vs. ) CASE NO. 80-109
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 28 and 29 May 1980 at Miami, Florida.
For Petitioner: Bert J. Harris, III, Esquire
For Respondent: Mallory H. Horton, Esquire
By Administrative Complaint served 12 December 1979 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Irving Grebin as a doctor of dental surgery, and the licensee's right to practice thereunder. As grounds therefor, Petitioner alleges in 21 counts with 68 paragraphs that Respondent employed or permitted an unlicensed person or persons to perform work constituting the practice of dentistry; aided, assisted or advised an unlicensed person to practice dentistry; delegated professional duties to one not qualified; engaged in misconduct, willful negligence, and malpractice in the practice of dentistry; failed to exercise the minimum degree of skill or care possessed by other dentists; maintained an unsanitary dental office and unsafe and unsanitary dental equipment; and engaged in unauthorized advertising.
This case was originally consolidated for hearing with the case of Department of Professional Regulation v. Frederick Stang, Case No. 80-122. However, before the scheduled date of this hearing, Petitioner and Stang entered into a settlement agreement. Thereafter, and before this hearing, Stang died.
Although the parties stipulated that this settlement agreement be made a part of the record, no copy was provided the Hearing Officer. Accordingly, the motion by Petitioner at this hearing to sever the cases was granted. Other preliminary matters resolved at the commencement of these proceedings were:
All evidence has been considered, as well as proposed findings submitted by the parties. Those proposed findings not included herein were deemed not supported by substantial competent evidence or unnecessary to the results reached.
Dade Dental Laboratories was opened in 1973-74 by a nonprofit corporation which leased dental facilities contiguous and internally connected thereto to dentists. One of the original organizers of the laboratory, Samuel Kushner, was a laboratory technician who had so worked in New York for many years.
Respondent was employed on a salary (hourly) basis in 1978 to work as a dentist at the dental facility located at 1225 Washington Avenue, Miami Beach, Florida and known as Dade Dental Associates (hereinafter referred to as Dade Dental).
At this time, Dade Dental Laboratories was owned by the wives of Samuel Kushner and Frank Schiller. Schiller was employed as office administrator.
Dade Dental Laboratories owned the lease of the premises and equipment located therein. In 1978, the dental office spaces were leased to Frederick Stang, D.D.S., who employed Respondent and other dentists on a salary basis.
Effective 1 July 1979, Respondent's wife purchased the fifty percent interest in the laboratory previously owned by Mrs. Kushner and the sub1ease of the dental offices was given to Respondent. Stang continued as an employee of Respondent until September 1979.
Frank Schiller spoke Yiddish and was often used as a translator for some of the older Jewish clients who came to Dade Dental. After the sublease was given to Respondent, Schiller continued as administrator until September
1979. The ownership of the fifty percent interest in the laboratory owned by Mrs. Schiller, if not still held by Mrs. Schiller, was not shown.
Inspections of the premises at 1225 Washington Avenue were conducted in August, September and October 1979 and again in January 1980.
The inspection conducted by the Department of Health and Rehabilitative Services on September 24, 1979 revealed X-ray equipment that was defective by reason of not being properly shielded and having a timer operating erratically (Exhibits 4 and 5); the inspections conducted September 6 and 13 revealed old equipment, improper sterilization of instruments, a very dirty laboratory, dirty impression trays, bite blocks with teeth marks indicating prior use, rusted instruments where chrome had chipped off the underlying steel, no sterile sutures, and a cold dry-heat sterilizer.
Following these inspections, Respondent ordered a new X-ray machine and new instruments. No evidence was presented that the rusty instruments found in the dental operatories were ever used on a patient. Respondent's testimony, which was not rebutted, was that he didn't like the instruments located in the operatories when he started working there and he brought his own instruments which he used.
The charges of allowing unauthorized persons to perform acts constituting the practice of dentistry, malpractice, misconduct in business or personal affairs of a nature to bring the dental profession into disrepute, and failing to exercise proper care in the treatment of patients involved Joseph Cedar and Hilda Hirschman.
After receiving a high estimate of the cost for needed dental work from his dentist, Joseph Cedar, at the recommendation of a friend, went to Dade Dental for a second estimate.
He first saw Frank Schiller, who took Cedar to Seymour Rickles, D.D.S., one of the dentists employed at the facility. Cedar described Schiller as the "boss" who gave orders and who looked into his mouth. No evidence was presented that Schiller ever put his hands or any instrument in Cedar's mouth while Cedar was being treated by Respondent or any other dentist at Dade Dental.
