STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 97-3355

) THOMAS E. WORSTER, D.D.S., )

)

Respondent. )

_____________________________) DEPARTMENT OF HEALTH, BOARD ) OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 97-3356

) THOMAS E. WORSTER, D.D.S., )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on July 22, 1998. At the request of the parties, the Administrative Law Judge left the record through January 18, 1999, for the presentation of additional evidence.

APPEARANCES

For Petitioner: Thomas E. Wright

Senior Attorney

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: E. Raymond Shope, II

1404 Goodlette Road, North Naples, Florida 34102

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of incompetence or negligence and failing to keep adequate dental records and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

In Case No. 97-3355, the Administrative Complaint dated April 29, 1997, alleges that, on February 13, 1992, patient M.

D. presented to Respondent with the complaint of a loose dental bridge. The Administrative Complaint alleges that Respondent took one Panorex x-ray of M. D. and recommended a new bridge for teeth numbers 3, 4, and 5 with support by post and core restorations of teeth numbers 3 and 5. The Administrative Complaint alleges that Respondent delivered the bridge to M. D. on March 13, 1992.

The Administrative Complaint alleges that M. D. presented to another dentist and complained of pain in teeth numbers 3, 4, and 5. The dentist allegedly diagnosed an acute periodontal abscess in tooth number 3, discovered a post perforation of the mesial surface of the root of tooth number 5, and determined that the perforation caused the failure of the restoration installed by Respondent.

The Administrative Complaint alleges that the perforation was "readably discoverable" when it occurred, when Respondent delivered the post and core restorations, and when Respondent delivered the fixed bridge.

The Administrative Complaint alleges that Respondent's patient records fail to document even a cursory evaluation of the oral structures involved in the construction of the new bridge, fail to indicate the techniques Respondent used to fabricate the post and core restoration in teeth numbers 3 and 4, and failed to record the removal of the pre-existing post and core in tooth number 3.

The Administrative Complaint alleges that the x-ray was unsuitable because of a bifurcation involvement, possible caries of the bifurcation root surfaces, and probably mesial caries beneath the pre-existing cast restoration. The Administrative Complaint alleges that the x-ray findings should have resulted in further diagnostic evaluation.

Based on these allegations, the Administrative Complaint alleges that Respondent violated Section 466.028(1)(m), Florida Statutes, by failing to keep dental records, such as patient histories, examination results, test results, and any x-rays, justifying the course of treatment, and Section 466.028(1)(x), Florida Statutes, by being guilty of incompetence or negligence through failing to meet the minimum

standards of performance in diagnosis and treatment, as measured against generally prevailing peer performance.

In Case No. 97-3356, the Administrative Complaint alleges that Respondent provided dental services to S. T. from March 1992 through May 1993. The Administrative Complaint alleges that S. T. presented to Respondent for examination on March 30, 1992. According to the Administrative Complaint, the patient records indicate that S. T. probably had a endodontic/periodontal condition and required x-rays and a treatment plan/evaluation. Respondent allegedly prescribed pain medication following the receipt of a telephone call from

1. T.'s husband relating her complaints of pain.

   
   

   The Administrative Complaint alleges that S. T. presented to Respondent for another examination on April 3, 1992. The examination allegedly revealed that S. T. needed a root canal for teeth numbers 3 and 4. The Administrative Complaint alleges that Respondent performed a root canal on these teeth on April 10, 1992, and that he completed the root canal on tooth number 4 on April 17, 1992, and tooth number 3 on May

   22, 1992.

   
   

   The Administrative Complaint alleges that Respondent prepared teeth numbers 3, 4, and 5 for crowns on September 24, 1992. Respondent allegedly placed the crowns on the three

   teeth on October 8, 1992, and noted in his records to replace the crown on tooth number 5, if necessary.

   The Administrative Complaint alleges that, on April 9, 1993, an unidentified person conducted a periodontal examination and charting of S. T. after placement of the permanent crowns. S. T. allegedly left Fort Myers Dental Services in May 1993.

   The Administrative Complaint alleges that S. T. presented to another dentist, on November 1, 1993, for consultation and examination. The examination allegedly revealed the following deficiencies in unidentified crowns: very poorly fit, open contacts, and puffy and inflamed tissues.

