STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3100

)

PHILLIP K. PARSONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Keystone Heights, Florida, before Robert

1. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 7, 1992. The Division of Administrative Hearings received the hearing transcript on April 21, 1992.

   
   

   APPEARANCES

   
   

   For Petitioner: Anna Cam Fentriss

   Robert D. Newell, Jr. Newell & Stahl, P.A.

   817 North Gadsden Street Tallahassee, Florida 32303-6313

   
   

   For Respondent: Salvatore A. Carpino

   One North Dale Mabry, Suite 1010 Tampa, Florida 33609

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

   
   

   PRELIMINARY STATEMENT

   
   

   By administrative complaint dated February 19, 1991, petitioner alleged that respondent "at all times material . . . a licensed dentist in the State of Florida . . . recommended patient B.M. have all his amalgam restorations removed and replaced . . . [by] non-amalgam restorations"; that the "patient declined and requested only corrective dentistry"; that, on June 8, 1989, respondent "advised patient B.M. that he observed decay and, with B.M.'s consent, completed approximately six composite fillings for B.M. on or about June 13, 1989, and ten more on or about July 25, 1989; that, on "or about August 1, 1989 . . .

   Respondent advised patient B.M. that approximately twelve (12) additional fillings were required at a cost of $1,080.00"; but that a subsequent clinical examination and comparison of radiographs "revealed no restorative dentistry required for B.M."; that "radiographic evidence . . . fails to substantiate the

   Respondent's diagnosis and treatment plan"; that "Respondent changed patient B.M.'s restorations from amalgams to non-amalgam composite fillings . . . without the knowledge or consent of petitioner B.M."; that respondent "exploited patient B.M. for his financial gain"; "made fraudulent, untrue or deceptive representations in the practice of dentistry"; "failed to adequately comply with the patient's written request" for records, and "failed to maintain patient records justifying the course of treatment he provided to patient B.M."; all in violation of Sections 466.028(1)(l)(m)(n)(o)(p)(y) and (bb), Florida Statutes.

   
   

   At hearing, petitioner abandoned paragraphs 14(b), 16(b) 21(d) and 21(g), of the administrative complaint and limited (or purported to amend) the allegations of paragraphs 21(f) to pertain only to the course of treatment respondent allegedly proposed in August of 1989.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent Phillip Kibbee Parsons holds a dentist's license issued by petitioner, No. DN 0003193, Petitioner's Exhibit No. 1, and has at all pertinent times. Also at all pertinent times, he has been engaged in the private practice of dentistry in Keystone Heights, Florida.

      
      

   2. In May of 1986, Bruce Robert McHollan made his first visit to Dr. Parsons' office, to "have [his] teeth checked and to see if [he] needed any work done." T.10. Dr. Parsons caused radiographs to be taken, and Mr. McHollan's teeth were cleaned on this initial visit.

      
      

   3. When Dr. Parsons suggested replacing his fillings with "non-mercury amalgam fillings," (T.11), Mr. McHollan rejected the idea, and told Dr. Parsons he "was only interested in having decay . . . [and] any cavities . . . repaired." T.11.

      
      

   4. During two visits in September of 1986 Dr. Parsons placed or replaced nine fillings in Mr. McHollan's teeth. At the time, Mr. McHollan assumed this work was necessary to repair damage done by tooth decay, and the evidence did not establish otherwise.

      
      

   5. The following year and again on June 8, 1989, Mr. McHollan returned. He had his teeth cleaned on both occasions and, on June 8, 1989, Dr. Parsons who caused a second set of radiographs to be taken that day, advised Mr. McHollan that he needed additional fillings. Under the impression that these fillings were needed on account of decay that had developed since the earlier fillings, Mr. McHollan authorized Dr. Parsons to proceed.

      
      

   6. He submitted to six fillings on June 13, 1989, and another ten fillings on July 25, 1989. Eventually he noticed that his original fillings had all been replaced. Dr. Parsons' testimony at hearing that the original fillings all leaked and required replacement was uncontroverted.

      
      

   7. When Mr. McHollan returned to Dr. Parsons' office on August 1, 1989, to discuss his dental health, Dr. Parsons told him "that there w[ere] at least nine [more] areas where there was decay and needed to be filled, but he [Dr. Parsons] couldn't be sure of the total amount until he installed a rubber dam." T.15.

      
      

   8. Estimating the cost of additional restorations, Dr. Parsons continued, "Let's be conservative and let's say there are 12 more," id., then jotted down the following:

      ESTIMATE: 8/1/89 BRUCE McHOLLAN

      12

      90

      1080

      
      

      Petitioner's Exhibit No. 4. He wrote this estimate on a piece of paper on which his name and address are printed. At the time, Dr. Parsons charged $90 per filling.

