FILED 


SEPTEMBER 4, 2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


DIANA S. SHELBY, ) 

) No. 31494-4-111 

Appellant, ) 

) 

v. ) 

) 

WASHINGTON STATE ) UNPUBLISHED OPINION 

DEPARTMENT OF HEALTH, ) 

) 

Respondent. ) 

SIDDOWAY, C.J. - Diana Shelby, a licensed denturist, appeals the outcome of an 

administrative proceeding against her by the Washington State Department ofHealth, 

which was affIrmed by the Benton County Superior Court. She assigns error to 

16 fIndings of fact and 4 conclusions of law, and contends that the evidence was 

insuffIcient to support the tier of sanctions imposed by the health law judge. We fInd no 

error and affIrm. 

FACTS ANDPROCEDlmAL BACKGROUND 

Diana Shelby became a licensed denturist under chapter 18.30 RCW in 1999. 

In February 2008, one ofMs. Shelby's former patients fIled the following 

complaint with the Washington State Department ofHealth: 

During the 6 to 7 months that I had Ms. Shelby's ''temporary'' 

denture I had fIrst 1 tooth come out after 3Yz months ofwear. After about a 
No. 31494-4-III 

Shelby v. Wash. State Dep 't ofHealth 

week after the 1st tooth came out a 2nd tooth came out. Ms. Shelby fixed 

both times. Because the 2 teeth came out so easily I went to another 

denturist. While at First Choice Dentures a crack in the denture was 

discovered. I then took the denture back to Ms. Shelby & she fixed it. 

While I was waiting until the first of the year so my Dad would have 

enough money to get my permanent denture[,] I had 3 more teeth come out 

ofthe denture & a large crack appeared. So I decided to get my new 

denture from 1st Choice Denture & I asked for my money back from Ms. 

Shelby. She refused. 

I am sending you pictures of the infearior [sic] material & or job that 

she did. I'm also sending you the letter that she wrote me in return, instead 

ofsending me a refund. She basicly [ sic] accused me of being stupid & 

[Joseph] Vize of stealing clients. For most of the time that I had Ms. 

Shelby'S denture I was unable to use it due to teeth coming out & or cracks 

recurring while eating. 

Clerk's Papers (CP) at 174-75. 

Following an investigation, the department filed a statement of charges of 

unprofessional conduct against Ms. Shelby, alleging that teeth had not been adequately 

bound to the patient's denture base, causing them to break offrepeatedly, and that the 

porous nature ofthe denture's acrylic caused multiple fractures during the treatment 

period. Ms. Shelby requested a hearing to contest the charges. 

Before the hearing, the department amended its statement of charges to identify 

the following five respects in which it alleged that Ms. Shelby'S treatment of the patient 

fell below the standard of care of a Washington denturist: 

[1] Respondent did not adequately bind the denture's teeth to the 

denture base, causing them to repeatedly break off; 

[2] Respondent poorly constructed the denture, causing 


malocclusion; 


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No. 31494-4-111 

Shelby v. Wash. State Dep't o/Health 

[3] Respondent did not adequately address the porous nature of 

the denture acrylic which: 

[c ]aused multiple fractures during the treatment period [and] 

[m]ade the denture susceptible to bacteria, subjecting the 

patient to the risk of illness; 

[4] Respondent left soft temporary liners in the patient's mouth 

for too long, which made them susceptible to bacteria, subjecting the 

patient to the risk of illness; [and] 

[5] Respondent failed to offer and/or provide services of a nature 

or in a manner that resolved the above problems or met the standard of care. 

CP at 372. 

A hearing was held over three days, at which the department called four witnesses: 

Ms. Shelby; the patient; Val Cherron, a denturist retained by the department as an expert; 

and Joseph Vize, the patient's treating denturist following her treatment by Ms. Shelby. 

Ms. Shelby testified on her own behalf, questioned the patient further, and called as her 

own expert witness, Dr. Michael Shannon, a dentist with training in denture construction. 

Having heard the evidence and argument, the health law judge concluded that the 

department had proved that Ms. Shelby committed unprofessional conduct based on 

findings (among others) that the cause of teeth falling out of the denture was its improper 

construction due to an improper bond between the denture acrylic and the denture teeth; 

that the cause of fractures in the denture was also its improper construction, due to the 

porous nature ofthe denture acrylic; that "[i]t was a violation of the denturist standard of 

care to instruct [the patient] to continue to use a temporary denture when the denture was 

a poor fit, it fractured and lost teeth, and the pain and discomfort associated with the 

3 

No. 3 I 494-4-III 

Shelby v. Wash. State Dep't ofHealth 

denture could not be alleviated by the denturist or by the [patient] using over-the-counter 

products"; and that 

[t]he problems with the denture as constructed could not be remedied by 

repairing the denture. [Ms. Shelby] should not have offered to reline the 

denture since the reline would not have corrected the problems with 

improper construction. Under the denturist standard of care, [Ms. Shelby] 

should have constructed a new denture for [the patient] at no cost to the 

patient. This should have occurred without regard to the life ofthe original 

temporary denture. 

CP at 395. The health law judge imposed a two-year suspension of Ms. Shelby's 

denturist license, a $5,000 fine, and required Ms. Shelby to refund all fees she had 

charged the patient for treatment. 

Ms. Shelby's motion for reconsideration was denied, after which she petitioned for 

judicial review. After the Benton County Superior Court upheld the department's final 

order, Ms. Shelby filed this appeal. 

ANALYSIS 

1. Standard ofReview 

Well settled law governs our review ofthe decision of an administrative agency. 

