Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Jul. 31, 1984
Summary: Respondent is not guilty of incompetence and charges dismissed because no clear and convincing evidence to support allegations.
83-3006.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3006
)
DANIEL RENTZ, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on March 9, 1984 at Clearwater, Florida.
APPEARANCES
For Petitioner: Julie Gallagher, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: John W. Williams, Esquire
Post Office Box 12349
St. Petersburg, Florida 33733-2349
By Administrative Complaint filed August 15, 1983, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Daniel Rentz, Respondent. As grounds therefor it is alleged that his diagnosis and treatment of orthodontic problems of Valarie Rosenfeld during the period November 19, 1981, to April 1982 failed to meet minimum acceptable standards of dental treatment. In the answer to the Administrative Complaint and in a prehearing stipulation Respondent admitted jurisdictional facts and that on November 23, 1981, Valarie Rosenfeld came to him to discuss orthodontic treatment to correct a deep overbite and severe overjet. At the hearing Petitioner called four witnesses, including the Respondent. Respondent testified in his own behalf, and ten exhibits were admitted into evidence with exhibits 9 and 10 being depositions of expert witnesses called by Respondent.
FINDINGS OF FACT
At all times material hereto Respondent was a licensed dentist in Florida holding license number DN 0001025.
Respondent graduated from Emory University Dental School in 1945, thereafter served two years apprenticeship with a practicing orthodontist before opening his own office in Coral Gables, Florida, where he practiced orthodontics
for some 25 years before selling his practice and moving to the Tampa Bay area. Respondent is eligible for board certification. In November 1981 Respondent was working as an orthodontist at the Sheppard Dental Clinic in Seminole, Florida.
On November 23, 1981, Valarie Rosenfeld went to Respondent to discuss orthodontic treatment to correct a deep overbite and severe overjet. At the time of this visit Miss Rosenfeld was 17 years old and had a severe Class II skeletal discrepancy with a 9.5 degree discrepancy between upper and lower jaws and an overjet of 12 mm.
Respondent took some seven photographs of Miss Rosenfeld (Exhibit 2) showing generally the condition of her teeth and her facial profile. Be also took a cephalometric x-ray (Exhibit 3) and a panoramic x-ray (Exhibit 4) of Miss Rosenfeld. Respondent advised Miss Rosenfeld that it would be necessary to extract one tooth in her upper jaw and maybe a second tooth in order to improve her appearance. The purpose of this extraction was to make room in which to move the upper teeth to reduce the overjet.
Respondent did not discuss surgery with Rosenfeld or fully explain to her the options available and the probable consequences of each of the options she may elect.
Miss Rosenfeld has a thin maxillary bone which does not show up very well on the cephalometric x-ray taken due to a burnout in this x-ray at the location this fact could be determined. Absent adequate bone in which to move teeth it becomes very difficult to obtain much movement.
In accordance with orders issued by Respondent Miss Rosenfeld's tooth number 12 was extracted by another dentist at a subsequent visit to the clinic. Respondent next saw Rosenfeld on December 16, 1981, when he put separators between her teeth to make room for bonds. Respondent intended first to install light wire braces to better level the teeth before this was replaced by heavier wire which would be tightened from time to time to move the upper teeth back and the lower teeth forward. Although he testified he planned to reduce the malocclusion using intrusion mechanics Respondent did not discuss with Miss Rosenfeld the headgear which she would have to wear at night during this process or fully explain the procedure to her.
Following her December 16 visit, Rosenfeld was seen by a Dr. Bryant, an orthodontist who was replacing Respondent at the Sheppard Dental Clinic. Bryant saw Rosenfeld on December 22, 1981, when he fitted and cemented bonds on the teeth and put in the flexwire to level the teeth. She was next seen at the clinic on January 23 when Bryant religated the flexwire. The next visit on February 15, 1981, Bryant again religated the braces. Rosenfeld was last seen by Respondent on March 20, 1982, when he religated upper arch and observed lower arch. Rosenfeld was seen on April 24, 1982, by Bryant who advised her that three additional extractions would be required to correct the malocclusion. Rosenfeld then decided to obtain a second opinion before losing anymore teeth and went to see another orthodontist, John Harrison.
