STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0776

)

CHARLES E. FINKEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 24-25, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation 730 South Sterling, Suite 201

Tampa, Florida 33609

For Respondent: Salvatore A. Carpino, Esquire

One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, the penalty, if any, which should be imposed.

PRELIMINARY STATEMENT

Respondent is licensed by Petitioner to practice dentistry in the State of Florida. Petitioner filed an Amended Administrative Complaint containing five counts alleging multiple violations of the laws regulating the practice of dentistry in Florida.

Count I of the Amended Administrative Complaint related to Respondent's treatment of a patient named Priscilla DeLeon, who was referred to in the Amended Administrative Complaint as P.D. Count I alleges that Respondent performed gum surgery on this patient without the patient's consent, that the patient did not need all of the gum surgery performed by Respondent, and that Respondent billed the patient's insurance carrier for osseous surgery that he did not perform. Respondent was charged with violating the following provisions of law: Sections 466.028(1)(j), (1), (n), (p), (u), and (y), Florida Statutes.

Count II of the Amended Administrative Complaint related to Respondent's treatment of a patient named Joanne Manda, who was referred to in the Amended Administrative Complaint as J.M. Count II alleges that Respondent performed gum surgery on this patient without the patient's consent, that the patient did not need all of the gum surgery performed by Respondent, that Respondent billed the patient's insurance carrier for osseous surgery that he did not perform, and that Respondent recommended additional surgery that the patient did not need.

Respondent was charged with violating the following provisions of law: Sections 466.028(1)(j),(1),(n),(p),(u), and (y), Florida Statutes.

Count III of the Amended Administrative Complaint related to Respondent's treatment of a patient referred to as S.R. At the formal hearing, Petitioner dismissed Count III and also dismissed those allegations of Count V which relate to S.R.

Count IV of the Amended Administrative Complaint related to Respondent's treatment of a patient named Nanette Bevilacqua, who was referred to in the Amended Administrative Complaint as N.B. At the formal hearing, Petitioner moved to amend Count IV by correcting those allegations which erroneously referred to N.B. as J.M. Respondent had no objection to that motion. The motion was granted. Count IV alleges that Respondent performed gum surgery on this patient without the patient's consent, that the patient did not need all of the gum surgery performed by Respondent, and that Respondent billed the patient's insurance carrier for osseous surgery that he did not perform.

Respondent was charged with violating the following provisions of law: Sections 466.028(1)(j),(1),(n),(p),(u), and (y), Florida Statutes.

Count V of the Amended Administrative Complaint, as amended at the formal hearing, charges that if Respondent did perform osseous surgery on Priscilla DeLeon, Joanne Manda, or Nanette Bevilacqua for which he billed their insurance carrier, that such services were not necessary and constituted violations of Sections 466.028(1)(n), (u), and (y), Florida Statutes.

Respondent denied the allegations and timely requested a formal hearing.

This proceeding followed.

At hearing, Petitioner called as witnesses the three patients, Priscilla DeLeon, Joanne Manda, and Nanette Bevilacqua, an investigator employed by Petitioner, James R. Goldman, and four dentists, Dr. Paul Berger, Dr. Mark Forrest, Dr. Michael Wellikoff, and Dr. Jerome Soloman. Dr. Berger and Dr.

Forrest have specialized in the practice of periodontics. Dr. Wellikoff and Dr. Soloman are engaged in the general practice of dentistry. Respondent testified on his own behalf and also called as witnesses his former dental assistant, Linda Trout, his former office manager, Bonnie Shaw, and his former associate, Dr. Michelle Rivera. Dr. Rivera is engaged in the general practice of dentistry. The deposition of Dr. Richard Chace, Jr., filed November 6, 1989, was accepted as a late filed exhibit pursuant to the stipulation of the parties. Dr. Chace is a dentist who has specialized in the practice of periodontics. The parties introduced six documentary exhibits, consisting of the respective dental records and insurance records of the three patients involved, which were accepted into evidence. The dental records and insurance records of the patient

