STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-579

)

BERT ONG, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on September 27, October 27 and December 7, 1982 in Orlando, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Richard J. R. Parkinson, Esquire

602 East Central Boulevard Orlando, Florida 32801

BACKGROUND

In this proceeding, Petitioner, Department of Professional Regulation, Board of Dentistry, seeks to take disciplinary action against the dentist license of Respondent, Bert Ong, for allegedly violating certain provisions of Chapter 466, Florida Statutes. In its administrative complaint dated February 2, 1982, Petitioner has generally charged that (1) Respondent was guilty of incompetence, malpractice and willful negligence in the practice of dentistry while constructing a set of dentures for a patient between March 14, 1978 and February 14, 1979 [466.24(2), (3)(c) & (d), F.S. (1977) and (Supp. 1978)]; (2)

Respondent filed a claim on a patient's dental insurance carrier for items of treatment that he did not actually perform [466.028(1)(u), F.S. (1979)]; and (3) Respondent filed a claim with a patient's dental insurance carrier for items of treatment that he did not actually perform [466.24(3)(a), F.S. (1977)]. By motion granted on July 13, 1982, Petitioner has added a fourth charge against Respondent wherein it is alleged that Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance while treating a patient in 1979 and 1980 [466.028(1)(g), F.S. (1979)].

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the charges. The

matter was referred to the Division of Administrative Hearings by Petitioner on March 2, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated March 31, 1982, the final hearing was scheduled for May 24, 1982 in Orlando, Florida. At the request of Petitioner, the matter was rescheduled to September 27, 1982 at the same location.

A motion to suppress and motion to dismiss filed by Respondent were denied by the undersigned by order dated April 20, 1982. The motions were renewed at the outset of of the hearing on September 27, 1982; a ruling on the same was reserved pending the submission of written argument by the parties.

At the final hearing, Petitioner presented the testimony of Dr. Lewis S. Earle, Mae Sanger, Suzanne Frericks McNeil, Fay Floyd, Debbie Coney, Barbara Aligood, Ralf Kuehnert, Mary L. Willis, Karen Deans and Dr. Harold I. Coe and offered Petitioner's Exhibits 1-10; all were received in evidence except Exhibits 6A, 6B and 9C on which objections were sustained; a ruling was also reserved on Exhibit 1. Further, an objection was lodged by Respondent to Exhibit 8, which is the deposition of Dr. Roger Nofsinger, insofar as the witness was treated as an expert in the field of general dentistry. Respondent testified on his own behalf and presented the testimony of Lorrie Ann Tren and Dr. Ronald M. Marini and offered Respondent's Exhibits 1 and 2; both were received in evidence. Additionally, a prehearing stipulation was received as Hearing Officer Exhibit 1.

The transcript of hearing (four volumes) was filed on December 28, 1982. Proposed findings of fact and conclusions of law were filed by the parties on January 14 & 17, 1983 and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Respondent's dental license should be disciplined for the alleged violations set forth in the amended administrative complaint.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. At all times relevant hereto Respondent, Bert Ong, held dentist license number 0006246 issued by Petitioner, Department of Professional Regulation, Board of Dentistry. He presently practices general dentistry at 4435 Curry Ford Road, Orlando, Florida.

   
   

2. In 1978 one Mae Sanger, then 78 years of age, visited Dr. Ong for the purpose of having a full set of dentures prepared. The charge for both the upper and lower dentures was $500. After they were prepared, she returned on several occasions to have them adjusted because of looseness in the lower dentures and difficulty in chewing. She could not remember the specific number of times she revisited his offices. At her daughter's insistence, she later filed a complaint with Petitioner on February 21, 1979. As a result of that complaint Petitioner arranged for another dentist, Dr. Lewis S. Earle, to examine the dentures on November 19, 1981. 1/ He found the bite relationship (centric occlusion) to be "substantially in error", and a "considerable discrepancy in the fit of the tissue" on the lower denture. He also thought the failure to recognize and correct the problem was "perhaps. . .incompetence" on the part of Dr. Ong. Dr. Earle conceded that because the patient was advanced

   in years, and her lower mandibular ridge had resorbed to the point where it was not an ideal retentive base for a denture, her case could be characterized as "challenging" and "difficult". The patient was also examined by an expert for Respondent, Dr. Ronald M. Marini, who has prepared several thousand sets of dentures during his dental career. He found the dentures to be correct in centric relationship, and that the dentures "fit well". He concluded that her problems were caused by (a) Sanger's failure to accept the fact that dentures are not a complete substitute for natural teeth, and (b) a retracted tongue.

