"Lyness is not helpful as it addresses due process under the Pennsylvania Constitution"
How later courts described this case
- "Lyness is not helpful as it addresses due process under the Pennsylvania Constitution"
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. AP-20-17
DR. JAN B. KIPPAX, D.M.D.,
Petitioner,
DECISION AND ORDER
ST ATE OF MAINE BOARD OF
DENT AL PRACTICE,
Respondent
INTRODUCTION
Dr. Jan B. Kippax, D.D.S. has appealed a Decision and Order of the Maine
Board ofDental Practice (the Board) dated March 13, 2020 that imposed disciplinary
sanctions upon him following an evidentiary hearing held on October 11, 2019, and
re-opened deliberations on sanctions only conducted on March 13, 2020. This
appeal has been brought pursuant to 5 M.R.S. §§ 11001-11002 (Maine
Administrative Procedure Act), 10 M.R.S. § 8003(5)(G) and M.R.Civ.P. SOC.
Dr. Kippax contends that the Board's Decision must be vacated because: (1)
The Board failed to find violations against Dr. Kippax based on expert testimony;
(2) The Board was biased against him; (3) The Board erroneously used the
preponderance of the evidence standard of proof, rather than clear and convincing
evidence, in finding that he violated the Dental Practice Act, and; (4) The Board
committed error when it reopened the hearing on the question of sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the imposition of discipline against Dr. Kippax as a result
of his surgical treatment of "Patient A," who was diagnosed with having a benign
mucocele on her right lower lip. Based on the evidence presented to the Board,
including the testimony of Dr. Kippax himself, mucocles are '"salivary retention
phenomena' in which the outflow duct of the salivary gland is damaged or pinched
Page 1 of 25
and then expands like a water balloon as saliva is produced." They are generally
considered to be benign. (Administrative Record, "AR" at 5, n. 7) . Patient A is a
board-certified audiologist who was hit in the face with a child's stuffed toy and
developed a small bump on the right side of her lower lip. She was referred to Dr.
Kippax, who saw her on July 1, 2016. According to Patient A's complaint to the
Board dated March 2, 2017, Dr. Kippax told her that the bump was a mucocole and
that it would be very simple to remove with a small incision requiring just a few
sutures - no more than 4. (AR at 22). Patient A complained that Dr. Kippax never
said anything to her about removing any margin of tissue surrounding the mucocele,
nor did he warn her that the procedure he was about to perform could cause
disfigurement of her lip and might require reconstructive plastic surgery. (AR at 5).
After Patient A's bottom lip was anesthetized, she became concerned because
the procedure was taking much longer than she had expected based on what Dr.
Kippax had told her. She could smell burning skin as the procedure was in progress
and stopped counting the number of stiches when she got to sixteen (16 ). When the
procedure was completed, Dr. Kippax remarked that the mucocele was larger than
anticipated and there might be "slight disfiguring," and he commented that "plastics
can do magic now." (AR at 6). When she was handed a mirror, "Patient A 'saw that
a quarter to a third of my lip was missing,' the pink part of the lip in the area was
'almost all gone,' and her teeth were visible with the lips closed." (Id). She began
to sob and cried for 15-20 minutes, before being escorted out the rear door. She
called her husband from the car.
Later that day, she and her husband went to the local emergency room, where
she was asked if she had been attacked by a dog. She was referred to a plastic
surgeon who advised her to wait for the wound to heal and later to do scar massages
on a daily basis for six months. Patient A filed her complaint with the Board in
Page 2 of25
March 2017 after learning of other complaints having been filed with the Board
against Dr. Kippax. (Id).
Plastic surgery was planned and performed in December 2017 to restore
"normal lip contour," because the removal of the mucocele by Dr. Kippax had left
Patient A "with a large divot of the right lower lip that prevented oral competence
in that area." The plastic surgery involved a V-wedge incision to perform a "7cm
complex repair ... including muscle, mucosa, deep dermis and skin." (Id).
Dr. Kippax filed his response to Patient A's complaint on or about May
8, 2018. Further con-espondence between the Board Staff and Dr. Kippax extended
into March 2019. (AR at 26, 65, 67). It appears that the delay was due, at least in
part, to the need to obtain all relevant medical and dental records. Ultimately, the
Board issue a "Second Revised Notice of Hearing" dated September 25, 2019 setting
the date for the adjudicatory hearing for October 11, 2019. The notice of hearing
announced that the purpose of the hearing was to determine "whether by a
preponderance of the evidence grounds exist to take adverse action against the
license of Dr. Kippax as follows:
1. Pursuant to 32 M.R.S. § 18325(l)(E) and Board Rules chapter
9, § II(R) for engaging in unprofessional conduct by violating
a standard of care that has been established in the practice of
dentistry;
2. Pursuant to 32 M.R.S. § 18325(l)(D)(l) for professional
incompetence as defined by statute as engaging in conduct
that evidences a lack of ability or fitness to perform the duties
owed by a dentist to a patient;
3. Pursuant to 32 M.R.S. § 18325( 1)(D)(2) for incompetence as
defined by statute as engaging in conduct that evidences a
lack of knowledge or inability to apply principles or skills to
carry out the practice of dentistry;
Page 3 of25
4. Pursuant to 32 M.R.S. § 18325( 1)(E) and Board Rules chapter
9 § IT(P) for failing to retain/maintain complete patient
records for a period of no less than seven (7) years after
cessation of a patient's treatment.
(AR at 14).
Well in advance of the hearing, the Board Staff, represented by the Attorney
General's Office, designated Dr. Killian MacCatihy, D.M.D., M.D., as its expert
witness. Dr. Maccarthy is in the same practice as Dr. Mark D. Zajkowski, D.D.S.,
M .D., a member of the Board, who was recused from sitting on this case because he
served as the complaint officer during the investigation of Patient A's complaint.
