21 Aug Georgia Board of Dentistry Issues Subpoenas as Part of the Investigative Process
Written by: Sandro Stojanovic, Esq.
Traditionally, when starting the investigation process, the Georgia Board of Dentistry (“GBD”) would send a certified letter to the licensed dentist requesting that the dentist provides a statement and certified copies of dental records and radiology studies. The dentist would then typically have fifteen (15) days to respond to the certified letter. As of 8/19/2019, that process has been changed. The new process implemented by the GBD now includes a subpoena from the GBD with an expected 10-day turnaround to provide the requested materials. The subpoenas will come directly from the GBD and will be served on the dentist via registered mail.
How does this impact the dentists in Georgia? The change in the process has shortened the time to provide the dental records and related materials, which means that dentists now have even less time to report the letter to their malpractice carrier and/or retain an attorney. The 10-day turnaround time may be unduly burdensome for some dentists, especially if he/she does not have immediate access to the records, has a full schedule, or is out of the country for a period of time. Failure to comply with the subpoena may result in motions to compel filed by the Attorney General’s Office, who represents the interests of the GBD, and dentists may be held responsible for paying costs associated with the motion and appearance in court.
Under Georgia law, the GBD has a right to issue subpoenas as part of their investigative process. See O.C.G.A. § 3-11-47(h)(1). However, one additional major issue with this new process, that has been identified by our office, is that the GBD is also attempting to subpoena a statement from the dentist regarding the care and treatment provided to the patient. While the law allows the GBD to issue a subpoena to require dentists to produce the dental records and other materials, the law does not allow the GBD to order dentists to create a statement and produce that statement pursuant to the subpoena. Simply put, the GBD does not have subpoena power to compel a dentist to create such a document.
In order to challenge the subpoena, the law provides a right to the dentist to file a motion for a protective order with the judge of the Superior Court in the county in which the dentist resides. See O.C.G.A. § 43-11-47(n). This is a powerful tool that could allow dentists appropriate time to timely and properly respond to the subpoena sent by the GBD, and more importantly, retain legal counsel to assist with the defense of his/her professional license.