STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2552

)

DAVID E. MURRIN, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 1, 1989, at Fort Pierce, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Ray Shope, Esquire

Department of Professional Regulation 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

For Respondent: William Furlow, Esquire

Ratz, Rutter, Haigler, Alderman, Eaton, Davis & Marks, P.A.

Post Office Box 1877 Tallahassee, Florida 32302-1877

ISSUES AND INTRODUCTION

This is a license discipline case in which the Department of Professional Regulation seeks to have disciplinary action taken against the Respondent on the basis of allegations set forth in an Administrative Complaint filed April 29, 1988. The Respondent is charged with one count of violating Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

At the commencement of the hearing, the parties filed a Joint Prehearing Stipulation in which they stipulated to certain amendments to the Administrative Complaint, stipulated to certain factual matters, and stipulated to the receipt into evidence of certain records. The parties also stipulated to the late filing of the depositions of Dr. Jordan, Dr. Braunstein, and Dr. Kilgallen. At the hearing, the Petitioner presented the testimony of two witnesses and offered four exhibits which were received in evidence. The Respondent testified on his own behalf, presented the testimony of one other witness, and offered three exhibits which were received in evidence.

Subsequent to the hearing, the transcripts of the depositions of Dr.

Jordan, Dr. Braunstein, and Dr. Kilgallen were filed, and on March 24, 1989, the transcript of the formal hearing was filed. Thereafter, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. (The Respondent also filed a written argument in support of his proposals.) The parties' post-hearing submissions have been carefully considered during the formulation of this recommended order. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this recommended order.

FINDINGS OF FACT

Based on the parties' stipulation and on the evidence received at the hearing, I make the following findings of fact:

1. The Respondent, David E. Murrin, D.D.S., and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0008730.

   
   

2. From June of 1984 through January of 1986 the Respondent provided dental services to a patient named Richard A. Byrd. Mr. Byrd had experienced many problems prior to receiving treatment from the Respondent. At the time of Mr. Byrd's first visit to the Respondent, Mr. Byrd had an upper splint in place, a history of bruxism (grinding of the teeth), short lower teeth, fourteen teeth missing (including all back teeth), and several old root canals.

   
   

3. As part of the treatment of Mr. Byrd, the Respondent made a complete lower splint for Mr. Byrd. The splint was delivered to Mr. Byrd on June 21, 1985. It was difficult to fit Mr. Byrd with the splint because of his edge-to- edge occlusion, his bruxism, his short teeth, and his missing back teeth.

   
   

4. Prior to fabricating a splint or bridge, a dentist normally prepares a "working model," which is a reproduction of the teeth which have been prepared to accept the splint or bridge. The working model of Mr. Byrd's teeth prepared by the Respondent showed adequate tooth preparations and retention length.

   
   

5. In the normal practice of restorative dentistry, the dentist or the laboratory technicians sometimes make errors when fabricating bridgework. Bridgework which is not correct when initially delivered can be repaired or remade. However, a dentist cannot force a patient to return for further treatment.

   
   

6. When the splint was completed by the Respondent and delivered to Mr. Byrd on June 21, 1985, there were several problems with the splint. Mr. Byrd did not like the appearance of the splint. The splint did not fit right and made Mr. Byrd uncomfortable. The Respondent was displeased with the embrasure spaces and the contours of the splint. The Respondent temporarily cemented the splint in place on June 21, 1985, and directed Mr. Byrd to make an appointment to return in a few days so that the Respondent and the laboratory technician could do some more work on the splint. It is acceptable dental practice for an imperfect permanent-type splint or bridge to be temporarily cemented in place and used as a temporary splint or bridge pending repair or replacement of the imperfect splint or bridge.

   
   

7. Mr. Byrd did not return promptly to the Respondent's office. Instead, Mr. Byrd waited until August 16, 1985, to return. When Mr. Byrd returned on August 16, 1985, some of the porcelain on the splint was fractured. While Mr.

   Byrd was still present in the office, the Respondent arranged for Mr. Byrd to meet with the Respondent and the laboratory technician on August 21, 1985. The purpose of the August 21, 1985 meeting was to determine what needed to be done to repair or replace the splint that had been delivered to Mr. Byrd on June 21, 1985. Mr. Byrd did not appear for the August 21, 1985 meeting.

   
   

8. Mr. Byrd next visited the Respondent's office on November 15, 1985, at which time he refused to see the Respondent and was attended by Dr. Ross, another dentist in the Respondent's office. At that time, Mr. Byrd complained of sensitivity in the mandibular area and also complained about the fractured porcelain in the splint. Mr. Byrd made it clear that he was unhappy about his dental treatment. Dr. Ross felt that Mr. Byrd's complaints of sensitivity were due to endodontic problems and referred Mr. Byrd back to his endodontist, who was Dr. Braunstein.

   
   

9. On December 4, 1985, the Respondent had a telephone conversation with Dr. Braunstein in an attempt to coordinate the treatment of Mr. Byrd. It was decided that Dr. Braunstein would complete the necessary endodontic procedures and that the Respondent would then remake the splint.

