STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF DENTISTRY,

Petitioner,

vs.

CHARLOTTE GERRY, D.M.D.,

Respondent.

/

Case Nos. 19-2898PL

19-2899PL

19-2900PL

19-2901PL

19-2902PL

RECOMMENDED ORDER

On October 28 through 30, 2019, a final hearing was held by video teleconference in Tallahassee, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner: Octavio Simoes-Ponce, Esquire

Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health

4052 Bald Cypress Way, Bin C-65

For Respondent (Case Nos. 19-2898PL through 19-2900PL):

Charlotte Yvonne Gerry, pro se 6383 Whispering Oaks Drive North Jacksonville, Florida 32277

For Respondent (Case Nos. 19-2901PL and 19-2902PL):

George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804

6817 Southpoint Parkway

Jacksonville, Florida 32216 STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On September 25, 2014, Petitioner, Department of Health (“Petitioner” or “Department”), filed its Administrative Complaint No. 2013-11395 (the “T.C. Administrative Complaint”) against Respondent, Charlotte Gerry, D.M.D. (“Respondent” or “Dr. Gerry”), a licensed dentist in the state of Florida. The complaint charged Respondent with failing to refer or advise Patient T.C. to seek follow-up care after having experienced a two to three minute seizure during her dental treatment, in violation of section 466.028(1)(x); and with delegating the adjustment and/or intraoral repair of Patient T.C.’s partial denture, in violation of section 466.028(1)(z). On December 8, 2014, Respondent filed an Election of Rights in which she disputed the allegations, and requested an administrative

hearing. The case was ultimately designated as DOAH Case No. 19-2898PL.

On March 6, 2017, the Department filed its Administrative Complaint No. 2014-16075 (the “S.S. Administrative Complaint”) against Dr. Gerry. The complaint charged Respondent with failing to keep medical history and/or consent forms for Patient S.S., in violation of section 466.028(1)(m); and failing to adequately diagnose decay in Patient S.S.’s tooth 30; failing to diagnose the condition of the roots of Patient S.S.’s tooth 30; failing to adequately fill the canals of Patient S.S.’s teeth 30 and 31 during root canal treatment; failing to take a new crown impression of Patient S.S.’s tooth 31 following changes to the tooth’s margins; and failing to assess and correct the crown on Patient S.S.’s tooth 31 when the fit was compromised, in violation of section 466.028(1)(x). On August 8, 2017, Respondent filed an Election of Rights and Petition for Formal Administrative Hearing in which she disputed the allegations, and requested an administrative hearing. The case was ultimately designated as DOAH Case No. 19-2899PL.

On January 19, 2017, the Department filed its Administrative Complaint No. 2015-10268 (the “G.H. Administrative Complaint”) against Dr. Gerry. The complaint charged Respondent with failing to diagnose issues and provide corrective treatment regarding the crown she placed on Patient

G.H.’s tooth 13, in violation of section 466.028(1)(x). On or about February 10, 2017, Respondent filed an Election of Rights and Petition for Formal Administrative Hearing in which she disputed the allegations, and requested an administrative hearing. The case was ultimately designated as DOAH Case

No. 19-2900PL.

On December 10, 2018, the Department filed its Amended Administrative Complaint No. 2016-22431 (the “J.D. Administrative Complaint”) against Dr. Gerry. The complaint charged Respondent with failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; failing to lift Patient J.D.’s sinus before placing an implant in the area of Patient J.D.’s tooth 14; failing to appropriately place the implant; failing to react appropriately to the implant sinking into Patient J.D.’s sinus; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., in violation of section 466.028(1)(x). On December 19, 2018, Respondent filed an Election of Rights and Petition for Formal Administrative Hearing in which she disputed the allegations, and requested an administrative hearing. The case was ultimately designated as DOAH Case No. 19-2901PL.

On December 10, 2018, the Department filed its Amended Administrative Complaint No. 2017-00132 (the “J.A.D. Administrative Complaint”) against Dr. Gerry. The complaint charged Respondent with failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; placing an implant that was too large; and failing to diagnose or respond to an oral fistula that developed in the area of Patient J.A.D.’s tooth 8, in violation of section 466.028(1)(x); and failing to document examination results showing Patient J.A.D. had an infection; failing to document the model or serial number of the implant; and failing to document the results of the bone examination, in violation of section 466.028(1)(m). On December 19, 2018, Respondent filed an Election of Rights and Petition for Formal Administrative Hearing in which she disputed the allegations, and requested an administrative hearing. The case was ultimately designated as DOAH Case No. 19-2902PL.