We review the decision from the same standpoint as the trial court, and apply the 

exclusive bases for relief from agency orders in adjudicative proceedings set forth in the 

Administrative Procedure Act (APA), chapter 34.05 RCW, directly to the record before 

the agency. Lewis County v. W Wash. Growth Mgmt. Hearings Bd., 157 Wn.2d 488, 

497, 139 P.3d 1096 (2006). We will grant relief from the health law judge's order only if 

4 

No. 31494-4-III 

Shelby v. Wash. State Dep 't ofHealth 

we find one ofthe defects identified in RCW 34.05.570(3) as warranting relief. Lewis 

County, 157 Wn.2d at 498. The party asserting the invalidity of agency action has the 

burden of demonstrating error. RCW 34.05.570(1)(a). 

Ms. Shelby challenges the health law judge's order as unsupported by substantial 

evidence as required by RCW 34.05.570(3)(e), which provides for relief where "[t]he 

order is not supported by evidence that is substantial when viewed in light of the whole 

record before the court." Where an agency decision is challenged on that basis, we must 

determine "whether there is 'a sufficient quantity of evidence to persuade a fair-minded 

person of the truth or correctness ofthe order.'" Kittitas County v. E. Wash. Growth 

Mgmt. Hearings Bd., 172 Wn.2d 144, 155,256 P.3d 1193 (2011) (internal quotation 

marks omitted) (quoting Thurston County v. W Wash. Growth Mgmt. Hearings Bd., 164 

Wn.2d 329,341, 190 P.3d 38 (2008». 

The substantial evidence standard is highly deferential to the agency fact finder, 

and requires us to view the evidence in the light most favorable to the prevailing party in 

the highest administrative fact finding forum below. Arco Prods. Co. v. Utils. & Transp. 

Comm 'n, 125 Wn.2d 805,812,888 P.2d 728 (1995). Deference is given to the trier of 

fact regarding witness credibility or conflicting testimony and we do not weigh the 

evidence or substitute our judgment. Phoenix Dev., Inc. v. City ofWoodinville, 171 

Wn.2d 820, 831-32, 256 P .2d 1150 (2011). We need not be persuaded ofthe truth or 

correctness of an agency's findings, only that any fair-minded person could have ruled as 

5 

No. 3 I 494-4-II1 

Shelby v. Wash. State Dep't ofHealth 

the agency did in light ofthe evidence. Callecod v. Wash. State Patrol, 84 Wn. App. 

663,676 n.9, 929 P.2d 510 (1997). 

The health law judge treated the department's proceeding as implicating a 

significant property interest on Ms. Shelby's part in her denturist license, and for that 

reason held the department to a burden of proving its charges by clear, cogent, and 

convincing evidence. Bang D. Nguyen v. Dep't ofHealth, Med. Quality Assurance 

Comm 'n, 144 Wn.2d 516, 29 P.3d 689 (2001). The department did not object to the 

heightened standard. I When finding unprofessional conduct, an administrative agency 

may use its experience and specialized knowledge to evaluate and draw inferences from 

the evidence. RCW 34.05.452(5); In re Disciplinary Proceeding Against Brown, 94 Wn. 

App. 7,13-14,972 P.2d 101 (1998). 

Ms. Shelby argues that the clear and convincing standard applied by the health law 

judge implicates a corresponding duty on our part to make an "independent determination 

I For the first time on appeal, the department argues that Hardee v. Department of 

Social & Health Services, 172 Wn.2d 1,9,256 P.3d 339 (2011) has since made clear that 

the clear and convincing standard applies to only those license revocation proceedings in 

which the value ofthe property interest at stake requires a heightened standard ofproof 

as a matter of due process, that not all occupations require an identical personal 

investment, and that not all state-granted credentials constitute a professional license. 

The department now submits that Ms. Shelby's investment of "'time, expense, and 

education'" in her denturist license is insufficient to require the heightened burden of 

proof and that we may apply a preponderance of evidence standard in reviewing the 

record. Br. ofResp't at 8 (quoting Hardee, 172 Wn.2d at 16). We will not entertain a 

challenge for the first time on appeal to an assertedly too-high burden of proof applied 

without objection below. RAP 2.5(a). 

6 

No. 3 I 494-4-II1 

Shelby v. Wash. State Dep't ofHealth 

ofwhether the trial judge was correct in determining that the evidence was sufficient to 

be clear and convincing," relying on In re Estate ofReilly, 78 Wn.2d 623, 479 P.2d 1 

(1970), a case involving a will contest. Br. of Appellant at 29. Washington courts have 

declined to accept the invitation to "fashion a new and higher standard of review for 

appeals in medical disciplinary proceedings." Ancier v. Dep 't ofHealth, Med. Quality 

Assurance Comm 'n, 140 Wn. App. 564, 572-73 n.12, 166 P.3d 829 (2007). The standard 

of appellate review has been established by the legislature. "Appellate courts do not 

reweigh the evidence but are limited to assessing whether that evidence was adequate to 

satisfY the applicable burden ofproof below"-in this case, clear and convincing 

evidence. Id. 

Ms. Shelby assigns error to a number of findings of fact and conclusions of law, 

and contends that the evidence was insufficient to support the tier of sanctions imposed 

by the health law judge. We first address her challenges to specific findings and 

conclusions and then tum to her challenge to the sanctions. 

II. Challenged Findings and Conclusions 

The health law judge organized his findings of fact into sections; Ms. Shelby 

assigns error to findings included in his introduction, in the "denturist standard of care" 

section, and in the section addressing Ms. Shelby's treatment of the complaining patient. 

