STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4937
)
ARTHUR E. WOLLMAN, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 5, 6 and 7 and June 29, 1987 in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Edward Howard Reise, Esquire
2555 Collins Avenue, Suite 309 Miami Beach, Florida 33140-4757
For Respondent: Roger M. Pomerance, Esquire
Post Office Box 024486
West Palm Beach, Florida 33402-4486 and
Steven I. Kern, Esquire 1/ (member of New Jersey Bar)
901 Southwest 17th Street, Suite 203 Fort Lauderdale, Florida 33316
BACKGROUND
By administrative complaint filed on November 20, 1985 petitioner, Department of Professional Regulation, Board of Dentistry, has charged that respondent, Arthur E. Wollman, a licensed dentist, had violated various provisions within Chapter 466, Florida Statutes (1983). The complaint generally alleges that while treating seven patients between 1980 and 1982, respondent made deceptive, untrue or fraudulent misrepre-sentations and was guilty of fraud, deceit or misconduct in the practice of dentistry as proscribed by Subsections 466.028(1)(e) and (u), Florida Statutes (1983), respectively. The charges stem from Wollman allegedly representing to the patients that a porcelain material would be used on crowns being installed on the patient's teeth when in fact Wollman was using a less expensive plastic (acrylic) material.
Respondent disputed the above allegations and eventually requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986). The matter was referred by petitioner to the Division of Administrative Hearings on
December 23, 1986, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated January 26, 1987, and by mutual agreement of the parties, the final hearing was scheduled on May 5, 6 and 7, 1987, in Fort Lauderdale, Florida. A continued hearing was held on June 29, 1987 at the same location. A motion to continue filed by respondent on April 3, 1987 was denied by order dated April 24, 1987.
At final hearing petitioner presented the testimony of Dr. Eli W. Gottlieb, Jean Husarik, Mary Elizabeth Bishop, Garrit Van Triest, Teresa Morris, Sandy K. Bryant and Martin Unger. It also offered or proffered petitioner's exhibits 1-
17 and 19-26. All were received into evidence except exhibits 9, 16, 19, 23, 25 and 26. A ruling was reserved on exhibit 21. Respondent had marked for identification respondent's exhibits 1-15. Only exhibits 1, 2, 4, 8-10, and 13-
15 were moved and received into evidence. 2/
Respondent's motion to dismiss the complaint for failure to state a cause of action was denied at the outset of the hearing. A ruling on respondent's motion to dismiss for alleged probable cause irregularities was reserved and will be dealt with in the conclusions of law portion of this order.
The transcripts of hearing (six volumes) were filed on August 25, 1987. 3/ Proposed findings of fact and conclusions of law were filed by petitioner and respondent on September 8, 1987. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.
At issue is whether respondent's license as a dentist should be disciplined for the alleged violations set forth in the administrative complaint.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Introduction
At all times relevant hereto, respondent, Arthur E. Wollman, held dentist license number DN 0006476 issued by petitioner, Department of Professional Regulation, Board of Dentistry (DPR or the Board). The record does not reflect how long respondent has been licensed, but he has practiced dentistry in South Florida since at least 1979. He presently resides at 2212 Marble Way, Boca Raton, Florida.
When the events herein occurred in 1980, 1981 and 1982, respondent was a practicing dentist in Lighthouse Point, Florida. During this time period, he treated a number of patients, including Mary Bishop, Doris Jenkins, Susan Clunk, Evelyn Bateman, Gerrit Van Triest, Peter Yann and Aaron Freinhar. Their patient records have been received in evidence. According to the administrative complaint, all patients allegedly requested that respondent install a porcelain faced crown on their teeth, and that respondent thereafter actually installed a less expensive plastic (acrylic) crown without advising the patients. The patients in question were all participants in a dental insurance program although the records do not disclose which plan was in effect during a given year. As such, the patient fees were either paid wholly or in part by the insurance company. However, respondent is not charged with improperly billing the patient or company, or exploiting the patient for his financial gain. Finally, his competence is not in issue.
In May, 1983 respondent sold his Lighthouse Point practice to Dr. Eli
W. Gottlieb. Doctor Gottlieb retained all records of patients previously treated by Dr. Wollman. Since the purchase, Dr. Gottlieb has continued treating five of the named patients. Of the seven patients referred to in the administrative complaint, only three appeared at final hearing. In addition, a dental laboratory owner and several office personnel who once worked for Dr. Wollman testified, as did Dr. Gottlieb concerning his analysis of the patient records and subsequent examinations and treatment of the patients. By agreement of the parties, the affidavit and two letters (only one of which is dated) of Dr. Mark Behar were received in evidence. Doctor Behar is a dentist who was employed by DPR to examine five of the patients and determine what type of crown was in their mouths.
