STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 90-6144
) PIERRE MICHAEL SMITH, D.M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this administrative proceeding at Miami, Florida, on January 23, 1991, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.
Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioner: Albert Peacock, Esquire
Department of Professional Regulation Northwood Centre, Suite 69
1940 North Monroe Street Tallahassee, FL 32399-0792
For Respondent: Harold M. Braxton, Esquire
One Datran Center, Suite 400 9100 South Dadeland Boulevard Miami, FL 33156
STATEMENT OF THE ISSUES
This is a license discipline case in which the Respondent is charged in a two count Administrative Complaint with violations of subsections (j), (l), and (u), of Section 466.028(1), Florida Statutes (1987). The cited subsections authorize the Board of Dentistry to take disciplinary action against a licensee who files a report the licensee knows to be false, who makes deceptive, untrue, or fraudulent representations in the practice of dentistry, or who commits fraud, deceit, or misconduct in the practice of dentistry.
PRELIMINARY STATEMENT
At the formal hearing on January 23, 1991, the Petitioner presented the testimony of three witnesses (the two patients and one expert in the field of dentistry) and offered seven exhibits, all of which were received in evidence. 1/ The Respondent testified on his own behalf and also presented the testimony of an expert in the field of dentistry. The Respondent also offered four exhibits, all of which were received in evidence.
At the conclusion of the hearing, the parties requested and were granted 30 days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed with the Hearing Officer on February 5, 1991. Thereafter, at the request of the parties, the deadline for filing proposed recommended orders was extended to April 5, 1991. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.
FINDINGS OF FACT
At all times material to this proceeding, the Respondent, Pierre Michael Smith, has been licensed as a dentist in the State of Florida. His license number is DN 009323.
On or about December 1, 1987, the Respondent provided dental treatment and services to two patients, C.F. and R.F. C.F. and R.F. are married to each other.
Shortly before December 1, 1987, C.F. called several dentists' offices to inquire about the cost of getting teeth cleaned and about the availability of the dentist to give her and her husband an appointment in the near future.
Among the dentists' offices she called was the office of the Respondent. CF spoke to an assistant or a receptionist at the Respondent's office and was told that the Respondent's charge for cleaning teeth was $25.00. After some conversation, CF ultimately made appointments for herself and her husband to have their teeth cleaned by the Respondent on December 1, 1987. Their appointments were scheduled for 10:00 a.m. and 10:15 a.m., respectively.
On December 1, 1987, CF and RF arrived at the Respondent's office at about 9:45 a.m. They were both given some forms to fill out and were told that the Respondent would be late because he was having problems with his automobile.
The Respondent did not arrive until approximately 11:35 a.m. Upon arriving, the Respondent promptly took CF and RF to separate treatment rooms and then began attending to CF. The Respondent examined, cleaned, and polished CF's teeth, which procedures took about 15 or 20 minutes. Once he had finished his procedures on CF, the Respondent gave CF a strip of floss and a cup of water and directed her to the restroom after inquiring whether she knew how to floss. The Respondent then went to the other treatment room where he began attending to RF. The Respondent examined, cleaned, and polished RF's teeth, which procedures took about 15 or 20 minutes.
The Respondent also had his assistant take x-rays of both CF and RF as soon as the Respondent had completed his procedures on each patient. Two x-rays were taken of CF. One of those two x-rays was void of diagnostic quality. Five x-rays were taken of RF. Two of those five x-rays were void of diagnostic quality.
Based on his examinations of CF and RF, the Respondent noted that both patients had "scanty" calculus and that they both had "good" oral hygiene. Such being the case, neither CF nor RF required scaling of the entire mouth, nor did either require oral hygiene instruction. On December 1, 1987, the Respondent did not scale the entire mouth of either CF or RF. On December 1, 1987, the Respondent did not provide oral hygiene instruction to either CF or RF.
Complete oral hygiene instruction requires a minimum of ten minutes per patient.
