STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF DENTISTRY, )
)
Petitioner, )
)
v. ) CASE NO. 89-5190
)
PHILLIP K. PARSONS, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on September 11- 13, 1990, in Starke, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Robert D. Newell, Jr.
Attorney at Law Newell & Stahl, P.A.
817 North Gadsden Street Tallahassee, Florida 32303-6313
For Respondent: Salvatore A. Carpino
Attorney at Law Suite 1010
One North Dale Mabry Tampa, Florida 33609
STATEMENT OF ISSUES
The ultimate issue is whether the dental license of Phillip K. Parsons, D.D.S., 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) voluntarily dismissed Count Nine of the Amended Administrative Complaint at the beginning of the hearing. It subsequently dismissed paragraphs 6E, 6F, and 47F. DPR presented the testimony of Louis Grilliot, Kathleen Marie Grilliot, Sylvester Lucas, Jr., David F. Fallon, and Rupert Q. Bliss, D.D.S. DPR Exhibits 1-14, 14A, 15-17, 19-22, 24, 26-46, and 48-52 were admitted in evidence.
The Respondent, Dr. Parsons, presented the testimony of Ned Fayson, Jr., Patricia Parsons, Phillip K. Parsons, D.D.S., Murray J. Vimy, D.M.D., and Richard D. Fischer, D.D.S. Respondent's Exhibits 1-7 were admitted in evidence.
The transcript of the proceedings was filed on October 15, 1990. DPR filed its proposed findings of fact and conclusions of law on November 14, 1990.
Counsel for Respondent advised that Dr. Parsons' proposed order would be filed on November 29, 1990, by agreement of counsel. Respondent's proposed findings of fact and conclusions of law were finally filed on December 5, 1990, along with a Motion to Accept Late Filed Proposed Recommended Order. DPR filed no objection or opposition to the motion. For that reason, the motion is granted and Dr. Parsons' late filed proposed order is accepted. 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
Phillip K. Parsons, D.D.S., has held dental license DN 0003193 since 1961 and was so licensed in the State of Florida at all times relevant to the charges made in the Amended Administrative Complaint.
Dr. Parsons believes that the presence of silver amalgam fillings has profound negative impacts on the health of patients because of the release of mercury into the patient's body.
This belief is based on Dr. Parsons' clinical observations and on the growing body of literature which indicates that these negative impacts, including immune system damage and renal system damage and other systemic problems and diseases, are related to the mercury which is an integral part of all metal amalgam filling material.
While this relatively new area of thinking and research is not accepted by the American Dental Association and other similar mainstream dental groups, it is a view held by a definite minority of the dental profession. There exist alternative professional groups whose members accept the toxic impacts from the use of silver amalgam fillings, such as the International Academy of Oral Medicine and Toxicology.
Dr. Parsons has refused to use silver amalgam fillings in his practice since 1960. He offers patients the choice of gold casting or composite acrylic materials for fillings. If a patient specifically requests silver amalgam fillings, Dr. Parsons will refer him to a dentist who uses such materials.
In Dr. Parsons' waiting room is a large bulletin board with additional information about silver amalgams and the related health impacts. Also posted is a large sign advising all patients that he will not use materials containing mercury in his practice of dentistry.
Unless specifically requested, Dr. Parsons does not remove amalgam fillings existing when a patient comes to him. Dr. Parsons removes existing amalgam fillings and replaces them with composite material only when the fillings must be replaced for a valid dental reason.
Composite resin materials have been accepted for use in anterior teeth for many years. These materials have not been widely used or accepted for use in posterior teeth on occlusal surfaces.
One reason composite resin materials are not widely used on occlusal surfaces is that the material is relatively soft and is subject to wear and shrinkage. Depending on the diet of the patient, composite fillings can last from two to twenty years before repair is needed.
If the filling does wear, composite resin material can be repaired in the mouth by adding another layer of composite material. Silver amalgam fillings cannot be repaired, but must be completely removed and replaced.
The American Dental Association's Council on Materials, Instruments and Equipment compiles listings of materials and equipment that are accepted by the group for use in dental practice. That Council accepted composite resin material for use in occlusal surfaces of posterior teeth in 1985. Composite materials were acceptable for use in non-occlusal surfaces prior to that. The
U.S. Food and Drug Administration approved composite materials for dental uses long before the dates relevant to this case.
The composite materials used by Dr. Parsons were the same or similar before and after 1985. During the times relevant to this case, he primarily used composites named P-10 and Adaptec.
There is no rule or statute in Florida which requires all dentists to use only those materials accepted by the Council.
Dr. Parsons also uses homeopathic remedies in his practice of dentistry. He has received extensive training in homeopathy. He has attended four weeks of training from the National Center of Homeopathy, nine weeks of training at the Athenian School of Homeopathy in Athens, Greece, and six weeks of training with the International Foundation for Homeopathy. He has also attended seminars and other short courses. Dr. Parsons has also taught similar seminars and short courses.
Homeopathy is a healing art which originated several thousand years ago with the Hindus. Hypocrites wrote about it. Modern day homeopathy began with Hahnemann in Germany approximately 200 years ago.
Homeopathy literally means in Greek "similar disease." The basic theory of homeopathy is that similar diseases cure similar pathology. The compounds or drugs used in homeopathy are found in the Homeopathic Pharmacopoeia of the United States.