For purposes of this proceeding, there are two types of facing on a crown that may be used by a dentist: porcelain and plastic (acrylic). A porcelain faced crown is more expensive and durable, and less susceptible to discoloration and deterioration. Conversely, a plastic crown is less expensive than a porcelain faced crown, is subject to deterioration and discoloration, and may "fall off" the tooth after a period of time. However, the use of an acrylic crown is an acceptable material for dentists to use. As might be expected, the type of metal used in a crown affects the fee charged by the dentist, hence the higher charge for a porcelain faced crown. Finally, it is not unusual for a dentist to change his plan of treatment of a patient after studying models and performing other preparatory work.
Count I - Mary Bishop
Bishop first visited respondent's office around nine years ago. She selected Dr. Wollman since he was an approved provider for her dental insurance plan. In late 1979 or early 1980, Dr. Wollman recommended she have a splint with a crown placed on teeth numbers 18 and 19. She specifically requested a porcelain faced crown. She did so because she knew that plastic was not as good a material as porcelain. Respondent agreed to install that type material and thereafter installed a crown on teeth 18 and 19 around February or March, 1980. He did not advise her that anything other than porcelain facing had been used. Patient records reflect that an acrylic faced crown was ordered for Bishop.
In May, 1986 Bishop visited Dr. Gottlieb who found the crown installed by Dr. Wollman had "deteriorated" and was "discolored," and that Bishop had a gum problem around teeth 18 and 19. He also observed that the crown facing was plastic, and not porcelain. This finding was corroborated by Dr. Behar who found all crowns and bridgework in Bishop's mouth to be of "an acrylic veneer nature."
Count II - Doris Jenkins
Jenkins did not appear at final hearing. Her patient records reflect she first began visiting respondent in November, 1981. In February, 1982 Dr. Wollman ordered an acrylic crown and installed it a month later on Jenkins' tooth number 30. The use of this type of material was confirmed by Dr. Behar who examined Jenkins on a later undisclosed date. An examination of Jenkins' patient records also reflects that the use of a porcelain faced crown may have been discussed with Jenkins during one of her visits to respondent's office in late 1981. However, whether this discussion culminated in an agreement that respondent provide such a crown on tooth 30 is not of record.
Count III - Susan Clunk
This patient also failed to testify at final hearing. Clunk's patient records reflected that a three unit fixed bridge with crowns was installed by respondent on teeth numbers 29, 30 and 31 in January, 1982. The patient charts do not indicate whether the crown facing was porcelain or plastic. However, billing records and an office assistant's testimony tend to show that Clunk was billed for a porcelain faced crown. An examination by Dr. Behar some years later reflected Clunk had no porcelain faced crowns in her mouth. There is no evidence as to whether this work was in accordance with what the patient had requested.
Count IV - Evelyn Bateman
Bateman did not appear as a witness in this proceeding. Her patient records reflect she had a three-unit fixed bridge with a crown installed by respondent in January, 1981 on teeth numbers 13, 14 and 15. However, the records do not show what type of crown was installed in Bateman's mouth. After reviewing the patient records, an office assistant believed the charges in Bateman's billing record were for porcelain faced material. Even so, there is no evidence as to what type of crown Bateman requested when she initially visited Dr. Wollman, or any subsequent representations by respondent.
In 1985 Bateman visited Dr. Gottlieb who found she had an ulcer on the buccal side of her cheek. This was caused by the crowns "eating" her cheek. Gottlieb then observed that the crown was plastic, had "worn off," was discolored, and was "breaking apart." The presence of a plastic crown was also confirmed by Dr. Behar in an examination performed around January, 1985.
Count V - Gerrit Van Triest
Van Triest first used the services of Dr. Wollman in the late 1970s. He was insured under the then-applicable Denti-Care insurance plan.
In March, 1980 Dr. Wollman installed a six-unit bridge with acrylic faced crowns on the patient's teeth numbers 22 through 27. According to Van Triest, he did not advise Dr. Wollman of the type of crown facing that he desired, nor was this matter ever discussed.
In May, 1983 Dr. Gottlieb had an occasion to clean and examine Van Triest's teeth. At that time Gottlieb observed a fixed bridge with acrylic to veneer crowns on teeth 22 through 27, which was consistent with the work previously performed by Dr. Wollman some three years earlier.
Count VI - Peter Yann
Like several other patients, Yann was not a witness at final hearing. Yann's records indicate that a three-unit bridge with crowns was installed on teeth numbers 29, 30 and 31 in February, 1982. There is no evidence as to what type of crowns were requested by Yann, whether any representations were made by respondent, or whether the work performed was consistent with the parties' understanding.
