vs. )
Respondent. )
Case No. 03-0947PL
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this proceeding on May 29 and 30, 2003, in Sarasota, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Respondent: Christopher J. Schulte, Esquire
Burton, Schulte, Weekley, Hoeler & Robbins, P.A.
The issue for determination is whether Respondent violated Subsection 466.028(1)(x), Florida Statutes (1996), in connection with his treatment of one patient.
On March 19, 2003, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.
At the hearing, Petitioner presented the testimony of six witnesses and submitted five exhibits for admission into evidence. Respondent testified in his own behalf and offered the testimony of two witnesses, including one witness whose testimony was offered by deposition transcript.
The identity of the witnesses and exhibits and any attendant rulings are set forth in the Transcript of the hearing filed on June 26, 2003. On July 9, 2003, Petitioner filed its uncontested Motion for Extension of Filing Proposed Recommended Orders. By Order dated July 11, 2003, the ALJ granted the request. The parties timely filed their Proposed Recommended Orders (PROs) on July 28, 2003.
(References to statutory sections and chapters are to Florida Statutes (1996)).
Petitioner is the state agency responsible for regulating the practice of dentistry in Florida pursuant to Section 20.43 and Chapters 456 and 466. Respondent is licensed to practice dentistry in Florida pursuant to license number DN12561.
Respondent is a general dentist. Respondent practices dentistry in Englewood, Florida. Respondent has never had any disciplinary action taken against his dental license and has never been sued for malpractice.
Patient J.N. first presented to Respondent for a problem-focused visit on January 28, 1997. A problem-focused visit is directed to a specific complaint. J.N. complained of a crown causing an intermittent toothache. Another dentist had placed the crown approximately one year earlier.
J.N. brought X-rays done by the other dentist with her to Respondent's office. The X-rays had been taken approximately two months earlier. Respondent reviewed the prior X-rays and also took X-rays of J.N.'s problematic tooth, Tooth 2. The
X-rays revealed that the tooth was badly decayed under the crown.
The same area of Tooth 2 is evidenced on November 12, 1997, in bite wing X-rays taken by J.N.'s previous dentist. The X-rays revealed no caries or decay in Tooth 2. The X-rays taken in January 1997 by Respondent show deep decay on the mesial aspect of Tooth 2. Respondent determined that Tooth 2 was
non-restorable and referred J.N. to a specialist for extraction.
J.N. returned to Respondent's office seven months later on August 12, 1997, to have her teeth cleaned. Respondent examined J.N. and identified Tooth 3 as broken and Tooth 18 as
decayed. J.N. also had generalized bleeding that indicated inflammation of her gums. Respondent recommended crowns for Teeth 3 and 18 and better oral hygiene.
J.N. had poor oral hygiene, and the tooth cleaning was not completed. J.N. is a long time smoker.
On August 12, 1997, Respondent's office scheduled J.N. for a follow-up appointment on August 27, 1997, to complete the cleaning of her teeth. However, J.N. cancelled the appointment after the scheduled appointment time and returned for a follow- up cleaning more than one month later on September 30, 1997.
On September 30, 1997, J.N.'s poor oral hygiene had allowed so much build-up that the hygienist had to begin the cleaning anew. The hygienist recommended a shorter four-month recall for cleanings. J.N. returned to Respondent's office for a cleaning 17 months later on April 20, 1999.
At the cleaning visit on April 20, 1999, the hygienist noted moderate gingivitis in all areas and recurrent decay in Teeth 11 and 15. J.N. expressed only cosmetic concerns. At J.N.'s request, Respondent placed a composite filling on
Tooth 11. The hygienist again recommended more frequent cleanings at four-month intervals.
Six weeks later, on June 8, 1999, J.N. presented on an emergency basis for pain in Tooth 15. The tooth had deteriorated due to fracture and decay to the point that
aggressive measures were needed to salvage the tooth. Respondent performed a direct pulp cap because the decay had advanced to the nerve. Respondent advised J.N. that J.N. would need a root canal. J.N. stated she would have the tooth extracted instead because she did not want to pay for a root canal. Respondent successfully completed a core build-up and crown on Tooth 15.
J.N. presented at Respondent's office on October 25, 1999, for a cleaning visit. A four-month interval had been recommended, but J.N. returned for a cleaning in six months. At this visit, some calculus was noted, along with plaque and generalized irritation, but no significant pocketing. Respondent's office scheduled J.N. for a six-month follow-up appointment.
On November 11, 1999, Petitioner presented to Respondent's office for a problem-focused visit. Tooth 18 had decay that had advanced between the roots. Respondent placed a filling on Tooth 18, at no cost, in an attempt to salvage the tooth.
Respondent had previously given Petitioner an estimate for a crown on Tooth 18 back in August 1997. Respondent told
J.N. that the tooth may require extraction if it became symptomatic. J.N. failed to follow through with the treatment recommended for Tooth 18 in August 1997 and, instead, allowed
her tooth to further deteriorate. An oral surgeon extracted Tooth 18.
