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Soc'y of Orthodontists v. U.s. Dental Inst.

OPINION FILED FEBRUARY 16, 1978

THE PEOPLE EX REL. ILLINOIS SOCIETY OF ORTHODONTISTS ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,

v.

UNITED STATES DENTAL INSTITUTE, INC., DEFENDANT-APPELLEE AND CROSS-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

• 1 The sole question in this case is whether a school teaching courses in advanced dentistry to dentists is practicing dentistry contrary to statute (Ill. Rev. Stat. 1975, ch. 91, par. 42a), when the school through its instructors gives advice to the students on specific problems the students have, including diagnosis, pursuant to the contracts between the school and the students which provide that the students may bring in up to ten specific problems free of charge and any number thereafter at a charge of $50 a problem. We hold that the school is in violation of the statute.

The defendant, the United States Dental Institute (hereinafter Institute), teaches courses in orthodontics to licensed dentists. The Institute is approved by the Superintendent of Public Instruction; it is not, however, an accredited dental school approved by the Illinois Department of Registration and Education.

One of the instructors at the school is an orthodontist; the rest are general dentists. All except one, Dr. Eilene Enriquez, a citizen of the Philippines, are licensed to practice in Illinois. All of the students are licensed dentists. It must be noted that while only orthodontists can hold themselves out to the public as orthodontics, any licensed dentist can practice orthodontic medicine. All a degree in orthodontics does is entitle a dentist, after complying with section 4a of the Dental Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 59a), to list himself as an orthodontist.

There are a few dental schools in Illinois giving courses in orthodontics leading to a degree in orthodontics. All of these schools give courses on a full-time basis only and forbid their students to practice dentistry while they are taking the courses. Besides instruction, these schools engage in clinical training where the student works on live patients under the supervision of an instructor. The Institute's program cannot, and does not, lead to a degree in orthodontics, and the Institute has never pretended that it does. What it does do is offer a part-time curriculum whereby the licensed dentist can gain additional knowledge in the field of orthodontics while continuing to practice dentistry. The advantages of this to the dentist are obvious.

While the evidence is meager and conflicting on the point, it appears that while the Institute does not require that its students work on live patients having orthodontic problems during the time they are taking the courses, the student dentists are encouraged to take patients since that is the best way to learn. They are, as we noted earlier, legally entitled to take such patients. The students determine whom they feel they are capable of treating, although the instructors, if they know of the case, will inform the student if they believe it to be beyond his capability. One of the important features of the school is its "back-up service." The student dentists can bring in records, including plastic models of the patient's dentition, X rays, intra and oral photographs and other documents, and the instructors will make a diagnosis and suggest a treatment plan which the students can choose to follow or reject; the student is encouraged to return during the course of the treatment with updated records which the instructor can use to continue to give advice. At no time does the instructor see these patients. Indeed, it is unlikely the patients ever know of the Institute's existence. It is unclear from the evidence whether only two of the instructors handle these problems or whether all of them do. Likewise, it is unclear whether all problems submitted are handled or whether the student brings in several from which the instructor selects some routine cases. Moreover, the record is silent as to whether these problems are handled as part of the classroom procedure or separately. It is clear that the Institute in its contract with the student agrees to furnish during the course of the 5-year program ten "hypothetical teaching guides" free of charge (i.e., included in the $8,000 fee) and additional "hypothetical teaching guides" for $50 per case. There is no restriction on the number of times the student may bring the same case back.

No student dentists were called to testify; consequently there was absolutely no evidence that the student dentists were encouraged or led to take cases they would not otherwise have taken. There was also no evidence that the student dentists, because of the back-up service, felt they were ceding responsibility for any case to the Institute. There was no evidence as to the ability (as opposed to the right) of the student dentists to handle the cases other than that many of them had been practicing as dentists for years. There was no evidence as to what proportion of the student dentists actually used the "back-up service," or how closely they followed the recommendation or how much they relied on the advice given rather than on their own skill and observations.

