STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY,
Petitioner,
vs.
ROBIN DIANN YOUNG, D.D.S.,
Respondent.
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) Case No. 07-3612PL
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RECOMMENDED ORDER
Notice was provided and on October 18, 2007, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2007). The hearing location was the offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing commenced at 9:00 a.m. The hearing was held before by Charles C. Adams, Administrative Law Judge.
APPEARANCES
For Petitioner: H. Wayne Mitchell, Esquire
Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Wayne D. Knight, Esquire
1277 Cedar Center Drive Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
Should discipline be imposed against Respondent's license to practice dentistry for violation of Sections 456.072(1)(r) and 466.028(1)(s), Florida Statutes (2005)?
PRELIMINARY STATEMENT
The Department of Health (DOH) charged Respondent in Case No. 2005-68279 with violations in relation to her license to practice dentistry in Florida. On July 24, 2006, the First Amended Administrative Complaint in Case No. 2005-68279 was signed. It forms the basis for the present case. The amended complaint refers to the statutory violations identified in the Statement of the Issue. The First Amended Administrative Complaint contains two counts. Count I in its operative terms alleges:
Section 466.028(1)(s), Florida Statutes, (2005), states that being unable to practice his or her profession with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition is grounds for disciplinary action by the Board of Dentistry.
Respondent has failed to comply with the requirements of the Professional's Resource Network (PRN) in one or more of the following ways:
Respondent has failed to make arrangements for her evaluation and notify the PRN staff of those arrangements;
Respondent has failed to complete specified confidentiality forms and return them to the PRN office;
Respondent has failed to respond in any way to the PRN letter dated October 19, 2005, providing instructions on making additional arrangements for required follow on evaluations; and/or
The Respondent is not compliant with the recommendations of Dr. Brown.
Because of a dentist's constant interaction with the public, mental fitness, sober thinking and decision-making ability along with emotional stability are essential traits that a dentist must possess in order to competently practice dentistry.
The Respondent's serious illness combined with her failure to communicate and comply with the recommendations of her treatment provider represents a significant likelihood that the Respondent will cause harm to patients.
Based on the foregoing, Respondent's license to practice dentistry in the State of Florida is subject to discipline pursuant to Section 466.028(1)(s), Florida Statutes (2005), for her being unable to practice her profession with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.
In pertinent part, Count II alleges:
Section 466.028(1)(ll), Florida Statutes (2005) states that the violation of any provision of Chapter 466 or Chapter 456 or any rule adopted pursuant thereto is grounds for disciplinary action by the Board of Dentistry.
Section 456.072(1)(r), Florida Statutes (2005) states that improperly interfering with an investigation or inspection authorized by statute or with any disciplinary proceeding is grounds for disciplinary action by the Board of Dentistry.
Rule 64B-17.001, Florida Administrative Code requires all licensees to notify the Board in writing within 10 days of any change in their address.
The Respondent has interfered with an investigation or inspection authorized by statute, or with any disciplinary proceeding in one or more of the following ways:
From on or about May 9, 2006 until June 27, 2006 the Respondent has willfully and purposefully made herself unavailable to the Department;
From on or about May 9 until on or about May 30, 2006, Respondent refused to make herself available for service of process by the Department; and/or
On or about June 23, 2006, the Respondent knowingly refused service of an Order from an individual properly identified as representing the Department in an on- going proceeding regarding the Respondent.
Based on the foregoing, Respondent's license to practice dentistry in the State of Florida is subject to discipline pursuant to Section 466.028(1)(ll), Florida Statutes (2005), by violating Section 456.072(1)(r), Florida Statutes (2005) by improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding.
Respondent contested the allegations leading to a consideration of the First Amended Administrative Complaint in
accordance with Sections 120.569(2)(a) and 120.57(1), Florida Statutes (2007).
On August 9, 2007, DOH forwarded the case to the Division of Administrative Hearing (DOAH) to assign an Administrative Law Judge to conduct a hearing in accordance with Respondent's request for formal hearing. This assignment was made by Robert
Cohen, Director and Chief Judge of DOAH in reference to DOAH Case No. 07-3612PL. The assignment was to the present Administrative Law Judge. The case was noticed to be heard and was heard on October 18, 2007.
Various motions filed by the parties in relation to preparation for hearing, conduct of the hearing, and the post- hearing opportunity to take additional evidence were addressed in orders entered on October 15 and 17, 2007, or as reflected in the hearing transcript that was filed November 2, 2007. The motions and responses to the motions and their filing dates are reflected in the DOAH case docket.
More specifically, Petitioner's motion to take official recognition of the emergency suspension order entered by DOH on February 7, 2006, and other related matters was denied for reasons explained in the hearing transcript.
At hearing Petitioner presented the testimony of Shawn Kenneth McAlleer. In addition, the deposition testimony of the
following witnesses was admitted as evidence: George Joseph, M.D.; Martha Brown, M.D.; Tracy Green, D.A.; Joelle Wilmott; Sharen Rumberger, D.H.; Donna Korora, Esquire, and Miranda Swanson, to include exhibits attached to the depositions.
Petitioner's Exhibits numbered 1 and 2 were admitted.
Respondent testified in her own behalf and presented Wilbur Bate, Faith Clarke, Paulette McFarlane and Colonel Willie E. Jenkins, Jr., as her witnesses at hearing. The post-hearing deposition of Jeffrey Danzinger, M.D., with its exhibits, was accepted as part of Respondent's proof. That deposition was filed November 29, 2007.
To the extent that Respondent affirmatively responded to Petitioner's request for admissions those admissions are acknowledged and set forth in the Findings of Fact.
Following the filing of the depositions of Jeffrey Danzinger, M.D., the parties submitted Proposed Recommended Orders. Petitioner moved to strike as untimely filed, the Proposed Recommended Order of Respondent, prepared by Respondent, not her attorney. The Motion to Strike is denied as to timing. Absent withdrawal from the case by counsel for Respondent, which has not occurred, the Proposed Recommended Order of Respondent is still allowed. § 120.57(1)(b), Fla.
Stat. (2007) The Proposed Recommended Orders have been considered.
FINDINGS OF FACT
Facts Admitted in Response to Petitioner's Request for Admissions
The Petitioner is the State Agency charged with the regulation of the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 466, Florida Statues.
Respondent is Robin Young.
At all times material to the Administrative Complaint, Respondent was licensed in the state of Florida to practice dentistry, having been issued license number DN 12815.
Indian River Health Department (Indian River) hired Respondent as a dentist on or about March 2005.