      
      

   9. Suspicious about the need for additional fillings, Mr. McHollan went to his mother's dentist, George W. Boring, for a second opinion. On September 8, 1989, Dr. Boring examined Mr. McHollan's teeth and two bite-wing radiographs he had taken of them that day. He found no decay nor any evidence of decalcification or other demineralization.

      
      

   10. Later asked to compare radiographs taken in his office on September 8, 1989, with copies of those taken in Dr. Parsons' office on June 13, 1989, Dr. Boring concluded that they "basically looked the same." T.47. Cavities or carious conditions do not always show up on x-rays; in fact, "as often as not," (T.4a) they cannot be detected in this fashion.

       
       

   11. On December 7, 1989, Mr. McHollan sent Dr. Parsons a letter, the body of which began, "Send me my complete dental office records and all of my x-rays as soon as possible." Petitioner's Exhibit No. 5. He received x-rays taken in Dr. Parsons' office on June 13, 1989, but obtained no other records directly from Dr. Parsons' office. Later a collection agency sent Mr. McHollan copies of some, but not all, of the records Dr. Parson had maintained on him.

       
       

   12. In performing the restorations in the summer of 1989, Dr. Parsons had used rubber dams. A rubber dam permits isolation of a tooth surface so that the dentist can dry it for work (or observation) free of a film of saliva. Both Dr. Parsons and his assistant of twelve years, Pamela Slocumb, saw "white spots" on dry surfaces of Mr. McHollan's teeth, but neither saw carious lesions penetrating to the dentin.

       
       

   13. Expert testimony established that white spots on dry teeth evince demineralization. "[A]ccording to dental textbooks," (T.168E) demineralization constitutes active decay. In the early stages,

       
       

       demineralization usually is not very visible to the eye on a wet tooth, and either isolation with a rubber dam or isolation with cotton rolls, and then drying the tooth, would demonstrate this, whereas to the naked eye and, for that matter, even to the little sharp explorer, . . . if they were wet, they probably wouldn't be observable.

       
       

       T.190. Demineralization can lead to further decay, but it can also be a transitory condition:

       [C]ertain of the chemicals that are in the enamel are also dissolved in the saliva, and under certain circumstances . . . the calcium and other products in the saliva, will redeposit in these areas, and will actually build it back up.

       
       

       T.192. Remineralization can occur very rapidly, (T.193) and easily be completed over a period as long as that which elapsed between Dr. Parsons' last examination and the examination Dr. Boring performed.

       
       

   14. On October 29, 1990, some fourteen months after Dr. Parsons told him he needed at least nine fillings, Mr. McHollan's teeth had "moderate plaque and some stain," but not the kind of stain sometimes incorporated into the structure of the teeth in the course of remineralization.

       
       

   15. On October 29, 1990, a third dentist, Hugh B. Avant, examined Mr. McHollan's mouth as well as roentgenograms taken that day, bite-wing views from either side and three periapical views. On the cheek side of the upper left wisdom tooth, one of the places on which Dr. Parsons had seen white spots, Dr. Avant found a carious lesion of moderate size, which had penetrated the enamel into the dentin. He found no other carious lesions.

       
       

   16. In keeping with the standard of care for a general dentist practicing in Keystone Heights and elsewhere in that part of Florida, teeth require restoration by a dentist once a carious lesion penetrates the enamel into the dentin. Both Doctors Avant and Boring adhere to this standard.

       
       

   17. Filling a tooth which has demineralized but has no carious lesion would "not generally" be in conformity with the standard, at least the standard DPR's expert is "accustomed to." T.110. DPR's expert testified: "I don't think it's the standard of practice to start filling all areas like that, just because you think they are susceptible and they have some decalcification." T.112. But the patient's history may have a bearing.

       
       

   18. Dr. Bliss, a former member of the Board of Dentistry, testified for respondent, specifically with reference to Mr. McHollan and in light of his particular history, that "in a patient like this . . . it would not be below the standard to recommend that these [white-spotted] areas be cleaned and restored."

       T.189. He further testified that he had "had patients where I have identified these areas, and in my extreme conservatism, didn't do something, and within a month's time, it had gone into the dentin." T.200.

       
       

       CONCLUSIONS OF LAW

       
       

   19. Since the Department of Professional Regulation referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

       
       

   20. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). 21. In accordance with Section 466.028, Florida Statutes (1991), which specifies grounds for disciplinary action, a licensee's breach of duty justifies revocation only if the evidence clearly and convincingly shows the licensee to be guilty of

1. Making deceptive, untrue, or fraudulent representations in the practice of dentistry.

2. 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.

