STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY )
)
Petitioner, )
)
vs. ) CASE NO. 81-3076
) GERALD FRANKLIN JENKINS, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted in this matter on June 21 through 24 and June 29 through July 1, 1983, in Jacksonville, Florida.
APPEARANCES
For Petitioner: L. Haldane Taylor
Jacksonville, Florida
For Respondent: Edward M. Booth
Lamar Winegeart, III Jacksonville, Florida
On or about October 27, 1981, the Department of Professional Regulation, Board of Dentistry, issued an Administrative Complaint against the Respondent, Gerald Franklin Jenkins, D.D.S. The complaint, which is in five counts, charged the Respondent, a licensed dentist, with various violations of statutory provisions relating to the practice of dentistry. The Respondent disputed the allegations and requested a formal administrative hearing. The matter was forwarded to the office of the Division of Administrative Hearings on December 7, 1981. The Respondent moved to dismiss the complaint on the grounds that it was not issued within the time period set out in the applicable statute of limitations, that it charged violations of statutes which were not in effect at the time the alleged offenses occurred, that the complaint did not contain sufficient allegations of present incompetence, and that allegations respecting misrepresentations in Respondent's application for licensure were not material. The Motion to Dismiss was denied by Order entered February 15, 1982.
The hearing, which was originally scheduled to be conducted on March 29, 1982, was continued. The Respondent appealed the denial of the Motion to Dismiss to the First District Court of Appeal. Respondent requested a stay of proceedings before the Division of Administrative Hearings during the pendency of the appeal. The Petitioner did not oppose the Motion to Stay, and it was granted. The First District Court of Appeal affirmed the Order denying the
Motion to Dismiss in July, 1982. Thereafter, the final hearing was scheduled to be conducted in January, 1983, and in April, 1983. These hearing dates were continued based upon motions from the parties. The final hearing was scheduled to be conducted as set out above by notice dated April 12, 1983.
At the outset of the hearing, the Petitioner announced that it would not be offering evidence as to Count IV of the complaint. No evidence was presented during the hearing in support of the allegations set out in Count IV, and it has been dismissed.
The Petitioner called the following witnesses: Patricia Gray McHail, a former employee of the Respondent; Janice Hoffenberg, a surgical assistant employed with the Respondent; Catherine Ardizone, a former patient of the Respondent; Edward S. Ardizone, Catherine Ardizone's husband; Candice Whitlow, a former employee of the Respondent; Zoo E. Kim, a physician specializing in pathology, licensed to practice in Florida; Alan Richard Treadwell, an oral surgeon who practices in Jacksonville; Sandra Gray, a former patient of the Respondent ; Clark B. McPhail, the father of a former patient of the Respondent; Harry T. Stevens, a dentist practicing in Jacksonville; Clement Allen, an oral and maxillofacial surgeon practicing in Jacksonville; Lannie K. Wilson, a fire fighter and emergency medical technician; Jerome Rothstein, an oral and maxillofacial surgeon practicing in Jacksonville; Edward D. Sevetz, Jr., an oral and maxillofacial surgeon practicing in Orange Park, Florida; Mary Vickers, a former employee of the Board of Dentistry; and Dr. Allen J. Adeeb, a physician who specializes in anesthesiology, practicing in Jacksonville. By agreement of the parties, the Petitioner took deposition testimony of four witnesses: Robert Hackaba, Helen M. Ingle, Christina Mare Williams Robinson, and Dr. Frederick Mann. By agreement of the parties, these depositions have been received as evidence. They have been identified for the record as Petitioner's Exhibits 18, 19, 20, and 21, respectively. Petitioner's Exhibits 1 through 21 were offered into evidence, and all have been received.
The Respondent testified as a witness on his own behalf. The following additional witnesses testified on behalf of the Respondent: Michael C. Kinnebrew, a physician and oral and maxillofacial surgeon who practices in New Orleans, Louisiana; Clark Hoshall, a dentist specializing in orthodontics who practices in Jacksonville; Robert W. Alexander, a physician, surgeon, and dentist who specializes in oral and maxillofacial surgery practicing in Seattle, Washington; Charlene David, a former patient and employee of the Respondent; Dr.
Padmanabban, a physician specializing in internal medicine and cardiology practicing in Orange Park, Florida; Dr. Treadwell; Nelson P. Castellano, an oral and maxillofacial surgeon who practices in Tampa, Florida; Martin Liebowitz, an oral and maxillofacial surgeon practicing in Gainesville, Florida; Dale Rekau, a former patient of the Respondent; Janet Thelma Williams, a former patient of the Respondent; Judith McClure, a former patient of the Respondent; Marilyn Momich, a former patient of the Respondent; Sheila Barrier, a former patient of the Respondent; Napoleon F. Leano, a physician specializing in anesthesiology practicing in Orange Park, Florida; Nicholas F. Colmenares, an oral and maxillofacial surgeon; and Noah H. Jenerette, Jr., an attorney who formerly represented the Respondent. Respondent's Exhibits 1 through 27 were offered into evidence and received.
The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better
weight of the evidence, irrelevant to the issues, or legally erroneous. Numerous witnesses gave conflicting accounts of relevant events, or conflicting opinions respecting the propriety of the Respondent's actions. In resolving
this conflicting testimony, due regard has been given to the witnesses' demeanor at the hearing, the extent to which the witnesses' testimony is supported by other testimony and evidence, and the logical force and believability of the testimony.