S.R. were marked for identification but were never moved into evidence. In addition to the joint exhibits, Petitioner introduced three exhibits, the x-rays of the three patients, which were accepted into evidence. In addition to the joint exhibits and the late-filed exhibit, Respondent introduced one exhibit, Joanne Manda's dental insurance plan claim form and prestatement form, which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the late-filed exhibit. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the late-filed exhibit is filed. Rule 221-6.031, Florida Administrative Code. Both Petitioner and Respondent filed proposed recommended orders which contained proposed findings of fact and proposed conclusions of law. The rulings on the parties' proposed findings of fact may be found in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding Respondent, CHARLES E. FINKEL, was licensed by Petitioner to practice dentistry in the State of Florida. Petitioner is the State agency governing the practice of dentistry in the State of Florida.

   
   

2. At all times pertinent to this proceeding, Respondent was engaged in the general practice of dentistry in Plantation, Florida. During the course of his practice, Respondent performs a surgical procedure for the treatment of periodontitis known as osseous surgery and a surgical procedure for the treatment of gingivitis known as a gingivectomy. Osseous surgery involves recontouring or reshaping bone in the mouth. Gingivectomy involves the surgical removal of diseased gum tissue. Osseous surgeries and gingivectomies are typically performed in the dentist's office. Both procedures can be performed during the same treatment session.

   
   

3. At all times pertinent to this proceeding, Priscilla DeLeon, Joanne Manda, and Nanette Bevilacqua were employees of Albertson's, Inc. and covered by its group dental insurance plan.

   
   

4. Ms. Bevilacqua first went to Respondent August 30, 1983, to have a filling restored in one of her front teeth. Respondent was chosen by Ms. Bevilacqua because he accepted Albertson's dental insurance plan. During the first visit, Respondent examined her dental condition, took a full mouth series of x-rays and restored the filling for her front tooth. Respondent discussed with Ms. Bevilacqua her general dental condition and advised her that she had pyorrhea and periodontitis. Respondent's examination revealed that Ms. Bevilacqua had periopockets ranging from 5 to 7 millimeters in depth. A periopocket of 6 millimeters or greater is an indication of a need for surgical intervention.

   
   

5. Respondent advised Ms. Bevilacqua during her office visit of August 30, 1983, that she should seek treatment for her condition and discussed with her different treatment modalities including treatment through the use of osseous surgery. Respondent explained to Ms. Bevilacqua the risks and benefits of the surgical procedure during her first office visit, and she agreed during the first visit to undergo the surgical procedure at a later date.

   
   

6. Ms. Bevilacqua returned to Respondent on September 29, 1983, because she continued to experience pain in the front tooth that he had filled on August 30, 1983. Respondent advised her that she needed a root canal on the subject tooth, which she agreed to undergo. Ms. Bevilacqua did not understand from Respondent's discussions with her on September 29, 1983, that he intended to perform during that office visit, in addition to the root canal, the surgical

   treatment that they had discussed on August 30, 1983. She would have consented to having the surgical procedure performed on September 29, 1983, had she been asked to do so.

   
   

7. On September 29, 1983, Respondent performed the root canal and osseous surgery on Ms. Bevilacqua. Respondent also performed a gingivectomy as a part of this surgical treatment by trimming her gum level. Respondent was justified in performing the osseous surgery and gingivectomy based on the findings made during his examination of Ms. Bevilacqua on August 30, 1983. Entry for the osseous surgery was made through use of an envelope flap, which is a means of lifting the gum tissue from the bone structure. The bone structure was then recontoured with a rotary instrument. Respondent reduced the width of the bone and made a slight reduction in the height of the bone Respondent closed the wound produced by the surgery with a periopack. A periopack is a medicated bandage which may be used to close certain surgical wounds without the use of sutures. Respondent did not consider it necessary to use sutures to close the incision. The procedures Respondent followed in performing the surgery are acceptable dental procedures. Respondent thereafter submitted a claim to Ms. Bevilacqua's insurance carrier for osseous surgery.

