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Discipline, fine reversed for lack of introduced evidence

A discipline order imposed by the state dental board on a dentist who had placed advertising linking dementia to missing teeth was reversed June 21 by the Supreme Court of Idaho for lack of evidence (Lon N. Peckham v. Idaho State Board of Dentistry and Kevin T. Stock).
A dentist licensed in the state since 1986, Lon Peckham came to the attention of the board for two unrelated incidents.

The first resulted from his treatment of a patient who had sought a crown for her tooth. The patient, who thought she was purchasing a silver crown, actually received a silver amalgam crown, consisting of both silver and other materials. The crown, for reasons that were difficult to determine, detached shortly thereafter, and the patient decided to file a complaint against Peckham.

The second resulted from an ad Peckham published, entitled “Shocking Research from World Authority Finds a Link Between Dementia and Missing Teeth,” and which made the titular claim. That ad drew another complaint, followed by a letter from the board demanding that Peckham pull the ad.

The actual discipline charge concerned a subsequently-published page on Peckham’s website entitled “The Truth About Dentures,” which promised “truths” the state dental board did not want patients to know and reiterated the claims of the newspaper ad, while adding further claims that missing teeth were also tied to diabetes and heart disease.

No sources were cited on the page for the claims, and Peckham wrote on the page that, “to be perfectly honest, we don’t know exactly why all these facts are true.” However, elsewhere on the site, a longer version of the claims was published with citations, including one to the Journal of the American Dental Association article, which referenced a correlation between tooth decay and dementia in a long- term study of Roman Catholic nuns, but that also failed to determine causation.

The board filed an administrative complaint against Peckham in 2009, charging that he had failed to provide his patient with a real crown and that he had engaged in deceptive advertising. After a hearing, the board ordered to Peckham to pay $43,000 in fines and legal costs.

Peckham appealed, and the case eventually rose to the Supreme Court, which issued an opinion by Justice Warren Jones. He reversed the board’s decision because it had not presented sufficient evidence to prove that Peckham had committed any professional violations.

Peckham argued that, in the board’s decision that he had misled his patient about the nature of the type of crown he would install, the board had failed to provide a standard of care. The board, for its part, claimed that a standard of care was not a requirement because the case was only an administrative action.

Siding with Peckham, Jones wrote that, even assuming that what Peckham installed in his patient’s mouth was not a crown, “there is simply no evidence that a dentist in good standing under the circumstances that Dr. Peckham encountered would have apprised his patient of the obscure semantic distinction between a ‘crown’ and an ‘amalgam buildup.'” Without a standard introduced into evidence, nothing existed to show that Peckham had failed to live up to his professional duties.

As for Peckham’s misleading advertising, despite the incredible-seeming nature of his statement, the board had failed to introduce any expert testimony to rebut his claims or to introduce Peckham’s sources into evidence. “Therefore,” Jones wrote, “there is no basis for concluding that Dr. Peckham’s unrebutted testimony was inaccurate.”