under this title; (g) _ practicing or attempting to practice an occupation or profession regulated under this title through gross incompetence, gross negligence, or pattern of incompetency or negligence. 33. Utah Administrative Code R156-69-502(10) defines “unprofessional conduct" to include: (10) failing to establish and maintain appropriate dental records; 34, Section 2 of the Code of Ethics of the American Dental Association provides: Nonmalfeasance: (“do no harm”) The dentist has a duty to refrain from harming the patient. This principle expresses the concept that professionals have a duty to protect the patient from harm. Under this principle, the dentist's primary obligations include keeping knowledge and skills current, knowing one’s own limitations and when to refer to a specialist or other professional, and ances delegation of patient care to auxiliaries is appropriate.COUNTI VIOLATING A GENERALLY ACCEPTED PROFESSIONAL OR ETHICAL ‘ANDARD APPLICABLE TO RESPONDENT’S PROFESSION 35, Paragraphs 1 through 34 are incorporated by reference as though fully stated herein 36. Respondent violated a generally accepted professional or ethical standard applicable to Respondent’s profession, as described in paragraphs 3 through 29 above, 37. Respondent has therefore engaged in unprofessional conduet as defined in Utah Code Ann, § 58-1-501(2)(a) and (b) and Section 2 of the Code of Ethies of the American Dental Association, thus establishing grounds for sanctioning Respondent's license pursuant to Utah Code Ann. § 58-1-401(1) and (2). COUNT IL PRACTICING OR ATTEMPTING TO PRACTICE DENTISTRY THROUGH GROSS INCOMPETENCE, GROSS NEGLIGENCE, OR A PATTERN OF INCOMPETENCY OR NEGLIGEN( 38. Paragraphs 1 through 37 are incorporated by reference as though fully stated herein 39, Respondent practiced or attempted to practice dentistry in the State of Utah through gross incompetence, gross negligence, or a pattern of incompetency or negligence, as described in paragraphs 3 through 29 above. 40. Respondent has therefore engaged in unprofessional conduct as defined inUtah Code Ann, § 58-1-501(2)(a) and (g), thus establishing grounds for sanctioning Respondent's license pursuant to Utah Code Ann. § 58-1-401(1) and (2). COUNT II FAILURE TO ESTABLISH AND MAINTAIN APPROPRIATE DENTAL RECORDS 41. Paragraphs 1 through 40 are incorporated by reference as though fully stated herein, 42. Respondent failed to establish and maintain appropriate dental records, as described in paragraphs 3 through 29 above. 43, Respondent has therefore engaged in unprofessional conduct as defined in Utah Code Ann, § 58-1-501(2)(a) and (b) and Utah Administrative Code R156-69- 502(10), thus establishing grounds for sanctioning Respondent's license pursuant to Utah Code Ann. § 401(1) and (2). WHEREFORE, the Division requests the following relief: 1 That Respondent be adjudged and decreed to have engaged in the acts alleged herein 2. That by engaging in the above acts, Respondent be adjudged and decreed to have violated the provisions of the Division of Occupational and Professional Licensing Act; the Utah Dental and Dental Hygienist Practice Act; and the Code of Ethies of the American Dental Association; and3 ‘That Respondent’s licenses to practice as a dentist and to administer and prescribe controlled substances in the State of Utah be placed on probation, subject to terms and conditions as recommended by the Board, or any other sanction as recommended by the Board. The sanctions that the Board may recommend include a public reprimand, suspension, revocation, license restriction, and/or imposition of probationary terms and conditions, & di DATED this_( lay of Feimog ; 2016. Assistant Attonigy GeneralSTATE OF UTAH ) 88. COUNTY OF SALT LAKE ) 1, STEVE NEWKIRK, after being duly swom, depose and state that I have read the foregoing Petition and know the contents thereof, that the same is true to the best of my knowledge except as to matters stated on information and belief and that, as to those matters, I believe them to be true. Investigator Division of Occupational & Professional Licensing SWORN AND SUBSCRIBED to before me tis May of Feboruaty| 2016. NOTARY PUBLIC. SHERICEANGELL Commission No, 678169 1 Are ff Commission Expres 0 ARGH 40,2018 | NOTARY PUBL My Commission Expires: March |, 166CERTIFICATE OF SERVICE I hereby certify that on the We day of tu Wu, 2016, a erue and correct copy of the foregoing VERIFIED PETITION AND NOTICE OF AGENCY ACTION and INITIAL DISCLOSURES REQUIRED UNDER UTAH ADMIN CODE R151-4-503 has been served on the parties of record in this proceeding by mailing a copy thereof, properly addressed by first class mail with postage prepaid, to the following: Tara Isaacson Bugden & Isaacson 445 East 200 South Ste 150 Salt Lake City UT 84111 Copy emailed to: L. Mitchell Jones, Assistant Attorney General {mitchell jones@utah. gov) Con Garol Inglesby/Kim Lesh Admin. Asst/Secretary Division of Occupational and Professional Licensing