STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. )

) CASE NO. 86-3676

CECIL ROLLE, D.D.S., )

)

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 March 20, 1987 in Miami, Florida. The parties waived the time requirement that a Recommended Order be entered within thirty (30) days following the close of bearing. Petitioner submitted post-hearing memorandum supportive of its position which was considered by me in preparation of this Recommended Order. Proposed Findings which are not incorporated in the Recommended Order are the subject of specific rulings in an Appendix to the Recommended Order in this case.

APPEARANCES

For Petitioner: Henry N. Adorno, Esquire

Adorno Allen Schiff & Goodkind, P.A. 1501 Venera Avenue, Park Place II, Suite 240

Coral Gables, Florida 33146

For Respondent: Harold C. Culmer, Esquire, P.A.

5022 Northwest Seventh Avenue Miami, Florida 33127

ISSUE PRESENTED

The issue presented for decision herein is whether or not the Respondent engaged in proscribed conduct, set forth hereinafter in detail, as is more particularly set forth in a two count administrative complaint filed herein dated May 12, 1986.

INTRODUCTION AND BACKGROUND

By its two count administrative complaint filed herein dated May 12, 1986, Petitioner alleged that Respondent failed to make available to a patient or its legal representative, copies of documents in the possession or under control of the licensee which relates to the patient; failed to perform a statutory or legal obligation placed upon the licensee and condition the release of patient's

records upon payment of a disputed fee for services rendered, all in violation of Subsection 466.028(1)(i) and (o) and (bb) and 455.241(1) Florida Statutes (1985).

Petitioner called three witnesses: Attorneys Scott Saperstein, Manual Epelbaum and Respondent, (as an adverse witness) and introduced eight (8) Exhibits which were received in evidence during the hearing.

Respondent testified on his own behalf and introduced two (2) Exhibits.

FINDINGS OF FACT

1. Respondent, Cecil Rolle, during times material was a licensed dentist in Florida having been issued License Number

   DN0005067.

   
   

2. On January 24, 1984, Respondent treated Karen Fuller, a patient. For such treatment, Respondent charged $250 for dental services rendered and Ms. Fuller paid $50 on account. (Petitioner's Exhibit 8). Ms. Fuller never returned for follow- up treatment nor did she pay the outstanding balance of

   $200 for services rendered.

   
   

3. On approximately July 26, 1985, Respondent received a letter and an accompanying executed medical release authorization from Fuller's attorney, Scott Saperstein, requesting copies of "any and all records, charts and x-rays regarding the care and treatment of Karen Fuller." (Petitioner's Exhibit 1).

   
   

4. Respondent failed to provide the records requested in the July 26, 1985 letter until more than one (1) year later on August 11, 1986.

   
   

5. On about September 6, 1985, Respondent received a second written request from attorney Saperstein requesting Ms. Fuller's records. (Petitioner's Exhibit 2). Respondent again failed to provide the requested records.

   
   

6. Shortly after making the September 6, 1955 request, Scott Saperstein spoke to Respondent who advised that he had treated patient Fuller on one occasion, that she had not made payment or still owed money for that visit and that he would not release patient records while the outstanding fee remained unsatisfied.

   
   

7. On October 25, 1985, attorney Saperstein wrote to the Department of Professional Regulation (DPR) advising of Respondent's failure to provide the requested documents and a copy of that letter was sent to Respondent. (Petitioner's Exhibit 3).

   
   

8. On December 10, 1985, Respondent received a letter from DPR requesting that he explain his failure to provide the patient's records to attorney Saperstein. (Petitioner's Exhibit 4).

   
   

9. On January 28, 1986, Respondent sent a written reply to DPR apologizing for having delayed responding to DPR's original request and furnished a summary of treatment he provided to Ms. Fuller on November 24, 1984. (Petitioner's Exhibit 5). However, Respondent offered no explanation as to the reason he did not provide Ms. Fuller's records as requested by her counsel.

10. On February 3, 1986, Respondent received another letter from DPR requesting that he respond to the allegations, i.e., his failure to make patient's records available immediately. (Petitioner's Exhibit 6). Respondent never replied to this second request by DPR.

