STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2307

)

KENNETH T. RISO, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 24, 1981, in Naples, Florida. By stipulation of the parties, the hearing officially closed March 30, 1981. 1/

APPEARANCES

For Petitioner: Deborah J. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: J. Blan Taylor, Esquire

3174 East Tamiami Trail Naples, Florida 33942

STATEMENT OF THE ISSUES

The issues presented herein are: (1) whether or not the Respondent, Kenneth T. Risco, D.D.S., permitted an unlicensed dental employee (Wilbert E. Bolyea) to examine and diagnose the mouth of Dr. Erwin Ochs for treatment or treatment planning in violation of Chapters 466.024(4)(b) and 455.026(1)(c), Florida Statutes (1979); whether Respondent, thereby aided, assisted, procured or advised an unlicensed person to practice dentistry or dental hygiene contrary to Chapter 466.028(1)(g), Florida Statutes (1979); whether Respondent knowingly permitted Bolyea to take an impression for the purpose of fabricating an intra- oral restoration, to wit: upper and lower dentures, in violation Chapter 466.024(1)(a) and (c), Florida Statutes (1979); whether Respondent thereby delegated professional responsibilities to a person with knowledge or reason to know that such person did not qualify by licensure to perform such tasks in violation of Section 466.028(1)(aa), Florida Statutes (1979); whether Respondent permitted Bolyea to engage in the examination, diagnosis and treatment planning of conditions within the human oral cavity audits adjacent tissues in conjunction with the supplying of dentures to patients in Respondent's office in violation of Chapter 466.026(1)(c), Florida Statutes (1979), and thereby

knowingly employed a person to perform duties outside the scope allowed such persons in violation of Chapter 466.024(4)(b), Florida Statutes (1979).

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found.

   
   

2. By its eight (8) count Administrative Complaint filed herein on November 6, 1980, the Petitioner seeks to revoke, suspend or take disciplinary action against Respondent as a licensee and his license as a dentist under the laws of Florida.

   
   

3. Respondent, Kenneth T. Risco, is a licensed dentist having been issued license No. DN6971, since approximately August of 1975.

   
   

4. On approximately January 7, 1980, Respondent because professional associated with Wilbert Bolyea (Bolyea) whom he employed as an expanded duty assistant.

   
   

5. In summary fashion, the complaint allegations are that Respondent, during the period January 7 through 18, 1980, permitted Bolyea, his expanded duty assistant, to engage in the examination, diagnosis, treatment planning and the taking of impressions for the purpose of fabricating prosthetic dentures and the adjusting of such dentures in violation of Chapter 466, Florida Statutes (1979).

   
   

6. Petitioner's proof herein consists of testimony adduced from a deposition of Respondent taken on January 18, 1980, in Collier County Circuit Court, Case No.79-1029 captioned Bolyea v. Wittenberg; Dr. Erwin Ochs, who is now deceased, testimony was received as an unavailable declarant pursuant to Chapter 90-803(18), Florida Statutes; and testimony taken during the hearing herein on February 24, 1981, in Naples, Florida.

   
   

7. Ruppert Bliss, a licensed dentist and a member of Petitioner's Board, has been practicing dentistry since approximately 1956. Dr. Bliss is a member of several professional associations and expressed familiarity with the terms of art peculiar to the dental profession. Dr. Bliss was received as an expert in prosthetic dentistry in this proceeding.

   
   

8. According to Dr. Bliss, the treatment and diagnosis of a patient with dental problems should proceed as follows. First, the patient is examined by a visual inspection of the patient's pathological signs. A working relationship is then developed with the patient and a study model is made to follow and coordinate subsequent diagnostic procedures. This includes a study of a patient's tissue contours which aids in making a model to trace registrations and to effect proper adjustments which affect a patient's ability to bite. Throughout the procedure, the patient is constantly examined and a final adjustment is made to ensure that the dentures, as constructed and fitted, enable the patient to bite properly and that the bone and tissue conditions are not adversely affected.