Prior to the hearing, Dr. Kippax moved to dismiss the complaint against him on the
basis that there was an intolerably high risk of bias towards him because, he alleged:
( 1) the Assistant Attorney General who would be prosecuting the case against him
before the Board also acted as counsel to the Board during the investigatory stage of
the case, and; (2) Dr. MacCarthy, as a result of his relationship with Dr. Zajkowski,
had become, in essence, a "de facto" member of the Board. (AR at 559). Dr. Kippax
also moved to have the Board utilize a "clear and convincing evidence" standard of
proof rather than the preponderance of the evidence standard. (AR at 579) .
Because the motion to dismiss was a dispositive motion, the Hearing Officer
for the Board - Attorney Mark F. Terison, Esq. - referred that motion to the Board
for resolution at the start of the hearing on October 11, 2019. After discussion, the
Board voted unanimously to deny the motion. (AR at 319 - Transcript, hereinafter
"T" at 9). The Hearing Officer also denied the request to employ the clear and
convincing standard of proof. (AR at 319-Tat I 1). Next, the Board members were
asked whether any of them had a personal or professional relationship with any of
the potential witnesses that would affect their ability to be fair and impartial. Two
members of the Board, Dr. Morse, the Chair, and Dr. Ray, disclosed that they refer
Page 4 of 25
patients to Dr. MacCarthy's practice. Both Board members represented that they
could continue to be fair and impaiiial, notwithstanding that referral relationship.
The two Board members were also questioned by counsel and confirmed that there
was no formal referral agreement with Dr. MacCarthy's practice, it was not an
exclusive referral arrangement, and there was no compensation involved with any
referral. (AR at 322). Both Board members reiterated that they could be fair and
impaiiial in their consideration of the case involving Dr. Kippax. (AR. at 324).
Following opening statements, the testimonial portion of the hearing began.
In its case-in-chief, the Board Staff called Dr. Kippax, Patient A., and Dr.
MacCarthy. In the licensee's presentation of evidence, Dr. Kippax was recalled. Dr.
Stuart Lieblich, D.M.D. testified as the licensee's designated expert witness. At the
conclusion of the presentation of evidence, Dr. Kippax renewed his motion to
dismiss, which was denied by the Board. (AR. at 432). Following closing arguments,
the Board began its public deliberations, and addressed each of the four alleged
violations as identified in the Second Revised Notice of Hearing.
As to alleged violation # 1, that Dr. Kippax violated a standard of care, the
Board voted 4 to 1 that he had engaged in unprofessional conduct by violating a
standard of care in the practice of dentistry. (AR. at 443).
As to alleged violation# 2, that Dr. Kippax engaged in conduct that showed
a lack of ability or fitness to perform the duties owed by a dentist to a patient, the
Board voted 5 to O that the violation had been proven. (AR. at 444).
As to alleged violation # 3, that Dr. Kippax engaged in conduct showing a
lack of knowledge or an inability to apply principles or skills to carry out the practice
of dentistry, the Board voted 5 to O that the violation had been proven. (AR. at 446).
Finally, as to alleged violation # 4, that Dr. Kippax failed to retain and/or
maintain complete patient records for the required period of time, the Board voted 5
to O that the violation had not been proven. (AR. at 446).
Page 5 of 25
The Board then proceeded to the question of sanctions. At that point, Dr.
Kippax again took the stand and testified that he had outstanding liabilities of
approximately $95,000 in unpaid legal fees, $60,000 in spousal support arrearages,
$60,000 in unpaid taxes. He further testified that his patient volume had been
reduced to about 25% of what it had been previously, and his malpractice insurance
had essentially doubled. His retirement savings of approximately $450,000 had been
withdrawn and exhausted, resulting in the tax liability noted above. (AR. at 448-49).
In short, Dr. Kippax testified that he was unable to pay any financial sanction the
Board might be inclined to impose.
At the conclusion of its deliberations, the Board voted 4-0-1 to impose the
following sanctions upon Dr. Kippax: A reprimand with the licensee being placed
on probation for 5 years subject to the condition that he complete continuing
education pre-approved by the Board consisting of 3 course hours in patient
communication and 6 course hours in oral pathology, to be completed within 12
months of the Board's Decision and Order and to be in addition to the regularly
required continuing education credits needed for license renewal. (AR. at 458).
The adjudicatory hearing was completed at 10:29 p.m., having lasted
approximately 14 hours. (AR at 458; AR at 4). The Hearing Officer proposed that
he would draft the written Decision and Order for consideration at the Board's
meeting scheduled for November 8, 2019. (AR at 458). Two days prior to that
hearing, however, the Hearing Officer received a telephone call from the Board
Chair inquiring as to whether the Board could re-open its deliberations on the issue
of sanctions. (AR at 964). The Hearing Officer received another call from the Board
on the morning of the November 8, 2019 meeting, also asking whether the
deliberations on sanctions could be re-opened. (AR at 962). The Hearing Officer
advised the Board that its Decision and Order was not final until it was adopted and
signed and that, therefore, the Board had the legal authority to re-open its
Page 6 of 25
deliberations. (AR at 964). The Board did, in fact, vote to re-open deliberations on
the question of sanctions, and those re-opened deliberations were ultimately
scheduled for March 13, 2020. (AR at 962).
