STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, BOARD )
OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 94-5812
)
JUAN R. RIOS, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on August 17, 1995, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Natalie Duguid, Esquire
Agency for Health Care Administration 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Juan R. Rios, D.D.S, pro se
980 Malaga Avenue
Coral Gables, Florida 33134 STATEMENT OF THE ISSUES
Whether Respondent committed the violation of former Section 466.028(1)(y), Florida Statutes, alleged in the Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On December 3, 1993, an Administrative Complaint was issued against Respondent, a Florida-licensed dentist, alleging that, in connection with his care and treatment of Patient E.L., he violated former Section 466.028(1)(y)(renumbered Section 466.028(1)(x)), Florida Statutes, "by 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." According to paragraphs 16 and 17 of the Administrative Complaint:
Respondent failed to provide adequate bridge work due, in part, but not limited to the poor fit, condition of patient's teeth, loosening of bridge and poor treatment planning.
Respondent failed to meet the minimum standard of performance in diagnosis and treatment of patient, due, in part, but not limited to the fabrication of inadequate bridge work, which did not fit properly, required continual recementation and subsequently had to be redone.
The Administrative Complaint indicated that the imposition of one or more of the following penalties was being sought: "permanent revocation or suspension 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."
Respondent denied the allegations of wrongdoing made against him in the Administrative Complaint and requested a formal hearing. On October 13, 1994, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.
At the hearing, which was held on August 17, 1995, 1/ the Agency for Health Care Administration (hereinafter referred to as the "Agency") presented the testimony of two witnesses, Dr. Thomas Ward and Dr. Arnold Mannis, both of whom are dentists practicing general dentistry. The former was a fact witness. The latter gave expert opinion testimony. 2/ In addition to the testimony of these two witnesses, the Agency offered, and the Hearing Officer received, five exhibits (Petitioner's Exhibits 1 through 5) into evidence. Respondent testified on his own behalf. He also offered eight exhibits (Respondent's Exhibits 1 through 8) into evidence. The Hearing Officer received all eight of Respondent's exhibits into evidence.
The deadline for the filing of post-hearing submittals was originally set at 15 days from the date of the Hearing Officer's receipt of the transcript of the final hearing. The Hearing Officer received the hearing transcript on August 31, 1995. On September 6, 1995, the Agency filed a motion requesting an extension of the deadline. By order issued September 7, 1995, the motion was granted and the deadline for the submission of post-hearing submittals was extended to September 18, 1995. The Agency and Respondent timely filed proposed recommended orders on September 13, 1995, and September 15, 1995, respectively.
The parties recommended orders have been carefully considered by the Hearing Officer. Respondent's proposed recommended order consists exclusively of argument. The Agency's proposed recommended order, on the other hand, contains, among other things, what have been labelled as, "findings of fact." These proposed "findings of fact" are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The Agency is a state government licensing and regulatory agency.
Respondent is now, and has been since December 31, 1973, a dentist licensed to practice dentistry in the State of Florida.
His license number is DN 0005300.
E.L. is a 70-year old man.
He has had extensive dental work done for him by various dentists over the years.
Respondent is among the dentists who have treated E.L.
E.L. first presented to Respondent in 1977.
He made subsequent visits to Respondent's office, but he also went to other dentists for treatment.
In June of 1989, E.L. was seen by Dr. John Fishman, a periodontist. He was referred to Dr. Fishman by Respondent.
Dr. Fishman noted in his records of E.L.'s initial visit that E.L. had "extensive, rampant subgingival decay," E.L.'s gums were "severely hypertrophic" possibly as the result of medication he was taking 3/ and the prognosis for teeth number 3, number 5, number 12, number 13, number 15 and number 31 was "guarded."
Dr. Fishman established a treatment plan to treat E.L.'s periodontal disease. The plan had three components: "review oral hygiene" with E.L.; "temporization [of the] upper/lower [arches]" in conjunction with "caries control;" and "periodontal surgery."
E.L. received treatment in accordance with the plan.
He remained under Dr. Fishman's care, receiving periodontal therapy, until July of 1992.
After not having been seen by Respondent for a period of time, E.L., while still under Dr. Fishman's care, returned to Respondent's office in or about September of 1990, more than a year after he had first started receiving periodontal therapy from Dr. Fishman.
From approximately September of 1990, to April of 1992 (hereinafter referred to as the "treatment period"), Respondent provided dental services to E.L.
Such services included root canal therapy and crown and bridge work.
At the time he provided such services, Respondent was familiar with E.L.'s medical and dental history. 4/
Respondent consulted with Dr. Fishman throughout the treatment period.
The dental services Respondent provided E.L. during this period were provided in accordance with Dr. Fishman's suggestions, recommendations and requests.
