STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NOS. 89-1240
) 89-1241
PETER KURACHEK, D.M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Sarasota, Florida on June 27 and July 26, 1989 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For the Petitioner: Bruce D. Lamb, Esquire
Department of Professional Regulation 730 South Sterling Street, Suite 201
Tampa, Florida 33609
For the Respondent: Salvatore A. Carpino, Esquire
One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609
STATEMENT OF THE ISSUES
The issue for consideration herein is whether Respondent's license as a dentist in Florida should be disciplined because of the misconduct alleged in the Administrative Complaints filed herein.
PRELIMINARY STATEMENT
On January 1, 1989, Petitioner, Department of Professional Regulation, (Department), on behalf of the Board of Dentistry, filed an Administrative Complaint against the Respondent, Peter A. Kurachek, alleging in three counts that Respondent failed to provide and maintain reasonably sanitary facilities and conditions, (Count I); delegated professional responsibilities to a person not qualified to perform these responsibilities, (Count II); and committed fraud, deceit, or misconduct in the practice of dentistry, (Count III). All three allegations, if true, would constitute violations of Section 466.028(1), Florida Statutes.
By letter dated February 13, 1989, counsel for Respondent notified the Department's counsel that Respondent denied the allegations and requested a
formal hearing, and on March 8, 1989, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.
In the interim, however, on January 4, 1989, the Department filed a second Administrative Complaint against the Respondent alleging in one count that Respondent was guilty of incompetence and failed to meet minimum standards of performance in diagnosis and treatment, in violation of Section 466.028(1), Florida Statutes, as well. Respondent requested hearing on this complaint by letter of February 13, 1989 and the matter was forwarded to the Division of Administrative Hearings, along with the previously mentioned complaint, on March 8, 1989. By Notice of Hearing dated March 28, 1989, the undersigned set the case for hearing in North Port, Florida on April 25, 1989. However, on April 20, 1989, the undersigned granted Respondent's Motion For Continuance until June 27, 1989, in Sarasota, at which time the hearing commenced as scheduled.
However, upon agreement of the parties, at the close of the first day of hearing, the case was adjourned to a later date, and on June 30, 1989, the undersigned entered an Order setting July 26, 1989, as the date for continuation of the hearing in both cases. The hearing resumed on that date.
At the hearing, Petitioner dismissed some of the specific items involved in the allegation regarding sanitation, and dismissed the count involving fraud in its entirety. It introduced the testimony of Jean D. Spears, Respondent's patient; Dr. Richard A. Feasley, a former employee; Richard A. Cook, regional investigative manager for the Department; Jill J. Hageman (Fewell) and Deborah
Gillespie, both former employees of the Respondent; and Dr. David R. Smith, Dr. Paul A. Hounchell, and Dr. William F. Robinson, all experts in general dentistry. Petitioner also introduced Petitioner's Exhibits 1 through 8. Respondent testified in his own behalf and presented the testimony of Mary Elizabeth Kurachek, his wife; Monica L. Colburn, his receptionist and dental assistant in the Port Charlotte Office; Dr. Rupert Q. Bliss, an expert in general dentistry; and Mariereine James, a former patient. Respondent also introduced Respondent's Exhibits A through G.
Subsequent to the hearing, both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. A transcript was provided, the last segment of which was received on August 15, 1989. By Agreement received September 22, 1989, the parties stipulated that all submissions would be filed with the Division no later than October 11, 1989.
However, by telephone prior to that date, counsel for Respondent requested until November 1, 1989 to file his submission due to illness and represented that counsel for Petitioner had no objection. This request was granted.
Subsequent to the hearing, both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the allegations involved in this hearing, relating to both cases, the Respondent, Peter A. Kurachek, was licensed as a dentist in Florida under license number DN 0005429, and the Board of Dentistry was and is the state agency governing the practice of dentistry in Florida.