Indian River notified Professional Resources Network (PRN) on or about September 12, 2005, that Respondent had been placed on compulsory leave until Respondent had an evaluation due to paranoid behavior.
On or about September 27, 2005, Respondent presented to a PRN approved evaluator, Dr. Martha Brown, for evaluation.
Dr. Brown's diagnosis for Respondent was: Axis I- Psychosis NOS; Axis II-R/O Axis II Disorder; Axis III-None Known; Axis IV-Moderate: Axis V-Current GAF=>50.
A letter from PRN was sent on October 19, 2005, advising Respondent of in-patient evaluation options and directing Respondent to complete the confidentiality forms and return them to PRN.
Respondent did not comply with the requirements of the October 19, 2005, PRN letter.
A dentist must cooperate with a departmental investigation related to the proper and lawful regulation of the practice of dentistry.
A dentist's willful evasion of service of a valid Department Order violates the level of professional conduct expected of one licensed to practice dentistry in the state of Florida.
Respondent did not complete and return to PRN the specified confidentiality forms that were provided in the certified and signed for October 19, 2005, correspondence from PRN.
Interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding is grounds for disciplinary action by the Board of Dentistry (the Board).
Mental fitness, sober thinking and decision-making ability along with emotional stability are essential traits a dentist must possess in order to competently practice dentistry.
License Status
At present the status of Respondent's dental license is one of emergency suspension.
Respondent's Background
Respondent graduated from dental school in 1990 and began her practice in 1991 following her licensure by the State of Florida to practice dentistry. Since that time Respondent has practiced in private dental offices and public health clinics. Respondent's employment in public health clinics included her position at Indian River beginning in March 2005. Respondent's position with Indian River was as a senior dentist. Respondent's Recollection
When Respondent began her employment at Indian River she commuted from another town to the job location in Vero Beach, Florida.
In June 2005, she moved to Vero Beach and lived in a community referred to as Point West. This community was a new residential community that was still under construction when Respondent took up residence.
On Monday through Friday Respondent lived alone in the residence at Point West. On occasion her relatives would live with her in that home. At the time Respondent was the only one living in the immediate area of her neighborhood.
Respondent first leased her home. By this arrangement a Tom Moore, with whom the Respondent entered into the lease, could enter the home, although he should not have done so without Respondent's permission.
The Respondent describes one instance in which when approaching her home from a street in back of the home, she found the garage door approximately one-third of the way open and observed a light on in the residence.
Respondent called the police on occasion because of her concerns about her safety. The calls about safety were in relation to noises heard by Respondent. The noises were ultimately identified as being related to systems within the home that supported the lawn sprinkler system. A mailbox was damaged at Respondent's home. A call to the police had been made about the damage to the mailbox as well. In addition, a call to the Sheriff's Department had been made about the mailbox destruction.
On July 1, 2005, while driving to her work, Respondent was stopped by a traffic officer and given a warning citation for speeding. The citation was written in the parking lot of the Indian River facility.
As Respondent describes it, she had a sense of great humiliation and embarrassment, especially in view of the number
of co-workers who were entering the facility while she was being given the warning for her driving offense.
After Respondent entered the building she went into her office and closed the door and decided not to see her patients scheduled to be seen for dental care. She reached this decision because of her upset due to receiving the traffic citation. Respondent told Joyce Clemmons an employee at Indian River that she wanted Ms. Clemmons to call Joelle Wilmott, the Personnel Manager at Indian River and have Ms. Wilmott come to Respondent's office because Respondent intended to leave for the
day.
Before Ms. Wilmott came to see Respondent in her
office, Miranda Swanson, the Assistant Administrator for Indian River came into Respondent's office and Ms. Swanson was informed of the issuance of the warning citation for Respondent's driving performance. Ms. Swanson attempted to console Respondent.
Respondent had been crying before Ms. Swanson entered the office.
Then Ms. Wilmott came into Respondent's office and was provided an abbreviated recount of the traffic stop. This explanation was made by Respondent. Respondent told Ms. Wilmott that she would not be seeing patients that day. Respondent was desirous of making Ms. Wilmott aware of that choice directly. Respondent told Ms. Wilmott that she was leaving. Respondent's
assumption was that the patients she was scheduled to see would be rescheduled.
When Respondent was provided the traffic citation warning, she told persons that worked at Indian River that she resented being a made into a statistic. As she explained at the hearing, she was referring to being Black and being profiled while driving and the need for law enforcement officers over the July 4, 2005, holiday to meet quotas. She considers herself to be an easier target in that she is a Black person.
On another occasion two of the employees at Indian River were leaving their employment. In honor of their departure, someone approached Respondent about participating in a "pot-luck lunch" the next day. Respondent was asked if she wished to bring something to the luncheon. Respondent indicated that she would provide a fruit platter. To facilitate the preparation of this food Respondent bought a small knife, as well as a disposable plastic platter. The type of knife was not one that Respondent would keep in her home.
When Respondent brought the fruit platter and knife into the building she asked another employee to assist in the preparation of the fruit on the platter. Respondent had no interest in participating in the social function.
When treating patients Respondent differentiated between adult patients and children. For children in the age group two to four years old, Respondent introduced herself and commented about the patients' clothing, whether they had pets or she might discuss cartoon characters with the children. To some extent Respondent would "play-act" with the children who were being treated.
Tracy Green was the Respondent's Dental Assistant. In mid August 2005, Ms. Green told Respondent that her eight or nine-year-old daughter had been diagnosed with strep throat and was being kept home from school. During this period, Ms. Green would come into Respondent's office and use the telephone.
After the diagnosis of Ms. Green's child having strep, the child was seated in a clerical chair in Respondent's office. In the face of these events Respondent began to sense that she, meaning Respondent, had symptoms which she believed might be strep throat. As a consequence she determined to spray the telephone in her office with disinfectant. The disinfectant was Cavicide. After spraying disinfectant on her telephone she left a note attached to the phone which said "Dr. Young is out ill, the phone has been disinfected" and the further reference "do not use it." Respondent also unplugged part of the telephone.
The reaction by Respondent to disinfecting the telephone and leaving a note about its use, was with belief on her part that Ms. Green's child had strep throat and Ms. Green had been exposed to the child's illness and returned to work after that.
In the clinical setting at Indian River there were times when noises distracted Respondent from her work.
Respondent considered taking a self-defense course to protect herself. In this connection, she heard an advertisement about an upcoming gun show in the central Florida area where she lived. Respondent considered attending the gun show to find out if she could participate in self-defense courses. She determined not to attend the gun show and to rely upon law enforcement to protect her, no matter how many times they had to be called out to offer protection.