ISSUE
The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of provisions of law relating to the practice of dentistry and, if so, what penalty should be imposed by the Board of Dentistry. In Count I of the complaint, it is alleged that the Respondent made fraudulent misrepresentations in an application for a renewal certificate submitted to the Board. The Respondent contends that statements he made do not constitute misrepresentations and that to the extent they were misrepresentations, they were not material and did not affect his licensure. In Count II, it is alleged that the Respondent was grossly incompetent, guilty of malpractice and willful negligence, and failed to meet minimum standards of performance in his treatment of a patient, Michelle Marie McPhail. The Respondent denies the allegations. In Count III, it is charged that the Respondent was grossly incompetent, guilty of willful malpractice and willful negligence, and failed to meet minimum standards of performance in his treatment of a patient, Sandra Gray. The Respondent denies the allegations. Petitioner offered no evidence in support of Count IV of the complaint, and the count has been dismissed. In Count V, it is charged that the Respondent was guilty of gross incompetence, malpractice and willful negligence, and failed to meet minimum standards of performance in connection with his treatment of a patient, Catherine Ardizone. The Respondent denies the allegations.
FINDINGS OF FACT
Respondent is a dentist licensed to practice dentistry in Florida. He holds License No. 4333, issued by the Board of Dentistry. After graduating from dental school, Respondent entered the oral and maxillofacial surgery program at Grady Hospital, in connection with Emory University in Atlanta, Georgia. He completed two years of that program and entered the United States Army. He served for three years as a dental officer in the Army. In 1973, the Respondent completed an oral surgery residence at University Hospital in Jacksonville, Florida. During 1973 and 1974, he was a professor in the School of Dentistry at the University of Connecticut. The Respondent has been practicing dentistry in the Jacksonville, Florida, area since 1976. He specializes in the field of oral and maxillofacial surgery with an emphasis on orthognathic surgery and temporomandibular joint reconstruction. The Respondent is board certified as an oral and maxillofacial surgeon. He has good qualifications in the field and has never previously been the subject of any disciplinary proceedings.
Findings of Fact Respecting Count I of the Administrative Complaint
During the time that the Respondent was teaching at the University of Connecticut, he made a decision to return to Florida to practice oral and maxillofacial surgery. The Board of Dentistry at that time utilized a system of issuing annual certificates to licensed dentists depending upon whether they were practicing dentistry in the State of Florida. A dentist practicing within the State would be issued an annual renewal certificate. A dentist practicing
outside of the State would be issued a conditional renewal certificate. If a dentist practicing outside of Florida decided to practice in Florida, it was necessary to apply for issuance of an annual renewal certificate in exchange for the conditional renewal certificate. An application form needed to be filled out and a resume provided to the Board. The Board's staff would check the applications, and a copy would be sent to each Board member for approval or disapproval. Upon approval by a majority of the Board, the annual certificate would be issued, allowing the dentist to practice in Florida.
The Respondent applied to exchange his conditional certificate for an annual certificate by an application that was received by the Board of Dentistry on July 29, 1974. In the application, the Respondent described his residency at the Grady Memorial Hospital program that was associated with Emory University as follows:
From June 1967 through July of 1969 I was a resident at Grady Memorial Hospital in Atlanta, Georgia. The extent of my duties were in Oral and Maxillofacial Surgery. I left upon my graduation.
This statement was untrue. The residency program at Grady Memorial Hospital was a three-year program. Residents were given annual contracts for each of the three years. The Respondent received contracts for the first and second years of the program. He was not offered a contract for the third year. He was not offered the contract because his performance during the second year was found to be inadequate. The persons evaluating him felt that he had been devoting too little time to the program and that he was not carrying his weight in the program. Although the Respondent was issued a certificate at the conclusion of each year of the residency program, he did not graduate from it. It was a three-year program, and he did not complete it.
At the time that the Respondent applied for issuance of the annual certificate that would allow him to practice in Florida, there was no requirement that a licensed dentist participate in any residency program. The Respondent would have been eligible for licensure and to receive his annual certificate whether he had completed the program at Grady Memorial Hospital or not. Indeed, he would have been eligible for his annual certificate even if he had never attended a residency program. Furthermore, even if completion of a residency program had been a requirement for the Respondent to receive an annual certificate, the Respondent did complete such a program at University Hospital in Jacksonville, Florida. The Respondent's statement that he left Grady Memorial Hospital upon his graduation was not true and constituted a puffing of the Respondent's credentials. The statement is not, however, such as to indicate bad moral character. The statement did not cause the Board or anyone else to take any action with respect to the Respondent's licensure that would not otherwise have been taken.
Findings of Fact Respecting Count II of the Administrative Complaint
On April 8, 1977, Michelle McPhail was scheduled for an appointment at the Respondent's Orange Park, Florida, office for the purpose of having her third molars, or wisdom teeth, extracted. She was a high school senior who had recently turned 18 years old. She was in very good health and had suffered no prior serious illnesses. She was approximately 5 feet 6 inches tall and weighed approximately 120 pounds. Michelle arrived at the Respondent's office at
approximately 1:45 p.m. She had not previously visited the Respondent. X-rays were taken. The Respondent conferred with Michelle and her mother regarding the surgery and the fact that it could be safely performed in his office. The Respondent has performed hundreds of similar procedures in his office both prior to and subsequent to Michelle McPhail's visit.