In the meantime, Dr. Kippax filed a Motion for Reconsideration asking that
the Board dismiss Patient A's complaint on the basis that: (1) the Board failed to
find violations based on expert testimony; (2) the Board impermissibly considered
past alleged violations to determine liability, and; (3) the Board was impermissibly
biased. (AR at 970). Later, Dr. Kippax re-filed this motion as both a motion for
reconsideration and a motion to dismiss. (AR at 985). Those motions were denied
after the Board completed its re-opened deliberations on sanctions on March 13,
2020. (AR at 520).
The Board began its re-opened deliberations on sanctions with four of the five
Board members who had sat at the adjudicatory hearing on October 11, 2019. (AR
at 515-16). Based on past practice, the Board decided to add, as a sanction, a
requirement that Dr. Kippax pay up to $6,000 for the cost of the
investigation/hearing, to be paid within 12 months of the Decision and Order. (AR
at 517). The Board also voted to require Dr. Kippax to undergo a behavioral
assessment by the Maine Medical Professionals Health Program (MMPHP) within
90 days of the Decision and Order. (AR at 519-20). The Board's written Decision
and Order was modified to reflect the additional sanctions and was apparently
adopted by the Board and signed on March 13, 2020. (AR at JO).
On or about April 13, 2020, Dr. Kippax moved to stay the Board's Decision
and Order pending this petition for judicial review. (AR at 1006). That motion was
denied by the Board at its April 17, 2020 meeting. (AR at I OJ 4). This Petition for
Judicial Review was filed on April 8, 2020. Briefing was completed on September
17, 2020 and argument was held on March 11, 2021.
Page 7 of 25
STANDARD OF REVIEW
The Law Court has frequently reaffirmed the principle that judicial review of
administrative agency decisions is "deferential and limited." Passadumkeag
Mountain Friends v. Bd. ofEnvtl. Prat., 2014 ME 116, ii 12, 102 A.3d 1181 (quoting
Friends ofLincoln Lakes v. Bd. ofEnvtl. Prat., 2010 ME 18, 1 12, 989 A.2d 1128).
The court is not permitted to overturn an agency's decision "unless it: violates the
Constitution or statutes; exceeds the agency's authority; is procedurally unlawful; is
arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or error
of law; or is unsupported by the evidence in the record." Kroger v Departmental of
Environmental Protection, 2005 ME. 50, 1 7, 870 A.2d 566. The party seeking to
vacate a state agency decision has the burden of persuasion on appeal. Anderson v
Maine Public Employees Retirement System, 2009 ME. 134, 13, 985 A.2d 501. In
particular, a party seeking to overturn an agency's decision bears the burden of
showing that "no competent evidence" supports it. Stein v. Me. Crim. Justice
Academy, 2014 ME 82, ii 11, 95 A.3d 612.
This court must examine "the entire record to determine whether, on the basis
of all the testimony and exhibits before it, the agency could fairly and reasonably
find the facts as it did." Friends of Lincoln Lake v Board of Environmental
Protection, 2001 ME. 18 113, 989 A. 2d 1128. The court may not substitute its
judgment for that of the agency on questions of fact. 5 M.R.S. § 11007(3).
Determinations of the believability or credibility of the witnesses and evidence,
supported by substantial evidence in the record, should not be disturbed by the comi.
Cotton v Maine Employment Security Commission, 431 A. 2d 637, 640 (Me. 1981 ).
The issue is not whether the court would have reached the same result the agency
did, but whether the "record contains competent and substantial evidence that
supports the result reached" by the agency. Seider v. Board of Examiners of
Page 8 of 25
Psychologists, 2000 ME 206, ,r 8, 762 A.2d 551 quoting CWCO, Inc. v.
Superintendent ofInsurance, 1997 ME 226, ,r 6, 703 A. 2d 1258, 1261.
DISCUSSION
In his petition for judicial review, Dr. Kippax seeks to have the court vacate
the Board's disciplinary Decision and Order on a number of grounds. Specifically,
Dr. Kippax claims that reversal of the Board's action is necessary because: (1) The
Board failed to find violations of the Dental Practice Act based on expert testimony;
(2) The Board was - based on several factors - impennissibly biased against him;
(3) The Board utilized the wrong standard in evaluating whether Dr. Kippax had
violated the Dental Practice Act, and; (4) The Board erred in re-evaluating its
discipline, which also demonstrates its impermissible bias.
The court will address each of these arguments in the order presented by Dr.
Kippax in his brief.
1. Did the Board fail to find violations on the basis of expert testimony?
Pointing to remarks made by two Board members (Morse and Wellington)
during deliberations, Dr. Kippax contends that the Board did not have expert
testimony that he violated a standard of care in the practice of dentistry to support
the alleged violations (1, 2 & 3) he was found to have committed. Specifically, both
Board members, Morse and Wellington, stated during deliberations that they
understood Dr. Maccarthy to initially testify that Dr. Kippax's surgical treatment of
Patient A's mucocele had deviated from the standard of care expected of a
reasonably skilled oral surgeon, but that he later reversed himself. (See, e.g., AR at
439 - Tat 492; AR at 440 - T at 496-97; AR at 442 - T at 504). From these
comments, Dr. Kippax argues that the Board did not have expert evidence from
which to conclude that the standard of care was violated by him.
The court has examined Dr. MacCarthy's testimony in its entirety, multiple
times, and has searched in vain for any indication that he changed his opinion that
Page 9 of 25
the standard of care was breached by Dr. Kippax by virtue of his overly aggressive
surgical approach to the removal of Patient A's mucocele. Dr. MacCarthy clearly
testified that there was no good reason for Dr. Kippax to remove a margin of
surrounding tissue when removing Patient A's mucocele. (AR at 381 - Tat 259).
