STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-716

)

ANTHONY J. BROWN, D.M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Pierce, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 18, 1980, and lasted until the following day.

By stipulation of the parties, the record was left open until September 8, 1980, for the filing of a deposition and certain letters, but the record was closed that date without the additional materials. Respondent submitted his proposed order on September 29, 1980, and petitioner's proposed findings of fact, conclusions of law, and recommended order were filed on September 30, 1980. The parties were represented by counsel:

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: Rupert Jasen Smith, Esquire

715 Delaware Avenue

Fort Pierce, Florida 33450

By administrative complaint dated December 11, 1979, petitioner charged that respondent, while he "was engaged in the practice of dentistry in a dental office . . . [in] Fort Pierce, Florida . . . during the month of December, 1977,

. . . [effected] composite restorations in five posterior teeth and [performed] other associated dental services"; but that he did do "negligent[ly] and careless[ly] . . . because he failed to properly prepare and complete the restorations . . . in that gross decay . . . was present in the teeth" which respondent failed to remove before "the fillings were placed in the teeth"; which "treatment . . . was below the minimum acceptable standards of his profession" making respondent "guilty of misconduct in his business affairs in such a manner as to bring discredit on the profession of dentistry, of malpractice, and of willful negligence in the practice of dentistry in violation of Section 466.24(3)(a)[,](c), and (d), Florida Statutes (Supp. 1978); and in violation of Section 466.028(1)(u) and (y) as amended, effective July 1, 1979."

In Count II, petitioner alleged that "during the period when Respondent was engaged in treating [Gregory Conran, a minor] Respondent failed to recognize and properly treat gross decay which had developed throughout the [patient's] mouth"; that "due to the Respondent's failure to properly treat the patient, two mandibular molars . . . were required to be extracted . . . [requiring] further

orthodontic treatment . . . [and that] restorations in other teeth . . . required retreatment"; that "Respondent was negligent . . . [and] the treatment rendered by Respondent was below the minimum acceptable standards of his profession"; and that respondent "has been guilty of misconduct in his business affairs in such a manner as to bring discredit on the profession of dentistry, of malpractice, and of willful negligence in the practice of dentistry in violation of Section 466.24(2), (3)(a)[,],(c), and (d), Florida Statutes (Supp. 1978) . . . [and] in violation of Section 466.028(1)(u) and (y) as amended, effective July 1, 1970."

In Count III, petitioner alleges that "during the period between November, 1978, through April, 1979, Mavis Smith was a patient of Respondent for the purpose of receiving composite restoration treatment to her lower left bicuspid, preparation and attachment of full crowns on three upper anterior teeth, root canal treatment for the lower right first bicuspid and to perform restorations in decayed teeth which were present throughout her mouth"; but that "Respondent was negligent in the treatment of the patient because Respondent failed to complete the root canal treatment for the lower right first bicuspid, and properly prepare the crowns on the three upper anterior teeth by fitting the crowns with open and overextended margins, inadequately prepared the lower left second bicuspid for composite restoration because no pins were placed in the tooth in order to hold the large filling in place, thus causing the filling to fall out and left decay present in other teeth which should have been removed prior to the insertion of the fillings"; on account of which respondent "has been guilty of misconduct in his business affairs in such a manner as to bring discredit on the profession of dentistry, of malpractice, and of willful negligence in the practice of dentistry in violation of Section 466.24(2), (3)(a)[,](c) and (d), Florida Statutes (Supp. 1978) . . . [and] in violation of 466.028(1)(u) and (y) as amended, effective July 1, 1979".

In Count IV, petitioner alleges that "Jonneaue Rout had been a regular patient of Respondent from 1965 until March, 1978, and had engaged Respondent for the purpose of providing preventive and periodic dental care and treatment"; but that "Respondent was negligent and careless in the dental services provided Jonneaue Rout because Respondent failed to properly diagnose, evaluate, and treat the patient in that he failed to properly diagnose, treat, or refer for further treatment, gum disease which was present and generalized throughout the patient's mouth and in need of peri[o]dontal treatment . . . [and] Respondent failed to recognize, diagnose, and treat decay which was present in the patient's teeth and which required additional dental treatment for the teeth"; that "Respondent's treatment . . . was below the minimum acceptable standards of his profession . . . [and made him] guilty of misconduct in his business affairs in such a manner as to bring discredit on the profession of dentistry, of malpractice, and of willful negligence in the practice of dentistry in violation of Section 466.24(2), (3)(a)[,](c), and (d), Florida Statutes (Supp. 1978) . . . [and] in violation of 466.028(1)(u) and (y) as amended, effective July 1, 1979."

