STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3975

)

STEVEN RINDLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 9, 1984, in Coral Gables, Florida.

Petitioner, Department of Professional Regulation, Board of Dentistry, was represented by Julie Gallagher, Attorney at Law, Tallahassee, Florida; and Respondent, Steven Rindley, was represented by Steven I. Kern, Esquire, Elizabeth, New Jersey.

Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent, as licensee, and against his license to practice dentistry under the laws of the State of Florida.

Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Marshall A. Brothers, D.D.S. Additionally, Petitioner's Exhibits numbered 1 and 4 were admitted in evidence.

Respondent, Steven Rindley, testified on his own behalf and presented the testimony of Eli Wolf Gottlieb, D.M.D.; Dr. Neil Meyers, and by way of deposition Dr. Harry B. Gaulkin. Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Joint Exhibit numbered 1 was also admitted in evidence.

A proposed Recommended Order containing findings of fact has been submitted by the Respondent, and was considered in the preparation of this Recommended Order. When the Respondent's findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary have not been adopted.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a licensed dentist in the State of Florida, having been issued license number DN 0004795.

   
   

2. On April 30, 1981, Fay Ackret, an 84-year-old female with arthritis, consulted Respondent seeking both full upper and full lower dentures, since she had broken the set that she had been using for the last twenty years. Because Ackret's lower ridge was almost non-existent, Respondent recommended a lower cushion denture. Ackret advised Respondent she wanted porcelain teeth.

   
   

3. On July 16, 1981, Ackret returned. Respondent examined her, and preliminary impressions were taken for the full upper and full lower dentures to be constructed with porcelain anterior teeth, and acrylic posterior teeth.

   Final impressions were taken on July 23, 1981; additional measurements and a bite block impression were taken on July 30, 1981; a try-in was done on August 5, 1981; and the dentures were delivered on August 12, 1981.

   
   

4. Thereafter, Ackret returned for adjustments on August 18, 1981; August 31, 1981; November 12, 1981; November 18, 1981; December 15, 1981; January 6, 1982; January 11, 1982; January 19, 1982; February 2, 1982; February 15, 1982; February 24, 1982; March 2, 1982; March 8, 1982; and March 23, 1982. One of those visits involved, according to Respondent's records, a "major adjustment" and on one visit, her dentures were sent back to the lab for rearticulation.

   
   

5. On June 3, 1982, Dr. Marshall A. Brothers examined Ackret on behalf of Petitioner. Ackret complained to him of pain and of not being able to function with her dentures or to retain them in her mouth during functioning. However, Ackret was wearing the dentures when she was seen by Brothers.

   
   

6. Based upon his examination of Ackret and her dentures, Brothers concluded that the dentures Ackret got from Respondent failed to meet minimum acceptable standards due to numerous defects.

   
   

7. The opinion of Brothers fails to take into account the numerous adjustments made to the dentures in an attempt to make Ackret comfortable with her new dentures. The number and kind of adjustments render the denture seen by Brothers to be substantially different than the denture originally fabricated by Respondent. Additionally, Ackret's lower denture had undergone a hard reline by the time she was seen by Brothers.

   
   

8. Although Ackret had complained to Brothers that she could not eat with her new dentures and could not function with them, she in fact was wearing them for her visit to Brothers, and Brothers noted that food had collected on them, indicating that Ackret was in fact using her dentures for eating.

   
   

9. On December 7, 1982, Ackret appeared at the dental office of Dr. Harry

   B. Gaulkin. She advised Gaulkin that her upper denture gave her no problems at all, but that her lower denture was not comfortable. She further advised that she could not chew well with the lower denture, and that it was loose. She then requested that Gaulkin make a new set of dentures for her, both full upper and full lower. Gaulkin initially suggested to Ackret that she simply consider a soft reline on the lower denture since the upper denture was not problematic. After Gaulkin discussed with her her various options and the prices thereof, Ackret left his office to think about what she wanted to have done. She has never returned. Gaulkin is not able to identify Ackret's exact complaints regarding her lower denture and did not note any defects in the set of dentures.

10. A few months prior to the final hearing in this cause, Ackret appeared at Respondent's office complaining that she had broken a tooth off her denture.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

12. The Administrative Complaint filed herein charges Respondent with violating Section 466.028(1)(y), Florida Statutes (1981), in his diagnosis and treatment of Fay Ackret. That section authorizes disciplinary action to be taken against a licensee for:

Being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. . .

Petitioner has failed to meet its burden of proving Respondent guilty of the allegations contained within the Administrative Complaint. Fay Ackret did not testify, and her dentures were not introduced in evidence. The only evidence presented by Petitioner was the testimony of Dr. Brothers, who examined Ackret and her dentures on one occasion only after the dentures, as originally fabricated by Respondent, had been substantially altered by adjustments, rearticulation, and by a hard reline on the lower denture. The testimony of Dr. Brothers alone is not sufficient to meet the burden required of Petitioner in this disciplinary case, particularly when one considers that Ackret was 84 years old with arthritis, and without a lower ridge in her mouth when she went to Respondent seeking dentures; that Ackret had worn the same dentures for approximately 20 years before she sought new ones from Respondent because she had broken her old ones; that Dr. Gaulkin saw Ackret's dentures six months after Brothers saw them, did not find them to be defective or below minimum standards; that no expert saw Ackret's dentures prior to the time that they had been substantially altered; and that almost three years after Respondent delivered Ackret's dentures to her, Ackret appeared at his office to complain that she had broken a tooth off her dentures, thereby indicating that she was still wearing them and using them. Moreover, the testimony of Respondent's several expert witnesses indicates that a number of "defects" identified by Dr. Brothers in actuality involve a difference in the philosophy of practicing dentistry; for example, several experts testified that it is appropriate to alter dentures until the patient is comfortable even though the dentures no longer fit the standard, while Dr. Brothers disagrees with that approach. Accordingly, Petitioner has failed to prove that Respondent has failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing performance, and has therefore failed to prove that Respondent is guilty of incompetence in his treatment of Fay Ackret.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the

Administrative Complaint filed against Respondent herein.

DONE and ORDERED this 20th day of January, 1985, in Tallahassee, Florida.

LINDA M. RIGOT

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 20th day of January, 1985.

COPIES FURNISHED:

Julie Gallagher Attorney at Law

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, NJ 07201

Docket for Case No: 83-003975

Orders for Case No: 83-003975