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Can an Orthodontist Practice Basic Dentistry? Arkansas Must Decide

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By Jonathan R. Tung, Esq. on December 15, 2015 6:00 AM

The Court of Appeals for the Eighth Circuit has remanded an orthodontist's case back to the lower federal court, which can now hear the pressing legal issue of whether or not he, as a licensed dentist, can practice as a dentist.

The case will potentially shed some light on the somewhat perplexing law that limits one of the state's professional licenses.

Arkansas Dental Practices Act

Dr. Ben Burris of Fayetteville Arkansas is an orthodontist licensed in the state of Arkansas and has undergone the same training as any other dentist in the state. Nonetheless, he received a letter from Arkansas' Board of Dental Examiners informing him that the low-cost teeth cleaning services that he provided were in violations of the state's Dental Practices Act (Act). The Act states that dentists with specialty licenses must limit their practice to that specialty except in emergency situations.

So, because teeth cleaning falls outside of orthodontics, Dr. Burris had allegedly violated state law. He sued the Board and claimed that the Act violated his constitutional rights.

In US District Court, Judge Brian Miller dismissed Burris's suit on the theory that the federal court should not rule on a potentially unclear and yet controlling state law, leaving that responsibility to the state courts.

What Ambiguity?

But the Eighth Circuit didn't see any problem with the Act as it was written and agreed unanimously with the parties that "the [language of] the statute is clear." Thus, it rejected the move of dismissal and the lawsuit may proceed at the lower court on the merits.

Dentists Unite Against Competition

The facts of this case are similar in relevant aspects to events that took place in North Carolina -- eventually rolling its way up to the Supreme Court. There, The North Carolina Board of Dental Examiners decided to act on behalf of the guild of licensed dentists who saw competition with the sale of do-it-yourself home teeth-whitening kits. The complaints did not actually come from patients, the group the Board is ostensibly charged in protecting, but the dentists themselves. See: North Carolina Board of Dental Examiners v. FTC.

Both cases, coming from different states, illustrate how dentists (and potentially other professions) leverage the power of their licensing authority to promote a culture of protectionism. Truly, it is actually in the best interests of the customer's pocketbook for courts to more closely examine the intent and effects of these supposedly beneficial acts. And if anything, the decision in North Carolina, though not directly on point, has the potential of spelling bad news for the anti-competitive dentistry laws in Arkansas.

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