He further testified that it was highly unusual for there to be a facial deformity as a
result of the removal of a benign mucocele and he had never seen such a result. (AR
at 385 - Tat 276). Although Dr. Kippax has maintained that the mucocele procedure
was complex, Dr. Maccarthy disagreed and testified that a general dentist, with no
special skills as an oral surgeon, was capable of performing the removal procedure
(AR at 388 - Tat 285). Regarding the decision by Dr. Kippax to remove the
mucocele with a surrounding margin of tissue, Dr. MacCarthy testified:
A. My concern with him removing it in one chunk is that it has
left a volume defect that is going to be very challenging to manage. The
tissue management then made it difficult to maintain the volume for
aesthetics and function to the lower lip.
Q. When you say difficult to manage, what does that mean in -
A. The patient, the lip does not look the same since she had this
biopsy performed. The end goal is after procedure, someone, for a
benign lesion, should look the same afterwards such as a mucocele.
Q. And how important is it to remove the entire mucocele when
you 're concerned about cosmetics?
A. The only risk, if you don't get the whole mucocele out, is that
it could reoccur. There are many people who will bite them on their
own or stick needles in them and they don't come back. But as a
surgeon who is intervening to help manage this, I think the discussion
would be the worse [sic] case is ifl don't take all the tissue out, it might
come back. But now we're going to establish a relationship and come
back when it's small and if we want to then perform an excisional
biopsy with minimal volume loss, then we can go ahead and do that.
(AR at 388- Tat 285-86).
Page 10 of25
On the specific question as to whether he had an opinion that Dr. Kippax
breached the standard of care expected of a reasonable and prudent oral surgeon, Dr.
MacCarthy had this to say:
Q. Okay, Dr. Maccarthy, in your professional opinion, was it
necessary to remove the amount of tissue that Dr. Kippax did in order
to remove the mucocele from [Patient A's] lip?
A. No.
Q. Why do you say that?
A. The amount of tissue that he removed left the patient
disfigured with a volume defect that required a V wedge excision of the
lower lip which is usually reserved for patients with squamous cell
carcinoma of the lower lip.
Q. And that wasn't possibly the case?
A. Correct.
Q. What relationship did the removal of this extra tissue play to
the creation of the defect that [Patient A] suffered to her lip?
A. The tissue that was removed made it challenging for Dr.
Kippax to be able to bring the edges together without distorting the
normal architecture of the lip.
Q. In your opinion, would an ordinary and prudent oral surgeon
in Maine be able to remove this mucocele without taking the amount of
tissue that Dr. Kippax removed?
A. Yes .
Q. Why do you say that?
A. Because I, myself, have removed many mucoceles, and I have
not had a volume defect that left a cosmetic defect that required a
secondary procedure.
Page 11 of 25
Q. Under the circumstances of this case, did Dr. Kippax have a
professional obligation to advise [Patient A] that she might experience
scarring?
A. He should have advised the patient that his planned excision
with normal margins was going to leave a volume defect that could
cause a scarring of the lower lip.
Q. Do you have an opinion about whether Dr. Kippax breached
the standard of care when he removed the mucocele from [Patient A]?
A. My opinion is that someone who is having a mucocele
removed, which is a benign lesion, should not end up needing plastic
and reconstructive surgery afterwards.
Q. And is your opinion that when he removed the mucocele, that
he violated the standard of care of an ordinary and prudent oral surgeon
in Maine?
A. Yes.
Q. And why do you say that?
A. Because the mucocele is a benign lesion, and I think with an
open discussion with the patient, unless she was in a hurry and was
catching a plane to Africa and needed it done and definitively treated
that day, I think with an understanding that an unroofing procedure or
just excising the mucocele and the offending glands and closure could
possibly lead to recurrence. I think from her testimony, she would have
accepted that in the discussion versus a full excision with normal tissue
around it and a volume defect of the lip.
(AR at 392 - Tat 301-04).
On cross-examination, Dr. MacCarthy reaffirmed that the standard of care for
the removal of a benign mucocele was that "someone should not be deformed." (AR
Page 12 of 25
at 393 - Tat 307). When asked by a Hoard member (Chair Morse) whether he felt
that Dr. Kippax's aggressive approach to the removal of Patient A's mucocele
showed a lack of ability or incompetence, Dr. Maccarthy replied:
"I think he doesn't understand the volume defect that he created
or before the procedure knowing that he would end up with
something that would be challenging to manage." (AR at 406
Tat 360).
It is true that there were individual aspects of Dr. Kippax's approach that Dr.
MacCarthy did not take issue with as far as the standard of care was concerned. For
example, Dr. Maccarthy did not see a deviation from the standard of care in the
choice to use an electrocautery device rather than a scalpel (AR at 397 - Tat 323),
or to make a vertical incision versus a horizontal one (AR at 397 - Tat 321), or to
send the sample to pathology for evaluation (AR at 397 - T at 323), or in his
diagnosis of a mucocele and his decision to remove it. (AR at 393 -Tat 306). Rather,
it was the surgical approach used by Dr. Kippax in removing the mucocele that Dr.
Maccarthy believed constituted a beach of the standard of care. It was not simply
that Dr. Kippax ended up with an unfortunate result, it was that he did not understand
or appreciate, and did not convey to Patient A, that his aggressive approach would
result in a significant facial deformity for his patient. Indeed, as the Board found,
Dr. Kippax testified that he had no memory of the volume defect he caused in Patient
A's lower lip, had no memory of how upset she became after the procedure, believed
the surgery had been "done well," and he would do it the same way if he had the
chance. (AR at 7).