On September 2, 2005, Ms. Wilmott came to Respondent's office at Indian River. The purpose of the visit was to discuss Respondent's tardiness, that is, her being late for work.
During the conversation Respondent made mention of calls that she had made to law enforcement officials to include the problem with Respondent's mailbox being destroyed, the garage door being partially opened and the unusual sounds which Respondent heard. Respondent also commented that for the first time in her life that she had considered self-defense by attending a gun show.
On September 12, 2005, Respondent was called to an 11:30 a.m. meeting at Indian River to discuss her performance and the need to undergo a compulsory psychiatric evaluation based upon the observations made of Respondent in carrying out her duties at Indian River. The invitation to attend the meeting was made by Dr. David Holtzcalew, Respondent's supervisor at Indian River.
Those in attendance included Respondent;
Dr. Holtzcalew; Donna Korora, Esquire, attorney for Indian River; and Joe Guarine, a psychotherapist.
When the meeting commenced Ms. Korora stated that the Administrator at Indian River had asked Ms. Korora to speak to Respondent. Ms. Korora said that she was going to read a letter to Respondent concerning compulsory disability leave to undergo the psychiatric evaluation. Respondent's reaction was that she did not have legal representation at the meeting and did not wish to proceed in the absence of a legal representation.
After the meeting Respondent left the building.
Respondent was provided written information concerning the need for compulsory psychiatric evaluation from the perception of the officials at Indian River. That written material was provided on September 12, 2005. Respondent was told that failure to sign the documents could lead to her being reported as an impaired practioner. The documentation was
provided at Respondent's residence at Vero Beach, Florida.
The documentation received by Respondent indicated on its lead page that it pertained to the subject "compulsory disability leave."
On June 22, 2006, an investigator with DOH, Shawn K. McAlleer, went to Respondent's residence at 1575 Paul Russell Road, Tallahassee, Florida. (The purpose of that visit was to serve Respondent with a order compelling a mental examination.) Respondent would not take the papers from Mr. McAlleer. Respondent indicated that she would not accept the papers because she had an attorney in Orlando and no one had indicated to her that she was going to be served papers and that she should accept those papers.
Dr. Martha Brown practices psychiatry in Florida. On September 27, 2005, she performed a consultation evaluation of Respondent, who had been referred by PRN for the evaluation. Respondent does not recall being made aware of by Dr. Brown that Dr. Brown was performing the evaluation in the interest of PRN. Respondent understood that she was to attend the evaluation session based upon her lawyer's advice.
After the evaluation performed by Dr. Brown, Respondent received communication that she needed to submit herself to the PRN program and undergo further evaluation. Respondent acknowledges receiving that communication.
Respondent acknowledges that she went to see
Dr. Brown, who is a psychiatrist, in relation to participation in the compulsory psychiatric evaluation resulting from the September 12, 2005, meeting held at Indian River. Respondent was sent to see Dr. Brown based upon information provided by an unnamed attorney whom Respondent had seen in Tallahassee.
Dr. Brown told Respondent of the need for Respondent to undergo further evaluation. Respondent did not proceed with those evaluations in the manner suggested by Dr. Brown, in particular the participation in in-patient evaluation of Respondent's mental status.
Respondent recalls Dr. Jeffrey A. Danzinger, another psychiatrist that she saw on March 20, 2006, upon arrangements made by John Biedenharn, Jr., Esquire, an attorney. That doctor recommended that Respondent should have further evaluation of her status concerning mental health.
As Respondent's recalls she has been seen for an evaluation by Dr. George Joseph, another psychiatrist. This independent evaluation was made on January 12, 2007.
To the extent that there are several psychiatrists who evaluated Respondent and who recommended further treatment or evaluation, Respondent explains herself to the effect that she felt entitled to a "second opinion." Then she refers to a second opinion that is offered by a psychiatrist as being
different from the first opinion offered by a psychiatrist. She perceives that the information that the medical professionals relied upon in evaluating her " . . . is just utterly outright false in many regards."
Facts Established by Others
On July 1, 2005, when Ms. Swanson entered Respondent's office at Indian River after the traffic stop, she noted that Respondent appeared upset and tired. Respondent grabbed
Ms. Swanson's arm and was sobbing and rocking back and forth. Ms. Swanson considered calling paramedics if she were unable to calm Respondent down. Ms. Swanson describes Respondent's state as that of being in hysterics. Ms. Swanson suggested that Respondent go home and offered to have someone drive Respondent home; later, Respondent left work.
In addition to the situation that transpired when Respondent was pulled over for a speeding infraction, it had been reported from other employees to Ms. Swanson as the Assistant Administrator or Assistant Director within Indian River, that Respondent was exhibiting odd behavior. This included a report concerning the aforementioned staff luncheon, in which it was stated to Ms. Swanson that Respondent had mentioned not wanting to cut her hand with a knife that had been purchased, not wanting to hurt her hand with the knife that Respondent had purchased to prepare the fruit. In addition,
there were remarks made by staff about the Respondent talking to a patient and talking for the patient while providing treatment, in effect having a conversation with herself. There was a report by staff that Respondent would be jumpy and agitated when a bell or buzzer would sound in the clinic. There was a report about a note left on Respondent's telephone, after disinfecting the phone and unplugging it. There was a report by staff that Respondent indicated that people were living in the attic at her home and they had smashed her mailbox and that Respondent would vacuum her carpet under the space of the attic to allow her to detect footprints from people in the attic. There was a report, beyond the report about people living in the attic, concerning Respondent's considering attending a gun show so that she could get a gun to protect herself.
Although Ms. Swanson did not believe the Respondent was a danger herself or others, while having a good opinion of Respondent's dentistry, it was decided to consult with the attorney for Indian River about appropriate action to compel Respondent to participate in the compulsory evaluation of her mental state. This led to the meeting on September 12, 2005, at Indian River to arrange an appointment for an evaluation. This effort was not well received by Respondent. As a consequence, absent a participation in the compulsory evaluation of her
mental status Respondent was not allowed to return to her duties at Indian River.
To summarize, there was no concern by her employer that Respondent did not have the necessary technical skills to practice dentistry. The concern by the employer was that the employer believed that Respondent evidenced signs of a potential mental problem that would affect her decision making in carrying out her practice.
Tracy Green who worked as a Dental Assistant at Indian River observed Respondent's reaction to noises in the clinic. For example, if other dentists were in another room and were using a timer that would sound in relation to dental work, Respondent would be in a state of panic. When noise made by the timer occurred Respondent would comment, "I don't like that" and state, "Can't we do something about that."
