STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STATE BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 76-700
)
RICHARD BLUSTEIN, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer, with the Division of Administrative Hearings, on September 27, 28, and 29, 1976, inclusive, at Conference Room 205, Building "B", 6501 Arlington Expressway, Jacksonville, Florida.
APPEARANCES
For Petitioner: S. Thompson Tygart Jr., Esquire
609 Barnett Regency Tower Regency Square
Jacksonville, Florida 32211
For Respondent: Albert Datz, Esquire
320 Southeast First Bank Building
231 East Forsyth Street Jacksonville, Florida 32202
ISSUE
Whether or not from January, 1975 until December, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Victoria Lynn Bandosz, who during said time routinely and customarily performed certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits form the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S. , as set forth in Count 1 of the Accusation. Count 1 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing.
Whether or not, from January, 1975, until August, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Janet Amato, who, did during said time routinely and customarily perform certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly
being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S., as set forth in Count 2 of the Accusation. Count 2 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing.
Whether or not on or about December 23, 1974, Dr. Richard Blustein did carelessly and mistakenly remove several teeth from Shawn McAfee, a minor, when in fact, said teeth should have been removed from Kerry McAfee, sister of Shawn McAfee, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) and 466.24(3)(c)(d), F.S., as set forth in Count 3 of the Accusation. Count 3 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing.
Whether or not prior to December 2, 1974, Dr. Richard Blustein treated Helen Rosen and during said treatment failed to diagnose and/or properly treat advanced periodontal disease and further improperly designed, constructed and installed a six-unit splint in the mouth of said Helen Rosen, said acts allegedly being in violation of Chapter 466, F.S., and in particular s. 466.24(2) or 466.24 (3)(c)(d), F.S., as set forth in Count 4 of the Accusation. Count 4 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing.
Whether or not, from June, 1974, until December, 1975 Dr. Richard Blustein failed to provide and maintain reasonably sanitary facilities and conditions in and about his office and person, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(1), F.S., as set forth in Count 5 of the Accusation. Count 5 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing.
Whether or not, in 1974 and 1975, Dr. Richard Blustein treated Milton Lane and did construct and install in the mouth of said Milton Lane a set of upper and lower dentures, which set of upper and lower dentures never fit properly and were never adjusted to fit properly, despite repeated attempts by Dr. Richard Blustein to correct or adjust said dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 6 of the Accusation. Count 6 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing.
Whether or not, prior to March 17, 1975, Dr. Richard Blustein treated professionally Sarah Rees and while treating or attempting to treat said Sarah Rees, failed to diagnose and/or properly treat periodontal disease, prepared and installed crowns which were inadequate in design, construction, retention and installation, and placed several inadequate restorations, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(c)(d), as set forth in Count 7 of the Accusation. Count 7 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing.
Petitioner had filed a Count 8 in the Accusation charging violations of Chapter 466, F.S. and in particular, s. 466.24(2), 466.24 (3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing.
Whether or not, during 1975, Dr. Richard Blustein treated Bill Soforenko, and during the treatment of said Bill Soforenko, prepared, constructed and installed a porcelain to gold full arch splint, which was entirely inadequate and unacceptable in preparation, design, construction and installation, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 9 of the Accusation. Count 9 had originally charged the violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing.
Petitioner had filed a Count 10 concerning certain children referred to him by the Academy of Dentistry, charging violations of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing.
FINDINGS OF FACT
Dr. Richard Blustein, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, F.S., under a license issued August 7, 1964, bearing No. 3716, and was at the time of the acts described in the Accusation engaged in the practice of dentistry at 417 St. James Building, Jacksonville, Florida.
In November, 1974, Janet Amato started to work for the Respondent as a dental assistant. She was hired to take X-rays and impressions, clean up operatories set up operatories and assist the dentist in various capacities.
She had attended the Florida College of Medical and Dental Assistants at Jacksonville, Florida and graduated as a dental assistant in 1969. After her employment began, she commenced to do those things indicated in her job function. In January, 1975, she attended a polishing course designed to instruct on the polishing of clinical crowns which was held at the Florida Junior College. This course was designed to teach the students to polish with a prophy angle and polishing cup with pumice. After completing the course, Janet Amato began polishing the teeth of patients who had been scaled by the dental hygienist or dentist in the office. Dr. Blustein was aware of this activity.
Sometime in the month of February, 1975, Janet Amato began to do the scaling of patients. Janet Amato was not a dental hygienist at any time material to the accusations. Janet Amato learned the scaling procedure by watching Dr. Blustein for a period of three or four months on the basis of once or twice a week. When she began to do this scaling, Dr. Blustein would say, "Honey, go in, and clean this one's teeth, you know", and at times mentioned the word "scale". Janet Amato did this procedure using a hand scaler, as much as ten times a week from February, 1975 through July, 1975. In July or August, 1975, she was placed as a receptionist in Dr. Blustein's office and only did scaling once or twice a week when the hygienist would get behind. This procedure continued until January, 1976. After January, 1976, Janet Amato did not do further scaling and resigned her job with Dr. Blustein in March, 1976.