We address the challenged findings by section. 

7 

No. 3 1 494-4-III 

Shelby v. Wash. State Dep 't ofHealth 

A. Introductory Finding 

Finding 1.2. Ms. Shelby assigns error to the statement in finding 1.2 that "[t]he 

Respondent's treatment of Patient A did not meet the denturist standard of care." CP at 

391. This overarching finding in the introduction is supported by the health law judge's 

more specific findings as to the relevant standard of care and as to Ms. Shelby's acts and 

omissions. The specific findings were addressed in the next several sections of the health 

law judge's findings, which we examine below. 

B. "Denturist Standard ofCare" Findings 

To determine whether Ms. Shelby's treatment complied with the standard of care 

of a denturist treating patients in Washington, the health law judge first had to determine 

the applicable standard of care, which he did in his findings 1.5 through 1.13. 

Findings 1.5, 1.6, and 1.13. In challenging findings 1.5, 1.6, and 1.13, Ms. Shelby 

argues that if taken literally, each is "an insignificant general statement." Br. of 

Appellant at 38-40. They can be taken literally. None ofthese findings purports to 

address whether Ms. Shelby met the standard of care. Ms. Shelby does not argue that 

findings 1.5, 1.6, or 1.13 incorrectly state the standard of care of a Washington denturist. 

Finding 1.11. Ms. Shelby challenges finding 1.11' s statement that "[0]ffering a 

patient the option ofrelining a problem temporary denture into a permanent denture when 

the problems associated with the denture cannot be remedied[ ] does not meet the 

8 

No. 3 I 494-4-III 

Shelby v. Wash. State Dep't ofHealth 

denturist standard of care." CP at 392. She argues that "[n]o expert testified that this 

violated the standard of care." Br. ofAppellant at 39. 

Ms. Shelby is mistaken; the testimony oftwo experts supported this important 

finding. Mr. Cherron testified: 

Q. 	 And in November, did she give the patient two options? 

A. 	 Again, gave her two options. To either reline this denture or make a 

new one. 

Q. 	 Okay. And that would be the hard reline? 

A. 	 The laboratory-formed hard reline that would not have the ability to 

have bacteria sneak underneath the two materials. 

Q. 	 Or a new denture? 

A. 	 Or a new denture. 

Q. 	 Okay. Do you believe that both options would be appropriate in this 

case? 

A. 	 No. 

Q. 	 And why is that? 

A. 	 A reline ofthis denture would not correct the problems that it has at 

this point. A reline would not appropriately bind the teeth to the 

new denture base. A reline only replaces the tissue side ofthe 

material or where the temporary material had been placed. It does 

not have anything-a reline does not have anything to do with where 

the teeth are formed, the acrylic itself. That procedure is called a 

rebase. 

Q. 	 Would often a reline at that point be in violation ofthe standard of 

care? 

A. 	 I believe it falls below the standard of care. 

Q. 	 And what was the appropriate option at that point? 

A. 	 To only make a new denture. 

CP at 683-84. 

Mr. Vize testified: 

Q. 	 I believe you testified that the reline ofthis denture in December 

would have been unthinkable? 

9 

No. 31494-4-111 

Shelby v. Wash. State Dep't ofHealth 

A. 	 I'm shocked that that was even offered to the patient given the 

severe problems with this denture. The fact that she would-I mean, 

you know, even if she was doing it for free, it wouldn't solve the 

problem. But the fact that she's willing to take another two hundred 

and fifty dollars from this patient, it wouldn't have solved any 

problem. Again, it's like 1 said, the analogy that 1 used about putting 

tires on a car going to a junk yard. 1mean, why bother. 1mean it's 

unusable. A reline, it would make it fit better, but that's not going to 

solve the bite problem. It's not going to solve the appearance issues. 

It's not going to solve the occlusion issues. It's not going to solve 

the porosity issues. It's not going to solve the teeth popping out. 

So, 1mean, 1don't know what good that really would have done her. 

I'm really surprised that that was even suggested. 

CP at 753. 

The testimony of the two experts is substantial evidence supporting finding 1.11. 

C. Findings Specific To "Patient A JJ 

Findings 1.15 and 1.16. The disciplinary proceeding was based on Ms. Shelby's 

treatment of the single complaining patient, referred to in the findings and conclusions as 

"Patient A." Ms. Shelby challenges the statement in finding 1.15 that "[a]fter Patient A's 

swelling subsided, Patient A continued to suffer pain and discomfort." CP at 394. She 

challenges the statement in finding 1.16 that "[t]he pain and discomfort associated with 

the misalignment made it difficult to wear the denture for short periods of time, and made 

it difficult to eat." Id. She argues that the patient "had no pain and discomfort after the 

initial swelling had subsided, until after the temporary denture wore out in November, 

2007" and "there is no evidence that after the initial normal period of adjustment, Patient 

A had any difficulty wearing the denture for short periods of time or [that the denture] 

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No. 31494-4-II1 

Shelby v. Wash. State Dep't ofHealth 

made it difficult to eat, until after the denture had worn out approximately on October 30, 

2007." Br. of Appellant at 40-41. 

Two witnesses testified to the patient's pain and discomfort: the patient herself, 

and Mr. Vize, based on statements the patient made to him. Mr. Vize's testimony about 

the patient's statements during treatment was admissible. The rules of evidence serve as 

guidelines in administrative hearings but the AP A gives presiding officers latitude to 

admit evidence not admissible under those rules if, in the judgment ofthe presiding 

officer "it is the kind of evidence on which reasonably prudent persons are accustomed to 

rely in the conduct of their affairs."2 Even the evidence rules recognize statements that 

are made for the purpose of medical diagnosis or treatment as an exception to the hearsay 

rule. ER 803(a)(4). 