When Dr. Harrison examined Rosenfeld he explained the three options available to her to wit: (1) do nothing, (2) attempt some movement of the teeth to reduce the overjet and overbite and (3) surgery. Dr. Harrison took additional x-rays and attempted to obtain the dental records from Sheppard's Dental Clinic but without much success. By this time Respondent no longer worked at Sheppard's and Harrison became quite frustrated by the lack of
cooperation he got in attempting to obtain Rosenfeld's records. He received only the panoramic x-ray.
Harrison made models of Rosenfeld's mouth, took cephalometric x-rays, made intra and extra-oral photographs and did quite a number of tracings from the cephalometric x-rays to better ascertain the misalignment of the upper and lower jaws. He discussed the various options with Rosenfeld and, at her request, commenced the mechanical intrusion needed to move the upper teeth back and the lower teeth forward. Harrison would not have extracted tooth number 12 because there is insufficient maxillary bone to allow much movement of the upper teeth or to fill the void created by the extraction. Harrison further opined that the orthodontic problem faced by Rosenfeld is wholly in the lower jaw and this can be fully corrected only by risky and expensive surgery. Attempting to correct the problem by retracting the upper teeth is, in his opinion, the wrong approach. He considers the entire problem is in the lower arch and retracting the upper teeth, which are satisfactory, to obtain a better alignment between the upper and lower teeth, simply creates another problem, viz. changing the existing good profile of the upper lip. Furthermore the thin maxillary bone in which the upper teeth are being moved is not adequate to accomplish much movement of the teeth and when the bonds are removed the upper teeth will likely return to their original position or close thereto.
The cephalometric x-ray taken by Respondent on November 23, 1981, was overexposed in the part of the x-ray which would best show Rosenfeld's maxillary bone and thereby alert Respondent to the problem of moving the upper teeth. Dr. Harrison formed his opinion that Respondent's diagnosis and treatment of Rosenfeld was below minimum acceptable standards on his initial assumption (from the records he obtained from Sheppard's Dental Clinic) that the diagnosis and course of treatment were made with panoramic x-rays only. When he learned the day before the hearing that Respondent also had the benefit of the cephalometric x-ray, Harrison hedged his opinion and ultimately concluded that Respondent's diagnosis and course of treatment did reach minimal acceptable standards.
Petitioner also called Dr. DeDominico, an orthodontist, who, at the request of Petitioner, examined Rosenfeld and her dental records. DeDominico concurred with Harrison that extraction of tooth number 12 was not indicated and it is unlikely the space vacated by the removal of that tooth can be closed by the movement of the other teeth on the upper jaw. DeDominico further opined that and adequate diagnosis could not be made from the x-rays taken by Respondent due to the "burnout" in this critical area of the cephalometric x-ray which concealed the thinness of Rosenfeld's maxillary bone. Failure to retake this x-ray before embarking on a plan of treatment that required an adequate maxillary bone for success, and that included an unnecessary extraction was, in his opinion, below the minimal acceptable standards for the dental profession.
Respondent testified that his more than 20 years experience in orthodontics qualified him to properly diagnose Rosenfeld's problem without doing tracings from the cephalometric x-ray, and that he considered the cephalometric x-ray adequate for the diagnosis that was made. Further, extraction of tooth number 12 was necessary to provide space into which the upper could be moved to accomplish the retraction of the upper teeth desired. He did not explain the available options to Rosenfeld and never considered surgery as a viable option for the orthodontic problem presented by Rosenfeld. He also failed to apprise her of the full implications of the treatment he planned, such as headgear, for the mechanical intrusion or of the limited success to be expected from this procedure.
