STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY,
Petitioner,
vs.
MIRANDA SMITH, D.D.S.,
Respondent.
/
Case No. 13-1221PL
RECOMMENDED ORDER
A formal administrative hearing in this case was held on July 29, 2013, in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Adrienne C. Rodgers, Esquire
Department of Health Bin C-65
4052 Bald Cypress Way Tallahassee, Florida 32399-3265
For Respondent: Christopher Claude Torres, Esquire
Casey and Torres, LLC Suite 200
1240 Thomasville Road
Tallahassee, Florida 32303-8707 STATEMENT OF THE ISSUE
The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department
of Health, Board of Dentistry (Petitioner), against Miranda Smith, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
By an Amended Administrative Complaint dated April 8, 2013, the Petitioner alleged that the Respondent violated provisions of section 466.028, Florida Statutes (2010). The Respondent denied the allegations and requested an administrative hearing. The Petitioner forwarded the request to the Division of Administrative Hearings which scheduled and conducted the proceeding.
Prior to the hearing, the parties filed a Joint Pre-Hearing Stipulation containing a statement of admitted facts that have been incorporated herein as necessary. The Joint Pre-Hearing Stipulation also included formal notice that the Petitioner had withdrawn Count II of the Amended Administrative Complaint.
At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1, 3, 4, 6 and 7 admitted into evidence. The Respondent presented the testimony of two witnesses and had one exhibit admitted into evidence.
A Transcript of the hearing was filed on August 19, 2013.
Pursuant to the schedule adopted by the parties, proposed recommended orders were filed on September 3, 2013.
FINDINGS OF FACT
At all times relevant to this case, the Respondent was a licensed dentist in the State of Florida, holding license
no. DN 15873, with an address-of-record at 17020 County Line Road, Spring Hill, Florida 34610, and operating a dental practice identified as "Smiles and Giggles Dentistry."
On August 23, 2011, the Respondent performed a dental examination of S.W., a three-year-old female. This was S.W.'s first visit to the Respondent's office.
Routine procedures at the Respondent's office included taking radiographs (x-rays) of every new patient. After checking in with the receptionist and waiting for a brief time, S.W. and her mother were called from the reception area by a dental assistant, who accompanied them to a type of x-ray machine called a "Panorex."
Patients can remain in a standing position while x-rays are taken with a Panorex, and the images can be produced without requiring the insertion of x-ray film into a patient's mouth.
Despite encouragement from her mother and the offer of various enticements by the dental assistant, S.W. refused to stand in the Panorex, and no x-rays were taken.
After the attempt to use the Panorex failed, S.W. and her mother were taken into an examination room ("operatory").
Each operatory at the Respondent's practice contained a standard x-ray machine that required the insertion of film into a patient's mouth to produce images.
The evidence fails to establish that there was any attempt to obtain images from S.W. using the x-ray machine in the operatory.
After S.W. was taken into the operatory and seated, the dental assistant performed a routine cleaning ("prophylaxis") and then left the room. S.W. was cooperative during the prophylaxis.
After the prophylaxis was completed, the Respondent entered the room with a different dental assistant and proceeded to perform a comprehensive oral evaluation using routine dental tools. S.W. was cooperative during the examination.
The Respondent examined the condition of S.W.'s teeth and verbalized her observations to the dental assistant, who recorded the information by hand into the patient chart.
According to the patient chart, the Respondent observed decay in the teeth designated as A, B, I, J, K, L, S and T.
After the evaluation was completed, S.W.'s mother was advised that the Respondent had observed "eight cavities" in S.W.'s teeth. The evidence failed to establish whether the mother received the information from the Respondent or from the dental assistant.
Thereafter, the dental assistant escorted S.W. and her mother to the "check out" desk, where the mother was advised to schedule a follow-up appointment for dental work related to the Respondent's observations of decay.
The follow-up appointment was scheduled for
November 17, 2011, and the mother was advised that sedation would be administered at that time. S.W. and her mother then left the Respondent's office.
According to the patient chart, the Respondent proposed to treat the observed decay by performing resin-based composite restorations on the teeth.
S.W. did not return to the Respondent's office for the follow-up appointment. The Respondent provided no further dental care to S.W.
Concerned about the Respondent's evaluation of her child's teeth, S.W.'s mother spoke with a friend who had been employed as a dental assistant, and then decided to seek another opinion regarding the condition of S.W.'s teeth.
On or about September 6, 2011, S.W. and her mother went to see Dr. Eva Ackley, a dentist practicing at the Ackley Dental Group, for an evaluation of the child's teeth. Dr. Ackley was aware that S.W.'s mother was seeking a second opinion of the child's dental health. S.W. was cooperative throughout her appointment with Dr. Ackley.
S.W. submitted to being x-rayed at Dr. Ackley's office.
Dr. Ackley examined the child's teeth and reviewed the x-ray images and observed that, although S.W. had one tooth that required follow-up observation for potential decay, there were no actual cavities requiring treatment.