Mr. Vize testified: 

A. 	 She was having difficulties with a denture that had been made by 

another practitioner and she was unable to use it and she was seeking 

relief. 

2 RCW 34.05.452 provides, in relevant part: 

(1) Evidence, including hearsay evidence, is admissible ifin the judgment 

ofthe presiding officer it is the kind of evidence on which reasonably 

prudent persons are accustomed to rely in the conduct of their affairs. The 

presiding officer shall exclude evidence that is excludable on constitutional 

or statutory grounds or on the basis of evidentiary privilege recognized in 

the courts of this state. The presiding officer may exclude evidence that is 

irrelevant, immaterial, or unduly repetitious. 

(2) Ifnot inconsistent with subsection (1) ofthis section, the 


presiding officer shall refer to the Washington Rules of Evidence as 


guidelines for evidentiary rulings. 


11 

No. 31494-4-111 

Shelby v. Wash. State Dep't ofHealth 

Q. 	 And what were her complaints made to you? 

A. 	 The general essence of it was-is that she had a denture that was 

unusable and she was unable to function with it. And you could 

refer back, or if you'd prefer that 1 do, back to this letter in the notes. 

She just basically stated that the denture was unusable, was the 

essence of it. 

Q. 	 And do you recall what made it unusable for her? 

A. 	 As far as what the patient stated or what ... 

Q. 	 Yes. 

A. 	 The patient stated that she was having problems with poor fit, 

repeated breakage. She stated that she found it very difficult to eat 

and function with the appliance. She said speaking was very 

difficult relating to the poor fit. And far and by large, she just didn't 

wear it. 

CP at 733-34 (alteration in original). 

The patient testified: 

And-but 1still continued to have problems with fit and the-the 

soreness in my mouth. And 1 kept having sore spots and she would go in 

and try to fix the denture. And at first 1 used like Poligrip and stuff like 

that, and then eventually she told me that to get some of that Denturite, and 

put on-on the denture to help cushion and help the fit. And 1did that, and 

she also, the first time before she-I did it, she put the Denturite in the 

denture at first. And after maybe about two, three months that we've been 

continually having problems with the fit of the denture. And with the 

rubbing on my gums and-and stuff. 

CP at 601. 

Elsewhere, she testified: 

Q. Okay. During this-during this time that you had the denture 

for approximately 12 months, how did it affect your ability to-to eat food? 

A. Very poorly. 1 was unable to eat solid foods. 1 was-had to 

eat very soft foods and when 1 could have my denture in, and there was a 

lot oftimes that 1 couldn't even have my dentures in my mouth. 

Q. 	 And why was that? 

12 
No. 3 I 494-4-II1 

Shelby v. Wash. State Dep't ofHealth 

A. Because of it hurting. 

Q. SO would you take it out at night or during the day? 

A. I took it out at night, yes. 

Q. Would you have it out during the day? 

A. Pardon? 

Q. Would you have it out during the day? 

A. Sometimes. 

Q. Okay. And what kind of-describe any feelings you have 

while trying to chew food. 

A. Pardon? 

Q. Describe what it was like to chew food. 

A. Difficult. Very difficult. They would hurt or they would 

move. Or they just-Just didn't workQ. Okay. 

A. -properly. 

Q. Did it alter your diet? 

A. Yes. 

Q. And what kind of diet did you have [to] go on? 

A. Well, I-like I said, I was eating soft foods, I couldn't eat 

meat of any kind. I'd even have trouble eating hamburger. 

Q. Okay. 

A. And I was basically eating oatmeal and scrambled eggs and 

things like that that you didn't have to chew. 

CP at 607-09. 

Ms. Shelby focuses on the patient's statements made to her during the course of 

treatment, which the health law judge found were inconsistent, with the patient telling 

Ms. Shelby at times that she was satisfied with her treatment. See finding 1.26. 

Nonetheless, the testimony of other competent witnesses supports the health law judge's 

finding that the patient suffered pain and discomfort even after the initial swelling had 

subsided, making it difficult for her to wear the denture and difficult to eat. 

13 

No. 31494-4-111 

Shelby v. Wash. State Dep't o/Health 

Ms. Shelby also challenges the statement in finding 1.16 that "[t ]he denture, as 

constructed, did not properly align with Patient A's teeth." CP at 394. She concedes that 

Mr. Vize testified that the denture, as constructed, did not comply with the standard of 

care, but she discounts his testimony as "invalid." Br. of Appellant at 40. This is 

evidently because Mr. Vize did not review her testimony or Ms. Shelby's treatment 

records but relied instead on what the patient told him about her care. While Mr. Vize 

was certainly subject to cross-examination, the fact that he relied upon what the patient 

told him does not make his testimony invalid. 

She also argues that Mr. Vize's opinion alone could not meet the clear and 

convincing standard because "[a]n expert with superior education and training (Dr. 

Shannon), as well as two other denturists (Cherron and Shelby), contradicted this finding 

of fact." Id. at 41. It was for the health law judge to determine whose testimony was 

credible and persuasive, and he had no obligation to consider how many witnesses held a 

. . . gIven OpInIOn. 