In Count V, petitioner alleged that "Kriss Fisher had been a regular patient of Respondent's for approximately eleven years until June, 1979, and had engaged Respondent for the purpose of providing preventive and periodic dental care and treatment"; that respondent cleaned Ms. Fisher's teeth and filled a tooth on June 9, 1979; that "Respondent negligently and carelessly failed to properly fill that lower left third molar because [he] failed to remove all of the decay which was present in the tooth . . . [and] failed to diagnose, evaluate, and treat decay which was generalized throughout the patient's mouth but instead advised the patient that no other decay was present in her mouth after he had completed the restoration of the lower left third molar"; that

respondent, four years earlier, "prepared and fitted [crowns on Ms. Fisher] negligently and carelessly . . . because the crowns were seated with over- extended and open margins"; that this "treatment . . . was below the minimum acceptable standards of his profession . . . [and made him] guilty of misconduct in his business affairs in such a manner as to bring discredit on the profession of dentistry, of malpractice, and of willful negligence in the practice of dentistry in violation of Section 466.24(2), (3)(a)[,](c), and (d), Florida Statutes (Supp. 1978) . . . [and] in violation of 466.028(1)(u) and (y) as amended, effective July 1, 1979."

In Count VI, petitioner alleges that "during the months of September and October, 1978, Respondent removed decay and placed a filling in [Herbert Brooks'] upper right central incisor . . . [but] negligently and carelessly performed the restoration because Respondent failed to remove all decay present in the tooth [making] the filling . . . unstable"; that from 1966 until November, 1978, "Respondent was negligent and careless . . . because Respondent failed to properly diagnose, treat, or refer for treatment the gum disease which was generalized throughout [Mr. Brooks' mouth which was] in need of periodontal surgery"; that this "treatment . . . was below the minimum of acceptable standards of his profession . . . [and made him] guilty of misconduct in his business affairs in such a manner as to bring discredit on the profession of dentistry, of malpractice, and of willful negligence in the practice of dentistry in violation of Section 466.24(2), (3)(a)[,](c), and (d), Florida Statutes (Supp. 1978) . . . [and] in violation of 466.028(1)(u) and (y) as amended, effective July 1, 1979."

FINDINGS OF FACT

1. The parties stipulated that respondent is licensed as a dentist in Florida, having license no. 3721 and that, at all material times, he was engaged in the private practice of dentistry in a dental office at 311 South Eighth Street in Fort Pierce, Florida.

   
   

2. When her oldest daughter's tooth abscessed in 1964, Jonneaue Rout visited Dr. Brown's office for the first time. He became the Rout family dentist. Mrs. Rout and her thee children, including Karen, visited Dr. Brown regularly, sometimes more frequently than at six-month intervals. Mrs. Rout suffered several dental problems over the years, including toothaches, abscessed teeth, cavities, and sometimes fillings which fell out. She accepted every suggestion Dr. Brown made in connection with her dental health, or in connection with Karen's dental health. She and Karen brushed their teeth conscientiously. She rejected no suggestion for treatment of herself or of her daughter, Karen, on account of expense.

   
   

3. Until 1978, Karen had visited no dentist's office but respondent's. In early 1978, Karen Rout visited Drs. Starr and Barkett, orthodontists, to whom Dr. Brown referred her. At the orthodontists' offices, an x-ray film of her mouth was made, which revealed tooth decay. Before beginning their treatment of Karen, the orthodontists referred her to Dr. Dermody, a pedodontist, who first saw Karen on April 19, 1978. The pedodontist had four additional radiographs taken and found the overall condition of her mouth to be poor. He discovered decay in eight posterior teeth, including some five teeth in which respondent had placed white fillings as recently as, in one instance, five months earlier. Shallow cavities that had formed on two upper right molars may well have postdated Karen's last visit to respondent in December of 1977. But green, soft, gross decay underneath little white fillings in lower, left molars demonstrated that significant decay was present when respondent placed the

   fillings, as respondent himself conceded. Respondent testified that Karen squirmed while he was trying to work on her teeth.

   
   

4. Placing fillings in the presence of significant decay does not meet minimum standards of performance for the acceptable practice of dentistry, when measured against generally prevailing peer performance. If decayed matter is not removed before a filing is placed, the process of decay will continue and destroy more of the tooth. Moreover, decay will not hold the filling as well as enamel because it is softer than enamel. Disconcerted by her daughter's problems, Mrs. Rout sought out another general dentist for herself. She chose Dr. Strawn, who first saw her on June 30, 1978. At his instance, panoramic and bite wing x-rays were done on that date. He diagnosed periodontal disease, an inflammatory condition that may cause loss of bone tissue, and which had loosened at least one of Mrs. Rout's teeth. In accordance with his policy with respect to periodontal disease severe enough to cause erosion of supporting tissue or "pockets" deeper than four millimeters, Dr. Strawn referred Mrs. Rout to Dr. Cain, a periodontist.