According to S.W.'s mother, the child has been evaluated by two other dentists since 2011, one of whom observed three cavities and the other of whom observed none. According to the mother, neither of the subsequent dentists took x-rays of S.W.'s teeth.
At the hearing, the Respondent presented an "expanded functions dental assistant" employed by the Respondent, who testified as to office procedures routinely followed at the Respondent's practice. The witness was not personally involved with S.W. on August 23, 2011.
The witness testified that it was sometimes difficult to obtain x-rays from younger patients and that, in such cases, x-ray images would be obtained during a follow-up visit. If required, sedation was administered to calm the patient and obtain the images. The witness testified that during the course of her employment with the Respondent, no restorative treatment had been performed on a patient without x-ray images having been obtained prior to treatment. Her testimony was credible and convincing, and it has been accepted.
The witness also testified that, in cases where no
x-rays were taken at an initial evaluation, the routine procedure at the Respondent's office was to document the need to obtain
x-rays at a follow-up appointment in the patient's file.
Although the patient records of S.W.'s evaluation by the Respondent on August 23, 2011, state that the patient "would not do any x-rays," the records do not specify that they were to be taken at the follow-up appointment. The witness testified that the failure to document the need to obtain the x-ray images in the patient records was contrary to routine office procedures.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2013).
In this case, the Petitioner is seeking to impose discipline against the Respondent's license. In order to prevail, the Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern
& Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,
510 So. 2d 292 (Fla. 1987). In order to be "clear and convincing," the evidence must be "of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations
sought to be established." See Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the burden has not been met.
The Petitioner has asserted that the Respondent failed to meet minimum standards of performance on August 23, 2011, by diagnosing decay in a patient's teeth without taking x-rays to confirm the diagnosis. Section 466.028, Florida Statutes (2010), provides in relevant part as follows:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(x) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice. For purposes of this paragraph, it shall be legally presumed that a dentist is not guilty of incompetence or negligence by declining to treat an individual if, in the dentist's professional judgment, the dentist or a member of her or his clinical staff is not qualified by training and experience, or the dentist's treatment facility is not clinically satisfactory or properly equipped to treat the unique characteristics and health status of the dental patient, provided the dentist refers the patient to a qualified dentist or facility for appropriate treatment. As used in this paragraph, "dental malpractice" includes, but is not limited to, three or more claims
within the previous 5-year period which resulted in indemnity being paid, or any single indemnity paid in excess of $25,000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.
The Petitioner presented the testimony of an expert witness, who opined that the relevant standard of care requires that the Respondent review x-rays of S.W.'s teeth prior to rendering the diagnosis of interproximal decay in the referenced teeth and that the Respondent's failure to corroborate her diagnosis by reviewing x-rays was a failure to meet the standard of care.
The evidence established that S.W. refused to cooperate in the x-ray process on August 23, 2011. According to testimony establishing the Respondent's office procedures, x-rays would have been obtained with the use of sedation when S.W. returned for the follow-up appointment. Although the Petitioner's expert witness testified that, absent x-rays, he would not have diagnosed interproximal tooth decay in this case, the expert witness also testified that he did not typically take x-rays of children under five years of age. The expert witness testified that it is not possible to obtain x-rays from a totally uncooperative patient and that his office practice does not include use of sedation.
The evidence failed to establish that the Respondent violated the standard of care by diagnosing her observations as dental decay prior to reviewing x-ray images to corroborate her observations. Although the patient records included the Respondent's initial observations, no treatment, other than prophylaxis, was provided to the patient on August 23, 2011. The evidence failed to establish that the proposed restorative work would have commenced before x-ray images were obtained and reviewed to corroborate the Respondent's initial observations.
The Petitioner's expert witness also noted that the Respondent's records failed to specify that the diagnosis was preliminary or that x-ray images would be taken at the follow-up appointment. The Respondent was not charged with any violation of statute or disciplinary rule related to patient records.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Amended Administrative Complaint at issue in this case.
DONE AND ENTERED this 3rd day of October, 2013, in Tallahassee, Leon County, Florida.
S
WILLIAM F. QUATTLEBAUM
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2013.
COPIES FURNISHED:
Susan Foster, Executive Director Board of Dentistry
Department of Health Bin C-08
4052 Bald Cypress Way Tallahassee, Florida 32399-3258
Jennifer A. Tschetter, General Counsel Department of Health
Bin A-02
4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Christopher Claude Torres, Esquire Casey and Torres, LLC
Suite 200
1240 Thomasville Road
Tallahassee, Florida 32303-8707
Adrienne C. Rodgers, Esquire Department of Health
Bin C-65
4052 Bald Cypress Way Tallahassee, Florida 32399-3265
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 |
|---|---|---|
| Mar. 10, 2014 | Agency Final Order | |
| Oct. 03, 2013 | Recommended Order | Evidence fails to establish dentist violated standard of care. |
