STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0648

)

STEVEN RINDLEY, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 16, 1991, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jan D. Langer, Esquire

Adorno & Zeder, P.A.

2601 South Bayshore Drive, Suite 1600

Miami, Florida 33133

For Respondent: Joel Berger

Dental Legal Advisers

1550 Madruga Avenue, Suite 230 Coral Gables, Florida 33146

STATEMENT OF THE ISSUES

The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violation of Section 466.028(1)(y), Florida Statutes set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

On December 23, 1988, the Petitioner filed an Administrative Complaint against Respondent, Steven Rindley, D.D.S., alleging that Respondent violated Section 466.028(1)(y), Florida Statutes (1987). Section 466.028(1)(y) provides that disciplinary action may be taken against a licensee who is guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. Petitioner contends that Respondent failed to meet the minimum standards in connection with his treatment of a patient who will be referred to as E.B. in order to protect his confidentiality. The Administrative Complaint charged that the Respondent failed to take radiographs before extracting teeth and that a partial denture that he fabricated for the patient was not properly fitted and/or endangered the patient's teeth and supporting alveolar structure.

Respondent disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

Prior to the hearing, on June 25, 1990, Petitioner filed a Motion to Amend Administrative Complaint. By Order dated July 5, 1990, that Motion was granted and an Amended Administrative Complaint was filed on July 16, 1990. The Amended Administrative Complaint essentially incorporated the charges of the initial complaint, but deleted the allegations regarding the improper fitting of the partial denture. At the hearing, Petitioner only submitted evidence regarding the alleged failure to take radiographs.

At the hearing, the Petitioner called no live witnesses, but offered four exhibits into evidence. All of those exhibits were accepted without objection. Petitioner's Exhibit 3 is a deposition of Dr. John R. Jordan, Jr. Petitioner's Exhibit 4 is a deposition of Dr. Peter Alan Keller. Both Dr. Jordan and Dr.

Keller are licensed dentists in the State of Florida. They are accepted as expert witnesses in the area of dentistry.

The Respondent testified on his own behalf and had four exhibits marked for identification. Respondent's Exhibit 1 was a copy of the deposition of Dr. Joel Berger, D.D.S. That deposition was offered as expert testimony in support of Respondent's case. Dr. Berger also has a law degree, but has not yet been admitted to the Florida Bar. Dr. Berger appeared at the hearing in this matter as the qualified representative of Respondent. Petitioner objected to the introduction of the deposition on the grounds that Dr. Berger could not appear both as a representative of Respondent and as an expert witness in this proceeding. Ruling on this objection was reserved and the parties were directed to address this issue as part of their post-hearing submittals. Both parties have addressed this issue in their post-hearing filings.

While Dr. Berger's appearance as both an expert witness and a qualified representative on behalf of Respondent is highly unusual, some factual background helps put this situation in perspective. Respondent was previously represented in this case by Steven Mechanic, Esq. Prior to becoming the Respondent's qualified representative, Dr. Berger was designated as an expert on behalf of Respondent and was deposed on July 9, 1990 at a time when Mr. Mechanic was Respondent's counsel. During the discovery process, the parties agreed to limit expert witnesses to two per side. It is clear Dr. Berger's testimony was competent and admissible as evidence at the time it was taken and has not changed as a result of his representation of Respondent. Dr. Berger replaced Mr. Mechanic as Dr. Rindley's representative sometime during 1991. Dr. Berger's testimony did not change nor did he attempt to supplement his testimony after he assumed the role of qualified representative. In view of these circumstances and in light of the "any evidence" rule governing administrative proceedings (see, 120.58(1)(a), Florida Statutes,) Dr. Berger's testimony is accepted into evidence and has been considered in the preparation of this Recommended Order.

Respondent's Exhibit 2, the deposition of Dr. S. Robert Davidoff, was accepted into evidence without objection. Dr. Davidoff is accepted as an expert in the area of dentistry.

Petitioner objected to the introduction of Respondent's Exhibits 3 and 4 on the grounds that they were irrelevant to the issues in the Administrative Complaint. Respondent's Exhibit 3 was a transcript from the Probable Cause Panel meeting that was held prior to the filing of the Amended Administrative

Complaint. At the hearing, ruling on the objection was reserved pending review of the transcript. That transcript has been reviewed in full prior to the preparation of this Recommended Order. While the Probable Cause Panel transcript has been reviewed, it has not served as a basis for a Finding of Fact in this case. The discussion at the Probable Cause Panel meeting does not shed any new factual light on the issues raised in the Amended Administrative Complaint. Respondent contends that the transcript is relevant because it reflects an ongoing pattern of harassment by Petitioner. As set forth in Findings of Fact 2 below, the evidence did not establish that this case was initiated for an improper purpose. The allegations of harassment are otherwise beyond the scope of this proceeding.

