STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NOS. 91-3213
) 91-6022
JOHN A. ROWE, DDS, )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 91-5362
)
RALPH E. TOOMBS, DDS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled consolidated cases on November 9-13, in Orlando, Florida.
APPEARANCES
For Petitioner: Albert Peacock, Esquire
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399
For Respondent Kenneth E. Brooten, Jr., Esquire Rowe: 660 West Fairbanks Avenue
Winter Park, Florida 32789
For Respondent Ronald M. Hand, Esquire Toombs: 241 East Ruby Avenue
Kissimmee, Florida 34741 STATEMENT OF THE ISSUES
Amended administrative complaints dated July 24, 1991 (as to Respondent Toombs) and April 22, 1992 (as to Respondent Rowe) allege that the two respondent dentists named above committed various violations of Chapter 466,
related to the practice of dentistry. The issue for disposition is whether those alleged violations occurred, and if so what discipline is appropriate.
As to Respondent Rowe, these violations are alleged:
Being disciplined by another state licensing authority, and failing to timely report that disciplinary action;
improperly interpreting diagnostic tests and improperly diagnosing and treating temporomandibular joint (TMJ) disorders;
inserting orthotic (surgical) splints with the patient in a supine position;
billing insurance carriers twice for the same procedure;
billing insurance carriers for TENS units not received by patients; and
influencing or exploiting patients for financial gain.
As to Respondent Toombs these violations are alleged:
Making untrue, deceptive or fraudulent representations by advertising in the yellow pages as an orthodontist;
submitting a false claim for insurance;
failing to maintain records justifying a course of treatment; and
influencing or exploiting a patient for financial gain.
PRELIMINARY STATEMENT
Separate administrative complaints were filed against the respondents and were forwarded to the Division of Administrative Hearings upon their requests for formal hearings.
The cases were consolidated and the hearing was set and rescheduled several times upon the parties' request, to allow the various complaints to be amended.
At the formal hearing, Petitioner presented the testimony of Leonard Rochefort, Connie Van Dwyne Todd, Vicky Pletcher, Dr. Frank Murray, Beverly Mitchell, Melanie Cederberg, Ellis Lord, Janet Barfield, Evelyn Claus, Audie Wilson, Harold Wooten, Dr. Howard Lilly, Jr., Ruth Vernon, Jannie Thompkins, and Dr. Reda Abdel-Fattah. The following Petitioner's exhibits were received: 1-8, 10-20, 23, 25, and 27-33.
Respondent Rowe testified in his own behalf and presented the additional testimony of Dr. Ralph Toombs, Karen Batton, Margaret Collins, Martha Barber, Dr. John Biggs and Leonard Rochefort. Rowe exhibits #1-13 were received in evidence, including depositions of Dr. Allan Heape and Dr. Gerald Moretti.
Respondent Toombs was sanctioned for failing to participate in prehearing discovery and by an order entered on October 21, 1992, was limited to cross- examination of witnesses. He was permitted to file responses to Petitioner's request for admissions during the course of the hearing based on his counsel's assertion that the requests were not received.
The record was left open until December 7 for the depositions of Respondent Rowe's additional expert and for the rebuttal testimony of Dr. Abdel-Fattah.
The transcript was filed, and, after an extension due to illness of counsel, the parties filed proposed recommended orders on March 12, 1993. Specific rulings on the parties' proposed findings of fact are found in the attached Appendix.
FINDINGS OF FACT
Respondents
Respondent, John A. Rowe, D.D.S., received his license to practice dentistry in the State of Florida on or about July 30, 1982 and has been so licensed continuing to the present under license #DN 009364.
Since 1977, Dr. Rowe has been board-certified in oral and maxillofacial surgery and he practices in that specialty.
Dr. Rowe's license to practice dentistry in the State of Tennessee was suspended on or about October 3, 1983, and was reinstated on or about September 28, 1984. He neglected to inform the State of Florida Board of Dentistry of that disciplinary action, although he did provide to the Board a copy of the civil complaint when he applied for licensure in Florida.
In early 1985, Dr. Rowe moved his practice from Tennessee to central Florida and began working with Dr. Frank Murray. During the time that he treated the patients at issue in this proceeding, Dr. Rowe was a salaried employee and part owner of a clinic, Central Florida Dental Association, in Kissimmee, Florida. He now has his own practice in Kissimmee.
Ralph E. Toombs, D.D.S., has at all times relevant to this proceeding been licensed to practice dentistry in the State of Florida under license #DN 007026.