   
   

9. Dr. Bliss described the difference between the terms of art in the dental profession known as a "remediable" versus nd "irremediable" task. A "remediable" task is one that can be reversed whereas an "irremediable' task can not be reversed. Dr. Bliss included in the list of irremediable tasks, the

   adjustment of prosthetic appliances since they affect a patient's bite; may worsen bone or tissue conditions and also impacts on a patient's mannerisms. The diagnosis of a denture problem and its adjustment is an irremediable task. (Tr. 41)

   
   

   Respondent's Defense

   
   

10. Dr. Riso is a 1975 graduate of the University of Pennsylvania. Upon graduation, he became licensed to practice in the states of Florida, New Jersey and Pennsylvania. Respondent's spouse, Dr. Rebecca Weber, is also a dentist licensed to practice in Florida and practices jointly with Respondent.

    
    

11. Respondent, during the instant hearing on February 24, 1981, denied permitting Bolyea or any unlicensed person employed by him to practice dentistry or to examine patients without any supervision by him. Respondent became professionally associated with Bolyea on January 7, 1980, as an expanded duty assistant. In keeping with this employment relationship, Respondent and Bolyea entered into an employment agreement which delineated the procedures under which Bolyea was authorized to carry out his employment functions. (See Respondent's Exhibit No. 1)

    
    

12. According to Respondent, he first learned of the services performed for Dr. Ochs by Bolyea, at the contempt hearing on January 21, 1980.

    
    

13. Pursuant to the employment agreement, Bolyea was authorized to greet patients; take patients' dental history; determine the need for dentures and report back to Respondent. (Tr. pp. 53 and 67) Respondent therefore claims that he was unaware of any dental adjustments by Bolyea during times material to the allegations herein. (Se Respondent's Exhibit No. 1 and Tr. p 69) When Dr. Ochs visited Respondent's office for treatment on January 11, 1980, the employment relationship in effect between Respondent and Bolyea had been effective approximately two days. Dr. Ochs was not seen or examined by Respondent. On January 11, 1980, Dr. Ochs, a former dentist for approximately

    35 years, visited Respondent's denture clinic in Naples for an examination and, if necessary, to have dentures made. After being greeted by an office assistant, Bolyea began talking to Ochs about the price and quality or dentures. At the outset of the examination by Bolyea, Ochs explained that he only needed an upper denture made since his lower denture was all right. Bolyea donned a pair of rubber gloves; removed Ochs' upper denture and placed it on a try. Bolyea then examined Ochs' mouth; massaged his lower gum with his finger; remarked that his ridge was very flat and had been pounded to almost nothing. (Petitioner's Exhibit 7, pp 3 and 4) After a mirrored view of Ochs' oral cavity while in the protruding position, Bolyea remarked that "there is contact anteriorly and posteriorly, but in the space between there, you have quite a space. That is why you are pounding your ridge to pieces, because your bite is not right." Bolyea advised Ochs that he could not help him with only a lower denture and that his only solution was to construct a complete set of dentures to correct his bite. Thereafter, Bolyea took a wax bite of Ochs' mouth.

    
    

14. According to Respondent, the study model is made by Bolyea after a patient is initially screened. Thereafter, examines the model and a custom tray is made from which a final impression is made by Respondent. Respondent physically delivers the appliance after the third appointment.

    
    

15. At some point during the course of fabricating the dentures, Respondent examines the patient. This occurred, in the usual case, during the second or third visit.

16. Respondent's testimony during the contempt hearing held on January 21, 1980, is as follows. Patients desiring dentures were required to make three visits and at some point during the diagnostic procedures of the patient (by Bolyea), Respondent diagnosed and examined the patient. Respondent considered that Bolyea's actions in feeling dr. Ochs' gums and advising him as to the condition of the ridges included the corrective measures he would employ to correct his bite were "physical observations" rather than an examination and diagnosis. Respondent authorized Bolyea to make those determinations. (Petitioner's Exhibit 6 at p 48) Respondent did not check to determine the corrections of Bolyea's judgment as to the necessity for a new set of dentures. (Petitioner's Exhibit 6 at p 48)