J.N. once again failed to return for her regular cleaning on the scheduled six-month interval. Instead, she did not return for a cleaning visit until August 3, 2000, ten months after her previous cleaning on October 25, 1999. The cleaning visit on August 3, 2000, was the first time the hygienist noted pocketing that exceeded normal limits. She noted significant pocketing in Teeth 6, 7, and 27. Two new X-rays were taken because it had been one year since the last X-rays. Oral hygiene instructions were given, as they had been at every hygiene appointment, with special attention to be paid by J.N. to the areas of newly appearing pockets. J.N. was warned that continued noncompliance with home care and resulting deterioration in her periodontal status would necessitate a referral to the periodontist. A follow-up appointment was given for six months.
J.N. returned for a cleaning visit on February 8, 2001. The hygienist noted a slight increase in pocketing in Tooth 6. The pocketing noted in the other teeth at the August 3, 2000, visit remained unchanged.
Respondent's hygienist advised J.N. on February 8, 2001, that if problems were not resolved at the next appointment, Respondent would refer J.N. to a periodontist.
J.N.'s response to the hygienist was that Tooth 6 was at the side of her mouth where J.N. placed her cigarette and that J.N. would try to smoke on the other corner of her mouth. Decay was again noted in several areas, of which Teeth 4 and 21 were the most serious, and Respondent recommended appropriate treatment.
On March 8, 2001, J.N. presented to Respondent to complain about the cosmetics of a facial composite on Tooth 11 placed two years before. J.N. was not concerned about the decayed teeth for which treatment had been planned.
Respondent advised J.N. that she should be concerned about her continuous recurrent decay and advancing periodontal disease. Respondent prescribed a fluoride mouth rinse to help combat these conditions. Respondent also referred J.N. to the periodontist that J.N.'s husband had been seeing.
Respondent discussed the need for J.N. to see a specialist because Respondent had done all that he could do in the face of her noncompliance. Respondent cautioned J.N. that if she wanted to save her remaining teeth she needed to seek out the specialist's help as soon as possible.
The care and treatment of J.N. by Respondent satisfied the applicable standard of care. J.N.'s willful noncompliance with recommended treatment and care limited the effect of the care provided by Respondent. Respondent referred J.N. to
appropriate specialists when J.N.'s condition warranted the referral, but J.N. did not follow the recommendations.
J.N. did not follow the four-month cleaning intervals recommended by Respondent and Respondent's hygienist. J.N. did not keep regular cleaning appointments made by Respondent's office. J.N. presented for cleaning of her teeth at intervals of six months, 10 months, and 17 months.
J.N. also failed to follow through with the treatment recommended by the periodontist. J.N. failed to attend phases two and three of the prescribed periodontal treatment. In addition, J.N. failed to present for alternating six-month periodontal cleanings.
Respondent did not perform a comprehensive dental examination of J.N. on any single visit and did not charge J.N. for such an examination on a single visit. A comprehensive dental examination includes a soft-tissue examination, a temperomandibular joint evaluation, and a full-mouth series of X-rays. Over the course of Respondent's cumulative treatment of J.N., however, Respondent performed a full-mouth series of
X-rays.
The applicable standard of care did not require Respondent to perform a soft-tissue examination and temperomandibular joint evaluation. J.N. never complained of
any soft-tissue related symptoms or temperomandibular joint symptoms. Such an examination and evaluation was not necessary.
Respondent performed periodontal probing and charting for J.N. Respondent's hygienist properly examined J.N. on every cleaning visit with J.N. to determine the presence of pocketing. Respondent's office protocol is to chart only those pocket depths that exceed normal depths of one to four millimeters. When the hygienist noted abnormal pocket depths in August 2000, she charted the pocketing and created a record of the abnormal periodontal status. The applicable standard of care does not require normal findings to be charted and does not prescribe a specific format for periodontal charting. The periodontal documentation completed by Respondent's office adequately and accurately documents J.N.'s periodontal status.
The evidence is less than clear and convincing that abnormal pocketing existed prior to August 2000 or that periodontal charting was not performed. The contrary assumptions of Petitioner's expert lack evidential foundation and support. Petitioner's expert also cannot testify within a reasonable degree of dental probability when J.N.'s periodontal disease began.
The testimony of Respondent's expert was credible and persuasive. J.N. experienced episodic bone loss, likely associated with diet noncompliance, smoking, poor oral hygiene,
and stress. Episodic bone loss can occur in less than two weeks. One example of a stressful event would be involvement in litigation. J.N. did experience a stressful event in May 2000. This event did lead to litigation.
In May 2000, a patient under J.N.'s care at an area nursing home suffered more than 1,000 ant bites and died. In January 2001, J.N. and her employer were sued for this event. The State of Florida conducted an investigation of the event. The litigation subsequently settled out of court.
The deterioration in J.N.'s dental condition, as documented in the Respondent's chart, coincided contemporaneously with the litigation that involved J.N. Up to that point, Respondent's records for J.N. indicate that despite J.N.'s lack of regular follow-up, her condition was being maintained, at least up to J.N.'s cleaning visit on August 3, 2000. At that visit, periodontal probing identified pocketing that exceeded normal limits. After that point, J.N.'s dental condition rapidly deteriorated.