Count VII - Aaron Freinhar
Freinhar was not present at final hearing. His records show that a three-unit splint with crowns was installed on teeth numbers 3, 4 and 5 by Dr. Wollman in December, 1981. The records also reflect that respondent ordered a plastic type facing on the crown. However, there is no evidence as to what type of crown, if any, Freinhar had requested, or whether subsequent representations were made by respondent.
I. Miscellaneous
In a letter dated March 27, 1986 from respondent to DPR counsel, Dr. Wollman expressed surprise over the charges and blamed any problems arising out of this proceeding with "laboratory deception." A laboratory owner denied this, and said all orders were filled in accordance with the dentist's order. The laboratory owner's testimony is deemed to be more credible and is hereby accepted. Respondent also acknowledged, by answer to interrogatory, that there was "no intentional misrepresentation to any patient," that the "use of acrylics was dentally justified in those patients and was based upon Dr. Wollman's judgment at the time," and that "any discrepancy in charges was either unintentional or done by other individuals without Dr. Wollman's knowledge."
Jean Husarik was an employee of Dr. Wollman when the above events occurred. She stated that during the years in question Dr. Wollman had frequently charged patients for porcelain faced crowns and later installed the less expensive plastic faced crowns. Husarik also recalled a conversation with respondent at his home when he acknowledged doing so for financial gain. This testimony is found to be credible and is hereby accepted.
A probable cause panel on this matter was convened on October 18, 1985. The transcript of hearing of that meeting reflects three Board members were present and voted to find probable cause against respondent. The discussion by the panel members reads as follows:
DR. SINGLEDECKER: All right. I would like to proceed to the next case: Arthur Wollman, 0055693 and 52335.
This is a case where there were seven Counts involving the subject making acrylic to metal crowns where the patient was informed that they were going to be getting porcelain fused to metal crowns.
And the charges: The dentist is no longer in that practice, and he sold his practice. And the subsequent treating dentist --
Apparently, these patients had come into the
office, and all of them had reported that they were of the understanding that their crown was to be porcelain fused to metal. And I believe it was six of the patients, either six or seven --
How many Counts were there? DR. FERRIS: Seven.
DR. SINGLEDECKER: The last Count was repeated.
Yes. There were seven patients, and all of these have the same thing reported. And that would constitute a violation of 4660281L by making deceptive, untrue or fraudulent misrepresentations in the practice of dentistry; and, 4660281U by being guilty of fraud,
deceit or misconduct in the practice of dentistry.
Some comments on the case: Some of the subjects couldn't be reached but there were at least three or four instances in here where the subjects could be reached. And a consultant did take a look at the case and verify that indeed the case was acrylic to metal. And the subsequent treating dentist said that.
And all those patients, even in the records it was written down, porcelain to metal. But on the laboratory work authorizations, which were included, acrylic to metal was requested.
DR. FERRIS: I am going to move finding a probable cause on the eight Count Administrative Complaint before us, namely, Case Numbers 55693 and 52335.
DR. SINGLEDECKER: I'll second.
It just seems that with the number of times that this was repeated, that there wasn't just a single instance of a mistake where something was written in the record and then in the laboratory something else happened. It seems that by the repeated number of times that this was done, that it seemed to be an intentional thing that was done.
DR. FERRIS: You also have the testimony of the dental hygienist and the office manager that supports that the laboratory work orders and the implication throughout the investigative report that this is a pattern with the individual, consistent with the statement that was made in the investigative report, that many of the patients were in a certain dental plan in which fillings came free. And so he tended to defer smaller dentistry until it got to the point where it would be crowns, it would be bridge work, and therefore, would be compensated back. He would be compensated back.
It was a consistent pattern of fraudulent activity in pursuit of his practice.
MR. GREENE: Call the question.
DR. SINGLEDECKER: All those in favor of finding probable cause on the eight Count Administrative Complaint signify by saying aye.
THE PANEL: Aye.
DR. SINGLEDECKER: Those opposed? THE PANEL: (No response.)
DR. SINGLEDECKER: I would like to move that we file an Administrative Complaint on those charges.
THE PANEL: Second. MR. GREENE: Third.
DR. SINGLEDECKER: Is there any other discussion?
DR. FERRIS: I would get in the form of discussion just because we are not going to discuss penalties unless they jump out at us. I would like to ask
Ms. Gallagher what she thinks she would go for in a case like this.
MS. GALLAGHER: I would think a minimum of three months' suspension. If it bears out the way we've alleged it, that it was fraudulent or was a mistake or some misunderstanding, then I would think a minimum of
three months' suspension and a fine comparable to our costs or up to the maximum allowed by law.
DR. FERRIS: Right on.
DR. SINGLEDECKER: All those in favor of filing an Administrative Complaint signify by saying aye.
THE PANEL: Aye.
DR. SINGLEDECKER: Opposed?
THE PANEL: (No response.)