The dental procedure which is referred to by lay persons as "having one's teeth cleaned," is known in the dental profession as a prophylaxis. A prophylaxis is a normal cleaning of the coronal parts of the teeth (the parts of the teeth that can be seen under normal conditions) and the subgingival parts of the teeth down to about 3 millimeters, including the removal of a mild amount of calculus and stain, followed by a polishing of the coronal parts of the teeth.
The dental procedure known as "scaling of the entire mouth" is also known as "root planing." Scaling of the entire mouth is not normally done unless there is extensive calculus or extensive deep pocketing. Scaling of the entire mouth is a much more extensive procedure than a prophylaxis; it involves going much deeper subgingivally and it requires a great deal more time than a prophylaxis. Scaling of the entire mouth involves using a metal instrument around each tooth on all surfaces of the teeth to remove hard calculus or tartar from the teeth both supragingivally and subgingivally. It is not possible to do a scaling of the entire mouth in twenty minutes.
On December 1, 1987, the Respondent submitted claim forms to an insurance company for payment for services provided to CF and RF. On those claim forms he claimed to have provided the following services to CF:
Complete oral exam 30.00
2 X-rays intraoral B.W. 20.00 Scaling entire mouth 100.00
Polishing 60.00
Oral Hygiene instruction 20.00
Total Fee 230.00
The Respondent claimed on the insurance form to have provided the following services to RF:
Complete oral exam 30.00
X-ray Intraoral p.A. 10.00
4 X-rays intraoral B.W. 40.00 Oral Hygiene instruction 20.00
Scaling entire mouth 100.00
Polishing 60.00
Total fee 260.00
The Respondent did not attempt to contact CF or RF to advise them that some of their x-rays were void of diagnostic quality and that those x-rays needed to be retaken. X-rays that are void of diagnostic quality do not serve any useful purpose for either the dentist or the patient.
It is misrepresentation for a dentist to list on an insurance claim form procedures or services that were not in fact performed by the dentist.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
In a case of this nature, the Petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d
292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):
We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:
"Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).
The statutory provisions applicable to this proceeding are those which appeared in the 1987 version of the Florida Statutes. At that time, Section 466.028, Florida Statutes (1987), read as follows, in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(j) *Making or filing a report which the licensee knows to be false,* failing to file a report or record required by state or federal law, knowingly impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensee.
(l) Making deceptive, untrue, or fraudulent representations in the practice of dentistry.
(u) Fraud, deceit, or misconduct *in the practice of dentistry* or dental hygiene.
When the board finds any applicant or licensee guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
Denial of an application for licensure.
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $3,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requiring the licensee to attend continuing education courses or demonstrate his competency through a written or practical examination or to work under the supervision of another licensee.
Restricting the authorized scope of practice. (Emphasis added between*.)
The applicable statute also contained the following definition at Section 466.003(3), Florida Statutes (1987):
"Dentistry" means 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. It includes the performance or attempted performance of any dental operation, or oral or oral- maxillofacial surgery and any procedures
adjunct thereto, including physical evaluation directly related to such operation or surgery pursuant to hospital rules and regulations.
It also includes dental service of any kind gratuitously or for any remuneration paid, or to be paid, directly or indirectly, to any person or agency. The term "dentistry" shall also include the following:
The taking of an impression of the tooth, teeth, or jaws directly or indirectly and by any means or method;
Supplying artificial substitutes for the natural teeth or furnishing, supplying, constructing, reproducing, or repairing any prosthetic denture, bridge, appliance, or
other structure designed to be worn in the human mouth except on the written work order of a duly licensed dentist;
The placing of an appliance or structure in the human mouth or the adjusting or attempting to adjust the same;
Delivering the same to any person other than the dentist upon whose work order the work was performed;
Professing to the public by any method to furnish, supply, construct, reproduce, or repair any prosthetic denture, bridge, appliance, or other structure designed to be worn in the human mouth;
Diagnosing, prescribing, or treating or professing to diagnose, prescribe, or treat
disease, pain, deformity, deficiency, injury, or physical condition of the human teeth or jaws or oral-maxillofacial region;
Extracting or attempting to extract human teeth;
Correcting or attempting to correct malformations of teeth or of jaws; and
Repairing or attempting to repair cavities in the human teeth.
