Judges: R. T. CARPENTER
Agency: Department of Health
Latest Update: Sep. 04, 1981
Summary: Respondent didn't use proper degree of care in fitting dentures, which demonstrates incompetence. Other charges were not proven. Recommend suspension/education.
80-0392.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 80-392
)
RAY B. LONDON, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Tampa, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, on June 30, 1981. The parties were represented by:
APPEARANCES
For Petitioner: Carol L. Gregg, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Joseph W. Clark, Esquire
Post Office Box 3324 Tampa, Florida 33601
On February 4, 1980, a four-count Administrative Complaint was filed against Respondent. At the commencement of hearing Petitioner voluntarily dismissed Count IV of the Administrative Complaint leaving Counts I, II and III at issue.
Count I alleged that Respondent agreed to fit Rose Edwards with an upper and lower denture; that said dentures did not fit properly in Ms. Edwards' mouth and caused her pain and discomfort; and, that Respondent's treatment of Ms.
Edwards demonstrated incompetence in violation of Section 466.028(1)(y), Florida Statutes (1979).
Count II alleged that Respondent agreed to fit Lila Andrews with an upper and lower denture for $190.00 to include the dentures, adjustments and relining, if necessary; that Respondent charged Ms. Andrews for adjustments contrary to his agreement; that said dentures did not fit properly and caused Ms. Andrews pain and discomfort; that Respondent's treatment of Ms. Andrews demonstrated incompetence in violation of Section 466.028(1)(y), Florida Statutes (1979); and, that Respondent's additional fees to Ms. Andrews constituted misconduct in violation of Section 466.028(1)(u), Florida Statutes (1979).
Count III alleged that Respondent contracted with Grace McMichael for an upper denture; that said upper denture did not fit properly and caused Ms.
McMichael pain and discomfort; and, that Respondent's treatment of Ms. McMichael demonstrated incompetence in violation of Section 466.028(1)(y), Florida Statutes (1979).
Petitioner presented as witnesses, Rose Edwards, Lila Andrews, Grace McMichael, Dr. Deuel Christian and Dr. Rupert Q. Bliss. Respondent presented Dr. Joseph Venable and himself. Respondent offered Exhibits R-1, R-2 and R-3 which were received into evidence.
The parties filed proposed findings of fact and conclusions of law. To the extent these proposed findings of fact are not reflected herein, they are rejected as being either irrelevant or not supported by the record.
FINDINGS OF FACT
Respondent is a licensed dentist practicing in Holiday, Florida. He has practiced dentistry for approximately 30 years and has limited his practice to prosthetics (dentures) since 1974.
Doctors Christian, Bliss and Venable are likewise dentists licensed and practicing in Florida. On the basis of education and experience, each was qualified as an expert witness in the filed of dental prosthetics.
In determining whether a denture meets or falls below the minimum standard of acceptability, several technical factors are considered. The denture is placed in the patient's mouth to check area of coverage or the adaptation of the denture to the ridges of the mouth; the extension of the flanges or borders of the dentures; the occlusion of the teeth and bite; the extension of the dentures into the soft palate; esthetics and finally, speech.
The expert testimony of Dr. Christian in the evaluation of the dentures is accorded greater weight than that of Doctors Venable and Bliss since Dr. Christina conducted his examinations in May and June 1979, while Doctors Bliss and Venable performed their examinations some two years later. Changes in the patients mouth as well as the dentures over time make such later evaluations less meaningful.
Dr. London's testimony is entitled to greater weight than that of his complaining patients with respect to precise financial agreements and dates on which various services were performed. This determination is based on the fact that Dr. London maintained contemporaneous records on each patient (office charts) and was able to refer to these documents during the course of his testimony. However, the testimony of his former patients with respect to the difficulties they encountered with their dentures was not lacking in credibility.
On April 13, 1979, Rose Edwards went to Dr. London for treatment, and she agreed to pay $265.00 for a full set of porcelain dentures. On that same date impressions were taken for the construction of upper and lower dentures.
On May 4, 1979, Respondent delivered the upper and lower dentures to Ms. Edwards. On May 8, 1979, she returned to Respondent's office complaining that the two front teeth were crooked and too far apart. Respondent found that the two front teeth needed reversing and he did so.
On May 11, 1979, Ms. Edwards returned to Respondent's office complaining that she could not chew with the dentures, that the lower denture
would not stay in her mouth, that food particles would get under the lower dentures and that she had blisters in her mouth from the loose dentures.
Respondent adjusted the dentures.
