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Discipline fails over use of hearsay evidence

A Pennsylvania dentist’s suspension for performing pseudo-science while engaging in his profession was based on inadmissible hearsay, the Commonwealth Court of Pennsylvania ruled July 13 (Gerald H. Smith v. State Board of Dentistry). The decision overturned discipline imposed by the state dental board.

In July 2008, the board brought a case against dentist Gerald Smith based on a report from a patient of Smith’s to a physician, Sarah Buchanan, that Smith had told the patient to stop taking thyroid medication prescribed by another doctor and replace it with another prescription medication, Armor Thyroid.

Buchanan also reported that Smith had advised the patient to use progesterone cream to counter the carcinogenic qualities of the patient’s birth control medication, and that Smith had performed kinesiology, a procedure the court deemed “a type of pseudo-science muscle test.”

Smith was accused of prescribing Armor Thyroid to another patient in 2006, based on records acquired from a Rite Aid pharmacy.

When this evidence was produced during his disciplinary hearing, Smith objected that both the testimony of Buchanan and the Rite Aid pharmacy records were hearsay and could not be used as evidence against him. Smith denied most of the actions ascribed to him, but he did admit both that he wrote a prescription for Armor Thyroid in 2004, which he believed was legitimately relevant to orthodontic work he was performing, and that he had entered into a consent agreement with the board in 2006 after admitting that he performed kinesiology on a patient.

A hearing examiner dismissed Smith’s hearsay objections and, at the conclusion of the hearing, the board issued a 90-day suspension of Smith’s license, to be followed by three years of probation, 20 hours of continuing education, and a $4,000 fine. Smith appealed.

The dentist’s discipline was reversed because the board failed to comply with the “hearsay” exceptions by properly certifying the origin of some documents, and establishing the evidential necessity of others.

In the appeal, Smith again introduced his hearsay objections, this time meeting with some success. For instance, in the case of Dr. Buchanan’s testimony relating statements from Smith’s patient, the board had admitted the evidence based on a hearsay exception which allows statements made for the purpose of medical treatment. But the court, citing older cases, ruled that because the board had failed to establish that knowledge of Smith’s identity was necessary for Buchanan to provide treatment, it was therefore not included within the hearsay exception.

Regarding the Rite Aid records, the state Bureau of Professional and Occupational Affairs had only claimed the documents met a hearsay exception because the “pharmacy records speak for themselves.”

However, “unfortunately for the Bureau,” noted Judge Mary Hannah Leavitt in the court’s written opinion, “the document does not speak for itself.” The board had failed to document the provenance of the documents and, thus, they could not be admitted under the exception to hearsay for business records, because that exception requires that the records be certified by their custodian. No one had certified the Rite Aid records, and thus, “the bureau simply failed to present a foundation for admitting the Rite Aid summary as a business record.”

In addition, although Smith had admitted recommending progesterone cream for his patient, Judge Leavitt noted that “the bureau did not offer any evidence that Smith’s recommendation was contraindicated or was a recommendation that could not be made by a dentist.”

Without that, and without the evidential foundations which would have allowed the board to introduce the hearsay evidence, the court ruled that the board had failed to prove that Smith had done anything that could incur discipline. The decision of the board was reversed.