During the surgical procedure, the Respondent was assisted by two dental assistants. One of the assistants took Michelle into the room where surgery would be performed. Michelle was placed in a dental chair in a reclining position. Generally, an assistant of the Respondent's would have taken the patient's vital signs (pulse, blood pressure, and temperature) at this point in the procedure. While that was the general procedure, the evidence does not establish that Michelle's vital signs were taken. If they were, no notation of them was made in her chart. Initially, a mask was placed over Michelle's nose and mouth, and she was administered a 100 percent oxygen solution. The concentration was gradually changed until she reached a level of 30 percent oxygen and 70 percent nitrous oxide. At this point, the Respondent followed his typical procedure for anesthetizing a patient. He administered Xylocaine as a local anesthetic. Xylocaine serves to deaden tissue in the immediate area where surgery would be performed. The Respondent had one of his assistants draw two vials, one containing Demerol and one Valium. The Respondent observed the patient and first administered 15 milligrams of Valium. The Respondent administered the Valium by pulling blood from the patient's arm into the syringe, then injecting the Valium, diluted with the patient's own blood, slowly into the vein. The Valium was injected very slowly. The entire injection would take approximately 5 minutes. The needle was then left in Michelle's arm, and the Demerol syringe was attached. Seventy-five milligrams of Demerol were administered in the same manner, but over a shorter period of time, approximately 1 or 1 1/2 minutes. At that point, the needle was withdrawn, and a sponge was placed on the spot and later was replaced with a Band-Aid. The Respondent at that point regarded Michelle as being properly sedated. She was responsive, but quite sedate. Valium is primarily a tranquilizer. Demerol is a potent narcotic. It is used primarily as a pain killer and has tranquilizing effects. A potential side effect of both drugs is respiratory depression. Demerol depresses the length and depth of breathing. Valium depresses the depth of breathing. Use of the two drugs together increases the respiratory depressant effect of them both.
The dosages of Valium and Demerol that the Respondent administered were within proper medical limits, but on the outer edge of those limits. Together, the doses, while not inappropriate, were quite high. Use of the drugs at these levels necessitates careful monitoring of a patient's respiration. The manner in which the Respondent administered the drugs is not the most desirable procedure. It would be more desirable to administer the drugs through a continuous intravenous ("I.V.") drip system. That system assures that the drugs will be administered evenly. The system that the Respondent utilized, while less desirable, was commonly utilized by oral and maxillofacial surgeons in 1977. Many continue to use the system of mixing the drug with the patient's own blood rather than a continuous I.V. drip system, despite the preferability of the latter. Utilizing the method used by the Respondent, while less desirable, does not constitute negligence, malpractice, or a failure to practice within community standards.
Once the drugs were administered, the Respondent commenced to extract Michelle's third molars. During the procedure, the Respondent sat just to the right of the patient's head. One of his assistants was directly across the table from him, to the immediate left of the patient's head. The other
assistant was to the Respondent's immediate right, approximately adjacent to the patient's hip. The Respondent did not assign the specific duty of monitoring the patient to himself or either of his assistants. It was his practice at the time to himself monitor the patient and ask that his assistants do likewise on a frequent basis. The Respondent did not have any mechanical or electronic means of monitoring the patient's vital signs during the surgical procedure. No constant readings of blood pressure, pulse, heartbeat, or respiration were taken. What monitoring was done was done by individual observation, again without any person having the specific responsibility to do that. The Respondent first extracted Michelle's third molars on the right side. As he began to move to the left side, Michelle began moving her head and moving about. She displayed apprehension, a slight tachycardia, or increase in heartbeat, and may have cried. These symptoms could have meant that the patient was experiencing a lack of oxygen or too much carbon monoxide, as a result of an adverse reaction to the Valium and Demerol. The symptoms could also have been construed as the patient having metabolized the drugs and coming but of sedation. The latter is the more likely explanation, but the former is the more dangerous. The Respondent did not carefully observe the patient's vital signs at that time. He removed the bite block, which had been used to keep her mouth open during the surgical procedure, from her mouth. After a few moments, her breathing appeared to return to normal. The Respondent construed her symptoms as having been the result of her coming out of sedation. Accordingly, he administered 5 milligrams of additional Valium and 25 milligrams of additional Demerol. They were injected in a fashion similar to the original injections.
The Respondent then proceeded to extract the third molars on the patient's left side. The total surgical procedure lasted from 25 to 30 minutes.
When the extractions were completed, either the Respondent or one or his assistants observed that Michelle was not breathing well. The Respondent became aware that her condition was serious. One of the assistants was sent to an adjoining room to bring the emergency cart. The same assistant was dispatched to locate a physician in an adjoining office. The physician was not present, and the assistant was only able to locate another dentist who was in an adjoining office. The Respondent commenced to administer emergency resuscitation ("C.P.R.") procedures. Michelle was at that time without pulse or respiration. The Respondent was successful in ventilating the patient with artificial respiration. The C.P.R. that Respondent administered was in several respects not in accordance with American Heart Association guidelines. The Respondent administered five heart compressions for every two ventilations. He stopped the compressions while the ventilations were taking place. American Heart Association guidelines provide for five compressions for every one ventilation, with compressions being continued and not stopped. Furthermore, Respondent did not place Michelle on a hard backboard or surface which would have increased the effectiveness of the compressions.