Respondent's expert witnesses, whose depositions were received into evidence as Exhibits 9 and 10, both opined that the diagnosis and treatment of Rosenfeld by Respondent met minimum acceptable standards of the dental profession. One of these witness' credibility is somewhat tarnished by his testimony that the mandible can be induced to grow in an adult. Not only was this testimony deemed incredible by other expert witnesses but also even a layman generally understands that the skeletal structure does not continue to grow after maturity.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent is charged with violation of Section 466.028(1)(y), Florida Statutes, which provides in part the following acts shall constitute grounds for disciplinary action:
Being guilty of incompetency 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 under- taking of diagnosis and treatment for which the dentist is not qualified by training
and experience.
There is no allegation, and less proof, that Respondent is not qualified by training and experience to perform the diagnosis and treatment respecting Miss Rosenfeld so the only issue is whether the diagnosis and treatment met the minimum standards of performance when measured against generally prevailing peer performance.
Here, the burden is upon petitioner to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The quality of the evidence required to sustain this burden has been variously described before and after the present Administrative Procedure Act was passed. In Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966) the court concluded that an action to revoke a license was penal in nature and that penal sanctions should be directed only towards those who by their conduct have forfeited their right to the privilege [of licensure] and then only upon clear and convincing proof of substantial causes justifying the forfeiture of license. Accord, Lewis v. Planned Financial Services, 340 So.2d 941 (Fla. 4th DCA 1976)
In Florida Department of Health and Rehabilitative Services v. Career Service System, 289 So.2d 412 (Fla. 4th DCA 1974), the court held that an administrative tribunal measures proof presented to it by the preponderance of the evidence standard. That case involved the quantum of evidence required to discharge an employee for cause. This case and others of similar input seriously undercut Reid, supra.
Florida Department of Transportation v. J.W.C. Corporation and Department of Environmental Regulation, 396 So.2d 778 (Fla. 1st DCA 1981) involved the burden of proof in a petition by the Department of Transportation for a permit from DER to construct a complex source of air pollution. In this case the court upheld the standards established by Rule 17-1.59, Florida
Administrative Code, for permit proceedings involving DER which provides "The person requesting the hearing, variance, license, or other relief, shall have the burden of proof to establish, by a preponderance of the evidence, entitlement to the requested license, variance, or other relief."
Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) involved a proceeding to revoke the license of an insurance agent. In retreating from the preponderance of the evidence standard without adopting the clear and convincing evidence standard, the court stated at pp. 171-2:
Although the APA does not in terms descend to such particulars, we have recognized the Act's implication that evidence 'appropriate in form' may differ from one proceeding to another depending on the 'nature of the issues involved. 'Now we recognize also
that in both form and persuasiveness evidence may 'substantially' support some types of agency action, yet be wanting as a record foundation for critical findings in a license revocation. So holding, we need not attempt to resurrect the pre-APA 'clear and convinc- ing proof' standard for license revocation proceedings. Rather, we glean a requirement for more substantial evidence from the very nature of the licensee discipline proceed- ings: when the standards of conduct to be enforced are not explicitly fixed by a statute or rule, but depend upon such debat- able expressions as 'in the applicable regular course of business'; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and when the pro- ceedings may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences.
The United States Supreme Court has approached the burden of proof standards as a constitutional due process issue.
Addington v. Texas, 441 U.S. 426, 99 S.Ct. 180 (1979) involved the standard of proof required to commit an individual involuntarily for an indefinite period to a state mental hospital. The court stated at p. 1808:
The function of standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks it should have in the correctness of factual conclusions for a particular type of adjudi- cation. 'In re Winship, 397 U.S. 358,
370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d
368 (1970) (J. Harlan concurring). The
standards serve to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Generally speaking, the evolution of this area of the law has produced across a con- tinuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties.