AS TO CASE NUMBER 89-1240
Jill J. Hageman started work at the Respondent's clinics in Port Charlotte and in Venice, Florida in July, 1985 and left his employ in January, 1986. During the period of her employment it was office practice to soak
instruments used on patients in a cold soap solution, not a bactericide. Her job included the task of cleaning used instruments and she had been instructed to scrub them and soak them in a soap solution before placing them in a dry heat sterilizer. This unit, not an autoclave or a chemclave, did not have any gauges or lights to indicate appropriate temperature. The instruments were left in the soap solution between 30 minutes and an hour; then rinsed and dried. During the first three months of her employment the heat unit was not there. It was installed only after she had worked there for some time. Her instructions on the use of the soap solution and the procedure to be followed came from the Respondent.
Ms. Hageman was concerned with sterilization. She observed that some instruments were rusty and the procedures she was instructed to follow were not consistent with what she had been taught in dental technician's school. Respondent denies this and none of the other doctors who worked for him who testified at the hearing observed any. It is found, therefore, that allegations of rust are not supported.
The sterilizer utilized in Respondent's office was not as sophisticated as those seen by Ms. Hageman in other offices or in school. Since it did not have any means to indicate completion of sterilization, it was difficult to tell when the instruments were completely sterilized. This was the only office in which she has ever seen a dry heat sterilizer used.
On one occasion, when she was assisting Respondent with a patient, she saw him drop an instrument on the floor, pick it up, and use it in the patient's mouth without sterilizing it. She was upset by this but failed to discuss the situation with Respondent or the patient, or make a notation in the patient's record. This incident allegedly took place shortly after she began work at Respondent's clinic but she, nonetheless, remained there for several months, perhaps mentioning it only to her friend and coworker, Ms. Gillespie. She finally left Respondent's employ of her own volition because she was concerned about the lack of sanitation in the clinic. To the best of her knowledge, she was not about to be fired.
Ms. Gillespie worked in Respondent's office in Port Charlotte during 1985 and 1986, primarily as a receptionist, but, when necessary, as a dental assistant. She was licensed as such, holding an expanded certificate. To the best of her recollection, no sterilization was practiced in the facility. Respondent repeatedly used instruments that had been washed with an all purpose soap, and while there was an autoclave on the premises, it was inoperable during the entire period that she worked for him. As she recalls it, instruments were washed in the soap, dried, and placed back into the instrument drawers for subsequent use on patients, and this lack of sterilization concerned her.
On one occasion, Respondent needed a post for a device he was inserting into his patient's mouth. When he could not find a dental post, he asked Ms. Gillespie for her hair brush, and when she gave it to him, cut several bristles off and, as she recalls it, without washing or sterilizing them in any way, inserted one into a patient's mouth as a post. The brush had been used and had hair in it. This shocked her but she did not make any official report of it, discussing it only with Ms. Hageman.
Though there is some inconsistency between the testimony of Ms. Hageman and that of Ms. Gillespie regarding the type of mechanical device used by Respondent to sterilize his instruments, it is obvious that both are discussing the same piece of equipment and one or the other is in error in her description
of it. However, both agree that the equipment on hand did not work in any case, and that Respondent knew it did not work. According to Ms. Gillespie, he advised his employees to falsely state, if asked, that instruments were taken to the other office for sterilization. Respondent denies both Hageman's and Gillespie's allegations.
In the area of sanitation, in Dr. Robinson's opinion, the use of soapy water is not appropriate and does not meet minimum standards of sanitary practice. Further, the use of a dropped instrument or the use of a bristle from a hairbrush for a post in a patient's mouth is not an appropriate sanitary procedure. Use of alcohol as a sterilizing agent is inadequate.
Respondent's wife claims that on the day the clinic was visited by the investigator, a sterilizer, a cold sterilizer, and a daylight loader were present and operable. The heat sterilizer in question was a small unit different from that in most other offices. It has a temperature gauge and lights to show its operation, but, admittedly is difficult to operate. The cold sterilizer is merely a covered tray utilized to hold instruments while immersed in a sterilizing fluid. At that time in either March or April, 1985, this office in Port Charlotte had been open for about 7 to 8 months. Ms. Hageman had already left Respondent's employment as had Ms. Gillespie. Ms. Kurachek is not a technician but has picked up considerable knowledge of procedures and equipment over the 21 years she has been married to Respondent.