The Respondent sent one of his assistants to contact emergency rescue unit personnel. The rescue unit arrived at the Respondent's office within minutes. When they arrived, the rescue unit personnel took over the life- support efforts and transported Michelle to the Orange Park Hospital. The Respondent had administered a dosage of Epinephrine to the patient. He administered it through an injection under her tongue. This drug would have served to improve the ability of Michelle's heart to pump blood through her system. The drug could have been more effectively administered if the Respondent had maintained an open I.V. to the patient during the surgical procedure. It was not, however, the Respondent's practice, nor the practice at that time among a majority of oral surgeons, to maintain an open I.V. during this type of surgical procedure.
Once she was at the hospital, appropriate medications were administered to Michelle, and she was placed on a respirator. She was diagnosed as having suffered cardiac respiratory arrest. This condition caused insufficient oxygen to be provided to the patient's brain, liver, lungs, and kidneys. While she could be maintained in a technically alive state while on the respirator, her brain had suffered irreparable damage. During the hospitalization, Michelle did not show any significant brain functions for any significant period of time. After four days, it was concluded that her brain was dead. It is probable that irreversible brain injury had occurred before Michelle arrived at the hospital. Michelle's parents made the very difficult decision of removing her from the respirator, and she died.
There are numerous possible explanations for the very tragic death of Michelle McPhail. The most likely explanation is that she suffered an adverse reaction from the Valium and Demerol that was administered. It is likely that her respiration had been compromised to the extent that she suffered cardiac arrest which resulted in irreversible damage to her brain, liver, lungs, and kidneys. There are other possible explanations, and it cannot be determined with certainty that her death resulted from an adverse reaction to the drugs administered by the Respondent. What the evidence does reveal is that Michelle McPhail displayed symptoms of respiratory failure during the course of the surgical procedure. Rather than carefully monitoring her condition or stopping the procedure because of the overwhelmingly severe consequences that could result from respiratory failure, the Respondent viewed her symptoms as being the result of her coming out of sedation. That may have been the more likely explanation. Given the possible consequences of the less likely explanation, however, the Respondent's administration of additional drugs and continuation of the surgical procedure was inexcusable. Thereafter, it is clear that the Respondent and his assistants were not adequately prepared to deal with an emergency situation. The manner in which the Respondent administered C.P.R. does not itself constitute negligence, malpractice, or a failure to practice in accordance with community standards. C.P.R. was not, however, administered in the most effective manner so as to save the patient's life.
The Respondent's administration of additional Valium and Demerol to Michelle McPhail and his failure to be adequately prepared to administer life- support procedures constitute incompetence, malpractice, and willful negligence in the practice of dentistry and a failure to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Subsequent to the experience with Michelle McPhail, the Respondent has improved his techniques for sedating patients, monitoring patients, and for dealing with potential emergencies. He now administers sedatives through a continuous I.V. drip system. He has electronic monitoring devices which constantly monitor the patient's pulse and blood pressure. The Respondent now utilizes three assistants, one of whom has the specific duty of observing the patient and monitoring the patient's condition. The Respondent now maintains an open I.V. so that if drugs need to be administered on an emergency basis, the most rapid avenue for accomplishing it exists.
Findings of Fact Respecting Count III of the Administrative Complaint
The Respondent's primary specialty within the area of oral and maxillofacial surgery is orthognathic surgery. Orthognathic surgery involves the repositioning of the skeletal parts of the head through surgical techniques to correct jaw deformities. Patients are typically referred to orthognathic surgeons by orthodontists. Orthodontists seek to correct misalignment of teeth by the use of braces and other nonsurgical techniques. When orthodontic procedures and techniques are insufficient to correct misalignment of teeth, surgical techniques may be appropriate.
Sandra Gray is a former patient of the Respondent. She was referred to the Respondent by an orthodontist who practices in Jacksonville, Florida. Sandra Gray had a severely bad relationship between her upper and lower jaws. Her upper jaw protruded too far forward, causing a very severe overbite. Her upper and lower teeth could not meet in the front. The orthodontist concluded that orthodontic techniques were insufficient to correct the deformity. The Respondent first saw Ms. Gray on May 14, 1976. He had previously seen her files and orthodontal records. He examined her, took her history, and did X rays and photographs. He determined that surgery on her upper jaw, or maxillary, could correct the condition. The Respondent met with Sandra Gray on a number of occasions and discussed the nature of her condition, the surgical technique that he would utilize, the amount of time that she would need to stay in-the hospital, and possible complications at great length with her. He made models of her jaw and performed a mock surgical procedure to demonstrate to her what would occur. Ms. Gray waited a year before deciding to go ahead with the surgery. The surgery was scheduled for May 25, 1977. Prior to her entering the hospital, the Respondent took final impressions from which splints were fabricated for use during and after the surgery. The Respondent planned to divide the maxilla into four segments. The splint that he had made would in part be used as a guide during surgery to assure that what was being planned actually occurred. Ms. Gray entered the hospital on May 24, 1977, and a complete physical was performed. Prophylactic antibiotics were administered.