The aforementioned scaling done by Janet Amato was subgingival only on those occasions when she would try to retrieve some debris that had fallen below the gum line.
This scaling spoken of was done with the knowledge of Dr. Blustein and under protest of Janet Amato, as evidenced by her remarks to the Respondent that she did not feel qualified to do that procedure, to which Dr. Blustein responded that she would do it anyway.
While employed by Dr. Blustein, Janet Amato was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Janet Amato how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with the laboratory burr. This process was done by Janet Amato as much as ten times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex.
Additionally, Janet Amato was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber bands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. The application of these brackets was made four or five times between February, 1975 and July, 1975, by Janet Amato.
Victoria Lynn Bandosz started to work for Dr. Blustein in his dental office, in February, 1974, while Ms. Bandosz was an eleventh grade student at Wolfson High School. This work was done on Saturday and the duties included calling patients in, setting up operatories, taking X-rays, cleaning instruments and putting them away. The schedule of work gradually changed from Saturday to Saturday and after school, and finally a full-time employment in the summer of 1975. Ms. Bandosz performed those functions, as indicated before, until January, 1975, at which time she took a polishing course at Florida Jr. College designed to teach her how to handle instruments and to polish teeth. This course was the same course attended by Janet Amato. She began to do this polishing and was gradually worked into scaling. According to Ms. Bandosz, the Respondent would introduce her to a patient and say that she was to clean the teeth because the office was busy. She began to do scaling over a period of time and protested doing this type activity, but received no response to her complaint about having to do scaling. Ms. Bandosz indicated that Dr. Blustein appeared too busy to respond.
The scaling that Victoria Lynn Bandosz did included work by hand scaler and by use of a Cavatron and commenced a few weeks after the polishing course was completed. The scaling done included the removal of calculus on the surface of the tooth and subgingival scaling. She learned this scaling, according to the witness, by watching the office dental hygienist. A schedule of doing the scaling would include as many as three or four times a week during the summer months and fall of 1975. In December, 1975, Victoria Lynn Bandosz left the employ of Dr. Blustein to attend school.
While employed by Dr. Blustein, Victoria Lynn Bandosz was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Victoria Bandosz how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters
mentioned and also the technique for grinding the dentures with, the laboratory burr. This process was done by Victoria Bandosz as much as five or six times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex.
Additionally, Victoria Lynn Bandosz was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber brands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient.
Among the patients being treated by Dr. Blustein in 1974, were Carol Diana (Kerry) McAfee, who was 10 years old at the date of the hearing and Sean McAfee, who was 8 years old at the time of hearing; sister and brother respectively. According to the questionnaire and chart on Sean McAfee and further testimony given in the course of the hearing, Sean McAfee had been seen by Dr. Blustein in April, 1974, on two occasions, one occasion being April 27, 1974, at which time an extraction was made of the right upper deciduous central and for X-rays in a second visit on April 29, 1974. Dr. Blustein recalls the extraction being in March, 1974. Some of this information is shown in Petitioner's Composite Exhibit #9, admitted into evidence. The Petitioner's Composite Exhibit #9 also shows the questionnaire and chart of Carol Diana (Kerry) McAfee, showing visits on November 30, 1974, and December 7, 1974. In the month of December, 1974, the young girl Kerry McAfee was taller than her brother Sean, with long blond hair, while Sean McAfee was stockey and had hair which did not go below the level of the ears. The two children do not resemble each other in other matters of appearance.
Prior to December 12, 1974, Carol Diana (Kerry) McAfee had been seen by Dr. Harry L. Geiger, who specializes in orthodontics and then referred to Dr. Blustein through the person of Dr. Geiger for purposes of extraction of the maxillary and mandibuar primary canines. This referral was by correspondence of December 12, 1974, which is Petitioner's Exhibit #1, admitted into evidence. On that same date Dr. Geiger prepared a form which indicated the location of the teeth. to be extracted. This form is a part of Petitioner's Composite Exhibit #9. An appointment was made with Dr. Blustein's office to have the extraction made from Kerry McAfee on December 23, 1974. Due to the proximity of the Christmas holiday, employees within Dr. Blustein's office were contacted and an arrangement made to substitute the appointment of Kerry McAfee for one of Sean McAfee who was to have his teeth cleaned around that time period. This substitution of appointment was made one week prior to the scheduled appointment. When the patient, Sean McAfee, arrived at the Respondent's office he was taken to an operatory to be seen by the Respondent. Dr. Blustein had with him in the operatory the letter which is Petitioner's Exhibit #1 and a set of X-rays pertaining to Carol Diana (Kerry) McAfee. There is some question about whether or not the form which is part of Petitioner's Composite Exhibit #9 was in the operatory. The letter of December 12, 1974 from Dr. Geiger in its reference lines references Carol Diana (Kerry) McAfee - Age: 8 years, and Dr. Blustein indicated that he read this letter and observed the X-rays on Carol Diana McAfee prior to his work. He indicated that the X-rays on Carol Diana (Kerry) McAfee appeared to be similar to what he found in terms of the actual condition in the mouth of Sean McAfee. He then proceeded to extract two of the teeth that were indicated to be removed but he made the extraction on Sean McAfee, as opposed to Carol Diana McAfee.