After probable cause was determined, an adminis- trative complaint was filed on November 20, 1985, and served on respondent. The complaint embodied the panel's action. The complaint was eventually forwarded to the Division of Administrative Hearings on December 23, 1986. Although not altogether clear, the delay in forwarding the case to the Division was caused by the efforts of the parties to reach an amicable settlement. By notice of hearing initially issued on January 26, 1987, the final hearing was scheduled for May 5, 6 and 7, 1987.
By two motions to dismiss filed on April 23, 1987 respondent raised for the first time alleged irregularities in the probable cause and investigative phases of this proceeding. During the course of the hearing itself, additional alleged irregularities in the process were raised as grounds for dismissing this action.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).
Preliminarily, several pending motions require discussion. First, respondent has moved to dismiss the administrative complaint on a number of grounds, all involving alleged irregularities in the probable cause process or during the investigative stage, and all of which predate the issuance of the complaint. Before addressing the merits of these motions, the matter of their timeliness and prejudice to respondent is of concern. The courts have held that a motion to dismiss based upon an agency's failure to comply with the requirements of Subsection 455.225(3), Florida Statutes, is not a jurisdictional matter. Beckum v. State, Department of Professional Regulation, Board of Optometry, 385 So.2d 276, 277 (Fla. 1st DCA 1983). 4/ Therefore, such grounds must be "properly and promptly asserted" or are deemed to be waived. Sheppard
v. Board of Dentistry, 385 So.2d 143, 146 (Fla. 1st DCA 1980); Palacios v. The Florida Department of Insurance, 395 So.2d 243, 244 (Fla. 3rd DCA 1981). Cf. South Broward Citizens for a Better Environment, Inc. v. South Broward County Resource Recovery Project, Inc., 502 So.2d 9 (Fla. 1st DCA 1987) (non- jurisdictional motions to dismiss must be filed within twenty days after service of petition). In addition, the burden is on the licensee to demonstrate that the fairness of the proceeding has been impaired by this alleged "material" error in procedure. Beckum at 277. Applying these principles to the facts at hand, it is apparent the motions were not "properly and promptly asserted," and are therefore untimely. This is because (a) the complaint was served on respondent in November, 1985, (b) he was on notice that the matter had been forwarded to the Division of Administrative Hearings for hearing in December, 1986, and (c) the alleged irregularities were not raised until six working days before final hearing in May, 1987 and during the hearing itself. Even if the motions could be deemed to be timely, they either have no merit, or if the irregularities in fact occurred, they have not been shown to prejudice Dr.
Wollman in the preparation of his case, or to hinder him in learning the nature of the charges to be tried. This being so, the motions to dismiss are hereby denied. 5/
Secondly, respondent has filed a post-hearing objection to the introduction of petitioner's exhibit 8. The exhibit contains the affidavit of Dr. Mark Behar and two letters from Behar to DPR concerning his examination of the patients in question. Since one of the letters is undated and has no indicia of when the examinations were performed, and portions of the findings relate to teeth not referred to in the administrative complaint, those parts of the exhibit are deemed irrelevant or to have very little weight, if any, and will be disregarded. Petitioner's motion to strike respondent's pleading is accordingly denied.
Third, petitioner has moved to strike the amended proposed order submitted by respondent as being untimely. Since the initial and amended proposed orders are identical except for one case citation, the motion is hereby denied.
Finally, petitioner has moved again to have received into evidence what purports to be certain Denti-Care fee schedules and a letter from a vice- president of Denti-Care. Because the documents have not been properly authenticated, the undersigned's earlier ruling which sustained respondent's objection to petitioner's exhibits 25 and 26 is reaffirmed. Post-hearing requests by petitioner to have the undersigned reconsider earlier evidentiary rulings on exhibits 9, 16, 19 and 23 are also hereby denied. A similar request as to exhibit 18 is denied since counsel never attempted to move the exhibit into evidence.
Petitioner's exhibit 21 is received in evidence.
Because respondent's dental license is at risk, the agency must substantiate its allegations with clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). This standard will be used to weigh the evidence.
The administrative complaint contains eight counts and is based wholly upon respondent's treatment of seven patients. It is charged that by reason of his conduct, Dr. Wollman violated Subsections 466.028(1)(1), (u) and (bb), Florida Statutes (1983). Those subsections authorize petitioner to take disciplinary action against a licensee for the following acts:
* * *
Making deceptive, untrue, or fraudulent representations in the practice of dentistry.
* * *
(u) Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.
* * *
(bb) The violation or the repeated violation of this chapter, chapter 455, or any rule promulgated pursuant to chapter 455 or this chapter; or the violation of a lawful order of the board or department previously entered in a disciplinary hearing; or failure to comply with a lawfully issued subpoena of the board or department.