Notwithstanding the comments by two Board members during deliberations,
in its written Decision and Order adopted on March 13, 2020, the Board specifically
found that "Dr. MacCarthy testified that the Licensee violated the standard of care
required of the ordinary and prudent oral surgeon in Maine." (AR at 8).
Page 13 of25
Based on its review of the entire record, the court is satisfied that the Board's
findings are supported by substantial evidence, including expert evidence on the
standard of care, such that the Board "could fairly and reasonably find the facts as it
did." Doane v. Dep 't of Health and Human Services, 2021 ME 28, ~ 38, _A.3d
2. Was the Board impermissibly biased against Dr. Kippax?
Dr. Kippax has alleged that, for a number of reasons, the Board was
impermissibly biased against him. His reasons can be grouped into three grounds.
First, he argues that the Assistant Attorneys General who prosecuted this case on
behalf of the Board Staff, had earlier acted as counsel to the Board during the
investigation of Patient A's complaint. Second, he alleges that Dr. MacCarthy's
relationship to recused Board member Dr. Zajkowski, as well as the referral
relationship two Board members had with Dr. MacCarthy's and Dr. Zajkowski's
practice, created an intolerable risk of prejudice. Third, Dr. Kippax asserts that prior
Board actions involving him tainted this proceeding and rendered it unfair.
The court will consider each of these arguments in turn.
A. Commingling of roles ofAssistant Attorneys General
This court has previously addressed a claim that there was a due process
violation where an assistant attorney general served multiple functions for the Board
of Dental Practice and its staff at various stages in a disciplinary matter. See
Narowetz v. Maine Board of Dental Practice, KEN-AP-19-43 (Stokes, J.)
(November 12, 2020).
In this case, the court has examined the administrative record and finds no
basis to conclude that the conduct ofthe AAGs involved in this matter were improper
or contributed in any way to a due process violation. The court believes that the
cases relied upon by Dr. Kippax are easily distinguishable.
Page 14 of 25
Berry v. Maine Public Utilities Comm., 394 A.2d 790, 793 (Me. 1978),
involved an adjudicatory hearing in which Berry was denied the opportunity
to present and develop his case when the commission declared that it had
"heard enough." In addition, the Law Court noted that there was "some
evidence" of ex parte communications between a commission member and a
staff attorney "inconsistent with their respective roles as judge and advocate."
No such circumstances are present in this record.
In Schaffer v. State Board of Veterinary Medicine, 143 Ga. App. 68, 237
S.E.2d 510 ( 1977), 1 the attorney acting as the prosecutor was also providing legal
advice to the board in such a way that the court was compelled to conclude that a
fair hearing could not be conducted. In particular, the court described the
prosecutor/legal advisor as being "uncompromising" in construing legal points
"strongly" against the appellant, and he did so with a "sometime venomous attitude."
143 Ga. App. at 71. No such behavior occurred in this case. On the contrary, the
Board took the appropriate step of contracting with an experienced attorney to serve
as the presiding officer for the adjudicatory hearing on October 11, 2019 and for its
re-opened deliberations on March 13, 2020. See 5 M.R.S. § 9062
Lyness v. Commonwealth, 529 Pa. 535, 605 A.2d 1204 (1992) was a divided
decision of the Pennsylvania Supreme Court that appears to have adopted a per se
rule that a due process violation occurs under the state constitution if an
administrative body is involved in the investigatory stage of a matter and later sits
as an adjudicatory body on the same matter. The majority in Lyness recognized that
its interpretation of the state due process clause differed from the due process
requirements embodied in the federal constitution. 605 A.2d at 1210, n. 15 (referring
to Withrow v. Larkin, 412 US. 35 (1971) as embracing a different view of due
1
Overruled on other grounds in In Re Kennedy, 266 Ga. 249, 251, n. 1, 466 S.E. 2d 1 ( 1996).
Page 15 of25
process under the U.S. Constitution). See also In Re Marcone, 359 Fed. Appx. 807,
809 (3rd Cir, 2010) ("Lyness is not helpful as it addresses due process under the
Pennsylvania Constitution"); Day v. Borough of Carlisle, 2006 U.S. Dist. LEXIS
46434, *32 (M.D. Pa.) (same). This court's own research suggests that no court,
other than the Pennsylvania state courts, have adopted the due process standard
announced in Lyness. The parties have not directed the court's attention to any case
that has followed the Lyness approach.
As a general proposition, "the combination of investigative and adjudicatory
functions does not, without more, constitute a due process violation." Withrow v.
Larkin, 421 U.S. at 58. Both the United States Supreme Court and the Maine Law
Court have recognized that '[i]t is also very typical for the members of administrative
agencies to approve the filing of charges or formal complaints instituting
enforcement proceedings, and then to pa1iicipate in the ensuing hearings. This mode
of procedure does not violate the Administrative Procedure Act, and it does not
violate due process oflaw." 412 U.S. at 56. N. At!. Sec., LLC v. Office ofSec., 2014
ME 67, ,r 42, 92 A.3d 335 (no due process violation where Securities Administrator
issued Notice of Intent to Revoke/Suspend and also adjudicated case).
Notwithstanding this general rule, however, there may be "special facts and
circumstances" in a case that create an "intolerably high" risk of unfairness.
Accordingly, it is necessary to look at the specific facts of a case in order to
determine whether the likelihood of bias or unfairness is unacceptably high.
Looking at the facts of this case, the court is satisfied that Dr. Kippax has
failed to show any impropriety on the part of the AAGs. The allegation that the
AAGs, who advised the Board and the staff during the investigative stage of the
proceedings involving Dr. Kippax violated his due process rights by later
prosecuting the charge against him at the adjudicatory hearing, is without merit. "It
is neither unlawful nor uncommon for the attorney general to both give advice to
Page 16 of25
various administrative agencies, and thereafter prosecute actions brought by the
agency." Collison v. Iowa Bd. of Med., 2014 Iowa App. LEXIS 64, * 19, 843
N.W.2d 476.
