vs. ) Case No. 85-2266
JOHN W. DELK, )
Respondent. )
After due notice, a formal hearing was held in the above- styled cause before duly designated Division of Administrative Hearings Hearing Officer, J. Lawrence Johnston, on January 22, 1987, in Orlando, Florida.
For Petitioner: Nancy M. Snurkowski, Esq.
By Administrative Complaint filed on June 24, 1985, Petitioner, Department of Professional Regulation, charged that Respondent, John W. Delk, D.D.S., violated various provisions of Chapter 466, Florida Statutes.
Generally, Petitioner has alleged in a two-count Administrative Complaint that the Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance and that the Respondent improperly delegated professional responsibilities to a person he knew or had reason to know that said person was not qualified by training, experience, or licensure to perform them.
At issue in this case is whether Respondent's license as a dentist should be disciplined for the alleged violations set forth in the Administrative Complaint.
At all times relevant, Respondent, John W. Delk, held a license to practice dentistry, number DN 0005106, issued by the State of Florida, Department of Professional Regulation's Board of Dentistry.
James Whisman was a patient at the Delk Dental Center from July 14, 1981 until May 22, 1984. Dr. John W. Delk was the dentist of record for James Whisman.
On July 14, 1981, Dr. John W. Delk prepared teeth #6, 7, and 8 for crown and bridgework which included the placement of a post in tooth #8.
On July 29, 1981, James Whisman returned to the Delk Dental Center to have the crowns on #6, 7, and 8 seated. On July 29, 1981, Don Berman seated permanent crowns on teeth #6, 7, and
8 for James Whisman using a permanent cement.
Don Berman was a technician (dental assistant) for the Delk Dental Center and was not a licensed dentist or dental hygienist. He did not have an expanded duties certificate.
On August 11, 1981, Respondent diagnosed a need, and had Berman prepare a treatment plan, for future dental work for James Whisman.
During the establishment of Mr. Whisman's August 11, 1981 treatment plan, there was no documentation or oral advisement that an abnormality, such as a retained root tip or abscess, existed at tooth #10.
Later, the bridge work on teeth #6, 7, 8 became loose, and Whisman called for an appointment with the Delk Dental Center. On September 21, 1981, the crowns on teeth #6, 7, and 8 were re-cemented with a permanent cement, zinc phosphate, by technician Don Berman. Dr. John W. Delk did not supervise Don Berman when he used the permanent cement to seat the crowns on teeth #6, 7, and 8 for a second time.
From February 8, 1982 through February 25, 1982, Dr. James Costello provided dental services to James Whisman, specifically preparing teeth #9-15 and teeth #1-5 for crowns and bridgework and seating the crowns and bridgework.
Dr. Costello did not advise James Whisman that an abnormality, specifically a retained root tip or abscess, was present at tooth #10.
The patient chart for James Whisman failed to document that tooth #10 had a retained root tip and abscess present.
The failure to chart a retained root tip and abscess at tooth #10 is critical to diagnosis and treatment.
Fourteen months later, James Whisman returned to the Delk Dental Center for continued dental work. Respondent on March 6, 1984, diagnosed the need, and had Berman prepare a treatment plan, for fixed bridge-splints on teeth #19-22 and #27- 30.
On March 7, 1984, Dr. John W. Delk prepared teeth #19-
22 and #27-30 for crown and bridgework.
On March 9, 1984, Don Berman cemented temporary crowns on teeth #27-30 without supervision from Dr. John W. Delk.
On March 12, 1984, Don Berman re-cemented temporary crowns on teeth #27-30, using a permanent cement called Durelon, without supervision from Dr. John W. Delk.
On April 19, 1984, Don Berman used a permanent cement, Durelon, to seat the crown and bridgework on teeth #19-22 and #27-30 without supervision from Dr. John W. Delk.
On May 15, 1984, James Whisman returned to the Delk Dental Center complaining of loose teeth in the area of #7 and 8.
On May 22, 1984, James Whisman returned to the Delk Dental Center continuing in his complaint that teeth #7 and 8 were loose.
On May 22, 1984, Don Berman did an oral inspection of teeth #7 and 8 and with the aid of a dental instrument removed said teeth. Teeth #7 and 8 fractured off inside the crowns.
On May 22, 1984, based on what Don Berman had reported to him, Respondent diagnosed the need, and had Berman prepare a treatment plan, for Mr. Whisman which encompassed an estimate for two crowns, one root canal filling and two pin and core build-ups for a total fee of $708.00.
