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W.A.A. v. Board of Dental Examiners

Alabama Court of Civil Appeals

June 13, 2014

Board of Dental Examiners of Alabama

Released for Publication January 20, 2015.

Appeal from Jefferson Circuit Court. (CV-13-246). Houston L. Brown, Trial Judge.

For Appellant: Davis B. Whittelsey and Jonathan K. Corley of Whittelsey, Whittelsey & Poole, P.C., Opelika.

For Appellee: Susan F. Wilhelm and Donna L. Dixon, deputy attys. gen., Board of Dental Examiners of Alabama, Hoover.

PITTMAN, Judge. Thompson, P.J., and Thomas and Moore, JJ., concur. Donaldson, J., concurs in the result, without writing.


Page 974


W.A.A. (" the practitioner" ), a dental practitioner licensed by the Board of Dental Examiners of Alabama (" the Board" ), appeals from orders entered by the Jefferson Circuit Court purporting to (a) grant in part and deny in part a motion filed in the circuit court by Addiction & Mental Health Services, Inc., a corporate entity doing business under the name " Bradford Health Services" (" Bradford" ), seeking to quash a number of subpoenas issued to certain employees of Bradford by the Board's hearing officer in an administrative disciplinary hearing involving the practitioner, and (b) granting a motion, filed in the circuit court by the Board after Bradford filed its motion, seeking to compel the practitioner to " fully answer" certain interrogatories and requests for production directed by the Board to the practitioner. Because the circuit court lacked subject-matter jurisdiction to enter the orders as to which the practitioner has sought appellate review, we dismiss the appeal ex mero motu as arising from void orders.

Much of the material procedural history was aptly summarized in a memorandum opinion prepared in June 2013 by Judge William M. Acker, Jr., of the United States District Court for the Northern District of Alabama (" the federal court" ) in considering whether the federal courts had subject-matter jurisdiction in this cause:

" In March 2012, the Board received notice from another state regulatory agency regarding the possible impairment of [the practitioner], a dental licensee. Dr. Michael Garver ('Dr. Garver'), the director of the Alabama Dental Wellness Committee ('ADWC'), the said other state regulatory agency, contacted [the practitioner] to discuss the allegations in the notice. [The practitioner] consented to a professional evaluation. Bradford is one of three board-approved treatment facilities for impaired professionals. After his initial evaluation, [the practitioner] entered and completed in-patient rehabilitative treatment at Bradford. At the onset of his evaluation, and for the duration of the treatment period, [the practitioner] authorized Bradford to release information to Dr. Garver regarding his ongoing treatment, diagnosis, and recommendations for aftercare and sobriety maintenance. This release was in effect from its execution on April 9, 2012 until March 27, 2013, when [the practitioner] revoked the authorization. Prior to this revocation, Dr. Garver, as director of the [ADWC], maintained contact with the medical professionals at

Page 975

Bradford, who provided Dr. Garver with copies of [the practitioner's] written diagnosis and treatment reports. These documents included a narrative of his medical history, an overview of his impairment, and recommendations for aftercare.
" The Board is charged with protecting the health, safety, and welfare of the public by regulating the practice of dentistry in Alabama. See Ala. Code [1975,] § 34-9-2(a)[]. The Dental Practice[] Act sets forth grounds for disciplinary action, one of which is being 'a habitual user of intoxicants or drugs rendering [a licensee] unfit for the practice of dentistry or dental hygiene.' Id. at § 34-9-18(a)(4). After [the practitioner] underwent an evaluation and inpatient treatment at Bradford, the Board, through Dr. Garver and the Board's prosecuting counsel, offered [the practitioner] the opportunity to enter into a consent order and monitoring contract with the Board wherein [the practitioner] could execute an agreement setting forth the parameters for his practice and sobriety maintenance. Similar to consent orders executed by other licensees who have undergone treatment for impairment, the terms of the consent order and accompanying contract included mandatory counseling, attendance at meetings, random urine screens, regular communication with the [ADWC], and other activities and treatment recommended by Bradford.
" [The practitioner] refused the offered consent order, whereupon the Board set the matter for hearing on April 5, 2013. On March 19, 2013, the Board issued a subpoena to Donald R. Cornelius, M.D. ('Dr. Cornelius') of Bradford. Shortly thereafter, on March 26, 2013, [the practitioner] requested the [hearing officer] to issue Bradford subpoenas seeking the testimony of nine named Bradford employees, including Dr. Cornelius, and its Custodian of Records, as well as the production of documents. The subpoenas were issued. The subpoenas directed Bradford to produce testimony and treatment records on behalf of [the practitioner] at the April 5, 2013 administrative hearing. The next day, [the ...

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