Monica Colburn is a certified dental assistant and Respondent's receptionist in the Port Charlotte office. In May, 1986, she worked in the Venice office and has worked for Respondent for over three years. She did not work with either Ms. Hageman or Ms. Gillespie, both of whom preceded her. She has seen Respondent and other dentists drop instruments while working on a patient. It is a common occurrence. When this happens to Respondent, he always leaves the instrument on the floor and asks for a new one. Only when the patient departs is the instrument picked up and it is sterilized before being used again. The chemclave, the autoclave and the cold sterilizer have all been there as long as she has been employed.
Both Ms. Hageman and Ms. Gillespie claim that while employed as dental assistants by Respondent, they were instructed to adjust dentures on patients. Ms. Hageman relates that in order to do this, she had been instructed to place an identifying paste inside the pink part of the denture currently in use by the patient to identify raised pressure points and then adjust the denture. She did this, accomplishing the procedure at the Respondent's direction but without his assistance or supervision. She also was given no training in the procedure by the Respondent but had some background in it because the procedure was briefly covered to give students a familiarity with it, not a use capability, during training. In fact, when in either basic technician school or classes for her expanded certificate, she was advised that for her to do this type of work by herself was illegal. She did it, even knowing it was improper, out of fear of Respondent's ill temper and because, as her boss, he had instructed her to do it. Nonetheless, though it bothered her that she was being required to do something illegal, she did not complain to anyone other than Ms. Gillespie even though she was required to perform the procedure for approximately four different patients.
Ms. Gillespie, primarily the receptionist in the office, was occasionally called upon by the Respondent to make adjustments to a patient's dentures and when she did this, on at least 12 separate patients, he did not supervise her performance of the procedure nor was he present in the room while
it was being done. His sole participation in training her was to show her once or twice how to accomplish the procedure and even after Ms. Gillespie advised Respondent of her concerns regarding this, and that she was not licensed to do this type of work, he nonetheless inferred that if she did not do as he directed, she was likely to lose her job. Since she was a divorcee with two children and needed the employment, she did as she was told. She was also asked to use a cavitron on a patient but refused and even the potential of losing her job would not convince her to do so. The instrument may legally be used only by a licensed dental hygienist or dentist.
According to Dr. William F. Robinson, an expert in general dentistry, whose opinion is accepted herein, the task of adjusting dentures is one which cannot be delegated to a dental assistant whether or not the assistant has an expanded certificate because dental adjustment is a delicate procedure which requires special training that assistants do not normally receive. To do so violates community standards as an improper application of the dentist's practice and can result in:
destruction of soft tissue and bone,
neurological damage,
incorrect occlusion resulting in speech and fungus problems,
sanitation problems, and
an overreactive gag reflex with choking.
Ms. Colburn, Respondent's current assistant, has never adjusted an appliance or been asked to do by Respondent. The same can be said for the other assistants. Only a dentist does adjustment though she has taken a paste impression preparatory to an adjustment being made. This has been the policy at Respondent's clinic so long as she has been there. It should be noted, however, that Ms. Colburn has been employed by Respondent only since the initiation of the investigation involved herein and is not aware of any practice previous to that time. At Respondent's request, she contacted prior denture patients to see if any had had their denture adjusted by an assistant. None of the five who responded so indicated.
Respondent claims that his clinics now have and had, during the first five months of 1985, an autoclave and a large tub for cold sterilization. To support this claim, Respondent offered three checks and a purchase order which he asserts refer to the autoclave in question. However, the purchase order, upon review, fails to indicate a vendor and is undated, and the checks total an amount larger than that necessary for the purchase of the instrument.
Respondent claims that the autoclave he had worked but not properly. It would heat up to the proper temperature for sterilization and would stay at that temperature but had no timer capability and would not complete the cycle to remove and heat and turn itself off. In order to get the instruments out, the operator would have to pull the plug. Ultimately, Dr. Kurachek purchased another heat sterilizer and then a chemical sterilizer, but asserts that at all times he had some kind of sterilization capability in each of the clinic offices. No doubt some type of equipment was present, but it is found that the equipment did not work sufficiently to be reliable for sterilization, and was a problem.