By clear and convincing evidence, it has been established that Dr. Wollman promised to install a porcelain faced crown in Mary Bishop's teeth numbers 18 and 19 but failed to do so. He also failed to advise her that a less expensive and durable plastic crown would be installed. By so doing, respondent made a deceptive and untrue representation to Bishop and committed misconduct in the practice of dentistry. These acts constitute a violation of Subsections 466.028(1)(1) and (u), Florida Statutes (1983). Therefore, Count I has been substantiated.
The evidence is less than clear and convincing that similar misrepresentations and misconduct occurred with respect to patients Jenkins, Clunk, Bateman, Van Triest, Yann and Freinhar. In reaching this conclusion, the undersigned has considered the accepted testimony of witness Husarik, but notes that her general knowledge of Dr. Wollman's behavior, and his admission of misconduct in her presence, do not establish that the six patients in question were so deceived. The undersigned has also considered the patient records which tend to show that Dr. Wollman may have discussed using a porcelain faced crown with the patient, and that the charges recorded on the records were those generally made for porcelain faced crowns. However, even if this is true, there is no evidence that the patient requested this type of crown, or that Dr. Wollman agreed to use that material. Further, respondent has not been charged with submitting improper claims to the insurance companies or exploiting the patients for his financial gain. Therefore, since the evidence is not clear and convincing, Counts II-VII must fail. Ferris, supra.
The final count rests upon there being a "repeated violation" of a provision of Chapter 466. Since only one count has been proven, Count VIII must also fail.
In his proposed order, DPR contract counsel has suggested respondent be fined $25,000 fine and that his license be revoked. As to Count I, the only proven charge, he suggests a fine of $2,000. Given the circumstances of this case, a $2,000 fine to be paid within thirty days from date of Final Order and a thirty day suspension of respondent's license are appropriate.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as to Count I and that all
other charges be dismissed. Respondent should be assessed a $2,000 fine and his license should be suspended for thirty days.
DONE AND ORDERED this 25th day of September, 1987, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
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 25th day of September, 1987.
ENDNOTES
1/ Mr. Kern was authorized to make a special appearance in this matter by order dated March 16, 1987.
2/ Respondent's exhibits 2A and 4A (not moved into evidence) are a part of petitioner's exhibits 1 and 4, respectively, and are already in evidence. Two separate exhibits were inadvertently marked as petitioner's exhibit 8. The first was an affidavit and attachments of Evelyn Bateman which were proffered but not received in evidence. The second was the affidavit and attachments of Dr. Mark Behar which have been received in evidence subject to weight and relevancy constraints.
3/ Without advising opposing counsel or the undersigned, petitioner's contract counsel apparently instructed the court reporter to delay filing the transcript until mid or late August. Therefore, the transcript of the hearing on June 28, 1987 was not filed until August 25, 1987, or some nine weeks after the hearing. This contributed to a delay in processing the case to a prompt conclusion.
4/ Because such matters are not jurisdictional, they cannot be raised on appeal until after the final agency order. Beckum, supra. Therefore, the fact that a court may later invalidate a proceeding because of a probable cause irregularity does not mean that a motion to dismiss need not be promptly filed. Indeed, if such a motion is promptly filed, and then denied by the agency or Hearing Officer, the court would have no opportunity to review that ruling until after the administrative process had ended. No case cited by respondent states, or even suggests, that probable cause matters can be raised at any time, including at final hearing.
5/ The transcript of the probable cause meeting reflects the panel understood the nature of the charges, made a "meaningful" determination of probable cause, and that a 3-0 vote was rendered. Other alleged errors in the investigative process were either not proven, were harmless in nature, or were not shown to have prejudiced respondent in defending against these charges.
APPENDIX
Petitioner:
Covered in finding of fact 1.
Covered in finding of fact 5.
Generally covered in findings of fact 5 and 6.
Covered in finding of fact 7.
Partially covered in finding of fact 7. The remainder has been rejected as being irrelevant since there is no evidence that the work performed was inconsistent with the patient- dentist understanding, and teeth numbers 19 and 20 are not in issue. Finally, Dr. Wollman has not been charged with overbilling the insurance company or exploiting the patients for financial gain.
Rejected as being hearsay and incompetent. The findings are
based upon an affidavit that purportedly supplements and explains Dr. Behar's affidavit and letters. But,
Dr. Behar's undated letter refers to Jenkins' teeth numbers 19, 20 and 31, none of which are cited in the administrative complaint. To the extent they supplement Dr. Behar's affidavit and his finding that Jenkins had no porcelain crowns, the findings are cumulative.
Partially covered in finding of fact 7. Those findings relating to insurance fees are rejected as being irrelevant.
Generally covered in finding of fact 9.