During the period in question, 1988, Dr. Toombs was an associate at Central Florida Dental Association.
The Clinic and its Procedures
During the relevant period, 1988-89, Central Florida Dental Association, P.A., was owned by a group of dentists who actively practiced at the clinic. Dr. Frank Murray was the majority shareholder and President. Dr. Rowe was a shareholder; Dr. Toombs owned no interest and was an associate. The dentist/owners were under employment contracts and received salaries.
By all accounts, Dr. Murray made the operational decisions affecting the clinic and its patients. He admitted that shareholders' votes were based on percentage of ownership. (Tr.-p.114)
Dr. Murray set the fees for billing and reviewed patients' files. The procedures for billing were computerized. Clerical staff in the insurance department filled out claim forms that were signed in blank by the dentists, or they signed the dentists' names to the forms.
Around 1987 or 1988, Dr. Murray acquired computerized diagnostic equipment for the clinic. At first Dr. Toombs, who was trained and familiar with the equipment, performed the testing. Later, Dr. Murray hired Maggie
Collins to operate the equipment. Maggie Collins administered the diagnostic tests to the patients at issue in this proceeding.
By the time Dr. Rowe left Central Florida Dental Association in 1989, his relationship with Dr. Murray had deteriorated, giving rise to acrimonious litigation.
Patient Records
After Dr. Rowe left, he had no further access to, or control over the dental records for the eight patients at issue in this proceeding. These Central Florida Dental Association records were at all times maintained under the case, custody and control of Dr. Murray and his employees.
When the records were subpoenaed by the Department of Professional Regulation, copies of the records were provided and the clinic employees certified that the records provided were complete. They were, in fact, not complete, as approximately 426 additional pages were included in the originals subpoenaed by counsel for Dr. Rowe, which pages had not been provided to DPR.
Many of the documents not copied for DPR related to billings. In some instances Dr. Rowe's daily reports or consultations were missing from the original records and from the copies. And, in at least one case the original record contains an entirely different version of a specific radiology consultation conducted by Dr. Rowe on 5/3/89. (Compare Rowe Exhibit #2 with Pet. Exh. #5-1).
No evidence was provided to conclusively explain the discrepancies, and the records themselves are an unreliable source of evidence with regard to the allegations that Dr. Toombs failed to maintain adequate records for patient
J.T. Her file contains only one X-ray from Central Florida Dental Association, and no explanation of tests, diagnoses or the continuing contacts she remembers with Dr. Toombs. The patient specifically remembers more than one X-ray being done at the clinic.
The Patients
At various times during 1987, 1988 and 1989, Dr. Rowe was consulted by these patients: H.W., E.M., M.Z., R.P.V., H.D., R.M. and S.R. Each had been involved in an automobile accident or other traumatic injury and each complained of headaches, pain, dizziness, and other symptoms.
After examination and throughout a course of testing and treatment, these various diagnoses of TMJ disorders by Dr. Rowe were commonly found in the above patients: trismus, closed lock, and mandibular atrophy. While other diagnoses were made in the individual cases, the evidence at hearing and Petitioner's proposed recommended order address only these.
Patient J.T. first consulted Dr. Toombs in August 1988, after suffering headaches which she understood from her regular dentist and her physician might be caused by dental overbite. She had a friend who had some work done by Dr. Toombs, so she looked him up in the yellow pages under "orthodontics" and made an appointment.
After testing and X-rays and a brief consultation with Dr. Rowe, J.T. understood that Drs. Toombs and Rowe were suggesting jaw joint replacement, removal of some teeth and braces. She was advised to get another opinion and
she returned to a prior treating physician. She did not follow up with treatment from Dr. Toombs or Rowe.
Testing
In addition to being administered X-rays, the above patients were tested on myotronics equipment at Central Florida Dental Association by Maggie Collins, a trained diagnostic testing operator hired by Dr. Frank Murray.
Myotronics is electronic equipment developed by a Seattle, Washington company over the last twenty years. The equipment is used in diagnosis and sometimes treatment of TMJ functions, and includes sonography, which records the vibration of sound; electromyography (EMG), which measures the electrical activities of the muscles of the face; and computerized mandibular scanning (CMS), which measures a range and velocity of mandibular movement, i.e., the opening and closing of the jaw. Myotronics can also include a device like a TENS unit used for pulsating.
The machines produce printouts which are available for interpretation later by the appropriate professional.