The surgery was performed on May 25, as scheduled. The surgery proceeded as planned without significant incident. The Respondent performed a full thickness superior and inferior flap to remove tissue from the area where the incision would be made. There is a difference of opinion as to whether the Respondent should have disturbed as much tissue as he did. Some orthognathic surgeons would not have used the inferior flap due to concerns with compromising the blood supply to the area. Others would use the procedure followed by the Respondent because of the danger of destroying tissue and compromising blood supply if there is no inferior flap. Once the flaps were made, the Respondent made incisions through the maxillary and removed bone tissue. The splint was inserted to demonstrate that the correct amount of tissue had been removed. The splints used by the Respondent were made in such a manner as to not fit tightly against the patient's upper palate. A splint that fits too tightly can compromise blood supply to the area. Eventually, the pieces of Ms. Gray's upper jaw were wired together and further secured with the splint. The surgical techniques necessarily compromise blood supply to the area of the incision. The techniques that the Respondent utilized were not such as to unduly compromise blood supply. Nothing in the surgery performed by the Respondent on Sandra Gray constituted incompetence, malpractice, willful negligence, or a failure to meet minimum standards of performance.
After surgery, Sandra Gray was taken to the intensive care unit of the hospital, which was being used as a recovery room. On the first postoperative day, her vital signs were good, and she was doing well. She was transferred to a general hospital ward. Ice was placed in the area of the surgery to reduce
swelling, and a clear liquid diet was administered. On the second day, Ms. Gray was receiving antibiotics, vitamins, clear liquids, and an I.V. diet. The need for good hygiene was stressed to her, and she was told to constantly cleanse the area. On the second day, the Respondent observed a dusty-looking area, grayish in appearance, below the incision line in the front of Ms. Gray's mouth. He made a note in the hospital records that the area "looked necrotic." Necrotic means dead. Necrotic tissue has a brown appearance and resembles dead meat.
The Respondent had heat applied to the area and carefully observed it. The dusty appearance receded by the next day, and there was fresh blood in the area, indicating that the area was not necrotic. Respondent kept her on antibiotics. He had some concerns about her hygiene. He directed that nurses irrigate her mouth three times per day. No evidence of infection was observed. The patient was maintained on antibiotics and discharged on the morning of May 31, 1977.
There were no indications of infection. She was taking fluids orally and had no fever. She was discharged on an oral dosage of antibiotics. She was given further instructions regarding hygiene, and the importance of keeping her mouth clean was stressed.
The following day, the patient's mother contacted the Respondent. Sandra Gray experienced swelling around the I.V. site on her arm. The next day, Ms. Gray came into the Respondent's office. The Respondent examined her and found that the incision line looked badly infected. He noticed food debris in the area. Cultures were taken, and Sandra Gray was advised to be readmitted to the hospital immediately. The Respondent took the cultures to the lab at the hospital. The patient went home to get her clothes, but then called and said that due to family problems, she would not be able to enter the hospital until the next day. She did not arrive at the hospital until 1:45 on the next afternoon. The Respondent saw her immediately. She was immediately placed on a broad spectrum dosage of antibiotics. She remained in the hospital for eight days. On June 5, lab tests revealed that the infection was a Klebsiella bacteria infection. The antibiotic regimen was determined to be correct and was continued. Wires and splint were removed from the patient's mouth, and it was found that there had been a complete loss of tissue across the anterior part of the mouth. The right side was gray, necrotic, and not viable. The left side had some viability that might have been saved. The Respondent performed a debridement, or removal of bone tissue, from the right anterior maxilla. When he removed the splint, hue observed a dehiscence on the palate, indicating that the infection had spread. There was evidence of blood supply to the bone. The Respondent placed a flap over the area where the debridement had been performed. There was no evidence of necrosis on the palatal side of the incision. Cultures were taken to determine whether the infection was spreading and becoming systemic. The Respondent was seeking to lose as little bone tissue as possible and to prevent the spread of the infection. Ms. Gray was continued on an antibiotic regimen. The infection appeared to be coming from the top of the patient's mouth and moving downward, rather than from the palate. The Respondent felt that a further conservative debridement would be required, but he wanted to save as much of the patient's upper jaw as possible. She left the hospital after eight days with no apparent infection.
Sandra Gray was hospitalized a third time. There was no evidence of infection, but there was considerable necrotic tissue and bone. A second debridement was performed. The result was that Sandra Gray was left with very little upper jawbone, no upper teeth, and several fistulas, or holes, in her upper palate, so that her nasal cavity and mouth were connected. Sandra Gray
was hospitalized a fourth time in order to attempt a graft of tissue to cover the fistulas. The graft was only partially successful, and Sandra Gray's condition remains largely as it was following her third hospitalization. She is able to wear a device which serves as an upper denture and covers the fistulas.
The cause of what one witness described as a surgical misadventure with Sandra Gray cannot be reliably determined. A severe compromise of blood supply during surgery could have caused tissue to die and provided a convenient avenue for Klebsiella germs to spread inordinately. It does not appear that the surgical techniques used by the Respondent presented an inordinate risk of a compromise of blood supply. Compromise of blood supply and potentially bad results that flow from it are an understood risk of this type of surgical procedure. There are other viable explanations that can explain the misadventure. There were more than normal incidents of Klebsiella infections at the hospital where surgery was performed during this period. It is possible that the patient contracted a Klebsiella infection from the hospital and that the Klebsiella itself invaded the weakened area of her mouth, killing tissue and spreading. Klebsiella infections are relatively rare, but they can be devastating. It does not appear that the techniques utilized by the Respondent presented an inordinate risk of Klebsiella infection to the patient.