    
    

11. On July 28, 1986, Respondent received written notification from Karen Fuller's counsel advising of his intent to initiate litigation alleging dental malpractice against Respondent relative to the treatment Petitioner provided Ms. Fuller. (Petitioner's Exhibit 7). On approximately, August 11, 1986, Respondent provided Ms. Fuller's counsel with her original medical records. (Petitioner's Exhibit 8).

    
    

12. Respondent acknowledged that he is required to know the pertinent statutes and rules relating to the practice of dentistry. Respondent also acknowledged that he did not turn over Ms. Fuller's medical records initially based on an informed decision reached after consultation with his attorney and directives from his medical malpractice insurance carrier to the effect that he should not release medical records until his insurance carrier authorized him to do so.

    
    

13. Respondent initially advised attorney Saperstein that since Ms. Fuller had failed to pay the entire fee for services rendered, he would not be releasing copies of her medical records.

    
    

14. Respondent made the decision to withhold Ms. Fuller's medical records until the air was cleared surrounding the competing claims between attorney Saperstein and his malpractice insurance carrier.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes (1985).

    
    

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

    
    

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

    
    

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

    
    

19. Section 466. 028(1)(o), Florida Statutes (1985, authorizes the Petitioner to take disciplinary action against a licensee for:

    
    

    (o) Failing to make available to a patient or client, or to his legal representative or to the department if authorized in writing by the patient, copies of documents in the possession or under control of the licensee which relates to the patient or client.

20. Section 466.023(1)(i), Florida Statutes (1985), authorizes the Petitioner to take disciplinary action against a licensee for:

    
    

    1. Failing to perform any statutory or legal obligation placed upon a licensee.

       
       

21. Section 466.028(1)(bb), Florida Statutes (1995), authorizes the Petitioner to take disciplinary action against a licensee for:

    
    

    (bb) The violation or the repeated violation of the Chapter, Chapter

    455 or any rule promulgated pursuant to Chapter 455 or

    the violation of a lawful order of the Board or Department.

    
    

22. Section 455.241(1), Florida Statutes (1985), authorizes the Petitioner to take disciplinary action against a licensee for failing to provide copies of reports, examination or treatment results including x-rays upon proper request or conditioning the release of such copies upon payment of a disputed fee for services rendered.

    
    

23. Respondent's failure to make available to Karen Fuller's counsel, copies of documents under his possession or control which relate to the treatment provided her amount to conduct within the purview of Section 466. 028(1)(i)and (0), Florida Statutes, and his repeated failure to provide the requested medical records upon request amount to conduct within the purview of Section 466. 028(1)(bb), Florida Statutes.

    
    

24. Respondent's notification to Karen Fuller's counsel, Scott Saperstein, that based on Karen Fuller's failure to pay the requested fee, he would not be releasing the requested medical records until that fee had been paid, constitutes conduct within the purview of Section 455.241(1), Florida Statutes (1995).

RECOMMENDATION

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

1. Respondent pay Petitioner an administrative fine of $1,000 within thirty (30) days after entry of Petitioner's Final Order.

   
   

2. Respondent be issued a written public reprimand by the Petitioner, Board of Dentistry.

RECOMMENDED this 15th day of July, 1987, in 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 15th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3676

Rulings on Petitioner's Proposed Recommended Order

1. Paragraph 8. Accepted as modified in paragraphs 6 and 13, Recommended Order.

2. Paragraph 14. Accepted as modified in paragraph 11, Recommended Order.

3. Paragraph 15. Accepted as modified in paragraph 14, Recommended order.

COPIES FURNISHED:

Henry N. Adorno, Esquire

Adorno Allen Schiff & Goodkind, P.A. 1501 Venera Avenue Park Place II, Suite 240

Coral Gables, Florida 33146

Harold C. Culmer, Esquire, P.A. 5020 Northwest Seventh Avenue Miami, Florida 33127

Van Poole, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Pat Guilford, Executive Director Department of Professional Regulation, Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-003676

Orders for Case No: 86-003676