On May 22, 1984, Dr. John W. Delk did not examine Mr. Whisman nor did Dr. Delk supervise the actions of Don Berman.
Don Berman re-cemented the crowns for teeth #7 and 8 using a permanent cement, Durelon, with no supervision from Dr. John W. Delk.
James Whisman suffered from areas of sensitivity around the bridgework, poor dental work and an unnoticed abscess and retained root tip.
James Whisman discontinued the dental work with the Delk Dental Center and sought a second opinion from Dr. Albert P. Hodges on June 7, 1984.
After the services performed by Dr. Delk and/or his employees, an examination of James Whisman's teeth revealed dental work that fell below the standard of care as recognized by the prevailing peer community.
The standard of care for crown and bridgework recognized by the prevailing dental peer community is as follows: No open or shy margins around the crowns; no active decay present; proper retention in multiple-unit splints; proper dowel lengths in crowns that are needed to support multiple unit bridges; proper occlusal contact and recognition; and treatment of any pathological condition prior to crown and bridge placement.
Specifically, tooth #7 had margins that were open and shy, active decay was present and there was a distinct lack of retention to support the two-unit splint. The dental treatment provided on tooth #7 fell below the minimum acceptable standards of care as recognized by the prevailing peer community.
Specifically, tooth #8 had margins that were open, active decay was present and the dowel length was totally inadequate for useful retentive support. The dental treatment provided on tooth #8 fell below the minimum acceptable standards of care as recognized by the prevailing peer community.
Specifically with tooth #10, Dr. Delk failed to diagnose and treat a retained root tip and a pathological condition which was visible and discoverable. The retained root tip and abscess were clearly visible radiographically as early as the July 14, 1981 visit to Dr. Delk's facility. James Whisman was not advised during the course of his treatment that a retained root tip existed and that the pathological condition should be treated prior to the placement of a crown over tooth #10. James Whisman's records, made at Dr. Delk's facility, failed to reflect the existence of the retained root tip and abscess at tooth #10. Failing to chart or notify the patient of the existence of a retained root tip and the accompanying cyst
falls below the standard of care as recognized in the prevailing dental community. The dental treatment provided on tooth #10 fell below the minimum acceptable standards of care as recognized by the prevailing peer community.
Specifically, tooth #20 had margins that were open and shy, it was sensitive to probing, and it was out of occlusion because it had no contact with the opposing tooth when the mouth was in the closed position. The dental treatment provided on tooth #20 fell below the minimum acceptable standards of care as recognized by the prevailing peer community.
Specifically, tooth #21 had margins that were open and shy. The dental treatment provided on tooth #21 fell below the minimum acceptable standards of care as recognized by the prevailing peer community.
Specifically, tooth #22 had margins that were shy. The dental treatment provided on tooth #22 fell below the minimum, acceptable standards of care as recognized by the prevailing peer community.
Specifically, tooth #27 had margins that were shy and the crown was over-contoured causing potential gum irritation and food impaction. The dental treatment provided on tooth #27 fell below the minimum acceptable standards of care as recognized by the prevailing peer community.
Specifically, tooth #29 had margins that were open and shy. The dental treatment provided on tooth #29 fell below the minimum acceptable standards of care as recognized by the prevailing peer community.
Cementing crowns with permanent cement is an irremediable procedure.
Cementing temporary crowns with permanent cement is justified on a short-term basis but only if the procedure is done by a licensed dentist.
To be within acceptable dental standards, a dentist must do a physical oral examination of a patient before developing a treatment plan.
Failure to do a physical oral examination in the development of a treatment plan falls below the minimum standards as recognized in the prevailing peer community.
An assistant with an expanded duties certificate may use temporary cement only to seat temporary crowns provided a licensed dentist provides direct supervision.
CONCLUSIONS OF LAW
Section 466.028(2), Florida Statutes (1985), authorizes the Board of Dentistry to revoke or suspend the license of a dentist and impose an administrative fine, place a licensee on probation, or reprimand or censure a licensee if the licensee is found guilty of committing any of the acts enumerated in that section.
The Administrative Complaint contains two counts charging the Respondent with practicing dentistry below the standard of care as recognized by the dental community and improperly delegating duties to an unlicensed and unqualified person. The evidence presented at the hearing was not only uncontroverted but also met the standard of clear and convincing evidence establishing the guilt of the Respondent on both counts.