On May 30, 2019, the petitions were referred to DOAH. The cases were consolidated, and the final hearing was scheduled for August 5 through 8, 2019.

On June 5, 2019, attorney George K. Brew filed a Notice of Non-representation in Case No. 19-2898PL, and a Consent Motion to Withdraw in Case Nos. 19-2899PL and 19-2900PL. On June 11, 2019, Mr. Brew was, by Order Granting Motion to Withdraw,

deemed withdrawn as counsel of record for Respondent in Case Nos. 19-2898PL, 19-2899PL, and 19-2900PL. Respondent

thereafter appeared pro se in those cases. Mr. Brew continued as counsel of record in Case Nos. 19-2901PL and 19-2902PL.

On July 9, 2019, Respondent moved for a continuance of the final hearing. The motion was granted, and the hearing was rescheduled to October 28 through 30, 2019.

On October 18, 2019, Petitioner filed a Request for Official Recognition/Judicial Notice with regard to sections of the Florida Statutes and Florida Administrative Code Rules.

Official recognition of those items was granted. The Request also sought official recognition of a Florida Office of Insurance Regulation Medical Malpractice Closed Claims Report, and Respondent’s Department of Health licensure file. Official recognition of those items was denied, with their admissibility to be determined as they were offered in evidence at the final hearing.

On October 24, 2019, the parties filed their Joint

Pre-hearing Stipulations (JPS), with one JPS filed for Case Nos. 19-2898PL through 19-2900PL, and another for Case

Nos. 19-2901PL and 19-2902PL. The stipulated facts set forth therein have been incorporated in this Recommended Order. The JPS also contained stipulations regarding issues of law on which there was agreement. Those stipulations, which are determined

to accurately set forth applicable issues of law, are incorporated in this Recommended Order.

The final hearing was convened on October 28, 2019. At hearing, Joint Exhibits 1 through 5, consisting of Dr. Gerry’s dental records for the patients in Case Nos. 19-2898PL through 19-2902PL, respectively, were received in evidence. On November 15, 2019, Petitioner moved to admit a CD containing higher resolution radiographs of Patient S.S. in Case No. 19- 2899PL. The Motion was granted, and the CD was received in evidence as Joint Exhibit 2 Supplement.

The Department offered the testimony of Patient S.S. (Case No. 19-2899PL); L.C., the husband of Patient T.C. (who

died in 2015)(Case No. 19-2898PL); Patient J.A.D. (Case No. 19- 2902PL); Dr. Solomon Brotman (Case Nos. 19-2898PL through 19- 2900PL), who was accepted as an expert in general dentistry; and Dr. William Kinzler (Case Nos. 19-2901PL and 19-2902PL), who was accepted as an expert in general dentistry. Petitioner’s Exhibits 1 through 13 were received in evidence. Petitioner’s Exhibit 6 is the deposition transcript of Patient G.H. (Case

No. 19-2900PL), whose presence was not able to have been procured by subpoena. The use of the deposition is authorized by Florida Rules of Civil Procedure 1.330(a)(3) and Florida Administrative Code Rule 28-106.206, and will be considered and given weight as though Patient G.H. testified in person at the

final hearing. Petitioner’s Exhibit 2 (Case Nos. 19-2898PL through 19-2900PL) and Exhibit 8 (Case Nos. 19-2901PL and 19-2902PL) are deposition transcripts of Respondent.

Respondent testified on her own behalf, and Respondent’s Exhibits 15 and 28 were received in evidence. Respondent’s Exhibit 28 is the deposition transcript of Dr. Robert J. Fish (Case Nos. 19-2901PL and 19-2902PL), who, as a result of his knowledge, skill, training, education, and experience, evidence of which was elicited in his deposition testimony, is accepted as an expert in general dentistry. The use of the deposition is authorized by rule 1.330(a)(3) and rule 28-106.206, and will be considered and given weight as though Dr. Fish testified in person at the final hearing. Respondent offered Respondent’s Exhibit 6 which was not accepted in evidence, but was accepted as a proffer. As such, Respondent’s Exhibit 6 will not be considered, but will accompany the record of this proceeding.