   
   

5. Periodontal disease can cause the loss of perfectly healthy teeth. Its etiology is laid to plaque, the sticky, transparent, bacteria laden, mucus film that coats the teeth. These bacteria can cause inflammation and concomitant softening of the gums which then separate from the teeth giving the bacteria deeper access. Inflammation at deeper and deeper levels can lead ultimately to loss of the bone tissue supporting the teeth. Routine cleaning of the teeth is the most important prophylactic measure against periodontal disease.

   
   

6. Once the disease has caused erosion of supporting tissues to a depth of two or three millimeters, routine cleaning does not hinder further erosion, although stimulation from cleaning is good for the gums. When a "pocket" is four millimeters deep, some bone tissue has been lost and there is nothing a victim can do at home to extricate the accumulated plaque or calculus. By the time a "pocket" is 12 millimeters deep, the situation is not treatable. Periodontitis is diagnosed by observing the condition of the gums, measuring erosion around individual teeth with a calibrated probe, and by examining x- rays. A general dentist should be able to diagnose periodontal disease and should either treat it or refer the victim to a specialist.

   
   

7. On July 6, 1978, Mrs. Rout first visited the periodontist. At that time, her gums were reddish blue, swollen, and slow to rebound when indented. She had moderate to advanced, generalized periodontitis. Nine teeth were severely involved, with "pockets" ranging up to 12 millimeters in depth. The periodontal disease was chronic and had been present for at least ten years. Mrs. Rout lost one tooth from periodontitis after she began visiting the periodontist and has been given a "guarded prognosis" for four or five other teeth.

   
   

8. Dr. Brown was aware that Mrs. Rout had a periodontal problem to some extent when he first saw her, although he never made any indication on her chart of any periodontal condition. Her gums bled from time to time. He became aware that she had a degenerative bone condition, particularly in the upper left part of her mouth where he discovered a deep pocket in mid-1976. He told Mrs. Rout to use dental floss, and a water pick, to brush her teeth, and to have them cleaned regularly. Dr. Brown has never employed a dental hygienist in his office. He cleaned Mrs. Rout's teeth himself, cleaning the clinical crowns and removing all sub-gingival calculus he saw; he performed deep scaling. Dr. Brown does not consider himself an expert periodontist. He believed Mrs. Rout's

   financial situation was such that she could not afford a periodontist's fees, and he never referred her to a periodontist.

   
   

9. Dr. Brown conceded that he probably did tell Mrs. Rout everything was all right on her last visit to him. In addition to the periodontal disease, however, Dr. Strawn discovered widespread decay, missing fillings, and broken- down reconstructions when he examined Mrs. Rout some two months after Dr. Brown last saw her. These conditions existed at the time of Dr. Brown's last examination. At least one filling Dr. Brown placed in Mrs. Rout's mouth (in tooth No. 28) was placed in the presence of significant decay.

   
   

10. From about 1964 until July or August of 1979, Mavis Smith went regularly to Dr. Brown for dental care. During this period, except for one occasion in the fall of 1975, when she went to another dentist for a separate opinion, she consulted no dentist other than respondent. She visited Dr. Brown's office often, had cavities filled, teeth extracted, teeth cleaned, and on one occasion, had dental surgery. She invariably abided by Dr. Brown's recommendations and never refused any treatment because of expense. On one visit, Dr. Brown decided that root canal treatment was probably indicated for her lower right first bicuspid. He cut through the crown into the pulp chamber and found a partially viable nerve; ninety percent of the nerve was alive. He twice treated the tooth with paramonochlorophenol or Beechnut creosote, but, through oversight, never completed the root canal procedure by introducing a radiopaque solution into the cavity and sealing the cavity with a filling.

    
    

11. In April of 1979, Dr. Brown finished capping Ms. Smith's upper right lateral, upper right central, and upper left central incisors.