Directing attention first to the portion of the Administrative Complaint regarding the x-rays that were void of diagnostic quality, the evidence fails to show whether the Respondent was aware of the quality of the x- rays at the time he submitted the claim forms to the insurance company. Therefore, the evidence is insufficient to demonstrate any misconduct in billing for the x-rays, because the x-rays were in fact taken, even though some of them later proved to be of inadequate quality. Under such circumstances, a dentist should either offer to retake the x-rays without additional charge or should refund any amounts paid for the inadequate x-rays. It is not clear from the record in this case that the Respondent was ever paid for the inadequate x-rays. Therefore, the proof is insufficient to demonstrate that he had a duty to make any refund. For these reasons, the evidence in this case is insufficient to establish any violation with regard to the x-rays.
With regard to the alleged violations of subsections (l) and (u) of Section 466.028(1), Florida Statutes (1987), it is first noted that the conduct proscribed in both of those subsections is limited to conduct of the type described that occurs "in the practice of dentistry." It is clear from the definition of "dentistry" at Section 466.003(3), Florida Statutes (1987), quoted above at Paragraph 4 of these conclusions of law, that the practice of dentistry is "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." 2/ The practice of dentistry includes "the performance or attempted performance" of the actions described in the immediately preceeding sentence. But the term "the practice of dentistry" does not include preparing and sending claim forms to insurance companies for the purpose of seeking payment for dental services, because the conduct of preparing and sending claim forms to insurance companies does not constitute examination, diagnosis, treatment planning, or care of conditions within the human oral cavity and its adjacent tissues and structures. The conduct of preparing and sending claim forms to insurance companies seeking payment for dental services is clearly related to the practice of dentistry, but that is not enough to bring such conduct within the scope of subsections (l) and (u) of Section 466.028(1), Florida Statutes (1987), because "[s]tatutes providing for the revocation or suspension of a license to practice are deemed penal in nature and must be strictly construed, with any ambiguity interpreted in favor of the licensee." Elmariah v. Dept. of Professional Regulation, Bd. of Medicine, 574 So.2d 164 (Fla. 1st DCA 1990), at 165. See also, Taylor v. Dept. of Professional Regulation, 534 So.2d 782, 784 (Fla. 1st DCA 1988); Lester v. Dept. of Professional and Occupational Regulation, 348 So.2d 923, 925 (Fla. 1st DCA 1977). Specifically, with regard to statutes that authorize disciplinary action for conduct that takes place "in the practice" of a profession, it is clear that
conduct "related to" the practice, but not "in" the practice, cannot be a basis for disciplinary action. See Elmariah, supra, in which the court, at page 165, disposed of similar charges against a medical doctor.
Section 458.331(1)(l), Florida Statutes (1983), prohibits the making of "deceptive, untrue, or fraudulent representations *in the
practice of medicine*." [emphasis (*) in original]
Throughout chapter 458, the phrase "practice of medicine" is defined as "the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition." Sec 458.305(3), Fla. Stat. (1983). Given this definition and the language of section 458.331(1)(l), it is of no consequence that the Board found appellant's deceptive applications for staff privileges bore some relation to his practice or attempt to practice medicine. Regardless of whether appellant's misrepresentations somehow related to his practice or attempt to practice, it cannot be said that they were made "in" the practice of medicine. However untruthful the responses, they were not made in the diagnosis, treatment, operation, or prescription for any human disease.
Consequently, appellant's actions did not violate the provision.
For the foregoing reasons, the evidence in this case is insufficient to establish violation of subsections (l) and (u) of Section 455.028(l), Florida Statutes (1987), because the conduct that forms the basis for the charges did not take place "in the practice of dentistry."
