Arizona dental board fails to protect public, hold dentists accountable

Arizona dental board fails to protect public, hold dentists accountable

The Arizona State Dental Board of Examiners is charged with licensing dentists, like those that work in Dr. Anthony Herro’s dental office in Phoenix. (Photo by Albert Serna Jr./The Howard Center for Investigative Journalism)

The Arizona State Dental Board of Examiners is charged with licensing dentists, like those that work in Dr. Anthony Herro’s dental office in Phoenix. (Photo by Albert Serna Jr./The Howard Center for Investigative Journalism)

| Updated:

PHOENIX – Zion Gastelum was 2 years old when he died days after receiving root canals on his baby teeth during a visit to a dentist in Yuma in 2017.

Lizeth Lares was just 4 when she died after getting a tooth pulled a year prior at the same dental office.

And two more people died after visiting the dentist this year, meeting minutes of the Arizona State Board of Dental Examiners show.

CORRECTION: A previous version of this story misspelled the last name of Ryan Edmonson, the executive director of Arizona State Board of Dental Examiners. It also misstated the year he took his position. The story here has been corrected, and it also contains clarifications to indicate Edmonson believes the board has improved since he began his role and says there are no vacancies on the board. Clients who used earlier versions are asked to run the correction found here.

Yet, Arizonans would have a hard time learning about these cases from the state dental board, the 110-year old agency that regulates the dental industry, licenses dental professionals and investigates complaints against them.

Details about problem dentists are hidden under layers of bureaucracy, a tangled complaint system and a public-facing website that is virtually unnavigable, an investigation by the Howard Center for Investigative Journalism found.

And in rare instances when patients die or are seriously injured during a procedure, the board does little to hold dentists accountable, the investigation found.

State audits chronicle similar failures stretching back nearly half a century.

Ryan Edmonson, the board’s executive director, told the Howard Center in an interview that the board was the worst-run he’d ever been a part of when he joined in 2019, but that it had made significant strides in performance since then.

Related story

In recent years, the board has undergone several big shake-ups. In 2018, the board’s executive director retired after an investigation by ABC15 uncovered she ignored warnings about a dentist who falsified anesthesia credentials.

State laws that protect dentists and limit public disclosure of misconduct govern some of the board’s actions. But the board has leeway to develop best practices.

The state board is made up of 11 people appointed by the governor: six dentists, two dental hygienists, two members of the public and one business member. They are each allowed to serve two consecutive four-year terms.

The board’s preponderance of dental professionals leads to decisions that are intended to help dentists learn from their mistakes, but can outrage patients’ families.

“You can’t have a much worse consequence than a dead baby,” said Mike Poli, who settled a malpractice lawsuit against the dentists and dental office on behalf of Zion’s family. “If that doesn’t motivate (the board) to get busy with regulatory oversight, then I don’t know what would.”

In 2017, Zion was placed under anesthesia for his root canals. He never regained consciousness. The oxygen tanks meant to supplement his breathing were empty or not working properly, the dental board found, according to its records. At the hospital, he was diagnosed as brain dead and he died four days later.

The board’s leniency

The board faulted Dr. Aaron Roberts, Zion’s anesthesiologist, for failing to follow proper procedures, and gave him three years of probation that still let him practice under the supervision of another licensed anesthesiologist. Roberts did not respond to multiple requests for comment.

Zion’s dentist, Stephen Montoya, signed a non-disciplinary consent agreement with the board. The board found his mistakes were less serious and didn’t fall outside the standard of care. The board required him to take 10 hours of continuing education.

“It just wasn’t an ideal situation. So now that it’s been so long, I look back on it and I mostly feel that the board handled it fairly,” Montoya told a Howard Center reporter.

Veronica Gastelum, Zion’s mother, said she was expecting harsher consequences.

“This was a child,” she said.

Board-ordered continuing education courses are offered through groups such as the Arizona Dental Association or at a dental school. Some involve an in-person seminar; others are online webinars. All courses must be approved by the board to ensure their syllabi meet the consent agreement requirements. According to the board’s policy, it’s meant to help dental professionals understand the current best practices for procedures and treatments.

But requiring continuing education is the board’s default punishment, said Craigg Voightmann, a dental malpractice attorney who has handled hundreds of lawsuits over 15 years of practice.

“Dentists have this perception that the board’s going to come out and hammer them, and I think it rarely happens,” said Voightmann. “Really, what’s happening is they’re just getting a public reprimand by a letter in their file and continuing education.”

The dental board tends to give dentists continuing education rather than probation when punishing them for misconduct and poor outcomes. (Photo by Morgan Casey/The Howard Center for Investigative Journalism)

On rare occasions, the board restricts someone’s ability to practice, as it did with Zion’s anesthesiologist.

