STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF DENTISTRY, )

)

Petitioner, )

)

v. ) CASE NO. 89-0809

)

JOHN D. ROBINSON, D.M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 16, 1989, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Jack L. McRay, Senior Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: John D. Robinson, Pro Se

1566-3 Dunn Avenue

Jacksonville, Florida 32218 STATEMENT OF THE ISSUES

Whether the dentistry license of Respondent, John D. Robinson, D.M.D., should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner, Department of Professional Regulation, Board of Dentistry, (DPR) presented the testimony of the complaining patient, T.L.J., Mary E. Currier, Curtis Mark Standish, D.D.S., Julie Weeks, Rupert Quentin Bliss, D.D.S., and Robert Wayne Lemond, D.M.D., and had Petitioner's Exhibits 1-11 admitted in evidence. Dr. Robinson presented his own testimony and had Respondent's Exhibits 1 and 2 admitted in evidence.

The transcript of the proceedings was filed on June 12, 1989. DPR filed its proposed findings of fact and conclusions of law on June 21, 1989. Dr.

Robinson waived the filing of proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Dr. Robinson has been licensed to practice dentistry in the State of Florida having been issued license number DN0007588. Dr. Robinson practices dentistry in Jacksonville, Florida.

   
   

2. From May 12, 1986, to October 1, 1987, Dr. Robinson rendered dentistry services to T.L.J., the patient listed as patient #1 in the Amended Administrative Complaint.

   
   

3. Dr. Robinson's records regarding T.L.J. are slightly deficient in that they do not completely set forth a treatment plan for the patient. The records do contain an adequate patient history, medical history, and examination results, and they do justify the course of treatment.

   
   

4. During the course of his treatment of T.L.J., Dr. Robinson initiated a root canal on T.L.J.'s tooth #30 on August 14, 1987. On August 17, 1987, he sealed tooth #30. On September 10, 1987, Dr. Robinson opened tooth #30 to drain it and started T.L.J. on antibiotics.

   
   

5. During this time period, Dr. Robinson was also doing other work on T.L.J.'s teeth, especially on tooth #19 which was to be crowned. On October 1, 1987, T.L.J. returned to Dr. Robinson's office to have the crown cemented on tooth #19 and to have the root canal on tooth #30 completed. During this visit something happened that caused T.L.J. to leave the office without having the root canal completed. She refused to return.

   
   

6. The root canal was finally done by Dr. Standish.

   
   

7. On August 14, 1987, T.L.J. and her husband had already signed the insurance claim form for the root canal. Dr. Robinson had also signed the form. By his signature, Dr. Robinson had certified that the procedure indicated by date had been completed. In fact, the root canal had not been completed.

   
   

8. Through an error by Dr. Robinson's staff, the insurance claim form was sent to the insurance company, even though the procedure had not been completed.

   
   

9. The insurance company, American General Insurance Company, paid it's share of the claim, $260.00, on September 17, 1987.

   
   

10. That check was deposited by office personnel into Dr. Robinson's account on September 28, 1987, over a signature stamp of Dr. Robinson's.

    
    

11. On November 30, 1987, DPR sent Dr. Robinson notification that a complaint was filed in this case. It was then that Dr. Robinson determined that the root canal procedure had been erroneously billed and that the payment by the insurance company had been deposited to his account.

    
    

12. On December 11, 1987, Dr. Robinson returned the $260.00 payment to the insurance company.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

14. The Department of Professional Regulation, Board of Dentistry, has charged Dr. Robinson with three violations of Section 466.028(1), Florida Statutes, as follows:

    
    

    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 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...

       
       

15. As to the alleged violation of Section 466.028(1)(y), DPR argues that the failure to keep adequate records constitutes practice below the standard. However, DPR did not charge Dr. Robinson with violating Section 466.028(1)(i) [failure to perform any statutory or legal obligation], Section 499.028(1)(m) [failure to keep written dental records justifying the course of treatment], or Section 466.028(1)(bb) [violation of Chapter 466 or the rules promulgated pursuant to Chapter 466]. Further, DPR did not charge Dr. Robinson with failure to keep the records required by Section 466.018 or with failure to keep the records required by Rule 21G-13.005, Florida Administrative Code.

    
    

16. While the evidence supports a finding that there were minor shortcomings in Dr. Robinson's record keeping, it does not support a conclusion that these shortcomings rise to the level of incompetence or negligence as specified in Section 466.028(1)(y). If the legislature had intended that record keeping violations be considered as practice below the standard, it would have said so. Instead, the legislature passed specific disciplinary sections pertaining to record keeping requirements. There is no doubt that this case is "penal in nature." Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979). Further, a statute which is penal in nature must be strictly construed. State ex rel. Volusia Jai-Alai, Inc. v. Board of Business Regulation, 304 So.2d 473 (Fla. 1st DCA 1974). It must also be strictly construed in favor of the licensee. McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 87 (Fla. 5th DCA 1984).

    
    

17. With these considerations in mind, it must be concluded that Dr. Robinson's shortcomings in record keeping do not and can not amount to practice below the minimum standard as contemplated by Section 466.028(1)(y). Dr. Robinson was simply not charged with the correct violation and the record is inadequate to support a finding that Dr. Robinson's records fall below the level required by statute or rule.

    
    

18. Both Section 466.028(1)(l) and (u) require some level of intent before a violation can be found. Here Dr. Robinson incorrectly signed the insurance form before the services were completed, but with the belief that the services would be completed before the form was sent by his office staff. Instead, the form was inadvertently sent by the office staff without Dr. Robinson's direct

    knowledge. The check was deposited as a matter of office routine, again without Dr. Robinson's direct knowledge. When the erroneous billing and payment came to Dr. Robinson's attention, he immediately repaid the full amount to the insurance company even though he probably was entitled to some payment for the services he actually did provide in relation to tooth #30.

    
    

19. Fraud or deceit allegations require some showing of an intention to deceive or defraud. Here DPR has not proven such specific intent by the requisite evidentiary standard--clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. For the foregoing reasons, it is concluded that the charges against Dr. Robinson should be dismissed.

RECOMMENDATION

Based upon 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 dismissing the Amended Administrative Complaint

filed against John D. Robinson, D.M.D.

DONE and ENTERED this 13th day of July, 1989, in Tallahassee, Florida.

DIANE K. KIESLING

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 13th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0809

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Dentistry

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2(1); 3(2); 6 & 7(5); 8(6); and 9-12(9-12).

   
   

2. Proposed findings of fact 4 and 5 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

Jack L. McRay Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

John D. Robinson, D.M.D. 1566-3 Dunn Avenue

Jacksonville, Florida 32218

Kenneth Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt Executive Director Board of Dentistry

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-000809

Orders for Case No: 89-000809