On July 24, 1979, Ms. Edwards returned to Respondent and stated that she was still having a great deal of difficulty with the dentures delivered by Respondent. Respondent advised Ms. Edwards that he would make no further adjustments and dismissed her as his patient.
Dr. Christian conducted an examination of Ms. Edwards and the dentures prepared by Dr. London. He found that the borders of the lower denture were overextended into the cheek area. Dr. Bliss later examined Ms. Edwards and the same dentures and found the border areas to be greatly overextended into the soft tissue and muscle. The fact that the lower denture was overextended into the border areas caused it to lift up on movement of Ms. Edwards' mouth making it impossible for her to chew with the denture.
Dr. Venable also conducted an examination of Ms. Edwards and the dentures delivered by Respondent. He found that the upper denture was overextended in the posterior or postdam area, and the lower denture underextended in the posterior area.
The dentists generally agreed that Ms. Edwards was difficult to fit as she had poor ridges (required to support the denture) from having worn false teeth for many years. However, Ms. Edwards was relatively satisfied with her old dentures and returned to wearing them after being dismissed as a patient by Dr. London.
The testimony taken as a whole established that the dentures Dr. London prepared for Ms. Edwards were deficient in several respects and did not meet the overall standards of quality required as a licensed dentist. Dr. Bliss and Dr. Christian stated that their fee for fitting Mrs. Edwards with dentures would have been $800 and $1,000 respectively. However, none of the dentists who testified, including Dr. London, regarded his substantially lower fee of $265 as any excuse for less than satisfactory work.
On February 20, 1978, Lila Andrews went to Dr. London for treatment and agreed to pay Dr. London $290 for a full set of dentures, including adjustments and a relining, if required. On that same date impressions were made for the upper and lower dentures.
On March 27, 1978, Dr. London delivered upper and lower dentures to Ms. Andrews for insertion by her oral surgeon. On April 7, 1978, Ms. Andrews returned to Dr. London complaining of severe pain on her lower gum. An adjustment was made to the lower denture by Dr. London.
On May 18, 1978, Ms. Andrews returned to Dr. London complaining that she still could not put any pressure on her lower gums without a great deal of pain. In addition, she had developed sores in her mouth. At that time, Dr. London told her that he would remake the lower denture if Ms. Andrews agreed to pay Dr. London $45.00 to reline the upper dentures. Ms. Andrews agreed to pay him $45.00 since she wanted a usable denture, although she believed this charge was contrary to their agreement.
On June 12, 1978, Dr. London delivered a second lower denture to Ms. Andrews and on June 14, 1978, she returned for an adjustment and told Dr. London
that her dentures would not stay in her mouth and that her mouth continued to be extremely sore. Dr. London relined the lower denture.
On December 14, 1978, Ms. Andrews returned to Dr. London's office and informed him that her dentures still would not stay in her mouth and that the soreness had continued. Dr. London advised Ms. Andrews that he would reline the dentures but that he would charge her for this service. She refused to pay and received no further treatment from Dr. London.
Ms. Andrews currently uses the denture prepared by Dr. London but does so only with the aid of commercial fastening products. She also suffers a "lisp" which she did not previously have.
On May 9, 1979, Dr. Deuel Christian examined Ms. Andrews and the dentures delivered by Dr. London. His examination revealed the following:
The borders on the upper denture were grossly underextended into the soft tissue.
The upper denture was not extended far enough into the postdam area, that area of soft tissue along the junction of the hard and soft palate of the roof of the mouth.
The aesthetics of the upper denture were poor and the phonetics were such that the denture caused lisping.
The borders of the lower denture were underextended into the soft tissue and the tooth placement in relation to the gum was poor.
The bite relation between the upper and lower jaw was such that when the jaw was closed only four teeth made contact.
The grossly underextended borders, the underextension in the postdam area, the poor tooth placement in relation to the gum and the poor bite relationship resulted in a lack of stability (especially when chewing), lack of retention and soreness in the mouth.
Dr. Venable's examination revealed some deficiencies, but to a much lesser degree. His findings indicated that the flange on the lower denture was too short and the front section of the upper denture was too far forward. The testimony taken as a whole established was too far forward. The testimony taken as a whole established that the dentures Respondent prepared for Ms. Andrews failed to meet the minimum standards of quality required of a licensed dentist.
On November 1, 1978, Grace McMichael visited Dr. London to have an upper denture made. A primary impression was taken of Ms. McMichael's upper jaw on November 1, and the upper denture was delivered to her on November 13, 1978.
On November 17, Ms. McMichael returned to Dr. London's office complaining that the upper denture would not stay in her mouth, and the denture pressed into her nose when she bit down. Dr. London adjusted the denture.