   
   

8. On July 5, 1985, Ms. DeLeon visited Respondent for the purpose of having a restoration (filling) of two of her teeth. Respondent advised Ms. DeLeon that she needed to have a root canal performed. Respondent did not discuss with the patient the nature of the procedure or the risks and benefits of the root canal procedure. Nevertheless, Ms. DeLeon consented to undergo the root canal therapy, which was begun on her first visit. Respondent's examination of this patient revealed periopockets with depths from 6 to 8 millimeters.

   
   

9. Ms. DeLeon returned to see Respondent on July 16, 1985, to have the root canal completed. During this second visit Respondent also performed a frenectomy on Ms. DeLeon's upper front teeth (a procedure to which she had consented) and osseous surgery on her lower right and her lower left quadrants.

   
   

10. Respondent failed to discuss with Ms. DeLeon, that he planned to perform osseous surgery on her, he did not explain the risks and benefits of the procedure to her, and she did not consent to the procedure. The osseous surgery came as a complete surprise to Ms. DeLeon.

    
    

11. The osseous surgery was performed through the use of an envelope flap, recontouring of the bone structure, and closing of the incision with a periopack. The procedures followed by Respondent while performing the osseous surgery are acceptable dental procedures. The surgical procedure was justified based on Respondent's findings made during his examination of her. Respondent did not recommend to Ms. DeLeon that she have periodontal surgery on her upper quadrant. Respondent thereafter submitted a claim to Ms. DeLeon's insurance carrier for osseous surgery.

    
    

12. Joanne Manda first visited Respondent on August 13, 1985, because she had an upper left bridge that needed repair. Respondent observed that she had pyorrhea and periodontal disease throughout her mouth and recommended periodontal surgery on her two upper quadrants. There was no recommendation that she have periodontal surgery on her lower quadrants. Ms. Manda returned to Respondent on August 29, 1985, at which time her teeth were cleaned and her course of treatment was discussed. Ms. Manda was told to return on September 10, 1985, at which time the recommended surgical procedure would be performed. Respondent had, prior to September 10, 1985, discussed with Ms. Manda the risks

    and benefits of the surgical procedure and the alternatives thereto. Ms. Manda did not understand the treatment plan as explained to her by Respondent, which led to her misunderstanding that the purpose of the September 10 appointment was to have her gums cleaned. Respondent had, however, provided Ms. Manda with sufficient information to enable her to make an informed consent to undergo the recommended surgical treatment. Because Ms. Manda agreed to make the appointment for September 10 and because she kept the appointment, Respondent was justified in his belief that Ms. Manda had made an informed consent to undergo the surgical procedure.

    
    

13. Respondent performed osseous surgery on Ms. Manda on September 10, 1985. This procedure was justified by the depth of the periopockets, which measured up to 6 millimeters on examination. The procedure consisted of exposing the bone structure by use of an envelope flap, recontouring the bone structure, and closing the incision with a periopack. The procedures followed by Respondent in performing the surgery are acceptable dental procedures. Respondent thereafter submitted a claim to Ms. Manda's insurance carrier for osseous surgery.

    
    

14. Respondent timely requested a formal hearing after the Administrative Complaint, which was subsequently amended, was served upon him.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The practice of dentistry in the State of Florida is regulated by Chapter 466, Florida Statutes.

    
    

17. Section 466.028, Florida Statutes, provides that dentists are subject to being disciplined for certain violations which are, in pertinent part, as follows:

    
    

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

       * * *

       1. Making or filing a report which the licensee knows to be false, failing to file a report or record required by state or federal law, knowingly impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensee.

          * * *

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

       * * *

       (n) Exercising influence on the patient or client in such a manner as to exploit the patient or client for the financial gain of the licensee or of a third party

       ...

       * * *

       (p) Performing professional services which have not been duly authorized by the patient or client, or his legal representative, except as provided in ss. 768.13 and 768.46.