Since society has a minimum concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interests of the defendant are of such magni- tude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likeli- hood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra. The intermediate standard, which usually employs some combination of the
words 'clear,' 'cogent,' 'unequivocal,' and 'convincing,' is less commonly used, but nonetheless is 'no stranger to the civil law.' Woodby v. INS, 385 U.S. 276, 285,
87 S.Ct. 483, 488, 17 L.Ed. 362 (1966).
See also, McCormick, Evidence s.320 (1954);
9 J. Wigmore, Evidence s.2498 (3rd ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having reputation tarnished erroneously by increasing the plaintiff's burden of proof. Similarly, this Court has used the 'clear, unequivocal and convincing' standard of proof to protect particularly important individual interests in various civil cases. See e.g. Woodby v. INS, supra, at 285, 87 S.Ct. at 487 (deportation): Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed.
2d 120 (1960) (denaturalization) Schneiderman
v. United States, 320 U.S. 118, 125, 159, 63
S.Ct. 1333, 1336, 1357, 87 L.Ed. 1796 (1943)
(denaturalization).
After noting the function of the legal process is to minimize the risk of erroneous decisions; that commitment for any purpose constitutes a significant deprivation that requires due process protection; that the state has a legitimate interest in providing care to its citizens unable because of emotional disorders to care for themselves; and that the state also has the authority under its police powers to protect the community from dangerous tendencies of the mentally ill, the court in Addington v. Texas, supra, concluded the middle ground between preponderance of the evidence and beyond a reasonable doubt, viz, "clear and convincing" evidence was required to meet the due process guarantees. Similarly, in Williams v. Williams, 424 So.2d 159 (Fla. 1st DCA 1983) the court held the standard of proof in proceedings for noncriminal involuntary confinement is clear and convincing evidence.
Santoskv v. Kramer, 102 S.Ct. 1388 (1982) involved severing the rights of parents to their children upon a finding of permanent neglect. While holding that, before the state may sever completely and irrevocably rights of parents in their natural child, due process requires that the state support its allegation by at least clear and convincing evidence, the court stated at p. 1397:
The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.' Goldberg v. Kelly,
397 U.S. 254, 262-263, quoting Joint Anti- Facist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 517 (1951) (Frankfurter, J. concurring). Whether the loss threatened by a particular type of pro- ceeding is sufficiently grave to warrant more than average certainty on the party of the fact-finder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
License revocation cases are clearly penal in nature. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Furthermore, the consequences of these proceedings can result in the loss of an occupational or professional license for which the licensee has devoted many years to acquire. This is much more than a "money judgment." In an action to revoke a professional license the risk of error from using the preponderance standard is substantial; and the countervailing state interest favoring that standard is comparatively slight. The language in Bowling, supra, above-quoted, that "when the proceeding may result in the loss of a valuable business or professional license, the critical matter in issue must be shown by evidence which is undubitably as 'substantial' as the consequences" is another way of saying what was earlier stated in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed. 2d 18 (1976) that both the risk of erroneous deprivation of private interests resulting from use of a "fair preponderance" standard and the likelihood that a higher evidentiary standard would reduce the risk must be considered, and, when so considered, the standard of proof that by its very terms demands consideration of the quantity, rather than the quality, of the evidence, may misdirect the factfinder in the marginal case. Santosky v. Kramer, supra.
The reviewing court measures the correctness of the administrative orders under review by competent and substantial evidence standard. Florida Department of Health and Rehabilitative Services v. Career Service System, supra. While that appellate standard does not change, the court in Bowling, supra, has raised the evidentiary standard at the trial level in license revocation proceedings by saying competent and substantial evidence in license revocation proceedings requires more than a preponderance of the evidence.
Reading Bowling literally would provide an optimum solution to the situation here under consideration. Here the evidence "substantially" supports agency action to require Respondent to undergo additional training but does not support license revocation. Respondent's diagnosis and treatment of Rosenfeld was subpar and additional training in more recent orthodontic techniques and procedures is indicated. However, subpar performance does not equate to incompetency. For the latter, revocation of license is authorized; and the evidence is not clear and convincing that Respondent was incompetent in his diagnosis and treatment of Valarie Rosenfeld in 1981 and 1982.
