Georgia Dental Board Defends Itself against SmileDirectClub Lawsuit

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On May 21, 2018, SmileDirectClub (“SDC”) filed a lawsuit against the Georgia Board of Dentistry (the “Board”) in federal court for the Northern District of Georgia.  See SmileDirectClub v. Georgia Board of Dentistry et al., Case No. 1:18-cv-02328.   The lawsuit arises out of a rule (Georgia Rule 150-9-.02.(3)(aa)) promulgated by the Board in May 2018, which added the taking of “digital scans for fabrication [of] orthodontic appliances and models” to the list of duties that can only be performed by an expanded duty dental assistant operating under the direct (i.e., on premises) supervision of a licensed dentist.

In the Complaint, SDC seeks a finding that the taking of digital scans does not constitute the “practice of dentistry” and therefore does not fall within the scope of the Board’s regulatory authority.  SDC also alleges that the Board and its members committed antitrust violations (violations of the Sherman Act, 15 U.S.C. § 1) by enacting the rule at issue.  SDC additionally claims that the Board and its members violated SDC’s constitutional rights to due process by enacting the rule.
 
On November 21, the Board and its individual members filed a Motion to Dismiss SDC’s claims against them, arguing that SDC has failed to adequately plead claims against the Board and its members.  (A copy of the Motion to Dismiss can be viewed here.)  In particular, the Motion to Dismiss argues that the Board and its members are protected from the claims asserted against them by sovereign immunity.  The Motion to Dismiss also asserts that SDC has failed to adequately plead a claim for antitrust or constitutional violations.  Finally, the Motion to Dismiss argues that the Board and its members are protected from SDC’s claims by state-action immunity, and/or the Board’s individual members are protected from those claims by qualified immunity. 
 
Under a scheduling order entered by the court on November 14, 2018, SDC’s opposition to the Motion to Dismiss is due on December 21, 2018.  The Board’s reply in support of the Motion is due on January 21, 2018.  The Board is being represented by outside counsel in the lawsuit (as well as by its own internal counsel).  The AAO’s legal department will continue to monitor the lawsuit. 
 
Please note, every orthodontist (as a citizen of and licensed dental provider in his or her state) and orthodontic patient has the right to exercise their constitutional rights and contact their government about any public health and safety matter.  Should you feel compelled to do so, you can individually and independently contact your respective dental board (https://www.aaoinfo.org/aao/state-dental-board-info)*, elected officials, and/or attorneys general regarding your thoughts or concerns about important public health and safety matters. 

Thank you for your membership.

* Reference and contact information also includes the Canadian Dental Regulatory Authorities.
 
 
 
Dec. 18, 2018

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