While great numbers of practitioners of the healing arts, i.e., allopathic and osteopathic physicians and dentists, do not employ homeopathy in their practices, there is a distinct minority which uses homeopathy within the scope of their practices.
Homeopathy is not experimentation because it is based on tried and proven administrations of each substance to treat similar symptoms of sickness or disease. All of the substances given are naturally occurring substances obtained directly from nature. The dosages administered are at levels such that no harm will result from their use.
Rupert Q. Bliss, D.D.S., testified as the only expert for DPR. While Dr. Bliss is clearly qualified to testify about general dentistry, he has never used composite resin material for fillings in posterior occlusal surfaces, he does not believe that mercury vapors from amalgam fillings present any hazard, and he knows nothing about homeopathy. Based on his lack of knowledge about any
of these critical areas, no weight is given to his opinions on these subjects. However, considerable weight is given to his opinions about the general practice of dentistry as it relates to dental records, to treatment of conditions through the application of dental principles, and to dental treatment in emergency situations.
Dr. Parsons provided dental treatment to Patricia Andrise from July, 1984, to March, 1985. During the course of this treatment, Dr. Parsons replaced Andrise's silver amalgam filling with composite resin material. He did this because Andrise had bad or leaking amalgam fillings and virgin decay around or under these fillings.
No credible evidence was presented to show that Dr. Parsons' placement of the composite fillings was below standards at the time the composite material was placed. Clearly the placement of the composite materials can be competently performed and still result in the need for repair of the fillings because of the wear problems associated with such materials.
The x-rays taken of Andrise by Dr. Parsons on August 1, 1984, showed signs of periodontal disease. While his records were not the best, the records for Andrise did show that periodontal disease was diagnosed and that treatment was started by Dr. Parsons. The actual depth of bone loss in the lower arch was charted and subgingival scaling was performed. While Dr. Parsons maintains that he discussed the extent of the periodontal disease and the potential need for surgery with Andrise, he did not chart these items. Ms. Andrise did not testify so Dr. Parsons' testimony in this regard is uncontroverted.
Finally, Dr. Parsons administered some homeopathic remedies to Andrise which were directly related to his practice of dentistry. There is no showing that Andrise suffered any harm from these homeopathic remedies or that she was mislead or uninformed about their use. In fact, some of the homeopathic drugs were for pain and Dr. Parsons also prescribed Percodan to Andrise in case the homeopathic remedies did not effectively deal with her oral pain.
Dr. Parsons provided dental treatment to Todd Grilliot from 1980 to 1983. One of the things Dr. Parsons did for Todd was to perform a root canal on tooth #8 and place a crown on the tooth.
While the crown is partly used to strengthen a tooth after a root canal, sometimes a post is placed inside the drilled tooth, extending down the root, to further strengthen the tooth.
Dr. Parsons prepared the tooth for placement of a post, but did not actually place the post.
Todd was approximately 10 years old when the place for the post was prepared.
Apexification is a process by which children's teeth change as they mature into adults. The wide canals in a child's teeth shrink as he or she matures.
Dr. Parsons wanted to get the maximum growth within the canal through apexification before placing a post in tooth #8. To encourage apexification, Dr. Parsons placed calcium hydroxide into the canal. He temporarily placed the crown to seal the tooth while waiting for the necessary growth in the canal.
Dr. Parsons' treatment of Todd in this regard met professional standards and involved his independent judgment regarding the appropriate treatment of an individual patient.
The absence of a post did not harm Todd or the tooth. In fact, about eight years later, the tooth was in good condition.
Kathleen Grilliot was a dental patient of Dr. Parsons from 1980 to 1984. During that time, Dr. Parsons replaced some of her existing amalgam fillings and filled new cavities with composite resin material. Louis Grilliot was also Dr. Parsons' patient from 1981 to 1984. Some of Mr. Grilliot's existing fillings were also replaced and new cavities were filled with composite resin material. There is no evidence that any silver amalgam fillings were replaced without a valid dental reason.
Mrs. Grilliot discussed mercury toxicity with Dr. Parsons and she knew he was filling her teeth with a material other than silver amalgam. Mr. Grilliot knew his fillings were white, but does not remember his discussions with Dr. Parsons.
Some time later the Grilliots went to another dentist and was told there were problems with the composite fillings. No competent evidence was presented to show that any alleged problems with these fillings were the result of poor workmanship by Dr. Parsons. Instead, the wear and shrinkage were more likely related to the properties of the composite material. The fillings could have been repaired instead of replaced by the subsequent dentist. The choice of filling material was within Dr. Parsons' range of independent professional judgment.
No credible and competent evidence was presented to show that Dr. Parsons did not use a rubber dam while inserting fillings for Mrs. or Mr. Grilliot. The credible evidence showed that a dry field was essential when working with composite material and that Dr. Parsons always used a rubber dam. This evidence is accepted.
In January, 1987, Daniel Tully was discharged from Humana Hospital, Orange Park, with diagnoses of acute dehydration secondary to nausea and vomiting, metastatic carcinoma, and a urinary tract infection.
Tully had terminal cancer, was paralyzed, and was taking pain killing drugs and penicillin after his discharge from the hospital.
At the time of his discharge, Tully was being treated pursuant to a treatment plan that his treating physician had developed to address his various conditions.
On or about January 22, 1987, Sarah Giddings, a friend to Tully's, called Dr. Parsons about Tully. She was seeking Dr. Parsons' assistance because Tully had stopped eating and drinking and had painful sores in his mouth.
