STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-365

)

JOHN SCOTT, JR., D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 27, 1980, in Fort Lauderdale, Florida.

The following appearances were entered: Bert J. Harris, III, Esquire, Tallahassee, Florida, on behalf of Petitioner, Department of Professional Regulation, Board of Dentistry; and Patrick L. Bailey, Esquire, Pompano Beach, Florida, on behalf of Respondent, John Scott, Jr., D.D.S.

After notice and an opportunity to be heard were afforded to the Respondent, Petitioner filed an Administrative Complaint charging Respondent with having engaged in misconduct which would bring discredit upon the dental profession or, alternatively, with willful negligence in the practice of dentistry, based upon the Respondent's alleged failure to reline a patient's lower denture as promised and for which payment was issued. Respondent denied all allegations and timely requested a hearing before the Division of Administrative Hearings. The issue for determination is whether Respondent's license to practice dentistry should be revoked or other disciplinary action imposed based upon the allegations contained within the Administrative Complaint.

Petitioner presented the testimony of Elaine S. Kropman, Ralph A. Kropman, and W. G. Schaller, D.D.S. Respondent testified on his own behalf and presented the testimony of his wife, Leslie Eileen Scott, and by deposition, Frances Louise Gath.

On April 22, 1980, Petitioner forwarded to the Respondent certain discovery pleadings, including a Request for Admissions Numbered 1 through 9. By Notice of Hearing dated April 4, 1980, the hearing in this cause was scheduled to commence at 9:30 a.m. on May 27, 1980. Two business days before the hearing, the Petitioner's attorney requested that the commencement of the hearing be postponed to 10:30 a.m. to accommodate traveling to Fort Lauderdale. During the course of the hearing, the undersigned noted on the Record that no response to any of the discovery pleadings had been filed by the Respondent with the Division of Administrative Hearings, and Petitioner's attorney indicated that no response had been received by him either. Accordingly, the undersigned declared that time for response thereto having expired, all statements contained within

the Petitioner's Request for Admissions dated April 22, 1980, were deemed admitted. At the time that this discussion and ruling took place on the Record, Respondent in no way indicated that he had responded to any of that discovery.

After the hearing was concluded and both parties had rested, the undersigned returned to Tallahassee and discovered that Respondent's Response to Request for Admissions was filed with the Division of Administrative Hearings on May 27, 1980, at 10:02 a.m. That Response contained denials of several statements in the Request. Since the Request for Admissions was deemed admitted during the course of the hearing; since the Respondent remained silent, thereby agreeing that no Response had been made; since the Response to the Request for Admissions was not received by the undersigned until after conclusion of the hearing; since the Petitioner might be prejudiced by having to prove those facts which were acquiesced in, thereby obviating the need for proof; and since it would be unreasonable to assume that Respondent would attempt to create fact issues after the conclusion of the hearing, each of the statements contained within the Request for Admissions dated April 22, 1980, remains deemed admitted, and the Response to the Request for Admissions is declared of no force and effect in this proceeding.

The Respondent's renewed motions to dismiss the Administrative Complaint and/or for judgment on the pleadings made at the commencement of the hearing, the conclusion of the Petitioner's case, and after all of the evidence were denied. Additionally, Respondent made a number of motions during the testimony of Petitioner's witnesses to strike certain testimony as being hearsay. These motions were renewed at the conclusion of the hearing, but Respondent refused to provide portions of the Record containing the specific questions and answers alleged to constitute hearsay uncorroborated by other evidence for review in light of all of the testimony. Accordingly, the renewed motions to strike were also denied.

Both Petitioner and Respondent have submitted proposed findings of fact in the course of this proceeding. To the extent that those findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.

FINDINGS OF FACT

1. After having considered all of the evidence presented, and particularly after observing the demeanor of the witnesses, I have resolved the myriad of conflict in making the following findings of fact. Where I have based a finding, or a portion of a finding, upon a stipulation between the parties contained either in the Prehearing Stipulation, or upon a fact stated in the Petitioner's Request for Admissions, I have so indicated.

   
   

2. At all times material to this cause, the Respondent has been a dentist licensed by the State of Florida (Stipulation) and maintaining two separate offices for the practice of dentistry. Mrs. Esther Kropman appeared at Respondent's Boynton Beach office as a patient for the first time on July 18, 1978 (Stipulation). Since Mrs. Kropman was elderly and hard of hearing, she was accompanied through the entirety of each visit by her daughter-in-law, Mrs. Elaine S. Kropman. Esther Kropman's son, Ralph, accompanied his wife and his mother on their visits to Dr. Scott's office, but remained in the waiting room while his wife accompanied his mother whenever she was inside the operatory and inner office. On her first visit, the older Mrs. Kropman complained that her lower denture was causing irritation to her mouth, and Respondent made an adjustment to that denture.