Mr. Vize testified that malocclusion was present when he saw the patient and 

would have been present from the time the denture was installed. He testified that while 

the degree of malocclusion was "not the worst that I've seen by any means," he "would 

term it severe." CP at 736. In later summarizing respects in which he believed the 

denture fell below the standard of care, he included his opinions that "the occlusion is 

incorrect" and "[t]he bite relationship is incorrect." CP at 748. Substantial evidence 

14 

No. 31494-4-III 

Shelby v. Wash. State Dep't ofHealth 

supports the finding that the denture as constructed did not properly align with the 

patient's teeth. 

Finding 1.17. Ms. Shelby challenges the finding that "[t]he over-the-counter 

products did not alleviate the pain and discomfort associated with the improperly 

constructed denture." CP at 394. Ms. Shelby argues that the evidence showed that the 

patient did not follow Ms. Shelby's instruction to use Denturite. 

It was Ms. Shelby's position that the patient did not follow her instructions about 

using Denturite, but the patient never testified to that effect; the patient testified "I did 

everything that she would tell me to do," and elsewhere, "[E]ventually she told me that to 

get some of that Denturite, and put on-on the denture to help cushion and help the fit. 

And I did that." CP at 601. Regardless of whether the patient followed Ms. Shelby's 

directions or not, the evidence established that the patient's use of over-the-counter 

products did not alleviate her pain and discomfort, as demonstrated in addressing findings 

1.15 and 1.16, above. And while not directly related to this finding or Ms. Shelby's 

challenge to it, both Mr. Cherron and Mr. Vize criticized Ms. Shelby's recommendation 

that the patient use Denturite after Ms. Shelby installed a Lynalliner on the denture, 

because of the risk of bacterial accumulation and infection. See CP at 671-72, 821. 

Substantial evidence supports the finding. 

15 

No. 31494-4-111 

Shelby v. Wash. State Dep 't ofHealth 

Finding 1.lB. Ms. Shelby challenges the finding that "[t ]he cause ofthe teeth 

falling out was the improper construction ofthe denture from the outset due to an 

improper bond between the denture acrylic and the denture teeth." CP at 394. 

Mr. Cherron testified that "[i]t's uncommon for teeth to pop out when they're 

manufactured properly" and, when asked about whether the patient's teeth were 

manufactured properly, testified that it was "very predictable" that the three teeth that the 

patient was required to have repaired would pop offthe denture base. CP at 676-77. 

Explaining to the health law judge while handling one ofthe teeth, he testified that "[t]his 

tooth has not been prepared to the point where it was going to properly bind" and pointed 

out a couple ofproblems with its preparation. CP at 677. Later, he testified: 

I've delivered ten thousand dentures in my over ten years of experience. 

I've delivered fifteen hundred to two thousand immediate dentures just like 

this. Of all those cases, 1 could quote you two or three that the teeth pop 

out. And it's a mistake I've made. And when that happens, I remake the 

denture or at a minimum I replace all ofthe pink part with a product called 

a rebase. And what that does is it stabilizes the whole denture base. Refit it 

to the patient's mouth, so it doesn't have discomfort or rocking and it 

reinserts the teeth into the denture base, so they don't pop out any longer. 

CP at 706. 

When Mr. Vize was asked his opinion why the patient's teeth were popping out, 

he testified: 

A. 	 There can be a variety of causes. Technically speaking, the most 

common cause of an acrylic tooth popping out-I want to make 

clear the designation-these are acrylic teeth in this denture. Acrylic 

teeth should be very, very solidly bonded to the denture base. The 

16 

No. 3 I 494-4-III 

Shelby v. Wash. State Dep 't ofHealth 

teeth are made of a material called polymethylmethacrylate, PMMA, 

for short. The pink denture base is made from a material called 

PMMA, polymethylmethacrylate. A molymer (phonetic) is used. 

It's a solvent. And what happens when a denture is processed is the 

solvent, the molymer, chemically bonds the tooth to the base. An 

analogy would be pipe dope on a PCV pipe. And when a 

practitioner processes a denture, the most common cause-to answer 

your question, the most common cause of the tooth popping out is 

the separator film. It's not cleaned off ofthe underneath side of the 

tooth by scrubbing it. That can happen. An oversight can happen. 

There are other things that are clearly present with the denture. The 

other most common cause is improper curing of the denture, trying 

to cure the denture too fast. 

Q. 	 And what do you mean by curing? 

A. 	 Dentures-when the denture base material, the pink stuff that you 

see on the denture, when I refer to it as the base, that's what I'm 

referring to, the pink stuff, that has to go through a process of curing. 

Most commonly a hot-water bath. And the most common procedure 

is to cure it at a lower temperature of 163 degrees for nine hours and 

boiling for the last thirty minutes. So, a total of nine and a half 

hours. But when you cure a denture too quickly, if you're in a rush, 

sometimes it's dropped directly into boiling water and it flash cures 

the material, which leads to a poor bond between the tooth and the 

base. And porosity in the denture base itself, which this also 

displays. 

CP at 740-41. He testified that the denture manufactured for the patient by Ms. Shelby 

was "not the worst that I've seen, but I would say it's significantly porous," later 

testifying that "[a] porours denture base like this shouldn't be allowed to leave the office" 

and that it "[a]bsolutely" could be a cause ofteeth popping out. CP at 743. 

Finding 1.20. Ms. Shelby challenges the finding that "[t]he denture was fractured 

due to the porous nature of the denture acrylic. This was caused by improper 

construction of the denture from the outset." CP at 395. She argues only that "[t]he 

17 

No. 3 1 494-4·III 

Shelby v. Wash. State Dep't ofHealth 

reasons why this finding of fact is erroneous were discussed previously in this brief." Br. 

of Appellant at 42. 

