STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REVOCATION ) OR SUSPENSION OF THE LICENSE OF )

CLARENCE EMBRY ABELL, D.D.S., ) CASE NO. 75-027 FT. PIERCE, FLORIDA. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on May 23, 1975, at Fort Pierce, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: James Brecher

Keller & Brecher Jacksonville, Florida

For Respondent: Richard V. Neill

Neill, Griffin, Jeffries and Lloyd Fort Pierce, Florida

The Florida State Board of Dentistry ("Board" hereafter) filed an accusation against Dr. Clarence Embry Abell, a licensed dentist. In the accusation it is charged that Dr. Abell violated the standards of his professional practice in such a manner as to bring discredit upon the profession of dentistry in that he assaulted a minor child, while the child was a patient. A copy of the accusation was received in evidence as Hearing Officer's Exhibit 1. Through a letter signed by his attorney, Dr. Abell requested a hearing before the Division of Administrative Hearings. A copy of the letter was received in evidence as Hearing Officer's Exhibit 2. The final hearing was scheduled in accordance with a notice dated May 7, 1975.

The Board of Dentistry initially called three witnesses: Rhonda Hall, the patient allegedly struck by Dr. Abell; Brenda Jean Hall, Rhonda's mother; and Dr. John Norris Sims, a physician who treated Rhonda after the alleged incident. Dr. Abell testified on his own behalf. He also called the following witnesses: Barbara Lanzier, a patient who was at Dr. Abell's office on the day that the alleged incident occurred; Mattie Turner, coordinator of Health Services with the Community Action Organization in Fort Pierce; Charles D. Kirby, a patient who was in Dr. Abell's office on the day the alleged incident occurred; Mildred

1. Jenkins, Dr. Abell's dental assistant; and Martha B. Abell, Dr. Abell's wife. In rebuttal the Board called Edna Louise Adams and Louise Netheny, mothers of former patients; and four persons who had been patients: Sarah Nicholson, Regina Adams, Monique Adams, and Andy McClendon. Dr. Abell then testified again on his own behalf. Dr. Abell offered nine exhibits, all of which were received in evidence.

   
   

   References to the official transcript of proceedings at the final hearing will hereafter be designated "Tr" followed by the page number.

   FINDINGS OF FACT

   
   

   1. Dr. Clarence Embry Abell is a licensed dentist, License No. 2471 (Renewal certificate issued September 20, 1974), practicing in the State of Florida pursuant to Chapter 466 of the Florida Statutes, at 2306 Orange Avenue, Fort Pierce, Florida. (Stipulation, Tr 5).

      
      

   2. The Board prepared an accusation against Dr. Abell which is dated February 7, 1975. Dr. Abell requested a hearing before the Division of Administrative Hearings through a letter dated February 18, 1975. The final hearing was scheduled in accordance with a notice dated May 7, 1975. (Hearing Officer's Exhibit 1 and 2, Notice of Hearing).

      
      

   3. On December 5, 1973, Rhonda Hall, then 10 years of age, had a toothache. Her mother, Brenda Jean Hall, called several dentist's offices in Fort Pierce, and finally made arrangements to have Rhonda seem by Dr. Abell. Rhonda had no regular dentist in Fort Pierce. Rhonda and her mother arrived at Dr. Abell's office at approximately 9:30 a.m. Dr. Abell's receptionist, Mildred

      I. Jenkins, directed Rhonda from the reception room into the operatory. Mrs. Hall started to go with Rhonda to the operatory, but was instructed by Mrs. Jenkins to wait in the reception room. Mrs. Jenkins seated Rhonda in the dentist's chair. Dr. Abell asked Rhonda which tooth was giving her trouble. Rhonda showed him. Dr. Abell concluded that she had two abscessed teeth next to each other in her right lower jaw. He injected local anesthetic, and commenced to take an x-ray. The door of the operatory was opened, but Mrs. Jenkins had left the room. Dr. Abell asked Rhonda to bold the x-ray film between her teeth with her forefinger. He took the x-ray.

      
      

   4. Rhonda Hall testified that after he took the x-ray Dr. Abell jerked the film out of her mouth and hit her. She testified that she saw Dr. Abell's arm and hand pull back and saw his fist coming toward her.

      
      

   5. Dr. Abell testified that after he took the x-ray Rhonda began to holler. He did not recall her exact words. He testified that he hung the x-ray switch on the unit and walked around behind the dentist's chair to take the film out of Rhonda's mouth. He testified that he turned the x-ray unit downward parallel to the chair and reached to take the film out of her mouth. She spun away and fell back in the chair. He stated that there was a momentary silence, that he took the film from her mouth, and that she then started hollering again. He lowered the chair and was going to ask her to leave when she ran out of the operatory. Dr. Abell testified that he does not restrain children, who are within the age of reason, in order to perform dental work on them. Dr. Abell was firm in his testimony that he did not strike Rhonda Hall. He felt that Rhonda may have struck her head against the x-ray machine when she hollered. He did not see her head strike the machine, but he felt that she was in a position to do that.

      
      

   6. Other than Dr. Abell and Rhonda Hall, there were no witnesses in the operatory.

      
      

   7. Having given due regard to the demeanor of the witnesses who testified at the final hearing, and to the competence and credibility of the witnesses, I find that Dr. Abell did not strike Rhonda Hall as alleged. It is apparent that Rhonda Hall sustained an unfortunate, but relatively minor injury to her eye while she was Dr. Abell's patient. This injury, however, was not the result of any action taken by Dr. Abell. It is possible that Rhonda is mistaken about

      what happened, or that she has placed herself in a position of feeling that she must testify falsely. Although Rhonda and her mother both testified that she was not nervous about going to the dentist, it is evident that at least her mother thought she was. Mrs. Barbara Lanzier was in the reception room when Rhonda was called by Mrs. Jenkins. Mrs. Lanzier testified that after Rhonda left the waiting area, Mrs. Hall stated, "They are going to have trouble with her, they always do. I always go in the room with her."