    
    

17. Respondent also stated that a patient was free to, and in fact would, return to his office if he was dissatisfied with the dentures (as fitted or adjusted by Bolyea). However, Respondent agreed that an improperly adjusted denture could result in irreversible harm to the muscles and soft tissues of the mouth. In this regard, Respondent's and Ms. Chesser's testimony during the hearing, to the effect that he (Respondent) was unaware of Respondent making adjustments to patients' dentures is contrary to Respondent's testimony on January 21, 1980. Respondent's sworn statements, when he was not under the pressure of disciplinary sanction by the Petitioner is considered more credible than the subsequent testimony herein when the threat of disciplinary action existed. To the extent that his testimony herein differs from the version offered by him during the prior proceedings, the more recent testimony is rejected. Likewise, Ms. Chesser's testimony to the effect that Respondent was unaware of Bolyea's actions relative to the adjustments of dentures is contrary to Respondent's testimony on January 21, 1980, and is also rejected.

    
    

18. Joyce Chesser was employed by Messr. Dolyea from approximately July 1979, through March of 1980. She was hired as an assistant and officer manager. Based on Bolyea's procedures, dentures were completed during a span of not less than four weeks subsequent to a patient's first visit. Bolyea made adjustments to patients' dentures without Respondent's knowledge, permission or authorization (Tr. 76 thru 82). Bolyea also examined patients and went behind Respondent's back to adjust dentures which were already prepared prior to any employment relationship with Respondent. 2/

    
    

19. Respondent's wife, Dr. Rebecca Weber, was also familiar with the employment relationship between Respondent and Bolyea. Dr. Weber denied that Respondent permitted Bolyea to examine or otherwise diagnose patients.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

    
    

21. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

22. The authority of the Petitioner is derived from Chapter 466, Florida Statutes.

    
    

23. Respondent is a licensed dentist authorized to practice dentistry in the State of Florida. As such, Respondent is subject to the guides of Chapter 466, Florida Statutes, and the implementing rules and regulations.

24. Section 466,003, Florida Statutes (1979), defines "dentistry," in relevant part as the examination, diagnosis and treatment planning for conditions within the human oral cavity; the taking of an impression of the human jaws; adjusting or attempting to adjust a prosthetic denture; and diagnosing, proscribing or treating, or professing to diagnose, prescribe or treat disease, pain, deficiency of the oral-maxillofacial region.

    
    

25. By delegating the diagnosis for treatment or treatment planning to other than a licensed dentist, Respondent violated Section 466.024(4)(b), Florida Statutes (1979). Dr. Rubert Bliss' testimony to the effect that Bolyea's actions constituted diagnosis for treatment and treatment planning, which was admittedly authorized by Respondent, was unrebutted during the hearing.

    
    

26. Respondent's action by knowingly employing Mr. Bolyea, to perform duties outside the scope permitted by Chapter 466, Florida Statutes, or the rules of the Board of Dentistry amounted to conduct by Respondent violative of Chapter 466.026(1)(c), Florida Statutes (1979). Respondent's admissions to the effect that the authorized Mr. Bolyea to examine and diagnose the condition of patients' mouths and determine his or her need for dentures without double checking that decision or without Respondent's participation as relates to adjustments of dentures by Bolyea, is the basis upon which this finding is made.

    
    

27. Respondent, by advising Mr. Bolyea, an unlicensed person to practice dentistry, violated Section 466.028(1)(g), Florida Statutes (1979). Respondent's authorization of Mr. Bolyea to perform the functions of examining, diagnosing and treatment planning of conditions within the human oral cavity; adjusting a prosthetic denture and diagnosing, prescribing or treating the deformity, deficiency or physical condition of the human oral-maxillofacial region supports the above finding.

    
    

28. Respondent's delegations to Mr. Bolyea, the function of taking impressions which were used to create a "study model" used by Respondent and essential to him in the denture fabrication process amounts to conduct violative of Section 466.024(1)(a), Florida Statutes (1979).