The remaining charge against the Respondent is an allegation that he violated subsection (j) of Section 466.028(1), Florida Statutes (1987), which subsection authorizes disciplinary action for "[m]aking or filing a report which the licensee knows to be false. . . . Such reports . . . shall include only those which are signed in the capacity as a licensee." The word "report" has a rather broad meaning which includes "a detailed account or statement describing an event, action, etc., usually presented formally." See The Random House Dictionary (1980 edition), at p. 761. It is a broad enough meaning to include claim forms submitted to insurance companies seeking payment for dental services. The claim forms in question were signed by the Respondent in his capacity as the provider of dental services. Finally, the Respondent knew the claim forms in question contained false information at least with regard to the assertions that he had provided oral hygiene instruction to both patients and that he had performed a scaling of the entire mouth on both patients. Such being the case, the evidence is sufficient to demonstrate a violation of subsection (j) of Section 466.028(1), Florida Statutes (1987).
On the basis of all of the foregoing, it is RECOMMENDED that the Board of Dentistry enter a Final Order in this case to the following effect:
(a) Dismissing the charges that the Respondent has violated subsections (l) and
(u) of Section 466.028(1), Florida Statutes (1987);
Concluding that the Respondent has violated subsection (j) of Section 466.028(1), Florida Statutes (1987), by making and filing a report he knew to be false; and
Taking disciplinary action consisting of all of the following: (1) Imposing an administrative fine in the amount of
$3,000.00, (2) issuing a reprimand to the Respondent, and (3) placing the Respondent on probation for a period of one year with a special condition that during the period of probation the Respondent's billing practices will be supervised by another licensed dentist.
DONE AND ENTERED at Tallahassee, Leon County, Florida, this 14th day of November, 1991.
MICHAEL M. PARRISH, 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 14th day of November, 1991.
ENDNOTES
1/ A total of eight Petitioner exhibits were marked for identification. Petitioner's Exhibit 1 was marked for identification, was discussed, but was never offered in evidence.
2/ The statutory definition also contains a lengthy itemization of activities that are included within the term "dentistry." All of the itemized activities come within the scope of the portion of the definition quoted in this paragraph.
APPENDIX TO RECOMMENDED ORDER CASE NUMBER 90-6144
The following are my specific rulings on all proposed findings of fact submitted by all parties. To facilitate an understanding of the rulings which follow, it is noted that there is quite of bit of conflict in the testimony in this case. In resolving those conflicts I have, for the most part, credited the testimony of the two patients over the testimony of the Respondent, especially with regard to the time at which events took place and to the duration of events. With regard to conflicts in the testimony of the independent experts, I have, for the most part, credited the testimony of Dr. Keller, in large part because it appears to be more logical and precise.
Findings submitted by Petitioner:
The substance of all findings proposed by the Petitioner has been accepted and incorporated into the findings of fact in this Recommended Order, with the exception of a few erroneous details (which have been corrected), and with some additional findings in the interest of clarity.
Findings submitted by Respondent:
Paragraphs 1 and 2: Accepted in substance.
Paragraph 3: First sentence accepted. Second sentence rejected as subordinate and unnecessary details.
Paragraph 4: Rejected as contrary to the greater weight of the evidence.
Paragraph 5: Rejected as irrelevant and, in any event, as subordinate and unnecessary details.
Paragraph 6: Accepted in substance.
Paragraph 7: First two sentences rejected as contrary to the greater weight of the evidence. (The patients' version of the time of events has been accepted to the extent of any conflict.) Last two sentences accepted.
Paragraph 8: Accepted that the Respondent examined, cleaned, and polished CF's teeth, and noted his observations on the chart. The remainder of this paragraph is rejected as subordinate and unnecessary details.
Paragraph 9: Rejected as not fully supported by competent substantial evidence and as contrary to the greater weight of the evidence in all relevant details. The record in this case supports a finding that the Respondent did some scaling in the mouths of both patients, but no more than the limited amount of scaling that is part of a routine prophylaxis procedure. The greater weight of the evidence is to the effect that the Respondent did not scale the entire mouth of either patient. Portions of this paragraph are also rejected as subordinate and unnecessary details.