Respondent also denies ever having picked up a dropped instrument and using it in a patient's mouth. He claims that when he drops an instrument he
leaves it where it is until either the patient leaves or it is convenient for him to retrieve it and sterilize it. He also denies that he used a hairbrush bristle as alleged by Ms. Gillespie. He admits, however, that at times he used hairbrush bristles as posts and still does when a regular post is not available. In the instant case, Respondent claims that the bristle was taken from a brush bought specifically for this purpose and used only after sterilization in a cold sterilization solution. He unequivocally denies using any bristle from Ms.
Gillespie's personal hairbrush claiming he has not ever seen that brush until it was shown to him at the hearing.
Respondent also claims that instruments were transported from one center to another but only to replace an instrument that was used and was no longer effective, or to fill a need in the center to which taken. Respondent claims that this sterilization process was adequate and meets sterilization standards. The procedure followed consisted of a wash in soapy water and a rinse, followed by cold sterilization, and for those instruments requiring further sterilization, a second rinse was used followed by heat sterilization. Dr. Kurachek did not clarify what was meant by use of the term "cold sterilization".
According to Respondent's expert, Dr. Bliss, at one time it was appropriate to use nylon bristles as posts for crowns and a hair brush bristle, if properly sanitized before use, could legitimately be inserted if it was the proper size.
Respondent attempted to discredit the testimony of Ms. Gillespie, and to a lesser extent, Ms. Hageman, by implications that they were merely trying to seek revenge by making the allegations here involved because they had been suspected of misconduct with funds while employed. There was no direct evidence to that effect, however, and such inference is rejected.
Taken together, the evidence shows, and it is found, that inadequate sterilization equipment was on hand and proper sanitation procedures were generally not followed, but the allegation relating to use of a dropped instrument is rejected.
AS TO CASE NO: 89-1241
Ms. Jean D. Spears was treated at the Respondent's clinic during the period 1984 through 1986. During the early part of her treatment, she went there strictly for routine fillings and cleanings. However, as time went on she also needed some crown preparations. At first she saw Dr. Feasley who took the required x-rays and did the fillings required and, did some other things for her. She had no problem with this treatment. However, in 1985 she also needed a bridge installation for which Dr. Feasley did the preparation but, because he left employment with the Respondent before the bridge could be constructed and placed, it was ultimately completed and placed by a Dr. DeVol.
The bridge prepared by Dr. Feasley and installed by Dr. DeVol did not fit at first and could not properly be placed. Ultimately the Respondent was called in and recommended something be done which seemed to cure the problem. However, while the Spears were on vacation, the bridge came out and had to be recemented several times. After this, Respondent made a partial bridge for Mrs. Spears for other teeth, but this bridge did not fit either.
Because she was dissatisfied with the fit of the original bridge made by Dr. Feasley Ms. Spears went to another dentist, Dr. Currie. She then
returned to Respondent who agreed to remake the original Feasley bridge and an appointment was made for her after Respondent did a lot of other work elsewhere in her mouth. However, when the time came for Respondent to correct the original bridge, even though he had promised to do so, Respondent refused to work on it claiming it was not his responsibility since he did not make it. Ms. Spears thereafter complained to state authorities and sometime later, Respondent called and offered to do the necessary repair work. At this time, Ms. Spears refused to allow him to do so because she had made alternative arrangements for correction and she never went back to Respondent's clinic. Instead, she went to see Dr. Feasley, her original dentist, who remade the bridge which now fits properly and which she wears to this day.
Ms. Spears considered herself to be a patient of Respondent's clinic regardless of which dentist did the work for her, and though she does not blame Respondent for the poor fit of the original bridge, she considers him ultimately responsible since he is the owner of the clinic. She was upset by Respondent's attitude and even after he originally agreed to fix the bridge he changed his mind and suggested she go back to Dr. Feasley to get the repair work done because it was not his, Respondent's, responsibility.