Nothing in the Respondent's examination, care, and treatment of the Patient Sandra Gray constitutes incompetence, malpractice, willful negligence, or failure to meet minimum standards of performance. It appears that the surgery was performed with requisite skill, that the infection was promptly diagnosed, and that appropriate steps were taken to combat the infection. While the results were devastating to the patient, the evidence does not establish that it was the fault of the Respondent.
Findings of Fact Respecting Count IV of the Administrative Complaint
No evidence was offered by the Petitioner in support of the allegations set out in Count IV of the Administrative Complaint. The count should he dismissed.
Findings of Fact Respecting Count V of the Administrative Complaint
The Findings of Fact set out with respect to Count III of the Administrative Complaint, except those that relate strictly to the patient Sandra Gray, apply equally to the allegations of Count V of the Administrative Complaint. The Findings of Fact respecting Count III are accordingly incorporated into this portion of the Recommended Order dealing with the allegations of Count V.
Catherine Ardizone is a former patient of the Respondent's. She was referred to the Respondent by an orthodontist. She had a very severe overbite. Her lower jaw was very small in relation to her upper jaw. Her front teeth did not meet, and her overbite was extremely severe. This condition had caused a somewhat degenerative arthritic condition in her mandibular joint. The orthodontist concluded that orthodontic techniques were inadequate to correct her condition. The Respondent first saw Catherine Ardizone on January 25, 1977. He determined that orthognathic surgery could correct her condition. Prior to surgery, he saw her on more than ten occasions. He took X rays and photographs, made models and drawings, and performed mock surgery utilizing the models he made. He discussed the surgical techniques in detail with Ms. Ardizone. He
advised her of possible complications, including infection, and stressed to her the importance of good hygiene. Several types of orthognathic surgery were considered, including surgery on both the upper and lower jaws. Respondent ultimately decided that surgery on the lower jaw could be performed to lengthen the lower jaw and chinbone and lower the anterior portion of the lower jaw, causing her teeth to more nearly meet. The surgery was scheduled for August 9, 1977. The patient was admitted to the hospital.
The surgery was performed without significant incident. Bone was removed from the front of her lower jawbone, or mandibular, and the chinbone was cut out and extended forward. An oblique osteotomy, or sagital osteotomy, was performed along the sides of the mandibular. This kind of incision allows the bone to slide along itself. An artery runs along the bone in this area and must be preserved. The Respondent performed the surgery in a manner that should not have compromised blood supply to the area. Initially, no wiring was done on the back part of the mandibular because the area appeared secure without it. Two splints were applied in such a manner as to secure her lower jaw. Following surgery, Catherine Ardizone did well during her hospitalization. She healed well, but she did have some trouble keeping her mouth clean. On the third postoperative day, the Respondent made a note about her hygiene and discussed it with her. She improved, and there was no evidence of infection during the entire length of her stay. She was not advised of any infection because she did not have any. She was advised that she would need to do better hygiene and that she had some irritation on her gums because of the way she was brushing. She was discharged on August 14.
Catherine Ardizone visited the Respondent's office on August 15. There appeared to be food debris in one area of her mouth and a dehiscence in the front part of her jaw near the incision around her chin. The Respondent
observed milk and food by-products in those areas. The patient was advised that she would need to irrigate this area better. The Respondent took a culture of the area and advised her to return to the hospital. She did not immediately return to the hospital, but again visited the Respondent's office on the following day. It still appeared that her hygiene was poor. It appeared that the dehiscence had spread and that there was pus and infection. The Respondent immediately admitted her to the hospital, and further cultures were taken. She was placed on a broad spectrum dosage of antibiotics and prepared for a debridement of the area. There was some necrotic tissue, but not in the bone.
The cultures revealed a Klebsiella infection. A debridement was performed on August 17. There was a slight loss of bone, and one tooth was lost. Tissue was grafted into the area. She was released from the hospital free of infection and with a prescription for antibiotics. She was hospitalized a year later without any indication of infection or further bone loss. The purpose of this hospitalization was to release tissue that the Respondent had grafted into the area to free up her lower lip so that she could open her mouth more normally.
Catherine Ardizone's bite is improved somewhat over her preoperative condition. The improvement is not as profound as had been hoped due to the interruption and debridement that were necessitated because of the infection. Her condition is not markedly worse than it was when she first visited the Respondent. It does not appear that the Respondent's examination, diagnosis, and treatment of Catherine Ardizone constitutes incompetence, malpractice, willful negligence, or a failure to meet minimum standards of performance. The results were certainly less positive than had been hoped, but the evidence does not establish that the less than perfect result was caused by any inappropriate action on the part of the Respondent. The surgical techniques employed by the Respondent did not improperly cut off blood supply to Catherine Ardizone's lower
jaw. As is the case with Sandra Gray, there are several possible explanations for the infection. The evidence does not establish that the Respondent did anything improper that caused the infection or that he responded inappropriately to it.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.
The Respondent has contended that the complaint against him is barred by the applicable statute of limitations. This contention was rejected in the Order denying the Respondent's Motion to Dismiss that was entered on February 15, 1982. It does not appear that there is any statute of limitations that applies to administrative licensing proceedings. The statute of limitations defense is accordingly rejected.
The Respondent has contended that the alleged offenses occurred prior to the adoption of Chapter 466, Florida Statutes. It appears that provisions of Chapter 466 in effect when the incidents alleged in the Administrative Complaint occurred have been superseded. Provisions of the earlier statutes have, however, been substantially reenacted. Absent an expression of legislative intent to the contrary, a substantially reenacted statute is deemed to be in continuous operation from the original enactment. McKibben v. Mallory, 293 So.2d 48 (Fla. 1974). Respondent's contention was rejected in the Order denying Respondent's Motion to Dismiss, which was entered on February 15, 1982. They continue to be rejected.
