STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1862

) ALBERT LEO VOLLMER, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-styled case, after due notice to the parties, on December 10, 1975, at Melbourne, Florida.

APPEARANCES

For Petitioner: James O. Brecher, Esquire

TAYLOR AND BRECHER

605 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

Benjamin Y. Saxon, Esquire SAXON AND RICHARDSON

100 West New Haven Avenue Melbourne, Florida 32901

ISSUE PRESENTED

Respondent's alleged violation of Section 466.24(3)(a), Florida Statutes.

FINDINGS OF FACT

1. Dr. Albert Leo Vollmer is registered as a dentist with the Florida State Board of Dentistry, license no. 1437, and practices dentistry at Satellite Beach, Florida (Testimony of Mullins).

   
   

2. On July 19, 1973, Allen M. Dingman made application to the Veterans Administration for medical benefits consisting of dental treatment (Petitioner's Exhibit 3).

   
   

3. Authorization was given by the Veterans Administration for the requested treatment and Mr. Dingman sought the services of the Respondent. Respondent submitted a treatment plan to the Veterans Administration which was approved. Respondent thereafter provided dental services to Mr. Dingman and, in October, 1973, billed the Veterans Administration for the completed treatment. On October 18, 1973, payment in the amount of $503.00 was approved and paid to the Respondent by the Veterans Administration. This included payment for providing a 3/4 crown on tooth 20 in the amount of $115.00, a full gold crown on

   tooth 19 for $110.00, and a gold pontic on tooth number 18 for $90.00 (Petitioner's Exhibit 4).

   
   

4. In April, 1974, Mr. Dingman visited Dr. Robert B. Downey, D.D.S., concerning a bridge which Respondent had provided him to replace the second molar (tooth number 18), which bridge Dingman had subsequently lost. He asked Dr. Downey what the cost would be to remedy his problem and informed him that the Veterans Administration had paid for the other work. Dr. Downey thereupon contacted the Veterans Administration concerning the prior treatment (Testimony of Dingman, Downey).

   
   

5. Approximately a year later, Mr. Dingman was examined by Dr. Fred C. Nichols, D.D.S., of the Veterans Administration, who found that Dingman did not have gold crowns on teeth number 19 and 20, nor a gold pontic to replace tooth number 18. Mr. Dingman showed Dr. Nichols a cast metal frame work which had once been intended as a unilateral mandibular partial denture to replace tooth number 18 (Testimony of Nichols; Petitioner's Exhibit No. 5).

   
   

6. The Veterans Administration, by letter of May 19, 1975, advised the Respondent that he would be billed for $315.00 representing the work which had not been performed. Respondent advised the VA that Mr. Dingman had objected to crown preparations and that he had therefore prepared a cantilever bridge which had been too bulky and thereafter another bridge was made at his expense which was apparently acceptable. The Veterans Administration reasserted its claim for

   $315.00 and Respondent, by letter of July 14, 1975, sought a credit for the work which he had performed, and by a further letter of August 12, 1975 advised that, although all of his records concerning Mr. Dingman could not be found, he estimated the cost of his actual work to be $207.90, and sought credit therefor (Petitioner's Composite Exhibit 6).

   
   

7. Respondent testified that although his original plan was to provide fixed bridge work for Mr. Dingman, upon reflection and after noting that the patient was a hypersensitive person who objected to having the necessary preparatory work that would be required for crowns, he decided to attempt to preserve the natural teeth if possible and not to "abort" them. He further testified that although he had requested his office assistant to prepare an amended VA form for the patient to reflect his decision to do a different type of work, he did not follow-up to see if it was sent in to the Veterans Administration. He further maintained that his office assistant had done poor work, that he did not pay much attention to the paper work in the office and, although he usually reviewed applications for treatment such as Exhibit 4 by "implicit faith", he would usually "skip-read" these forms and sign them without completely checking the details thereon. He stated that his accounts were in a mess during this period and that this was the reason the dental laboratory records concerning Mr. Dingman were unavailable and why he had since hired accountants to do his bookkeeping work. His present assistant supported the fact that when she was first employed about a year and a half ago, Respondent's records were sloppy and that it was her custom to prepare various forms for the Respondent's signature. Mr. Dingman denied that he had ever told the Respondent that he was afraid to have his teeth cut into, or that he was hypersensitive in nature (Testimony of Vollmer, Mander, Person, Dingman)

   
   

8. Dr. Daniel Beirne, a physician of Indian Harbor Beach, testified that he had common patients with the Respondent, and that the Respondent had an excellent reputation for truth and veracity in the community. Dr. Downey testified to the Respondent's bad reputation as a dentist, as did Dr. Carroll D.