Respondent's Exhibit 4 is a copy of the deposition of the patient, E. B. Petitioner objected to the introduction of this deposition on the grounds that the patient's testimony was irrelevant to the issues framed in the Amended Administrative Complaint. The patient's testimony is clearly relevant to a number of issues in this proceeding. At the hearing, Petitioner's objection to this exhibit was overruled and Respondent's Exhibit 4 was accepted into evidence.

A transcript of the proceedings has been filed. Both parties have submitted proposed recommended orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

1. At all times pertinent to this proceeding, Respondent, Steven Rindley, has been licensed by the Department of Professional Regulation (the "Department",) Board of Dentistry (the "Board") as a dentist having been issued license number DN0004795.

   
   

2. Respondent has been continuously licensed in the State of Florida since 1969. No evidence was presented to establish that his license has previously been revoked, suspended or otherwise disciplined. There have been a number of disputes between Respondent, the Department and/or the Board relating to charges and complaints filed against Respondent. Respondent contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising" dentist. Respondent has filed a federal court law suit against the Board and others based on these contentions. During the hearing in this case, Respondent testified vociferously regarding these issues. However, no competent evidence was presented to establish that the Administrative Complaint or Amended Administrative Complaint filed in this proceeding were initiated for improper purposes.

   
   

3. Respondent treated a patient, E.B., from approximately November of 1987 through approximately February 9, 1988. Respondent's treatment of E.B. consisted of extracting certain teeth and fabricating an immediate partial lower denture.

   
   

4. Respondent had previously treated E.B. in 1981 during which time he had fabricated full upper and partial lower dentures for the patient.

5. As part of his treatment of E.B. in 1987-1988, Respondent extracted four lower front anterior teeth. The extracted teeth were very loose and were removed at the request and with the consent of the patient.

   
   

6. On or about November 12, 1987, Respondent began fabricating a new lower partial denture for E.B.

   
   

7. Respondent used E.B.'s lower right cuspid, which was his only remaining tooth, as an abutment for the new lower partial denture. The lower right cuspid had decay in it which required a filling. Respondent diagnosed, but did not treat this carious lesion in the retained tooth. The patient terminated the dentist/patient relationship prior to Respondent's addressing this problem.

   
   

8. E.B. refused to allow Respondent to take x-rays as part of the treatment rendered in 1987-1988. Consequently, Respondent did not take any radiographs in connection with his treatment of E.B. during 1987 and 1988. Respondent did not specifically note the patient's refusal to permit x-rays in his dental records. While Respondent claims that he advised E.B. as to the desirability of taking current x-rays, the nature and extent of the conversation between Respondent and the patient regarding the need for x-rays was not established.

   
   

9. Respondent used radiographs taken during his treatment of E.B. in 1981 to assist him in his diagnosis and treatment of E.B. in 1987-1988. While those radiographs were outdated, they did provide some useful information regarding tooth morphology and other matters.

   
   

10. The evidence established that the teeth that were extracted were not salvageable and would have been extracted irrespective of what current x-rays may have revealed. Ideally, an x-ray should have been taken to determine how secure the lower right cuspid was prior to using it as an abutment for the lower partial denture. This is especially true since the tooth had a carious lesion. In addition, a root canal was done on this tooth at some prior time. Based upon his clinical observations, Respondent determined that the carious lesion was minimal and could be filled after the fabrication of the lower partial denture and that the tooth was stable enough to serve as an abutment. Petitioner has not provided sufficient evidence to rebut those conclusions or to establish that Respondent had insufficient information to reach those conclusions.

    
    

11. X-rays are an important diagnostic tool that can be helpful in eliminating surprises and determining pathologies which may exist in a patient's mouth.

    
    

12. The Board has not adopted any rules requiring the use of x-rays prior to rendering any specific types of dental services.

    
    

13. While current radiographs would have been preferable in the treatment of E.B., the patient refused to permit an x-ray to be taken. As a result, Respondent proceeded with his treatment based upon his clinical observations and the prior radiographs of the patient.

    
    

14. There is no evidence that E.B. was suffering from any pathologies or conditions which Respondent failed to detect due to the lack of current radiographs.

