STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1474

) STEPHEN W. TESSLER, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Room 216, Moot Courtroom, Old Law Building, University of Miami Law School, Coral Gables, Florida, on March 8, 1979.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

2516 Gulf Life Tower Jacksonville, Florida 32207

For Respondent: Stephen Mechanic, Esquire

1125 Northeast 125th Street, Suite 200 North Miami, Florida 33161

ISSUE

Whether Respondent Tessler has violated Florida Statute Section 466.24(3)(a), (c) and (d) and is guilty of misconduct, malpractice, or willful negligence in the practice of dentistry.

Whether Respondent is guilty of receiving compensation because of a false claim intentionally submitted.

Whether Respondent has failed to treat a patient according to acceptable dental standards and procedures.

FINDINGS OF FACT

1. Dr. Stephen W. Tessler, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, engaged in the practice of dentistry in his office located at 1245 NW 190th Street, North Miami, Florida.

   
   

2. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Tessler, which was sworn to and subscribed in July, 1978. The accusation contained two counts, and the Respondent requested an administrative hearing. The hearing was first scheduled for October 20,

   1978, but was continued upon motion of the Petitioner to January 10, 1979, and rescheduled upon motion of the Respondent to March 8, 1979.

   
   

3. During the months of January, 1977, through mid-June, 1977, Ms. Rachel Dixon was a dental patient of Respondent Tessler. Ms. Dixon is a 32-year-old woman with a history of severe tooth and gum problems. She had prosthetic appliances and six (6) anterior crowns placed in her mouth ten (10) to fifteen

   (15) years ago in Pennsylvania. She had engaged a dentist, a Dr. Snyder in Hollywood, Florida, but had not seen him for some two (2) years prior to making an appointment with the Respondent for relief from pain and gum irritation, and for cosmetic improvement. Ms. Dixon is an unhappy dental patient with an inordinate fear of dentists, and her home dental hygiene care is inadequate.

   
   

4. At the time Ms. Dixon engaged Respondent Tessler, she was in need of dental treatment for full-mouth gross peridontal inflammation and infected root canals in tooth number 30. She employed the Respondent for the purpose of providing dental treatment for peridontal disease, endodonic care of tooth number 30, recapping to the anterior teeth, and restoration of an upper right bridge on teeth number 3, 4 and 5. Ms. Dixon was referred to Dr. Hirschfield, an orthodontist in Respondent's office, for x-rays. Costs were discussed, a payment made, and a schedule of appointments planned. Thereafter, Ms. Dixon kept numerous scheduled and unscheduled appointments with the Respondent.

   
   

5. Respondent Tessler replaced existing crowns on six (6) anterior teeth (number 6, 7, 8, 9, 10 and 11) with six (6) anterior foil porcelain jackets. In the presence of peridontal disease, Respondent attempted to replace an upper right bridge on teeth number 3, 4 and 5. Respondent was dissatisfied with the "final restoration" but used it instead of making a temporary one. He placed it in Ms. Dixon's mouth because it was better than a temporary restoration.

   
   

6. Respondent had told Ms. Dixon that he would satisfy her and would redo the temporary restoration on her front teeth. He did the restoration a second time. Initially, Ms. Dixon was pleased, but later she was not satisfied because she felt pain upon contact with food, drink, or air that was either hot or cold. At the time of hearing no further work had been done in this area of her mouth, and she still complained of pain.

   
   

7. On the second or third visit, within two (2) weeks of Ms. Dixon's initial visit, Respondent treated tooth number 30 by performing three (3) root canal treatments. After a number of weeks, Ms. Dixon continued to experience pain in this tooth. Respondent treated tooth number 30 again, reopening two (2) root canals to permit drainage and prescribing an antibiotic. During the course of the endodonic treatment on tooth number 30 an existing lower right bridge on teeth number 28, 29, 30 and 31 was damaged.

   
   

8. Ms. Dixon did not return to Respondent for treatment, although she was in pain and attempted for two (2) or three (3) days to reach Respondent by telephone calls to his office. Thereafter, a week or ten (10) days later, Ms. Dixon sought the services of Dr. Marvin Levinson. She indicated to Dr. Levinson that she was not going to return to Respondent Tessler, that she suffered from pain, and that she was concerned about her appearance. Dr. Levinson examined her and referred her to Dr. Satovsky, an endodontist, for immediate relief of pain for a dental abscess, and to Dr. Garfinkle, a peridontist, for a complete peridontal work-up.