    
    

29. Respondent's action in delegating the above responsibilities to Mr. Bolyea, a nonlicensed dentist, amounts to an unlawful delegation in violation of Section 466.028(1)(aa), Florida Statutes (1979).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Petitioner, Board of dentistry, enter a final order herein finding the Respondent guilty of the allegations set forth in Counts 1 through 8 of the Administrative Complaint filed herein and suspending the Respondent's license to practice dentistry in the State of Florida for a period of six (6) months.

RECOMMENDED this 1st day of May 1981, in Tallahassee, Florida.

JAMES E. BRADWELL

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 1st day of May 1981.

ENDNOTES

1/ The parties were afforded leave to submit proposed memoranda which was considered by me in preparation of this Recommended Order. To the extent that said proposed findings contained in the memoranda are not incorporated herein, they were deemed irrelevant or not otherwise supported by competent and substantial evidence of record. Chapter 120.58(1)(a), Florida Statutes.

2/ As noted in the paragraph next above, Ms. Chesser's testimony respecting Respondent's lack of knowledge as to Bolyea's action is not credited.

COPIES FURNISHED:

Deborah J. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

J. Blan Taylor, Esquire 3174 East Tamiami Trail Naples, Florida 33942

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF PROFESSIONS, BOARD OF DENTISTRY

KENNETH R. RISO, D.D.S.

19 Bald Eagle Drive CASE NO. 80-2307(DOAH)

Marco Island, Florida License No. 6971

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board pursuant to section 120.57(2), Florida Statutes, on Saturday, September 11, 1982, in Orlando, Florida, for a determination of whether the Respondent has complied with all of the terms and conditions contained in the Board's order rendered on August 20, 1981 in the case of Department of Professional Regulation, Board of Dentistry v. Kenneth T. Riso, D.D.S., Case No. 80-2307 (DOAH). The Petitioner was represented by Salvatore Carpino, Esquire and the Respondent appeared on his own behalf.

Upon consideration of the Board's order rendered on August 20, 1981 testimony of the Respondent, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED:

FINDINGS OF FACT

1. On August 20, 1981, the Board rendered a final order in the matter 01 Department of Professional Regulation, Board of Dentistry v. Kenneth T. Riso, D.D.S., Case No. 80-2307 adopting the hearing officer's findings of fact and conclusions of law. However, the Board rejected the recommended penalty of a six (6) month suspension.

   
   

2. The Board imposed a six (6) month suspension but withheld the last ninety (90) days and the Respondent was placed on probation for this ninety (90) day period. The order required the Respondent to make a personal appearance before the Board at the conclusion of this six (6) month period for the purpose of demonstrating that he had complied with the order.

   
   

3. At the hearing, the Respondent appeared and testified that he had complied with the requirements of the Board's order as he did not practice dentistry in any manner from September 1, 1981 through November 30, 1981. He asked that his license be reinstated to a status of good standing.

   
   

4. The Department of Professional Regulation stated that it had no evidence to contradict the Respondent's testimony and that it did not object to a complete reinstatement of Respondent's license.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the express reservation of jurisdiction contained in its order rendered on August 20, 1981.

   
   

2. The uncontradicted testimony of the Respondent clearly demonstrates that he has complied with all of the terms and conditions of the Board's August 20, 1981 order and that he is entitled to have his licensee reinstated to the status of good standing.

   
   

3. There is competent, substantial evidence to support the Board's findings and conclusions.

WHEREFORE, it is ORDERED AN ADJUDGED that the Florida dental license of the Respondent, Kenneth T. Riso, be and is hereby reinstated to the status of good standing on the ground that he has complied with all of the terms and conditions of the order off the Board rendered August 20, 1981.

DONE AND ORDERED this 1st day of October, 1982.

WILLIAM R. DANNAHOWER, D.D.S.

Designated Presiding Officer Board of Dentistry

cc: Sal Carpino, Esquire

130 N. Monroe Street Tallahassee, Florida 32301

Kenneth T. Riso, D.D.S.

Docket for Case No: 80-002307

Orders for Case No: 80-002307