STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3581

)

LORENZO J. ANDERSON, )

)

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 October 14, 1987, at Bartow, Florida.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

100 South Ashley Drive, Suite 2000 Tampa, Florida 33602

For Respondent: Lorenzo J. Anderson, pro se

5100 North Road 98, Suite 10

Lakeland, Florida 33809

By Administrative Complaint filed March 26, 1986, the Department of Professional Regulation (DPR), Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Lorenzo J. Anderson, Respondent, as a licensed dentist. As grounds therefor, it is alleged that Respondent submitted a false claim for dental services provided and was incompetent in the dental treatment provided to patient Deidre Tomasovic.

At the commencement of the hearing, Respondent stated he would not challenge any evidence submitted by petitioner and asked that he be excused from the hearing room. Respondent submitted a written statement which was admitted into evidence as Exhibit 1 and offered his application and copy of check to pay for a course in risk management and malpractice to be submitted as late filed Exhibit 2. This exhibit has not been received. Thereafter, Petitioner called three witnesses, submitted the deposition (Exhibit 3) of another witness and the license record of Respondent (Exhibit 4).

Treatment accorded proposed findings submitted by Petitioner are contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto Lorenzo J. Anderson was licensed by the Department of Professional Regulation as a dentist in the State of Florida, having been issued license number DN0008311.

   
   

2. On March 12, 1985, Deidre Tomasovic visited the dental office of Respondent for a dental checkup and necessary treatment. Upon arrival at the time scheduled for the appointment Dr. Anderson was not present and the appointment was rescheduled for 11:30 A.M. that same day.

   
   

3. At this scheduled appointment Respondent took x-rays of Tomasovic's teeth for which Patricia Krajack (Tomasovic's mother) paid Respondent $65 by check. Respondent also noted work that needed to be done on several of Tomasovic's teeth and scheduled Tomasovic for an appointment to perform this work. No dental work was performed on Tomasovic.

   
   

4. Tomasovic arrived for the scheduled appointment but Respondent was not present. Whereupon Ms. Krajack asked for the x-rays to take to another dentist to perform the work indicated on Tomasovic. She then learned that the x-rays had been submitted to Krajack's insurance carrier.

   
   

5. Ms. Krajack contacted her insurance carrier to obtain the x-rays and learned that Respondent had submitted a bill for some $875 to the insurance company which included the x-rays for which Krajack had paid as well as work on teeth numbers 10, 11, 15 and 19. (Exhibit attached to Exhibit 3). This dental claim form indicated the dental work was performed on March 12, 25, and April 5, 1985.

   
   

6. Subsequent to the discovery of the claim submitted for unperformed dental work and before any other dental work was performed on her, Tomasovic was examined by Dr. William E. Robinson, D.D.S., who was accepted as an expert in general dentistry in these proceedings.

   
   

7. On the insurance claim form submitted Respondent showed that on tooth No. 19 he accomplished a post and core restoration, a root canal, and covered the tooth with a gold crown. Dr. Robinson's examination showed only a DOLI amalgam filling was needed for tooth No. 19.

   
   

8. On the claim form Respondent showed he performed a composite restoration on tooth No. 10. Dr. Robinson's examination showed only the facial surface of this tooth had decay present.

   
   

9. On the claim form Respondent showed that he accomplished a composite restoration of tooth No. 11 (mesial, facial and lingual) when only the mesial and facial required restoration.

   
   

10. On the claim form Respondent showed he accomplished a mesial occlusal lingual alloy filling whereas Dr. Robinson found only occlusal decay in this tooth.

    
    

11. None of the dental work included on the claim form submitted by Respondent to the insurance company (except the exam and x-rays) was performed on Tomasovic by Respondent.

12. Subsequent to the filing of these charges, Respondent has filed for bankruptcy and indicated he desires to pursue a career other than dentistry (Exhibit 1).

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

14. Respondent is here charged with violating Section 466.028(1)(j), (1), (u), and (y), Florida Statutes, which provide disciplinary action against a licensee may be taken for:

    
    

    1. making or filing a report which the licensee knows to be false, . . . .

       1. making deceptive, untrue or fraudulent representations in the practice of dentistry.

          (u) Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.

          (y) Being guilty of incompetence 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 undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience.

          
          

15. The same act of submitting the false claim to the insurance company is alleged as a violation of subsections (j), (1), and (u) above quoted. The same act, while it may violate several provisions of the statute, may be punished only once. Accordingly, the recommended punishment here proposed is for only one violation, not three.

    
    

16. From the evidence presented, it is clear that Respondent submitted a claim for dental work he did not perform to an insurance company on a claim form clearly indicating the work billed for had been accomplished. At the time this claim was submitted, Respondent knew full well the work listed thereon had not been accomplished. This constitutes fraud in the practice of dentistry.

    
    

17. With respect to the charge of incompetency, the evidence is unrebutted that Respondent showed on the claim form that he performed work which was unnecessary and not indicated after a careful examination of Tomasovic's teeth. For each tooth for which work was indicated as having been performed more work was listed on the claim form than was needed. Here no work was performed by Respondent on Tomasovic's teeth. Accordingly, it cannot be determined by clear and convincing evidence that the unnecessary work shown on the claim form was the result of Respondent's incompetence or merely in furtherence of his fraudulent intent. In license revocation proceedings, Petitioner has the burden to prove, by clear and convincing evidence, the allegations made. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). While the evidence is clear and convincing that Respondent submitted a fraudulent claim relating to the practice of dentistry which he knew to be false, the evidence is not clear and convincing that simply by adding to the fraudulent claim work that was neither done nor indicated, Respondent is also guilty of incompetency.

18. From the foregoing it is concluded that Petitioner has shown by clear and convincing evidence that Respondent is guilty of violating Section 466.028(1)(j), (1), and (u), Florida Statutes, and that Petitioner has failed to prove a violation of Section 466.028(1)(y), Florida Statutes. It is

RECOMMENDED that the license of Lorenzo J. Anderson as a dentist in the State of Florida be revoked.

ENTERED this 12th day of November, 1987, in Tallahassee, Florida.

K. N. AYERS 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 12th day of November, 1987.

APPENDIX

Treatment Accorded Petitioners Proposed Findings

1. Included in HO No. 1. 2-3. Included in HO No. 3.

1. Accepted. However, not deemed necessary to conclusions reached.

2. Included in HO No. 4.

3. Not included as not necessary to conclusions reached. 7-8. Included in HO No. 5.

9. Included in HO No. 7.

10-11. Included in HO No. 3, and Nos. 7-10.

12. Rejected as unsupported by clear and convincing evidence. 13-14. This would be a reasonable assumption if

pure greed and fraud are ruled out as the prime motive for this entry in the claim form.

15-16. Included in HO No. 3 and Nos. 7-10.

COPIES FURNISHED:

David Bryant, Esquire

100 S. Ashley Drive Suite 2000

Tampa, Florida 33602

Lorenzo J. Anderson

5100 North Road 98, Suite 10

Lakeland, Florida 33809

Tom Gallagher, Secretary Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32399-0750

Pat Guilford Executive Director Board of Dentistry

130 N. Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003581

Orders for Case No: 87-003581