Ms. Giddings, Mr. Tully and Yvonne Taylor, Tully's daughter, all spoke with Dr. Parsons by phone that day.
Dr. Parsons was told that Tully was on pain medication prescribed by his treating physician and that Tully was suffering from various conditions, including terminal cancer.
Dr. Parsons agreed to send a homeopathic remedy to Tully. He told Ms. Taylor to throw away the medications Tully was taking and to use the remedy he was sending.
The homeopathic remedy he sent to Tully, by regular U.S. mail, was Arnica. Arnica is a remedy made from leopard's bane, a plant, and is administered to relieve pain.
Tully was billed by Dr. Parsons for the services rendered in the amount of $33.00.
Several days later, Ms. Giddings again called Dr. Parsons and told him that Tully's "teeth had become paralyzed" and that he was having difficulty swallowing. Based on this telephone call, Dr. Parsons again sent a homeopathic remedy to Tully by regular U.S. mail. The remedy was Gelsemium, made from yellow jessamine and used for heaviness or paralysis of the tongue resulting in trouble swallowing. It is also used for pain in the mouth.
Dr. Parsons again billed for these services in the amount of $33.00. The total bill of $66.00 was never paid.
Dr. Parsons had never met or examined Tully. He never reviewed any of his medical records. He was unaware of Tully's medical treatment plan, but he made no attempt to contact Tully's treating physician. In fact, even after he sent the medications to Tully, Dr. Parsons did not attempt to contact Tully's physician. Further, Dr. Parsons did not even know the names of the drugs Tully was taking or the possible interaction they may have with the homeopathic remedies.
The treatment provided by Dr. Parsons to Tully was provided within his capacity as a dentist.
Dr. Parsons maintained no dental records for his treatment of Tully. He had no patient records to justify the course of treatment.
The treatment rendered by Dr. Parsons to Tully was not treatment rendered in an emergency situation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Section 466.003(3), Florida Statutes (1986 Supp.), in part defines "dentistry" to mean
. . . the healing art which is concerned with the examination, diagnosis, treatment planning, and care of conditions within the human oral cavity and its adjacent tissues and structures.
This definition was the one in place at all times relevant to this case. Unless otherwise indicated, all citations to Florida Statutes herein are to the statutes relevant to this case.
Section 466.017(1), Florida Statutes (1986 Supp.), gives dentists "the right to prescribe drugs or medicine, subject to the limitations imposed by law." Section 499.003(8)(a) defines "drug" to mean an agent or product "recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement thereto."
Section 466.018(3), Florida Statutes (1986 Supp.), states:
Every dentist shall maintain written dental records and medical history records which justify the course of treatment of the patient. The records shall include, but not be limited to, patient history, examination results, test results, and if taken, X rays.
DPR charged Dr. Parsons with violating Sections 466.028(1)(m), (u), (x), (y), and (z), Florida Statutes (1987). Since none of the allegations relate to acts occurring later than January, 1987, the violations must relate back to Florida Statutes (1986 Supp.). All statutes quoted herein are from the 1986 Supplement.
Section 466.028(1) states:
(m) Failing to keep written dental records and medical history records justifying the course of treatment of the patient, including, but not limited to, patient histories, exam- ination results, and X rays, if taken.
Fraud, deceit, or misconduct in the prac- tice of dentistry or dental hygiene.
Performing any procedure or prescribing any therapy which, by the prevailing standards of dental practice in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.
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 per- formance, 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 mal- practice. . . .
Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.
Dr. Parsons is charged with violating (m) above in regard to his records on Daniel Tully. He is charged with violating (u) specifically as it related to Mr. and Mrs. Grilliot, but there is a vague assertion in the Amended Administrative complaint that this allegation of misconduct involved all the named patients. Further, Dr. Parsons is charged with violating (x) by employing
homeopathy on Ms. Andrise and Mr. Tully and by placing composite restorations in Mr. and Mrs. Grilliot. He is also charged with violating (y) by placing composite restorations in Mr. and Mrs. Grilliot and Ms. Andrise, by failing to diagnose and treat Ms. Andrise's periodontal disease, and by failing to place a post in Todd Grilliot's tooth. Finally, Dr. Parsons is charged with violating
(z) above related to his treatment of Mr. Tully.
The burden is on DPR to prove, by clear and convincing evidence, the violations alleged in the Amended Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). DPR failed to carry this burden in regard to several of the violations alleged.
First, Dr. Parsons' use of composite restoration material does not constitute experimentation and does not fail to meet minimum standards. Additionally, his failure to place a post in Todd Grilliot's tooth is not below minimum standards. The credible, competent, and substantial evidence does not support the allegations that Dr. Parsons failed to diagnose or properly treat Ms. Andrise's periodontal disease. Finally, Dr. Parsons' use of homeopathic remedies within the scope of his dental practice is neither experimentation nor incompetence.
Dr. Parsons' view and practice regarding composite resin materials and homeopathic remedies, while clearly not congruent with the thinking of most dentists, are in line with the theories and practices of a definite minority within the profession. In Rogers v. State Board of Medical Examiners, 371 So.2d 1037 (Fla. 1st DCA 1979), the court held that
. . . in the absence of a demonstration of unlawfulness, harm, fraud, coercion or misrepresentation, the respondent Board is without authority to deprive . . . patients of their voluntary election to receive [an alternative mode of treatment] simply because that mode of treatment has not received the endorsement of a majority of the medical profession.
