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Appeal of Boulard

Supreme Court of New Hampshire

August 28, 2013

Appeal of Dr. Kevin D. Boulard, D.M.D. (New Hampshire Board of Dental Examiners)

Submitted June 4, 2013.

Page 1152

Board of Dental Examiners.

Thompson & Bowie, LLP, of Portland, Maine ( Mark V. Franco on the brief), for the petitioner.

Michael A. Delaney, attorney general ( Anthony I. Blenkinsop, senior assistant attorney general, on the brief), for the New Hampshire Board of Dental Examiners.

LYNN, J. DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.

OPINION

Page 1153

Lynn, J.

The petitioner, Dr. Kevin Boulard, D.M.D., appeals an order of the New Hampshire Board of Dental Examiners (Board) finding that he committed professional misconduct and suspending indefinitely his " moderate sedation -- unrestricted" permit. We affirm in part and vacate in part.

The record establishes the following pertinent facts. The petitioner, a licensed dentist, obtained a moderate sedation -- unrestricted permit from the Board in 2010. A moderate sedation -- unrestricted permit allows the permit holder to use anesthesia on patients to perform certain dental procedures. In December 2011, the Board received a complaint from one of the petitioner's former employees. In the complaint, the former employee raised multiple concerns about the petitioner's practice, including that it " was not equipped to handle a sedation emergency." On March 8, 2012, the Board commenced an unannounced investigation of the petitioner's practice, sending one of its own investigators and an investigator from the New Hampshire Department of Justice. Neither investigator was trained in sedation. The investigators found that the petitioner failed to maintain an operable automated external defibrillator (AED) and maintained an emergency medical kit that was incomplete and contained expired medications. On March 16, the Board found that this conduct " involve[d] imminent danger to life, safety, and/or health in cases involving moderate sedation" and ordered an emergency, temporary suspension of the petitioner's permit. See RSA 317-A:18-b (2005). On April 2, the Board held a hearing to [165 N.H. 302] determine whether the petitioner committed professional misconduct and, if so, whether to extend the suspension of his moderate sedation -- unrestricted permit.

On April 30, at the petitioner's request, the Board commenced a second investigation of the petitioner's practice, this one conducted by the New Hampshire Anesthesia and Sedation Evaluation Committee (Committee). The Committee is a standing committee established by the Board " to ensure that dentists who have a permit to administer general anesthesia and/or sedation" meet the necessary requirements. See N.H. Admin. Rules, Den 102.01(f)(2), 304.02. The Board appoints the Committee to conduct formal and informal investigations. See N.H. Admin. Rules, Den 212.03. Unlike the first investigation, which was unannounced, the date and parameters of this second investigation were known to the petitioner several weeks in advance. The Committee consisted of two licensed dentists, each of whom held a sedation permit. The Committee's evaluation gave the petitioner a passing grade for his moderate sedation -- unrestricted permit. However, the grade was contingent upon the petitioner acquiring one required medication and one piece of required equipment, both of which were missing, and required certifications for his staff. The Committee also noted that the petitioner's staff was " slow with response [and] required coaching for appropriate response" during simulated emergencies.

On May 7, the Board met to deliberate the results of the April 2 hearing (the

Page 1154

Board did not consider the results of the Committee's investigation because it did not receive the Committee's evaluation until May 17). On May 21, the Board issued an order stating that the petitioner committed professional misconduct by: (1) " failing to maintain an operable AED ... while he was authorized to perform moderate sedation -- unrestricted" ; (2) " maintaining an emergency medical kit that was missing certain required medications and contained expired medications which are required for moderate sedation -- unrestricted" ; and (3) " assigning to assistants duties ... which they ...


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