    
    

15. The two experts who testified on behalf of Petitioner opined that it is below the standards of the community for a dentist to extract teeth and/or

    use an exising tooth as an abutment for a partial denture without the benefit of a radiograph. Neither of these experts was aware that the patient had refused to permit x-rays to be taken. When asked what they would do with a patient who refuses x-rays, they both said they would have refused to provide services to the patient. Neither of Petitioner's experts ever examined the patient E.B. Respondent's experts testified that, under certain circumstances and after advising the patient of the advisability of having the x-rays taken, they would have proceeded with the extractions and the restoration of the dentition as best they could. Respondent's experts admitted that there are certain situations when proceeding with treatment without the benefit of a radiograph would be below the minimum standard expected of a dentist in this community. However, they believe that a dentist could proceed with the treatments rendered in this case absent any clinical observations, prior history or diagnosis to the contrary.

    
    

16. The testimony of Respondent's experts is deemed more persuasive and is accepted. The evidence did not establish that Respondent fell below the minimum standard of care by proceeding with treatment of the patient under the conditions of this case.

    
    

17. E.B. became very agitated over the length of time it took to fabricate the partial denture and obtain an acceptable fit. The patient and Respondent had several verbal altercations regarding the dental work. In February of 1988, the patient terminated his treatment before all the work was completed. The patient ultimately refused to pay for the work and reported the matter to the Department.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.57(1) and 455.225, Florida Statutes (1989).

    
    

19. Pursuant to Section 466.028(2), Florida Statutes, the Board of Dentistry is empowered to revoke, suspend or otherwise discipline the license to practice dentistry of any dentist in the State of Florida found guilty of any of the acts enumerated in Section 466.028(1)(a), Florida Statutes.

    
    

20. The Administrative Complaint filed in this case charges Respondent with violating Section 466.028(1)(y), Florida Statutes which provides as follows:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in Subsection (2) may be taken.

       * * *

       (y) Failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

       
       

21. In a disciplinary action such as this proceeding, the burden is upon the Petitioner to establish the facts upon which its allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. Ferris. v. Turlington, 510 So.2d 292 (Fla. 1987).

22. The evidence in this case established that a dentist should not proceed with extracting teeth or fabricating a partial denture without at least advising the patient of the advisability of having x-rays taken. There is insufficient evidence to establish that Respondent failed to meet this standard. While the extent of the conversations between Respondent and E.B. is not clear, the patient refused to allow x-rays to be taken. Respondent was forced to make an evaluation as to whether or not to proceed with treating the patient without current x-rays. While some dentists may not have been comfortable with treating a patient under these circumstances, Respondent, based upon the clinical observations of the patient's condition, determined that he would proceed with treatment. In certain circumstances, proceeding with treatment without a radiograph may fall below the minimum standards. However, a radiograph is only a diagnostic tool. Respondent obviously felt comfortable with his diagnosis without the benefit of this tool. The evidence was insufficient to demonstrate that, under the circumstances of this case, the Respondent's decision to proceed with treatment fell below the minimum standards of performance when measured against generally prevailing peer performance.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Dentistry issue a Final Order finding the Respondent, Steven Rindley, not guilty of the allegations set forth in the Administrative Complaint and dismissing the charges.

RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of July, 1991.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0648

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 3.

3. Adopted in substance in Findings of Fact 5.

4. Adopted in substance in Findings of Fact 6.

5. Adopted in substance in Findings of Fact 7.

6. Adopted in substance in Findings of Fact 8.

7. Subordinate to Findings of Fact 9.

8. Adopted in substance in Findings of Fact 11.

9. Rejected as vague and overborad.

10. Rejected as unnecessary and subordinate to Findings of Fact 11-13.

11. Subordinate to Findings of Fact 10.

12. Subordinate to Findings of Fact 7 and 10.

13. Subordinate to Findings of Fact 10.

14. Subordinate to Findings of Fact 15 and 16.

The Respondent's Proposed Findings of Fact

Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection.

1. Addressed in the preliminary statement.

2. Adopted in substance in Findings of Fact 1.

3. Adopted in substance in Findings of Fact 3.

4. Adopted in substance in Findings of Fact 6.

5. Rejected as unnecessary and overbroad.

6. Subordinate to Findings of Fact 8, 10 and 13.

7. Subordinate to Findings of Fact 8.

8. Adopted in substance in Findings of Fact 5.

9. Adopted in substance in Findings of Fact 7 and 10.

10. Subordinate to Findings of Fact 14.

COPIES FURNISHED:

Jan D. Langer, Esquire Adorno & Zeder

2601 South Bayshore Drive Suite 1600

Miami, Florida 33133

Joel Berger

Dental Legal Advisers 1550 Madruga Avenue

Suite 230

Coral Gables, Florida 33146

William Buckhalt, Executive Director Department of Professional

Regulation, Board of Dentistry 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-000648

Orders for Case No: 89-000648