Rogers, supra at page 1041. As long as a "definite minority" of the profession accepts the questioned practice and as long as no harm comes to the patient, the Board here cannot prevent Dr. Parsons from using homeopathy. Further, the fact that the use of composite resin materials in posterior occlusal surfaces has expressly been acceptable to the majority of the profession since 1985 undermines the allegations that Dr. Parsons' use of that material at an earlier time was incompetent because it failed to meet minimum standards.
As the Rogers court so aptly stated at page 1041:
History teaches us that virtually all progress in science and medicine has been accomplished as a result of the courageous efforts of those members of the profession willing to pursue their theories in the face of tremendous odds despite the criticism of fellow practitioners. Copernicus was thought to be a heretic when he theorized that the earth was not the center of the universe. Banishment and prison was the
reward for discovering that the world was round.
Pasteur was ridiculed for his theory that unseen organisms cause infection. Freud met only resis- tance and derision in pioneering the field of psychiatry. In our own era chiropractic treatment has been slow in receiving the approval of the other professions of the healing arts. We can only wonder what would have been the condition
of the world today and the field of medicine in particular had those in the midstream of their profession been permitted to prohibit continued treatment and thereby impede progress in those and other fields of science and the healing arts.
The Florida Supreme Court upheld the District Court's conclusions in Rogers. See State Board of Medical Examiners v. Rogers, 387 So.2d 937 (Fla. 1980). In reaching this position, the Court concluded that the state's power to regulate professional practice "must not amount to an arbitrary or unreasonable interference with the right to practice one's profession," that the Board's actions unreasonably interfered with the right to practice by curtailing the exercise of professional judgment to administer the alternative treatment, and that the Board cannot impose sanctions because the practitioner "utilized a modality not accepted by the Board as having been proven effective." Where there has been no harm to the patient and no fraud perpetrated, the agency may not limit professional practice and judgment unless it shows a reasonable relationship to the protection of the health and welfare of the public. No such showing has been made in this case.
For these reasons, it is concluded that all charges of violation of Section 466.028(1)(x) and (y) should be dismissed.
Dr. Parsons' treatment of Mr. Tully was deficient in several respects. First, Dr. Parsons undertook to treat Mr. Tully without ever seeing or examining him and without taking a patient history or consulting with the treating physician. Further, by telling Ms. Taylor to discontinue all other medications, Dr. Parsons was apparently attempting to supplant the treatment plan of Tully's medical doctor for all of his medical conditions. Clearly, Dr. Parsons is not competent to practice medicine relating to Mr. Tully's various medical conditions. In doing so, Dr. Parsons undertook to practice beyond the scope permitted by law for licensed dentists. Finally, Dr. Parsons failed to maintain written records and medical history records to justify the course of treatment he undertook for Mr. Tully. For these reasons, it is concluded that Dr. Parsons violated Section 466.028(1)(m) and (z) in his involvement with Mr. Tully.
The remaining issue is whether Dr. Parsons' violations related to Mr. Tully constitute misconduct in the practice of dentistry and whether this charge is adequately made in the Amended Administrative Complaint. Because the Amended Administrative Complaint is so inartfully drafted as to obscure the factual allegations upon which the violation of Section 466.028(1)(u) is based, it is concluded that violation should be dismissed. Specifically, each count of the Amended Administrative Complaint incorporates by reference each and every preceding count. The alleged violation of Section 466.028(1)(u) is found in paragraph 74 in Count 11. Paragraph 70 realleges and reincorporates paragraphs 1-67. Paragraph 73 essentially alleges that Dr. Parsons' knowledge or lack thereof that use of composite material was below minimum standards "coupled with the aforementioned allegations of this administrative complaint" constitute misconduct in the practice of dentistry. Pleading such as this is absolutely inadequate to advise the accused of the specific charges against him. It is
improper and dismissal is appropriate. Gerentine v. Coastal Security Systems,
529 So.2d 1191 (Fla. 5th DCA 1988); Frugoli v. Winn-Dixie Stores, Inc., 464 So.2d 1293 (Fla. 1st DCA 1985); and Chaires v. North Florida National Bank, 432 So.2d 183 (Fla. 1st DCA 1983). The court in Chaires indicated at page 185:
Finally, we feel constrained to address a pleading practice followed by some practition- ers which practice compounds the problems of the trial court and opposing counsel in sorting out the various causes of action asserted in multi-count complaints. The complaints . . . were drafted in such a manner that each suc- ceeding count incorporated by reference not
only the paragraphs contained in the complaint's preliminary allegations but also all of the paragraphs contained in each of the preceding counts. Such is improper. By the time the beleaguered reader gets to the fifth count,
he is having to cope with presumably five causes of action asserted in one count. This practice is an unnecessary hinderance to trial
courts' efforts to determine the facial validity of the various causes of action being asserted and serves only to confuse and delay.
It is a cornerstone of administrative law that allegations in penal cases are to be strictly construed and must be sufficiently concise and specific to allow a person of ordinary understanding to present a defense. The agency must allege when or in what specific manner the accused violated the statute. The failure to allege underlying facts to support the violation alleged is an denial of due process and cannot be allowed. See, e.g., Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2nd DCA 1984), and Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984).
Where the trier of fact is unable to determine the facts alleged to support the violation, he or she cannot make findings of fact appropriate to the charges.