   
   

3. Dr. Ong recalled that the patient was "very satisfied" with the dentures when they were first put in, and that they fit in a snug manner. However, at the patient's request, he later realigned the lower denture which loosened the fit of the denture. He performed a realignment several more times and eventually offered to make a full refund if she was dissatisfied. However, Sanger declined this offer and stated she wished to keep the dentures.

   
   

4. Between May, 1979 and October, 1980 Respondent treated Suzanne Frericks McNeil as a patient. Among other things, he began initial treatment for a root canal on tooth number 13 in May, 1979. McNeil continually broke scheduled appointments and did not return for further treatment on a regularly scheduled basis. Because of this Dr. Ong had to remedicate the canal on at least two occasions. He was also unable to put a final seal on the tooth to replace the temporary sealing material that was holding the medication in place. After her last remedication treatment on March 17, 1980, McNeil never returned for the final seal despite making a number of appointments to do so.

   
   

5. On November 18, 1980, McNeil visited Dr. Roger Nofsinger, another Orlando area dentist, who made x-rays of the tooth. Nofsinger initially found no evidence of a root canal having been performed. However, upon opening the tooth he found infection and some paper points inside the canals. Paper points are small rolled cones of absorbent paper used to dry the canals after a root canal has been performed. Dr. Nofsinger considered the sealing of the paper points within the canals to be "very unusual" and that the work of Respondent constituted "an incomplete root canal". He also considered the work as not meeting the minimum standard of performance and diagnosis and treatment that was generally prevailing in the Orlando area at that time. However, Dr. Nofsinger was unaware of the fact that McNeil never returned to Dr. Ong to have the procedure completed. Moreover, Dr. Nofsinger described McNeil as being "unreliable" in terms of keeping appointments with his own office. He also conceded that the sealing of paper points for medication purposes was not incompetence per se on the part of Dr. Ong. The witness agreed that if a temporary filling was placed on a tooth, and a patient did not return for treatment, the filling would eventually "wash out" and infection could set in the tooth.

   
   

6. Although McNeil claimed she could not get another appointment with Dr. Ong to finish the tooth, and for this reason she visited Dr. Nofsinger, it is found that the problem lay with McNeil, rather than Ong, and any difficulty with the tooth was the result of her failure to keep scheduled appointments. It is noted that McNeil is presently contemplating the filing of a malpractice suit against Respondent.

   
   

7. McNeil was an employee of Martin-Marietta in Orlando. As such, she was covered by her employer's dental insurance policy with Connecticut General Life Insurance Company.

8. On an insurance claim form, Ong claimed a $45 reimbursement for fillings on McNeil's teeth numbers 23, 24 and 25. Petitioner's expert, Dr. Lewis S. Earle, examined McNeil in November, 1981 and concluded that no fillings had been performed on those teeth for many years. However, he conceded that each of the three teeth could have been restored within the prior three years since (a) a restoration may have fallen out of number 23, and (b) numbers 24 and

   25 bad existing restorations. These concessions corroborated the testimony and patient records of Dr. Ong that reflected the teeth were filled, and that McNeil had no fillings in those teeth when she first visited him as a patient in 1978.

   
   

9. A representative of Connecticut General Life Insurance Company testified that the company had never made an overpayment to Dr. Ong for dental claims. He also indicated that as far as the company was concerned, Ong's dealings with the company had been proper.

   
   

10. Between January 29 and June 2, 1978 Karen Deans received dental treatment from Respondent. During that time period, Deans was employed by Levitz Furniture Corporation and was covered by a dental policy with Travelers Insurance Company which paid all of her dental claims.