Lizeth, the 4 year old, died the year before Zion after visiting the same dental practice. According to media reports, she developed a fever after Chris Ha and Long Ngoc Phung, her dentists, extracted her tooth to treat an abscess. She died several days later, according to a wrongful death complaint her family filed against the practice and Lizeth’s caregivers. The parties settled the case in October 2019, four months before the case was scheduled to go to trial, according to court records.

The board did not revoke the licenses of Ha or Phung, the two dentists who treated Lizeth.

In her case, there is no public record that the board took any action against the dentists involved.

Ha and Phung did not respond to multiple requests for comment. Both their licenses have expired in the state.

In another case, a dentist wrote prescriptions for controlled substances for his wife, his dental assistant and his dental assistant’s daughter for more than a year, according to decision from a judge at the Office of Administrative Hearings, which sometimes reviews cases from the board.

It took the dentist almost three years to comply with the board’s order to receive an in-patient evaluation for substance abuse. The board subsequently ordered him to receive treatment for substance abuse. He had not received the treatment by the time his case appeared before the OAH in 2018, according to OAH records.

During that time, the dentist removed 13 teeth, replacing some with implants, from a patient without reason and gave them local anesthesia that “exceeded the maximum dosage,” according to the chronology outlined in OAH documents.

It is unclear if the dentist faced consequences for that procedure, but he kept his license before the board revoked it after his failure to receive treatment.

‘Open season … in Arizona’

Dr. Anthony Caputo, chair of the board’s investigations committee, defended some of the board’s decisions in serious cases.

Although he was not on the board when it gave Zion’s anesthesiologist probation, he advised the board on best practices and policy. Later, Caputo supervised the anesthesiologist while on probation.

He said he believed it would have been unfair to revoke the anesthesiologist’s license, the most serious punishment the board can issue, because he considered the dental company the anesthesiologist worked for to be at greater fault.

“He learned from that, as sad as the situation was and as unfortunate as it was,” Caputo said. “So, I think the outcome for him was good.”

The concern of board members for the damage a serious consequence can do to a dentist’s career, Caputo said, also contributes to its reluctance to give harsh punishments.

“We’re sort of regulating ourselves,” he said.

One dental malpractice attorney told the Howard Center that the board’s sanctions do little to deter bad dentistry. “It’s open season,” he said. (Photo by Morgan Casey/The Howard Center for Investigative Journalism)

Self-regulation can also lead dentists to interpret state requirements in ways that benefit themselves.

For example, state law requires dentists to report adverse outcomes in their practices to the board within 10 days.

Sometimes, they don’t.

An audit of the dental board from September 2022 highlights one case in which a female patient died after receiving 10 times the proper dosage of anesthesia. The board was unaware of the death until the patient’s family submitted a complaint four months later.

Dentists may be reluctant to report bad outcomes in their offices because they feel the process is punitive, Caputo said. He added that they are not necessarily violating the law because it is broadly written.

Patients on the receiving end of a dentist’s poor treatment have turned to the courts to hold their caregivers accountable.

Voightmann, the dental malpractice attorney, said the board’s slap on the wrist strategy doesn’t deter bad behavior, particularly for “frequent fliers,” dentists who repeatedly make mistakes in their practice.

“The reason we have so much work is because (the board members) don’t stop these people,” said Voightmann.

Still, there is only so much a lawsuit can do.

The most common consequence resulting from lawsuits are restitution payments, which require the dentist to pay back their patient the money for their botched procedure, Voightmann said. Unlike the board, lawsuits can’t revoke licenses to practice.

“It’s open season,” said Voightmann. “The only consequence is really going to be a letter, a public reprimand or something.”

An opaque regulatory system

State auditors have criticized the board for not following important procedures such as ensuring dentists meet licensing requirements, processing complaints within 180 days of their submission, and providing information to the public.

The result is an opaque and dysfunctional regulatory system, critics said.

The main function of the board is to issue and renew dental licenses, requiring applicants to meet Arizona’s requirements. But the board has repeatedly failed to ensure people practicing in the state are licensed, according to a 2022 state audit.

The state’s auditor general criticized the dental board for not verifying that all licensed dentists meet the right requirements, as was the case with Melissa Pavey and Jolene Houchens. (Photo by Morgan Casey/The Howard Center for Investigative Journalism)

Melissa Pavey and Jolene Houchens practiced at Desert Valley Dental without licenses and frequently performed dental procedures without any medical training from 2016 to 2017, according to court documents.

The dental board ultimately became aware of the two and referred the alleged misconduct to the Arizona Attorney General’s Office.

The two women were arrested on charges of fraud, aggravated assault and unlawfully using a dentist’s prescription pad. Pavey was convicted for several of those charges, according to her case file in Maricopa County Superior Court. Houchens pleaded guilty to theft, according to her case file.

The board does little to warn the public about situations such as these, putting the onus on Arizonans to search for information about whether a dentist holds a valid license or has complaints against them.

The websites for Texas and California’s boards prominently display where the public can access a list of dental professionals who are facing complaints, are on probation or have had their licenses suspended.