As an initial matter, it must be observed that the AAGs assigned to this matter
had no authority or discretion over the Board's decision-making process. Id. In
other words, at no point did any member of the Attorney General's Office act as an
adjudicator. Stated simply: the AAGs did what they were assigned to do, namely,
provide legal advice to the Board and the Board's staff during the investigatory
stage, and then prosecuted the disciplinary action before the Board, as authorized by
the Board. In doing so, there was no due process violation.
This is not a case where a person or agency has assumed the roles of both
prosecutor and adjudicator. Such a commingling of roles presents "[a] more serious
problem," because "[b]y definition, an advocate is a partisan for a particular client
or point of view. The role is inconsistent with true objectivity, a constitutionally
necessary characteristic of an adjudicator." Botsko v. Davenport Civ. Rights
Comm 'n, 774 N.W.2d 841, 849-50 (Iowa, 2009) quoting Howitt v. Superior Court,
3 Cal. Rptr. 2d 196, 202 (Cal. App., 1992). See also Asimow, When the Curtain
Falls: Separation of Functions in the Federal Administrative Agencies, 81 Colum.
L. Rev. 759, 773 (1981 ).
In short, the cou1i finds no merit to the argument that the multiple roles served
by the AAGs created an intolerable risk of bias against Dr. Kippax.
B. Dr. MacCarthv and Dr. Zaikowski
Dr. Kippax contends that the role of Dr. MacCarthy as the expert witness for
the prosecution of Patient A's compliant was prejudicial to him for a couple of
reasons. First, he asse1is that because two Board members referred patients to Dr.
McCaiihy's practice, they should have recused themselves from sitting on the case
because "they were pre-disposed to believe an individual on whose expertise they
Page 17 of 25
routinely rely." Pet's Mem at 14. Second, Dr. Kippax contends that the reasoning
of Moore v. Maine Board ofDental Examiners, 2008 Me. Super. LEXIS 152 (Jabar,
J.) (April 18, 2008) should apply here because of Dr. MacCarthy's business
relationship with Dr. Zajkowski, a recused Board member who acted as the
complaint officer for Patient A's complaint.
The court is not persuaded that referring patients to the practice of Drs.
Maccarthy and Zajkowski created any risk that the Board members would be biased
against Dr. Kippax. Both Board members explained that they referred patients to
Dr. MacCarth/s practice, but there was no formal arrangement, it was not exclusive
and it involved no compensation of any kind. They also affirmed that the fact that
they made referrals to Dr. MacCarthy's practice would not affect their ability to
fairly and impartially evaluate the evidence and his testimony. Those Board
members enjoy a presumption of honesty and integrity when they serve as
adjudicators. Withrow v. Larkin, 421 U.S. at 47. See also Beal v. Town ofStockton
Springs, 2017 ME 6, ~ 19, 153 A.3d 768. The fact that they made referrals to Dr.
MacCarthy's practice, as part of their treatment of their own patients, does not
overcome that presumption.
The question of potential bias because Dr. Maccarthy was a practice partner
with Dr. Zajkowski, requires an examination of Justice Jabar's decision in Moore.
In that case, a patient sought a second opinion from an oral surgeon who was, at the
time, a member of the Dental Board. He recommended that the patient file a
complaint against her first dentist, Dr. Moore, and the patient did so. In her
complaint, the patient detailed her discussions with the board member, "informing
thereby the entire Board of his recommendation." Decision at 2. The board member
was then called as an expert witness at the hearing by the AAG presenting the case
to the Dental Board sitting as an adjudicatory body.
Page 18 of 25
Justice Jabar recognized that "[a] combination of investigative and
adjudicatory functions in administrative proceedings generally does not violate due
process absent some further showing of bias or risk of bias." Decision at 3 citing
Zegel, 2004 ME 31,, 16, n. 3 and Withrow v. Larkin. Nevertheless, the court pointed
to dictum in Gashgai for the proposition that "the combination of investigator,
prosecutor and sitting member of the adjudicatory panel, even if ostensibly a
nonparticipating member, creates an intolerably high risk of unfairness." Id.
(emphasis in the original). The court concluded that, even though the board member
... was not himself the investigator or prosecutor, his role as a sitting
board member combined with his pre-complaint treatment of [the
patient], his role in advising [the patient] to file a complaint, his
expressed opinions of the efficacy of the complaint as seen by the
Board, and his designation as an expert witness in front of the Board on
which he sat, combine to create an intolerable risk of bias or unfairness.
2008 Me. Super. LEXIS 152, *6.
In Zegel v. Bd. ofSoc. Worker Licensure, 2004 ME 37, 843 A.2d 18, the board
presented one of its own members as an expert witness at the adjudicatory hearing.
The board member had been involved in the case at an earlier stage when it was
being investigated, and did not sit on the board at the hearing. Although the Law
Cout1 observed that "[a]n administrative process may be infinn if it creates an
intolerable risk of bias and unfair advantage," it found that any error was harmless
because the experts for each side testified consistently. 2004 ME 31, , 16 citing
Gashgai v. Bd. ofRegistration in Med., 390 A.2d 1080, 1082, n.1 (Me. 1978).
In this case, Dr. Zajkowski did not treat the complaining patient, as the Board
member did in Moore. He did not encourage her to lodge a complaint with the
Dental Board, as the Board member in Moore did. He did not testify before the
Board as an expert witness, as the Board member did in Moore 2 . Rather, Dr.