The Respondent has contended that the complaint should be dismissed based upon the doctrine of leaches. The Respondent contends that the Petitioner delayed in filing the Administrative Complaint without justification and that the delay has caused prejudice to the Respondent. The evidence does not establish that the Respondent has been prejudiced by any delay in the filing of the Administrative Complaint. The only potential prejudice that the Respondent demonstrated was that certain of his models, X rays, and drawings of his former patients Sandra Gray and Catherine Ardizone had been misplaced by his former attorney. It was not established that these models, drawings, and X rays were necessary to the defense and, indeed, it appears that the Petitioner has not established that the Respondent committed violations of Florida Statutes in connection with his care and treatment of these patients.
In Count I of the Administrative Complaint, the Respondent is charged with violating the provisions of Sections 466.13 and 466.24(3)(), Florida Statutes (1973). These provisions have been substantially reenacted and are set out at Sections 466.06, 466.026(2) Cb), and 466.028(1)(a), Florida Statutes (1981). Section 466.13, Florida Statutes (1973), provided that applicants desiring to practice dentistry must submit applications on specified forms and meet certain criteria. Section 466.24(3)(b) provided that the Board of Dentistry shall suspend or revoke the license of a dentist if it is established that he has been guilty of fraud, deceit, or misrepresentation in obtaining his license. The Respondent's representation that he left the residency program at Grady Memorial Hospital upon his graduation was not a true statement. It was not, however, fraud, deceit, or misrepresentation, because the statement in no way affected his eligibility for licensure. The Respondent would have been fully eligible to receive an annual renewal certificate in exchange for his conditional renewal certificate without regard to whether he graduated from a
program at Grady Memorial Hospital, or indeed without regard to whether he even attended a residency program at all. A necessary element of any misrepresentation is that the party to whom the statement is made relies upon it to its detriment. The Board of Dentistry could not have relied upon the Respondent's misstatement to its detriment. Count I of the Administrative Complaint should be dismissed.
At the time that the Respondent treated the patients Michelle McPhail, Sandra Gray, and Catherine Ardizone, the provisions of Chapter 466, Florida Statutes, as they appeared in the 1975 edition of Florida Statutes were in effect. The Respondent is charged with violations of Sections 466.24(2) and (3)(c) and (3)(d), Florida Statutes (1975), in connection with his treatment of these patients. These provisions have been substantially reenacted into Section 466.028(1)(y) Florida Statutes (1981). The statutes provided in pertinent part:
The board shall suspend or revoke the license of any dentist . . . when it is established to its satisfaction that he:
* * *
Is grossly ignorant or imcompetent [sic);
Has been guilty of:
* * *
Malpractice;
Willful negligence in the practice of dentistry . . . .
The Respondent's treatment of the patient Michelle McPhail constitutes malpractice and willful negligence in the practice of dentistry within the meaning of the statutes. The Respondent's treatment of Michelle McPhail fails to meet minimum standards of performance when measured against generally prevailing peer performance and would therefore constitute a violation of Section 466.028(1)(y) Florida Statutes (1981).
The Respondent's treatment of the patient Michelle McPhail constitutes incompetence. It does not, however, appear that the Respondent is presently incompetent to practice dentistry. He has therefore not been shown to have violated the provisions of Section 466.24(2), Florida Statutes (1975)
The Petitioner has failed to establish that the Respondent violated the provisions of Sections 466.24(2) and (3)(c) and (3)(d), Florida Statutes (1975), or Section 466.028(1)(y), Florida Statutes (l981),in connection with his evaluation, are, and treatment of the patients Sandra Gray and Catherine Ardizone.
In considering the appropriate penalty that should be imposed upon the Respondent, it should be considered that he has been found guilty only in connection with one incident during the course of his professional practice. While it was a singular incident, it was of the most monumental sort. The Respondent's failure to properly monitor the patient Michelle McPhail and to properly consider all of the possibilities that her symptoms may have revealed may have resulted in her death. It should also be considered that the Respondent now employs methods that are likely to prevent a second occurrence of this sort.
The Petitioner offered no evidence with respect to the allegations of Count IV of the Administrative Complaint, and Count IV should be dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
RECOMMENDED:
That a final order be entered by the Florida State Board of Dentistry dismissing Counts I, III, IV, and V of the Administrative Complaint filed against Gerald Franklin Jenkins.
That a final order be entered by the Florida State Board of Dentistry finding the Respondent, Gerald Franklin Jenkins, guilty of violating the provisions of Sections 466.24(3)(c) and (d), Florida Statutes (1975), as alleged in Count II of the Administrative Complaint, and suspending Respondent's license to practice dentistry in the State of Florida for a period of three years.
RECOMMENDED this 25th day of October, 1983, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1983.
COPIES FURNISHED:
L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202
Edward M. Booth, Esquire Lamar Winegeart, III, Esquire 2508 Gulf Life Tower Jacksonville, Florida 32207
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. Fred Varn Executive Director Board of Dentistry
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
CASE NO. 81-3076(DOAH
Petitioner, 0010945(DPR
0007529(DPR
vs. 0007528(DPR
0003656(DPR LICENSE NO. DN 0004333
Respondent.