Partially covered in finding of fact 10. The remainder is rejected as irrelevant since Dr. Wollman's competence is not in issue.
Partially covered in finding of fact 10 as to Bateman. The remainder has been used in other findings to the extent it is relevant.
Rejected as being hearsay which does not supplement or explain other competent evidence. There is no competent evidence of record to establish that Bateman requested and Dr. Wollman agreed to install porcelain faced crowns.
Partially covered in findings of fact 11 and 12. The remainder is rejected as not being supported by competent evidence.
Covered in finding of fact 12 since Van Triest's testimony has been accepted as being credible.
Partially used in finding of fact 14. The remainder has been rejected as being irrelevant.
Partially used. Those findings that purport to relate
Dr. Wollman's conversation with the patient are rejected as not being supported by competent evidence. The remainder is rejected as being irrelevant or unnecessary.
Rejected as being unnecessary.
Rejected as either being irrelevant or unnecessary to a resolution of the charges.
Covered in finding of fact 16.
Covered in finding of fact 16.
Covered in finding of fact 17.
Rejected as not being credible and competent to establish the appropriate fees charged by insurance companies during the years in question.
Rejected since the insurance fees are not in evidence. Further, the proposed findings relating to improper charges are irrelevant since improper billing is not in issue.
Rejected as being unnecessary or irrelevant.
Partially covered in finding of fact 16. The remainder is rejected as being irrelevant or conclusions of law.
Respondent:
Covered in finding of fact 1.
Rejected since Dr. Gottlieb's testimony, where relevant, has been accepted as being credible.
Rejected since the undersigned has accepted the patient records as being credible and accurate evidence.
Covered in finding of fact 4.
Rejected to the extent Husarik's testimony is accepted in finding of fact 17.
Covered in finding of fact 4.
Covered in finding of fact 2.
Rejected as being contrary to the more persuasive evidence.
Rejected in part as being contrary to the more persuasive evidence.
Covered in finding of fact 7.
Covered in finding of fact 8.
Covered in finding of fact 9.
Covered in finding of fact 12.
Covered in finding of fact 14.
Covered in finding of fact 15.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected to the extent Unger's testimony is accepted in finding of fact 16.
Covered in conclusions of law.
Rejected as being contrary to the evidence.
COPIES FURNISHED:
Edward Howard Reise, Esquire Suite 309
2555 Collins Avenue
Miami Beach, Florida 33140-4757
Roger M. Pomerance, Esquire Post Office Box 024486
West Palm Beach, Florida 33402-4486
Steven I. Kern, Esquire Suite 203
901 Southwest 17th Street
Fort Lauderdale, Florida 33316
Tom Gallagher, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Joseph A. Sole, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Nancy Snurkowski, Esquire
130 North Monroe Street Tallahassee, Florida 32399-0750
Ms. Pat Guilford Executive Director Board of Dentistry
130 North Monroe Street Tallahassee, Florida 32399-0750
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION
Petitioner,
vs. CASE NUMBER 86-4937
LICENSE NUMBER DN 0006476
ARTHUR E. WOLLMAN, D.D.S.,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on November 7, 1987, in Key West, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as exhibit A) in the case of Department of Professional Regulation, v. Arthur E. Wollman, D.D.S., Case Number 86-4937. At the hearing, Petitioner was represented by Nancy M. Snurkowski, Esquire and Edward Howard Reise, Esquire.
Respondent was present and was represented by Roger M. Pomerance, Esquire and Steven I. Kern, Esquire. The parties have each filed exceptions to the Hearing Officer's Recommended Order, upon which the Board makes the following rulings.
RULING ON PETITIONER'S EXCEPTIONS TO THE RECOMMENDED ORDER
Petitioner's Exceptions to Statement of Background, paragraphs one, two three and four are accepted. These paragraphs, as the parties have stipulated, served to correct typographical errors in the Hearing Officer's Recommended Order. Paragraph four is accepted since there is no competent substantial evidence to support footnote number three in the Hearing Officer's Recommended Order.
Paragraph one of Petitioner's Exceptions to Findings of Fact is accepted. There is no competent substantial evidence to support the Hearing Officer's finding set forth in paragraph two that "[a]s such, the patient fees were either paid wholly or in part by the insurance company."
Paragraph two is accepted. The Administrative Complaint alleges that patients paid for services which were not render and alleges that this constitutes a violation of the practice act. Accordingly, the Hearing Officer's
determination that "respondent is not charged with improperly billing the patient or company... is incorrect.
Paragraph three is accepted. As the record reflects, and the parties have stipulated, two patients testified at the hearing rather than three as noted by the Hearing Officer.
Paragraph four is rejected. The Hearing Officer's finding was based upon competent substantial evidence, specifically the testimony of Dr. Gottlieb.