One of Dr. Blustein's patients, beginning August 6, 1974, was Mrs. Helen Rosen. Mrs. Rosen had last seen a dentist about a year prior to that and had had upper dentures made two or three years prior to August, 1974. The radiographic examination made by the Respondent showed that the patient was missing all of her upper teeth and was missing all but seven other teeth, which teeth showed severe periodontal involvement. The patient was a diabetic and clinical evaluation showed bone resorption. The patient on that date was wearing an upper denture which was causing problems due to the lack of a ridge and due to impediment in the muscle attachments. The lower natural teeth were mobile, to a high degree and the lower partial was contributing to that mobility. Further observation showed poor patient hygiene. The X-rays that were taken at that time are Respondent's Exhibit #9 admitted into evidence. The patient was told that she needed much dental work, specifically that she needed surgery on the upper jaw to relieve the muscle attachment, a mucobuccal full procedure to eliminate the frenum to allow her to wear her dentures. The patient by explanation was told that the dentures were irritating the upper ridge severely. The patient was also told that there was bone destruction in the upper jaw and that in addition to the upper jaw, surgery on the lower jaw was needed, which Dr. Blustein felt that he could do. After that surgery, Dr. Blustein indicated that a splinting procedure would be needed on the remaining natural teeth and as a part of that process that a new partial would be made. The prognosis for saving the natural teeth was poor due to the condition of the teeth, but the patient wanted to attempt to save those teeth.
Subsequent to that date the Respondent performed a mucoperiosteal flap (an apical repositioning flap). This procedure was performed on August 20, 1974. Photographs of this procedure are shown in Respondent's Exhibit #6, admitted into evidence. Those photos also show the placement of the splint on the natural teeth. Other treatment which was performed on Mrs. Rosen by Dr. Blustein included a visit of August 14, 1974, in which preparation was made on the lower interior plastic temporaries, the temporary splint on the remaining natural teeth, to prepare for periodontal surgery. An adjustment was made on this splint on August 15, 1974. As mentioned, the surgery, on the lower apical repositioning flap was done on August 20, 1974 and involved curettage in between the teeth, root cleaning in between the teeth, suturing in between the teeth and the surgical procedure itself. On August 27, 1974, the dressings and sutures were removed. On September 15, 1974 a bite impression was taken in preparation to construct a permanent splint device. On September 20, 1974, a shade was taken. On October 12, 1974, the casting on the splint was tried and on October 14, 1974 the lower teeth were cemented. This was followed on October 16, 1974, with a bite impression and on October 21, 1974 width an adjustment. A final impression was taken on October 25, 1974, this time of the upper dentures. In the beginning of November 1974 the dentures were remade and adjusted on two occasions. In November a discussion was entered into about the problem with the upper arch and Dr. Blustein indicated to the patient that she might get a second opinion on the need for surgery. At that time Dr. Blustein indicated that he was not through with the splint and it had only been placed to control mobility patterns. . . The partial spoken of at this time was the partial being constructed by the Respondent. Finally on February 27, 1974, upon consultation, the patient was told that she needed ridge adjustments on the upper arch.
Dr. Ronald Elinoff D.D.S. saw Helen Rosen on December 2, 1974, as an accommodation to one of his patients, whose mother is Helen Rosen. Dr. Elinoff found a full set of upper dentures with a lower splint and partial with dalbo attachment, the splint being a seven unit device. This splint was on the lower arch and was placed around the only natural teeth in the patient's mouth. The
embrassure spaces were closed on the splint, meaning those spaces underneath the solder joints or where the connection ends on the splint. The conture in the bolt that was there was impinging upon the ability of the patient to keep the splint clean, thereby promoting constant irritation. The tissue was grossly inflamed and would easily bleed upon touch and was a bluish redish color, unhealthy in appearance. There was minimal pocket depth, by that, the depth between the gum and the teeth. The minimal amount of bone shown growing beneath these teeth promoted stress on the teeth. The crowns were too long for the bone supporting root structure in that they were approximately three times as long as the root of the teeth, wherein a one to one ratio is desirable. The junction between where the casting ends and the tooth structure begins was very thick and the porcelain on the crowns had been chipped off, leaving an open area. The margins on the crowns were thicker than normal limits of tolerance. By Dr.
Elinoff's observation, the mobility of the teeth was 3+. The patient was referred to Dr. Richard Miller, D.D.S., a periodontist.
Dr. Richard L. Miller, D.D.S., specializing in periodontics saw Mrs. Rosen on December 5, 1974. By his observation, Mrs. Rosen had periodontal disease about the remaining seven teeth and the lower anterior, plus lower right first bicuspid teeth had been splinted. There was generalized hemorrhaging on probing, synosis and the pocket depth about the teeth indicated mucogingival problems. The splint mobility was 1+. The remaining roots and the bone were not adequate to support the removable partial denture splint. The splint design made it hard to maintain health, in that there were no embrassure spaces and the contact areas were bulky. The margins on the crowns did not fill well and were bulky. The cement which had been used to place the splint could be seen and there was fractured porcelain around margins of the restoration. According to Dr. Miller, these bulky margins contribute to periodontal disease, by causing irritation and attracting plaque. This cement that was observed was felt to be permanent cement.