   The Administrative Complaint alleges that S. T. had periodontal disease prior to the commencement of treatment in April 1992. The Administrative Complaint alleges that Respondent placed permanent crowns on periodontally compromised teeth and failed to provide proper endodontic treatment because the filling fell short of the apex of teeth numbers 3 and 4. For these reasons, Respondent allegedly failed to meet the minimum standard of performance in diagnosis and treatment due partly to the failure to diagnose and treat the periodontal condition prior to the placement of permanent crowns and the failure to provide proper endodontic treatment.

   Based on these allegations, the Administrative Complaint alleges that Respondent violated Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment, as measured against generally prevailing peer performance, with respect to, among other things, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience and being guilty of dental malpractice.

   At the hearing, Petitioner called two witnesses and offered into evidence Exhibits 1-22, plus the transcripts of the depositions of Drs. McKenzie and Morrow. Respondent called two witnesses and offered into evidence Exhibits 1-2, plus the transcripts of the depositions of Respondent and Dr. D'Amelio. All exhibits were admitted except Petitioner Exhibits 3-6. However, Petitioner Exhibit 17, which was added after the hearing, was omitted from the package transmitted to the Administrative Law Judge.

   Respondent objected to several items of evidence offered after the completion of the hearing. Respondent made a general objection to the deposition of Dr. McKenzie. The Administrative Law Judge granted Petitioner leave to take the deposition of

   Dr. McKenzie as a fact witness. The testimony of Dr. McKenzie conforms to the ruling, and Respondent's general objection is overruled. Respondent's remaining objections are also overruled.

   Respondent objected to the reliance of Dr. Morrow, in his deposition, upon the unauthenticated, hearsay dental records of Respondent. The Administrative Law Judge overrules this objection. However, the Administrative Law Judge sustains Respondent's objections to the records of other dentists, such as Drs. Allen and Goldin, and to parts of the investigative report not otherwise admissible. The parties stipulated to the admissibility of Respondent's records.

   FINDINGS OF FACT

   
   

   1. Respondent is a licensed dentist, holding license number DN 0010415. He has been licensed continuously in Florida since 1985, and he practices in Naples.

   2. On February 13, 1992, M. D. presented to Respondent at Kings Lake Dental Services. M. D. complained of a loose three-unit fixed bridge, which had replaced tooth number 4, using teeth numbers 3 and 5 as abutments.

   3. Respondent performed a focused emergency examination.

      
      

      He found a decaying, loose bridge that was falling apart and coming out of M. D.'s mouth; tooth number 5 was decayed and had fractured off; and tooth number three was decayed around

      the abutment crown and post. Respondent took an x-ray and found root canals on teeth numbers 3 and 5.

   4. Based on these findings, Respondent recommended to

      
      

      M. D. that he have post and cores on teeth numbers 3 and 5 and a new bridge.

   5. Respondent noted in his dental records these findings during this initial visit and the limited nature of the examination.

   6. At the time of this initial examination, Respondent determined that teeth numbers 3 and 5 could serve as abutment teeth to support the bridge for tooth number 4. His determination was correct as tooth number 5, but the record suggests that his determination was questionable as to tooth number 3. However, Petitioner failed to prove by clear and convincing evidence that the suitability determination for tooth number 3 was incompetent or negligent.

   7. On M. D.'s next visit, which took place on February 26, 1992, Respondent prepared teeth numbers 3 and 5 for the new bridge by removing the existing post and core in tooth number 3 and preparing tooth number 5 for a post and core. Respondent installed a temporary bridge during this visit.

   8. A post and core is an appliance that is cemented into a tooth that has undergone previous endodontic treatment. A post goes into the residual root, and the core replaces the

      natural crown of the tooth. The post and core can then be prepared for a crown or, as in this case, a fixed bridge. The final result resembles the placement of a peg into a tooth on which additional material is built up.

   9. On M. D.'s third visit, which took place on March 4, 1992, Respondent re-cemented the temporary bridge, which had come loose.

   10. On M. D.'s fourth and final visit, which took place on March 13, 1992, Respondent installed the permanent fixed bridge.

   11. At no time did any blood collect in M. D.'s post preparations. At no time during the post-and-core work, including during the unanaestheticized installation procedure, did M. D. experience pain.

   12. As material to this case, a perforation would result from excessive drilling in the process of preparing the tooth for the post, so as to create an extra opening into the bone. The absence of blood during the post preparation is generally inconsistent with a post perforation. The absence of pain during the ensuing installation procedure also militates against a finding that Respondent inadvertently perforated the tooth.