Paragraph 10: It is accepted that the Respondent cleaned the teeth of patient CF. The remainder of this paragraph is rejected as subordinate and unnecessary details.
Paragraph 11: Accepted in substance.
Paragraph 12: Second sentence accepted. First and last sentences rejected as contrary to the greater weight of the evidence.
Paragraph 13: First sentence accepted. The remainder of this paragraph is rejected as either irrelevant or as subordinate and unnecessary details.
Paragraph 14: First sentence accepted in substance. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence.
Paragraph 15: It is accepted that the Respondent examined the teeth of patient RF. The remainder of this paragraph is rejected as subordinate and unnecessary details.
Paragraph 16: Accepted that the Respondent told patient RF that he did not have much calculus. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by persuasive competent substantial evidence.
Paragraph 17: Accepted that the Respondent examined, cleaned, and polished patient RF's teeth and had 5 x-rays taken of patient RF's teeth. The second and third sentences are rejected as irrelevant or as subordinate and unnecessary details. The last sentence is rejected as contrary to the greater weight of the evidence.
Paragraph 18: First sentence accepted in substance. Last sentence rejected as subordinate and unnecessary details.
Paragraph 19: Rejected as contrary to the greater weight of the evidence regarding the time spent in the dental chair, and as subordinate and unnecessary details regarding lack of complaint at that time.
Paragraph 20: Accepted in substance.
Paragraph 21: First sentence accepted in substance. Second sentence rejected as not supported by competent substantial evidence; the proposal is broader than the testimony. Last three sentences rejected as irrelevant inasmuch as they describe Dr. Hauptman's personal professional practices rather than describe generally accepted standards.
Paragraph 22: Rejected as irrelevant. Paragraphs 23 and 24: Accepted in substance. Paragraphs 25 and 26: Rejected as irrelevant.
Paragraph 27: First two sentences accepted in substance. Third and fourth sentences rejected as subordinate and unnecessary details. Last sentence rejected as irrelevant and as not supported by persuasive competent substantial evidence, because the underlying testimony is vague and ambiguous.
COPIES FURNISHED:
Albert Peacock, Esquire
Department of Professional Regulation Northwood Centre, Suite 60
1940 North Monroe Street Tallahassee, FL 32399-0792
Harold M. Braxton, Esquire One Datran Center, Suite 400 9100 South Dadeland Boulevard Miami, FL 33156
Mr. William Buckhalt Executive Director Board of Dentistry
Dept. of Professional Regulation Suite 60
1940 North Monroe Street Tallahassee, FL 32399-0792
Jack McRay, Esquire General Counsel
Dept. 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
D.P.R.: 0093146
vs. DOAH CASE NO.: 90-6144
LICENSE NO.: DN 0009323
PIERRE-MICHAEL SMITH, D.M.D.
Respondent
/
FINAL ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on February 28, 1992, in Pensacola, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit A) in the case of Department of Professional Regulation v. Pierre-Michael Smith, D.M.D., Case No. 90-6144. At the hearing, Petitioner was represented by Nancy M. Snurkowski, Chief Attorney. Respondent appeared before the Board, but was not represented by legal counsel. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.
There is competent, substantial evidence to support the Board's findings.
CONCLUSIONS OF LAW
The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.
The Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference with the exception of paragraphs 6 and 7.
The Board of Dentistry specifically concludes that for purposes of disciplining a dental license the filing of untrue insurance claims is a violation of the statutory provisions prohibiting licensees from making "deceptive, untrue or fraudulent representations in the practice of dentistry. (466.028(1)(1), Florida Statutes (1987)) See, Department of Professional
Regulation v. Alsina, 6 F.A.L.R. 3863 (March 14, 1984). Therefore, the Board rejects the conclusions contained in paragraph 6 of the recommended conclusions of law following the sentence "The practice of dentistry includes `the performance or attempted performance' of the actions described in the immediately preceding sentence." (p. 10 of the Recommended Order).