For this reason, it is concluded that DPR has failed to meet its burden of proving the facts that support the alleged violation. Dr. Parsons is not guilty of misconduct in violation of Section 466.028(1)(u).
Dr. Parsons presented a substantial amount of evidence in mitigation in the form of letters of support. These letters and other mitigating factors have been considered in the recommended penalty set forth below.
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 and therein:
Dismiss all alleged violations of Section 466.028(1)(u), (x), and (y).
Find Dr. Parsons guilty of violating Section 466.028(1)(m) and (z) as it relates to his treatment of Mr. Tully.
Place Dr. Parsons' license on probation subject to completion of six hours of continuing education in the area of adequacy of dental record keeping and ten hours in the area of the scope of dental practice allowed by law.
Impose a fine in the total amount of $1000.
RECOMMENDED this 31st day of January, 1991, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5190
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
1. Each of the following proposed findings of fact is 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: 1-3(36-38); 5(39); 8(43); 13(45); 14-16(47); 17(48); 21(49); 32(20); 67 & 68(24); 69(25); 70(26); 78(32); and 108(5).
2. Proposed findings of fact 4, 6, 7, 9, 20, 23, 25, 29, 33-35, 38-42, 45-47,
52, 55, 57, 74, 79, 100-102, 110, 113, and 115 are subordinate to the facts actually found in this Recommended Order.
3. Proposed findings of fact 10-12, 18, 19, 24, 26, 27, 30, 36, 48, 56, 59, 60,
65, 71-73, 77, 84, 86, 96-99, 103-105, 107, 111, 112, and 114 are irrelevant.
4. Proposed findings of fact 22, 28, 37, 43, 44, 49-51, 53, 54, 58, 61-64, 66,
75, 76, 80-83, 85, 87-93, 95, 106, 109, and 116-118 are unsupported by the credible, competent and substantial evidence.
5. Proposed findings of fact 31 and 94 are unnecessary.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Phillip K. Parsons
1. Each of the following proposed findings of fact is 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: 5(19).
2. Proposed findings of fact 1-4, 6-11, 14-18, 25, 28-43, and 45-47 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 12, 13, 19-24, 26, 27, and 44 are irrelevant.
Proposed finding of fact 48 is not a finding of fact, but is argument.
COPIES FURNISHED:
Robert D. Newell, Jr. Attorney at Law Newell & Stahl, P.A.
817 North Gadsden Street Tallahassee, FL 32303-6313
Salvatore A. Carpino Attorney at Law Suite 1010
One North Dale Mabry Tampa, FL 33609
William Buckhalt Executive Director Board of Dentistry
Department of Professional Regulation
1940 North Monroe Street Tallahassee, FL 32399-0792
Kenneth E. Easley, General Counsel Department of Professional
Regulation Suite 60
1940 North Monroe Street Tallahassee, FL 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.
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DPR CASE: 0059996/0081044/0083887
vs. DOAH CASE: 89-5190
LICENSE NO: DN 0003193
PHILLIP K. PARSONS, D.D.S.,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on August 10, 1991, in Tampa, Florida, for consideration of the Hearing Officer's Recommended Order and the Exceptions thereto filed by Petitioner (copies are attached as Exhibits A and B respectively) in the above styled cause. At the final hearing Petitioner was represented by Robert D. Newell, Jr., Esquire. Respondent appeared and was represented by Salvatore A. Carpino, Esquire. Upon consideration of the Hearing Officer's Recommended Order, and after review of the entire record and after hearing and considering the arguments of the parties, the Board bakes the following findings, conclusions and disposition of this cause.
FINDINGS OF FACT
A formal hearing in this cause was conducted on September 11-13, 1990, in Starke, Florida before Hearing Officer, Diane K. Kiesling. At and during the formal hearing Petitioner voluntarily dismissed Count Nine of its Amended Administrative Complaint (copy attached as Exhibit C) and paragraphs 6e and 6f of Count One and paragraph 47f of Count Seven. On January 31, 1991 the Hearing Officer issued a Recommended Order addressing the remaining charges in the Amended Administrative Complaint. Petitioner timely filed Exceptions to the Recommended Order. Respondent did not file any Exceptions or any responses to Petitioner's Exceptions.
Findings of Fact 1 through 11 as set forth by the Hearing Officer in the Recommended Order are hereby approved, adopted and incorporated as' findings of fact by the Board.
Finding of Fact 12 as set forth by the Hearing Officer in the Recommended Order is not supported by competent substantial evidence in the record. Therefore, the Board adopts the following modified findings of fact: During the times relevant to this case, Respondent primarily used composites
named P-10, Adaptic and Concise. This finding is supported by competent substantial evidence in the record as stated in Petitioner's Exception 1 and Exhibit 38 in the record of the formal hearing.
Findings of Fact 13 through 17 as set forth by the Hearing Officer in the Recommended Order are hereby approved, adopted and incorporated as findings of fact by the Board.
Finding of Fact 18 as set forth by the Hearing Officer in the Recommended Order is not supported by competent substantial evidence in the record. The record does support the more general following finding which is adopted by the Board: Generally, homeopathy is not necessarily experimentation. It is based on tried and proven administrations of each substance to treat similar symptoms of sickness or disease. All of the substances used are naturally occurring substances obtained directly from nature. The dosages administered are at levels such that no direct harm is likely to result from their use.
