STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-2302

)

PETER KURACHEK, D.D.S., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on February 26, 1992, in Sarasota, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, FL 32399-0792

For Respondent: Peter Kurachek, D.D.S., pro se

395 Sugar Mill Drive Osprey, FL 34229

STATEMENT OF THE ISSUE

Whether Respondent's license to practice dentistry in the State of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an Administrative Complaint dated December 19, 1990, and filed with the Division of Administrative Hearings on April 16, 1991, which was amended by Order dated September 11, 1991, Petitioner seeks to revoke, suspend or otherwise discipline Respondent's license to practice dentistry in the State of Florida.

As grounds therefor, it is alleged: (a) that in undertaking the treatment of patient R.M. during the period from around July 7, 1987, until around October 5, 1989, the Respondent was guilty of negligence and incompetence by failing to meet the minimum standards of performance in diagnosing and treating R.M. when measured against prevailing peer performance in violation of Section 466.028(1)(y), Florida Statutes, and (b) that Respondent failed to keep written dental records and medical history records justifying the course of treatment for the patient R.M. in violation of Section 466.028(1)(m), Florida Statutes.

At the hearing, the Petitioner presented the testimony of Dan Odegaard, D.D.S., and C. Durfee Marshall, D.D.S. The deposition of R.M. taken on October 1, 1991, was received as evidence in lieu of her testimony at the hearing.

Petitioner's Exhibits 1 through 5 were received as evidence in this case.

Respondent testified in his own behalf and presented the testimony of George Reichgott, D.D.S. (Prosthodontist); Christine Williams; Jeanne Schmidt; and Wayne Moore. The deposition of Diana Ortolano taken on February 11, 1992, was received as evidence in lieu of her testimony at the hearing. Respondent's Exhibits 1, 2, 3, 4 and 9 were received as evidence in the case. Respondent's Exhibits 5, 6, 7 and 8 were rejected as not being relevant to this case.

A transcript of this proceeding was filed on March 23, 1992. The parties timely filed their posthearing proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made.

1. At all times material to this proceeding, the Respondent was a licensed dentist in the State of Florida, having been issued license number DN 0005429.

   
   

2. The patient, R.M., first presented herself to the American Dental Center (Center), a dental business owned and operated by Respondent, around July 7, 1987, and was seen by a dentist, other than the Respondent, employed by the Center. This dentist examined R.M. and recommended a new upper denture and lower partial.

   
   

3. R.M. was seen again on December 7, 1987, by a dentist, other than the Respondent, at the Center who repaired tooth number 7 on her upper denture. This dentist also advised R.M. that she needed a new upper denture and a lower partial.

   
   

4. On June 13, 1989, R.M. was seen by the Respondent at the Center, and the Respondent refused to reline R.M.'s upper denture. Respondent advised R.M. that she needed a new upper denture and a lower partial.

   
   

5. On July 12, 1989, R.M. saw another dentist, other than Respondent, at the Center who replaced tooth number 7 in her upper denture, and this dentist advised R.M. that she needed a new upper denture and a full lower denture.

   
   

6. On September 8, 1989, R.M. visited the Center and was seen by the Respondent. R.M. agreed to Respondent's treatment proposal of June 13, 1989, for a new full upper denture and a new lower partial. During this visit, the Respondent drilled two holes in the back of two of the lower teeth, numbers 22 and 27, in preparation for a cingulum rest. This procedure was not discussed with R.M. at that time. R.M. did not complain to the Respondent that there was sensitivity as a result of these holes.

   
   

7. Also, on this same visit, the Respondent made lower partial impressions and full upper denture impressions. The Respondent properly performed a periodontal probing which was properly recorded in the records, notwithstanding the conflict in the testimony regarding R.M.'s records as to which dentist

   performed the periodontal probing. Likewise, the Respondent properly performed a soft tissue examination which was properly recorded in the records.

   
   

8. On September 25, 1989, the Respondent checked the vertical dimensions of occlusion (VDO) with the full upper dentures and lower partial in place, and found both the vertical dimensions and the occlusion (bite) to be within reasonable bounds. Dr. Marshall performed the vertical dimensions and found them to be outside reasonable bounds. However, when Dr. Marshall performed this test, R.M. did not have the lower partial in place because the holes in teeth numbers 22 and 27 had been bonded by Dr. Odegaard. Because the lower partial could not be in place, the occlusion could not be checked. Also, not having the lower partial in place could have accounted for the difference in the vertical dimensions observed by Dr. Marshall and the Respondent. R.M. was apparently satisfied at this time with Respondent's work since she voiced no complaint. Respondent also selected shade of teeth at this appointment.

   
   

9. At R.M.'s next visit, sometime between September 25, 1989, and October 6, 1989 (possibly October 1, 1989), the Respondent made a full upper denture impression in rubber base. R.M. was allowed a look at the full upper denture and the lower partial in place. When in place, the upper denture and lower partial did not interfere with Respondent's enunciation of certain words or certain numbers which would indicate that the upper denture and lower partial fit properly. R.M. initialed her chart indicating that she approved the shape, shade, color, size and arrangement of teeth. There is insufficient evidence to show that the patient knew what she was initialing, and at this point had no complaints, or if she had, she did not voice them.

   
   

10. R.M.'s next visit was October 6, 1989, and at this visit the full upper denture and lower partial were delivered to her, placed in her mouth and she was allowed to look at them with a mirror. R.M. voiced no complaints, other than a minor sore spot which Respondent corrected, and she paid the balance of her bill and left.