The first and last sentences of paragraph 7 of the recommended conclusions of law are amended to reflect the remaining charges rather than charge against the Respondent. The Hearing Officer overlooked the existence of two separate charges relating to Respondent's violation of 466.028(1)(j), Florida Statutes (1987).
There is competent, substantial evidence to support the Board's conclusions.
The Board approves and adopts the Hearing Officer's recommendation that Respondent be fined $3,000.00 and have his license reprimanded and have his license placed on probation for a period of one year.
WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated Subsections 466.028(1)(j) and (1), Florida Statutes (1987) and Respondent shall have his license to practice dentistry in Florida REPRIMANDED and he shall be required to pay an administrative fine of $3,000.00 to the Board of Dentistry office within 30 days of the effective date of this Final Order. Said fine shall be paid to the Board at 1940 North Monroe Street, Tallahassee, Florida 32399-0765. Furthermore, Respondent's license shall be placed on probation for a period of one year from the effective date of this Final Order. During said probation Respondent shall have his billing practices reviewed by a licensed dentist approved by the Board's chairman. The approved reviewing dentist shall file written quarterly reports to the Board Office. These reports will identify Respondent's billing practice and address any problems encountered by the supervising dentist.
This Final Order becomes effective upon its filing with the Clerk of the Department of professional Regulation.
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 27th day of March, 1992.
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 United States Mail this 27th day of March, 1992, to Pierre-Michael Smith, D.M.D., 16220 NE 13th Avenue, North Miami, Florida 33162, and hand delivered to Nancy M. Snurkowski, Chief Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0750.
William H. Buckhalt, C.P.M. Executive Director
Board of Dentistry
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 0093146
PIERRE MICHEL SMITH, D.M.D.
Respondent.
/
ADMINISTRATIVE COMPLAINT
COMES NOW, the Petitioner, Department of Professional Regulation, hereinafter referred to as "Petitioner", and files this Administrative Complaint before the BOARD OF DENTISTRY, against PIERRE MICHEL SMITH, D.M.D, hereinafter referred to as "Respondent", and alleges:
Petitioner, Department of Professional Regulation, is the state agency charged with regulation the practice of dentistry pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes.
Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0009323. Respondent's last known address is 16220 Northeast 13th Avenue, North Miami Beach, Florida 33162.
COUNT I
On or about December 1, 1987, the Respondent provided dental treatment to patient #1.
Patient #1 was told that the fee for a prophylaxis would be $25. Upon receiving a statement from her insurance company, patient #1 learned that she was charged a higher fee without her knowledge.
Respondent billed patient #1's insurance company for two intraoral bitewing x-rays. One of the x-rays was void of any diagnostic quality.
Respondent did not redo the x-ray nor did he refund the money.
Respondent billed patient #1's insurance company for a periodontal scaling.
Patient #1 stated that the Respondent did not perform a periodontal scaling.
Respondent records note that there was only a scarce amount of calculus present upon examination.
The x-ray taken by Respondent fail to demonstrate the need for periodontal scaling.
Based on the foregoing, the Respondent has violated the following statutory provisions:
Section 466.028 (1)(u), Florida Statutes (1987) by committing fraud, deceit or misconduct in the practice of dentistry;
Section 466.028 (1)(i), Florida Statutes (1987), by making deceptive, untrue, or fraudulent representations in the practice of dentistry, and
Section 466.028 (1)(j), Florida Statutes (1987), by filing a report which the licensee knows to be false.
COUNT II
Petitioner realleges and incorporates by reference the allegations contained in the foregoing paragraphs.
On or about December 1, 1987, the Respondent provided dental treatment to patient #2.
Patient #2's wife was told that the fee for a prophylaxis would be
$25. Upon receiving a statement from his insurance company, patient #2 learned that he was charged $60 without his knowledge.
Respondent billed patient #2's insurance company for four bite wing x- rays. Two of the x-rays are void of any diagnostic quality.
Respondent did not redo the x-rays nor did he refund the money.
Respondent billed patient #2's insurance company for a periodontal scaling.
Patient #2 denied that the Respondent performed a periodontal scaling.