   13. The crucial findings on the issue whether Respondent perforated the tooth are thus the absence of blood during the

       drilling attendant to the post-and-core procedure and the absence of pain during the ensuing installation procedure. These findings are based in part on the self-serving testimony of Respondent, but also are supported by other evidence.

   14. At the time of the incident, Respondent had practiced dentistry in Florida for over six years. It is likely that he would have known that an untreated perforation would eventually cause the restorative work to fail. Respondent had treated numerous patients, presumably including seasonal Naples residents, without this issue previously arising, even though excessive-drilling perforations themselves are not that uncommon.

   15. When M. D. later contacted Respondent and complained of the dental work, he made no mention of the pain that typically would have accompanied the installation of a core over a perforated tooth.

   16. M. D. was a winter resident of Naples. Fourteen months after his final visit to Respondent, a dentist in Massachusetts discovered a perforation of the root on tooth number 5 and an acute periodontal abscess on tooth number 3.

   17. An acute periodontal abscess occurs at the end of the root and is secondary to infection involving the dental pulp in the soft tissue part of the tooth. Periodontal abscesses occur around the supporting structures of the teeth.

   18. Petitioner has failed to prove by clear and convincing evidence that Respondent perforated M. D.'s tooth. Although excessive drilling may cause a perforation, decay, a root fracture, and rampant periodontal disease may also cause perforations. Given the considerable period of time between Respondent's treatment of M. D. and the discovery of the perforation, the likelihood of decay, a root fracture, and rampant periodontal disease increases as the cause of the perforation. Given the other factors, such as lack of blood during the post procedure or pain during the core procedure, Petitioner has failed to prove by clear and convincing evidence that Respondent's treatment of M. D. was incompetent or negligent.

   19. The record provides even less basis to find by clear and convincing evidence that Respondent's work caused the periodontal abscess 14 months later.

   20. Respondent's dental records are adequate in many respects. The records adequately describe the cast post and core technique; Petitioner has failed to prove by clear and convincing evidence that the failure to distinguish between the two types of cast post and core is material in this case. Petitioner has also failed to prove by clear and convincing evidence that the records fail to provide an adequate basis

       for another dentist to infer the removal of the old post and core.

   21. The x-ray is of extremely poor quality, but it is merely a duplicate. The original is not in the record, and the record provides insufficient basis for inferring the quality of the original. Petitioner has failed to prove by clear and convincing evidence that the actual x-ray was of such poor quality as to preclude reliance upon it.

   22. Respondent's records indicate that tooth number 5 is decayed and fractured off, that tooth number 3 is decayed, and that the x-rays reveal root canals on both these teeth. While adequately documenting these findings, the records do not document Respondent's evaluation of the suitability of teeth numbers 3 and 5 to serve as abutment teeth. Nor do the records document the "moderate" periodontal disease that Respondent testified that he also observed.

   23. Respondent's restorative work eventually failed.

       
       

       The most likely cause of failure was the perforation of tooth number 5. However, fourteen months later, tooth number 3 was no longer capable of serving as an abutment tooth. By inference, its condition at the time of Respondent's decision to use it as an abutment tooth at least warranted documentation in the dental records. Similarly, the acute

       periodontal abscess also evidences the need to document Respondent's finding of moderate periodontal disease.

   24. These omissions from Respondent's dental records are material due to the questionable suitability of tooth number 3 as an abutment tooth and the subsequent development of periodontal disease. On these facts, Respondent's records fail to document a thorough evaluation of M. D.'s oral structures involved in the restorative work and his overall dental condition.

   25. In these respects, Petitioner proved by clear and convincing evidence that Respondent failed to keep adequate dental records in that they fail to justify the course of Respondent's treatment of M. D.

   26. On March 30, 1992, S. T. presented to the Fort Myers Dental Service for an abscessed tooth at tooth number 3. One of the dentists at the office, Dr. Rubin, saw S. T. He recommended full mouth x-rays and study models and prescribed pain medication and an antibiotic. The dental records contain no indication of periodontal disease at this time.

   27. The Fort Myers Dental Service maintained a system of patient referral in which Respondent or Dr. Johnson saw patients requiring endodontic treatment and other dentists saw patients requiring periodontic treatment.

