Judges: SHARYN L. SMITH
Agency: Department of Health
Latest Update: Dec. 29, 1983
Summary: Probation until completion of continuing education and fine imposed when Respondent did not meet minimum standards of treatment towards patient.
82-2947.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2947
)
DENNIS SOUCEK, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on April 14, 1983, in Fort Lauderdale, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Julie Gallagher, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Hugh Maloney, Esquire
Patterson & Maloney
790 East Broward Boulevard Post Office Box 030520
Fort Lauderdale, Florida 33303
The issue presented at the final hearing was whether the Respondent violated Section 466.028(1)(y), Florida Statutes (1981), by rendering dental treatment to Ms. Y. Elaine Yarbrough which was below minimal acceptable standards for the community.
Petitioner presented the testimony of Elaine Yarbrough, Charlie E. Reich, D.D.S., and Mervyn Dixon, D.D.S., and Petitioner's Exhibits 1 and 2 were offered and admitted into evidence. Dennis J. Soucek, D.D.S., Carole Anderton, James Haley, D.D.S., Deborah Gauthier and Barry Kligerman, D.D.S., testified for the Respondent. The Respondent offered one exhibit which was not admitted into evidence.
Proposed Recommended Orders containing findings of fact have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as either being not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.
FINDINGS OF FACT
The Respondent Dennis Soucek is a licensed dentist in Florida.
On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics.
On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge.
The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge.
In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions.
However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics.
Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made.
The Respondent never saw Yarbrough again after this final visit.
The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Respondent Soucek is charged with violating Section 466.028(1)(y), Florida Statutes (1981), which empowers the Board of Dentistry to take disciplinary action against a dentist for, inter alia,
. . .being guilty of incompetence by failing to meet 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.
The Petitioner Department of Professional Regulation established that the bridge work performed by the Respondent on Yarbrough did not meet generally prevailing acceptable standards of peer performance. Although the bridge work may have been acceptable when it was first placed, it became unacceptable as Yarbrough's gums continued to recede and problems developed. The Respondent's attempt to correct the problem which developed with the bridge by use of a patch kit was an inappropriate response to the problem.
By undertaking to treat a patient who required extensive bridge and dental work, the Respondent assumed a duty to install a bridge which would be satisfactory for a reasonable period of time following the initial placement. The Respondent was aware of the extreme problem with this patient's mouth when he began treatment. The Respondent's responsibility to this patient did not end when his initial assumption concerning the length of time her gums would recede proved to be incorrect. The patient continued to have problems with the bridge which were not adequately addressed by the Respondent's suggestion that the patient either wait a year before further repair attempts were made or pay for a new bridge. The Petitioner has demonstrated that the Respondent violated Section 466.028(1)(y), Florida Statutes (1981), by failing to meet minimum standards of treatment in his actions toward this patient.
At the hearing, the Respondent moved that the Administrative Complaint be dismissed in that it failed to allege any improprieties on the part of the Respondent with respect to Yarbrough's diagnosis. This argument is based on Section 466.028(1)(y), Florida Statutes (1981), which provides that a dentist may be disciplined for failing to meet acceptable standards of performance in diagnosis and treatment. Since the Administrative Complaint alleges only a violation regarding treatment, the Respondent urged that the complaint be dismissed.
Generally, where two or more requirements are provided in a statute and it is the legislative intent that all of the requirements must be fulfilled in order to comply with the statutes, the conjunctive "and" should be used. Where a failure to comply with any requirement imposes liability, the disjunctive or should be used. There has been, however,
". . .so great a laxity, in the use of these terms that courts have generally said that the words are interchangeable and that one may be substituted for the other if to do so is consistent with the legislative intent."
See Sutherland Statutory Construction, 21.14, Conjunctive and Disjunctive Words.
In the instant case, Section 466.028(1)(y), Florida Statutes, was in all probability not intended to limit the power of the Board to discipline only dentists who improperly diagnosed and treated patients. As noted by the Petitioner, if such were the case, a dentist who correctly diagnosed a problem
but provided incompetent treatment could not be subject to any disciplinary action under this section. In the absence of judicial authority or legislative action to the contrary, Section 466.028(1)(y), Florida Statutes (1981) should be construed to require allegations and proof of incompetent diagnosis or treatment in the practice of dentistry.
Finally, pursuant to Section 466.028(1)(y), Florida Statutes (1981), the Board is empowered to impose a variety of penalties on a licensee found guilty of violating Section 466.028(1)(y), Florida Statutes (1981), including revocation or suspension, an administrative fine not to exceed $1,000 for each separate offense, a reprimand, and/or placement on probation subject to appropriate conditions.
Having carefully considered the facts and circumstances presented by this case, suspension or revocation of the Respondent's license would not be appropriate.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine.
DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida.
SHARYN L. SMITH, 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 June, 1983.
COPIES FURNISHED:
Julie Gallagher, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Hugh Maloney, Esquire PATTERSON & MALONEY
790 East Broward Boulevard Post Office Box 030520
Fort Lauderdale, Florida 33303
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
================================================================= AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION
Petitioner,
vs. CASE NOS. 0024080 (DPR)
82-2947 (DOAH)
DENNIS SOUCEK, D.D.S.,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Board of Dentistry pursuant to Section 120.57(1)(b)9., Florida Statutes (1981), on September 10, 1983, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs. Dennis Soucek, D.D.S.,
Case No. 82-2947, and the Exceptions filed by both parties. Petitioner took exception to the recommended penalty only; Respondent's exception asserted that there was "no substantial evidence to support a violation of Section 466.028(1)(y), Florida Statutes (1981)." The Petitioner was represented by Julie Gallagher, Esquire. The Respondent was given notice, but was not present or represented.
Upon consideration of the hearing officer's Recommended Order, the Exceptions and the argument of the parties, and after a review of the complete record in this matter, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted in toto.
There is competent, substantial evidence to support the hearing officer's findings of fact.
Respondent's exception to the hearing officer's findings of fact is rejected on the ground that the exception constitutes nothing more than a request for the Board to re-weight the evidence in the record.
CONCLUSIONS OF LAW
The hearing officer's conclusions of law are hereby approved and adopted in toto.
There is competent substantial evidence to support the hearing officer's conclusions of law.
The hearing officer's recommended penalty is rejected as being too lenient under the facts of this case and Petitioner's exception and recommendation is accepted in this regard.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED
That Respondent's license to practice dentistry shall be suspended for a period of thirty (30) days.
That Respondent shall pay an administrative fine of $1,000.00. Said fine shall be paid to the Executive Director of the Board within thirty (30) days of the date of this Final Order is rendered.
That Respondent shall be required to complete thirty (30) hours of continuing education in the area of crown and bridge work; provided, however, that each hour of "hands-on," as opposed to didactic, continuing education shall equal two hours for purposes of compliance with this provision.
DONE AND ORDERED this 30th day of November 1983.
Richard Weiss, D.D.S. Acting Chairman Board of Dentistry
Docket for Case No: 82-002947
Orders for Case No: 82-002947
| Issue Date |
Document |
Summary |
|
Nov. 30, 1983 |
Agency Final Order
|
|
|
Jun. 24, 1983 |
Recommended Order
|
Probation until completion of continuing education and fine imposed when Respondent did not meet minimum standards of treatment towards patient.
|