Ms. Green observed that when Respondent had a patient in the examining chair who was a child, Respondent would look down at the patient and talk to the patient, answering herself. For example Respondent would say, "We're going to fix your tooth" and then answer in a child's voice, "No, I don't want you to fix the tooth" and then go back to her original voice and say, "Yes we're going to fix your tooth." When this role playing took place, parents would give Ms. Green an imploring look. However, there were no formal complaints by the parents
about the service rendered to a child patient, and Ms. Green never saw the Respondent place patients in danger by her actions as a dentist.
Respondent told Ms. Green that people were walking around on the carpet in her house, and that she, the Respondent, was vacuuming the carpet every day just to observe their presence because she, the Respondent, knew people were in her house during the day. The vacuuming every morning was done to detect footprints by the persons that Respondent felt were in her home while she was absent. From the remarks of the Respondent the impression left with Ms. Green was that people were in her house while the Respondent was absent, people who were not guests in the home.
Once when Ms. Green was out sick and returned, Respondent was upset and commented that she could not believe that people come to work when they are sick. Respondent then left the job and said she might be back Monday or might be back next week. Before leaving Respondent had taken Cavicide, a disinfectant spray and sprayed her phone with it and took the phone off the hook, and wrote the words "caution" and "disinfected" and tapped the message to the telephone to keep other people from using the telephone.
As the Personnel Manager for Indian River, Joelle Wilmott was responsible for overseeing hiring, disciplinary
action, terminations, payroll, training and other human resources functions. In that capacity she had interaction with the Respondent.
On July 1, 2005, when Respondent was stopped by a policeman for a driving offense, Ms. Wilmott went to Respondent's office to speak with Respondent. This followed a report to Ms. Wilmott that Respondent was in her office and refused to see patients who were waiting for treatment.
Ms. Wilmott knocked on the door and went in to see Respondent who was visibly upset. Respondent was rocking back and forth. When asked what was "Going on," Respondent told Ms. Wilmott that she had been pulled over. Respondent had tears coming down her face. Respondent told Ms. Wilmott that she was pulled over because of the color of her skin and pointed at her own arm.
Respondent kept referring to the police officer as "the man with the gun." Ms. Wilmott tried to console Respondent by telling her that people got pulled over all the time. It was difficult for Ms. Wilmott to follow the conversation from Respondent's side at times. During the course of Respondent's comments, she said something to the effect, "I always wear my seat belt, and I have seen dead bodies." Ms. Wilmott told Respondent that she, Respondent, had patients ready and needed to calm down.
Respondent replied that "her hands were burnt." Then Respondent held her hands up in the air and said, "My hands are burnt I
can't see patients today my hands are burnt." After a time, Ms. Wilmott commented that it was obvious that Respondent was unable to see patients that day and she suggested that Respondent go home. Respondent then replied "I can't, I can't,
I can't, he's out there waiting for me, he is going to get me if I leave." Ms. Wilmott thought this reference was to the policeman who had pulled Respondent over for the traffic violation. Ms. Wilmott volunteered to go look in the area near the building to see if the policeman was still around. She did this and found that the policeman was no longer in the area.
Being concerned, Ms. Wilmott arranged to have Ms. Swanson the Assistant Director at Indian River talk to Respondent in an effort to console Respondent. Ms. Swanson took over the situation beyond that point and Ms. Wilmott did not speak to Respondent again on that date.
Sharen Rumberger had been a Dental Hygienist at Indian River who worked with Respondent. She found the Respondent's dental work performed on the patients to be very good and meticulous with the patient notes being very good.
On July 1, 2005, when Respondent received her warning citation, Ms. Rumberger overheard Respondent say that she thought that she received the warning citation because she was Black. Respondent also commented that policemen were racist in Tallahassee. On the morning Respondent received the warning
citation, Ms. Rumberger observed Respondent literally run into her office and shut the door.
Concerning the incident in relation to the luncheon in which Respondent had purchased fruit and a knife to prepare the fruit, Respondent told Ms. Rumberger she did not like this kind of activity. Respondent asked Ms. Rumberger if she would cut the fruit into smaller pieces because Respondent did not want to use a knife. Respondent said that she did not want to use the knife because she had nothing sharper than a butter knife in her house and because she did not want to cut herself.
Concerning Respondent's bringing the fruit and knife to the office for the luncheon, Respondent told Ms. Rumberger to cut the fruit because "These hands don't touch a knife. These hands are too valuable."
It had been reported to Ms. Wilmott that Respondent was habitually late for work. These reports were made by other members of the staff at Indian River. The staff reported to Ms. Wilmott that Respondent was late almost every day and patients were left to wait for services 30 to 40 minutes before Respondent arrived to assist the patients. Ms. Wilmott went to
discuss the matter with Dr. Holtzcalew, the Medical Director and Respondent's supervisor. Dr. Holtzcalew commented that he was busy and asked that Ms. Wilmott speak to Respondent about her tardiness.
Ms. Wilmott met with Respondent on September 2, 2005, to discuss the problem with Respondent's attendance. Respondent was in her office. Ms. Wilmott knocked on the door and entered. Ms. Wilmott explained that she was there to discuss Respondent's tardiness and explained what her concerns were. Those concerns had to do with Respondent being late for work in the morning and returning late from lunch. Respondent seemed agitated by these remarks and started moving her hands around. Respondent commented that she had a lot going on at home that was interrupting her sleep and her coming to work on time.
Ms. Wilmott commented that she was unaware of that problem. Respondent then told Ms. Wilmott about having police at her home on numerous occasions because she thought she was hearing people in her attic. According to Respondent, the police told the Respondent that the noise in the attic may have been bats.
Respondent told Ms. Wilmott that she knew the difference between bats and people moving around in the attic. Respondent told
Ms. Wilmott that she had seen footprints on her carpet that were bigger than her footprints, and she went on to explain in some detail about a smudge on the light switch in the garage.