The five-volume final hearing Transcript was filed on November 25, 2019. The parties were initially allowed 20 days in which to file post-hearing submittals. On November 27, 2019, Respondent filed a Motion for Extension of Time within which to file post-hearing submittals, to which Petitioner did not object. The deadline for submitting post-hearing submittals was thereafter set for January 6, 2020. Both parties timely filed

Proposed Recommended Orders that were considered in preparation of this Recommended Order.

This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. See McCloskey v. Dep’t of Fin. Servs., 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to those in effect at the time of the alleged violations, unless otherwise noted.

FINDINGS OF FACT

1. The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes.

   Stipulated Facts

   
   

2. Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995.

3. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064.

4. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case.

5. Patient T.C. was a patient of Respondent.

   
   

6. Patient S.S. was a patient of Respondent.

   
   

7. Patient G.H. was a patient of Respondent.

   
   

8. Patient J.D. was a patient of Respondent.

   
   

9. Patient J.A.D. was a patient of Respondent.

   
   

   Other Findings of Fact

   
   

10. On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited.

11. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1).

12. On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative

    
    

    Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1).

13. On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1).

    Case No. 19-2898PL - The T.C. Administrative Complaint

    
    

14. Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013.

15. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent.

16. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though

    
    

    she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues.

17. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive.

18. Patient T.C. died in 2015.

    
    

    Count I

    
    

19. Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up

    care for the management of what were believed to be seizures while Patient T.C. was in the dental chair.

20. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are

    
    

    seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits.

21. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date.

22. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following:

    Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands.

    
    

23. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011.

    
    

24. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption.

25. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered.

26. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her

    
    

    seizures as alleged in Count I of the T.C. Administrative Complaint.

    Count II

    
    

27. Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair.

    July 17, 2012 Repair

    
    

28. On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture.

29. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth.

30. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However,

    Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman

    
    

    testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law.

31. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on

    July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint.

    June 11, 2013 Repair

    
    

32. On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory.

33. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest

    
    

    that the dental assistant then placed the denture into Patient T.C’s mouth.

34. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence.

35. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth.

36. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint.

    
    

    Case No. 19-2899PL - The S.S. Administrative Complaint

    
    

    Count I

    
    

37. Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by:

    1. Failing to keep a written record of Patient S.S.’s medical history; and/or

    2. Failing to keep an accurate written record of any consent forms signed by Patient S.S.

    Count II

    
    

38. Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by:

    1. Failing to adequately diagnose decay in tooth 30;

       
       

    2. Failing to adequately diagnose the condition of the roots of tooth 30;

    3. Failing to adequately obturate the canals of tooth 30 during root canal treatment;

    4. Failing to adequately obturate the canals of tooth 31 during root canal treatment;

    5. Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or

    6. Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised.

39. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination,

    
    

    Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30.

40. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete.

41. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014,

    
    

    indicates that “[r]oot canal consent form explained to and signed by patient.”

42. Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment.

43. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition.

44. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and

    
    

    given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms.

45. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015.

    Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit.

46. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The

    
    

    canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root.

47. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed.

48. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than

    March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.”

49. Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were

    
    

    sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited.

50. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent.

51. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth.

52. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin.

53. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was

    
    

    no persuasive evidence that such would meet the relevant standard of performance.

54. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment.

55. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31.

56. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves.

    
    

57. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place.

58. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made.

59. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics.

60. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient

    S.S. was a “bruxer,” meaning that she ground her teeth.

    
    

61. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman.

62. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a

    
    

    “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of

    tooth 31 following the removal of dentin on June 4, 2014, and

    
    

    by failing to assess and correct the open margin on the tooth 31 crown.

63. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether.

64. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31.

65. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert

    working-length files beyond the area of calcification to near

    
    

    the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment.

66. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30.

    Case No. 19-2900PL - The G.H. Administrative Complaint

    
    

67. Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment.

68. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable.

69. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit.

70. Patient G.H. also had work done on other teeth to address “minor areas of decay.”

71. On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth

    12 and 14.

    
    

72. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H.

    
    

    complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints.

73. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed.

74. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth.

75. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications.

76. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office.

    
    

77. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image.

78. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental.

79. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth.

    
    

80. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski.

81. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns.

82. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance.

83. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint

84. Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by:

    1. Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations;

       
       

    2. Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14;

    3. Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant;

    4. Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or

    5. Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D.

85. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of

    Dr. Jacobs for some time.

    
    

86. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth.

    As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs.

    However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility.

    
    

87. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs.

88. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses.

89. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus.

90. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved.

91. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots.

92. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around

    tooth 14, and the tipped and curved roots each constituted pre- operative red flags.

    
    

93. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters.

94. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement.

95. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted.

96. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone.

97. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like

    
    

    material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost.

98. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone.

99. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant.

100. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift.

101. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters

     
     

     in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters.

102. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole.

103. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial.

104. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been

     
     

     surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place.

105. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus.

106. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked

     
     

     about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident.

107. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective.

108. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate.

109. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus.

110. Patient J.D. sued Respondent for medical malpractice.

     
     

     The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.”

     
     

111. The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure.

112. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues.

113. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant.

114. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D.

115. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the

     
     

     circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein.

     Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I

116. Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by:

     1. Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8;

     2. Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or

     3. Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8.

     Count II

     
     

117. Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by:

     1. Failing to document examination results showing Patient

        
        

        J.A.D. had an infection;

        
        

     2. Failing to document the model or serial number of the implant she placed; and/or

     3. Failing to document the results of Respondent’s bone examination.

     
     

118. Patient J.A.D. first presented to Respondent on

     
     

     March 3, 2016. His first appointment included a health history, full x-rays, and an examination.

119. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention.

120. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period.

121. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth

     8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system.

     
     

122. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records.

123. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root.

124. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate.

125. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual

     5 millimeter size, which she characterized as a “pseudo pocket.”

     
     

     She recorded her activities. The response to the sac of pus was appropriate.

126. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8.

127. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone.

128. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the

     
     

     length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket.

129. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance.

130. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing.

131. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model

     
     

     and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall.

132. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x

     13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43

     of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information.

133. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed.

134. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check.

     
     

135. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated.

136. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns.

137. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and

     
     

     convincing that the “zit” was causally related to the placement of the implant.

138. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth.

139. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression.

140. Patient J.A.D. did not return to Respondent.

     
     

141. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw.

142. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient

     
     

     J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur.

143. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present.

144. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017.

145. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw.

     
     

146. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing.

147. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth.

148. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of

     
     

     performance in the sizing and placement of the tooth 8 implant

     
     

     by Respondent.

     
     

     CONCLUSIONS OF LAW

     
     

     1. Jurisdiction

        
        

149. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 456.073(5), 120.569, and 120.57(1), Fla. Stat. (2019).

150. The Department has authority to investigate and file administrative complaints charging violations of the laws governing dentists. § 456.073, Fla. Stat. (2019).

     1. Standards

        
        

151. This proceeding is governed by the standards in effect at the time the alleged violations occurred. The administrative complaints in these consolidated cases allege violations of sections 466.028(1)(m), (x), and (z) that occurred from September 23, 2011, to June 2, 2016. Section 466.028 was most recently amended in 2011, before the first alleged violation (Ch. 2011-233, § 7, Laws of Florida), and in 2017, after the final alleged violation (Ch. 2017-41, § 17, Laws of Florida). The 2017 amendment did not affect the applicable statutes, which have existed in their present form throughout the times at issue.

     
     

152. Sections 466.028(1)(m), (x), and (z) provided, at all relevant times, that:

     1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

        
        

        * * *

        
        

        (m) Failing to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test results, and X rays, if taken.

        
        

        * * *

        
        

        (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 . . . 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, . . . 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.

        
        

        * * *

        
        

        (z) Delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform them.

        
        

        1. Burden and Standard of Proof

           
           

153. The Department bears the burden of proving the specific allegations that support the charges alleged in the administrative complaints by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,

than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof:

[E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the

witnesses must be lacking in confusion as to the facts in issue. 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.

In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So.

2d 986, 989 (Fla. 1st DCA 1991).

1. A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel.

   Vining v. Fla. Real Estate Comm’n, 281 So. 2d 487, 491

   
   

   (Fla. 1973). Penal statutes must be construed in terms of their literal meaning and words used by the Legislature may not be expanded to broaden the application of such statutes. Thus, the provisions of law upon which this disciplinary action has been brought must be strictly construed, with any ambiguity construed against Petitioner. Elmariah v. Dep’t of Bus. & Prof’l Reg.,

   574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.

