STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2094

) RONALD FRIEDENSOHN, D.M.D., )

)

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 November 22, 1982, 1/ in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Barbara W. Sonneborn, Esquire

Walton Lantaff Schroeder & Carson Suite 500, Forum III

1675 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402

ISSUE

The issue posed for decision herein is whether or not the Respondent, based on conduct set forth hereinafter, has engaged in conduct violative of Section 466.028(1)(o) and Section 455.241(1), Florida Statutes, as alleged in the Amended Administrative Complaint. 2/

Upon consideration of the Administrative Complaint filed herein, the Request for Admissions propounded to the Petitioner by the Respondent on August 24, 1982, the arguments of counsel, and the entire record compiled herein, I hereby make the following:

FINDINGS OF FACT

1. By its Administrative Complaint filed herein dated July 7, 1982, the Department of Professional Regulation, Board of Dentistry (Petitioner herein), seeks to suspend, revoke, or take other disciplinary action against Ronald Friedensohn, D.M.D., a licensed dentist in the State of Florida who has been issued license No. DN0007254.

2. The Administrative Complaint contained two counts. Count I of the Administrative Complaint charged Respondent with violating Section 466.028(1)(o), Florida Statutes, for failing to make available to a patient, copies of the patient's records.

   
   

3. Count II of the Administrative Complaint, as amended, charged Respondent with a violation of Section 455.241(1), Florida Statutes, due to an alleged refusal to release a patient's records to that patient until a disputed fee was paid, and thereby violated Section 466.028(1)(bb), Florida Statutes.

   
   

4. On August 24, 1982, Respondent propounded a Request for Admissions to the Petitioner requesting that the Petitioner admit or deny the following within

30 days of service:

1. Mrs. Barbara Ruderman has never made a formal request, herself, to Dr. Ronald Friedensohn for her x-rays and dental records pursuant to Florida Statute 455.241.

2. An authorized legal representative has never requested, from Dr. Friedensohn, Mrs. Ruderman's records or x-rays.

3. The only individual ever to request Mrs.

   Ruderman's x-rays and records was her husband, Morton Ruderman.

4. Mr. Morton Ruderman, her husband, is not a duly appointed legal representative of

   Mrs. Ruderman.

   
   

5. Petitioner failed to respond to the Request for Admissions within the 30-day period. However, the Petitioner did respond to the Request for Admissions on October 12, 1982, denying all admissions. In this regard, the Petitioner did not request an extension, nor was one provided to Petitioner, to respond to the Request for Admissions. Likewise, the Petitioner did not file any objections to the Request for Admissions within the appropriate time period.

   
   

6. At the outset of the hearing, Respondent's counsel filed an ore tenus motion for a ruling, from the undersigned, to have deemed as admitted the admissions propounded to the Petitioner on August 24, 1982.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

9. The authority of the Petitioner is derived from Chapters 455 and 466, Florida Statutes.

   
   

10. Respondent, a licensed dentist, is subject to the disciplinary guides of Chapters 455 and 466, Florida Statutes.

    
    

11. Rule 1.370(a), Florida Rules of Civil Procedure, provides, in pertinent part, that matters stated in the requests for admissions are admitted

    unless the party to whom the request is directed serves upon the party requesting the admission, a written answer or objection addressed to the matters within 30 days after service of the request. Petitioner, having failed to respond to the Request for Admissions filed herein, is subject to the above referred to rule and, therefore, all matters contained in the Request for Admissions filed herein are deemed admitted and conclusively established.

    
    

12. The facts, as admitted, failed to sustain the complaint allegations as filed by the Petitioner.

    
    

13. Section 466.028(1)(o), Florida Statutes, requires that as a prerequisite for prosecuting a violation, that a request be made by the patient or the patient's legal representative. The Petitioner has admitted that neither the patient nor the patient's representative ever made such a request. Accordingly, there is no basis to find any violation of the cited statute and I shall therefore recommend that Count I of the Administrative Complaint filed herein be dismissed.

    
    

14. Section 455.241(1), Florida Statutes, requires that there be a request by the patient or the patient's legal representative before the release of any reports is necessary by a practitioner, as Respondent. In view of the Petitioner's admission that there was no request by the patient or her legal representative, insufficient evidence was offered to establish that the Respondent violated Section 455.241(1), Florida Statutes, as alleged. For that reason, there is no basis to conclude that Respondent violated Section 466.028(1)(bb) Florida Statutes, as alleged in the Amended Administrative Complaint. I shall therefore recommend that Count II of the Administrative Complaint, as amended at the hearing, be dismissed with prejudice.

RECOMMENDATION

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

RECOMMENDED:

That the Administrative Complaint filed herein, as amended at the hearing, against Ronald Friedensohn, D.M.D., shall be DISMISSED in its entirety, with prejudice.

RECOMMENDED this 3rd day of December, 1982, at Tallahassee, Florida.

JAMES E. BRADWELL, 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 3rd day of December, 1982.

ENDNOTES

1/ Respondent's counsel has submitted a proposed recommended order which was considered by me in preparation of this recommended order. To the extent that the proposed findings and conclusions in Respondent's proposed recommended order are not incorporated herein, said proposed findings and conclusions are deemed either irrelevant, immaterial, or not otherwise supported by record evidence.

2/ At the hearing, Petitioner was afforded an opportunity to amend Count II of the Administrative Complaint filed herein dated July 7, 1982, to include a derivative violation of Section 466.028(1)(bb), Florida Statutes.

COPIES FURNISHED:

Julie Gallagher, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Barbara W. Sonneborn, Esquire Walton Lantaff Schroeder & Carson Suite 500, Forum III

1675 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402

Fred Varn, Executive Director Board of Dentistry Department of Professional

Regulation

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: 82-002094

Orders for Case No: 82-002094