Finding of Fact 19 is actually a conclusion of law. See Daniels v. State of Florida, 381 So.2d 707 (Fla. 1st DCA 1979). As a conclusion of law the opinion of the Hearing Officer is rejected. It was an unwarranted and inappropriate abuse of discretion for the Hearing Officer to fail to give weight to the testimony of Dr. Bliss in regard to the use of homeopathy in dentistry, the use of composite resin materials for fillings in posterior occlusal surfaces and the characteristics of amalgam fillings. As a bona fide expert in general dentistry, Dr. Bliss is qualified to testify as to whether the use of modalities such as homeopathy are appropriate in the practice of dentistry. The record provides more than enough evidence of a sufficient combination of experience, training and research for Dr. Bliss, as a bona fide expert in general dentistry, to give expert opinions on the use of composite resin material and the characteristics of amalgam filings. The Hearing Officer's opinion that Dr. Bliss' testimony cannot be credible because he has not utilized medalities that as an expert he believes are below the appropriate standard of care in dentistry or because he does not agree with the Hearing Officer's preconceived notion is not acceptable. If an expert as to standards of care cannot be credible unless he has practiced below the standard of care then only practitioners who fail to meet appropriate standards of care would ever qualify as experts and if only experts who agree with the preconceived notions of the Hearing Officer are acceptable there is absolutely no need for expert witnesses. The Board adopts as a finding of fact that Rupert Q. Bliss, D.D.S., testified as the only expert for Petitioner. As a matter of law the Board concludes that Dr. Bliss is clearly qualified to testify about general dentistry. Considerable weight is given to his opinions about the general practice of dentistry as it relates to dental records, to treatment of conditions through the application of dental principles, to dental treatment in emergency situations, and to the standards of care with regard to dental filling materials and the use of homeopathy in the general practice of dentistry. This conclusion is supported by competent substantial evidence in the record as stated in Petitioner's Exception 2 and Exhibits 13 and 14 in the record of the formal hearing.
Findings of Fact 20 through 29 as set forth by the Hearing Officer in the Recommended Order are hereby approved, adopted and incorporated as findings of fact by the Board.
Findings of Fact 30 and 31 as set forth by the Hearing Officer in the Recommended Order are not supported by competent substantial evidence in the record and are therefore rejected by the Board. Furthermore, in light of the
Board's paragraph 4 above, the Hearing Officer's rejection of Petitioner's proposed Findings of Fact 75 and 76 (a copy of Petitioner's Proposed Recommended Order is attached as Exhibit D) was incorrect. The Board hereby approves, adopts and incorporates paragraphs 75 and 76 of Petitioner's Proposed Findings of Fact as findings of fact by the Board. These findings are supported by competent substantial evidence in the record as set forth in Petitioner's Proposed Recommended Order and Exception 3.
Findings of Fact 32 and 33 as set forth by the Hearing Officer in the Recommended Order are hereby approved, adopted and incorporated as findings of fact by the Board.
Finding of Fact 34 as set forth by the Hearing Officer in the Recommended Order is hereby approved, adopted and incorporated as a finding of fact by the Board with the exception of the final two sentences therein, both of which are rejected as not being supported by competent substantial evidence in the record.
Findings of Fact 35 through 50 as set forth by the Hearing Officer in the Recommended Order are hereby approved, adopted and incorporated as findings of fact by the board.
The Board finds that the Hearing Officer's rejection of Petitioner's Proposed Findings of Fact 24, 26-28, 43, 44, 49, 50, 53, 54, 61, 62, 65, 66, 82- 84, 87-92, 109, 116 and 117 is inappropriate. In light of the foregoing findings of fact and the conclusion of law regarding Dr. Bliss as an expert, the Hearing Officer erred in rejecting these proposed findings of the Petitioner. The Board hereby approves, adopts and incorporates those proposed findings of fact of the Petitioner identified in this paragraph as findings of fact by the Board. These findings are supported by competent substantial evidence in the record as set forth in Petitioner's Proposed Recommended Order and Exceptions 5- 14.
CONCLUSIONS OF LAW
The Board has jurisdiction of the parties and subject matter of these proceedings. Section 120.57 and Chapter 46-6, Florida Statutes.
Section 466.003(3), Florida Statutes (1986 Supp.), in part defines "dentistry" to mean
the healing art which is concerned with the examination, diagnosis, treatment
planning, and care of conditions within the human oral cavity and its adjacent tissues and structures.
This definition was the one in place at all times relevant to this case. Unless otherwise indicated, all citations to Florida Statutes herein are to the statutes relevant to this case.
Section 466.017(1), Florida Statutes (1986 Supp.), gives dentists "the right to prescribe drugs or medicine, subject to the limitations imposed by law." Section 499.003(8)(a) defines "drug" to mean an agent or product "recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement thereto."
Section 466.018(3), Florida Statutes (1986 Supp.), states:
Every dentist shall maintain written dental records and medical history records which justify the course of treatment of the patient. The records shall include, but not be limited to,
patient history, examination results, test results, and if taken, X-rays.
DPR charged Respondent with violating sections 466.028(1)(m), (u), (x), (y), and (z), Florida Statutes (1987). Since none of the allegations relate to acts occurring later than January, 1987, the violations must relate back to Florida Statutes (1986 Supp.). All statutes quoted herein are from the 1986 Supplement.
Section 466.028(1) states:
(m) Failing to keep written dental records
and medical history records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and X rays, if taken.
Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.