Before rendering such services, Respondent went over with E.L. the treatment plan that had been devised, with Dr. Fishman's input, for E.L.
Respondent advised E.L. that E.L. was cavity-prone and that it was critical to the success of the treatment plan that E.L. practice good oral hygiene.
In addition, to supplement the training E.L. had received from Dr. Fishman, Respondent reviewed with E.L. proper oral hygiene techniques.
On or about January 15, 1991, Respondent prepared E.L.'s teeth number
3 through number 14 for an upper fixed bridge. Before doing so, Respondent did not take full-mouth x-rays of E.L. inasmuch as E.L. had told him that another dentist, Dr. Caesar Sabates, had taken such x-rays two or three months earlier. Instead, Respondent relied on information Dr. Fishman provided him. 5/
On or about February 13, 1991, Respondent temporarily cemented the upper fixed bridge. The bridge was temporarily, rather than permanently, cemented in accordance with Dr. Fishman's request. Dr. Fishman wanted to be able to remove the bridge in the event it was necessary to do so to facilitate E.L.'s periodontal therapy.
On or about May 13, 1991, Respondent extracted E.L.'s tooth number 14 and recemented (again temporarily) the bridge. Respondent noted during this visit that the gums in the area of tooth number 4 were in "very poor condition."
On or about June 4, 1991, Respondent removed the bridge to initiate root canal therapy on E.L.'s tooth number 10.
About one week later he recemented (again temporarily) the bridge.
On or about July 10, 1991, Respondent noted that E.L. had several cervical cavities.
On or about July 30, 1991, Respondent prepared E.L.'s teeth number 29 and number 30 for crowns.
On or about August 6, 1991, Respondent performed restorations on E.L.'s teeth number 22, number 23, number 25 and number 27.
On or about August 15, 1991, Respondent cemented splinted crowns on E.L.'s teeth number 29 and number 30.
On or about August 26, 1991, E.L.'s upper fixed bridge was removed due to looseness and Respondent made impressions for a temporary bridge.
On several occasions during the treatment period, Respondent had to reline and recement (temporarily) E.L.'s upper fixed bridge due to its poor fit. 6/
On or about August 3, 1992, pursuant to the instructions of his attorney, E.L. presented to another dentist, Dr. Thomas Ward, for examination. Dr. Ward's examination revealed that teeth number 4, number 7, number 13 and number 14 were missing and that there were open margins 7/ at teeth number 3, number 5, number 8, number 9,, number 10, number 11 and number 12.
CONCLUSIONS OF LAW
The Board of Dentistry (hereinafter referred to as the "Board") is statutorily empowered to take disciplinary action against a dentist licensed to
practice medicine in the State of Florida based upon any of the grounds enumerated in Section 466.028(1), Florida Statutes.
Where the disciplinary action sought is the revocation or suspension of the dentist's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "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." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Where the discipline sought does not involve the loss of licensure, the dentist's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).
Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Klein
v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,
501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
The Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of E.L., Respondent violated former Section 466.028(1)(y) (renumbered Section 466.028(1)(x)), Florida Statutes, "by 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." More specifically, the Administrative Complaint charges that "Respondent failed to provide adequate bridge work due, in part, but not limited to the poor fit, condition of patient's teeth, loosening of bridge and poor treatment planning" and that he "failed to meet the minimum standard of performance in diagnosis and treatment of the patient, due, in part, but not limited to the fabrication of inadequate bridge work, which did not fit properly, required continual recementation and subsequently had to be redone."
The Agency had the burden of proving Respondent's guilt of this violation of former Section 466.028(1)(y), Florida Statutes, by clear and convincing evidence, rather than by a preponderance of the evidence, inasmuch as the Administrative Complaint seeks, among other penalties, the revocation or suspension of Respondent's license to practice dentistry.
At all times material to the instant case, former subsection (1)(y) of Section 466.028, Florida Statutes, authorized the taking of disciplinary action against a Florida-licensed dentist for "[b]eing guilty of incompetence or negligence by failing to meet 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."
While it is undisputed that, on several occasions during the treatment period, Respondent had to reline and recement (temporarily) E.L.'s upper fixed bridge due to its looseness and poor fit, the Agency has not clearly and convincingly established that, in the planning or fabrication of the bridge or in any other way alleged in the Administrative Complaint, 8/ Respondent failed to meet "minimum standards of performance . . . when measured against generally prevailing peer performance" in connection with his care and treatment of E.L. 9/ The Agency did present evidence, in the form of the expert testimony of Dr. Mannis, that there was such a failure on Respondent's part. Such evidence, however, when viewed in light of the other evidence adduced at hearing, including, most significantly, Respondent's own testimony, 10/ has not produced in the mind of the Hearing Officer "a firm belief or conviction, without hesitancy, as to the truth of the allegations" of wrongdoing made against Respondent in the Administrative Complaint. 11/
Because the Agency has failed to prove the allegations made against Respondent in the Administrative Complaint by clear and convincing evidence (that is, by evidence "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"), the Administrative Complaint should be dismissed. 12/
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Board of Dentistry enter a final order dismissing the Administrative Complaint issued against Respondent.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of September, 1995.