   
   

   Fish & Wildlife Conserv. Comm’n, 57 So. 3d 929, 931 (Fla. 1st

   
   

   DCA 2011); Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100

   
   

   (Fla. 1st DCA 2008); Whitaker v. Dep’t of Ins., 680 So. 2d 528,

   
   

   531 (Fla. 1st DCA 1996); Dyer v. Dep’t of Ins. & Treasurer, 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

2. The allegations of fact set forth in the administrative complaints are the grounds upon which these proceedings are predicated. Trevisani v. Dep’t of Health,

   908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v.

   
   

   Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus,

   
   

   the scope of this proceeding is properly restricted to those matters as framed by Petitioner. M.H. v. Dep’t of Child. & Fam.

   Servs., 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

   
   

   1. Analysis

      
      

      Case No. 19-2898PL

      
      

      Count I

      
      

3. Count I of the Administrative Complaint in Case

   
   

   No. 19-2898PL alleges that Respondent failed to comply with the applicable standard of performance on September 23, 2011, for failing to refer Patient T.C. to an appropriate medical professional for her seizures, in violation of section 466.028(1)(x). As set forth in the Findings of Fact herein, the Department failed to establish that Respondent violated the standard of performance as alleged.

   
   

   Count II

   
   

4. Count II of the Administrative Complaint in Case No.

   
   

   19-2898PL alleges that Respondent delegated the intraoral repair of Patient T.C.’s partial to a person not qualified by training, experience, or licensure to perform such intraoral repair on July 17, 2012, and June 11, 2013, in violation of section 466.028(1)(z). As set forth in the Findings of Fact herein, the Department failed to meet its burden to establish, by clear and convincing evidence, that Respondent committed the violations as alleged.

   Case No. 19-2899PL

   
   

   Count I

   
   

5. Count I of the Administrative Complaint in Case

   
   

   No. 19-2899PL alleges that Respondent failed to keep a written record of Patient S.S.’s medical history and consent forms in violation of section 466.028(1)(m). As set forth in the Findings of Fact herein, the Department failed to meet its burden to establish, by clear and convincing evidence, that Respondent committed the violations as alleged.

   Count II

   
   

6. Count II of the Administrative Complaint in

   
   

   Case No. 19-2899PL alleges that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the

   
   

   condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, in violation of section 466.028(1)(x). As set forth in the Findings of Fact herein, the Department established, by clear and convincing evidence, that Respondent violated the standard of performance as alleged.

7. Count II of the Administrative Complaint in

   
   

   Case No. 19-2899PL also alleges that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30. As set forth in the Findings of Fact herein, the Department failed to meet its burden to establish, by clear and convincing evidence, that Respondent violated the standard of performance as alleged.

   Case No. 19-2900PL

   
   

8. The Administrative Complaint in Case No. 19-2900PL alleges that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient

   G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on

   
   

   tooth 13, and that Respondent failed to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, in violation of section 466.028(1)(x). As set forth in the Findings of Fact herein, the Department established, by clear and convincing evidence, that Respondent violated the standard of performance as alleged.

   Case No. 19-2901PL

   
   

9. The Amended Administrative Complaint in Case

   
   

   No. 19-2901PL alleges that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. As set forth in the Findings of Fact herein, the Department established, by clear and convincing evidence, that Respondent violated the standard of performance as alleged, in violation of section 466.028(1)(x).

   
   

10. The Amended Administrative Complaint in Case

    
    

    No. 19-2901PL also alleges that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations, in violation of section 466.028(1)(x). As set forth in the Findings of Fact herein, the Department failed to meet its burden to establish, by clear and convincing evidence, that Respondent violated the standard of performance as alleged.

    Case No. 19-2902PL

    
    

    Count I

    
    

11. Count I of the Amended Administrative Complaint in Case No. 19-2902PL alleges that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.A.D. by: failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; failing to pick an appropriately-sized implant and placing an implant that was too large; and failing to diagnose or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8, in violation of section 466.028(1)(x). As set forth in the Findings of Fact herein, the Department failed to meet its burden to establish,

    
    

    by clear and convincing evidence, that Respondent violated the standard of performance as alleged.

    Count II

    
    

12. Count II of the Amended Administrative Complaint in Case No. 19-2902PL alleges that Respondent failed to: document examination results showing Patient J.A.D. had an infection; document the model or serial number of the implant she placed; and document the results of Respondent’s bone examination, in violation of section 466.028(1)(m). As set forth in the Findings of Fact herein, the Department failed to meet its burden to establish, by clear and convincing evidence, that Respondent committed the violations as alleged.