   28. Following her visit, Dr. Rubin referred S. T. to Respondent for endodontic work on April 2, 1992. The x-rays had revealed lesions on teeth numbers 3 and 4, so the referral was for an evaluation for root canals.

   29. On April 3, Respondent examined S. T.'s mouth and noted buccal swelling around teeth numbers 3 and 4 and broken- down, decayed teeth at teeth numbers 3, 4, and 5. However, his examination did not reveal any periodontal disease. Respondent recommended root canals for teeth numbers 3 and 4 followed by casts, posts, and cores for teeth 3 and 4 and a porcelain fuse metal crown for tooth number 5.

   30. Respondent commenced this dental treatment on April 10, 1992. During this visit, Respondent began a root canal on tooth number 4. On April 17, Respondent completed the root canal on tooth number 4.

   31. On April 24, Respondent began a root canal on tooth number 3. On May 22, Respondent completed the root canal on tooth number 4.

   32. On September 24, 1992, Respondent prepared teeth numbers 3, 4, and 5 for crowns. On October 8, Respondent installed crowns on these teeth and posts and cores on teeth numbers 3 and 4.

   33. Fourteen months later, on December 7, 1993, S. T. was examined by Dr. William McKenzie, a periodontist who

       practiced 33 years, primarily in Fort Myers, until his retirement prior to the hearing in this case. A general dentist in Fort Myers had referred S. T. to him.

   34. At the time of his examination, Dr. McKenzie found poorly fitting crowns on teeth numbers 3, 4, and 5 and open contacts between teeth numbers 2 and 3, 3 and 4, 4 and 5, and

       5 and 6.

       
       

   35. In general, S. T.'s dental health was good, except for the area in which Respondent had worked. In this area, S. T.'s gums bled profusely upon probing by Dr. McKenzie.

   36. In part, Petitioner tried to prove that Respondent improperly proceeded with endodontic treatment despite unresolved periodontic problems. However, the record fails to sustain this allegation.

   37. To the contrary, as Dr. McKenzie testified, the poor-fitting and gapped crowns caused the periodontal condition that Dr. McKenzie encountered. The open contacts, which allowed food to pack between the teeth, led to infection, which caused the inflammatory process in the gums and bone deterioration that Dr. McKenzie also discovered in this area of S. T.'s mouth. As to the fit of the crowns, Dr. McKenzie described it as "horrible" and work of which a "freshman dental student" was capable.

   38. Petitioner proved by clear and convincing evidence that Respondent failed to meet the minimum standards of performance and treatment when measured against generally prevailing peer performance in the treatment of S. T.

       CONCLUSIONS OF LAW

       
       

   39. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

   40. Section 466.028(1)(y) (1991) and Section 466.028(1)(x) (1993) provide that the Board of Dentistry may impose discipline if a dentist is guilty of incompetence or negligence by failing to meet the minimum standards of performance and treatment when measured against generally prevailing peer performance.

   41. Section 466.028(1)(m) provides that the Board of Dentistry may impose discipline if a dentist fails to keep written records justifying the course of treatment.

   42. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   43. Petitioner has not proved by clear and convincing evidence that Respondent's treatment of M. D. was incompetent or negligent.

   44. However, Petitioner has proved by clear and convincing evidence that, as provided by the relevant statutes, Respondent failed to keep adequate dental records for M. D. and committed incompetence or negligence in the treatment of S. T.

   45. Rule 64B5-13.005(3)(p) provides that probation is the usual penalty for failing to keep adequate records.

   46. Rule 64B5-13.005(3)(cc) provides that a period of probation, restriction of practice, and/or suspension is the usual penalty for incompetence or negligence.

   47. Probation is appropriate for the case involving M.

D. However, probation is insufficient for the case involving

S. T. The penalty for this incompetence and negligence should be six months' suspension, followed by an additional period of probation.

RECOMMENDATION

It is

RECOMMENDED that the Board of Dentistry enter a final order suspending Respondent's license for six months and, following the expiration of the suspension, placing the license on probation for a period of 12 months.

DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida.

___________________________________ ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999.

COPIES FURNISHED:

Thomas E. Wright Senior Attorney

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

E. Raymond Shope, II

1404 Goodlette Road, North Naples, Florida 34102

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Bill Buckhalt, Executive Director Board of Dentistry

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-003355

Orders for Case No: 97-003355