On each occasion of administering the myotronics tests to the patients at issue, Maggie Collins was alone, undirected by Dr. Toombs, Dr. Rowe or other clinic staff. She utilized testing procedures she had been taught and had used in her prior dental clinic experience and which she continues to use in the clinic where she now works.
In some cases, Ms. Collins administered the same tests twice on a single visit. In those cases, after the first series, the patient was pulsated with a TENS before the series was administered again to measure the effectiveness of the pulsating. This is a standard practice. The full testing takes two and a half to three hours.
Diagnoses
The TMJ, or temporomandibular joint of the jaw, is between the temporo bone and the mandible. A disc is between the condyle (bone) and the fossa (socket). As the mouth is opened, the bone moves and the disc moves slightly at first, until the mouth is opened wider and the disc rotates around the axis of the condyle.
According to Respondent Rowe's TMJ expert witness, John Biggs, D.D.S., and as evidenced by the testimony of all of the experts in this proceeding, terminology in TMJ is open to interpretation and there is not a complete union of agreement on every single thing in the field of TMJ. (tr.-p.790)
"Closed lock" can legitimately mean that the disc is out of place and is not recaptured as the mouth is closed. The term, "closed lock", can also be applied to the mandible, meaning the jaw does not open normally because it meets resistance from muscle spasm or tissue impediment from the disc.
An acute closed lock would impede the opening more than a chronic condition, as the mandible may, over time, stretch the ligaments. An acute closed lock could limit the mandibular opening to 21, 25 or even 27 mm; whereas a chronic closed lock might allow an opening of up to 40 mm, and sometimes more, according to Petitioner's expert, Dr. Abdel-Fattah (rebuttal deposition, 12/2/92, p.71).
The patients' files in evidence reveal findings of limited mandibular openings from a variety of sources, including manual and electronic measurement. Those openings are well within the ranges described above for closed lock and most are within the "acute closed lock" range.
Another term for "closed lock" is "anterior displacement of the disc without reduction". This means the disc is not recaptured on the condyle. When a sonogram reflects sounds or clicking in the joint, analysis of those sounds is helpful in diagnosing TMJ disorders. Literature appended by Petitioner to the rebuttal deposition of its expert supports Dr. Moretti's opinion that the presence of clicks can still mean that a closed lock exists. (Pet. #3 to deposition of Reba A.Abdel-Fattah, pp. 1 and 3, figure 5 Rowe Ex. #10, p.18)
Trismus is more appropriately designated a symptom rather than a diagnosis. It means spasm of the muscles of mastication. The pain of the symptom often interferes with the opening of the mandible, and for that reason, trismus is sometimes used to also denote "limited opening". It is apparent from the patient records that Dr. Rowe used the term interchangeably, and for that reason, findings of trismus where a patient is able to open to 40 mm are not inconsistent. Moreover, trismus as a symptom may be more or less pronounced under a variety of circumstances on different occasions with the same patient. For example, the patient may experience severe trismus upon rising in the morning and find that it subsides later.
Mandibular atrophy is indicated by bone loss. Reviewing the same X- rays for patient E.M., Petitioner's and Respondent Rowe's experts came to opposite conclusive opinions as to whether Dr. Rowe's diagnosis of this condition in E.M. was proper. Mandibular atrophy was also diagnosed in patient S.R., but Dr. Fattah did not find a problem with that diagnosis.
Treatment
Dr. Rowe's treatment of the patients in issue included closed manipulation and the insertion of orthodic splints. Both are noninvasive, conservative procedures.
Petitioner alleges that closed manipulation was unnecessary in the absence of closed lock, and that the method of insertion of the splints by Dr. Rowe was improper.
Closed manipulation of the mandible, sometimes called "closed reduction", is manual manipulation to attempt to recapture the disc. The procedure can be done several ways, one of which is to approach the patient from the back, place the hands on the mandible and relax the mandible to where it can be opened, moving the disc into place.
The patient is in a supine, or reclined, position in the dental chair.
Once the disc is manually repositioned, it is important to keep the patient from closing back on his posterior teeth and losing the disc again. To avoid this, an orthodic splint is inserted and fitted in the patient's mouth. Even when manipulation does not unlock the mandible, the practitioner might want to place the splint for support.
The splint can be placed with the patient sitting erect or reclined. Dr. Rowe generally places the splint while the patient is reclined in the dental
chair. Adjustments may be made after the splint is initially placed and the patient is sometimes seen twice on the same day or on a weekly basis.
Because it is important for the patient to be relaxed, the supine or reclining position is preferred.