Count I of the Administrative Complaint charges the Respondent with practicing below the standard of care in the treatment of crown and bridge restoration. The standard as recognized in the dental community was proved by the evidence. Basically, proper crown and bridgework will pass a visual and radiographic inspection when there are no open or shy margins, no active caries present, proper contour that avoids irritation and food impaction, proper occlusal contact, and proper retention properties through dowel placement or proper fit. The evidence presented at the hearing proved that the crowns lacked integrity due to open and/or shy margins, noted active caries, improper contours which advanced the formation of decay and, most importantly, inappropriate occlusal function. These deficiencies compromised the dental future of Mr. Whisman.
Furthermore, the Respondent's failure to practice within the minimum acceptable standards was evident by his failure to diagnose and treat a serious pathological condition at tooth #10. Finally, the evidence proved that Respondent diagnosed and prepared treatment plans for Whisman without having physically examined the patient.
Based upon the above obvious deviations from the minimum acceptable standards of care, the Respondent is guilty of violating Section 466.028(1)(y), Florida Statutes (1985).
Count II of the Administrative Complaint charges the Respondent with delegating professional duties to a person when
the licensee knew or should have known said individual was not qualified to perform such professional responsibilities.
The evidence presented at the hearing identified Don Berman as the dental technician or assistant who performed procedures on Mr. James Whisman without first having the requisite skills or training.
Chapter 466.024, Florida Statutes (1985), states that a dentist may not delegate irremediable tasks except as provided by law. The statutory definition of irremediable consists of those intra-oral treatment tasks which, when performed, are irreversible. This includes crown and bridge restorations. The use of permanent cement on an intra-oral restoration (crown or bridge) falls within the definition of irremediable. Neither the statutory practice act nor the Board rules permit Don Berman, an unlicensed and untrained individual, to use permanent cement to place either temporary or permanent crowns in a patient's mouth.
Rule 21G-16.01(1), Florida Administrative Code, states that the cementing of temporary crowns and bridges with temporary cement is a remediable task delegable to an assistant. However, Rule 21G-16.02, Florida Administrative Code, further clarifies that, prior to an assistant performing said professional responsibility, the assistant must first have completed satisfactorily formal training approved by the Board of Dentistry. It was proved that Don Berman did not accomplish the requisite training that would have allowed him to seat temporary restorations with temporary cement.
Section 466.024(4), Florida Statutes (1985), provides that a dentist may not delegate to anyone other than another licensed dentist any diagnosis for treatment or treatment planning. There are no Board rules or statutes which would permit Dr. Delk to delegate the professional responsibilities of diagnosis and treatment planning to Don Berman. However, the evidence did not prove that Don Berman diagnosed or created the treatment plans for James Whisman's dental work. These were done--albeit below standards, as mentioned above--by Respondent.
The evidence presented proved that Respondent was guilty of violating 466.028(l)(aa), Florida Statutes (1985), as alleged in the Administrative Complaint.
Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Board of Dentistry enter a final order: (1) holding the Respondent guilty on both counts of the Administrative Complaint; (2) fining Respondent $1000 for
each count, said amount to be paid within 30 days from the signing of the final order or Respondent's license automatically to be suspended until the fine is paid; (3) suspending Respondent's license to practice dentistry for 6 months for each count of the Administrative Complaint, to run consecutively; (4) placing Respondent on probation for 12 months subsequent to the expiration of the suspension period; and (5) conditioning reinstatement of Respondent's license to practice dentistry on successful completion of 100 hours of university credit course work in crown and bridge restorations by the end of the probation period and on an appearance by Respondent before the Board to provide evidence of compliance with the final order.
RECOMMENDED this 3rd day of March, 1987 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1987.
Nancy M. Snurkowski, Esq. Department of Professional
Michael T. Hand, Esq.
John W. Delk, D.D.S.
Wings T. Benton, Esq. General Counsel
(1985), the following rulings are made on Petitioner's proposed findings of fact (Respondent did not submit proposed findings of fact):
1.-3. Accepted and incorporated.
4. Accepted but unnecessary.
5.-8. Accepted and incorporated.
11.-15. Accepted and incorporated.
16. Rejected as not proved. Dr. Costello testified he seated the crowns and bridgework, and the office notes do not reflect that Berman was involved at all. Whisman's memory probably was in error on this point.
17.-20. Accepted and incorporated.
21. Rejected. See 10 above.
22.-29. Accepted and incorporated except the correct date in 24 is March 12, 1984, and the correct teeth in 25 are #19-22, not #19-20.
30. Rejected. See 10 above. 31.-56. Accepted and incorporated.