3. Exercising influence on the patient or client in such a manner as to exploit the patient or client for the financial gain of the licensee . . . .

4. Failing to make available to a patient or client, or to his legal representative or to the department if authorized in writing by the patient, copies of documents in the possession or under control of the licensee which relate to the patient or client.

. . .

(y) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice. . . . As used in this paragraph, "dental malpractice" includes, but is not limited to, three or more claims within the previous 5-year period which resulted in indemnity being paid, or any single indemnity paid in excess of $5,000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.

Section 466.028(1), Florida Statutes (1991). Petitioner abandoned both its allegation that respondent performed professional services Mr. McHollan had not authorized, and its claim that he failed to honor an agency subpoena.

1. Petitioner failed to establish clearly and convincingly that Dr. Parsons lied to Mr. McHollan in telling him, on August 1, 1989, that at least nine tooth surfaces showed evidence of decay, because (according to the evidence) decay is technically defined very broadly to include any decalcification; and the evidence did not disprove the assertion both respondent and his assistant made under oath at hearing that decalcification had given rise to white spots on nine tooth surfaces at that time.

2. Whether respondent spoke deceptively, untruthfully or fraudulently when he told Mr. McHollan he needed restorations on account of the white spots depends on his good faith, which cannot be said clearly and convincingly to have been disproven, in light of testimony from a former dental board member that recommending restoration in these circumstances was acceptable practice.

   
   

3. Petitioner failed to prove malpractice or negligence for the same reason. The evidence was clear that, on August 1, 1989, no carious lesion had penetrated any of the nine surfaces to the dentin underneath. But Dr. Bliss testified that decalcification of those surfaces, coupled with a history of decay like Mr. McHollan's, justified restorations nevertheless.

   
   

4. Dr. Avant's sometimes equivocal testimony was insufficient to establish clearly and convincingly that recommending restoration before a carious lesion penetrated the enamel to the dentin did not comport with "standards of performance in diagnosis and treatment when measured against generally prevailing peer performance," Section 466.028(1)(4), Florida Statutes (1991), when a patient had a history like Mr. McHollan's. Dr. Boring was never asked the question.

   
   

5. Petitioner also alleged that respondent failed "to keep written dental records . . . justifying the course of treatment." Section 466.028(1)(m), Florida Statutes (1991). For the foregoing reasons and for the additional reason that petitioner limited this charge to treatment respondent proposed but never embarked upon, the proof failed. At the hearing, petitioner's counsel abandoned certain paragraphs of the administrative complaint and stated generally, "This case is about the prospective statement of Dr. Parsons that additional work was needed, and is about his failure to provide patient records to the parties." (T.49)

   
   

6. Petitioner alleged that respondent exercised influence on Mr. McHollan "in such a manner as to exploit . . . [him] for the financial gain of the licensee" Section 466.028(1)(n), Florida Statutes (1981). This claim, too, petitioner limited to the prospective course of treatment petitioner proposed, but never began. For the foregoing reasons and because petitioner failed to prove any financial gain inured to respondent's benefit, the proof likewise fails on this charge.

   
   

7. Petitioner established that respondent never directly furnished Mr. McHollan the records he requested in his letter of December 7, 1989, except for copies of certain x-rays. He did furnish some records to a collection agency, however, for transmittal to Mr. McHollan, and some records were in fact transmitted to Mr. McHollan by the collection agency. The evidence clearly and convincingly showed that respondent received Mr. McHollan's written demand for his records, that he furnished some of the records to Mr. McHollan, but that he failed to furnish all the records and failed to advise Mr. McHollan whether, when or where the records not furnished could be inspected or copied.

   
   

8. Although respondent may have been under no duty to copy and mail to Mr. McHollan all records under his control pertaining to Mr. McHollan, at least if Mr. McHollan could equally conveniently have come by and copied them himself, see Rule 21G-17.009(2), Florida Administrative Code, his failure either to furnish Mr. McHollan all the pertinent records (directly or indirectly) or to respond to his letter by advising him where the records could be inspected and copied amounted to "failing to make the records available" in violation of Section 468.028(1)(o), Florida Statutes (1991).

RECOMMENDATION

It is, accordingly, in keeping with Rule 21G-13.005(3)(v), Florida Administrative Code,

RECOMMENDED:

That the Board of Dentistry impose a fine of five hundred dollars ($500), reprimand respondent, and place him on probation for a period of three years.