2
Ironically, Dr. Zajkowski testified in the Moore case as an expert witness for the licensee. 2008 Me. Super. LEXIS
I52, *7, n. 3.
Page 19 of 25
Zajkowski acted as the complaint officer on Patient A's complaint and recused
himself from participation as a Board member on the case. His practice partner, Dr.
MacCarthy, became the expert witness. Dr. Kippax claims that these facts are
essentially identical to Moore because "it is unavoidable that the Board likely
imputed their understanding of Dr. Zajkowski' s credibility and competence to his
business partner." Pet's Memo at 18.
The argument that Dr. MacCarthy's role as an expert witness created an
"intolerably high" risk of unfairness assumes that the Board would inevitably and
automatically treat Dr. MacCmihy as ifhe were Dr. Zajkowski. But that assumption
is speculative at best. An examination of the Board's questioning of both Dr.
MacCarthy and Dr. Lieblich, as well as the Board's actual deliberations, reveals that
it did not dismiss Dr. Lieblich's testimony, nor did it unquestioningly accept Dr.
MacCmihy's. Rather, the Board focused on the critical issue before it, namely,
whether Dr. Kippax's aggressive removal of Patient A's mucocele with enough
surrounding tissue to cause an obvious facial deformity, amounted to a violation of
the duty of care he owed to his patient.
On this record, the court is not persuaded that Dr. MacCarthy's testimony as
an expe1i witness created an intolerable risk of prejudice and unfairness to Dr.
Kippax.
C. Prior Board actions involving Dr. Kippax
Dr. Kippax maintains that prior actions between him and the Board (in which
he was "exonerated") essentially created a context of bias against him. He has
referred the court to two matters involving him in KEN-AP-17-11 and KEN-AP-18
19, and has asked the court to take judicial notice of those proceedings as showing
the "substantial context to the biasing effect of the Board's and its Executive
Director's, conduct in those prior proceedings as manifest in the current case." Pet's
Page 20 of25
Memo at 20, n. 2. The court has, in fact, looked at those files and did not find
anything in them that was relevant or pertinent to the issues in this case.
Additionally, Dr. Kippax has argued that one Board member improperly
considered prior Board matters involving him. Pet's Memo at 20. The comi has
reviewed the portions of the Board deliberations quoted by Dr. Kippax and finds that
the Board member did nothing improper. The transcript at AR at 444 -Tat 512-13
did not refer at all to any prior actions involving Dr. Kippax. All the other quoted
language occurred after the Board had found violations and were considering the
appropriate sanctions.
3. Did the Board utilize the wrong standard of proof?
Dr. Kippax contends that the Board committed enor when it employed the
preponderance of the evidence standard of proof, rather than a clear and convincing
evidence standard. As both parties have both recognized, the Law Couii has not
explicitly ruled on this question. One justice of the Superior Court has addressed
this issue and concluded that the preponderance of the evidence standard has been
the traditional standard for professional disciplinary cases. See Bd. of Licensure in
Med. V Diering, 2008 Me. Super. LEXIS 226, *8 (December 5, 2008) (Mills, J.)
citing Bd. of Overseers ofthe Bar v. Lefebvre, 1998 ME 24. ~ 14, 707 A.2d 69, 73.
Courts in other jurisdictions appear to be split on the issue, with the majority
of states using the preponderance of evidence standard in physician disciplinary
cases. See Jones v. Conn. Med. Examining Bd., 72 A.3d 1034, 1040-41 (Conn. 2013)
(collecting cases). A minority of states have adopted the clear and convincing
standard of proof. See, e.g., Nguyen v. Dep 't ofHealth, 29 P.3d 689 (Wn. 2001 ).
In considering this question, the courts have approached it from the standpoint
of what is required as a matter of due process and have analyzed it using the three
part test of Matthews v. Eldridge, 424 U.S. 319 (1976), namely, (1) the private
interest at stake, (2) the risk of erroneous deprivation and the probative value of
Page 21 of25
additional safeguards, and (3) the governmental interest. The majority view
recognizes the important private interest involved in a professional' s license to
practice, but does not place that interest in the same category as cases in which the
clear and convincing evidence standard has been required, such as civil commitment
proceedings or the termination of parental rights. See Addington v. Texas, 441 U.S.
418 (1979) and Santosky v. Kramer, 455 U.S. 745 (1982). Several of the courts that
have upheld the preponderance of the evidence standard have pointed to the United
State Supreme Court's decision in Steadman v. SEC, 450 U.S. 91 (1981) as
recognizing that the clear and convincing evidence standard is not required in a
proceeding to revoke a license to practice a profession. In re Polk, 449 A.2d 7 (N.J.
1981 ); Jones v. Conn. Med. Examining Bd., 72 A.3d at 1042.
Regarding the risk of erroneous deprivation, the majority of states have
concluded that the administrative procedures for adjudicatory hearings are adequate
to protect against an unacceptable risk of error.
Finally, regarding the governmental interest, the majority position highlights
the important state interest in protecting the public from incompetent practitioners.
The court agrees with the majority view and the decision rendered by Justice
Mills in Diering, and concludes that the Board did not err by utilizing the
preponderance of the evidence standard of proof.
4. Did the Board commjt error by re-opening its deliberations on
sanctions?
During its original deliberations regarding sanctions on October 11, 2019,
there seemed to be a consensus among the Board members that a financial
assessment against Dr. Kippax was not warranted. (AR at 454 - Tat 549 (Morse &
Ray),· Tat 550 (Davis)). When the Board re-opened its deliberations on March 13,
2020, however, it decided to assess the cost of the hearing/investigation up to a
maximum of $6,000. This appears to have been done primarily for the sake of
Page 22 of25
consistency. (AR at 517-Tat 9-10). It also appears from the record that the reason
the Board wanted to re-open its deliberations on sanctions was because most Board
members felt exhausted after the 14-hour hearing held on October 11, 2019.