Respondent's records made during the examination note that there was only a scarce amount of calculus present.
The x-rays taken by the Respondent fail to demonstrate the need for periodontal scaling
Based on the foregoing, the Respondent has violated the following statutory provisions:
Section 466.028 (1)(u), Florida Statutes (1987) by committing fraud, deceit or misconduct in the practice of dentistry;
Section 466.028 (1)(i), Florida Statutes (1987), by making deceptive, untrue, or fraudulent
representations in the practice of dentistry, and
Section 466.028 (1)(j), Florida Statutes (1987), by filing a report which the licensee knows to be false.
Wherefore, Petitioner respectfully request that the BOARD OF DENTISTRY to enter an Order imposing one or more of the following penalties: revocation or suspension of the Respondent's license, restriction of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate.
SIGNED this 2nd day of August, 1989.
Larry Gonzalez
FILED
Department of Professional Regulation Agency Clerk BY: Charles F. Tunnicliff
8/2/89 Chief Attorney Clerk Date Professions Section
COUNSEL FOR DEPARTMENT:
Nancy M. Snurkowski Senior Attorney Professions Section
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee Florida 32399-0750
(904) 488-0062
| Issue Date | Proceedings |
|---|---|
| Jun. 02, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Apr. 01, 1992 | Final Order filed. |
| Mar. 31, 1992 | Final Order filed. |
| Nov. 14, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 1/23/91. |
| Apr. 08, 1991 | Petitioner's Proposed Recommended Order filed. (From Albert Peacock) |
| Apr. 04, 1991 | Respondents Proposed Recommended Order filed. |
| Mar. 06, 1991 | Order Extending Time (parties have unitl 4/1/91 to file PRO) sent out. |
| Mar. 04, 1991 | (Respondent) Motion for Extension of Time filed. |
| Feb. 11, 1991 | Memorandum to Parties of Record from MMP (Proposed RO's due March 7, 1991) sent out. |
| Feb. 05, 1991 | Transcript of Proceedings filed. |
| Jan. 23, 1991 | CASE STATUS: Hearing Held. |
| Jan. 09, 1991 | Order Rescheduling Hearing sent out. (hearing rescheduled for Jan. 23, 1991: 10:00 am: Miami) |
| Dec. 20, 1990 | (Respondent) Motion For Change of Date filed. (From H. M. Braxton) |
| Dec. 19, 1990 | (Respodnent) Response to Request to Produce; Notice of Filing Answersto Petitioner's First Set of Expert Interrogatoris to Respondent; Notice of Filing Answers to Petitioner's First Set of Trial Interrogatories to Respondent rec'd . (from H. M. Braxton) |
| Nov. 16, 1990 | Petitioner's First Set of Trial Interrogatories to Respondent; PEtitioner's First Set of Expert Interrogatories to Respondent; Petitioner'sNotice of Serving First Set of Expert Interrogatories to Respondent; Request to Produce; No tice of Delivery of Evid |
| Nov. 05, 1990 | (respondent) Request for Subpoenas filed. |
| Oct. 23, 1990 | Order sent out. |
| Oct. 23, 1990 | Notice of Hearing sent out. (hearing set for 1/25/91; in Miami; at 9:00am) |
| Oct. 17, 1990 | (Petitioner) Response to Motion For Return of Evidence filed. (From Albert Peacock) |
| Oct. 15, 1990 | (Respondent) Motion For Return of Evidence; Respondent's First Request For Production; Respondent's Initial Set of Interrogatories to Petitioner filed. (From Harold M. Braxton) |
| Oct. 05, 1990 | Petitioner's Response to Hearing Officers Initial Order filed. (From Albert Peacock) |
| Oct. 02, 1990 | Initial Order issued. |
| Sep. 26, 1990 | Administrative Complaint; Request for Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 27, 1992 | Agency Final Order | |
| Nov. 14, 1991 | Recommended Order | Filing insurance claim form containing misinformation violates 466.028(1)(j) but not subsections (1) or (u) because not within ""practice of dentistry."" |