Respondent questions Ms. Spears' recollection of the particulars involved in her complaint against him and though it is obvious that time has dimmed her memory of exact dates and times, it has not adversely affected her recollection of the ultimate facts. At 78 years of age, she appears to have a good command of her faculties and is considered a credible witness.
Dr. Feasley worked at Respondent's Venice clinic from 1983 to 1985 as a contract dentist and during that period, treated Ms. Spears for whom he suggested, on April 25, 1984, a root canal. Though he attempted to do the root canal, he was unable to accomplish it. He sealed it up and suggested she have an endodontist pull the tooth in question, number 18. Somewhat later, on August 1, 1984, he took several x-rays and did some fillings, and prepared three teeth for crowns which he set in place. In light of Ms. Spears' age and health, he felt it appropriate to put in crowns even though she had some periodontal disease.
In July, 1985, he also did the preparation work for the construction and insertion of a bridge to cover teeth numbers 18 - 21 for Ms. Spears, but because he severed his connection with the clinic before it was finished, he was unable to follow through on it. However, he saw Ms. Spears again at his new office in May, 1986 when she came to him complaining of the bridge on teeth 18 through 21 which had been placed by Respondent's clinic after his departure and with which she had had problems since its insertion. Dr. Feasley took x-rays and found that the bridge in question was defective and based on what she told him, he recommended it be replaced.
On July 15, 1986, Dr. Feasley removed the offending bridge, repaired teeth 18 and 22, and put in a new bridge extending between those two teeth. It is noted that an additional tooth was added.
When, in 1986, Dr. Feasley examined the bridge constructed at Respondent's clinic, he determined the fit was inappropriate. There was a margin gap on tooth 21 which had been filled with a tooth colored material. This was not as he, Dr. Feasley, had designed the bridge.
When Dr. Feasley made the new bridge for teeth 18 through 22, he charged Ms. Spears even though on May 13, 1986, Ms. Spears told him that the
Respondent had sent her to him to have him fix the bridge. In the course of their conversation, Ms. Spears advised him that whenever she had gone to the clinic, they would always do most of the work requested but, would never work on the bridge for teeth 18 through 21 which, though made at the clinic, had been prepared and designed by Dr. Feasley.
Dr. David R. Smith, an expert in general dentistry called by the Petitioner, reviewed Ms. Spears' records and x-rays and examined her on April 24, 1988. Based on his review, he concluded that for various reasons, Respondent's treatment failed to meet the minimum standards of performance within the community. These reason were:
There was no charting of periodontal disease.
X-rays clearly showed periodontal disease on tooth 18 resulting in bone loss; that the teeth were tipped; and that teeth numbers 3 and 4 were periodontally involved.
The clinical examination showed severe function involvement on tooth 32; tooth 18 had a 5 mm periodontal pocket on two sides and a 4 mm pocket on two others; teeth 6, 8, 22, and 23 showed buckling and bleeding on probing with active periodontal disease; the mobility of the teeth was slight; teeth 4 and 5 had been roughly ground flat on the biting surface; tooth 11 showed decay on the biting edge; and teeth 12 and 13 showed short margins around a bridge.
The charts prepared on Ms. Spears show that Dr. Feasley started treatment with preparation for a bridge for teeth
18 through 21. The bridge was placed in the patient's mouth on July 19, 1985 by Dr. DeVol. There were some problems with this bridge and Dr. Curry treated Ms. Spears and did an extraction of an unrelated tooth. Ms. Spears continued to complaint about the 18 to 21 bridge and in December, 1985, a filling material was placed on the edge of the tooth which leads Dr. Cook to believe there was a short margin which required the patch. Work was also done on upper right teeth 3 through 5 and 12 through 14. Some of these are in direct occlusion with teeth
18 through 21.
On February 6, 1986, Dr. Kurachek first saw Ms. Spears. He indicated in the record at that time that it was a difficult case, (teeth 3 through 5 had super-erupted and needed adjustment), and he had to grind down some teeth. He also indicated the patient needed a bridge on the upper left from tooth 12 through tooth 14. On February 7, 1986, he delivered a partial bridge and advised Ms. Spears of the need for another different bridge which she refused to have done. At this time, Respondent failed to chart any periodontal disease.