Paragraph five which takes exception to the Hearing Officer's finding of fact set forth in paragraph four that "the type of metal used in a crown affects the fee charged by the dentist, hence the higher charge for a porcelain faced crown" is accepted. There is no competent substantial evidence of record supporting this conclusion. The record reflects that the type of metal is not related to the higher charge for a procelain faced crown as opposed to an acrylic veneer crown. Each type of crown is fused to a metal base.
That portion of the exception appearing in paragraph six relating to dentists changing a plan of treatment after studying models and performing other preparatory work is rejected. There is competent substantial evidence to support the Hearing Officer's finding through the testimony of Dr. Gottlieb. (May 5, 1987 hearing, transcript page 216) At hearing, Petitioner withdrew that portion of its exceptions appearing in paragraph six which began at the top of page four of Petitioner's exceptions and continued through the notation "(Transcript 5/6/87 page 104)." The remaining excep ons set forth in paragraph six are rejected as consisting of argument.
Petitioner withdrew the exceptions set forth in paragraphs seven, eight, nine, ten and eleven of its Exceptions to Findings of Fact.
Petitioner's exception set forth in paragraph one of its Exceptions to Conclusions of Law is accepted. The Board finds, and the parties so stipulated, that the Hearing Officer's conclusions of law set forth in paragraph two of the Recommended Order are incorrect to the extent set forth in Petitioner's exceptions and are not supported by competent substantial evidence.
Numbered paragraph two of Petitioner's Exceptions to Conclusion of Law consists of seven paragraphs. The first three paragraphs are rejected as argument regarding the weight of the evidence. Petitioner withdrew the remaining paragraphs.
Petitioner withdrew its exceptions set forth in paragraphs three and four of its Exceptions to Conclusions of Law. Petitioner did not withdraw the exceptions set forth in paragraph five but stated that this exception remained only as a clarification for the Board's benefit. Accordingly, no rulings are necessary on these paragraphs.
Petitioner's exceptions set forth in Paragraph six of its Exceptions to Conclusions of Law are rejected. Petitioner withdrew this exception to the extent that it related to patient Van Triest. The Board finds that the Hearing Officer's conclusions are supported by competent Substantial evidence and that the Hearing Officer's judgment of the credibility of witnesses and the weight of the evidence must be Sustained.
Petitioner withdrew the exceptions set forth in paragraph seven and eight of its Exceptions to Conclusions of Law with the reservation that it did take exception to the penalty recommended by the Hearing Officer.
Petitioner withdrew its Exceptions to Evidentiary Rulings.
RULINGS ON RESPONDENT'S EXCEPTIONS TO RECOMMENDED ORDER
Respondent's numbered paragraph one of his Exceptions to Recommended Order consists of six paragraphs. The first paragraph is rejected. The Hearing Officer's Conclusion of Law set forth in paragraph six is supported by competent substantial evidence, specifically the testimony of Ms. Bishop and Dr. Gottleib, dental records and the lab orders. The second paragraph is rejected as consisting of argument regarding the weight of the evidence and credibility of the witnesses. The third paragraph is rejected as argument. The fourth paragraph is rejected. The Hearing Officer's conclusions regarding the cost of crowns and the material used are Supported by competent substantial evidence, specifically through the testimony of Mr. Unger. The sixth paragraph is rejected as argument.
Paragraph two of Respondent's Exceptions to Recommended Order is rejected as consisting of argument.
Paragraph three of Respondent's Exceptions to Recommended Order is rejected. The Hearing Officer's finding of fact set forth in paragraph three is supported by competent substantial evidence, specifically the testimony of Dr. Gottleib and Petitioners's Exhibit Eight (the affidavit and two letters Dr. Mark Behar).
Paragraph four of Respondent's Exceptions to Recommended Order is rejected. There was competent substantial evidence to Support the Hearing Officer's findings, specifically the testimony of Dr. Gottleib and Mr. Unger.
Paragraph five of Respondent's Exceptions to Recommended Order is rejected. The Hearing Officer based his findings upon competent substantial evidence and his judgment of the credibility of witnesses. Specifically, the lab prescription written by Respondent and confirm through Mr. Unger's testimony.
Paragraph six of Respondent's Exceptions to Recommended testimony of Ms. Husarik. Judgment as to the credibility of the witnesses is within the sole purview of the Hearing Officer.
Paragraph seven of Respondent's Exceptions to Recommended Order is rejected. The Hearing Officer's findings are Supported by competent substantial evidence and it is within the province of the Hearing Officer to judge the weight and credibility of evidence admitted.
Paragraph eight of Respondent's Exceptions to Recommended Order is rejected as consisting entirely argument.
