Administrative Hearing Commission

Editor:
Richard Maseles, Esquire

License of dentist who drove to work drunk and was arrested before treating patients was subject to discipline for alcohol impairment, misconduct, gross negligence, and violation of professional trust and confidence, but not for fraud, misrepresentation, dishonesty, or drunkenness. Alford plea was not evidence of conduct, but admission during his testimony was. Missouri Dental Bd. v. Glassman, Nos. 10-0498 & 11-2156 DB (Mo. AHC, Jan. 3, 2014), Nelson, C.

Dr. Glassman was stopped and arrested in the parking lot of his dental office for excessive blood alcohol content. While this was happening, his staff was preparing patients for him to treat, but then they sent the patients home and canceled the rest of his appointments when they learned of his arrest. He entered an Alford plea to the charge of driving with excessive blood alcohol content. The Board brought a disciplinary complaint against him on several grounds set out in § 332.321.2, the dental license discipline statute. Dr. Glassman claimed that he had called his office while driving there, telling his staff to cancel the day’s appointments because he was sick. His staff claimed that he left the message on the office answering machine, and the message was retrieved later. These facts were alleged in affidavits filed before the hearing, to which the Board did not object until the hearing.

DECISION:
The commission concluded that Dr. Glassman’s license was subject to discipline for alcohol-induced impairment, misconduct, gross negligence, and violation of professional trust and confidence, but not for fraud, misrepresentation, dishonesty, or drunkenness under § 332.321.2(20). The affidavits were admissible over the Board’s objection pursuant to § 536.070(12) because the Board failed to object to them within seven days of being served with them. However, the contents of the affidavits were not persuasive evidence, since they required a precise timeline that was not credible. Dr. Glassman was found to be alcohol-impaired, not because of his conviction (due to his Alford plea, the consequence of which was that he did not admit the underlying conduct by his plea), but because he testified to being drunk when he drove to the office that day. Also of note in this decision is that the Board’s complaint omitted the italicized words from this language of § 332.321.2(5): “incompetency, misconduct, gross negligence…in the performance of, or relating to [the dentist’s] ability to perform, the functions or duties of [a dentist].” Therefore, the Board was held to the statutory language it pleaded, and any evidence tending to prove the omitted statutory language was disregarded.