STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2295

) RICHARD S. BACH, D.D.S., and ) CAROL ANN BACH, R.H.D., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in this case before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Room 216, Moot Courtroom, Old Law Building, University of Miami in Coral Gables, Florida, beginning at 9:30 a.m. on March 7, 1979.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

2516 Gulf Life Tower Jacksonville, Florida 32207

For Respondent: Baya Harrison, III, Esquire

Post Office Box 391 Tallahassee, Florida 32302

ISSUE

Whether Respondent Richard S. Bach, D.D.S., license #5512, has violated Section 466.38, Florida Statutes, by permitting a dental hygienist under his supervision and control to perform acts constituting the practice of dentistry and not permitted by law to be performed by a dental hygienist.

Whether Respondent Carol Ann Bach, R.H.D., license #2371, has violated Section 466.38, Florida Statutes, by performing acts constituting the practice of dentistry and not permitted by law to be performed by a dental hygienist.

FINDINGS OF FACT

1. The Respondent, Dr. Richard S. Bach, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, and engages in the practice of dentistry in his office, located at 999 North Krome Avenue in Homestead, Florida. Dr. Bach was practicing dentistry during the month of September, 1978.

   
   

2. The Respondent, Carol Ann Bach, is a dental hygienist licensed to practice dental hygiene under the laws of the State of Florida, Chapter 466,

   Florida Statutes. She is employed by Dr. Richard S. Bach at his office, located at 999 North Krome Avenue in Homestead, Florida, and was so employed during the month of September, 1978.

   
   

3. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Dr. Bach and Respondent Carol Bach which was sworn to and subscribed on October 24, 1978. The accusation alleged that Dr. Bach had permitted a dental hygienist under his supervision and control to perform acts constituting the practice of dentistry in violation of Section 466.38, Florida Statutes.

   
   

4. The administrative accusation also alleged that Carol Bach had administered an anesthetic by oral injection into the gums of a patient, Dorothy Moore, and that such was an act constituting the practice of dentistry prohibited by Section 466.38, Florida Statutes. Both Respondents requested an administrative hearing.

   
   

5. Ms. Dorothy Moore sought the dental services of Respondent Dr. Bach in September of 1977. After treating Ms. Moore, Dr. Bach told her that she was developing a severe pyorrhea gum infection and suggested that she make an appointment with his dental hygienist. An appointment was made and x-rays taken, and thereafter, on September 19, 1977, Respondent Carol Bach cleaned Ms. Moore's teeth. Respondent Carol Bach injected into the upper portion of Ms. Moore's mouth approximately fifteen (15) injections of a local anesthesia before performing a curettage procedure. Subsequently, on September 26, 1977, Carol Bach injected a local anesthesia into the lower portion of Ms. Moore's mouth prior to performing the curettage procedure.

   
   

6. Respondents Richard S. Bach and Carol Ann Bach are husband and wife, and were married at the time of the incident involved in this hearing. Carol Bach was employed in the office of Richard Bach as the only dental hygienist employed in the office.

   
   

7. During the time of the cleaning of Ms. Moore's teeth, and during the time in which anesthesia was injected into her gums, the door of the room in which these incidents occurred remained open, both on September 19, and on September 26, 1977. There is no evidence that Respondent Carol Bach hid or intended to hide the fact that she administered an anesthesia by way of injection to the patient. The door was open, and the activity therein was easily visible. Respondent Carol Bach had told Ms. Moore that she was going to anesthetize Ms. Moore's mouth in order that the work would be less painful.

   
   

8. It was undisputed that Respondent Carol Bach gave injections of anesthesia to Ms. Moore. Respondent Dr. Bach did not deny or attempt to justify the acts of his hygienist, and there was no showing that her activities were unknown to Dr. Bach or that he had instructed her to not perform such operations. He knew, or should have known, of her acts.

   
   

9. When Ms. Moore was informed that she needed additional fillings, she became concerned about costs and sought the services of another dentist. Thereafter, she wrote a letter to the Petitioner giving details of her appointments with the Respondents.

   
   

10. Both parties submitted proposed findings of fact and memoranda of law, and both made response to the proposals submitted. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted or are inconsistent with factual findings in this

    Order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

    
    

12. Section 466.04 What constitutes practicing dentistry.-- provides as follows:

    
    

    Any person shall be deemed to be practicing dentistry who performs, or attempts or professes to perform, any dental operation, or oral or oral-maxillofacial surgery, ...

    
    

13. Section 466.38 Number of dental hygienists employed; work to be performed; revocation of licenses.-- provides:

    
    

    Dental hygienists may remove calculus depo- sits, accretions, and stains from exposed surfaces of the teeth and from the gingival sulcus and expose dental X-ray films, make topical application of medicinal agents to the teeth for prophylactic purposes, remove and insert temporary-dressings and generally clear the area after work has been performed by the dentist, and perform such other services that may be performed by dental auxiliaries, as promulgated in the rules and regulations of the board, but shall not per- form any other operations on the teeth or mouth.

    
    

14. Section 466.03 Persons exempt from operation of chapter.-- provides:

    
    

    Nothing in this chapter shall apply to the following practices, acts, and operations:

    (2) The giving by a qualified anesthetist or registered nurse of an anesthetic for a den- tal operation under the direct supervision of a licensed dentist; ...

    
    

15. The administration of an anesthesia by injection is a dental operation which may be performed by a qualified anesthetist or registered nurse under the direct supervision of a licensed dentist but is not within the work to be performed by a dental hygienist. Respondent Carol Ann Bach violated the foregoing statutes.

    
    

16. Section 466.38 further provides.

    
    

    ... Dental hygienists may perform their duties only in the office of a registered and licensed dentist and under the supervision or direct supervision of such dentist, or in public institutions which are approved by the board. (Emphasis supplied)

    ... The board shall suspend or revoke the license of any dentist who shall permit any dental hygienist operating under his super- vision to perform any operation other than that permitted under the provision of this chapter, and shall suspend or revoke the license of any dental hygienist found guilty of performing any operation other than those permitted under this chapter;...

    
    

17. Section 466.09 Definitions.-- provides:

    
    

    1. "Supervision"--Acts performed in the office of a licensed and registered Florida dentist, under his order, control, and responsibility.

    2. "Direct Supervision"--Acts performed in the office of a licensed and registered

       Florida dentist when he is physically present, under his order, control, and responsibility.

       
       

18. Respondent Richard S. Bach violated the foregoing statutes inasmuch as Carol Ann Bach was a hygienist employed in his office by him, under his control, and his responsibility when she performed the injections of local anesthesia into the gums of Ms. Moore.

RECOMMENDATION

1. Suspend the license of Respondent Carol Ann Bach for a period not exceeding one year.

   
   

2. Suspend the license of Respondent Richard S. Bach for a period not exceeding one year.

DONE and ORDERED this 22nd 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

Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302

Docket for Case No: 78-002295

Orders for Case No: 78-002295