As grounds therefor it is alleged that on or about November 11, 1975 Respondent was guilty of gross negligence, incompetence, malpractice, and/or willful negligence in the treatment or lack of treatment of his patient, Nathan Wolfson. Five witnesses, including the Respondent, were called by Petitioner, six witnesses were called by Respondent, and ten exhibits were admitted into evidence. One exhibit, after being marked Exhibit 7 for identification was withdrawn, and this exhibit number was reassigned.
One incident occurring subsequent to the hearing comes within the purview of Section 120.66 F.S. and requires comment. On or about September 12, 1977, Stephen McAliley, the attorney representing Dr. Ross at the hearing, telephoned me to advise that he had just learned Ross, without McAliley's prior knowledge or advice, had mailed a letter to me to which was attached letters from several of Ross' patients. McAliley asked what he could or should do about this ex parte communication. At the time the letter had not been received by me and I advised him to send a copy of Ross' letter with enclosures to S. Thompson Tygart, Jr., the attorney who represented the Dental Board at the hearing.
After receiving Ross' letter I called Tygart to see if he had received a copy and was advised that he had. The letter from Ross dated September 9, 1977 has been read but the attached letters were not. Subsequently a letter dated September 16, 1977 from James L. Fay, D.M.D. was received. This letter I also
have not read. These ex parte communications are attached as Exhibits 11 and 12 respectively. Neither exhibit was considered by me in preparing the Findings of Fact, Conclusions of Law, and Recommendations which follow.
Stanley E. Ross, D.D.S. is licensed to practice dentistry in Florida, and at all times relevant herein was so licensed. His practice is limited to periodontics and Ross is a board certified periodontist.
In 1975 Ross was associated with the Professional Association owned by Dr. Marvin M. Rosenberg, also a board certified periodontist. Offices were occupied in Boca Raton and West Palm Beach with each dentist spending part of each week at each office. Although they practiced under the same roofs it was very infrequent one would treat a patient of the other.
Nathan Wolfson, a 61 year old retiree, was referred to Rosenberg and Ross for examination and possible periodontal treatment by Dr. Medoff, a dentist engaged in general practice. Following routine pre-operative procedures, extensive periodontal surgery was performed by Ross on Wolfson on Friday, November 7, 1975. Numerous incisions were made in the gums, tissue and bone was removed, and the tissue sutured back to the jaw. The operation lasted three to four hours and Wolfson departed the dental office ambulatory. Ross had prescribed Percodan for Wolfson to take for pain expected following the extensive surgery. On Sunday Wolfson began experiencing pain in the neck and across the shoulders and his wife called Ross. When the latter inquired and was advised that Wolfson was not taking the Percodan that had been prescribed Ross told her that the medication had been given him to take care of the pain and to start using them.
Sunday night or Monday morning part of the packing fell out and on Monday Wolfson went to the Boca Raton office to have this replaced. Ross was not in the Boca Raton Office that day and a dental hygienist replaced the packing. One witness testified that Dr. Rosenberg was seen coming out of the operatory with Wolfson and was overheard telling Wolfson that the pain in his neck and across the shoulders was very normal following such surgery. Rosenberg denied ever seeing or talking to Wolfson.
On Tuesday November 11, 1975 Wolfson was still uncomfortable and again returned to the Boca Raton office. He told one of the dental assistants that he was experiencing pain in the jaw, neck, across the shoulders and "pressure in the chest". She advised him to describe these pains to Ross. Shortly thereafter Ross came in, looked in Wolfson's mouth and listened to Wolfson's complaints of pain in the neck, jaw and across the shoulders. He gave Wolfson 1 cc of Demerol and 1 cc of Tigan, both intramuscular. Ross remained with Wolfson
10 or 15 minutes until the Demerol took effect and Wolfson's pain eased. Wolfson then departed in company with his wife and his wife's sister-in-law. Wolfson occupied the back seat of their car and the two ladies sat in front. Shortly after leaving Ross' office Mrs. Wolfson turned to look back at her husband and saw he was dead. A passing car directed them to Boca Raton Community Hospital where Wolfson was pronounced dead on arrival after emergency resuscitation steps had failed.
An autopsy was subsequently performed on Wolfson and the cause of death reported as "coronary insufficiency following severe atherosclerosis of coronary arteries". The right coronary artery was described as showing "more than 95 percent narrowing of the lumen by atherosclerosis 2.0 cm away from the coronary
ostium." A medical witness described the autopsy report as showing such extensive cardiovascular disease as to have made Wolfson a poor risk for heart surgery.
On September 2, 1975 Wolfson received a physical examination from Dr. Robbins and the EKG taken was considered normal. Other tests performed at this examination were just outside the range of normalcy and Dr. Robbins would have rated Wolfson's physical condition as fair at the conclusion of this examination. He considered Wolfson physically fit for the periodontal surgery performed. Wolfson had a follow-up appointment with Dr. Robbins on November 10, 1975 which was not kept.
Mrs. Wolfson, the widow of Nathan, testified that Nathan Wolfson at his November 11, 1975 visit to Ross told Ross that he was experiencing pain in the neck, jaw, back, chest, and down both arms. Ross denied being told of any pain other than in neck and jaw. Shortly after Wolfson's death Mrs. Wolfson and her son visited Dr. Medoff and told him that Wolfson's complaints of pain following his oral surgery was in the back of his neck and shoulder area. No mention was made to Medoff of any pain in the chest or pain radiating down the arms. Boca Raton Community Hospital records of Nathan Wolfson on November 11, 1975 contain the notation "wife states: left dentist office and suddenly had SOB."