DONE and ENTERED this 28th day of October, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 28th day of October, 1992.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,

11, 12, 14, 17, 18, 19, 20, 24, 27, 28, 29, 30, 31, 32, 37, 38, 39, 40, 41, 42

and 44 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 13, whether Dr.

Parsons had a recollection concerning the use of an explorer was not established.

With respect to petitioner's proposed finding of fact No. 15, Dr. Parsons testified that he filled teeth when there was a history of severe decay and decalcification, and he felt further decay was likely, but he did not testify to any standard on page 180.

Petitioner's proposed findings of fact Nos. 16 and 26 pertain to immaterial matters.

Petitioner's proposed findings of fact Nos. 21, 22, 23, 33, 34, 35 and 36 pertain to subordinate matters.

Petitioner's proposed findings of fact Nos. 25 and 43 have been rejected as unsupported by the evidence cited.

Respondent's proposed findings of fact Nos. 1, 2, 3, 6, 7, 9, 10, 13, 14 and 16 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 4, the testimony was that "these decalcified areas" would not have been visible if wet.

Respondent's proposed findings of fact Nos. 5 and 11 were not convincingly disproven.

With respect to respondent's proposed finding of fact No. 8, there were nine, not twelve, surfaces.

With respect to respondent's proposed finding of fact No. 12, there are other ways to dry teeth for observation.

Respondent's proposed finding of fact No. 15 relates to a subordinate matter.

COPIES FURNISHED:

Anna Cam Fentriss, Esquire Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, FL 32303-6313

Salvatore A. Carpino, Esquire One North Dale Mabry, Suite 1010 Tampa, FL 33609

William Buckhalt, Executive Director Board of Dentistry

1940 N. Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 N. 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. 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,

DPR CASE NO.: 89-013627

vs. DOAH CASE NO.: 91-3100

LICENSE NO.: DN0003193

PHILLIP K. PARSONS,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on January 8, 1993, in Tampa, 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. Phillip K. Parsons, Case No. 91-3100. At the hearing, Petitioner was represented by Nancy M. Snurkowski, Chief Attorney. Respondent appeared with legal counsel, Salvatore A. Carpino, Esquire. 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

1. The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.

   
   

2. The Hearing Officer's Conclusions of Law are amended as follows:

   
   

   1. In paragraph 21. the word "only" on line 3 is deleted. Although in this case revocation would be justified only if a violation of the enumerated provision is appropriately proven, it is not correct to state generally that only these violations can justify revocation of a license.

      
      

   2. The conclusion set forth in paragraph 29 is incorrect and is rejected by the Board. Paragraph 29 is rewritten as follows:

   29. Respondent had a duty to provide to Mr. McHollan all records under his control pertaining to Mr. McHollan, see Rule 21G- 17.009(2), Florida Administrative Code. His failure to furnish Mr. McHollan all the pertinent records (directly or indirectly) amounted to "failing to make the records available" in violation of Section 466.028(1)(o), Florida Statutes (1991).

   
   

   With these amendments, the Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference.

   
   

3. There is competent, substantial evidence to support the Board's conclusions.

   
   

4. The Board REJECTS the Hearing Officer's recommendation as to penalty. Instead the Board finds that Rule 21G-13.005(1) and (3)(r), Florida Administrative Code (1989) set forth the usual penalty for the violation found herein as an administrative fine of $3,000.00, a reprimand and probation. Absent mitigating or aggravating circumstances, 1/ this is the appropriate penalty in this case.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated Section 466.028(1)(o), Florida Statutes and Respondent shall pay an administrative fine of $3,000.00. Said fine shall be paid to the Executive Director of the Board of Dentistry within 30 days of the effective date of this Final Order.

Furthermore, Respondent's license to practice dentistry in Florida is hereby REPRIMANDED and placed on probation for a period of 3 years.

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 16th day of February, 1993. BOARD OF DENTISTRY

CHARLES L. ROSS, JR., D.D.S. CHAIRMAN

ENDNOTE

1/ There is no reference to mitigating factors by the Hearing Officer and the Board does not find any mitigating factors. On the contrary, the Board finds Respondent's failure to ever convey the complete dental records to the patient to be an aggravating factor in this case.

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 16th day of February, 1993, to Phillip K. Parsons, D.D.S. c/o Salvatore A. Carpi , Esquire, One North Dale Mabry, Suite 1010, Tampa, Florida 33609 and by regular U.S. Mail to Robert

T. Benton, II, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee 32399-1550, 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

Docket for Case No: 91-003100

Orders for Case No: 91-003100