After examination and impression, Rickles prepared crowns and a partial denture. Although Cedar testified that Rickles performed all the work done on him, the dental record (Exhibit 14) shows 5 dentists worked on Cedar at this office. However, most of the work appears to have been done by Rickles and Stang.
After the work on Cedar had been completed, he complained of pain from the partial dentures which had been prepared for him and was referred to Respondent, who first saw Cedar on June 28, 1979 when he adjusted the partial plates. Exhibit 14 indicates Respondent again saw Cedar on July 3, 19, 24, 25 and August 7 for adjustments. Cedar testified he told Respondent about a sore spot near the partial denture on the upper left side of his mouth but Respondent only told him it was not caused by the dentures. Respondent's version was that he X-rayed the lower right side of Cedars' mouth where the partial had been fitted and found an abscess which could cause the pain described by Cedar, and that Cedar never complained of soreness in the upper left area of his mouth.
On August 15 or 16, 1979 Cedar went to the dental clinic at Mount Sinai Medical Center complaining of a soreness in the upper left area of his
mouth. He was examined by several dentists because the affected area looked suspicious, and a biopsy was done. This showed the lesion to be squalus cell carcinoma, which was subsequently excised.
The lesion removed from Cedar's mouth was well-differentiated in mid- August when he was seen at Mt. Sinai.
It is unlikely that a well-differentiated lesion will develop in a week to ten days, but could develop in a period of two or more weeks.
A competent dentist should recognize a well-differentiated lesion and refer the patient to an oral surgeon. Failure to do so constitutes practice below minimum accepted community standards.
Respondent has referred other patients to oral surgeons when suspicious conditions were observed in patients' mouths. (Exhibit 18).
Hilda Hirschman first visited Dade Dental in December 1978 and was referred to Respondent. She had several teeth extracted by Respondent, partial dentures made and two crowns installed. Mrs. Hirschman testified that Schiller escorted her into Respondent's office on her first visit and wrote down and quoted to her prices for work as he and Grebin talked. She thought Schiller was the head dentist. She also testified that one time Schiller ground down one of her teeth.
When told periodontal treatment was indicated, Mrs. Hirschman told Respondent she did not want root canals done. After her teeth had been extracted and partials made, the partials were inserted by Respondent, but neither of the partials fit. The upper was adjusted to fit and a second impression was taken for the lower.
Mrs. Hirschman was later examined by Dr. Leonard Sakris at the request of the Dental Board. From his study of the X-rays taken in November 1978 and August 1979 and his examination of the patient, Dr. Sakris opined that the teeth extracted by Respondent could have been saved if root canal therapy had been used and crowns installed. This examination also revealed the condition of Mrs. Hirschman's mouth to be bad, with two ill-fitting partial dentures and restoration placed over decay. The conclusion this decay existed when Respondent treated Mrs. Hirschman was reached from the X-rays. On cross- examination, Dr. Sakris acknowledged that decay was not always discernible on X- rays and could be misdiagnosed absent a visual examination and probe by the dentist.
Dr. Sakris' examination did not confirm Mrs. Hirschman's testimony that Schiller had ground down her tooth. He found no evidence of grinding, except possibly on Lower Left Canine 3. This is also the tooth with decay found on Sakris' examination.
The crown on Lower Right 5 placed by Respondent had a bad margin and decay when Mrs. Hirschman was examined by Sakris. Unless margin of crown makes solid contact with tooth, decay can occur. It is below acceptable minimum standards to leave open margins between crown and tooth.
Respondent's testimony that he suggested Mrs. Hirschman go to a periodontist for root canal treatment and she refused is corroborated by Mrs. Hirschman's testimony that she didn't want the expense of root canals. Without
periodontal treatment for Mrs. Hirschman's dental condition, extraction is the standard practice.
Respondent's testimony that both he and Stang worked on Mrs. Hirschman is supported by Exhibit 13 and lends credence to his testimony that he did not prepare the crowns he installed on this patient. Further, Exhibit 13 contains the notation that Mrs. Hirschman "refuses pero" (presumably periodontal treatment) and confirms Respondent's testimony that the patient's refusal to have root canals left him no choice but extraction.