Also during its original deliberations on sanctions, the Board discussed the
feasibility of having Dr. Kippax be subject to a practice monitor. This line of
discussion was abandoned when the Board members recognized the impracticality
of having another oral surgeon serve as a monitor. (AR at 456). When the Board
re-opened its deliberations on March 13, 2020, one of the Board members (Jowett)
again brought up the subject of a practice monitor and the feasibility of that idea was
also discussed by the Board.
The concern expressed by several Board members was that Dr. Kippax's
reaction, or lack thereof, to the result of his surgical treatment of Patient A, appeared
to show an absence of empathy or understanding of what his actions had caused.
Ultimately, the Board wanted the Licensee to better appreciate the seriousness and
consequences of his conduct, without closing his practice or setting him up for
failure in the future. (A at 519). This led to the Board's decision to require Dr.
Kippax to undergo a MMPHP behavioral assessment. (AR at 519).
Dr. Kippax contends that the imposition of the cost of the hearing was an
abuse of discretion, in light of his testimony as to his ability to pay. Further, he
claims that the requirement of a behavioral assessment was not supported by the
evidence.
By statute, 10 M.R.S. § 8003-D, the Board is authorized to "assess the licensed
person ... for all or part of the actual expenses incurred by the board or its agents
for investigations and enforcement duties performed." In Zegel v. Bd. ofSoc. Worker
Licensure, 2004 ME 31, ~ 19, 843 A.2d 18, the Law Court held that a board had not
exercised reasonable discretion in assessing costs against a licensed person pursuant
Page 23 of 25
to section 8003-D because it did not determine whether the licensed person had any
capacity to pay the additional costs.
Here, the Board heard testimony from Dr. Kippax about his financial
liabilities and his ability to pay, and the Board originally concluded that he
imposition of costs was not warranted, and it does not appear from the record that
the Board made any finding as to the ability to pay. Rather, it appears to the court
that it its original consideration of the issue the Board members did not believe the
imposition of a financial assessment would serve any purpose. Later, during its re
opened deliberations, the Board voted to assess costs, apparently solely on the basis
that it needed to be consistent with past practice.
The court finds that the Board did not exercise reasonable discretion when it
imposed actual costs up to $6,000 without any consideration of the License's ability
to pay. Based on this record, there was evidence presented to the Board regarding
the Licensee's ability to pay, but the Board appears not to have considered that
evidence when it assessed costs in order to be consistent with past practice. The
Respondent's suggestion that Zegel should be overturned is not within this court's
authority.
Finally, with respect to the Board's decision to require Dr. Kippax to undergo
a behavioral assessment, the comi finds that, based on the testimony of both Patient
A and the Licensee himself, there was competent evidence in the record to support
that requirement.
CONCLUSION
The entry is:
The Petition for Judicial Review is DENIED and the Decision of the Maine
Board of Dental Practice is AFFIRMED, EXCEPT that the Board's imposition of
costs up to a maximum of $6,000 is vacated and the matter is remanded to the Board
with instructions to consider and determine the Licensee's ability to pay.
Page 24 of25
The clerk is directed to enter this Order on the docket for this case by
incorporating it by reference. M.R. Civ. P. 79(a).
Date: June 9, 2021
Entered on the docket 6P / °t j 2..D~ / Justice, Superior Court
Page 25 of 25
Date Filed:4/8/20 Kennebec l_o\61, \ l)\ Docket No.AP-20-17
County F
J. Murphy recused
Action: BOC J. Stokes
Dr. Jan Kippax vs Maine Board of Dental Practice
Plaintiff's Attorney Defendant's Attorney
James Belleau, Esq. Andrew Black, AAG
Adam Lee, Esq. 6 State House Station
10 Minot Avenue Augusta, ME 04333
Auburn, ME 04240
Date of Entry
04/13/20 Petition for Review of Final Agency Action, filed (4/8/20). s/Belleau, Esq.
04/23/20 ENTRY OF APPEARANCE, filed (04/21/20) s/Black, AAG
06/25/20 RECORD, filed. s/Black, AAG
Board of Dental Practice Certification of Record of Proceedings with Exhibit.
06/29/20 Notice & Briefing Schedule Issued.
Notice to parties/Counsel.
08/05/20 Petitioner's Brief, filed. s/Belleau, Esq
09/04/20 Respondent's Brief in Opposition to Rule BOC Appeal, filed. s/Black, AAG
09/17/20 Petitioner's Reply Brief, filed. s/Belleau, Esq.
09/29/20 Letter, filed. (09/28/20) s/Black, AAG
This letter is to inform the Court of a potential conflict of which it may not be aware.
09/28/20 Letter, filed. s/Belleau, Esq
Dr Kippax has no objection to Justice Murphy hearing the case based on the issues
Raised in Attorney Black's letter.
10/13/20 NOTICE OF HEARING.
Telephonic Conference scheduled for October 15, 2020 at 10:00.
Notice of Hearing sent to counsel.
10/15/20 Hearing HELD. Murphy, J
10/15/20 ORDER, Murphy, J
Justice Murphy is recused from AP-20-17. Attorneys for Dr Kippax in AP-17-11.
Will be filing motion to lift stay in that matter and AAG's will be filing motion to
Dismiss. Motions will be opposed in the ordinary course. J Murphy will then decide
If recusal is necessary in that matter as well.
Justice Stokes assigned
Page 1 AP-20-17