In Arizona, a similar public list of dentists facing disciplinary action doesn’t exist. To access details on dentists involved in bad outcomes, someone would have to search for individual names in the board’s directory.

Even then, the list only shows if the board acted against the dentist. Details of any allegations against the dentist and what the board did are buried in documents that may or may not be accessible.

Compared to other state dental boards, it’s difficult to find out if a dentist is facing complaints on the Arizona State Board of Dental Examiners’ website. (Screenshot courtesy of the Arizona State Board of Dental Examiners)

The information the board does list only goes back five years. State law specifies the board is only required to maintain online public records of complaints or disciplinary action for five years. After that, someone seeking details about a dentist needs to request it from the board.

“It’s a dumb statute,” said Edmonson. “It’s not protecting (the public). It does exactly the opposite of what a board is supposed to do.”

Because of the five-year limit, the public could learn that one Arizona dental-surgeon, Victor Trujillo, was the subject of four complaints, but not the subject of 22 others.

Trujillo declined to comment in a brief phone call with reporters.

Even the board, which is charged with issuing repercussions for substantiated complaints against dentists, doesn’t always know problems in a dentist’s past, Edmonson said.

Board members can’t access the board’s database to see a dentist’s complaint history or any subsequent action. During board meetings, Edmonson said he cannot provide information of pending or previous complaints against a dentist unless a member asks.

A backlog of complaints

Fundamental and structural problems hinder the board’s ability to handle complaints thoroughly and quickly. Of the 11 seats on the board, five were vacant as of March 2023, according to the official list of board vacancies maintained by the Governor’s Office. Edmonson, however, said they did not have vacancies and still don’t. Nonetheless, monthly board meetings sometimes lack a quorum for business. When that happens, meetings are canceled, complaints pile up and all agenda items are moved to the following month.

In 2022, complaints were tabled or carried over 140 times from meetings throughout the year, according to meeting minutes.

Cases are supposed to be resolved within 180 days but the vast majority are not, the Arizona Auditor General found. According to its 2022 Sunset report, one case took over 650 days to resolve or receive a formal hearing with the Office of Administrative Hearings.

Related story

Even if a person’s case is heard quickly, the most involvement they get is a three to five-minute public statement, Voightmann said.

The Howard Center investigation found one instance from Dec. 2, 2022, when a witness to a complaint was skipped over during a board meeting held on Zoom because he couldn’t be heard. The witness ultimately had a chance to speak later in the meeting, according to the audio transcript of the meeting.

People caught in the board’s backlog have little insight into how their complaints are progressing. They do not know the status of the case until its conclusion, which may be months or even years, and sometimes beyond the required 180-day timeline for resolution.

Edmonson attributed some of the backlog to the number of people the board contracts to investigate complaints. When Edmonson took his position in 2019, only one person was contracted to investigate complaints.

“When you average 350 complaints a year, one person is not a whole lot,” he said.

Until last year, the board did not have a formal investigative committee to look into complaints. Caputo, its first chair, said the group had cleared most of the backlog.

“If I’m guessing, we’re maybe four to six months backlogged versus one to two years, which I think is significant,” he said.

But there is no timeline for when the backlog will be cleared. The board now has five investigators.

History of chronic failures

The board’s problems have been the target of the Arizona State Auditor General for over 40 years.

A 1979 audit first identified the board’s failure to protect the public, its biases in dealing with the Arizona Dental Association, a slow complaint processing system and nontransparent meeting rules and regulations.

Audits from 1981, 1999, 2014 and 2022 list similar issues, such as the board’s continued failure to inform the public of its meetings and to ensure dental professionals are held accountable when fulfilling continuing education requirements.

State audits dating back to 1979 criticize the dental board for a variety of things, including lack of information to the public and lenient consequences for poor dentistry. (Graphic by Morgan Casey/The Howard Center for Investigative Journalism)

The 1981 report noted that the board improved its complaint process, but did not do enough to serve the public:

“We also found, however, that the board still is not completely fulfilling its statutory responsibility to protect the citizens of Arizona from incompetent dental practitioners, and there is increased complainant dissatisfaction with the board’s handling of complaints.”

The 2022 audit similarly addressed the slow complaint process. The report found that the board did not resolve 32 of 35 complaints within the 180-day requirement.

At a January 2023 health and human services committee meeting in the Arizona Legislature, executive director Edmonson said the board needs more money to pay investigators appropriately.

The Arizona Legislature gave the board two years to improve.

Voightmann said the board is better than it used to be, but still must do more to protect the public.

“There’s a lot of bad dentistry in Arizona,” said Voightmann. “They’re not stopping anybody.”

This story was produced by the Howard Center for Investigative Journalism at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication, an initiative of the Scripps Howard Foundation in honor of the late news industry executive and pioneer Roy W. Howard. Contact us at [email protected] or on Twitter @HowardCenterASU.