Performing any procedure or prescribing any therapy which, by the prevailing standards of dental practice in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.
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....
Practicing or offering to practice beyond
the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.
Respondent is charged with violating (m) above in regard to his records on Daniel Tully. He is charged with violating (u) specifically as it related to Mr. and Mrs. Grilliot, but there is a vague assertion in the Amended Administrative complaint that this allegation of misconduct involved all the named patients. Further, Respondent is charged with violating (x) by employing homeopathy on Ms. Andrise and Mr. Tully and by placing composite restorations in Mr. and Mrs. Grilliot. He is also charged with violating (y) by placing composite restorations in Mr. and Mrs. Grilliot and Ms. Andrise, by failing to
diagnose and treat Ms. Andrise's periodontal disease, and by failing to place a post in Todd Grilliot's tooth. Finally, Respondent is charged with violating
(z) related to his treatment of Mr. Tully.
The burden is on DPR to prove, by clear and convincing evidence, the violations alleged in the Amended administrative Complaint. Ferris v.
Turlington, 510 So.2d 292 (Fla. 1987).
The use of composite restoration materials on posterior occlusal surfaces, prior to the approval of such materials for such uses in 1985, constituted experimentation in the practice of dentistry. The use of such materials by a dentist at that time required full, informed, and written consent of a patient. Respondent's failure to obtain such consent from patients Andrise, Kathleen Grilliot, and Louis Grilliot constituted a violation of Section 468.028(1)(x), Fla. Stat.
The use of unapproved composite restoration materials in posterior occlusal surfaces prior to 1985 failed to meet the minimum standards of performance in diagnosis and treatment when measured against general prevailing peer performance. This conclusion is based upon the fact that the composite materials were subject to excessive wear and shrinkage, resulting in a high potential for loss of anatomical form in patients' teeth. Respondent's use of such materials in patients Andrise, Kathleen Grilliot, and Louis Grilliot constituted a violation of Section 466.028(1)(y), Fla. Stat.
Respondent's failure to place a post in Todd Grilliot's tooth constituted a violation of 466.028(1)(y), Fla. Stat., in that such action failed to meet the minimum acceptable standards of performance in diagnosis and treatment.
Respondent's use of homeopathic remedies in the course of his dental practice constituted experimentation when considered in the light of prevailing standards of dental practice in the community. Respondent's failure to obtain full, informed, and written consent of his patients prior to the prescription of such homeopathic substances, therefore, constituted a violation of Section 466.028(1)(x), Fla. Stat.
It should be noted that the Hearing Officer's reliance on Rogers v. State of Florida, Board of Medical Examiners, 387 So.2d 937, (Fla. 1st DCA 1979), is inappropriate in this case. Rogers involved the utilization by a physician of chelation therapy for patients who had given full consent to the use of such therapy after having received extensive information concerning the potential benefits and detriments of such therapy. In addition, there was a finding in Rogers that, while the chelation therapy had not been conclusively proven to be helpful for the condition for which it was being prescribed, such therapy had also not been shown to be harmful to the patients. In this case, the two key elements present in Rogers are absent. First, there has been no showing by Respondent that his patients provided full, informed, and written consent to the use of composite resin fillings and homeopathic remedies, as required by Section 466.028(1)(x), F.S. Second, Respondent's use of unapproved composite resin fillings in posterior occlusal surfaces was shown to have been harmful to his patients in that such fillings wore excessively and resulted in the shrinkage and breakdown of fillings and the loss of anatomical form in the teeth to which they were applied, resulting in the need for significant additional dental work for those patients. Respondent's prescription of homeopathic remedies, especially when combined with his advice to Tully to discard his conventional medications, certainly posed a harm to his patient. Additionally, his prescription of homeopathic substances to Andrise for her serious periodontal
disease, when such substances are not approved or recognized by the American Dental Association as effective in the treatment of such a condition, posed a harm to the patient.
Respondent's treatment of patient Tully, without examining Tully, reviewing his medical records, or consulting with his treating physicians, constituted a level of practice which failed to meet the minimum acceptable standards of performance in diagnosis and treatment. Therefore, Respondent violated Section 466.028(1)(y), Fla. Stat., in his treatment of Tully.
Respondent's treatment of Mr. Tully was deficient in several respects.
First, Respondent undertook to treat Mr. Tully without ever seeing or examining him and without taking a patient history or consulting with the treating physician. Further, by telling Ms. Taylor to discontinue all other medications, Respondent was apparently attempting to supplant the treatment plan of Tully's medical doctor for all of his medical conditions. Clearly, Respondent is not competent to practice medicine relating to Mr. Tully's various medical conditions. In doing so, Respondent undertook to practice beyond the scope permitted by law for a licensed dentist. Finally, Respondent failed to maintain written records and medical history records to justify the course of treatment he undertook for Mr. Tully. For these reasons, it is concluded that Respondent violated Section 466.028(1)(m) and (z) in his involvement with Mr. Tully.