On February 5, 1975, Dr. Seth Weintraub, D.D.S., specializing in periodontics saw Helen Rosen. He examined the remaining seven mandibular teeth and found a periodontal condition which was fairly arrested. The patient lacked gingival tissue in the lower left cuspid and it was his feeling that correction of the muscle pull in that area by free gingival graft to establish an adequate zone of gingival tissue could be done. His impression of the splint or bridge was that it was adequate for present if the oral hygiene improved, but the marrying of the crown was generally poor.
On March 18, 1975, Dr. Jack K. Whitman, D.D.S., specializing in periodontics saw Helen Rosen upon the referral of Dr. Weintraub. His observation revealed a gingiva which showed 3 millimeters space, (normal appearance being 2 to 3 millimeters), with slight irritation and some gum irritation. The patient was shown to have seven remaining mandibular teeth. The margins of the prosthetic device (splint) was bulky and was irritating the gingiva. The appearance of the patient's mouth showed bone loss and degeneration occlusion.
From June, 1974 until December, 1975, the Respondent would on occasion move from the examination of one patient, in a particular operatory over to a second operatory to see a second patient, and could do so without washing his hands. This examination of the second patient would include touching the mouth of the patient. On occasion Dr. Blustein would also move from the examination of one patient in an operatory to the frontdesk area of the office and look into and touch the patient's mouth at the desk, without washing his hands.
During the time period, June, 1974 until December, 1975, roaches were observed in the instrument trays which had been placed in cabinets within the office. These instrument trays contained dental instruments. There was no autoclave bag over these instruments and the roaches could be seen crawling about the instruments and roach eggs could be found in the instruments. The office was found in an older building in Jacksonville, Florida, known as the St. James Building. Within his office complex food was kept by the employees. In addition there were a number of other professional offices in the immediate area. The Respondent had made arrangements for periodic pest control treatment and had a separate cleaning crew within his office, in addition to the janitorial service offered by the building maintenance. The office also contained a number of autoclaves, one for each operatory; steam heat cleaning; sterilization; hot oil sterilization; dry heat sterilization; and hexacholrophy in all operatories.
During this period and at all other periods in which testimony was offered, there was no report of any incident of infection within patients.
On June 10, 1974, Milton Lane became a patient of Dr. Blustein. Mr. Lane had come to Dr. Blustein to have a complete set of dentures made, to replace the dentures that he already had. On the June 10, 1974 visit Dr. Blustein took upper and lower alginates. The next day, June 11, 1974, Dr. Blustein took a bite impression and made base plates to get the midline. On June 14, 1974, there was a trying of the teeth and a final impression was made. June 19, 1974, the dentures were inserted and on June 24, 1974 another adjustment was made to the dentures and reline impression was made in an attempt to get a tighter fit. The patient returned on June 26, 1974 for further adjustment and on July 6, 1976 the teeth were remade, in that a new set was fitted. On July 15, 20, and 22, 1976, further adjustments were made. During this time period when Mr. Lane would try to eat his food the dentures would flop around in his mouth and after repeated problems Mr. Lane was referred to Dr. Rupert O. Bliss, D.D.S., based upon a complaint that Mr. Lane had made to the Better Business Bureau. At that time, Dr. Bliss was acting as the chairman of the local dental grievence committee.
Dr. Bliss saw Mr. Lane in August, 1974 and Dr. Bliss's observations revealed that the dentures were trimmed on the peripheries and that the dentures were thick in the paletal region of the upper denture, with the teeth in the lower dentures being set "buckley to the ridge", thereby lessening the stability of the dentures. On balance, the dentures were found to be ill fitting. After his examination of the patient, Dr. Bliss wrote Dr. Blustein on August 16, 1974 in his capacity as chairman of the local grievence committee. Dr. Blustein offered his reply to this letter through his answer of August 21, 1974. The contents of these letters may be found in pages 488 and 489 of the transcript of record in the hearing. Dr. Bliss had other observations to the effect that the dentures did not fit the tissue of the ridges, although he felt that Lane had adequate ridge tissue. Dr. Blustein felt that one of the problems with the fit of the dentures had to do with the liquidity of the saliva of the patient, Lane. Dr. Blustein observed that the saliva was not sufficiently sticky to allow a smooth insertion of the dentures and felt that the patient would always need to use some form of dental paste to achieve a satisfactory fit.
After the contact between Dr. Bliss and Dr. Blustein, Mr. Lane returned to Dr. Blustein's office of September 13, 1974 for purposes of taking impressions for another set of dentures. On October 1, 1974, Dr. DePaul who was working in the office with Dr. Blustein took an impression on the patient, Lane, to see if he could make a more satisfactory adjustment. On October 5, 1974, Mr.
