STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) DOCKET NO. 77-410

)

EMORY CAIN, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a public hearing was held in Room 104, Collins Building, Tallahassee, Florida, beginning at 9:00 A.M. on May 18, 1977, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: J. Michael Huey, Esquire

Post Office Box 1794 Tallahassee, Florida 32302

For Respondent: Thomas F. Woods, Esquire

Felix A. Johnston, Jr., Esquire

1030 East Lafayette Street, Suite 112

Tallahassee, Florida 32301 ISSUES

1. Whether the Respondent allowed an unlicensed dental auxiliary to practice dentistry or dental hygiene.

   
   

2. Whether the license of the Respondent Emory T. Cain, No. 4260, should be annulled, withdrawn, suspended or revoked.

FINDINGS OF FACT

1. The parties stipulated to certain facts as follows:

   
   

   1. Dr. Emory T. Cain is currently licensed as a dentist in Florida holding License No. 4260. Dr. Cain is subject to the juris- diction of the Florida State Board of

      Dentistry under Chapter 466, Florida Statutes, and the rules and regulations promulgated thereunder. Dr. Cain was served a copy of

      the Accusation filed by the Florida State Board of Dentistry and the Explanation of

      Rights and Election of Rights form in accordance with Chapters 120 and 466, Florida Statutes. Dr. Cain answered the allegations contained in the Accusation by indicating on the Election of Rights form that the alle- gations contained disputed issues of material fact and that he elected to have a formal hearing before a hearing officer appointed by the Division of Administrative Hearings.

      
      

   2. Dr. Cain does not wish to contest the allegations set forth in the Accusation and for the purposes of this hearing, said allegations shall be deemed as true. Additionally, there are further facts which are relevant to this proceeding.

      
      

   3. On or about October, 1975, Dr. Cain had in his employ, Ms. Charlotte Reavis, whose duties were to serve the normal function of a dental hygienist in the office. Ms. Reavis was not a dental hygienist and Dr. Cain was aware of this fact, having utilized Ms. Reavis as a dental assistant for some time prior to October, 1975. Ms. Reavis, in the performance of her duties, frequently scaled patients' teeth although she performed no deep scaling. The scaling included the re- moval of calculus deposits, accretions and stains from the exposed surfaces of the teeth and the gingival sulcus of patients. This practice continued from approximately October, 1975, until the date of receipt of the Accusation by Dr. Cain, except as noted below. This work was performed under the supervision and control of Dr. Cain who had knowledge of same and allowed sane to be per- formed in violation of Sections 466.02 and 466.24, Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry.

      
      

   4. On or about November, 1975, Dr. Cain was notified by Harold Ritter, D.D.S. of Tallahassee, that there was some concern re- garding Dr. Cain's use of unauthorized per- sonnel to scale teeth in his office. Dr. Cain discussed this telephone conversation with his associate, Tom Delopez, D.D.S. and for approximately a month the manner in which Ms. Reavis performed her duties was altered. Also, Dr. Cain initiated efforts to locate a dental hygienist during this time. However, Ms. Reavis thereafter began scaling patients' teeth again.

   5. In January, 1976, Dr. Delopez initiated a discussion with Dr. Cain regarding the con- tinued use of Ms. Reavis to scale teeth. Dr. Delopez informed Dr. Cain that this practice was prohibited by law and expressed his opinion that it should be discontinued. Dr. Cain informed Dr. Delopez that Dr. Delopez could scale the teeth of the patients he treated but that Ms. Reavis would continue to clean and scale the teeth of other patients. After approximately one month, Ms. Reavis resumed scaling the teeth of patients treated by Dr. Delopez. Dr. Delopez's association with Dr. Cain terminated during September, 1976.

      
      

   6. On or about September, 1976, Carl Daffin,

      D.D.S. became employed by Dr. Cain as an associate. Dr. Cain did not disclose to Dr. Daffin that Ms. Reavis was not a dental hygienist and Ms. Reavis continued to perform the same duties, including the scaling of the teeth of patients, until Dr. Cain's receipt of the Accusation filed in this cause.