The evidence is less than clear and convincing that Respondent violated Subsection 466.028(1)(x) by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. In particular, the evidence is less than clear and convincing that Respondent undertook a diagnosis and treatment for which
Respondent is not qualified by training or experience; that Respondent is guilty of dental malpractice; or that Respondent failed to perform periodontal charting.
Respondent completed full-mouth radiographs of J.N. throughout his course of treatment of J.N. The evidence is less than clear and convincing that Respondent failed to: establish an appropriate treatment plan; recognize J.N.'s bone loss and overall dental condition; make appropriate and timely referrals; diagnose properly J.N. on or about February 8, 2001; or provide a proper treatment plan on February 8, 2001.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and
455.225. The parties received adequate notice of the administrative hearing.
The burden of proof is on Petitioner. Petitioner must prove by clear and convincing evidence that Respondent committed the violations alleged in the Administrative Complaint. Department of Banking and Finance v. Osborne Stern & Company, 670 So. 2d 932, 935 (Fla. 1996); Hoover v. Agency for Health Care Administration, 676 So. 2d 1380, 1382 (Fla. 3d DCA 1996).
Petitioner must prove each element required in the statutory definition of the violation by clear and convincing evidence. To be clear and convincing, evidence must be
credible. The memories of the witnesses must be clear and without confusion. The sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy that Respondent committed the specific acts and violations alleged in the Administrative Complaint. Inquiry concerning Davey, 645 So. 2d 398, 404 (Fla. 1994), citing
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Petitioner failed to satisfy its burden of proof by clear and convincing evidence. J.N. could not recall when and whether she had her teeth cleaned, and whether she underwent cleaning every four months, every six months, every 10 months, or every 17 months. J.N. could not recall whether she made her follow-up appointments as she left Respondent's office, or whether Respondent's office contacted her later to make the follow-up appointments. J.N. could not recall whether she presented to Respondent on several problem-focused visits for treatment for fractured teeth. J.N. could not recall that the periodontist had recommended three phases of treatment.
J.N. is a medical professional and knows or reasonably should know the importance of following recommendations for treatment. J.N. testified that she did not know whether missing one-and-a-half years of regular dental hygiene would impact on her general state of oral health. J.N. also testified that she had completed periodontal treatment with the periodontist. The
evidence clearly shows that J.N. did not complete periodontal treatment.
The testimony of Petitioner's expert witness is less than clear and convincing. The expert testified that J.N.'s condition necessitated an earlier referral to a periodontist for treatment, and by not referring J.N. to a periodontist, Respondent deviated from the accepted standard of care. However, Petitioner's expert also acknowledged that Respondent is authorized and qualified to treat periodontal disease.
When asked what it was about J.N.'s condition that required referral to a periodontist, Petitioner's expert testified that it was J.N.'s entire health history. When asked if there was a specific condition that supported his opinion that Respondent should have referred J.N. to a periodontist earlier, Petitioner's expert testified that one of the factors was the rapid onset of caries (decay) in the two-month period from November 1997 to January 1998. However, Petitioner's expert had earlier testified that caries could not develop in such a short period or even in a five-month period. Petitioner's expert also testified, and issued a written opinion, that he could not determine the presence or progression of caries from X-rays taken in November 1997 and January 1998.
Petitioner's expert also testified that another factor necessitating an earlier referral to a periodontist was the
presence of pockets that are associated with periodontal disease. However, Petitioner's expert testified that he could only assume that pockets existed prior to August 2000. The opinions of Petitioner's expert are not supported by competent and substantial evidence in the record.
The Administrative Complaint does not charge that Respondent violated Subsection 466.028(1)(m) by failing to keep written dental records and a medical history justifying the course of treatment of the patient. The punitive action proposed to be taken against Respondent may be based only upon those offenses specifically alleged in the Administrative Complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Chrysler v. Department of Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993).
Petitioner presented the billing records from Respondent's office for J.N. The failure to maintain accurate patient billing and payment records is not a violation of Subsection 466.028(1)(m). The amounts the patients are billed and the amounts they pay are not matters which must be included in the records that Section 466.028 requires a licensee to maintain. Respondent satisfied Subsection 466.028(1)(m) by maintaining records that give neutral third parties a reasonably clear understanding of what Respondent did to treat J.N. and the circumstances justifying the course of treatment.
Subsection 466.028(1)(x) is penal in nature and must be strictly construed against the authorization of discipline and in favor of the licensee. Loeffler v. Florida Department of Business and Professional Regulation, 739 So. 2d 150, 152 (Fla. 1st 1999); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990).
RECOMMENDED that the Board of Dentistry enter a final order finding Respondent not guilty of violating Subsection 466.028(1)(x) and dismissing the Administrative Complaint.
DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2003.
Christopher J. Schulte, Esquire Burton, Schulte, Weekley,
Hoeler & Robbins, P.A. Post Office Box 1772 Tampa, Florida 33601-1772
William W. Large, General Counsel Department of Health
William H. Buckhalt, Executive Director Board of Dentistry
R. S. Power, Agency Clerk Department of Health
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