Insurance Claims
Insurance claims at Central Florida Dental Association were handled by clerical staff in a separate department. Claim forms were commonly signed by those staff for the treating dentist, but there is no evidence that the signatures were authorized for any specific claim.
Another wholly inappropriate practice at the clinic was to have the dentists sign blank forms to be filled out later. Dr. Rowe testified that Dr. Murray required that they do this, and that he did sign blank forms.
Those forms include this printed statement over the signature line:
NOTICE: Under penalty of perjury, I declare that I have read the foregoing, that the facts alleged are true, to the best of my knowledge and belief, and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. (Pet. Ex. 12)
There is no evidence that Dr. Rowe or Dr. Toombs filled out the claim forms in issue, or were involved in the ultimate decisions as to how much and when to bill an insurance company.
In several instances, the forms reflect that tests were billed twice on the same day. As found above, tests were commonly administered twice in one day, for valid reasons. Whether the billing for such was proper was simply not addressed by any competent testimony in this proceeding.
Patients' insurance companies were also billed for TENS units. H.W. was given this equipment at the clinic and he testified that he still has it. There is no evidence that any billing for TENS units was fraudulent or improper.
Advertising
In 1988, the Osceola County telephone directory Yellow Pages listed Dr. Toombs under "Dentists-Orthodontics". There is no evidence that anyone other than Dr. Murray was involved with the placement of that listing.
Dr. Toombs is a general dentist who practices orthodontics. He is a member of various orthodontic societies.
Petitioner's expert witness, Dr. Lilly, confirmed that a general practitioner of dentistry may practice some orthodontics.
There is no evidence that Dr. Toombs has held himself out or limited his practice to being an orthodontist.
Weighing the Evidence and Summary of Findings
Competent reasonable experts testified on behalf of both Petitioner and Respondent Rowe. It is clear that, as Dr. Biggs observed, terminology in the field of TMJ is not as precise and uniform as Dr. Fattah would suggest.
Some of the differences in opinion are attributed to that imprecision, and perhaps to quirks in Dr. Rowe's narratives which portray a surgical setting for a nonsurgical procedure, for example, "draping the patient" or "surgical splint". Dr. Rowe, as an oral surgeon, nonetheless, proceeded reasonably in his sequence of diagnosis and treatment; that is, he attempted conservative, noninvasive modalities before going to more invasive procedures such as arthoscopy and surgery.
Other differences in opinion and in the way the computerized test results are interpreted are more difficult to resolve. Dr. Rowe contends that Dr. Fattah misread the printed data, confusing vertical with horizontal readings.
Dr. Fattah uses myotronic equipment, but not the older model that was used for the tests at issue.
The greater weight of evidence supports Respondent Rowe's diagnoses of the patients at issue.
Since the allegations of inappropriate and unnecessary treatment are based on allegations of misdiagnosis, Petitioner's proof fails here as well. The further testing, the closed manipulation and insertion of the splints were appropriate follow up for the findings of TMJ disorders by Dr. Rowe.
With one exception, it was the insurance companies and not the patients who complained. The records from Central Florida Dental Association reflect substantial billings and insurance form submittals for Dr. Rowe's and Dr. Toombs' patients, but no evidence of these Respondents' responsibility or involvement in the process. The clinic functions were performed in discrete departments under the overall management and control of Dr. Murray.
There was no evidence that either Dr. Rowe or Dr. Toombs exercised influence over any patient so as to exploit the patient for personal financial gain.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and parties in this proceeding pursuant to subsection 120.57, Florida Statutes.
The Amended Administrative Complaint charges that Respondent Rowe in his treatment of patients H.W., E.M., M.Z., R.P.V., H.D., R.M., S.R., and J.T. failed to meet minimum level standards of performance of a dentist in the community, in violation of Florida statutes and rules of the Board of Dentistry. Further, Petitioner alleges that Respondent Rowe made deceptive, untrue, or fraudulent representations, filed a report which the licensee knew to be false, engaged in fraud, deceit, or misconduct in the practice of dentistry and exercised influence over patients for financial gain. Finally, Respondent Rowe is charged with having a license to practice dentistry suspended by the
licensing authority of another state and failing to report that fact to the Board.
As to Respondent Toombs, it is alleged that in his treatment of patient J.T. he made deceptive, untrue or fraudulent representations in the practice of dentistry by holding himself out as an orthodontist in the yellow page advertising directory; that he filed a report that was false during his submissions for payment; he failed to keep written records justifying the course of treatment of J.T.; and he failed to meet the minimum standard of performance when measured against generally prevailing peer performance.