Mr. McMichael returned to Dr. London's office on December 13, as she was not satisfied with her denture. Dr. London advised her that he could not do anything further for three months when her gums would be more stable. He recommended that she purpose adhesive to hold her denture in. Dr. London made
an appointment for Ms. McMichael on February 2, 1979, but she cancelled and never returned.
Dr. Christian's examination of Ms. McMichael and the denture delivered by Dr. London revealed that the borders on the denture were underextended, that there was no postdam area and that the phonetics were poor. The underextended borders and the lack of extension into the postdam area affected the stability and retention of the denture. The phonetics problems observed by Dr. Christian resulted in Ms. McMichael lisping. It should be noted that any changes that might have occurred in Ms. McMichael's mouth between December 13, 1978, and February 2, 1979, would have had no affect on the underextension of the denture or the phonetics and could not have been corrected by adjustment.
The examination by Dr. Venable revealed that the posterior border of the denture (throat area) and the planges (cheek area) were overextended. Although Dr. Venable did not consider these to be major deficiencies, the testimony as a whole established that the denture failed to meet the minimum standards of quality required of a licensed dentist.
CONCLUSIONS OF LAW
At the time of the acts alleged in the Administrative Complaint, Section 466.24, Florida Statutes (Supp. 1978), provided in pertinent part:
The board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he . . .
(2) Is grossly ignorant or incompetent; (3) Has been guilty of: (a) Misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession . . .; (c) Malpractice, (d) Willful negligence in the practice of dentistry or dental hygiene . . . .
Section 466.24, Florida Statutes (Supp. 1978), was replaced by Section 466.028, Florida Statutes (1979). The latter provision was a substantial reenactment of the former, and thus the prohibitions and disciplinary powers of Petitioner have remained in force without interruption. The current grounds for discipline include:
(u) Fraud, deceit or misconduct in the practice of dentistry or dental hygiene . . . .
(y) Being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance including, but not limited to, the under- taking of diagnosis and treatment for which the dentist is not qualified by training or experience.
The foregoing portions of Section 466.028, Florida Statutes (1979), adequately cover the allegations against Dr. London.
Petitioner demonstrated that Dr. London was guilty of incompetence in his treatment of the complaining witnesses, and that the dentures he prepared
did not meet minimum standards of acceptability. However, the allegations of fraud, deceit and misrepresentation were not supported by a preponderance of evidence and Respondent must be found not guilty with respect to those portions of the Administrative Complaint.
Section 466.028(1)(y), Florida Statutes (1979), defines incompetence as the failure to meet the minimum standards of performance in diagnosis and treatment when measured against prevailing peer performance. The evidence that Respondent repeatedly constructed and delivered dentures that did not fit properly and did not adequately perform the service for which they were intended, that Respondent failed to rectify the deficiencies after numerous opportunities to do so, and that these dentures did not meet minimum standards when measured against prevailing peer performance, demonstrates that Respondent is guilty of incompetence within the meaning of Section 466.028(1)(y), Florida Statutes (1979), and is guilty of incompetence within the meaning of Section 466.24(2), Florida Statutes (Supp. 1978).
In addition to suspension and revocation, Section 466.028(2), Florida Statutes (1979), authorizes imposition of an administrative fine, issuance of a reprimand, restriction of the authorized scope of practice, and:
Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requiring the licensee to attend continuing education courses or demonstrate his competency through a written or practical examination or to work under the supervision of another licensee.
Section 466.028(2)(e), Florida Statutes (1979).
Under the law in force at the time of the acts in question, only suspension or revocation was authorized, however.
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That Respondent be found guilty of incompetence in the practice of dentistry. It is further
RECOMMENDED
That Petitioner suspend Respondent's license for a period of six months, but that five months of said suspension be waived provided Respondent agrees to take 12 hours of continuing education courses in prosthetics, and completes such work within the next 12 months.
DONE AND ENTERED this 4th day of September 1981, in Tallahassee, Florida.
R. T. CARPENTER Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of September 1981.
COPIES FURNISHED:
Carol L. Gregg, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Joseph W. Clark, Esquire Post Office Box 3324 Tampa, Florida 33601
Fred Varn, Executive Director Board of Dentistry
130 North Monroe Street Tallahassee, Florida 32301
The Honorable Nancy Kelley Wittenberg Secretary, Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 80-000392
Orders for Case No: 80-000392
| Issue Date |
Document |
Summary |
|
Sep. 04, 1981 |
Recommended Order
|
Respondent didn't use proper degree of care in fitting dentures, which demonstrates incompetence. Other charges were not proven. Recommend suspension/education.
|