    
    

11. An insurance claim form filed on behalf of Deans by Ong claimed reimbursement in the amount of $40 for fillings placed in teeth numbers 28 and

29. Deans was later examined by Dr. Harold I. Coe in May, 1980. His examination revealed that Deans had an amalgam facial restoration on tooth number 28 and an amalgam distal restoration on tooth number 29. Deans herself could not recall whether Ong actually placed any fillings in her teeth.

12. The claim form itself reflects that Ong performed an occlusal amalgam filling on tooth number 28 and a MOD (medial occlusal distal) amalgam filling on tooth number 29 for which he received $40. Ong actually performed a facial Class 5 filling on tooth number 28 and a three-surface filling on tooth number

1. He should have been reimbursed $50 instead of $40 but understated the claim. The predetermination insurance claim form reflected Ong's original diagnosis of the patient's teeth; he later determined that the work he actually performed would resolve the problems. The change was never reflected on the claim form, but the work was comparable, and Ong did not receive full reimbursement for his services.

   
   

   1. A representative of Travelers Insurance Company was present at the final hearing, reviewed the claim form, and concluded it was proper. He also testified that no overpayments had been made by Travelers to Respondent.

      
      

   2. Deans filed a malpractice suit against Ong for negligence while receiving dental treatment from Respondent. Ong prevailed in a jury trial and received a final judgment for costs against Deans in the amount of $2,259.81. To date, Deans has not paid the judgment.

      
      

   3. Respondent conceded that he formerly kept "very poor records" but has recently taken steps to correct this. His experience has generally been to understate insurance claims because of poor records, and to receive an insufficient amount of reimbursement.

      
      

   4. Ong has been licensed by the State of Florida since May, 1974. He has practiced in the Orlando area since September, 1974. Since that time he has treated between 8,000 and 10,000 patients. Other than the complaints filed herein, no other complaints have been filed against him, nor has he been subjected to prior disciplinary action by the Board.

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

      
      

   6. Respondent is charged with four separate violations of Chapter 466, Florida Statutes. For this, the Department seeks to discipline the license of Respondent. As such, the proceeding takes on special significance in terms of evidence necessary to sustain the Department's allegations. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

      
      

   7. At the outset of the hearing on September 27, 1982, Respondent renewed a motion to dismiss and motion to suppress on various grounds, some of which were previously raised and denied, and which should be dealt with before considering the merits of this case. First, Respondent made a motion to dismiss on the grounds (a) the probable cause panel merely made a pro forma rubber stamp of the Department's report in contravention of the requirements set forth in Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982), (b) the Department was guilty of administrative laches by failing to formally charge Respondent with the allegations in Count I even though it was aware of those charges since 1979, and (c) the allegations in Count III were allegedly the result of a complaint filed by a member of the probable cause panel rather than the patient. However, this motion must fail for several reasons. First, the contention that the probable cause panel did not meet all statutory requirements in making a determination as to probable cause was not raised until the day of the final hearing even though the complaint had been issued almost eight months before, and an earlier motion to dismiss had been filed. While there is no definitive case directly on point, the case of Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980) is analogous and implies that a prompt assertion of noncompliance with probable cause procedures as a basis for dismissal must be made. Further, the allegations of impropriety by the panel were just that, and no factual evidence was presented to support them. 2/ Finally, despite the marked lack of brevity by Petitioner in filing Count I, Respondent cited no authority to support the proposition that administrative laches are applicable under the factual situation herein. Cf. Donaldson v. Department of Health and Rehabilitative Services, So.2d (Fla. 1st DCA 1983), op. filed January 4, 1983 (holding that in the absence of specific legislative authority, civil or criminal statutes of limitations are inapplicable to administrative license revocation proceedings) . Accordingly, the motion to dismiss is hereby denied.

      
      

   8. Respondent has also made a motion to suppress any statements given by him to a Department investigator as well as documentation obtained from him during the course of the investigation. In support of the motion, Respondent contends he was not advised of his constitutional right to remain silent, and as such, all statements and documentation are tainted. He also contends that such documentation was obtained pursuant to a Department subpoena, and that by issuing a subpoena, the Department implicitly granted him immunity. But Respondent has not cited any authoritative support for this position, and while it is true that a licensee may remain silent [State ex rel. Vining v Florida Real State Commission, 281 So.2d 487 (Fla. 1973)], this case falls far short of requiring an agency to give the Miranda warning to licensees. 3/ Finally, Respondent had at his disposal an array of procedural alternatives to quash or limit the scope of the subpoena, but he failed to do so. He may not now

      belatedly claim that his voluntary acquiescence somehow immunizes him from his prior actions. Therefore, the motion to suppress is denied. 4/

      
      

   9. As noted earlier, the fact that the Department seeks to take disciplinary action against a licensee requires an "elevated standard of competent substantial evidence" to support the charges. Smith v. School Board of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981); Bowling, supra. With this in mind, the evidence will be examined to determine whether it meets this test.