    
    

11. At this same visit, both Respondent and R.M. realized that after a period of time certain adjustment would be needed.

    
    

12. On October 16, 1989, R.M. called Respondent's office complaining that her dentures and lower partial were hurting. R.M. was advised that her chart would be pulled for the Respondent to review and that the office would call back. Upon being called back, R.M. was advised by Respondent's staff that Respondent wanted her to come in to the office for adjustments. However, R.M. refused to come back in for any adjustments and advised Respondent's staff that she wanted her money back or she was going to the Better Business Bureau or get a lawyer.

    
    

13. Around November 24, 1989, R.M. visited Dr. Odegaard's office complaining of sensitivity on lower teeth numbers 22 and 27. Upon examination, Dr. Odegaard determined that the hole drilled in those teeth by Respondent had gone through the enamel into the dentin which was the apparent cause of the sensitivity. Dr. Odegaard bonded the holes in teeth numbers 22 and 27 which relieved the sensitivity. At that visit, Dr. Odegaard was aware of Petitioner's involvement in this case.

    
    

14. Based on the testimony of the experts, it is apparent that drilling through the enamel of a tooth into the dentin is not an uncommon occurrence, and that, in itself, would not necessarily be practice below the standard of care.

15. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including Dr. Reichgott's testimony, to establish facts to show that the placing of the lingual rest on teeth numbers 22 and 27 was a treatment of choice and not any riskier than other procedures performed by dentists.

    
    

16. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including the testimony of Dr. Reichgott, to establish facts to show that: (a) a soft tissue and periodontal examination was performed and recorded in the patient's records; (b) the preparation of the lower lingual surface of the lower canine for the lingual rests was not practice below the standard of care, or (c) the failure to record in the patient's chart the possible sequela of sensitivity from lingual rests and alternate methods of treatment was not practice below the standard of care.

    
    

17. While the Respondent's plan of treatment was brief, it was not inadequate record keeping or practice below the standard of care.

    
    

18. On each visit where R.M. saw the Respondent in a professional capacity, the Respondent made certain notations in the record concerning what he had accomplished during each visit, and while these notations are brief they do adequately describe what Respondent had accomplished. There is competent substantial evidence to establish facts to show that Respondent's dental records and medical history records justified the course of treatment for R.M.

    
    

19. There is competent substantial evidence to establish facts to show that Respondent's treatment of R.M. met the minimum standards of performance in diagnosis and treatment when measured against the generally prevailing peer performance.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Section 466.028(2), Florida Statutes, empowers the Board of Dentistry (Board) to revoke, suspend or otherwise discipline the license of a dentist found guilty of any one of the acts enumerated in Section 446.028(1), Florida Statutes.

    
    

22. Respondent is charged with the violation of Section 466.028(1)(m) and (y), Florida Statutes, which provides in pertinent part as follows:

    
    

    (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, test results, and

    X rays, if taken.

    * * *

    (y) Being guilty of incompetence or negli- gence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance . . . .

23. In a disciplinary proceeding, the burden is upon the regulatory agency to prove by clear and convincing evidence the allegation of misconduct. Ferris

v. Turlington, 570 So.2d 392 (Fla. 1987). The Petitioner has failed to sustain its burden in that regard.

RECOMMENDATION

Having considered the foregoing Findings Of Fact and Conclusions Of Law, it is, accordingly,

Recommended that the Board enter a Final Order dismissing the Administrative Complaint filed in this case.

DONE and ORDERED this 27th day of May, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

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 27th day of May, 1992.

APPENDIX TO THE RECOMMENDED ORDER

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 The Petitioner

1. Adopted in Finding of Fact 1.

2-4. Adopted in Finding of Fact 2, except for the date June 7, 1987, which is rejected in that it was July 7, 1987.

1. Adopted in Finding of Fact 4.

   
   

2. Rejected as not being supported by competent substantial evidence in the record.

7(a)(b). Adopted in Finding of Fact 6.

7(c). Adopted in substance in Finding of Fact 13, as modified, except for being "performed in a non-traditional area" which is rejected as not being supported by competent substantial evidence in the record.

7(d). Other than being asked to sign chart signifying approval which is adopted in Finding of Fact 9, this proposed finding of fact is rejected as not being supported by competent substantial evidence in the record.

7(e). Adopted in Finding of Fact 10.

7(f)-(i). Rejected as not being supported by competent substantial evidence in the record.

7(j)-(k). Adopted in Finding of Fact 13.

7(l). Neither material or relevant to the conclusion reached in the Recommended Order.

8-9. Rejected as making a conclusion without making a finding of fact that there was in fact a failure on the part of the Respondent, but in any case these are not supported by competent substantial evidence in the record.

10-11. Rejected as not being supported by competent substantial evidence in the record.

Specific Rulings On Proposed Findings Of Fact Submitted By The Respondent

The Respondent's "Findings Of Fact" are in part argument and part restatement of testimony rather than proposed findings of fact. However, for those that are truly findings of fact, I have adopted in Findings Of Fact 1-19.

Copies furnished to:

Albert Peacock, Esquire Department of Professional

Regulation

1940 N. Monroe Street Tallahassee, FL 32399-0792

Peter Kurachek, D.D.S.

395 Sugar Mill Drive Osprey, FL 34229

William Buckhalt Executive Director

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

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.

Docket for Case No: 91-002302

Orders for Case No: 91-002302