Disciplinary action is authorized only upon a finding that the licensee committed one or more of those acts listed in Section 466.028(1), Florida Statutes. Section 466.028(2), Florida Statutes, provides when the board finds any applicant or licensee guilty of any of the grounds set forth in subsection (1) it may enter an order imposing one or more penalties including revocation or suspension of license, imposition of administrative fine, issuance of reprimand, restrict scope of practice and
(e) Placement of the licensee on probation for a period of time and subject to such con- ditions as the board may specify, including requiring the licensee to attend continuing education courses or demonstrate his compe- tencey through a written or practical examination or to work under the supervision of another licensee.
Absent a finding that the Respondent is guilty of incompetency (which is the only offense charged) in the treatment of Valarie Rosenfeld, there is no authority to place Respondent on probation and require him to take continuing education courses. For this reason I am unable to apply the literal Bowling standard that the evidence be as substantial as the punishment. The punishment can be imposed only following a finding of guilty of an offense set out in the statute. It has been recognized for many generations and immortalized by Gilbert and Sullivan that it would be wonderful to have "a system of justice, all sublime to make the punishment fit the crime." However, the finding of guilty is a necessary step that must be taken before punishment can be imposed and the burden of proof applies to the guilt of the licensee and not to the punishment imposed. Once guilt has been established by the appropriate standard, the board's discretion in awarding any authorized punishment is not subject to judicial review, Florida Real Estate Commission v. Webb, 367 So.2d
201 (Fla. 1979), absent a clear abuse of discretion. Carlton v. FREC, 354 So.2d 77 (Fla. 1st DCA 1951).
From the foregoing it is concluded that Petitioner has failed to prove by clear and convincing evidence that Daniel Rentz is guilty of incompetency in the treatment of Valarie Rosenfeld. It is therefore
RECOMMENDED a Final Order be entered finding Daniel Rentz, D.D.S. not guilty of incompetency and that these charges be dismissed.
ENTERED this 16th day of April 1984 in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 16th day of April 1984.
COPIES FURNISHED:
Julie Gallagher, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
John W. Williams, Esquire Post Office Box 12349
St. Petersburg, Florida 33733
Fred Varn, Executive Director Board of Dentistry
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
CASE NOS. 0027221 (DPR)
83-3006 (DOAH)
DANIEL RENTZ, D.D.S., LICENSE NO. DN 0001025
Respondent.
/
FINAL ORDER
THIS MATTER came before the Board of Dentistry pursuant to Section 120.57(1)(b)9., Florida Statutes, on June 5, 1984, in Gainesville, 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. Daniel Rentz, D.D.S., Case No. 83- 3006. The Petitioner was represented by Julie Gallagher, Esquire. The Respondent was represented by John J. Williams, Esquire.
Upon consideration of the hearing officer's Recommended Order and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
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.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1) and Chapter 466, Florida Statutes.
The hearing officer's conclusions of law set forth on pages one through ten and all but the last partial paragraph on page eleven are hereby approved and adopted in toto.
The Board rejects the conclusions of law set fort in the last partial paragraph on page eleven and on all of pages twelve and thirteen of the Recommended Order and makes the following conclusions of law:
On page twelve of the Recommended Order, the Hearing Officer stated:
Respondent's diagnosis and treatment of Rosenfeld was subpar and additional training in more recent orthodontic techniques and procedure is indicated.
However, subpar performance does not equate to incompetency. For the latter, revocation of license is authorized; and the evidence is not clear and convincing that Respondent was incompetent in his diagnosis and treatment of Valerie Rosen- fell in 1981 and 1982.
In so ruling, the Hearing Officer essentially found Respondent guilty of the offense charged, but used the wrong standard for "incompetency," as that term is used in Section 466.028(1)(y), Florida Statutes. The statutory language defines incompetency as
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 and experience.