3. Since Esther continued to complain about mouth irritation, the Kropmans returned to Respondent's office on July 25, 1978. On that date, Respondent recommended that Esther Kropman have her lower denture relined, a service for which he received an advertised fee of fifty dollars (Stipulation). It was agreed that Esther's denture be retained by the Respondent overnight in order that the relining could be accomplished.

   
   

4. On July 26, 1978, the Kropmans returned to the Respondent's office to pick up Esther's denture (Stipulation). Respondent affirmed that the denture had been relined, and Elaine Kropman paid the fifty-dollar fee on behalf of her mother-in-law.

   
   

5. On July 31, 1978, September 1, 1978, and September 14, 1978, the Kropmans returned to Respondent's office (Stipulation) since Esther continued to complain of irritation in her mouth caused by her lower denture.

   
   

6. On October 3, 1978, Elaine and Ralph Kropman took Esther to their dentist, Dr. Charles J. Simon, and remained present during his examination of Esther's mouth and lower denture. Dr. Simon indicated at that time, and subsequently by letter dated October 19, 1978, that he found no evidence to indicate that Esther's lower denture had been relined. On October 10, 1978, the Kropmans returned to the Respondent's office to demand a refund, which refund was refused.

   
   

7. On November 1, 1978, the Kropmans went to the Broward County Dental Association, where Esther and her lower denture were examined by five members of the Prosthetics Professional Relations Committee, while Elaine and Ralph Kropman were present. Dr. W. G. Schaller, Chairman of that Committee, was one of the examiners. On November 6, 1978, Dr. Schaller notified Esther Kropman in writing that the Committee had the unanimous opinion that there was no evidence of any relining material present on her lower denture and that Respondent should refund the fee for relining.

   
   

8. At the time of the final hearing in this cause, Esther Kropman was a resident of Maryland and was prohibited by her health from traveling to Fort Lauderdale to testify. However, she had lived with her son and daughter-in-law for some time prior to her first visit with Dr. Scott, during which time her bedroom and bathroom were cleaned by Elaine. Neither Elaine nor Ralph had ever seen a second lower denture, nor had either of them ever heard of Esther Kropman owning more than one set of dentures. Moreover, during the investigatory examination conducted by the Broward County Dental Association, Esther Kropman affirmatively stated to Dr. Schaller that the denture being examined by that Committee was the same denture which had been worked on by Dr. Scott.

   
   

9. Both Dr. Schaller and Dr. Scott agreed that after the relining process, both a demarcation line and a difference in coloration on the denture would be obvious. Dr. Schaller further opined that had the relining material been removed, there would be evidence that the material had been scraped off the denture. When Dr. Schaller examined the denture in question, he found neither evidence that the denture had ever been relined, nor evidence that relining material had ever been scraped off the denture.

   
   

10. When Respondent was notified by Dr. Schaller of the conclusions of the Prosthetics Professional Relations Committee, he did nothing to attempt to resolve the problem or to reexamine Esther Kropman or her lower denture; rather, he telephoned Dr., Schaller with a verbal explanation that the denture examined

    by the Committee must have been a different one than he had relined. When asked by Dr. Schaller to reduce such explanation to writing to participate in resolving the dispute, Respondent did nothing.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 466.24(3), Florida Statutes, authorizes the Florida State Board of Dentistry to suspend or revoke the license of any dentist who is guilty, inter alia, of either misconduct in his business or personal affairs which would bring discredit upon the dental profession, or who is guilty of willful negligence in the practice of dentistry. The Administrative Complaint filed herein alleges that Respondent agreed to reline Esther Kropman's denture, was paid his fee of fifty dollars for that service, did not reline the denture, and refused to refund the money. Count I of the Administrative Complaint charges that the above facts constitute misconduct bringing discredit upon the dental profession, and Count II of the Administrative Complaint charges that these same facts constitute willful negligence in the practice of dentistry.

    
    

12. The Petitioner has carried its burden of proving the allegations contained within the Administrative Complaint by substantial, competent evidence. While the facts herein fall just short of constituting willful negligence, they clearly constitute misconduct bringing discredit upon the dental profession.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT:

A final order be entered suspending the dental license of John Scott, Jr., D.D.S., for three months, but that suspension be withheld if Dr. Scott pays the sum of $2,000 to the Department of Professional Regulation as reimbursement of the costs of investigating and prosecuting this action and in addition pays to Elaine Kropman the sum of fifty dollars as a refund of the money paid to him, all by a date certain.

RECOMMENDED this 17th day of July, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1980.

COPIES FURNISHED:

Patrick L. Bailey, Esquire Post Office Box 549

Pompano Beach, Florida 33062

Bert J. Harris, III, Esquire Boyd, Harris and Smith, P. A. Barnett Bank Building

Post Office Box 10369 Tallahassee, Florida 32302

Docket for Case No: 80-000365

Orders for Case No: 80-000365