Respondent made mention of a person who spoke English and was a white person. Ms. Wilmott asked Respondent if she saw this person. Respondent said no. Respondent talked about vacuuming her carpet, staying up all hours of the night to do this and
making "booby" traps. Respondent told Ms. Wilmott about taking a flashlight and looking around at the ceiling to see if they, the people, were trying to get in the house from the attic. All of this by way of explaining the reason for being late to work. Respondent commented about changing the locks on her home and the day after the locks had been changed, her mailbox had been run over by a car. Respondent commented that she thought she had angered the "person" and that maybe they had "a key to (her) house and I know that bats could not have done that to my mailbox." Respondent commented that she did not know how long she could live in such terrorism and that she lived alone in a new neighborhood that was being built. Respondent told
Ms. Wilmott that she, Respondent, " . . . should have gone to the gun show in Orlando on the previous weekend". This was followed by a comment about never owning a gun and that people kill with guns and that Respondent was thinking about getting a gun to protect herself because there are crazy people in the world. Respondent told Ms. Wilmott that she might have to "pickup and go back to Palm Beach" and live in her apartment so that she could feel safe. Ms. Wilmott concluded the conversation by telling Respondent until Respondent figured out what she was going to do to please arrive at work on time and return from lunch on time.
As a result of her conversation with Respondent that took place on September 2, 2005, Ms. Wilmott told Ms. Swanson about her concern for the safety of Respondent and the well- being and safety of other staff members. This led to the decision to call on the assistance of Donna Korora, Esquire, the lawyer for Indian River. Discussions eventuated in the September 12, 2005, meeting in which Respondent was requested to undergo a psychological evaluation to determine her fitness to remain in her position at Indian River.
Donna Korora, Esquire, is the chief legal counsel for Indian River. Following the July 1, 2005, incident in which Respondent was stopped for a traffic violation and acted in the manner that was observed by personnel at Indian River,
Ms. Korora was made aware of these events. She discussed the possibility that Respondent might be under stress and should be referred to the Employee's Assistance Program. This possibility was not pursued at the time.
Later Ms. Korora was told by Ms. Wilmott and
Ms. Swanson that Respondent had related a story to the effect that people were in her attic and that she was staying up with a flash-light to see what was in the attic and vacuuming the floor to see footprints on the floor after returning from work. There was also discussion concerning the Respondent's stating that she had wished that she had gone to a gun show in Orlando to buy a
gun to protect herself. As a result, there was an assessment made about whether there was a reasonable suspicion that Respondent was under some stress and could not perform her duties, such as mandate or compel Respondent to get a physical or mental exam. To this end, Ms. Korora presented Respondent with a letter that constituted a notice that Respondent was being compelled to undergo an examination under rules pertaining to employees at Indian River. An appointment had been made with a Dr. Urfer, a psychiatrist in the area. Respondent replied that she would have to talk to her attorney and left the September 12, 2005, meeting with issues unresolved.
More specifically, on September 12, 2005, when the meeting was held Ms. Korora; the Medical Director,
Dr. Holtzcalew; a psychologist for Indian River, Joe Guarine; and Respondent were in attendance. During the meeting
Ms. Korora reminded Respondent that Respondent was an employee of Indian River. Ms. Korora explained to Respondent that it was not a disciplinary matter at that point and that there was a concern about her safety and that there was an interest in discussing some of Respondent's behavior that had been witnessed by other members of the staff. Respondent kept asking, "who told you this information” and remarking that the staff was not qualified to make a determination as to Respondent's need for a mental examination. Respondent was asked by other persons in
the meeting to please comply with having a mental status examination performed by Dr. Urfer. During the meeting mention was made by Ms. Korora that Respondent had told Indian River staff that she was going to buy a gun and there was a concern for Respondent's safety and that of the other staff. Ms. Korora told Respondent by refusing the examination she would most likely be dismissed from her position at Indian River and that a report would be made to PRN.
The basis for proceeding with the September 12, 2005, meeting was under a provision of the State of Florida, Department of Management Services, a rule, that allowed, upon a reasonable suspicion, to compel an employee to have a mental status examination upon notification in writing. That notification was provided to Respondent at the meeting.
The rule requiring compulsory examination is Florida Administrative Code Rule 60L-34.0061.
A couple of weeks passed beyond that date before the decision was made by Indian River to terminate Respondent for not undergoing an evaluation by a psychiatrist. The termination from employment took place at the end of September 2005. In the last analysis, the officials at Indian River were concerned that Respondent's conduct might affect the safety of the patients that were seen at Indian River. The concern was not over the
issue of patient complaints, it was a concern over the mental stability of the Respondent to allow her to practice dentistry.
Shawn Kenneth McAlleer, as an investigator for DOH, received an order from DOH compelling Respondent to undergo mental status evaluation. He went to Respondent's residence at Paul Russell Road in Tallahassee, Florida, to serve that document. When Respondent answered the door, she acknowledged that she was the Respondent. Mr. McAlleer told Respondent that he was there to drop off paperwork. Respondent told him that she was not authorized to receive the paperwork upon instructions from her attorney not to accept documents. Respondent took a cell-phone out from her person and attempted to call someone that she identified as being her lawyer. In the interim, Mr. McAlleer tried to persuade the Respondent to receive the service of the order. Respondent declined. This discussion took place around 6:45 to 7:00 p.m. There was no indication that Respondent succeeded in reaching her lawyer's office by telephone. Respondent then turned around and re- entered the residence closing the door, not to return. The date of the attempted service was June 22, 2006. During the encounter, Mr. McAlleer did not identify the papers that he had with him as being an order of DOH. He did not make any explanation of the documents that were being delivered.
On June 23, 2006, another attempt at service of the documents at the residence was made but no one was home to receive the documents.
Expert Opinion
Dr. Martha Eugenia Brown is a psychiatrist licensed to practice in Florida. She is an Associate Professor of Psychiatry at the University of South Florida, College of Medicine, in addition to being the Associate Dean for Faculty Development at that institution. Among her duties she performs impairment evaluations and fitness for duty evaluations which she refers to as independent medical evaluations for DOH and PRN, among other organizations. Dr. Brown is board certified in psychiatry and addiction psychiatry.
Based upon testimony provided in Dr. Brown's deposition that was taken on October 11, 2007, Dr. Brown is received as an expert in psychiatry, as well as impairment and addiction psychiatry.
On September 27, 2005, in performing a consultation evaluation of Respondent, Dr. Brown followed a pattern that she had pursued before. In this form of evaluation, basically she looked to determine if Respondent could practice with reasonable skill and safety and what other recommendations might be needed to address the case.
The approach in Respondent's case was not to read records concerning Respondent's circumstance before undertaking the evaluation. In the interview, Dr. Brown went through a complete psychiatric evaluation and medical history, which was typed into a computer by Dr. Brown, after which Dr. Brown and Respondent went through records concerning Respondent's reason for undergoing the evaluation. After the process had been concluded, Dr. Brown rendered a report.
Dr. Brown undertook Respondent's evaluation upon referral from PRN.