   
   

10. Mr. Byrd's next, and last, visit to the Respondent's office was on January 9, 1986. Mr. Byrd wanted to have the splint redone, but did not want to have the Respondent or anyone in the Respondent's office do the work. Mr. Byrd wanted the Respondent to reimburse him in the approximate amount of $8,000 to

    $10,000 in order to have the splint remade by some other dental office. The Respondent declined to pay for having the work done at another office, but offered to remake the splint at no additional cost to Mr. Byrd. Mr. Byrd never accepted the Respondent's offer to remake the splint. Mr. Byrd failed or refused to allow the Respondent to repair or remake the splint.

    
    

11. The Respondent was not finished with the splint on June 21, 1985, when it was initially cemented temporarily into Mr. Byrd's mouth. The splint was, however, adequate for use as a temporary splint, as indicated by the fact that it was used as a temporary splint by the subsequent treating dentist, Dr. Trabulsky, and, as of the date of the hearing, was still being used as a temporary splint. It is not reasonable to hold a dentist responsible for the adequacy of a splint or bridge when the dentist is not yet finished with it, and the patient fails or refuses to return to the dentist's office so the work can be completed.

    
    

12. In sum, the Respondent's diagnosis and treatment of Mr. Byrd has not been shown to have been incompetent, nor has there been a showing that such diagnosis and treatment falls below minimum standards of performance when measured against generally prevailing peer performance.

    
    

    CONCLUSIONS OF LAW

    
    

13. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

15. In a license discipline proceeding of this nature, the Petitioner has the burden of proving its allegations by clear and convincing evidence. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of that burden is

    described as follows in Slomowitz v. Walker, 429 So.2d 797 800 (Fla. 4th DCA 1983):

    
    

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In the more recent case of Smith v. Dept. of Health and Rehabilitative Services,

    522 So.2d 956 (Fla. 1st DCA 1988), the court quoted with approval the foregoing language from Slomowitz, and also noted:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the

    "beyond a reasonable doubt'1 standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

16. The statutory provision the Respondent is charged with having violated, Section 466.028(1)(y), Florida Statutes, provides that the following shall constitute grounds for disciplinary action:

    
    

    (y) Being guilty of incompetence or negligence 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 or being guilty of dental malpractice.

    
    

17. The Administrative Complaint charges the Respondent only with being guilty of incompetence. It does not charge the Respondent with negligence. Upon consideration of the entire record in this case, it must be concluded that the Petitioner has failed to show by clear and convincing evidence that the Respondent is incompetent. To the contrary, the greater weight of the evidence is to the effect that the Respondent's diagnosis and treatment of Mr. Byrd met

    or exceeded the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

    
    

18. In his Proposed Recommended Order, the Respondent presents extensive argument addressed to the proposition that the Administrative Complaint fails to allege a violation of the applicable statutory provision. In view of the conclusion, above, that the evidence fails to establish a violation, it is not necessary to dwell upon whether the Administrative Complaint fails to allege

one. Suffice it to say that the Administrative Complaint in this case is no model for the genre.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Dentistry issue a final order in this case dismissing all charges against the Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of May 1989.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Bui1dig

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2552

The following are my specific rulings on all proposed findings of fact submitted by all of the parties:

Findings proposed by Petitioner:

Paragraphs 1 through 7: Accepted, along with additional facts to form a more complete picture of the events surrounding the Respondent's treatment of Mr. Byrd.

Paragraphs 8 through 11: Rejected as for the most part irrelevant or subordinate and unnecessary details. The observations of Dr. Braunstein are of little value in disposing of the central issue in this case because, as he stated at page 15 of his deposition, "...I really don't feel qualified to judge standards, you know, the procedures that were performed on him [Mr. Byrd)."

Paragraphs 12 through 15: The essence of the findings proposed in these paragraphs is accepted, but most of the proposed details are rejected as subordinate and unnecessary.

Paragraphs 16 and 17: Rejected as constituting argument about the evidence or commentary on the evidence, rather than proposed findings of facts. Further, the implications suggested by these paragraphs are rejected as contrary to the greater weight of the evidence.

Findings proposed by Respondent: Paragraph 1: Accepted.

Paragraphs 2 and 3: Dates of first and last treatment and basic details of

patient's condition are accepted. All other details are rejected as irrelevant to disposition of this case.

Paragraphs 4 and 5: Rejected as unnecessary background history. Paragraphs 6 through 9: All accepted, with exception of last sentence of

Paragraph 9. That sentence is incorrect. Paragraphs 10 through 14: Accepted.

COPIES FURNISHED:

Ray Shope, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

William Furlow, Esquire

Katz, Kutter, Haigler, Alderman, Eaton, Davis & Marks, P.A.

Post Office Box 1877 Tallahassee, Florida 32302-1877

William Buckhalt, Executive Director Department of Professional

Regulation

Board of Dentistry

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 88-002552

Orders for Case No: 88-002552