Since these consolidated cases involve proposed license disciplinary action, Petitioner has the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So. 2nd 292 (Fla. 1987).
CASE NO. 91-3213 & 91-6022 (Rowe)
Section 466.028(1)(b), Florida Statutes (1983) provides that having a license to practice dentistry suspended by the licensing authority of another state shall constitute grounds for which disciplinary action may be taken. Such provision has been continuously reenacted in substantially the same form.
The Respondent is thus subject to prosecution for this act. Solloway
v. Department of Professional Regulation, 421 So.2nd 573 (fla. 3d DCA 1982) He has substantially admitted this violation.
The requirement that the licensee report disciplinary action by another state was added in 1991, and may not be retroactively applied. Delk v. Department of Professional Regulation, 595 So.2d 966 (Fla. 5th DCA 1992)
Section 466.028(1)(y), F.S. (1989) provides that, inter alia, being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against the prevailing peer performance, is an act subjecting the licensee to disciplinary action as provided in section 466.028(2), F.S.
Section 466.028(1)(n), F.S. (1989) provides that it shall be a ground for discipline when the dentist exercises influence on the patient or client in such a manner as to exploit the patient or client for the financial gain of the licensee or of a third party.
Section 466.028(1)(l), F.S. (1989) provides that making deceptive, untrue, or fraudulent representations in the practice of dentistry is a ground for disciplinary action.
Section 466.028(1)(u), F.S. (1989) provides that fraud, deceit, or misconduct in the practice of dentistry is a ground for disciplinary action.
As found above, Petitioner failed to meet its burden of proving that Respondent Rowe in his treatment of the patients at issue violated all or part of the above-cited disciplinary provisions.
Section 466.028(1)(j), F.S. (1989) provides that making or filing a report which is signed in his capacity as a licensee and which the licensee knows to be false is a ground for disciplinary action.
The Respondent admits that he signed claim forms "in blank". This is a foolhardy practice which comes perilously close to comprising constructive knowledge, but Petitioner failed to prove that the forms that were signed by Respondent Rowe were, in fact, false.
CASE NO. 91-5362 (Toombs)
Section 466.028(1)(l), F.S. (1989) provides that making deceptive, untrue, or fraudulent representations in the practice of dentistry is a ground for disciplinary action.
Respondent, a general dentist, did not violate that provision, as alleged, by holding himself out as an orthodontist.
Section 466.028(1)(j), F.S. (1989) provides that making or filing a report which is signed in his capacity as a licensee and which the licensee knows to be false is a ground for disciplinary action.
Respondent Toombs did not sign the billings. They were signed for him at the office where he performed dentistry but the greater weight of the evidence is there was no knowledge as to the purpose and subject matter of the billings.
Section 466.028(1)(y), F.S. (1989) provides that, inter alia, being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against the prevailing peer performance is an act subjecting the licensee to disciplinary action as provided in Section 466.028(2).
Section 466.028(1)(m), F.S. 1989 makes it a ground for disciplinary action for the licensee to fail to keep dental and medical history records justifying the course of treatment of the patient.
As found above, the records admitted into evidence in this case are too inherently unreliable to support these allegations as to Dr. Rowe.
Penalty
Rule 21G-13.005, F.A.C. describes disciplinary guidelines adopted by the Board of Dentistry for application when violations of Chapter 466 are found.
Rule 21G-13.005(3)(c), F.A.C. provides that when the licensee is disciplined in another state, the usual practice of the Board is to impose probation, restriction of practice, suspension and the like, depending on the conduct involved and the penalties imposed by the other jurisdiction.
In this case Dr. Rowe was suspended for approximately one year, ten years ago, and apparently demonstrated to the Tennessee licensing authority that he was again capable of practicing without restriction. It makes no sense to suspend him now, and a civil penalty within the range provided by statute and rule is recommended.
Based on the foregoing, it is, hereby, RECOMMENDED:
That Respondent Rowe be found guilty of violating Section 466.028(1)(b),
(1983), and a fine of $250.00 be imposed; and that the remaining charges as to Respondents Rowe and Toombs be dismissed.
DONE AND RECOMMENDED this 2nd day of April, 1993, in Tallahassee, Leon County, Florida.
MARY CLARK
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 2nd day of April, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-3213, 91-6022 AND 91-5362
The following constitute specific rulings on the findings of fact proposed by the parties.
Adopted in paragraph 1. 2.-3. Adopted in paragraph 2.