Lane made his last visit to the office of Dr. Blustein at which time the new teeth were inserted and the patient was told to come back if he had further difficulty. The patient did not return to the office of Dr. Blustein. When the patient appeared at the hearing as a witness he was still utilizing the last set of dentures that had been prepared by Dr. Blustein.
Between November 28, 1973 and June 13, 1974, Dr. Blustein saw the patient Sara Rees. Mrs. Rees came to see Dr. Blustein because her husband had been seen by the Respondent and because his estimate on the cost of doing needed dental work was satisfactory to her. When Mrs. Rees came to Dr. Blustein she had certain radiographs (X-rays) that had been taken by Dr. Charles Weaver,
D.D.S. on November 6, 1973. These radiographs are Respondent's Exhibit #4, admitted into evidence. Dr. Blustein's initial examination revealed a high level of caries, soft teeth and problems with fillings that were falling out. Dr. Blustein crowned seven teeth using pins to place the caps, in which gold caps and cast pins were utilized. This work may be seen in Petitioner's Exhibit #8, admitted into evidence, which is a series of radiographs taken by Dr. Roy Clarke, D.D.S. As a part of that exhibit #8 attached is a radiograph showing the date of March 11, 1975 as taken by Dr. David M. Mizrahi, D.D.S., a specialist in endodontics. This crown work involved the upper right second molar, upper right first molar, upper right first bicuspid, upper left second molar, upper left first molar, lower first molar, lower right first molar, teeth.
At the time Mrs. Rees was seeing Dr. Blustein, she had also been referred by her former dentist, Dr. Charles Weaver to see Dr. David M. Mizrahi, for purposes of having certain endodontic procedures, root canal work. While seeing Dr. Blustein, Dr. Mizrahi performed root canal work on two teeth, one of which was the upper right first bicuspid. Dr. Mizrahi had told Mrs. Rees that there was a 50 percent chance that she would need a root canal done on that tooth; nonetheless, she wanted the crown tried out first before having to have root canal work done. This tooth presented special problems for Dr. Blustein in that there was very little tooth left for the cast pin to set against. Dr. Blustein installed a crown on the subject tooth, but the root canal was subsequently necessary to be performed. Another root canal was performed on a third tooth of Mrs. Rees; however, this root canal work was done while the patient was seeing a Dr. Robert Williams, D.D.S.
During the pendency of Mrs. Rees' treatment by Dr. Blustein she began to have problems with the crowns falling off, the initial occasion being while Dr. Blustein was trying out the temporaries and this temporary was reinserted by Dr. Watkins, D.D.S., a dentist at Jacksonville Beach, Florida. In March of 1974, the crown on the upper right first bicuspid fell off and was recemented by Dr. Blustein. A couple of months later this same crown fell out and was recemented by Dr. Robert Williams. Shortly, before seeing Dr. Robert Clarke in March or April, 1975, this same crown and another crown fell off.
At a point in time when Mrs. Rees was seeing Dr. Mizrahi for the root canal work, she determined to see Dr. Roy F. Clarke, Jr. upon the basis of a referral which had been made by Dr. Mizrahi. To Dr. Clarke's recollection, this referral was made for treatment of a maxillary right second bicuspid tooth that was not being retained. Dr. Clarke worked on the upper right first bicuspid tooth spoken of before, by rebuilding the foundation and making a provisional crown. The case was then turned over to Dr. Robert Williams at the request of the patient. While treating Mrs. Rees, Dr. Clarke prepared the radiographs which are Petitioner's Exhibit #8, as mentioned before, and made a clinical examination. The clinical examination revealed advanced periodontal disease in
the posterior teeth, in which the level of disease was between 6 and 7 millimeters in probe depth. There was bleeding and puss formation in the gum area with severe occlusion. The upper right first bicuspid tooth had a perforation in the side of the root below the gum line. There was a pin perforation in the outside of the lower left first molar. There was leakage around the crowns and recurrent caries, with generally poor margination.
Specifically, there was poor margination in the upper left as shown by the letter B on Petitioner's Exhibit #8, and space left filled with cement closing off the possibility of the healthy gum tissue surviving. On the lower right hand side, as shown by the letter C in Petitioner's Exhibit #8, there were thick margins, irritated gum and bone. On the upper right, as shown by the letter D in Petitioner's Exhibit #8, there were thick margins on the distal of the upper right first molar, with cement closing off the area of that proximal space. The problems with the margins were causing problems of retention of the teeth. The crowns that were in place were felt to be of such quality as to need replacing, based upon Dr. Clarke's testimony. Respondent's Exhibit #5 is a copy of the office records kept by Dr. Roy F. Clarke, Jr., on the patient Sarah Rees.