On several follow-up visits, Respondent adjusted the partial bridge and on February 20, 1986, he placed some covering material over a gap left by a short margin. On March 13, 1986, he concluded that the teeth 18 through 21 bridge was to be redone at no charge. On April 8, 1986, the bridge still was not corrected and in May, 1986, Respondent entered in the file that he did not want to interfere with Dr. Feasley's work.
The records indicate Respondent did the bridgework on teeth 12 through
14 before the patient's periodontal disease was corrected, and in the opinion of Dr. Smith, this is below community standards. In this, Dr. Smith disagrees with Dr. Feasley's position that in light of the patient's age, installation of a bridge prior to correcting periodontal disease is acceptable. Though there is a divergence of opinion on this issue, the better position is that one should treat and cure the periodontal disease before beginning bridge work.
In Dr. Smith's opinion, however, the first bridge on teeth 18 through 21, constructed by Drs. Feasley and DeVol, appears inadequate due to the repeated adjustments that were necessary. Given the fact that this bridge was inadequate, it was improper for Respondent to put a bridge on teeth 12 through
14 without regard to the improper condition of the teeth 18 through 21 bridge. It would have been more appropriate for him to fix the 18 - 21 bridge first and then install the 12 - 14 bridge. Dr. Smith is of the opinion that Respondent's installation of the 12 - 14 bridge without first correcting the problem with 18
- 21 does not meet standards because it did not treat the underlying problem and it impacted and abutted a severely impacted tooth, (18). In addition, the placing of the partial denture on the left side, (teeth 28 - 31), was a violation of standards since it was anchored to a faulty tooth, (tooth 18), by a wire that went around the mouth behind the front teeth. Both conclusions are found to be correct.
It also appears that Respondent recommended adjustment of the biting surface of teeth 3 through 5 and that teeth 12 through 14 be planed. He recommended extracting teeth 24 and 25 and insertion of a lower bridge. He also indicated the bridge on teeth 18 through 21 should be redone but refused to do it himself, and it was not done at Respondent's clinic.
Dr. Paul A. Hounchell, also an expert in general dentistry, also reviewed Ms. Spears' records and her x-rays, and from the records was unable to determine the treatment plan anticipated for this patient. There was no charting of her periodontal problems and a failure to chart pockets is not within standards in this state. Dr. Hounchell agreed with Dr. Smith regarding the impropriety of inserting a new bridge on different teeth in Ms. Spears' mouth without first correcting the improper formulation of the 18 through 21 bridge. He also observed that the margin on tooth 12 was open at least 1 mm and that on tooth 13 by at least 1/2 mm or more and his opinion, this is outside minimum standards.
Dr. Rupert Q. Bliss, an expert in general dentistry, has served on the Board of Dental Examiners and has been a consultant for it thereafter. He teaches at the University of Florida Dental School and has, over the years, reviewed thousands of charts and records. He has considerable experience in crown and bridge work and general reconstructive dentistry with the majority of his practice dealing with prosthetic manufacture.
His examination of the records kept on Ms. Spears by Dr. Smith, Petitioner's expert, shows they contain little in regard to periodontal pockets. In charting this area, training generally calls for the noting of six items for
each tooth. Other than as to teeth 32 and 18, Dr. Smith's records note only four items per tooth. This is not appropriate. However, Dr. Smith's charting is not in issue. Comment is made by Dr. Bliss only for comparison. The clinic notes on Ms. Spears prior to the Respondent's taking over of her treatment in February, 1986, show many problems in her mouth which Respondent recognized and agreed to correct, especially regarding the bridge for teeth 18 through 21.
Since Respondent took over treatment of Ms. Spears in mid process, it is not necessarily below standards for him to have failed to rechart prior conditions and to continue with the treatment already begun, especially since she had been seen be another dentist in the same office.
Though Dr. Bliss keeps detailed charts on his patients, it is not uncommon to see charts which do not include thorough periodontal pocket charting. While he does not approve of this practice, there is no absolute requirement for it. The Board standards require a complete examination including thorough charting of periodontal pocketing. The chart kept by Respondent appears to be typical. It does not conform to the minimum standards in Florida but is consistent with common practice in the dental community.