A word search reveals that Finding 1.20 is not discussed elsewhere in the brief. 

We will not consider assignments of error that are unsupported by legal argument and 

relevant authority. RAP 1O.3(a)(6); Howell v. Spokane & Inland Empire Blood Bank, 

117 Wn.2d 619,624,818 P.2d 1056 (1991). We also note, however, that Mr. Vize 

testified that the denture was "significantly porous" and that although fractures are 

common, the porosity ofthis denture in particular would weaken it, meaning that less 

force would be needed in order for it to break. CP at 743. 

Finding 1.21. Ms. Shelby challenges the finding that "[i]t was a violation of the 

denturist standard of care to instruct Patient A to continue to use a temporary denture 

when the denture was a poor fit, it fractured and lost teeth, and the pain and discomfort 

associated with the denture could not be alleviated by the denturist or by the Patient using 

over-the·counter products." CP at 395. She argues that there was no evidence she 

instructed the patient to wear the denture after October 30 and no testimony that the 

standard of care required her to stop wearing the denture before October 30. 

The patient acknowledged that at an October 30 appointment, Ms. Shelby told her 

that the temporary denture needed to be relined or replaced. But there was ample 

evidence that the problems predated October 30 and that Ms. Shelby continued to 

perform repairs with a view to the patient's continuing to use the temporary denture, 

18 

No. 3 1 494-4-III 

Shelby v. Wash. State Dep't ofHealth 

contrary to the denturist standard of care. See the discussion of findings 1.11, 1.15, and 

1.16. 

Finding 1.22. Ms. Shelby challenges the finding that "[t]he problems with the 

denture as constructed could not be remedied by repairing the denture. The Respondent 

should not have offered to reline the denture since the reline would not have corrected the 

problems with improper construction. Under the denturist standard of care, the Respondent 

should have constructed a new denture for Patient A at no cost to the patient. This should 

have occurred without regard to the life of the original temporary denture." CP at 395. 

She argues that "[ t ]he reason why the first sentence is erroneous has been 

discussed previously in this brief." Br. ofAppellant at 42. She provides no further 

explanation or direction. Here again, we will not consider assignments of error that are 

unsupported by legal argument and relevant authority. We note, however, that the 

evidence previously discussed in connection with findings 1.11, 1.15, and 1.16 supports 

the first sentence of the finding. 

Ms. Shelby argues that the remainder of the finding is erroneous "because no 

expert testified that [Ms.] Shelby was required to give Patient A a new denture for free." 

Id. But finding 1.7, which Ms. Shelby did not challenge and which is therefore a verity 

on appeal,3 states, "If a denture is improperly constructed from the outset, it is the 

3 Unchallenged factual findings are verities on appeal. Tapper v. Emp 't Sec. 

DepJt, 122 Wn.2d 397,407,858 P.2d 494 (1993). 

19 

No. 3 I 494-4-III 

Shelby v. Wash. State Dep't ofHealth 

obligation of the treating denturist to remedy the situation (including construction of a 

new denture if necessary) at no cost to the patient regardless of the period of time that has 

passed since the denture was first seated." CP at 391-92. The remainder of finding 1.22 

is supported by finding 1.7. 

Finding 1.23. Ms. Shelby challenges the finding that "[t]he Respondent's failure 

to meet the denturist standard of care in her treatment ofPatient A caused patient harm by 

causing pain and discomfort to Patient A over an extended period of time" and that "[t]he 

harm to Patient A was moderate in nature." CP at 395. 

Yet again, she argues that the reasons why the first sentence is erroneous are 

addressed previously in her brief-argument that is, again, insufficient under our rules. 

We have previously addressed the sufficient evidentiary support for the health law 

judge's findings that the patient experienced pain and discomfort from the ill-fitting 

denture and that the denture constructed did not meet the denturist standard of care. 

As to the remainder of the finding, she argues "there was no evidence to support 

the assertion that the degree of 'harm' to Patient A was 'moderate'''; that "moderate" is a 

technical word that means medium in degree, and "[t ]here is no evidence that Patient A 

had any diagnosed problem caused by this denture, much less any problem that reached 

the level of moderate." Br. of Appellant at 43 (emphasis added). 

"Moderate" is a term used to describe a tier of harm considered in imposing 

sanctions under the sanction schedule for "practice below the standard of care" found at 

20 


I 
No. 3 I494-4-III 

Shelby v. Wash. State Dep't ofHealth 

WAC 246-16-810. "Moderate" is not defined by agency regulations and Ms. Shelby 

provides no authority in offering her definition. But the State does not dispute that 

"medium in degree" is a commonly understood meaning of "moderate." 

Sufficient evidence supports a finding that Ms. Shelby's practice caused moderate 

harm to the patient. The health law judge could reasonably find that continued pain, 

difficulty eating and speaking, and being forced to change a patient's diet to soft foods, 

qualify as moderate harm. Additionally, there was evidence that the patient was 

subjected to a moderate or severe risk of harm because the extended use ofLynal as a 

soft liner (coupled with application of Denturite) created a condition under which bacteria 

could build up and put the patient at a risk of infection. See finding 1.25. The health law 

judge did not err in finding that the patient suffered moderate harm. 

Findings 1.24 and 1.25. Ms. Shelby challenges findings 1.24 and 1.25, which 

reiterate her violation ofthe standard of care, for "reasons ... previously discussed in this 

brief." Br. of Appellant at 43-44. The insufficiency ofthis type of argument has been 

previously discussed in this opinion. 