       * * *

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

       * * *

       (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 ...

       
       

18. Section 768.13, Florida Statutes, known as the Good Samaritan Act and to which reference is made in Section 466.028(1)(p), Florida Statutes, is not applicable to this case.

    
    

19. Section 768.46, Florida Statutes, known as the Florida Medical Consent Law and to which reference is made in Section 466.028(1)(p), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (3) No recovery shall be allowed in any court in this state against any ...

    dentist licensed under chapter 466 in an action brought for treating, examining, or operating on a patient without his informed consent when:

    1. 1. The action of the...dentist

       in obtaining the consent of the patient

       ...was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and

       2. A reasonable individual, from the information provided by the...dentist, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other... dentists in the same or similar community who perform similar treatments or procedures; or

    2. The patient would reasonably,

    under all the surrounding circumstances,

    have undergone such treatment or procedure had he been advised by the... dentist in accordance with the provisions of paragraph (a).

    
    

20. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

21. Petitioner has failed to establish by clear and convincing evidence the factual allegations which underpin the alleged violations of Section 466.028(1)(j),(1), (n), (u), and (y) Florida Statutes.

    
    

22. Petitioner has failed to establish by clear and convincing evidence that Respondent violated the provisions of Section 466.028(1)(p), Florida Statutes, during the course of his treatment of Ms. Bevilacqua. Respondent had provided her with the information as to the root canal therapy and the surgical procedures she required to have a "...general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures..." within the meaning of Section 768.46(3)(a)2, Florida Statutes. Although she did not have a clear understanding that the surgical procedures would be performed during the same office visit as the root canal, she would have given her consent had she been asked to do so, which, pursuant to Section 768.46(3)(b), Florida Statutes, is sufficient.

    
    

23. Petitioner failed to establish by clear and convincing evidence that Respondent violated the provisions of Section 466.028(1)(p), Florida Statutes, during the course of his treatment of Ms. Manda. While Ms. Manda may not have fully understood Respondent's explanation of the course of treatment, that unilateral misunderstanding is not sufficient, given the circumstances of this case, to establish a violation of law.

    
    

24. Petitioner did establish by clear and convincing evidence that Respondent violated the provisions of Section 466.028(1)(p), Florida Statutes, by performing osseous surgery on Ms. DeLeon on July 16, 1985. This violation was established by Ms. DeLeon's clear and convincing testimony that the osseous surgery came as a complete surprise to her.

    
    

25. Section 466.028(2), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (2) When the board finds any applicant or licensee guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    * * *

    1. Revocation or suspension of a license.

    2. Imposition of an administrative fine not to exceed $3,000 for each count or separate offense.

    3. Issuance of a reprimand.

    4. Placement of the licensee on probation for a period of time and subject to such conditions as the board

       may specify, including requiring the licensee to attend continuing education courses or demonstrate his competency through a written or practical examination or to work under the supervision of another licensee.

    5. Restricting the authorized scope of practice.

    
    

26. Rule 21G-13.005, Florida Administrative Code, provides disciplinary guidelines which provide, in pertinent part, as follows:

    
    

    1. Unless relevant mitigating factors are demonstrated the Board shall always impose a reprimand and an administrative fine not to exceed $3,000.00 per count or offense when disciplining a licensee for any of the disciplinary grounds listed in subsections (2) or (3) of

       this rule. The reprimand and administrative fine is in addition to the penalties specified in subsection

    2. and (3) for each disciplinary ground.

       * * *

    3. When the Board finds an applicant or licensee whom it regulates under Chapter 466, Florida Statutes, has committed any of the acts set forth in Section 466.028, Florida Statutes, it shall issue a Final Order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines:

       * * *

       (s) Performing professional services which have not been duly authorized by the patient or client or his legal representative, except as provided in Section 768.13 and 768.46, F.S. In the case of remediable services, the usual action of the Board shall be to impose a period of probation. In the case of irremediable services, the Board shall impose a period of probation, restriction of practice, and/or suspension.