      
      

      1. COUNT I

         
         

   10. The evidence is conflicting as to whether the dentures prepared for a

       79 year old patient were done "in an incompetent manner and constituted malpractice and willful negligence in the practice of dentistry". The greater weight of evidence does not support this claim, and it is concluded that Count I should be dismissed. In reaching this conclusion, it is noted that Petitioner's own expert conceded that because of advanced years, and a poor retentive base, the patient was both "difficult" and "challenging", and that Respondent's work was only "perhaps. . .incompetence". In contrast, an expert who had prepared several thousand sets of dentures reached an opposite conclusion, and found that any problems experienced by the patient were not the result of incompetence or negligence on the part of Ong, but were caused by the patient herself.

       
       

       1. COUNT II

          
          

   11. The evidence does not support the contention that Ong made a $45 claim with a dental carrier for work not actually performed on a patient. Three reasons underpin this conclusion. First, Petitioner's expert could not conclusively state that no fillings had been made on the teeth in question within the prior three years. Second, Respondent's testimony and records corroborate the dental claim. Finally, the dental carrier itself found no evidence of fraud or overpayment.

       
       

       1. COUNT III

          
          

   12. In this Count, Ong is charged with having made a fraudulent dental claim in the amount of $40 for work that was not performed. The claim form reflects that he performed a certain type of filling on teeth numbers 28 and 29. This comported with Ong's preliminary diagnosis as to the type of work required on the patient. He later performed fillings on the same teeth, but not of the same type as noted on the claim form. The end result was that the dental carrier paid $40 for $50 worth of work, and the patient's problems were resolved. The statute under which Ong is charged [Section 466.24(3)(a), Florida Statutes (1977)] speaks of "misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession." Clearly the act of Respondent would not bring "discredit upon the dental profession", nor is it the type of conduct proscribed by the law. Indeed, the de minimus error on the claim form was the result of poor recordkeeping by Ong rather than any intent by him to deceive the carrier. Moreover, the carrier itself examined the claim, found the payment was proper and that no overpayment had occurred. Therefore, it is concluded that Count III should be dismissed.

       
       

       1. COUNT IV

       
       

   13. The final allegation concerns alleged incompetence on the part of Ong when treating a patient for a root canal in 1980. However, the evidence belies

       this contention since (a) the patient failed to return to Ong's office to have the procedure completed, (b) the patient repeatedly broke scheduled appointments, and (c) Petitioner's own expert conceded that the problems experienced by the patient could occur where a patient did not return for scheduled treatment. Accordingly, it is concluded that Count IV should be dismissed.

       
       

   14. Respondent's objection to Dr. Nofsinger being accepted as an expert in the field of general dentistry is hereby overruled.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED.

DONE and ENTERED this 24th day of January, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 24th day of January, 1983.

ENDNOTES

1/ No explanation was given as to why it took approximately 2 1/2 years after the receipt of the complaint for the Department to decide that an independent examination should be given to Sanger.

2/ Although Respondent introduced a certified copy of the minutes of the panel to support his claim, this was insufficient. The transcript of the proceeding itself, documents used therein, and statements of the panel members are the best evidence of what was said and considered at the meeting.

3/ See Miranda v. State of Arizona, 86 S.Ct. 1602 (1966).

4/ By denying the motion, Respondent's objection to Exhibit No. 1 is overruled, and it is hereby received in evidence.

COPIES FURNISHED:

Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Richard J.R. Parkinson, Esquire 602 East Central Boulevard Orlando, Florida 32801

Fred Varn, Executive Director Florida Board of Dentistry

Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000579

Orders for Case No: 82-000579