STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2670

)

RICHARD SABROSKE, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly.designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on March 5, 1982, in Margate, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Richard Sabroske, D.O.S., pro se

6221 Margate Boulevard

Margate, Florida 33063

ISSUE

Whether respondent's license to practice dentistry should be revoked or otherwise disciplined on grounds: (1) that he incompetently performed root canal surgery, and (2) that he accepted and performed professional responsibilities which he knew or should have known he was not competent to perform.

BACKGROUND

On August 31, 1981, petitioner Department of Professional Regulation, Board of Dentistry ("Department"), filed an administrative complaint charging respondent Richard Sabroske, D.D.S. ("respondent"), with incompetently performing root canal surgery and performing a dental service which he knew or should have known he was not competent to perform.

Respondent disputed the charges and requested a Section 120.57(1) hearing.

On October 28, 1981, the Department forwarded this case to the Division of Administrative Hearings. Hearing was thereafter set for March 5, 1982.

At hearing, the Department called as its witnesses: Leon Seaver, Frank King, Dr. Mervyn Dixon, and Richard Sabroske; it offered Petitioner's Exhibit 1/ Nos. 1 through 7 into evidence, each of which was received. Respondent testified in his own behalf and offered Respondent's Exhibit 1/ No. 1 into evidence.

Posthearing proposed findings of fact and conclusions of law were filed by the Department on April 6, 1982. The parties agreed that the 30-day period for submittal of the recommended order would begin to run on the date of their post- hearing filings.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT I.

1. Respondent has been licensed to practice dentistry in Florida since January, 1977. At all times material to this proceeding, he practiced dentistry at his office located at 6221 Margate Boulevard, Margate, Florida. (Testimony of Sabroske; P-2, P-7.)

   
   

   II.

   
   

2. On June 4, 1980, respondent performed root canal surgery on the lower left second molar (tooth No. 18) of his patient, Leon Seaver. (Testimony of Sabroske; P-1.)

   
   

3. Root canal surgery is an endodontic procedure for removal of the diseased nerve or pulp of a tooth. Access to the pulp chamber is obtained by drilling a hole through the tooth's surface. The pulp chamber is then inspected and the root canals are located. The pulpal or nerve tissue is manually removed from the canals by twisting small files of increasing size. The nerve pulp has been removed when tooth filings are detected and the dentist feels increased resistance to the twisting of the file; moreover, an x-ray is taken which shows that the file has reached the apex of the root and completely filled the canal. The hollowed canals are then sterilized by medication and filled with gutta percha or silver point. Then the chamber access or opening is restored. (Testimony of Dixon.)

   
   

4. In performing root canal surgery on Leon Seaver, respondent drilled too deeply into the tooth and perforated the floor of the pulp chamber between the two roots of tooth No. 18. He also failed to remove the pulpal tissue from the canal of the mesial root; diseased tissue thus remained in the mesial root canal. (Testimony of Dixon, Sabroske; P-4, P-6.)

   
   

5. Seaver, complaining of continuous pain from the tooth, returned to respondent's office on June 16, 1980. Respondent took x-rays but failed to detect the perforation of the tooth floor and pulpal tissue remaining in the mesial canal. He then permanently filled the tooth with gutta percha point-- which filled the intraradicular area between the two roots instead of the mesial root canal, where the diseased pulpal tissue remained. (Testimony of Seaver, Dixon; P-1.)

   
   

6. Seaver continued to experience pain and, eventually, the tooth had to be extracted. (Testimony of Seaver.)

   III.

   
   

7. Respondent's performation of the tooth's pulpal floor, his failure to remove the pulpal tissue from the canal in the mesial root on June 4, 1980, and his failure to detect and correct the incomplete removal of the pulpal tissue on June 16, 1980, deviates from minimum dentistry standards of diagnosis and treatment which generally prevail among his professional peers. (Testimony of Dixon, Sabroske.)

   
   

   IV.

   
   

8. Respondent graduated from dental school at Ohio State University in 1965. He was dismissed from dental school at the end of the spring quarter of 1963 because he had not met the clinical requirements for graduation. This was due, in part, to the fact that he was married and working part time while attending dental school. In the autumn quarter of 1964, he returned to school and successfully completed the courses required for graduation. (Testimony of Sabroske; P-7.)

   
   

9. Although respondent is not a specialist in endodontics, he performs endodontic procedures. Endodontics is considered a part of the practice of general dentistry; dentists are trained to perform ordinary endodontic procedures. Endodontics is not a significant portion of respondent's practice. (Testimony of Dixon, Sabroske.)

   
   

10. In the autumn quarter of 1962, respondent failed a course in endodontics at Ohio State University dental school. There was no evidence that he failed any of the seven other endodontics courses he took at dental school; he earned an A and B in two of those courses. (P-7.)

    
    

11. Because of the difficulties he encountered in the endodontics procedure which he performed on Leon Seaver, respondent--on his own initiative-- took a continuing education course on endodontics offered by the University of Florida College of Dentistry in November, 1980. (Testimony of Sabroske; R-1.)

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981).

    
    

13. A dentist's license may be revoked or otherwise disciplined for:

    
    

    1. 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.

    2. Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional

       responsibilities which the licensee knows or has reason to know that he is not competent to perform. 466.028(1)(y) and (z) , Fla.

       Stat. (1981).

       
       

14. License revocation proceedings are penal in nature. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). The term "substantial competent evidence" takes on vigorous implications. Bowling, supra at 171. The agency must prove its charges by evidence "which is indubitably as 'substantial' as the consequences [for the licensee]." Id. at 172.

    
    

15. Here, the Department has presented sufficient evidence to establish that respondent's performance of root canal surgery on Leon Seaver--with subsequent follow-up treatment--constitutes incompetence within the meaning of Section 466.028(1)(y), supra. But, the charge that he violated Section 466.028(1)(z), by accepting and performing work that he knew or should have known he was not competent to perform, was not established and should be dismissed for failure of proof.

    
    

16. The penalties which may be imposed for violating Section 466.028 include license revocation, suspension, imposition of a fine of up to $1,000 per violation, and placing the licensee on probation with conditions such as requiring the licensee to attend continuing education courses. 466.028(2), Fla. Stat. (1981). Revocation is a serious and drastic penalty which should be used only in the most flagrant cases. See, Taylor v. State Beverage Department, 194 So.2d 321, 329 (Fla. 2d DCA 1967); Pauline v. Borer, 274 So.2d 1, 2 (Fla. 1973). Recognizing this, the Department contends that an appropriate penalty would impose a one-month suspension, a $1,000 fine, and require the completion of 25 hours of continuing education courses in endodontics. Such a combination of penalties is appropriate to the nature and extent of respondent's misconduct.

    
    

17. The Department's proposed findings of fact which are incorporated in this recommended order are adopted; otherwise, they are rejected as unnecessary to resolution of the issues or unsupported by the necessary quantum of evidence.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

1. That respondent's license to practice medicine be suspended for one (1) month;

   
   

2. That he be required to pay an administrative fine of $1,000; and

   
   

3. That (following the one-month suspension) respondent be placed on probation for one (1) year, subject to the condition that, during that time, he successfully complete twenty-five (25) hours of recognized continuing education courses in endodontics. (For purposes of satisfying this condition, respondent should be given credit for the continuing education course he completed at the University of Florida on November 1, 1980.)

DONE AND RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 16th day of April, 1982.

COPIES FURNISHED:

Richard Sabroske, D.D.S. 6221 Margate Boulevard

Margate, Florida 33063

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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: 81-002670

Orders for Case No: 81-002670