Again following Wolfson's death, Mrs. Wolfson, in discussing Wolfson's death with Dr. Robbins, mentioned Wolfson having pains following his oral surgery in the jaw and shoulder. She asked Dr. Robbins if pain in the jaw could be from a heart attack and he told her "yes, sometimes."
A medical witness specializing in emergency medicine opined that pain in the jaw, neck and across the shoulders four days following extensive oral surgery would not be recognizable as stemming from cardiac problems as all of these symptoms could be attributed to the oral surgery.
Another medical witness whose specialty is internal medicine testified it would be extremely unusual for pains across the back and down both arms to lead to medical practitioner to the conclusion the patient was experiencing cardiac failure. He described classic pre-cardia pain to be in chest radiating down left arm. It also can be from chest radiating down the back. He identified pain across shoulders down back and down both arms as that resulting from a dissecting aneurism of the aorta. No evidence, other than Mrs. Wolfson's testimony, showed Ross was ever made aware Wolfson had pain in the chest or pain radiating down either or both arms. As noted above, shortly after Wolfson's death his widow made no mention of pain in chest or arms to the doctor and dentist to whom she spoke.
Pain in the jaw can be indicative of cardiac problems when other significant cause for such pain is not present. Here it is obvious there were other significant causes of pain. Three to four hours in the dentist chair with head back, jaws extended having tissue and bone cut away would undoubtedly result in pain in the jaw for several days.
From the evidence presented regarding the condition of Wolfson's cardiovascular system as shown by the autopsy performed, it is questionable that Wolfson would have survived even had medical treatment been available and administered at the time he experienced his actual attack.
In the building occupied by Ross in Boca Raton two medical offices were also present. One is occupied by internists and the other office has
doctors engaged in family practice. Ross has in the past consulted with both of these offices when medical problems occurred during or prior to performing surgery on his dental patients. These consultations and referrals involved anesthetics as well as actual medical symptoms.
Respondent Ross is a well trained and gifted periodontal surgeon. He is held in very high esteem by his colleagues and peers. He serves as visiting professor and guest lecturer of periodontics at the University of Pennsylvania, Boston University, Loyola University (Chicago), Emory University, and Medical College of Georgia. He has lectured at various dental meetings in the U. S., Europe, Mexico, and South America.
Here the ultimate factual issue is whether or not from the symptoms presented by Nathan Wolfson to Ross during his office visit on November 11, 1975 Ross should, in the exercise of the degree of care and knowledge expected of a dentist, have recognized that Wolfson was experiencing cardiac problems and required the immediate services of a medical practitioner. From the factual situation as noted in the above findings that question must clearly be answered, no.
The evidence presented at this hearing was tainted by animosity and avarice as well as close friendship. The calibre of the latter was more impressive than the former.
CONCLUSIONS OF LAW
Section 466.24 F.S. provides, inter alia, that the board of dentistry shall suspend or revoke the license of any dentist when it is established that he:
"(2) Is grossly ignorant or incompetent;
Has been guilty of:
Malpractice;
Willful negligence in the practice of dentistry."
Since the primary, if not only, thrust of the complaint filed in this case relates to the actions of Ross as they effected the subsequent death of Wolfson, the ultimate determination to be made is did the action of Ross result from gross ignorance, incompetence, malpractice or willful negligence? Obviously Respondent is not grossly ignorant or incompetent. If he were it is difficult to comprehend how he could be in demand as a visiting professor, lecturer, etc. Suffice it to say all evidence points to the antithesis of ignorance and incompetence.
Willful negligence connotes much more than failure to use ordinary care or the care required of a professional. Willful negligence imports a reckless and wanton disregard for the consequences of the acts of the party so charged. No such evidence was presented here.
Malpractice, as that term is used with reference to physicians and surgeons, is a practice of a physician or surgeon that is bad or unskillful and results in an injury to his patient. 25 Fla. Jur., Physicians and Surgeons Section 75. The same definition would apply to dentists. Thus malpractice implies the failure of a dentist to exercise the required degree of care, skill and diligence ordinarily possessed by other dentists. Thus, malpractice is not far removed from ordinary negligence as compared to gross negligence.
If the ordinary dentist would be expected, from the facts presented to Ross by the statements and appearance of Nathan Wolfson on November 11, 1975, to recognize that Wolfson was experiencing cardiac problems and needed immediate medical attention, then it would have been malpractice for Ross to fail to so recognize the symptoms.
From the evidence presented it is doubtful that a practicing physician, or even a specialist in emergency medicine had he been present, would have recognized that Nathan Wolfson was to die from heart failure shortly after leaving Ross' office on November 11, 1975. A fortiori a dentist, even one with the special training and qualifications possessed by Ross, could not be expected to recognize the imminence of Wolfson's heart attack. Accordingly malpractice on the part of Ross has not been shown. Since the science of medicine is not an exact science a physician (or dentist) is not to be held liable for an honest error of judgment. He is to be allowed a wide range in the exercise of his judgment and discretion, and in order to hold him liable it must be shown that the course that he pursued was clearly against the course recognized as correct by his profession. Burgeois v. Dade County, 99 So.2d 575 (Fla. 1957).
Due to the paucity of evidence of malpractice or negligence on the part of Ross, no mention has been made regarding the burden of proof and whether the Petitioner sustained this burden. Suffice it to say that under the preponderance of the evidence standard prescribed for administrative tribunals by Florida Department of HRS v. Career Services Commission, 289 So.2d 412 (Fla. App. 1974) Petitioner failed to sustain this burden.
From the foregoing it is concluded that Stanley E. Ross, D.D.S. is not guilty of all offenses charged in the accusation. It is therefore,