As to Respondent's grinding down of teeth to make them fit to a bridge, this can legitimately be done, but if it is, it leaves the tooth open to the mouth environment. According to Dr. Bliss, whether to do so is a judgement call, but evaluating Respondent's performance in grinding down teeth 12 through
14 before correcting teeth 18 through 21, in his opinion the process was accomplished in a manner equal to or above minimum standards. If the grinding of teeth 12 through 14 were done to an ideal plane of occlusion, it would reduce pressure on the lower bridge and would improve the periodontal condition of the patient on teeth 18 through 21. Consequently, it would eliminate the potential for traumatic occlusion. Further, the initiation of crown and bridge work before clearing up the periodontal problems was acceptable in this case, Bliss opines, because Respondent was picking the patient up in mid treatment. Had Ms. Spears been a new patient, it would have been more appropriate to clear up the periodontal problems before starting the crown and bridge work.
Ms. Kurachek was present in her husband's office when the investigator from the Department came. He was there for approximately 15 minutes during which she heard him indicate it appeared everything was in place and he would so report. There appears to have been a serious misunderstanding on someone's part regarding this, and it is highly unlikely the investigator made such comments.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In the two Administrative Complaints involved herein, the Board charges Respondent with having failed to maintain reasonably sanitary facilities and conditions; with having delegated professional responsibilities to persons not qualified to perform them; and with failing to meet minimum standards of performance and diagnosis, all in violation of subsections of Section 466.028(1), Florida Statutes.
To prevail in this matter, Petitioner must establish Respondent's commission of the misconduct alleged by clear and convincing evidence. Ferris
v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 466.028(1), Florida Statutes, permits the Board to take disciplinary action for:
Failure to provide and maintain reasonable sanitary facilities and conditions.
(aa) Delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform them.
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 ....
The testimony of both Ms. Hageman and Ms. Gillespie clearly demonstrates that Respondent's sterilization equipment was inadequate. The testimony of the other dentist who worked there confirms this. Though Ms. Kurachek indicated the heat sterilizer was operable, if difficult to work, she indicated the cold sterilizer was a tray and solution, described as inadequate by others. Respondent's attempt to prove purchase of sterilization equipment was not persuasive, nor was counsel's argument regarding the meaning of the presence of rust on some instruments.
The unimpeached testimony of Ms. Gillespie establishes the use of a bristle from her brush. Considered as a whole, the evidence regarding the sanitary standards applied by the Respondent demonstrates his failure to provide reasonably sanitary conditions as required by the statute.
On the issue of the alleged improper delegation of professional responsibilities, Ms. Hageman and Ms. Gillespie indicated that they were directed to perform adjustments of dentures, a procedure they were not qualified to perform, and under threat of discharge, did so. The efforts to discredit these witnesses was unsuccessful, and Ms. Colburn's recital of the standard and what is currently done does not diminish the effect of the former employees' testimony. Petitioner has established Respondent's violation of the statute.
Respondent has been charged with being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment. In support of its allegations, Petitioner has shown that Respondent failed to properly chart the periodontal disease existing in Ms. Spears' mouth when he took over her case. The obligation to adequately chart is basic to the proper practice of the dental profession and Respondent's records were deemed insufficient by Dr. Bliss even though the failure to adequately chart is widespread in the profession.
More important, however, are the Respondent's efforts to correct excess margins by the insertion of a patch rather than by refit. Also, there is evidence that Respondent ground down certain of Ms. Spears' teeth to facilitate occlusion with a manufactured device rather than correcting the device to properly meet the natural teeth. Further, he refused to correct a defective bridge designed and installed by his employees, which was giving the patient problems, while instead, installing, at additional charge, an additional bridge on other teeth without first correcting a pre-existing problem which impacted on the patient's dental health. There is conflicting expert testimony on the issue of whether this met standards. The better view is that it did not.