    
    

12. Later in 1979, Dr. Brown filled a cavity in Ms. Smith's lower left second bicuspid. When the filling fell out, Ms. Smithy decided that she had perhaps eaten too soon after the repair of her tooth and returned to Dr. Brown for a second reconstruction. This filling also fell out, taking a piece of enamel with it. Again, Dr. Brown filled the tooth. When the filling fell out a third time, Ms. Smith consulted another general dentist, Dr. Bancroft. Dr. Bancroft saw Ms. Smith for the first time on August 29, 1979, four weeks after Dr. Brown's third attempt at filling the lower left second bicuspid. On September 14, 1979, Dr. Bancroft removed the decay on which Dr. Brown had placed a filling on August 1, 1979, removed another filling which had been placed in the tooth by Dr. Brown on April 27, 1968, and placed one large filling in Ms. Smith's lower left second bicuspid.

    
    

13. In examining the caps on Ms. Smith's incisors, Dr. Bancroft noticed open and overhanging margins. A half-millimeter opening separated the margin of one cap from the margin of the tooth to which it had been cemented. The crowns did not fit properly and their placement was substandard work.

    
    

14. On September 26, 1979, Ms. Smith complained to Dr. Bancroft of pain and swelling in the vicinity of her lower right first bicuspid. She had an abscess. Although she told Dr. Bancroft that Dr. Brown had done a root canal procedure on the tooth, roentgenograms revealed that the procedure had not been completed, so Dr. Bancroft performed a root canal procedure on the tooth himself. This procedure was indicated; a pulpotomy would not have been appropriate.

    
    

15. Dr. Brown was Kris Fisher's family dentist for ten or eleven years until in September of 1979, she, too, left him for Dr. Bancroft. During the time Dr. Brown was her family dentist, Ms. Fisher went every six months for

    check-ups and for dental work Dr. Brown recommended. After every visit, she asked whether she was "all right", and Dr. Brown answered affirmatively. Her last visit to Dr. Brown was for the filling of a cavity in her lower left backmost molar. Dr. Brown placed a filling which subsequently fell out. Ms. Fisher returned for replacement of the filling on June 8, 1979 but went to see Dr. Bancroft after the replacement also fell out.

    
    

16. On September 9, 1979, Dr. Bancroft discovered a fractured mesial occlusal filling in Ms. Fisher's lower left backmost molar. The mesial portion of the filling was missing. There was extremely extensive decay in the area of the fractured part of the filling which indicated inadequate preparation for the filling and dental work which failed to come up to local and state minimally acceptable standards for the practice of dentistry. There was also decay in other areas of Ms. Fisher's mouth, requiring dental treatment in several areas; seven teeth had decay.

    
    

17. From 1966 or 1967 until the latter part of 1978, Herbert C. Brooks relied exclusively on Dr. Brown for dental care, except for the two occasions he went to Dr. Skripak for extractions, on Dr. Brown's referral. Mr. Brooks only has five or six upper teeth, three of which are in bad shape. He has a partial upper denture and will likely soon need a complete upper denture. In the fall of 1978, Mr. Brooks went to respondent because a ten-year-old filling in a front tooth fell out. A week after Dr. Brown replaced the filling, the replacement also fell out. Mr. Brooks returned to Dr. Brown, who, on the second visit, placed a pin in the tooth to augment the filling, which was still in place at the time of the final hearing.

    
    

18. Dr. Brown replaced another old filling for Mr. Brooks, this one in his upper right central incisor. Before he did so, Dr. Brown suggested a crown or addition to the partial plate instead of another filling but agreed with Mr. Brooks that the expense might not be warranted in view of the condition of Mr. Brooks' teeth. Dr. Brown advised Mr. Brooks that the filling might not stay. Mr. Brooks' bite is such that his lower teeth hit the backs of his upper incisors, creating considerable pressure. Three or four days after it had been put in, the replacement fell out. Dr. Brown replaced the replacement. Three or four days later, the second replacement also fell out. Mr. Brooks then sought out another general dentist, Dr. Deery.

    
    

19. Mr. Brooks complained to Dr. Deery on November 10, 1978, of the broken filling in the upper right central incisor. Dr. Deery caused a periapical x-ray to be taken and advised Mr. Brooks that root canal treatment and a crown were in order. He found gross decay in the tooth, which decay was present at the time Dr. Brown placed the filling, and replaced after it fell out the first time.

    Mr. Brooks said he needed something done quickly so he could continue his work as a salesman. Dr. Deery acquiesced and placed a filling in the incisor which amounted to a half to two-thirds of the clinical crown involved. Dr. Brown had not used a pin to augment the filling, although in Dr. Deery's opinion, he should have because there was not adequate retention for the filling. Dr. Deery used two pins.

    
    

20. Dr. Deery recommended that Mr. Brooks see a periodontist which, however, Mr. Brooks never did. While Mr. Brooks was under his care, Dr. Brown cleaned his teeth occasionally. Dr. Deery found numerous areas of decay in Mr. Brooks' mouth, in addition to generalized periodontal disease.