In the course of the evaluation, Respondent told
Dr. Brown that there were compulsory papers that she chose not to sign at her work place. Respondent explained that she was a dentist and allegations had been made against her by her employer to the effect that she was "doing drugs" and that she was a mental patient.
Respondent in discussion with Dr. Brown mentioned the September 12, 2005, meeting where Respondent had been told by persons in the meeting that Indian River had concerns about Respondent's behavior and that ultimately Respondent was reported to PRN to have an evaluation. Respondent also made mention of the word paranoia in describing the statement of concerns by other persons in the meeting. In the evaluation, Respondent made mention of allegations that people in her attic
had guns. Respondent told Dr. Brown about the garage door in her home being open for unknown reasons. Respondent told
Dr. Brown about having her son make a call to 911. Respondent told Dr. Brown about events in mid July 2005 when she heard bumping and things around 4:00 a.m. or 5:00 a.m. in her home. She then called 911. She commented about seeing a light in her attic and greasy black soot marks on light switches, although she acknowledged marks on the switches may have been made by her son. Respondent mentioned calling a lock-smith because there were "master keys floating around the neighborhood." She had her house re-keyed. Respondent mentioned her mailbox being destroyed.
At the time of the evaluation, Dr. Brown found Respondent's presentation to be quite paranoid. Respondent was very pressured in her speech, more than Dr. Brown would consider normal, and the history provided by Respondent was hard to follow, rambling and disjointed. It was difficult for Dr. Brown to follow the logic and flow of the conversation. Her behavior appeared psychotic and/or paranoid to Dr. Brown. The impairment was such that Dr. Brown did not believe that Respondent could work at that time and needed further evaluation to address the etiology of the symptoms being exhibited. In the evaluation under AXIS I: Dr. Brown reached the opinion that Respondent suffered from a psychosis NOS, not otherwise specified.
In order to address the situation Dr. Brown recommended that Respondent undergo extensive inpatient evaluation with psychological testing and be under observation to ascertain whether the underlying condition was a medical condition or psychiatric condition. At the time of the evaluation, the results of a urine drug screen did not reveal any presence of drugs or alcohol.
Given the evaluation, Dr. Brown found that Respondent was oriented as to person, place and situation and date, but Respondent's mood was intense and her affect labile, referring to frequent changes.
Dr. Brown in relation to AXIS II: indicated R/O, referring to the need to rule out the existence of any AXIS II disorder. At the time no psychological testing had been performed to address this prospect.
In relation to AXIS III: there was a reference to "None," meaning there was no indication of a physical condition that appeared to be significant.
Dr. Brown noted that the AXIS IV was moderate. This observation was somewhat subjective in that it related to the impression that stresses were ongoing in Respondent's life.
The AXIS V: finding by Dr. Brown was a GAF score of
This is in relation to global functioning. It is desirable to have a score better than 70.
According to the basis for evaluation, AXIS I refers to major psychiatric or substance abuse diagnosis. AXIS II is in relation to personality disorders. AXIS III refers to medical conditions. AXIS IV is a measurement of stressors in a persons life. AXIS V is a global assessment of function at the time of the evaluation. These measures are recognized in the diagnostic manual referred to as DSM-IV.
Dr. Brown's impression of the Respondent's condition is that it would influence the Respondent's ability to relate to any patient Respondent saw in a manner that created concern on Dr. Brown's part.
The prognosis and recommendations by Dr. Brown were to the effect that Respondent should: 1) Have an inpatient evaluation for further assessment and treatment; 2) participate in PRN and follow all recommendations they deem appropriate; and
3) that Respondent's prognosis is unknown at the time.
On October 11, 2007, when Dr. Brown gave her deposition she still continued to express the opinion that Respondent needed inpatient evaluation.
On March 20, 2006, having been requested by John Biedenharn, Jr., Esquire, to perform an evaluation, Dr. Jeffrey
A. Danzinger saw Respondent. Dr. Danzinger practices psychiatry in Florida. He treats patients with mental, emotional and behavioral problems. He performs independent evaluations of
individuals to ascertain their mental status. Dr. Danzinger is board-certified in general psychiatry, forensic psychiatry, geriatric psychiatry and addiction psychiatry. He is an expert in the field of psychiatry.
In performing the evaluation of Respondent,
Dr. Danzinger tried to ascertain whether she had a paranoid psychotic disorder, did she need to be hospitalized, did she need to be started on medications, was she showing any signs of symptoms of acute psychotic illness and whether further evaluation would be appropriate. Before beginning his evaluation, Dr. Danzinger looked at materials concerning the Respondent that had been made available to him, to include the report by Dr. Brown following her September 27, 2005, evaluation of Respondent. The overall material that was reviewed by
Dr. Danzinger to prepare him for the evaluation was made up of documents from DOH, various investigative records, affidavits, information concerning the suspension of Respondent's dental license, as well as the report by Dr. Brown. To the extent that there were differences in Dr. Danzinger's opinion compared to the findings by Dr. Brown, Dr. Danzinger commented that some of the differences could be in relation to the passage of time.
Before beginning his evaluation, Dr. Danzinger explained to Respondent that the purpose was not to treat her or establish a doctor/patient relationship to carry out his
evaluation. Dr. Danzinger discussed Respondent's social and background history. More specifically he focused on Respondent's recollection and version of the events at Indian River which caused concern by persons in charge of that agency. Respondent essentially disputed allegations that had been made against her concerning her employment at Indian River.
In his diagnosis Dr. Danzinger did not see signs or symptoms of a current active psychiatric diagnosis under AXIS I. He did not find any disturbance in the flow of thought by Respondent. Therefore, he did not find that the Respondent met any criteria for involuntary civil commitment to a mental hospital. He did not find the need for impatient evaluation. Dr. Danzinger believed that further evaluation was needed but could be done on a outpatient basis. The form of that evaluation should subject the Respondent to psychological testing. The nature of that testing could be a MPI-2 or PAI instrument. Dr. Danzinger did not believe that Respondent needed intervention through the use of psychotropic medications.
Dr. Danzinger did not conclude a diagnosis under AXIS II and AXIS III and when referring to AXIS IV he commented on the severity of stressors related to license suspension and financial concerns. His AXIS V finding was a current GAF of 70.
According to Dr. Danzinger, to arrive at the proper impression under AXIS II it would be necessary to conduct psychological testing.