STUART M. LERNER
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 21st day of September, 1995.
ENDNOTES
1/ The hearing was originally scheduled to commence on April 25, 1995, but was continued at Petitioner's request.
2/ Dr. Mannis is currently employed by Miami Children's Hospital as the director of its general practice residency program for dentists. His duties include facilitating treatment, planning seminars and exposing dentists on staff to post-doctoral education.
3/ E.L. had a hypertensive condition for which he was taking medication. The medication, Dr. Fishman believed, induced the growth of gingival tissue, which, in turn, created an environment conducive to the production of calculus.
4/ Respondent obtained certain medical information about E.L. from E.L.'s wife, who was also a patient of Respondent's.
5/ It was Respondent's understanding that Dr. Fishman had had the benefit of viewing the full-mouth x-rays taken by Dr. Sabates.
6/ E.L. first complained about the poor fit of the upper fixed bridge two months after receiving the bridge.
7/ The margin is where the crown and tooth interface. When the margins are open, decay may form under the crown. Such decay cannot be detected by x-rays.
8/ In its proposed recommended order, the Agency contends, among other things, that Respondent "failed to meet the appropriate standard of care in the treatment of patient E.L. by . . . failing to obtain appropriate patient consent." The Administrative Complaint, however, does not contain any allegations regarding "appropriate patient consent." Accordingly, the Board may not take any disciplinary action against Respondent in this proceeding for having "failed to obtain appropriate patient consent."
9/ That a bridge is loose or otherwise fits poorly does not necessarily mean that the treating dentist has failed to meet "minimum standards of performance .
. . when measured against generally prevailing peer performance."
10/ Respondent testified in his defense as both a fact and expert witness. Of particular significance to the Hearing Officer is that portion of Respondent's testimony where, in response to Dr. Mannis' criticism of his having provided restorative treatment while E.L. was still under the periodontal care of Dr.
Fishman, Respondent explained how he relied upon Dr. Fishman's guidance in providing such treatment and opined that, under such circumstances, he did not breach any applicable "minimum standards of performance." Notwithstanding its self-serving nature, the exculpatory testimony of a respondent, like that given by Respondent in the instant case, may be considered and relied upon as competent substantial evidence, even if it is uncorroborated and contrary to the evidence adduced by the licensing agency. See Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993)("[i]t would be an anomalous situation indeed if the testimony of the one against whom a complaint is lodged could never form the basis for competent substantial evidence"); Florida Publishing Company v. Copeland, 89 So.2d 18, 20 (Fla. 1956)("[t]here is no doubt that the testimony of the plaintiff, although uncorroborated, ' . . . if reasonable on its face, and believed and accepted by the jury as true can carry the burden of proof'"); Martuccio v. Department of Professional Regulation, Board of Optometry, 622
So.2d 607, 609-10 (Fla. 1st DCA 1993)(expert testimony of applicant for licensure was not incompetent and could be relied upon "as competent substantial evidence to support [hearing officer's] conclusions"); Raheb v. Di Battisto,
483 So.2d 475, 476 (Fla. 3d DCA 1986)("[w]e are not persuaded, as urged, that the testimony of the plaintiff . . . should have been rejected by the trial court as inherently incredible; it was the trial court's function, not ours, to weigh the testimony and evidence adduced in the cause based on its observation of the bearing, demeanor, and credibility of the witnesses appearing in the cause").
11/ Dr. Mannis' expert opinion was based upon incomplete factual information inasmuch as he relied exclusively upon the information that he was able to glean from his review of Respondent's and Dr. Fishman's records and, at the time he testified, he did not have the benefit of the testimony Respondent later gave which clarified and supplemented the information contained in these records.
"An expert's opinion which is based on an . . . incomplete hypothetical cannot constitute competent substantial evidence." Sabre Marine v. Feliciano, 461 So.2d 985, 987-88 (Fla. 1st DCA 1984).
12/ Respondent is charged with the failure to meet "minimum standards of performance" in violation of former Section 466.028(1)(y), Florida Statutes, not with inadequate recordkeeping in violation of Section 466.028(1)(m), Florida Statutes. Accordingly, the inadequacy of Respondent's records concerning his care and treatment of E.L. is not a basis upon which the Board may discipline Respondent in the instant case.