Taken together, the evidence of record regarding Respondent's treatment of Ms. Spears clearly and convincingly that his performance, while perhaps not incompetence, in most respects certainly fails to meet the minimum standards in diagnosis and treatment when measured against generally prevailing performance.
Rule 2IG-13.005(2), F.A.C., outlines the disciplinary guidelines for established violations of the practice standards for the dental profession in Florida. These include, in pari materia:
Failure to provide and maintain reasonable sanitary facilities and conditions: probation and/or suspension.
Delegating professional responsi- bilities to an unqualified individ- ual: suspension for 6 months with an additional period of probation or restriction of practice, and
Dental negligence or malpractice probation, restriction of practice, and/or suspension.
Other factors proper for consideration include the number of and severity of offenses involved in the instant proceeding and prior disciplinary action.
In this case, Respondent previously has been disciplined by the Board for improper delegation to unqualified individuals. The prior Board action, however, was taken subsequent to the offenses in issue here, which took place before the Board's prior action, and there is no indication Respondent committed any offenses subsequent to that prior Board action. Nonetheless, from the evidence presented herein, it is clear that substantial corrective action is appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent's license to practice dentistry in Florida be suspended for a period of six months and that he be fined $3,000.00, and that when reinstated, he be placed on probation, under such terms and conditions as the Board may prescribe, for a period of three additional years, these actions to run concurrently with the penalty, if any, imposed by the Board in its action, when taken, in its allied case involving the Respondent, heard under DOAH case number 89-5544.
RECOMMENDED this 21st day of November, 1989, in Tallahassee, Florida.
ARNOLD H. POLLOCK
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 21st day of November, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1240 AND 89-1241
The following constitutes my specific ruling pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.
By the Petitioner:
1. & 2. Accepted and incorporated herein. 3(a). Accepted and incorporated herein. 3(b). Rejected.
3(c & d). Accepted and incorporated herein.
4. Not a Finding of Fact but a Conclusion of Law. 5.-7. Accepted and incorporated herein.
8. & 9. Accepted and incorporated herein.
10. & 11. Accepted and incorporated herein. 12.-14. Accepted and incorporated herein.
15. & 16. Accepted and incorporated herein.
17. & 18. Accepted and incorporated herein.
Accepted and incorporated herein.
Not a Finding of Fact but a Conclusion of Law.
By the Respondent:
1. & 2. Accepted and incorporated herein.
3. & 4. Accepted and incorporated but not dispositive since there is some issue as to whether either worked properly.
1st sentence accepted. Rejected since sole evidence of this is hearsay testimony. Balance accepted.
Not a Finding of Fact but a summation of testimony and a comment thereon.
1st sentence accepted. Balance is not a Finding of Fact but a summation of testimony.
A restatement or and comment on testimony, not a Finding of Fact.
1st Sentence accepted. Balance merely a restatement of testimony.
Accepted and incorporated herein. 11.-14. Accepted and incorporated herein.
15.-19. Accepted and incorporated herein.
20. & 21. Accepted.
1st sentence rejected as not supported by evidence of record. Balance accepted.
Accepted as accurate description of treatment plan and of Respondent's reasons therefore without accepting appropriateness thereof.
& 25. Accepted.
Accepted.
& 28. Accepted and incorporated herein. 29.-32. Accepted.
Not a Finding of Fact but a restatement of testimony.
Accepted.
Accepted but not determinative.
Accepted, but it was never done properly.
Accepted, but failure to examine eventually is a failure of standard.
Rejected as an inaccurate summary of testimony. Dr. Bliss indicated charting is often not done properly and indicated specifically that Respondent's charting was not up to standards.
Accepted and incorporated herein.
Accepted.
Accepted.
Accepted.
Accepted.
COPIES FURNISHED:
Bruce D. Lamb, Esquire Department of Professional
Regulation
730 South Sterling Street, Suite 201
Tampa, Florida 33609
Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609
Kenneth E. Easley, Esquire 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
| Issue Date | Proceedings |
|---|---|
| Nov. 21, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 21, 1989 | Recommended Order | Dentist's sterilization proceedure and his performance of dental procedures was below minimum standards and support discipline |