In other words, subpar performance does equate to incompetency, as that term is defined in Chapter 466, Florida Statutes.
The Board of Dentistry has interpreted Section 466.028(1)(y), Florida Statutes, in the case of In Re: Thomas Schopler, D.D.S., Case No. 81-3109, where the Respondent urged an interpretation of the statute similar to the interpretation given by the Hearing Officer in the instant case. In responding to that argument the Board held:
While the Board recognizes that incompe- tence, as generally defined, is not the same thing as malpractice or negligence, the cases relied upon by the respondent are cases in which incompetence is given its general definition and they do not involve the situation in which the legislature has by statute defined incompetence in a manner that is different from its general defini- tion. Had the Legislature when it enacted Section 466.028(1)(y), Florida Statutes, simply used the word incompetence without further defining it, the respondent's argu- ment would have some merit. However
expressly defining incompetence In particular manner in which they did, the Legislature given incompetence the same definition as the general definition of malpractice or negligence. See definition of malpractice
in WEBSTERS 3rd NEW INTERNATIONAL UNABRIDGED
DICTIONARY and in BLACK'S LAW DICTIONARY
(Revised 4th ed. 1968). See also Atkins v. Humes, 107 So.2d 253 (Fla. 2d DCA 1958) Cox v. Cartwright, 121 N.E. 2d 673 (Ohio Ct. App.
1953); Richardson v. Doe, 199 N.E. 2d 878 (Ohio 1964); and Kamoas v. St. Joseph's Mercy Hospital of Detroit, 205 N.E. 2d
431 (Mich. 1973). It is the conclusion of the Board that incompetence as defined in subsection 466.028(1)(y), Florida
Statutes (1981), is substantially identical to malpractice and willful negligence as those terms are used in subsection 466.24
(3)(c) and (d) , Florida Statutes (Supp. 1978).
That final order was appealed and was affirmed. Schooler v. Department of Professional Regulation, Board of Dentistry, 441 So.2d 641 (Fla. 4th DCA 1983).
Based on the above, the Board of Dentistry finds that Petitioner has proven by clear and convincing evidence that Respondent is guilty, as charged, of a violation of Section 466.028(1)(y), Florida Statutes.
The hearing officer's recommendation that Respondent be found not guilty of incompetency and that the charges be dismissed is rejected based on the Board's determination that the Hearing Officer's interpretation of the law was erroneous.
There is competent substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY, ORDERED AND ADJUDGED:
That Respondent, Daniel Rentz, shall be, and hereby is, REPRIMANDED.
That Respondent is assessed an administrative fine in the amount of one thousand dollars ($1000). Said fine is payable to the Executive Director of the Board within thirty (30) days of the filing of this Final Order.
Respondent shall within one year of rendition of this Final Order obtain 50 hours of continuing education in orthodontics, one-half of which shall be in treatment planning for orthodontics. Orrin D. Mitchell, D.D.S., is authorized to approve the courses to be taken in compliance with this provision. A reasonable extension of time for compliance with this provision may be granted by the Board of Dentistry if requested.
DONE AND ORDERED this 10th day of July 1984.
JOAN R. LEVY
Chair
Board of Dentistry
cc: Julie Gallahger, Esquire
Department of Professional Regulation
131 North Monroe Street Tallahassee, Florida 32301
John W. Williams, Esquire Post Office Box 12349
St. Petersburg, Florida 33733
K. N. Ayers, Hearing Officer Division of Administrative Hearing The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Docket for Case No: 83-003006
Orders for Case No: 83-003006
| Issue Date |
Document |
Summary |
|
Jul. 10, 1984 |
Agency Final Order
|
|
|
Apr. 16, 1984 |
Recommended Order
|
Respondent is not guilty of incompetence and charges dismissed because no clear and convincing evidence to support allegations.
|