Finding 1.26. Ms. Shelby challenges the health law judge's finding 1.26 that, 

while the patient's communications to Ms. Shelby were inconsistent, "under the denturist 

standard of care, the Respondent should have been able to detect the problems with the 

denture while treating Patient A without relying solely on the patient's inconsistent 

communications." CP at 396. She contends that there is no evidence to support implied 

21 

No. 31494-4-111 

Shelby v. Wash. State Dep 't ofHealth 

assertions that she (1) failed to detect the problems with the denture and (2) relied solely 

on the patient's inconsistent communications. 

Mr. Vize testified that problems with the denture included malocclusion, the 

denture base was incorrect in that it is severely or significantly porous, the denture did 

not fit correctly, the denture was not aesthetically pleasing, and the denture was "simply 

unusable." CP at 748. Mr. Cherron testified that problems with the denture included 

obvious fractures that would continue due to a failure to put a hard liner in the denture 

and teeth that had popped out and would continue to pop out because of an error in its 

manufacture. 

The health law judge's finding that Ms. Shelby failed to detect the problems is 

supported by the expert evidence that identified those problems coupled with Ms. 

Shelby's continuing denial that any problem existed. We defer to the health law judge's 

weighing ofthe evidence and credibility determinations. He found that the problems did 

exist, but that Ms. Shelby failed to recognize them. 

The finding that Ms. Shelby relied solely on the patient's communications is 

supported by Ms. Shelby's testimony; her defense to the charges was, and continues to 

be, that ifthe patient had complaints, she never communicated them to Ms. Shelby. See, 

e.g., CP at 807 (agreeing that she had a "friendly amicable pleasant relationship" with the 

patient and "never knew" that the patient was not satisfied). The finding that the patient's 

reports to Ms. Shelby were inconsistent was supported by the testimony ofthe patient and 

22 

No. 31494-4-III 

Shelby v. Wash. State Dep't ofHealth 

Mr. Vize to the effect that the patient had reported some problems to Ms. Shelby. Here 

again, what the patient told Mr. Vize about her prior treatment by Ms. Shelby was 

admissible. 

D. Challenged Conclusions ofLaw 

Ms. Shelby challenges the health law judge's conclusions oflaw on the grounds 

that the State did not prove its charges by clear and convincing evidence, renewing her 

argument that Dr. Shannon was a "superior expert" and arguing that the fact that Mr. 

Cherron and Mr. Vize were not in complete agreement in their opinions weakened the 

State's case. She again argues that there was no proof of harm beyond "minimal" harm. 

Her assignments of error to the conclusions of law also refer to "reasons ... discussed 

previously in this brief," which, in light of RAP 1O.3(a)(6), we will not attempt to divine. 

We have already determined that the 16 findings of fact to which Ms. Shelby 

assigns error are supported by substantial evidence, bearing in mind the clear and 

convincing standard applied by the health law judge. 

As to the contlicting opinions by experts, we have already discussed the fact that 

credibility determinations are for the health law judge to make, not us. See Smith v. 

Emp't Sec. Dep't, 155 Wn. App. 24, 35, 226 P.3d 263 (2010). 

Finally, we have already determined that the finding of "moderate" harm is 

supported by substantial evidence. 

23 

No. 31494-4-111 

Shelby v. Wash. State Dep't o/Health 

The health law judge found that Ms. Shelby did not adequately bind the teeth to 

the denture, causing them repeatedly to break off (finding 1.18). He found that the 

denture was poorly constructed causing malocclusion (findings 1.13, 1.16). He found 

that Ms. Shelby failed to adequately address the porous nature of the denture (finding 

1.20). His findings support the charge that Ms. Shelby left the liners in the patient's 

mouth for too long, making them susceptible to bacterial accumulation and the risk of 

infection (finding 1.25). He found that the only solution to the repeated problems 

consistent with the denturist standard of care was for Ms. Shelby to construct a new 

denture for the patient at no cost, which Ms. Shelby failed to do (finding 1.22). The 

health law judge's findings support his conclusion that Ms. Shelby committed 

unprofessional conduct. 

III. Challenge to Sanctions 

Finally, Ms. Shelby challenges the sanctions imposed by the health law judge. 

The Uniform Disciplinary Act (Act), chapter 18.130 RCW, governs the licensing 

and discipline of health care professionals, including denturists. RCW 18.30.135. It 

provides that "[i]ncompetence, negligence, or malpractice which results in injury to a 

patient or which creates an unreasonable risk that a patient may be harmed" constitutes 

unprofessional conduct by any license holder covered by the chapter. RCW 

18.130.180(4); Brown, 94 Wn. App. at 13. The Act provides for the development by the 

secretary of health of a uniform schedule of sanctions and provides that disciplining 

24 

No. 31494-4-111 

Shelby v. Wash. State Dep 't ofHealth 

authorities "shall" impose sanctions as directed by that schedule anytime they find that a 

license holder has committed unprofessional conduct. RCW 18.130.160, .390.4 

The sanctions schedule adopted by the secretary that is to be applied where a 

license holder has been found to have practiced below the standard of care is set forth in 

WAC 246-16-810, which we reproduce below: 

4 As provided by RCW 18.130.390(2), the uniform sanctioning schedule was to be 

applied to all disciplinary actions commenced under the Act after January 1, 2009. The 

secretary was directed to use emergency rule-making authority to adopt rules taking 

effect by that date; emergency rules were adopted by Emergency Rule-Making Order 

WSR 09-01-188 (effective Jan. 1,2009) and WSR 09-09-035 (effective May 1,2009). 