    
    

21. Respondent regularly refers patients who have need of multiple root canal treatments, who need orthodontic care, and who require extraction of teeth

    to appropriate specialists. Dr. Skripak is the oral surgeon to whom Dr. Brown refers patients in need of oral surgery. In an average week, Dr. Skripak sees five or ten patients referred to him by Dr. Brown. Dr. Skripak has seen 2,000 different patients referred to him by Dr. Brown over the years. Unless a patient brings x-rays with him adequate for his purposes, Dr. Skripak causes x- rays to be made. In every instance, he examines x-rays. On only two or three occasions over a ten-year period did Dr. Skripak tell Dr. Brown that he felt something had been missed. Dr. Skripak averred that he would advise any referring dentist of a problem and has advised others. According to Dr.

    Skripak, Dr. Brown's work, in general, ranges from standard or adequate to excellent and is, in general, up to the standards obtaining in St. Lucie, Indian River, Martin, and Okeechobee Counties.

    
    

    CONCLUSIONS OF LAW

    
    

22. In its proposed findings of fact, conclusions of law, and recommended order, petitioner abandons the allegations of Count II in their entirety and the allegations of Count V respecting crowns Dr. Brown did for Ms. Fisher.

    
    

23. Under the law in effect at the time of the occurrences, petitioner had authority to "suspend or revoke the license of any dentist" upon a showing that he:

    
    

    1. Is grossly ignorant or incompetent;

    2. Has been guilty of:

       (a) Misconduct either in his business or personal affairs which would bring discredit upon the dental profession; . . .

       1. Malpractice;

       2. Willful negligence in the practice of dentistry or dental hygiene . . . Section 466.24, Florida Statutes (Supp. 1978).

          
          

          Also pleaded in the administrative complaint with which these proceedings began were provisions of subsequently enacted, existing law:

          
          

          1. The following acts shall constitute grounds for which the disciplinary action specified

       in subsection (2) may be taken;

       (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 undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience. Section 466.028, Florida

       Statutes (1979).

       
       

       Simple malpractice was grounds for disciplinary action under prior law, but demonstrated incompetence is required under existing law.

       
       

24. Petitioner did not establish that respondent has been guilty of fraud, deceit, "misconduct in the practice of dentistry", or "[m]isconduct . . . in his

    business . . . affairs." The "misconduct" contemplated by both the new and the old statutes does not include malpractice or incompetence, which are treated in separate provisions. Some moral impropriety is contemplated, and nothing of the kind was shown in the present case. Respondent's failure to complete the root canal procedure he began on Ms. Smith's bicuspid, while evincing a disturbing carelessness, did now show any attempt to cheat Ms. Smith.

    
    

25. The evidence that respondent has repeatedly been guilty of failing to remove significant decay before placing fillings in several patients' teeth showed respondent to be "guilty of incompetence by failing to meet the minimum standards of performance in . . . treatment when measured against generally prevailing peer performance", within the meaning of Section 466.028(1)(y), Florida Statutes (1979), to be guilty of gross incompetence within the meaning of Section 466.24(2), Florida Statutes (Supp. 1978), and to be guilty of malpractice within the meaning of Section 466.24(3)(c), Florida Statutes (Supp. 1978), and to be guilty of willful negligence in the practice of dentistry within the meaning of Section 466.24(3)(d), Florida Statutes (1979). Respondent's failure to carry through on a root canal procedure he began, apparently through simple inattention, and his failure to diagnose decay in several instances, also showed him to be guilty of conduct proscribed by Sections 466.24(3)(c) and (3)(d), Florida Statutes (Supp. 1978), and Section 466.028(1)(y), Florida Statutes (1979). In these respects, petitioner has proven grounds for disciplinary action under both the old and the new statutes.

    
    

26. Petitioner did not prove clearly and convincingly that the crowns with which respondent fitted Ms. Smith's teeth or the treatment he gave Mrs. Rout and Mr. Brooks for their periodontal disease failed to meet "minimum standards of performance in . . . treatment when measured against generally prevailing peer performance." Section 466.028(1)(y), Florida Statutes (1979).

    
    

27. 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 licenses 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 provision 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 petitioner suspend respondent's license until he shall demonstrate his competency by passing the written and practical examinations administered to applicants for initial licensure as dentists.

DONE and ENTERED this 8th day of October, 1980, in Tallahassee, Florida.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

Rupert Jasen Smith, Esquire 715 Delaware Avenue

Fort Pierce, Florida 33450

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980.

Docket for Case No: 80-000716

Orders for Case No: 80-000716