    1. Penalty

    
    

13. Pursuant to section 456.072(2), the Board of Dentistry may impose one or more of the following penalties: suspension or permanent revocation of a license; restriction of practice or license; imposition of an administrative fine; issuance of a reprimand or letter of concern; placement of the licensee on probation for a period of time; corrective action; refund of fees billed and collected from a patient; and remedial education.

14. Rule 64B5-13.005 establishes the range of penalties against an existing license for violations of section 466.028. Rule 64B5-13.005 was amended once during the periods at issue,

    
    

    on January 24, 2012. The amendment did not affect the penalties applicable in these cases, which have existed in their present form throughout the times at issue.

    Section 466.028(1)(m)

    
    

15. Rule 64B5-13.005(1)(m) establishes the range of penalties against an existing license for a first offense of section 466.028(1)(m) as a minimum of a $500 fine, to probation with conditions and a $7,500 fine; and for a second offense of section 466.028(1)(m) as a minimum of probation with a $1,000 fine, to suspension and a $10,000 fine.

16. Petitioner alleged violations of section 466.028(1)(m) in Case Nos. 19-2899PL and Case No. 19-2902PL that were not proven. Thus, the penalties established in rule 64B5- 13.005(1)(m) are not applicable.

    Section 466.028(1)(x)

    
    

17. Rule 64B5-13.005(1)(x) establishes the range of penalties against an existing license for a first offense of section 466.028(1)(x) as a minimum of a $500 fine, to a maximum of probation with conditions, and a $10,000 fine; for a second offense of section 466.028(1)(x) as a minimum of probation with a $1,000 fine, to suspension and a $10,000 fine; and for a third offense of section 466.028(1)(x) as a minimum of a $2,500 fine, to revocation and a $10,000 fine.

    
    

18. Respondent’s licensure file indicates that Respondent has a previous offense of section 466.028(1)(x), which was resolved by Final Order in Case No. 2002-25421.

19. This Recommended Order has determined that Respondent violated section 466.028(1)(x) as to three patients. However, as this case was being resolved, there was but a single prior offense. Case law suggests that since, at the time these matters were being adjudicated, there was only one previous violation, these simultaneously tried cases should not be “stacked” as second, third, and fourth offenses. See Parrot

    Heads v. Dep’t of Bus. & Prof’l Reg., 741 So. 2d 1231, 1234 (Fla. 1st DCA 1999) (“The concern here is that the Division made no finding of a previous violation of section 832.05(2), Florida Statutes, which under its guidelines would warrant a more onerous penalty, nor is there substantial competent evidence in the record of such a violation.”)(emphasis added).

20. The violations found herein should be considered collectively as Respondent’s second offense for purposes of the application of the Disciplinary Guidelines. However, given the number and severity of the violations, the penalty should be applied at the maximum range for a second offense of section 466.028(1)(x), which is suspension and a $10,000 fine.

    
    

    Section 466.028(1)(z)

    
    

21. Rule 64B5-13.005(1)(z) establishes the range of penalties against an existing license for a first offense of section 466.028(1)(z) as a minimum of a $2,500 fine, to a maximum of probation with conditions, a $10,000 fine, and suspension.

22. Petitioner alleged violations of section 466.028(1)(z) in Case No. 19-2898PL that were not proven. Thus, the penalties established in rule 64B5-13.005(1)(z) are not applicable.

    Aggravating and Mitigating Factors

    
    

23. Rule 64B5-13.005(2) establishes aggravating and mitigating circumstances, which may be applied when a deviation from the recommended penalty is warranted. Given the broad penalty range, deviation is not necessary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order:

1. Dismissing the Administrative Complaint in Case

   
   

   No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL;

2. With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that

   
   

   Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient

   S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint;

3. With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint;

4. With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of

   
   

   performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations;

5. Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.;

6. Imposing an administrative fine of $10,000; and

   
   

7. Requiring reimbursement of costs.

DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY 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 31st day of January, 2020.

COPIES FURNISHED:

George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804

6817 Southpoint Parkway

Jacksonville, Florida 32216 (eServed)

Kelly Fox, Esquire Department of Health 2585 Merchant’s Row

Tallahassee, Florida 32311 (eServed)

Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Jennifer Wenhold, Interim Executive Director Board of Dentistry

Department of Health Bin C-08

4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed)

Louise Wilhite-St. Laurent, General Counsel Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

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.

Docket for Case No: 19-002898PL

Orders for Case No: 19-002898PL