The statement of charges against Ms. Shelby was filed on January 23, 2009, making the 

uniform sanctioning schedule applicable. 

25 
No. 31494-4-111 

Shelby v. Wash. State Dep 't ofHealth 

PRACTICE BELOW STANDARD OF CARE 

Severity TIer 1Conduct Sanction Range Duration 

In consideration of Aggravating &Mitigating 

Circumstances 

Minimum Maximum 

least A- Caused no Of Conditions that may Oversight for 3 years 0-3ye8nl 

minimal patient hann Of incfude reprimand. which may include 

arisk of minimal patient trainilg. monitoring, reprimand. training, g harm supeNislon, probation, monitoring, 

I?~ evaluation, etc. supervision, 

evaluation. probation. 

s _1, n. etc. 

S - Caused moderate Oversight for 2 years Oversight for 5 years 2years • 5 years

l~ patient hann Of risk of which may incfude which may include unless revocation 

moderate to severe suspension. probation, suspension. 

patient harm practice restrictions, probation. practice Ir training, monitoring, restrictions, training, I,>' 

' :; supervision, probation, monitoring. 

I<:~ evaluation, etc. supervision, 

-, probation. evaluation. 

,', etc. OR revocation. """-""""~'-"-'" 

C- Caused severe Oversight for 3 years Pennanent 3yearsharm or death to a which may incfude conditions. pennanent 

human patient suspenskln, probation, res1rictions or 

practice restrictions, revocation. , 

training. monitoring, 

greatest supervision. probation. 

evaluation. etc. In 

adcfltion • demonslration 

of knowledge or I competency. . 

Once the appropriate sanctions schedule has been identified, the disciplinary 

authority charging a licensee with unprofessional conduct under the Act "identifies the 

severity of the unprofessional conduct and identifies a tier using the sanction schedule 

tier descriptions." WAC 246-16-800(3)(b). It then "identifies aggravating or mitigating 

factors," using a list provided by WAC 246-16-890. WAC 246-16-800(3)(c). It finally 

26 

No. 3 I 494-4-II1 

Shelby v. Wash. State Dep 't 0/Health 

"selects sanctions within the identified tier," with "[t]he starting point for duration of the 

sanctions [being] the middle ofthe tier range." WAC 246-16-800(3)(d). 

Here, the health law judge found that Ms. Shelby's practice below the standard of 

care caused moderate harm or risk of moderate to severe harm, falling in Tier B. The 

midpoint for the duration of the sanctions imposed under Tier B is 3.5 years. The health 

law judge found two aggravating factors: that Ms. Shelby committed multiple violations 

ofthe denturist standard of care and that her unprofessional conduct occurred over an 

extended period oftime. 5 It found one mitigating factor: the lack of intention to harm the 

patient. Based on the aggravating and mitigating factors, the health law judge concluded 

that "the conduct falls in the lower end of Tier B of the sanction schedule" and ordered 

that Ms. Shelby's denturist license be suspended for at least two years, allowing her to 

seek reinstatement two years from the date of his final order. CP at 397. He also 

imposed a $5,000 fine and ordered her to refund all fees that she charged the patient for 

treatment. 

5 The department points out that WAC 246-16-890 provides for several more 

aggravating factors that the health law judge could have applied: being an experienced 

denturist (WAC 246-16-890(2)(a)), offering no refund to the patient (WAC 246-16­

890(3)(c)), not showing remorse for her conduct (WAC 246-16-890(3)(f)), and having 

been subject to prior discipline by the department (WAC 246-16-890(2)(b)). While we 

may affirm an agency decision on grounds not cited by the agency, see Heidgerken v. 

Dep 't o/Natural Res., 99 Wn. App. 380, 388, 993 P.2d 934 (2000), we choose not to 

reach other grounds where the findings made by the health law judge are sufficient. 

27 

No. 31494-4-111 

Shelby v. Wash. State Dep 't 0/Health 

We accord considerable deference to an agency's determination of sanctions, as 

the appropriate sanction is peculiarly a matter of administrative competence. Brown, 94 

Wn. App. at 16 (citing State ex reI. Wash. Fed'n o/State Emps. v. Bd. o/Trustees o/Cent. 

Wash. Univ., 93 Wn.2d 60, 68-69, 605 P.2d 1252 (1980)). Following the 2008 adoption 

ofRCW 18.130.390, which directed the secretary of the department of health to develop 

schedules defining appropriate and consistent ranges of sanctions, a sanction that is 

imposed in accordance with the department's regulations and is based on findings of 

aggravating and mitigating circumstances supported by the record is well-nigh 

invulnerable to attack. 

The health law judge in this case substantially followed the procedure for 

determining statutes required by the regulations; if anything, he was more lenient. The 

aggravating factors he found are supported by the evidence.6 Ms. Shelby has not 

demonstrated any abuse of discretion. 

6 Both Mr. Vize and Mr. Cherron testified to mUltiple violations of the denturist 

standard of care. And given what the health law judge found to be unprofessional 

conduct, the conduct began with the improper manufacture of the denture in or about 

March 2007 and continued until at least December 4, 2007, the last time Ms. Shelby saw 

Patient A. The misconduct may have continued to February 4, 2008 when Ms. Shelby 

refused to give Patient A a refund. 

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No. 31494-4-II1 

Shelby v. Wash. State Dep't ofHealth 

Affinned. 

A majority ofthe panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


29