On March 9, 2006, when Dr. Danzinger evaluated Respondent he did not believe that anything that she displayed was suggestive of representing a danger to patients or a threat to others. On the other hand, Dr. Danzinger indicated on November 2, 2007, when he was deposed concerning his evaluation, no present opinion about Respondent's psychiatric or psychological state and her ability to safely practice dentistry, given the passage of time between his evaluation and the date for deposition.
On January 12, 2007, Dr. George M. Joseph evaluated Respondent. Dr. Joseph practices psychiatry in Florida. He is a general psychiatrist with an interest in forensic psychiatry, as well as research in psychotropic medications. He is board certified in psychiatry and neurology. He is an expert in the field of psychiatry. He acts as an consultant and does some work in legal cases. Dr. Joseph does work for PRN. The basis for evaluating Respondent concerned questions about her ability to practice dentistry safely. To carry out this function, he reviewed materials concerning the subject and did a psychiatric interview with the individual and a mental status examination.
Following these opportunities, he wrote a report of his findings.
When performing his evaluation, Dr. Joseph was familiar with Dr. Brown's report of the September 27, 2005, evaluation. Dr. Joseph expressed no doubts about the findings made by Dr. Brown. Dr. Joseph made different findings based upon his evaluation. Dr. Joseph reviewed the material provided to him concerning allegations about Respondent before he conducted the evaluation. This method was perceived by him to be the more appropriate approach to the assignment.
Under AXIS I, Dr. Joseph indicated that there was no current diagnosis. It is described as V71.09. Dr. Joseph's AXIS II diagnosis was 301.0, paranoid personality disorder. Dr. Joseph did not find Respondent out of touch with reality,
that is to say delusional. What he did find was that Respondent met the definition of DSM-IV-TR at page 288, which refers to personality disorders of the kind where it is "a pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent, beginning by early adulthood and present in a variety of contexts, as indicated by four (or more) of the following."
In the findings in his report Dr. Joseph noted "I believe, however, it is likely further instances of mistrust, suspicion, vigilance, hypersensitivity and estrangement are
likely in the performance of her profession. I therefore cannot, at this time recommend reversal of the emergency suspension of her license." This refers to the existence of the emergency suspension order. In his deposition testimony,
Dr. Joseph said that "I believe the paranoid personality disorder, if untreated, and without any kind of supervision by a regulating kind of agency, would be a significant problem in the performance of her work with patients and under colleagues and that is my best opinion as of the time I saw her." This refers to his evaluation of Respondent. This constituted Dr. Joseph's opinion as of the taking of his deposition on October 12, 2007. His continuing opinion is that Respondent's condition negatively affects her professional ability to perform services with reasonable skill and safety. In expressing his opinion concerning Respondent's ability to practice given her mental status, doubts about her ability to deliver services in a safe manner does not require that a patient be harmed to express concern about safety of patients.
The paranoid personality evidenced in Respondent was of long-standing duration in Dr. Joseph's opinion. It is constant in her personality. This was evidenced by the tone of formality in Respondent's presentation. She presented herself in a constricted way. Behavior that Dr. Joseph observed in
Respondent was that of mistrust, caution, and formality that implies a kind of caution that is excessive.
On the subject of the AXIS V score, being GAF 50/60, at a level of 60 there are moderate symptoms or moderate difficulties in social and occupational functioning, whereas 50 represents serious symptoms and some serious impairment in social and occupational functioning. Dr. Joseph saw Respondent as having some serious problems in occupational functioning but at times that functioning might be described as moderate.
Going forward, Dr. Joseph in his deposition recommended that Respondent receive regular treatment by a board-certified psychiatrist, starting out perhaps with weekly sessions and graduating to something as infrequent as every month or two. The use of medications could be discussed with Respondent to alleviate problems with suspiciousness on her part. If needed, a report could be made to PRN periodically indicating that it was safe for her to practice.
Respondent's Patients
Respondent practiced dentistry in Tallahassee, Florida. A number of her patients that were seen by her in that community testified. They found her approach to their treatment commendable and the results acceptable. The patients were not mindful of the circumstances while Respondent cared for patients at Indian River and interacted with other staff.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569, 120.57(1) and 456.073(5), Florida Statutes (2007).
Respondent is a licensed dentist in Florida. She was issued the license by DOH. The license number is DN12815.
Through the First Amended Complaint, Respondent has been accused in two counts of violations of law, that if proven would subject her dental license to disciplinary action by the Board.
Count I references an alleged violation of Section 466.028(1)(s), Florida Statutes (2005), which states:
The following acts constitute grounds for . . . disciplinary action, as specified in s. 456.072(2):
* * *
(s) Being unable to practice her or his profession with reasonable skill and safety to patients by reasons of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the secretary or her or his designee that probable cause exists to believe that the licensee is unable to practice dentistry or dental hygiene because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the
department. If the licensee refuses to comply with such order, the department's order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceeding shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of her or his profession with reasonable skill and safety to patients.
Section 456.072(2), Florida Statutes (2005), mentioned in the prior provision, states:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
* * *
Suspension or permanent revocation of a license.
Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.
Imposition of an administrative fine not to exceed $10,000 for each count or separate offense. If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of
$10,000 per count or offense.
Issuance of a reprimand or letter or concern.
Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.
Corrective action.
Imposition of an administrative fine in accordance with s. 381.0261 for violations regarding patient rights.
Refund of fees billed and collected from the patient or a third party on behalf of the patient.
Requirement that the practitioner undergo remedial education.
In determining what action is appropriate, the board, or department when there is no board, must first consider what sanctions are necessary to protect the public or to
compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.
Again, the specific basis for imposing discipline pursuant to this count is as reflected in the First Administrative Complaint where it accuses Respondent in that:
Respondent has failed to comply with the requirements of PRN in one or more of the following ways:
Respondent has failed to make arrangements for her evaluation and notify the PRN staff of those arrangements;
Respondent has failed to complete specified confidentiality forms and return them to the PRN office;
Respondent failed to respond in any way to the PRN letter dated October 19, 2005, providing instructions on making additional arrangements for required follow on evaluations; and/or
The Respondent is not compliant with the recommendations of Dr. Brown.
Because of a dentist's constant interaction with the public, mental fitness, sober thinking and decision-making ability along with emotional stability are essential traits that a dentist must possess in order to competently practice dentistry.
The Respondent's serious illness combined with her failure to communicate and comply with the recommendations of her
treatment provider represents a significant likelihood that the Respondent will cause harm to patients.
Count II to the First Amended Administrative Complaint refers to Section 466.028(1)(ll), Florida Statutes (2005), which states:
The following acts constitute grounds for . . . disciplinary action as specified in s. 456.072(2).