      
      

   8. After Rhonda was injured, she ran out of the dentist's office, through the reception room, and outside to her mother's automobile. Her mother brought her back into the office and confronted Dr. Abell. Dr. Abell explained what had happened, and told Mrs. Hall that he did not hit the child. Mrs. Hall then took Rhonda to Dr. Sims, who referred them to an eye specialist. Later that afternoon Mrs. Hall returned to Dr. Abell's office with Rhonda. She again discussed the matter with Dr. Abell. While these discussions were taking place Rhonda moved about the dentist's office, opening drawers and looking at things in the office. At one point she opened a drawer within one foot of where Dr. Abell was sitting. Third conduct, which was witnessed by Dr. Abell and by Mrs. Jenkins, indicates that Rhonda was not particularly afraid of Dr. Abell, despite the fact that he had supposedly hit her with his closed fist only hours earlier. Mrs. Hall denied that Rhonda was opening drawers, or that Rhonda was even with her when she met with Dr. Abell that afternoon. In view of the testimony of Dr. Abell, and his assistant, however, this testimony of Mrs. Hall is not believable. Mrs. Hall testified that she spoke with Mrs. Mattie Turner at the Community Action Organization about Dr. Abell. Dr. Abell does considerable work for children in the Headstart Program managed by the Community Action Organization. Mrs. Hall testified that Mrs. Turner told her over the telephone that she could give her a list of people who could make statements against Dr. Abell. In a later telephone conversation, Mrs. Turner told Mrs. Hall, according to Mrs. Hall, that she would not be able to prepare such a list because of her government position. Mrs. Turner testified at the final hearing that she had only one conversation with Mrs. Hall on the telephone and that she never told Mrs. Hall that she could give her a list of people who had complaints about Dr. Abell. She further testified that she has taken many children to see Dr. Abell, and that she has never had a complaint about his services.

      
      

   9. Dr. Abell's account of what happened in the operatory with Rhonda Hall, is not corroborated by any direct testimony. After the incident, however, it is apparent that Dr. Abell preceded to treat other patients, and that he did so in a calm, businesslike manner. Such conduct is not compatible with a person who has become so enraged as to strike a young child in the eye with his closed fist, without provacation. Dr. Abell's testimony respecting his normal procedure with uncooperative children and Mrs. Jenkins' testimony with respect to her fifteen years of experience working with Dr. Abell support Dr. Abell's account of the events.

      
      

   10. Four persons, who as young children had had dental work performed by Dr. Abell, testified as to their experiences. Sarah Nicholson, now twenty-three years old, was a patient in 1961 and 1962. Miss Nicholson testified that Dr. Abell was extremely rough with her. She testified that she was struck, but she does not remember where. On cross-examination, testimony that Miss Nicholson gave in a previous deposition were read to her. She had testified that she was "Slapped possibly - well, alright, we'll go with the technicalities, he was rough like, 'Sit still in the chair.'" She did not remember whether she was hit or slapped, but only that she was struck. Dr. Abell's records do not reflect anything extraordinary in his treatment of Sarah Nicholson. In view of the fact that the supposed incident occurred some thirteen years ago, and the fact that

       Sarah Nicholson's testimony about the incident is vague at best, the testimony cannot be regarded as competent or relevant.

       
       

   11. Regina Adams, is nine years old. She was five years old when she visited Dr. Abell in conjunction with the Headstart Program. She did not remember Dr. Abell's name. She testified that the dentist slapped her in the jaw and told her if she did not cry she would get some gum. She testified that the dentist missed with his drill, and that she had to go the doctor that night. The remoteness and vagueness of Regina Adam's testimony renders it incompetent and irrelevant.

       
       

   12. Regina's sister, Monique, who is now ten years old visited Dr. Abell when she was five or six years old. She did not recognize Dr. Abell at the hearing. She testified that she recalled being struck by Dr. Abell in the chest. She further testified, however, that she was going to state that she was struck in the face, but that at lunch her mother told her she was struck in the chest. In view of the remoteness of this supposed incident, the vagueness of the testimony, and the fact that the memory was gratuitously refreshed by her mother during the course of the hearing, the testimony cannot be regarded as competent or relevant.

       
       

   13. Andy McClendon, a nine year old, who saw Dr. Abell four or five years ago was called as a witness. He recalled nothing about the visit.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the subject matter of this case, and over the parties.

       
       

   15. Dr. Abell has not violated the standards of his professional practice so as to bring discredit upon the profession of dentistry.

       
       

   16. The accusation filed against Dr. Abell by the Board should be dismissed.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED as follows:

1. That Dr. Abell be found innocent of the charges set out in the accusation filed against him by the Florida State Board of Dentistry.

   
   

2. That the accusation filed against Dr. Abell be dismissed.

ENTERED this 30th day of June, 1975.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Neill, Griffin, Jeffries & Lloyd, Chartered Post Office Box 1270

Fort Pierce, Florida 33450 Attorneys for Clarence Embry Abell

Taylor and Brecher Attorneys at Law

605 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202 Attorneys for the Florida State Board of Dentistry

Docket for Case No: 75-000027

Orders for Case No: 75-000027