The remaining issue is whether Respondent's violations related to Mr. Tully constitute misconduct in the practice of dentistry and whether this charge is adequately made in the Amended Administrative Complaint. Because the Amended Administrative Complaint is so inartfully drafted as to obscure the factual allegations upon which the violation of Section 466.028(1)(u) is based, it is concluded that violation should be dismissed. Specifically, each count of the Amended Administrative Complaint incorporates by reference each and every preceding count. The alleged violation of Section 466.028(1)(u) is found in paragraph 74 in Count 11. Paragraph 70 realleges and reincorporates paragraphs 1-67. Paragraph 73 essentially alleges that Respondent's knowledge or lack thereof that use of composite material was below minimum standards "coupled with the aforementioned allegations of this administrative complaint" constitute misconduct in the practice of dentistry. Pleading such as this is absolutely inadequate to advise the accused of the specific charges against him. It is improper and dismissal is appropriate. Gerentine v. Coastal Security Systems,
529 So.2d 1191 (Fla. 5th DCA 1988); Frugoli v. Winn-Dixie Stores, Inc., 464 So.2d 1293 (Fla. 1st DCA 1985); and Chaires v. North Florida National Bank, 432 So.2d 183 (Fla. 1st DCA 1983). The court in Chaires indicated at page 185:
Finally, we feel constrained to address a pleading practice followed by some practitioners which practice compounds the problems of the trial court and opposing counsel in sorting out the various causes of action asserted in multi-count complaints. The complaints were drafted in such a manner that each succeeding count incorporated by reference not only the paragraphs contained in the complaint's preliminary allegations but also all of the paragraphs contained in each of the preceding counts. Such is improper. By the time the
beleaguered reader gets to the fifth count, he is having to cope with presumably five causes of action asserted in one count. This practice is an unnecessary
hinderance to trial courts' efforts to determine the facial validity of the various causes of action being asserted and serves only to confuse and delay.
It is a cornerstone of administrative law that allegations in penal cases are to be strictly construed and must be sufficiently concise and specific to allow a person of ordinary understanding to present a defense. The agency must allege when or in what specific manner the accused violated the statute. The failure to allege underlying facts to support the violation alleged is a denial of due process and cannot be allowed. See, e.g., Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2nd DCA 1984), and Davis v.
Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984). Where the trier of fact is unable to determine the facts alleged to support the violation, he or she cannot make findings of fact appropriate to the charges.
For this reason, it is concluded that DPR has failed to meet its burden of proving the facts that support the alleged violation. Respondent is not guilty of misconduct in violation of Section 466.028(1)(u).
Respondent presented a substantial amount of evidence in mitigation in the form of letters of support. These letters and other mitigating factors have been considered in the penalty set forth below.
There is competent, substantial evidence in the record to support the Board's findings of fact and conclusions of law as set forth in this Final Order.
PENALTY
Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby ORDERED and ADJUDGED that Respondent's license to practice dentistry shall be REPRIMANDED and shall be SUSPENDED for a period of two years from the effective date of this Final Order. However, said suspension shall be stayed so long as Respondent abides by all other terms of this Final Order. Respondent shall pay an administrative fine of $1,000.00 to the Board of Dentistry within thirty (30) days of the effective date of this Final Order. Respondent's license to practice dentistry shall be placed on PROBATION for a period of one year subject to the following terms and conditions:
Respondent shall complete within one year, 18 hours of continuing education in pharmacology, 18 hours of continuing education in posterior composite restorations and 6 hours of continuing education in record keeping and jurisprudence. All such continuing education shall be in compliance with Rule 21G-12, Florida Administrative Code and shall be in addition to any continuing education required for biennial renewal of Respondent's license to practice dentistry.
In support of its increase of the Recommendation by the Hearing Officer, the Board finds that Respondent's use of homeopathy in this case was exceedingly inappropriate and a serious violation of the minimum standard of care by a licensee. Respondent undertook to treat Daniel Tully, who had recently been discharged from a hospital with a diagnosis of carcinoma and urinary tract infection and was taking medication, without examining Tully, reviewing his medical records, or contacting Tully's attending physician. Respondent also advised the individual attending to Tully to throw away the medications Tully was taking and to, instead, use the homeopathic substances Respondent prescribed. Subsequent to providing this advice and prescribing these
substances, Respondent never followed up his treatment by examining Tully or consulting with Tully's physician. Furthermore, Respondent failed to justify or document his treatment of Tully by keeping a patient record.
Respondent's actions, as reflected in the Board's findings of fact, constitute an egregious violation of the practice act. It is difficult to imagine a more presumptuous and potentially harmful (if not fatal) act, than for a dentist to advise a patient whom he knows to be seriously ill and whom he has not examined to stop taking medication prescribed by the patient's physician and instead take a homeopathic substance prescribed over the phone. The potential harm to the public posed by such practices is obvious and great. Respondent's actions warrant the imposition of a penalty which reflects the seriousness of his violations.
This Final Order becomes effective upon its filing with the Clerk of the Department of Professional Regulation.
NOTICE
The parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE AND ORDERED this 20th day of September, 1991.
BOARD OF DENTISTRY
RICHARD J. CHICHETTI, D.M.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by certified U.S. Mail to Dr. Phillip K. Parsons c/o Salvatore A. Carpino, Esquire, One North Dale Mabry, Suite 1010, Tampa, Florida 33609 and by U.S. Mail to Diane K. Kiesling, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and to Robert D. Newell, Jr., Esquire, 817 North Gadsden Street, Tallahassee, Florida 32303-6313 at or before 5:00 P.M. this 23rd day of September, 1991.
| Issue Date | Proceedings |
|---|---|
| Jan. 31, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 20, 1991 | Agency Final Order | |
| Jan. 31, 1991 | Recommended Order | Use of homeopathy and composite instead of mercury amalgam not experimentation or incompetence where congruent with theories of minority of Dentists. |