      
      

   7. The facts set forth above do show a vio- lation of Sections 466.02(4) and 466.24(e), Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry.

      
      

2. The Hearing Officer further finds:

   
   

   1. The Respondent Dr. Emory Cain enjoys a good reputation among his colleagues and among the medical community in Tallahassee. The consensus of the numerous witnesses produced by the Respondent is that Dr. Cain enjoys a high professional reputation. Dr. Cain also enjoys a reputation as an unselfish contributor to the civic well being of the community.

      
      

   2. There has been no complaint from the patients of the Respondent that the work done by Charlotte Reavis, a dental assistant employed by the Respondent, that Charlotte Reavis caused injury to a patient.

      
      

   3. The work done by a dental assistant and the training received by a dental assistant does not equal the work licensed to be done by a dental hygienist and does not equal the amount of training required of a dental hygienist.

      
      

   4. A deposition of Louis Pesce, D.D.S., taken on behalf of the Florida State Board of Dentistry was received and considered by the Hearing Officer subsequent to the hearing and depositions of Shelley Register, Jo Ann Barnes, and Elizabeth Barber taken at the incident of the Respondent Dr. Emory

      T. Cain were received subsequent to the hearing.

      
      

   5. The Respondent Dr. Cain made a minimum effort to find a dental hygienist to work in his office but was satisfied with the work done by the dental assistant, Charlotte Reavis, and continued to use her to perform a

      procedure lawfully relegated to a dental hygienist, that is the scaling of teeth.

      
      

   6. The proposed orders of the Petitioner and of the Respondent have been examined and considered in this Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 466.02, Persons entitled to Practice dentistry or dental hygiene.-, Florida Statutes, provides in part:

   
   

   "It shall be unlawful for any person to practice dentistry or dental hygiene in the state, except:

   * * *

   (4) Pursuant to rules and regulations promulgated by the board, a dental auxiliary may, under supervision or direct supervision, as defined in s. 466.09(8) and (9), perform limited auxiliary dental services, procedures, and duties which do not involve or require the skill or knowledge of a dentist or dental hy- gienist and which are only preparatory or supplementary to any diagnosis, surgical pro- cedure, or treatment of disease, pain, de- formity, deficiency, injury, or physical con- dition of the human teeth or jaws; but a dental auxiliary cannot perform any procedure (sic) which requires professional judgment and skill, such as diagnosis and treatment planning, the cutting or removal of hard or soft tissue, the insertion of any prosthetic appliance in the mouth which when worn by the patient would come into direct contact with hard or soft tissue, or the removal of calculus deposits from the exposed surfaces

   of the teeth and gingival sulcus."

   
   

4. Charlotte Reavis, the dental assistant employed by the Respondent Cain, is not entitled to practice dentistry or dental hygiene under the foregoing statute.

   
   

5. Section 466.24, Suspension or revocation of license certificate for cause.-, Florida Statutes, provides in part:

   
   

   "The board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he:

   * * *

   (e) Employing or permitting any unlicensed person or persons to perform any work in his office which would constitute the prac- tice of dentistry or dental hygiene, except a dental auxiliary pursuant to the pro- visions of this chapter;"

6. Chapter 21G-9 of the Florida Administrative Code states the tasks which may be performed by dental auxiliaries and the conditions. The tasks performed by the dental assistant, Charlotte Reavis, for the Respondent Cain were not included within the provisions of Chapter 21C-9 as tasks which nay be performed by dental auxiliaries and conditions, that is, the scaling of teeth which is a duty to be performed by dental auxiliary more highly trained than Charlotte Reavis.

RECOMMENDATION

Suspend the license of Respondent Cain for a period not to exceed thirty

(30) days.

DONE and ORDERED this 30th day of June, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

J. Michael Huey, Esquire Post Office Box 1794 Tallahassee, Florida 32302

Thomas F. Woods, Esquire

Felix A. Johnston, Jr., Esquire

1030 East Lafayette Street, Suite 112

Tallahassee, Florida 32301

Docket for Case No: 77-000410

Orders for Case No: 77-000410