4. Rejected as unnecessary. The statute is addressed in the Conclusions of Law.
5.-6. Adopted in summary in paragraph 13.
Rejected as contrary to the weight of evidence.
Adopted in summary in paragraphs 16 and 26.
9.-13. Rejected as contrary to the weight of evidence. 14.-15. Adopted in summary in paragraph 13.
Rejected as contrary to the weight of evidence.
Adopted in summary in paragraphs 16 and 26.
18.-23. Rejected as contrary to the weight of evidence. 24.-25. Adopted in summary in paragraph 13.
26. Adopted in summary in paragraphs 16 and 26.
27.-30. Rejected as contrary to the weight of evidence.
31. Adopted in paragraph 27. The referenced exhibit #33 is Dr. Lilly's resume and does not support the proposed finding.
32.-34. Rejected as contrary to the weight of evidence. 35.-36. Adopted in summary in paragraph 13.
37. Adopted in summary in paragraphs 16 and 26.
38.-42. Rejected as contrary to the weight of evidence. 43.-44. Adopted in summary in paragraph 13.
45. Adopted in summary in paragraphs 16 and 26.
46.-49. Rejected as contrary to the weight of evidence. 50.-51. Adopted in summary in paragraph 13.
Rejected as contrary to the weight of evidence.
Adopted in summary in paragraphs 16 and 26.
54.-58. Rejected as contrary to the weight of evidence.
The reference to exhibit #33 is incorrect.
59.-60. Adopted in summary in paragraph 13.
Rejected as contrary to the weight of evidence.
Adopted in summary in paragraphs 16 and 26.
63.-67. Rejected as contrary to the weight of evidence.
68. Adopted in paragraph 4. 69.-70. Adopted in paragraph 14.
Adopted in part in paragraph 34, otherwise rejected as to Respondent's involvement in the advertisement.
Adopted in paragraph 35. 73.-74. Rejected as unnecessary.
75.-77. Rejected as unnecessary or unsupported by competent evidence as the absence of these records does not support the finding of a violation under the circumstances.
Findings Proposed by Respondent Rowe
Adopted in paragraph 1.
Adopted in paragraph 3. 3.-4. Adopted in paragraph 9. 5.-7. Adopted in paragraph 10. 8.-9. Adopted in paragraph 11.
Adopted in paragraph 10.
Rejected. The testimony of J.T. is inconclusive in this regard.
Adopted in paragraph 8.
Rejected as unnecessary.
Rejected as overbroad. The records received were reliable for a limited purpose.
15.-16. Rejected as unnecessary.
Rejected as immaterial. Respondent admitted the violation.
Adopted in part in paragraph 2, otherwise rejected as immaterial (see paragraph 17, above)
Adopted in paragraph 32, in substance.
Adopted in substance in paragraph 6.
Rejected as unnecessary.
Rejected in part as unsubstantiated by the record (as to whether Rowe received any benefit other than salary), otherwise adopted in paragraph 6.
23.-24. Adopted in paragraph 6.
25. Adopted in paragraph 41. 26.-27. Adopted in paragraph 37.
Adopted in paragraph 41.
Adopted in paragraph 29.
Adopted in substance in paragraph 21.
Adopted in paragraph 23.
Adopted in paragraph 20.
Adopted in paragraph 24.
34.-37. Rejected as unsupported by conclusive evidence.
The witness was at times confused in his haste. He does not know this particular equipment but it is not clear from the record that he was reading the data wrong.
Adopted in paragraph 24.
Adopted in paragraph 23.
Adopted in paragraphs 37 and 38.
Adopted in paragraph 33.
Rejected in part, adopted in part (see conclusions of law).
Finding of Fact Recommended by Respondent Toombs
Rejected as unnecessary.
Adopted in paragraph 4.
Adopted in paragraph 14. 4.-5. Rejected as unnecessary.
Adopted in paragraph 36.
Adopted in paragraph 34.
Adopted in paragraph 35. 9.-11. Rejected as unnecessary.
12. Adopted in paragraph 5. 13.-18. Rejected as unnecessary.
19. Adopted in paragraph 12. 20.-26. Rejected as unnecessary.
27. Adopted in paragraph 41.
COPIES FURNISHED:
William Buckhalt, Executive Director Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60
Tallahassee, FL 32399-0792
Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60
Tallahassee, FL 32399-0792
Albert Peacock, Sr. Atty.
Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60
Tallahassee, FL 32399-0792
Kenneth Brooten, Jr. 660 W. Fairbanks Avenue Winter Park, FL 32789
Ronald Hand
241 E. Ruby Ave., Ste. A Kissimmee, FL 34741
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.
| Issue Date | Proceedings |
|---|---|
| Apr. 02, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 11/9-13/92. |
| Mar. 12, 1993 | Recommended Order of Dismissal filed. (From Kenneth E. Brooten, Jr.) |
| Mar. 12, 1993 | Petitioner`s Notice of Filing; Petitioner`s Proposed Recommended Order filed. |
| Mar. 12, 1993 | Petitioner`s Notice of Filing filed. |
| Dec. 24, 1992 | Transcript of Proceedings (Volumes 1-5); Deposition of Reba A. Abdel-Fattah filed. |
| Nov. 30, 1992 | (Respondent) Notice of Cancellation of Deposition filed. |
| Nov. 25, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Nov. 25, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Nov. 24, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Nov. 13, 1992 | CASE STATUS: Hearing Held. |
| Nov. 10, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Nov. 04, 1992 | (Respondent) Notice of Service of Supplemental Answers to Interrogatories filed. |
| Oct. 29, 1992 | Prehearing Stipulation filed. |
| Oct. 29, 1992 | (Respondent) Notice of Filing; Deposition of Reba A. Abdel-Fattah (2 Volumes TAGGED); Deposition of Melanie Cederberg ; Deposition of Susan Restich ; Deposition of Mary Palm ; Deposition of Beverly Mitchell ; Deposition o |
| Oct. 23, 1992 | (Respondent) Response to Request for Admissions; Notice of Service of Supplemental Answers to Interrogatories filed. |
| Oct. 22, 1992 | Petitioner`s Response to Respondent Rowe`s Motion to Dismiss and Motion for Judgement on Pleading filed. |
| Oct. 22, 1992 | (Respondent) Motion to Dismiss for Failure to Join Indispensable Party and Alternative Motion for Judgment on the Pleading filed. |
| Oct. 21, 1992 | Order sent out. (Petitioner`s Motion for fees and costs is taken under advisement pending the submittal of affidavits and other documentation supporting an amount for award) |
| Oct. 19, 1992 | (Respondent) Notice of Service of Supplemental Answers to Interrogatories w/Supplemental Answers to Petitioner`s First Set of Interrogatories ; Response to Request for Admissions filed. |
| Oct. 02, 1992 | Order to Show Cause Directed To Respondent Toombs sent out. (parties to show cause why this case should not be closed, must file reply within 10 days of the date of this Order) |
| Sep. 29, 1992 | CC Letter to Ronald M. Hand from David Norrell (re: Prehearing Conference) filed. |
| Sep. 21, 1992 | Subpoena Ad Testificandum & Duces Tecum w/Affidavit of Service filed. |
| Sep. 16, 1992 | Petitioner`s Motion to Require Answers to Interrogatories; Petitioner`s Request for Admissions; Notice of Service of Petitioner`s Request for Admissions filed. |
| Aug. 27, 1992 | Order sent out. (Motion granted, Respondent Toombs shall serve responses to Petitioners first set of interrogatories within 7 days of the date of this Order) |
| Aug. 24, 1992 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 13, 1992 | Petitioner`s Motion to Compel Discovery on Respondent Toombs filed. |
| Jul. 20, 1992 | (Respondent) Notice of Absence of Counsel From the Jurisdiction filed. |
| Jun. 22, 1992 | (Respondent) Notice of Service of Answers to Interrogatories filed. |
| Jun. 02, 1992 | Petitioner`s Response to Respondent Rowe`s Counterclaim (Motion to Dismiss) filed. |
| May 20, 1992 | Prehearing Order sent out. (parties shall file prehearing stipulation no later than 11-2-92) |
| May 20, 1992 | Notice of Hearing sent out. (hearing set for November 9-20, 1992; 9:00am; Orlando) |
| May 19, 1992 | Petitioner`s First Set of Interrogatories filed. |
| May 18, 1992 | Respondent`s First Interrogatories to Plaintiff filed. |