* * *
(ll) Violating any provision of this chapter or chapter 456, or any rules adopted thereto.
In relation to Count II the provision that forms the basis for the alleged violations is set forth in Section 456.072(1)(r), Florida Statutes (2005), which states:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken.
* * *
(r) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceedings.
Restating the manner of violation contemplated in Count II to the First Amended Administrative Complaint it is premised upon the allegations that:
49. The Respondent has interfered with an investigation or inspection authorized by statute, or with any disciplinary proceeding in one or more of the following ways:
From on or about May 9, 2006, until June 27, 2006 the Respondent has willfully
and purposefully made herself unavailable to the Department;
From on or about May 9 until on or about May 30, 2006, Respondent refused to make herself available for service of process by the Department; and/or
On or about June 23, 2006, the Respondent knowingly refused service of an Order from an individual properly identified as representing the Department in an on- going proceeding regarding the Respondent.
Because of a dentist's constant interaction with the public, mental fitness, sober thinking and decision-making ability along with emotional stability are essential traits that a dentist must possess in order to competently practice dentistry.
The Respondent's serious illness combined with her failure to communicate and comply with the recommendations of her treatment provider represents a significant likelihood that the Respondent will cause harm to patients.
Mention is also made in Count II of Florida Administrative Code Rule 64B5-17.001. A reading of paragraph 48 to the First Amended Administrative Complaint, in contrast to the language in the rule, leads to the conclusion that the intended reference was to Florida Administrative Code Rule 64B5- 17.0011, which states:
CHANGE OF ADDRESS. All licensees are required to notify the Board in writing within ten (10) days of any change in their address.
Whatever the intention by DOH as to its citation of authority when framing the First Amended Administrative Complaint, the factual basis for action described does not comport with the expectation of the rule concerning notification of a change in address and the concluding statement pertaining to the alleged violation. It refers only to a violation of Section 466.028(1)(ll), Florida Statutes (2005), by violating Section 456.072(1)(r), Florida Statutes (2005), as set forth in paragraph 50. to the First Amended Administrative Complaint.
This is a disciplinary case, and for that reason Petitioner bears the burden of proof. That proof must be sufficient to sustain the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor
Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is explained in the case In re:
Davey, 645 So. 2d 398 (Fla. 1994), quoting, with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).
Given the penal nature of this case, those statutory provisions that have been referenced have been strictly construed. Any ambiguity in construction favors the Respondent. See State v. Pattishall, 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester v. Department of Professional and Occupational
Regulation, State Board of Medical Examiners, 348 So. 2d 923 (Fla. 1st DCA 1977).
Indian River had notified PRN of the expectation that Respondent undergo compulsory evaluation based upon her troubling behavior as perceived by persons in charge at Indian River. Respondent made herself available on September 27, 2005, to be evaluated by the PRN approved evaluator Dr. Brown. To that extent Respondent made arrangements for the evaluation. There is no indication in the record whether Respondent notified PRN staff that the September 27, 2005, evaluation by Dr. Brown had been arranged. Petitioner bore the burden to prove that notification to PRN staff of the arrangements for Dr. Brown to make the evaluation had not occurred. Petitioner failed to prove that Respondent acted in the manner described in paragraph
40.a. to the First Amended Administrative Complaint.
It has been proven that Respondent failed to complete and return confidentiality forms and respond to the PRN letter dated October 19, 2005, that provided instructions, as set forth in the allegations to paragraph 40.b. and c. to the First Amended Administrative Complaint.
It was proven as alleged in paragraph 40.d. that Respondent was not compliant with the recommendations of Dr. Brown for further evaluation on an inpatient basis.
Moreover, Drs. Danzinger and Joseph, in turn, recommended that
Respondent undergo evaluation and testing, even if not on an inpatient basis. Respondent has failed to follow any of these recommendations in a setting in which the opinions of the mental health experts, psychiatrists, are persuasive of the need for subsequent evaluation and testing. Respondent's technical ability as a dentist is undisputed. Respondent has the necessary technical skills to practice dentistry; however, it has been shown that serious questions of safety to patients, by reason of the underlying impression of her mental status, as found in several evaluations by the psychiatrists puts in question her mental condition and ability to practice dentistry with the necessary safety to patients, as contemplated by Section 466.028(1)(s), Florida Statutes (2005). The lack of harm to patients to this point-in-time does not sufficiently alleviate concerns for patient safety going forward. Those issues maybe resolved by additional testing and evaluation as recommended by all psychiatrists who evaluated Respondent without finally clarifying her mental status. For now the experts are uncomfortable with Respondent's return to dental practice. Their views are accepted in resolving this dispute.
The facts concerning Respondent's unusual conduct while employed at Indian River correspond with the impressions gained by the several psychiatrist in their mental status evaluations.
Concerning Count II, the proof does not show that from a period around May 9, 2006, until June 27, 2006, Respondent willfully and purposely made herself unavailable to DOH as alleged in paragraph 49.a. to the First Amended Administrative Complaint. Likewise, the proof did not sustain the allegation at paragraph 49.b., that from on or about May 9 to May 30, 2006, Respondent had refused to make herself available for service of process by the DOH. Finally, the proof showed that when an attempt was made to make service on June 23, 2006, as alluded to in paragraph 49.c. to the First Amended Administrative Complaint, no one was home at the address where service was attempted. For these reasons, absent the proof pertaining to several factual allegations set forth in Count II, no violation has been shown concerning Section 466.028(1)(ll), Florida Statutes (2005), by a violation of Section 456.107(1)(r), Florida Statutes (2005).
Based upon the findings of facts and the conclusions, it is RECOMMENDED:
That a final order be entered finding Respondent in violation of Section 466.028(1)(s), Florida Statutes (2005), as alleged in Count I; dismissing Count II, and suspending Respondent's dental license until she undergoes further mental status evaluation(s) to determine whether she may practice
dentistry with due regard for the safety of her patients. See
§ 456.072(2)(b), Fla. Stat. (2005).
DONE AND ENTERED this 8th day of January, 2008, in
Tallahassee, Leon County, Florida.
S
CHARLES C. ADAMS
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 8th day of January, 2008.
COPIES FURNISHED:
H. Wayne Mitchell, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Wayne D. Knight, Esquire 1277 Cedar Center Drive Tallahassee, Florida 32302
Susan Foster, Executive Director Board of Dentistry
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
Josefina M. Tamayo, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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 should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 08, 2008 | Agency Final Order | |
| Jan. 08, 2008 | Recommended Order | Respondent should not return to practice before undergoing mental evaluation. |