The plaintiff brought this action seeking to enjoin the performance of the back-up service on the theory in count I that it constituted the unlawful practice of dentistry and in count II that it constituted a nuisance. After hearing the evidence the trial court found:

"1. The defendant, as a school, serves a useful purpose. The Court should not interfere with its existence.

2. The Court does not possess the power to judge the qualifications of the faculty.

3. The Court does not possess the power to pass on the quality of the educational service rendered by the school.

4. The plaintiff has failed to establish a prima facie case that the defendant is engaged in the practice of dentistry, in violation of any of the provisions of the Dental Practice Act except as hereinafter set forth.

(a) The plaintiff has failed to establish a prima-facie case that the defendant represents itself as being able to treat or operate for any disease, pain, deformity, deficiency, injury, or physical condition of a human tooth, or teeth, alveolar process, gums or jaw.

(b) That the plaintiff has failed to establish a prima facie case that the defendant operates or conducts a place where dental operations are performed.

(c) That the plaintiff has failed to establish a prima facie case that the defendant performs dental operations of any kind, gratuitously or for a fee, gift, compensation or reward, pay, or to be paid, either to itself or to another person or agency.

5. The plaintiffs have established a prima facie case that the defendant, a non-professional service corporation owned and operated by non-dentists, does represent itself as being able to diagnose existing orthodontic deficiencies of a specific patient and prescribe the remedy. It is the interpretation of this Court that the said functions are not limited to the relation between the dentist and a patient, but extends also to provide such functions to registered dentists as well. Such functions are beyond the course of instruction offered by the school as a means of continuing education for the licensed professional, in violation of the Act.

It is Therefore Ordered, Adjudged And Decreed, as follows:

A. That the defendant's motion for a finding in favor of the defendant, with respect to Counts I and II of plaintiff's Complaint be and hereby is sustained, except as to the prima facie case established by the plaintiff as hereinbefore set forth in Paragraph 5 hereof.

B. That the defendant corporation, United States Dental Institute, Inc., shall not represent itself to or practice diagnosis or prescribe remedies.

C. That defendant corporation, United States Dental Institute, Inc., be, and it hereby is, permanently and forever restrained and enjoined from, in any way, representing itself to any persons whatever, as being able to diagnose or in any way prescribe the treatment or remedy for the orthodontic deficiencies of or in any person or patient whatever."

I.

The sole question to be considered by this court is whether the actions performed by the Institute constitute the practice of dentistry, since it is obvious from the facts in this case that these actions are performed by the corporation rather than by the dentists themselves, and, therefore, if constituting the practice of dentistry, must be banned. *fn1 Indeed, it does not appear that the defendant contends otherwise. The back-up service is provided pursuant to a contract between the Institute and the student-dentists, not between the teacher-dentists and the student-dentists. The payments for the additional services go to the Institute, not to the teacher-dentists directly. This is enough to demonstrate that it is the corporation, rather than the individual dentists, that is providing the service. (Compare Basford v. Department of Registration and Education (1945), 390 Ill. 601, 62 N.E.2d 462.) Also, we note that apparently these diagnoses are not given merely as a teaching aid by professors in class, but are given instead, at least in part, by other "teachers" who do this full time. Thus, they cannot be compared to the advice given by professors in a class in response to specific questions.

• 2 Illinois follows the majority rule that normally a corporation cannot practice dentistry (section 18a of the Dental Practice Act, Ill. Rev. Stat. 1975, ch. 91, par. 72a; People v. United Medical Service, Inc. (1936), 362 Ill. 442, 200 N.E. 157), unless it is a medical corporation which qualifies under the Professional Service Corporation Act (Ill. Rev. Stat. 1975, ch. 32, par. 415-1 et seq.), which, inter alia, requires that all stockholders of a professional corporation be licensed members of the specific profession. (Ill. Rev. Stat. 1975, ch. 32, par. 415-11.) The Institute cannot qualify under the latter statute since its stockholders are not all dentists; indeed, not even its officers are dentists. Section 18a of the Dental Practice Act provides that no corporation shall practice dentistry or engage therein, or hold itself out as being entitled to practice dentistry or to furnish dental services or dentists, or advertise or assume the title of dentist or furnish dental advice for ...


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