       
       

27. In determining the penalty to be imposed for this violation, it is appropriate to consider that while Ms. DeLeon had not given her informed consent to undergo the surgical treatment, the treatment was justified, was successful, and was done in a professional manner.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Professional Regulation, Board of

Dentistry enter a final order which finds Charles R. Finkel guilty of having violated the provisions of Section 466.028(1)(p), Florida Statutes, which reprimands him for said violation, which places his licensure on probation for a period of 6 months, and which imposes an administrative fine in the amount of

$1,000.00.

DONE and ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 12th day of December, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO 89-0776

The following rulings are made on the findings of fact submitted on behalf of Petitioner:

The proposed finding that Ms. DeLeon's consent to undergo the root canal was not informed consent is rejected. Although Respondent did not explain the root canal procedure to her, there was no showing that this patient did not otherwise have sufficient information to make an informed consent to the procedure.

1. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 9 and 10 of the Recommended Order.

2. The proposed findings of fact in paragraph 6 are adopted in material part by paragraphs 9 and 10 of the Recommended Order.

3. The proposed findings of fact in paragraph 7 are adopted in part by paragraph 11 of the Recommended Order and are rejected in part as being contrary to the findings made.

4. The proposed findings of fact in paragraph 8 are rejected as being contrary to the findings made.

5. The proposed findings of fact in paragraph 9(a) are adopted as a conclusion of law, but are rejected as a finding of fact. The remaining findings of fact of paragraph 9 are rejected as being contrary to the findings made or to the conclusions reached.

6. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 12 of the Recommended Order.

7. The proposed findings of fact in paragraph 11 are rejected as being contrary to the findings made.

8. The proposed findings of fact in paragraph 12 are adopted in part by paragraph 13 of the Recommended Order and are rejected in part as being contrary to the findings made.

9. The proposed findings of fact in the second sentence of paragraph 13 are rejected as being contrary to the findings made. The proposed findings of fact in the other two sentences of paragraph 13 are rejected as being unnecessary to the conclusions reached.

10. The proposed findings of fact in paragraph 14 are rejected as being contrary to the findings made.

11. The proposed findings of fact in paragraph 15 are rejected as being contrary to the findings made.

12. The proposed findings of fact in paragraph 16 are adopted in material part by paragraph 4 of the Recommended Order. The date specified in this proposed finding of fact is rejected as being contrary to the evidence.

13. The proposed findings of fact in paragraph 17 are adopted in material part by paragraph 6 of the Recommended Order.

14. The proposed findings of fact in paragraph 18 are adopted in material part by paragraph 6 of the Recommended Order.

15. The proposed findings of fact in paragraph 19 are rejected as being contrary to the findings made.

16. The proposed findings of fact in paragraph 7 are adopted in part by paragraph 7 of the Recommended Order and are rejected in part as being contrary to the findings made.

17. The proposed findings of fact in paragraphs 21-24 are rejected as being contrary to the evidence.

The following rulings are made on the findings of fact submitted on behalf of Respondent:

1. The proposed findings of fact in the first sentence of paragraph 1 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings contained in the remainder of paragraph 1 are rejected as being unnecessary to the findings made or as being subordinate to the findings made.

2. The proposed findings of fact in paragraph 2 are rejected as being recitation of testimony or as being subordinate to the findings made in paragraphs 12 and 13.

3. The proposed findings of fact in paragraphs 3 and 4 are rejected as being subordinate to the findings made in paragraphs 4-7, as being unnecessary to the findings made, or as being recitation of testimony.

4. The proposed findings of fact under the section styled General Office Procedures is rejected as being subordinate to the findings made.

5. The proposed findings of fact under the section styled Gingivectomy or Osseous Surgery are rejected as being subordinate to the findings made or as being the recitation of testimony.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Department of Professional Regulation 730 South Sterling, Suite 201

Tampa, Florida 33609

Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

William Buckhalt Executive Director Board of Dentistry

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-000776

Orders for Case No: 89-000776