Analysis: Board rules influenced handling of Kippax case

AUGUSTA — A little more than 13 months ago, the Maine Board of Dental Practice suspended the license of Lewiston oral surgeon Jan Kippax after looking into the complaints of 18 patients who collectively filed nearly 200 allegations of misconduct against him.

After looking over the charges, the panel initially said Kippax “put the health and safety of his patients and staff in immediate jeopardy” and warned that “if he is allowed to continue to practice in his reckless and harmful way, innocent patients are destined to continue to suffer dire consequences.”

But a month later, after failing to bring Kippax to a hearing, the board handed him back his license. By summer, Kippax was practicing again at the Main Street office where he’s worked as a dentist for almost three decades.

Now, after throwing out the complaints of the five patients the board chose to pursue, the oversight board recently agreed to hand the entire case over to a district court judge, where the state’s Attorney General’s Office can try to make a case against Kippax stick.

An examination of the dental panel’s effort to deal with the case shows why it was ultimately so hard to punish an oral surgeon that the board’s members pilloried at the start of the process.

During the board’s final session on Kippax, one of its members talked about what made it so difficult to rule against the dentist despite scores of allegations against him.

Kathryn Young said when the panel suspended Kippax in February 2017, it looked at the totality of the evidence against him — “multiple patients from a multiple number of appointments saying the same thing.”

All of them, she said, accused Kippax of causing them unnecessary pain and some charged that he refused to halt procedures despite their requests.

Young said panel members had “a genuine concern” for the public when it took steps to stop Kippax from engaging in dentistry.

Taking all of the complaints together, the board saw a pattern that raised deep concerns, members said.

But when the case against Kippax finally came to a hearing in September, it no longer included 18 patients. Instead, it focused on only five them.

Beyond that, the board had to rule on each allegation by each patient in isolation from every other charge. It didn’t have any options to look at the pattern, so each specific charge had to be proven or not without considering how much many of them sounded alike.

Several lawyers who deal with administrative law said the state couldn’t rely on a possible pattern if it couldn’t prove even a single specific action that violated the rules. As one put it, adding to the volume of unproven cases doesn’t prove anything.

Young said the panel wanted to have an overall conversation about the allegations instead of having them “stuffed in these tiny little boxes” one by one. However, after being required to consider each charge in turn, the board last year ruled in Kippax’s favor on every one of the points raised in each complaint. Only once did a single member vote against clearing Kippax.

At this point in the case, Kippax has prevailed on more than 60 of the specific charges brought against him a year ago. More than 120 remain.

Young said she didn’t understand how the 18 cases that initially led the board to take action were pared down to only five by the time the panel formally considered the case in an adjudicatory setting.

The case’s hearing officer, Mark Terison, had an answer.

Terison said he asked the state lawyers working on the case to narrow the number for efficiency’s sake.

He said there is such “a voluminous amount of material” that it struck him as unduly time-consuming to consider each of the 18 patients’ charges in the same hearing, something that might have taken 20 days or more to handle.

Terison said he had the sense that other matters the board is required to oversee were not getting the full attention the panel wanted to give them because the Kippax case was swallowing so much of its time.

Kippax’s lawyer, James Belleau of Auburn, said the dentist wanted all of the cases heard at once, but his opposition to paring down the number of complaints wasn’t accepted.

“We’re not running from the complaints,” he said. “They exist.”

Jonathan Bolton, an assistant attorney general, said his office picked the five cases to pursue in a bid to make the hearing more manageable.

Belleau said part of his concern with reducing the number at the hearing was that if Kippax managed to win the hearing, pending charges would still remain.

“I knew this was going to happen,” he said.

The board agreed to hand the case off to a district court after Terison told board members the Kippax proceeding was “highly unusual” and the most complex he’s ever seen a professional oversight board deal with.

By sending the case to a judge, the dental panel’s role in the proceeding is largely over.

The Attorney General’s Office will figure out what, if anything, to take to court from among the remaining complaints by the 13 patients whose cases haven’t been heard.

scollins@sunjournal.com

SUBHEAD:

Forced to look at each charge in isolation, dental board couldn’t look at patterns in Kippax complaints.

Maine Board of Dental Practice member Kathryn Young (Steve Collins/Sun Journal)

Lewiston oral surgeon Jan Kippax (File photo)

Maine Board of Dental Practice during a hearing last year about complaints by patients about Dr. Jan Kippax, a Lewiston oral surgeon. (Sun Journal file photo)