FINDINGS OF FACT
The Hearings Officer's findings of fact are approved and adopted and are incorporated herein by reference with the following exceptions necessitated by the Board's rulings on exceptions filed by the parties:
The portion of the Recommended Order labeled BACKGROUND" is amended to reflect on page two of the Recommended Order that the statute under which Petitioner proceeded was subsection 466.028(1)(1), (u), and (bb), Florida Statutes, (1983). The last sentence on page two of the Recommended Order is amended to read: "A motion to continue dated April 21, 1987, was denied by order dated April 24, 1987." The second sentence appearing on page three of the Recommended Order is amended to read: "It also offered or proffered Petitioner's exhibits 1 through 26." Footnote number three of the Recommended Order is denied.
Beginning with the second line on page five of the Recommended Order, this finding of fact is amended to read: "The patients in question were all participants in a dental insurance program, although the records do not disclose which plan was in effect during a given year. However, Respondent is not charged with exploiting the patient for his financial gain. Finally, his competence is not in issue."
Finding of Fact number three appearing on page five of the Recommended Order is amended to reflect that two patients appeared at final hearing.
The following sentence which appears on page six of the Recommended Order as part of paragraph four of the Findings Fact is deleted:
"As might be expected, the type of metal used in a crown affects the fee charged by the dentist, hence the higher charge for a porcelain based crown."
There is competent, substantial evidence to support the Board's findings.
CONCLUSIONS OF LAW
The Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference with the following exception necessitated by the Board's rulings on exceptions filed by the parties. The second sentence of the second paragraph of the Hearing Officer's Conclusion of Law is amended to read: "First, Respondent has moved to dismiss the administrative complaint on a number of grounds, all involving alleged irregularities in the probable cause process of during the investigative stage."
There is competent, substantial evidence to support the Board's conclusions.
RECOMMENDED PENALTY
The Hearing Officer's recommendation regarding penalty is hereby rejected. After a review of the complete record, the Board finds that the charge proven against Respondent is of sufficient gravity to warrant an increased penalty. The evidence is clear that Respondent made deceptive, untrue or fraudulent representations in the practice of dentistry and is guilty of fraud, deceit or misconduct in the practice of dentistry. Respondent's conduct innured to his financial benefit and is totally contrary to a dentist's responsibility to deal fairly and responsibly with his patients. The patient in this case, Ms. Bishop, had specifically requested porcelain crowns which Respondent agreed to provide. (May 7, 1987 transcript pages 44 and 46.) The patient had a reasonable expectation that her request would be honored and the evidence reflects no medical reason for use of acrylic rather than porcelain crowns. In any case, substitution of acrylic crowns for requested porcelain
crowns is totally inappropriate without consent of the patient. Further, the patient was charged for dental work she did not receive and has subsequently had to have the dental work redone. (May 7, 1987 transcript pages 46 and 48 Any act of fraud in the practice of dentistry is extremely serious but is percent exacerbated by the increased risk to a patient occasioned by the performanced of irremediable tasks. See Section 466.003(11), Florida Statutes.
WHEREFORE, it is ORDERED AND ADJUDGED that Respondent violated Section 466.028(1)(1) and (u), Florida Statutes. Respondent shall pay an administrative fine in the amount two thousand dollars ($2,000) and shall be suspended for a period of twelve months and for an indefinite period thereafter until such time that he has completed two credit hours or 24 to 30 clock hours of continuing professional education in ethics. This continuing education shall be in addition to continuing education credits required for renewal of licensure.
This order becomes effective upon being filed with the Board Clerk.
The parties are hereby notified that they may appeal his order by filing one copy of a Notice of Appeal with the clerk of the Department of Professional Regulation and by filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty days of the date this order is filed.
DONE AND ORDERED this 25th day of January, 1988.
Robert T. Ferris, D.D.S., Ph.D. Chairman
Board of Dentistry
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing final order has been forwarded by Certified United States Mail this 4th day of February, 1988 to Dr. Arthur E. Wollman, 1121 Marble Way, Boca Raton, Florida 33432; Roger
M. Pomerance, Esquire, Post Office Box 024486, West Palm Beach, Floirda 33402- 4486; Steven I. Kern, Esquire, Suite 203, 901 Southwest 17th Street, Fort Lauderdale, Florida 33316; and by hand delivery to Nancy M. Snurkowski, Esquire and Edward Howard Reise, Esquire, 130 North Monroe Street, Tallahassee, Florida 32399-0750.
William H. Buckhalt, C.P.M. Executive Director
Board of Dentistry
130 North Monroe Street Tallahassee, FL 32399-0750 (904)488-6015
| Issue Date | Proceedings |
|---|---|
| Sep. 25, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 25, 1988 | Agency Final Order | |
| Sep. 25, 1987 | Recommended Order | Dentist found guilty of making untrue statements to patients by using plastic instead of porcelain crowns. |