Bill Soforenko came to see Dr. Blustein about his dental problems and Dr. Blustein told Mr. Soforenko that he had periodontal disease. Dr. Blustein then sent Mr. Soforenko to see Dr. A. Robert Romans, D.D.S., specializing in periodontics. Dr. Romans saw Mr. Soforenko on January 11, 1974 and at the time of his examination found that the patient had several missing teeth, inflammatory periodontal disease and the need for extensive periodontal therapy and substantive restorative work. Discussion of these needs was entered into with Dr. Blustein by correspondence of January 28, 1974, from Dr. Romans to Dr. Blustein, a copy of this correspondence being Petitioner's Exhibit #2, admitted into evidence. In addition, Dr. Romans took certain oral radiographs and on February 5, 1974, discussed those teeth to be removed with Dr. Blustein, the preparation for periodontal treatment, the need for the replacement of temporary bridges, and other matters. Dr. Romans determined that the upper left incisor number 9, and the upper left first permanent molar, number 14, should be removed and an upper acrylic provisional splint placed in the entire upper arch to be used as temporary stabilization until the periodontal disease could be controlled and subsequent disease could be broken down, before allowing Dr. Blustein to make a final splint of porcelain to gold. Dr. Blustein installed a provisional splint and on July 10, 1974, Dr. Romans took out the splint and under local anesthesia performed subgingival curettage, after which the splint was replaced. Between July, 1974 and December 6, 1974 the remainder of periodontal treatment was performed including surgery and this was the last time the provisional splint was seen by Dr. Romans. The periodontal disease seen by Dr. Romans was generalized moderate to severe in a chronic state, identified as compound periodontitis which was caused by bacteria and bacteria by-products. The surgery performed by Dr. Romans was a full thickness mucoperiosteal entry, in which the upper arch was done August 6, 1974 and the lower arch was done on September 30, 1974.. The worst teeth of Mr. Soforenko had been removed prior to the surgery. After December 6, 1974, Dr. Romans referred Mr. Soforenko back to Dr. Blustein for the construction of the permanent splint device. When Dr. Blustein saw Mr. Soforenko, the temporary had started to decompose and Dr. Blustein placed the permanent splint device, as soon as possible, to achieve stability within the patient's mouth. At the time this was done, the patient's mouth was red and inflamed and the patient had not been doing home care to the knowledge of Dr. Blustein. Dr. Blustein anticipated that Mr. Soforenko would return to Dr. Romans for whatever attention was necessary to the gums of the patient, and made an appointment for Mr. Soforenko to return for a bite adjustment.
On June 9, 1975 Mr. Soforenko was seen by Dr. Romans for evaluation of the restorative work and recall prophlaxis and polishing, together with oral hygiene instructions. At that point the permanent splint had been constructed and installed by Dr. Blustein, this splint being a 14 unit device with eleven crowns and three missing teeth. The teeth found in the splint are as shown in Petitioner's Exhibit #3, admitted into evidence, which is a letter written from Dr. Romans to Dr. Blustein discussing the quality of the splint. On that same date certain photographs were made of some of Mr. Soforenko's teeth in the splint, to include all those teeth in the splint except numbers 10, 11, and 13. These photographs are Petitioner's Exhibits #4 - #7, admitted into evidence. Petitioner's Exhibit #4 shows the upper eight anterior teeth and accompanying gingival unit as it pertains to the permanent porcelain fused-to-gold splint. The photographs depict quite severe marginal irritation and inflammation, the margins are rough, thereby harboring bacterial plaque and promoting an inability to clean the teeth properly. The margins are very thick in all the teeth in the splint and the depth of these margins is shown in Petitioner's Exhibits #5 - #7, which evidence a periodontal probe placed in the gingival sulcus. In Petitioner's Exhibit #5 the probe is placed in the margin of the upper central incisor, number 8, and the margin is approximately one millimeter thick. The probe being utilized in that photograph is a blunt instrument as opposed to a sharp explorer instrument. This probe is a University of Michigan no. 0, with William's markings. Petitioner's Exhibit #6 shows the upper right lateral incisor, number 7, with the periodontal probe in place. Petitioners Exhibit #7, shows the periodontal probe placed in the upper right cuspid, number 6. The margin in Petitioner's Exhibit #6 is between 1 millimeter and 1-1/2 millimeter in thickness, and the margin in Petitioner's Exhibit #7 is between 1/2 millimeter and a millimeter thick. All other teeth within the splint by Dr. Roman's observation had similar problems in margination, as shown in Petitioner's Exhibits #5 - #7. The photographs also show a redish serus fluid, which is an exudate, indicating the inflammation of the gums. Dr. Blustein did not see Mr. Soforenko after the June 9, 1975 visit to Dr. Romans and when Dr. Romans saw Mr. Soforenko on July 9, 1975, the condition of the splint was the same as found on June 9, 1975.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause.
The testimony offered by Dr. A Robert Romans in the form of a proffer at the time of the hearing will be admitted.
That testimony offered by the experts, to wit: practicing dentists, on the basis of a proffer of their impression of the requirements for establishment of the legal standards within Chapter 466, F.S., pertaining to the terms gross ignorance and incompetence, malpractice, and wilful negligence, shall not be admitted either as legal conclusions or ultimate facts.