| May 15, 1992 | (Respondent) Answer and Affirmative Defenses to Amended Administrative Complaint and Counter Claim filed. |
| May 12, 1992 | (Petitioner) Status Report filed. |
| Apr. 30, 1992 | (Respondent) Second Election of Rights filed. |
| Apr. 23, 1992 | Order sent out. (Motion granted) |
| Apr. 22, 1992 | Petitioner`s Notice of Filing; Amended Administrative Complaint filed. |
| Apr. 07, 1992 | Order sent out. (Parties to file status report by 5-15-92) |
| Apr. 03, 1992 | Joint Motion to Abate filed. |
| Apr. 03, 1992 | Joint Motion to Amend The Administrative Complaint in DOAH Case Nos. 91-3213 and 91-6022 filed. |
| Mar. 03, 1992 | Subpoena Duces Tecum w/Affidavit of Service (3) filed. (From Kenneth E. Brooten, Jr.) |
| Feb. 20, 1992 | Subpoena Ad Testificandum w/Affidavit (6); Subpoena Duces Tecum w/Affidavit filed. (From Kenneth E. Brooten) |
| Jan. 30, 1992 | (Respondent) Notice of Taking of Deposition Duces Tecum; Notice of Taking Deposition filed. |
| Jan. 21, 1992 | Notice of Intent to Subpoena non-Party; Subp Duces Tecum (3) filed. |
| Dec. 13, 1991 | Order sent out. (RE: Respondent`s Motion for rehearing, denied). |
| Dec. 06, 1991 | Notice of Intent to Subpoena Non-Party w/Subpoena Duces Tecum filed. (From Kenneth E. Brooten, Jr.) |
| Nov. 18, 1991 | Prehearing Order sent out. |
| Nov. 18, 1991 | Order of Consolidation and Amended Notice of Hearing sent out. 91-3213, 91-5362 & 91-6022 consolidated; Hearing set for April 27 - May 1, 1992; 9:00am; Orlando. |
| Nov. 18, 1991 | Prehearing Order sent out. |
| Nov. 08, 1991 | (Respondent) Motion for Rehearing filed. |
| Nov. 05, 1991 | Petitioner`s Motion to Consolidate and Petitioner`s Motion to Reset Formal Hearing filed. |
| Nov. 04, 1991 | (Respondent) CC Supplemental Answer - Affirmative Defenses filed. |
| Oct. 30, 1991 | Order sent out. (RE: Respondent`s Motion to Strike and to Dismiss, denied). |
| Oct. 08, 1991 | (DPR) Notice of Appearance as Co-Counsel filed. |
| Oct. 04, 1991 | Petitioner`s Response to Respondent`s Motion to Strike filed. |
| Oct. 04, 1991 | Petitioner`s Response to Respondent`s Motion to Dismiss filed. |
| Oct. 02, 1991 | Order of Consolidation sent out. 91-3213 & 91-6022 consolidated. |
| Sep. 27, 1991 | Letter to MWC & Mr. Peacock from K. Brooten, Jr. (Re: Case Management Conference); Answer - Motion to Strike - Motion to Dismiss and Affirmative Defenses filed. |
| Sep. 24, 1991 | Letter to Parties of Record from MWC (Re: Consolidating Cases) sent out. |
| Sep. 20, 1991 | Petitioner`s Response to Respondent`s Motion to Consolidate filed. (From Albert Peacock) |
| Sep. 16, 1991 | (Respondent) Motion to Consolidate filed. |
| Sep. 16, 1991 | (Respondent) Notice to Produce filed. |
| Sep. 16, 1991 | (Respondent) Notice of Appearance filed. (from Kenneth Brooten, Jr.) |
| Sep. 03, 1991 | (Respondent) Answers to Interrogatories filed. |
| Sep. 03, 1991 | (Respondent) Response to Request for Admissions filed. |
| Aug. 29, 1991 | Order and Amended Notice of Hearing sent out. (Hearing set for Dec. 9-13, 1991; 9:00am; Orlando). |
| Aug. 26, 1991 | (Respondent) Motion for Continuance and Leave to File Answer and Affirmative Defenses; Notice of Appearance; Notice to Produce filed. (From Kenneth E. Brooten, Jr.) |
| Aug. 07, 1991 | Petitioner`s Notice of Filing filed. (From Albert Peacock) |
| Jun. 20, 1991 | Notice of Hearing sent out. (hearing set for Oct. 9-11, 1991: 9:00 am: Orlando) |
| Jun. 12, 1991 | Petitioner`s Response to Hearing Officer`s Initial Order filed. (From Albert Peacock) |
| May 30, 1991 | Initial Order issued. |
| May 23, 1991 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 11, 1994 | Agency Final Order | |
| Apr. 02, 1993 | Recommended Order | Various charges related to diagnosis and treatment of TMJ patients not supported by evidence. Records missing-can't support claim of inadequate records. |
