STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2669

)

RALPH C. ROBINSON, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division Of Administrative Hearings, on August 6, 1982, in Melbourne, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Tallahassee, Florida

For Respondent: Ralph C. Robinson represented himself

The Department of Professional Regulation filed a one-count Administrative Complaint against Respondent seeking to suspend or revoke or take other disciplinary action against the Respondent as licensee and against his license as a dentist under the laws of the State of Florida. The Respondent timely requested a formal hearing on the allegations contained therein. Accordingly, the issues for determination are whether Respondent is guilty of the allegations contained within the administrative Complaint and, if so, what disciplinary action should be taken against Respondent, if any.

Petitioner presented the testimony of Byron Raymond Beard, D.M.D., and Robert Joseph Durant. Additionally, Petitioner's Exhibits numbered 1, 3, 4, 5,

6 and 7 were admitted in evidence. Petitioner's Exhibit numbered 2, the deposition of Dr. Wayne M. Bennett, was not admitted in evidence since Petitioner only gave to Respondent in Miami two hours' notice that Dr. Bennett's deposition would be taken in Orlando.

Bobbie Jo Swanson testified on behalf of Respondent.

Only Petitioner desired to submit proposed findings of fact in the form of a posthearing proposed recommended order. Although given ten days from the filing of the transcript in which to file that proposed recommended order, Petitioner's proposed recommended order was filed late, and Respondent has objected to the undersigned's consideration thereof since it was filed late.

Since the undersigned requested the proposed recommended order, and since Respondent has neither alleged nor shown prejudice to him by consideration of that proposed order by the undersigned, Respondent's objection to the

undersigned reading that proposed order is hereby overruled. To the extent that any proposed findings of fact contained in Petitioner's proposed recommended order have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a dentist licensed by the State of Florida, having been issued license number DN0002113.

   
   

2. Between January 27, 1979 and March 22, 1980, Respondent provided dental diagnosis or treatment to Robert J. Durant in Respondent's dental office in Melbourne, Florida. Durant's first three visits, which occurred prior to August 4, 1979, were for the purpose of having Respondent re-cement Durant's bridge which had become loosened in his mouth.

   
   

3. On August 4, 1979, Respondent cleaned Durant's teeth and took a complete set of x-rays. Respondent recommended to Durant that he have 13 crowns placed on his upper teeth and that root canal therapy be performed on four of Durant's upper teeth. Respondent did not recommend to Durant that any of his upper teeth be extracted.

   
   

4. On August 4, 1979, the only appropriate diagnosis for Durant's upper teeth was extraction since the few remaining teeth he had were no longer capable of being restored since Durant had a severe case of periodontal disease and almost no bone remained for supporting any teeth. Respondent's diagnosis that Durant receive 13 crowns failed to meet minimum standards of diagnosis in that it ignored the severe case of periodontal disease which would continue if left untreated.

   
   

5. On March 22, 1980, Respondent performed root canal therapy on Durant's upper right cuspid, upper left central incisor, upper left lateral incisor, and an upper left molar. At that time, extraction of those teeth was the only appropriate course of treatment, and Respondent's treatment of those teeth with root canal therapy was not warranted.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

7. The Administrative Complaint filed against the Respondent herein alleges that Respondent has violated two separate statutory prohibitions. Since no evidence was introduced upon which a violation of Section 466.028(1)(z), Florida Statutes, could be based, only a violation of Section 466.028(1)(y), Florida Statutes, can be considered. Petitioner has proven Respondent guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance in diagnosing that Durant should have 13 crowns placed on his upper teeth, in diagnosing that Durant should have root canal therapy in four of his upper teeth, and by performing root canal therapy on Robert Durant. Respondent failed to consider that Durant's teeth were in such poor periodontal condition that they would not last much longer, that they were beyond being restored, and that they should have been extracted. No treatment was given or recommended by Respondent to deal with the severe periodontal disease suffered by Durant.

8. Petitioner has recommended that Respondent's license to practice dentistry be suspended for 60 days and that Respondent be required to pay an administrative fine of $1,000.00. Had Petitioner proven more of the allegations in the Administrative Complaint, Petitioner's recommendation would be appropriate. However, Petitioner did prove that Respondent ignored the overall condition of Durant's mouth in performing expensive therapies not necessarily likely to save Durant's remaining teeth.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT:

A final order be entered finding Respondent guilty of incompetence by failing to meet the minimum standards of performance, suspending Respondent's license to practice dentistry for 30 days, and requiring Respondent to pay an administrative fine of $1,000.00 by a date certain.

DONE and RECOMMENDED this 29th day of October, 1982, in Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1982.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ralph C. Robinson, D.D.S.

316 Ingraham Building Miami, Florida 33131

H. Fred Varn, Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002669

Orders for Case No: 81-002669