The parties stipulated that the advertising which forms the basis for Counts XVI II through XXI was ordered and paid for by Stang, although it continued for some two months after Respondent took over the operation of the dental clinic before it was stopped. Respondent's testimony that he neither ordered nor paid for the advertising which appeared after July 1, 1979 was not disputed. No evidence was presented regarding the character of this advertising, other than the examples thereof shown in Exhibit 8.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Chapter 466, Florida Statutes (1979), regulates the practice of dentistry and Section 466.028(1) authorizes the Board of Dentistry to revoke, suspend, impose fine up to $1,000, reprimand, or place on probation a dentist found guilty of any of the following acts:
Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content or which is contrary to s. 466.019 or rules of the board adopted pursuant thereto.
Advertising, practicing, or attempting to practice under a name other than one's own.
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(g) Aiding, assisting, procuring, or advi- sing any unlicensed person to practice dentistry or dental hygiene contrary to this chapter or to a rule of the department or
the board.
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Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.
Failure to provide and maintain reasonable sanitary facilities and condi- tions.
Failure to provide adequate radiation safeguards.
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(y) Being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer perfor- mance, including, but not limited to, the undertaking of diagnosis and treatment for
which the dentist is not qualified by training or experience.
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(aa) Delegating professional responsi- bilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
Rule 21G-4.01(8), Florida Administrative Code, delineates those routine dental services which may be advertised pursuant to Section 466.019, and partial dentures is not included therein. Although Respondent did not place the advertisement, he was, after 1 July 1979, the lessee of the facility advertised and responsible for the operation of this facility which perforce included any advertising done on behalf of the facility.
An administrative tribunal measures proof presented to it by the preponderance of the evidence standard. Gans v. Florida Department of Professional and Occupational Regulation, Case No. 79-186 (Fla. 3rd DCA April 20, 1980); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974). However, where penal sanctions are involved, such as in revocation of license proceedings, one court held a higher standard was required. Reid v. Florida Real Estate Commission,
188 So.2d 846 (Fla. 2nd DCA 1966). The standard of simple negligence does not apply to the revocation or suspension of a dentist's license. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)
Applying the preponderance of evidence standard, the evidence presented will not support a finding that Respondent allowed, aided, procured or advised an unlicensed person to practice dentistry or dental hygiene. No evidence was submitted that Respondent authorized or permitted Schiller to perform any act which would constitute the practice of dentistry. The only evidence that Schiller performed an act constituting the practice of dentistry was Mrs. Hirschman's testimony that he ground down one or more of her teeth. No evidence was submitted that Respondent was aware or should have been aware such an act was performed by Schiller.
With respect to the treatment of Mrs. Hirschman, the evidence will not support a finding that Respondent was guilty of incompetence in violation of Section 466.028(1)(y) Extracting Mrs. Hirschman's teeth without suggesting periodontal treatment could constitute incompetence; however, that was not the case. Mrs. Hirschman herself testified that she did not want root canal work done. The evidence respecting the other work Respondent did on Mrs. Hirschman's teeth will not support a finding that this work was below minimum acceptable standards, and incompetents. Using only X-rays, without an actual view of the patient's mouth, to determine whether, and the degree to which, decay was present involves a considerable risk of error, as was acknowledged by the witness whose testimony was based upon such a procedure.
The evidence presented will support a finding that Respondent's failure to recognize the lesion and to refer Joseph Cedar to an oral surgeon to further examine and diagnose this lesion was below the minimum standards in the community and is evidence of incompetency in violation of Section 466.028(1)(y).
The evidence presented respecting the defective X-ray equipment was sufficient to support a finding that the equipment was improperly equipped with
radiation safeguards in violation of Section 466.028(1)(w). However, the evidence is uncontested that, when informed that the equipment was defective, Respondent immediately ordered a replacement and that the new equipment was promptly installed.
From the evidence presented it is clear that at the time Respondent assumed direction and control of Dade Dental the sanitary conditions there were deplorable, in violation of Section 466.028(1)(v) and remained so through the first two or three inspections conducted after 1 July 1979. The fact that at the inspection in January 1980 considerable progress had been made in correcting the unsanitary conditions is commendable but it is also evident that the threat of disciplinary action had a salutory effect in this matter.
Respondent is found not guilty of all other violation of Section 466.028(1) alleged.
Petitioner further alleges violations of Section 466.24, Florida Statutes (Supp. 1978). This section was revoked effective 1 July 1979. Since all of the violations of which Respondent has been found guilty occurred on and after 1 July 1979, the statutory provisions which were effective prior to 1 July 1979 are not applicable. It is therefore
Entered this 9th day of July, 1980.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Bert J. Harris, III, Esquire Post Office Box 10369 Tallahassee, Florida 32302
Mallory H. Horton, Esquire