   House, a member of the Brevard Dental Society Grievance Committee (Testimony of Burre, Downey, House).

   
   

9. Respondent's license to practice dentistry was suspended in 1958 for a period of three months for an advertising violation with the proviso that the suspension was suspended for a period of one year upon certain conditions. His license was again suspended for a period of six months in 1960 for advertising violations (Petitioner's Exhibits 7 & 8)

   
   

   CONCLUSIONS OF LAW

   
   

10. Respondent is accused of violating Section 466.24(3)(a), Florida Statutes, which provides as follows:

    
    

    "466.24 Suspension or revocation of license certificate for cause. - The board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he:

    1. Has been guilty of:

       1. Misconduct either in his business or

          in his personal affairs which would bring dis- credit upon the dental profession;

          
          

11. The basis for the alleged violation is that Respondent applied for and received payment from the Veterans Administration to which he was not entitled for dental services he had not performed.

    
    

12. It is undisputed that Respondent billed the Veterans Administration for gold crown work in the amount of $315.00 as to patient Allen M. Dingman and that such dental work was not actually performed by the Respondent. It is equally clear that Respondent did perform substitute dental work in the form of a removable cantilever bridge of a somewhat lesser value. The question for determination is whether Respondent's actions under the circumstances constituted misconduct in his business affairs which would bring discredit upon the dental profession.

    
    

13. Although not specifically delineated by Petitioner in its complaint, the gist of the allegation involves the obtaining of money by the Respondent by the submission of a false claim for dental services to the Veterans Administration. Regardless of whether such an act should be viewed as larceny or to be fraudulent in nature, it is considered necessary that Respondent must either have had an intent to steal, defraud, or obtain money by false pretenses, or exhibit gross and culpable negligence in order to establish that he is "guilty" of misconduct within the meaning of the statute. Respondent's contention is that he had no such intent, but that the submission of the incorrect invoice for dental services was due to clerical inefficiency on the part of his assistant after he had requested her to prepare an amended VA form to reflect the actual dental services provided to the patient. Although the evidence establishes that Respondent's office records were indeed in a shambles at the time in question, the fact remains that he signed and was responsible for the submission of the incorrect statement of services performed to the Veterans Administration, and accepted payment for such services. There is no indication that at any time he ever attempted to correct the situation prior to discovery by the VA, but predicates his defense solely on the basis of inadvertence. Although it may be true that his assistant actually prepared the form, it was his responsibility to ascertain that it reflected accurately the services

    actually performed for which payment was due. In light of the evidence, it is considered that Respondent was grossly negligent in the submission of an incorrect claim, and in thereafter accepting payment for services he had not performed. His actions in this regard constituted misconduct in his business affairs. Such misconduct obviously reflects unfavorably upon the integrity of a dentist and thus would bring discredit upon the dental profession. It is therefore concluded that Respondent violated Section 466.24(3)(a), Florida Statutes.

    
    

14. The question remains as to what would be appropriate disciplinary action for violation of the statute in question. Although not a defense to the violation, it is appropriate to consider in extenuation of the offense the fact that the Respondent did perform dental services for the patient in the form of temporary bridge work, although of a lesser monetary value than that for which he received payment. If this had been his first offense, it would be considered that a reprimand and leniency would be an appropriate sanction as provided in Rule 21G-3.03b, F.A.C. However, Respondent's past record shows that he has been suspended twice in the past by the Florida State Board of Dental Examiners for violations of Chapter 466, Florida Statutes. Accordingly, suspension of Respondent's license to practice dentistry for a period of six months is warranted.

RECOMMENDED ORDER

It is recommended that the Florida State Board of Dentistry suspend the license to practice dentistry in the State of Florida held by Albert Leo Vollmer, D.D.S., for a period of six months for violation of Section 466.24(3)(a), Florida Statutes.

DONE and ENTERED this 21st day of January, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James O. Brecher, Esquire Taylor and Brecher

605 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

Benjamin Y. Saxon, Esquire Saxon and Richardson

100 West New Haven Avenue Melbourne, Florida 32901

Docket for Case No: 75-001862

Orders for Case No: 75-001862