Testimony offered on the basis of a proffer by the experts, to wit: dentists and dental hygienist which attempted to describe the Respondent's conduct in allowing an unlicensed person to perform certain duties spoken of in the accusation, as being "unlawful" conduct is inadmissible because that testimony constitutes a conclusion of law.
Based upon the facts established in this cause, it is concluded as a matter of law that from January, 1975 until December, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Victoria Lynn Bandosz, who
during said time routinely and customarily performed certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein, specifically, the removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), and the adjustment of dentures, said acts being in violation of s. 466.02(4) and 466.24(3)(e), F.S. The Petitioner has failed to establish that the acts performed by Victoria Lynn Bandosz while in the employ of Dr. Richard Blustein from January, 1975 until December, 1975 specifically the application of orthodontic plastic brackets are a violation of s. 466.02(4) or 466.24(3)(e), F.S.
Based upon the facts established in this cause, it is concluded as a matter of law that from January, 1975 until August, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Janet Amato, who during said time routinely and customarily performed certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein, specifically, the removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus (commonly known as "sealing"), and the adjustment of dentures, said acts being in violation of s. 466.02(4) and 466.24(3)(e), F.S. The Petitioner has failed to establish that the acts performed by Janet Amato, while in the employ of Dr. Richard Blustein from January, 1975 until August, 1975, specifically, the application of orthodontic plastic brackets are a violation of s. 466.02(4) or 466.24(3)(e), F.S.
Based upon the facts established in this cause, it is concluded as a matter of law that on or about December 23, 1974, Dr. Richard Blustein did carelessly and mistakenly remove several teeth from Sean McAfee, a minor, when in fact said teeth should have been removed from Kerry McAfee, sister of Sean McAfee, said acts being in violation of s. 466.24(3)(c)(d), F.S. The aforementioned acts do not constitute a violation of s. 466.24(2).
Based upon the facts established in this cause, it is concluded as a matter of law that prior to December 2, 1974, Dr. Richard Blustein treated Helen Rosen and improperly designed, constructed and installed a 7 unit splint in the mouth of Helen Rosen in violation of s. 466.24(2), F.S., and 466.24(3)(c), F.S. The aforementioned design, construction and installation of the 7 unit splint does not constitute a violation of s. 466.24(3)(d), F.S. Dr. Richard Blustein's treatment of Helen Rosen prior to December 2, 1974, does not show that he failed to diagnose and/or properly treat advanced periodontal disease, in violation of s. 466.24(2), or 466.24(3)(c)(d), F.S.
Based upon the facts established in this cause, it is concluded as a matter of law that from June of 1974 until December, 1974, Dr. Richard Blustein failed to provide and maintain a reasonably sanitary conditions about his person in that he, on occasion, failed to wash his hands between patients and would place his hands about the mouth of the second patient after seeing the first patient in violation of s. 466.24(3)(1), F.S.
Based upon the facts established in this cause, it is concluded as a matter of law that during 1974 and 1975, that the treatment which Dr. Richard Blustein performed on Milton Lane in constructing and installing a set of upper and lower dentures, notwithstanding the problems of fit and adjustment, does not constitute a violation of s. 466.24(2) or 466.24(3)(c)(d), F.S.
Based upon the facts established in this cause, it is concluded as a matter of law that prior to March 17, 1975, Dr. Richard Blustein treated professionally. Sarah Rees and while treating her or attempting to treat said Sarah Rees, prepared and installed crowns which were inadequate in design,
construction, retention and installation and placed several inadequate restorations, in violation of s. 466.24(3)(c), F.S. The preparation and installation of these crowns and the further design, construction, retention and installation and placement of the several inadequate restorations, did not constitute a violation of s. 466.24(3)(d), F.S.
Based upon the facts established in this cause, it is concluded as a matter of law that the act by Dr. Richard Blustein prior. to March 17, 1975 in which he was professionally treating Sarah Rees does not show that he failed to diagnose and/or properly treat periodontal disease, in violation of s. 466.24(3)(c)(d), F.S.
Based upon the facts established in this cause, it is concluded as a matter of law that during 1975, Dr. Richard Blustein treated Bill Soforenko and during the treatment of said Bill Soforenko, prepared, constructed and installed a porcelain to gold full arch splint, which was entirely inadequate and unacceptable in preparation, design, construction and installation, in violation of S. 466.24 (2), and 466.24 (3)(c), F.S. These facts as shown do not constitute a violation of s. 466.24(3)(d), F.S.
It is recommended that license NO. 3716 to practice dentistry held by the Respondent, Richard Blustein D.D.S., with the Florida State Board of Dentistry be revoked for violation of Chapter 466, F.S. however, the said revocation should be withheld pending satisfactory completion of five years probation, during which time the Respondent must satisfactorily comply with all requirements of law pertaining to his profession as a dentist.