   
   

9. It was Dr. Garfinkle's opinion that the caps placed by Respondent Tessler in the mouth of Ms. Dixon were placed in the presence of peridontal

   disease or that the caps caused the disease. He could not determine which came first. Dr. Garfinkle stated that Ms. Dixon was prone to peridontal disease and that she was an unhappy dental patient. Dr. Garfinkle could not comment on the condition of Ms. Dixon's mouth at the time of the treatment given by Respondent, inasmuch as he had not seen her until some eight (8) months had passed.

   
   

10. Dr. Satovsky stated that on tooth number 30, which he treated subsequent to the root canal treatment done by Respondent Tessler, the canals were inadequately cleaned and enlarged. He stated that there were three (3) canals on the tooth, two (2) of which had the rods removed, and that he removed the third. He retreated the three (3) canals and alleviated the pain of Ms. Dixon. Dr. Satovsky could not state whether he thought the work of Respondent was negligent, inasmuch as he could not state what the tooth looked like when Respondent first saw it.

    
    

11. Dr. Marshall Brothers, the Secretary/Treasurer of the State Board of Dentistry, found that the permanent type of restoration was adequate but not good for a temporary restoration. Upon his examination of Ms. Dixon's mouth, he found her general peridontal condition to be poor. Dr. Brothers could not determine whether her condition was a result of the restoration or existed prior to the restoration. He assumed the condition to be the one or the other because of the recency of the restoration.

    
    

12. Respondent Tessler is a licensed dentist and a general practitioner, and is licensed to perform the dental work involved in this case. His charges for this work were substantial, but there was no evidence submitted that said charges were excessive or that Ms. Dixon misunderstood them. Alternative methods of treatment were discussed.

    
    

13. The testimony and the evidence in this case show that Respondent worked within his ability as an average dentist. There was no showing of willful negligence, although Respondent's judgment may have been poor, and probably he should have referred Ms. Dixon to specialists. Affixing a bridge and crown work in the presence of gum disease is not the acceptable standard of care within the dental profession, and Respondent admits to that fact; however, he felt that it would improve the overall condition, and he had not released Ms. Dixon as a patient.

    
    

14. Ms. Dixon was not pleased with Respondent's work or his charges ad, after attempting to make an appointment, left Respondent Tessler for another dentist.

    
    

15. Ms. Dixon was insured through her husband's employer by a policy issued by Aetna Casualty and Surety Company. On January 31, 1977, Respondent Tessler submitted a pre-treatment estimate for work to be done consisting of porcelain-to-gold restorations on anterior teeth number 7, 8, 9, 10 and 11, and for a fixed bridge on teeth number 28, 29, 30 and 31, plus additional treatment in the amount of $2,420.00. The insurance company refused to pay for all treatment except for the fixed bridge on teeth number 28 through 31.

    
    

16. On April 27, 1977, Respondent submitted the customary insurance treatment form to Aetna certifying that the bridgework had been performed and completed on April 27, 1977. Based on Respondent's representation, Aetna paid Respondent $649.50. The bridgework had in fact not been done, nor were the anterior crowns porcelain-to-gold restorations.

17. Approximately one year later, Respondent refunded the overage to Aetna upon the request of the insurance company.

    
    

18. Both parties submitted proposed findings of fact and memoranda of law, and Respondent submitted a proposed order. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order, they have been specifically rejected as being irrelevant or not having boon supported by the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case.

    
    

20. Section 466.24 Suspension or revocation of license certificate for cause.-- provides in pertinent part as follows:

    
    

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

    (3) Has been guilty of:

    (a) Misconduct either in his business or in his personal affairs which would bring dis- credit upon the dental profession;...

    1. Malpractice;

    2. Willful negligence in the practice of dentistry or dental hygiene;...

    
    

21. There is insufficient evidence to show that Respondent Tessler is guilty of malpractice or willful negligence in the practice of dentistry in violation of (c) and (d) in the foregoing subsection.

    
    

22. The evidence shows and Respondent admitted that he received compensation for a false insurance claim he had intentionally submitted. This is misconduct and a violation of (a) in the foregoing subsection. See Richardson v. Florida State Board of Dentistry, 326 So.2d 231.

RECOMMENDATION

Based upon the violation as established, it is recommended that the license of Stephen W. Tessler, D.D.S., be suspended for a period of time not exceeding one year from the date of the Final Order.

DONE and ORDERED this 12th day of June, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207

Stephen Mechanic, Esquire Suite 200

1125 NE 125th Street

North Miami, Florida 33161

Docket for Case No: 78-001474

Orders for Case No: 78-001474