APPENDIX TO RECOMMENDED ORDER
The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Agency in its proposed recommended order:
1-16. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the case.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact. See T.S. v. Department of Health and Rehabilitative Services, 20 FLW D1200 (Fla. 1st DCA May 16, 1995)("Hearing Officer's "factual findings" which "merely summarize[d] the testimony of witnesses" were "insufficient").
To the extent that this proposed finding states that Respondent "failed to meet the appropriate standard of care in the treatment of patient
E.L. by . . . failing to obtain appropriate patient consent," it has been rejected because it is beyond the scope of the allegations made against Respondent in the Administrative Complaint. Otherwise, it has been rejected because it is not supported by clear and convincing evidence.
Rejected because it is beyond the scope of the allegations made against Respondent in the Administrative Complaint. (Respondent has not been charged with inadequate recordkeeping in violation of Section 466.028(1)(m), Florida Statutes.)
First sentence: Rejected because it is not supported by clear and convincing evidence; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.
Rejected because it is not supported by clear and convincing evidence.
COPIES FURNISHED:
Natalie Duguid, Esquire Agency for Health Care
Administration
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Juan R. Rios, D.D.S 980 Malaga Avenue
Coral Gables, Florida 33134
William Buckhalt, Executive Director Board of Dentistry
Agency for Health Care Administration
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jerome H. Hoffman, Esquire General Counsel
Agency for Health Care Administration
2727 Mahan Drive
Tallahassee, Florida 32308
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 of time 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 |
|---|---|
| Mar. 04, 1996 | Final Order filed. |
| Feb. 26, 1996 | Final Order filed. |
| Feb. 20, 1996 | Letter to DOAH from Juan Rios (RE: Notice of change of address) filed. |
| Sep. 21, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 8/17/95. |
| Sep. 15, 1995 | Deposition of John Fishman, D.D.S.; Letter to Natalie Duguid from Juan R. Rios, D.D.S. Re: Includes copies of excerpts from various scientific sources and other related material; Deposition w/cover letter filed. |
| Sep. 13, 1995 | Petitioner`s Proposed Recommended Order filed. |
| Sep. 07, 1995 | Order sent out. (Motion for Extension of time granted) |
| Sep. 06, 1995 | (Petitioner) Motion for Extension of Time filed. |
| Aug. 31, 1995 | Transcript of Proceeding Volume I filed. |
| Aug. 22, 1995 | Letter to Hearing Officer from Natalie Duguid Re: Exhibits filed. |
| Aug. 17, 1995 | CASE STATUS: Hearing Held. |
| May 22, 1995 | Second Notice of Hearing sent out. (hearing set for 8/17/95; 9:00am;Miami) |
| May 02, 1995 | (Petitioner) Status Report filed. |
| Apr. 21, 1995 | Order Granting Continuance and Requiring Response sent out. (hearing date to be rescheduled at a later date; parties to file status report by 5/8/95) |
| Apr. 21, 1995 | (Petitioner) Motion to Continue filed. |
| Apr. 13, 1995 | Notice of Serving Petitioner`s Request for Admissions filed. |
| Mar. 29, 1995 | Letter to Natalie Duguid from Juan R. Rios, D.D.S. Re: Rejecting offers in letter dated February 23, 1995 filed. |
| Dec. 16, 1994 | Notice of Hearing sent out. (hearing set for April 25 and 26, 1995; 10:30am; Miami) |
| Dec. 12, 1994 | (Petitioner) Joint Response to Initial Order; Notice Of Substitution Of Counsel filed. |
| Dec. 01, 1994 | Order Requiring Compliance With Initial Order sent out. |
| Nov. 02, 1994 | (Petitioner) Motion to Hold In Abeyance the Response to Initial Order filed. |
| Oct. 20, 1994 | Initial Order issued. |
| Oct. 13, 1994 | Agency referral letter; Administrative Complaint; Election of Rights;Notice of Substitution of Parties filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 16, 1996 | Agency Final Order | |
| Sep. 21, 1995 | Recommended Order | Agency failed to establish by clear and convincing evidence that dentist did not meet minimum standard of performance in connection with treatment and care of Patient. |
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs JONOTHAN ROYAL, D.D.S., 94-005812 (1994)
DEPARTMENT OF HEALTH, BOARD OF DENISTRY vs MOUNIR ALBERT, D.D.S., 94-005812 (1994)
BOARD OF DENTISTRY vs. EDWARD M. STEINBERG, 94-005812 (1994)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs PASQUALE ALMERICO, JR., D.D.S., 94-005812 (1994)