DONE and ENTERED this 31st day of January, 1977, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
S. Thompson Tygart, Jr., Esquire 609 Barnett Regency Tower
Regency Square
Jacksonville, Florida 32211
Albert Datz, Esquire
320 Southeast First Bank Building
231 East Forsyth Street Jacksonville, Florida 32202
State of Florida
Department of Professional and Occupational Regulations
Division of Professions Board of Dentistry
c/o Mrs. Charlotte Mullens Executive Director
2009 Apalachee Parkway
Suite 240
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION DIVISION OF PROFESSIONS, BOARD OF DENTISTRY
FLORIDA STATE BOARD OF DENTISTRY,
Petitioner,
vs. CASE NO. 76-700
RICHARD BLUSTEIN, D.D.S.,
Respondent.
/
FINAL ORDER
Pursuant to notice, this cause came before the Florida State Board of Dentistry on April 16, 1977, in Ft. Lauderdale, Florida, for consideration by the Board of the Recommended Order entered by Charles C. Adams, Hearing Officer, Division of Administrative Hearings, on January 31, 1977. Respondent, represented by counsel, appeared before the Board. After reviewing the complete record accompanying the Recommended Order and considering the statements offered in Respondent's behalf, the Board opted to adopt the Findings of Fact contained in the Recommended Order, attached hereto as Exhibit "A" and incorporated herein by reference, as Findings of Fact of the Board, except for the following modification:
On page 12, the second paragraph is amended to reflect that the Board by its accusation did not allege that any conduct of Respondent had resulted in infections to his patients. Accordingly, said paragraph is amended to state: During this period and at all other periods in which testimony was offered, there was no report of any infection within patients. Nor, does the Board allege such infections occurred.
The Board also adopts the Conclusions of Law as contained in the Recommended Order as the Conclusions of Law of the Board except for the following modifications:
Paragraph 7 of the Conclusions of Law is modified and amended to read: "Based upon the facts established in this cause, it is concluded as a matter of law that on or about December 23, 1974, Dr. Richard Blustein did carelessly and
mistakenly remove several teeth from Sean McAfee, a minor, which in fact said teeth should have been removed from Kerry McAfee, sister of Sean McAfee, said acts being in violation of s. 466.24(2) and s. 466.24(3)(c) & (d), Florida Statutes.
Paragraph 8 is amended to read: "Based upon the facts established in this cause, it is concluded as a matter of law that prior to December 2, 1974, Dr. Richard Blustein treated Helen Rosen and improperly designed, constructed and installed a seven-unit splint in the month of Helen Rosen in violation of s. 466.24(2) and 466.24(3)(c), Florida Statutes. The aforementioned design, construction and installation of a seven-unit splint does not constitute a violation of s. 466.24(3)(d), Florida Statutes. Dr. Richard Blustein's treatment of Helen Rosen prior to December 2, 1974, does show that he failed to diagnose and/or properly treat an advanced periodontal disease in violation of 466.24(2) or s. 466.24(3)(c) & (d), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law as modified by the Board, the Board found that Richard Blustein, D.D.S., had violated the Dental Practice Act to the extent set forth in the Recommended Order as amended; and the Board accepts the recommendation of the hearing officer that the license to practice dentistry held by Respondent, Richard Blustein, D.D.S., be revoked for violation of Chapter 466, Florida Statutes. However, the Board rejects the recommendation that said revocation be withheld pending satisfactory completion of five (5) years probation. Rejection of the probation recommendation is based, in part, on the Board's finding as contained in its modifications to Paragraphs 7 and 3 of the hearing officer's Conclusions of Law, of additional violations of the Dental Practice Act. Additionally, the Board finds that the hearing officer's recommendation does not cite nor is based upon competent and substantial evidence offered in mitigation of Respondent's conduct. In particular, the Board finds that the violations found in Paragraphs 5, 6 and 9 of the Conclusions of Law were continuous over long periods of time, and that no remedial action was taken by Respondent in respect to those matters until the time the accusation instituting this proceeding was filed. Finally, the Board, comprised of seven (7) experienced and practicing dentists, strongly feels that it is more qualified to judge the actions of the Respondent and decide the sanctions to be imposed, and further feels that the violations of which Respondent has been convicted are extremely serious and appear to show a pattern of wrongful conduct on his part.
THEREFORE, it is ORDERED that the license to practice dentistry of Richard Blustein, D.D.S., is hereby revoked effective this date.
DONE AND ORDERED this * day of May, 1977.
*Undated Agency Final Order was filed with DOAH on June 30, 1977.
J. C. GWYNN, JR., D.D.S. CHAIRMAN, BOARD OF DENTISTRY
Copies to:
S. THOMPSON TYGART, JR., ESQUIRE 609 Barnett Regency Tower
Regency Square
Jacksonville, Florida 32211 Attorney for Board of Dentistry
RICHARD BLUSTEIN, D.D.S.
417 St. James Building Jacksonville, Florida 32202
ALBERT DATZ, ESQUIRE
320 Southeast First Bank Bldg. Jacksonville, Florida 32202 Attorney for Dr. Blustein
| Issue Date | Proceedings |
|---|---|
| Jun. 30, 1977 | Final Order filed. |
| Jan. 31, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 31, 1977 | Agency Final Order | |
| Jan. 31, 1977 | Recommended Order | Revoke license of Respondent, but stay for five-year probation for numerous violations of statutes. |