/
FINAL ORDER
THIS MATTER came before the Board of Dentistry pursuant to Section 120.57(1)(b)9., Florida Statutes (1981), on January 14, 1984, in Tallahassee, Florida, for consideration of the Findings of Fact, Conclusions of Law and Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs. Gerald Franklin Jenkins, D.D.S., Case No. 81-3076, and the Exceptions filed by Respondent. The Petitioner was represented by L. Haldane Taylor, Esquire. The Respondent was represented by Edward M. Booth, Esquire. At the hearing before the Board of Dentistry, Respondent requested to be allowed to present additional evidence on the issue of penalty only. The request was granted over Petitioner's objection.
Upon consideration of the hearing officer's Recommended Order, the Exceptions, the arguments of the parties, and the testimony of the witnesses with respect to penalty. and after a review of the complete record in this matter, the Board makes the following findings.
FINDINGS OF FACT
The hearing officer's findings of fact set forth in numbered paragraphs one through seven, nine through eleven and fourteen through twenty-eight are hereby approved and adopted in toto on the basis that there is competent, substantial evidence to support the hearing officer's findings of fact in the noted Paragraphs.
The Board accepts and approves the findings of fact in paragraph eight of the hearing officer's order except that set forth in the last sentence. The record does not support a finding that the total surgical procedure lasted from
25 to 30 minutes. The record supports and the Board finds that the total surgical procedure lasted approximately 45 minutes. There is competent substantial evidence to support all of the other findings set forth in paragraph eight and to support the Board's additional finding.
The Board accepts, approves and adopts the findings of fact in paragraph twelve except the sentence, "Given the possible consequences of the less likely explanation, however, the Respondent's administration of additional drugs and continuation of the surgical procedure was inexcusable." The Board finds that sentence to be a conclusion of law and not a finding of fact. There is competent, substantial evidence to support all of the other findings of fact set forth in paragraph twelve.
The Board amends the findings of fact set forth in Paragraph thirteen to state as follows:
13. The Respondent's administration of additional valium and demerol to Michelle McPhail without first checking all vital signs constitutes incompetence and malpractice in the practice of dentistry and a failure to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
As a basis for rejecting the omitted findings of the hearing officer, the Board finds that there is no competent substantial evidence to support the hearing officer's finding that Respondent failed to be adequately prepared to administer life-support procedures and that his conduct constituted willful negligence.
The addition of the phrase "without first checking all vital signs" is an expression by the Board that that fact is supported by competent substantial evidence in the record and is necessary, in combination with the finding of fact regarding his administration of additional valium and demerol to Michelle Mcphail, for the finding of ultimate fact that his conduct constitutes incompetence and malpractice in the practice of dentistry and a failure to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Respondent's Exceptions to Recommended Order included an exception to paragraph thirteen of the recommended order. The Board accepts that exception in part and rejects it in part, as reflected in paragraph 4 above. To the
extent the exception is rejected, the rejection is based on the fact that the exception is an attempt to have the Board improperly reweigh the evidence and credibility of the witnesses; such would intrude on the prerogative of the hearing officer. See Department of Professional Regulation v. Wagner, 405 So.2d 471 (Fla. 1st D.C.A. 1981).
CONCLUSIONS OF LAW
All of the hearing officer's conclusions of law, with the exception of that conclusion set forth in paragraph 7 of the Recommended Order that Respondent's treatment of Michelle McPhail constitutes willful negligence, are hereby approved and adopted in toto.
The hearing officer's recommendation that Counts I, III, IV, and V of the Administrative Complaint filed against Gerald Franklin Jenkins be dismissed is hereby approved and adopted.
The hearing officer's recommended penalty is rejected as being too stringent under the circumstances of this cause, particularly in light of the Board's rejection of the findings and conclusions that Respondent was guilty of willful negligence and in light of the amount of time that has elapsed since the incident which was the subject of Count II of the Administrative Complaint and the evidence of Respondent' s current procedures, practices, and level of training. Petitioner's Exception, insofar as it relates to penalty, is accepted. Said exception asserted:
The record does not justify the recommended sanction of a three-year suspension of the respondent's license to practice dentistry in the State of Florida, inter alia, the following reasons:
As found by the Hearing Officer [Findings of Fact, Paragraph 14], the respondent's present procedures and Practices, as well as his equipment, are fully adequate to respond to any emergency condition, including that which occurred in the case of Michelle McPhail.
As demonstrated by the record, the respondent has undergone substantial additional training as to the procedures to be used in connection with outpatient treatment, and the respondent presently exceeds peer standards in that area.
The case of Michelle McPhail occurred over six years ago. Both before and since the incident, over the course of thousands of cases, there has been absolutely no other instance in which the respondent is alleged to have failed to render appropriate treatment to an outpatient such as Michelle McPhail. As found by the Hearing Officer, the McPhail case represents the only incident as to which the respondent has been found guilty of failing to meet Professional standards during the entire course of his Professional practice. The Board should take
into account that the instant proceedings were not commenced for four years after the alleged misconduct occurred, and the acts complained of bear no resemblance to the present practice, or present competence of the respondent. In effect, a three-year suspension of the respondent's license would be tantamount to a revocation of that license, due to the pro longed interruption of the respondent's practice. As such, the recommended sanction is unduly harsh, and that recommendation should not be followed by the Board.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
That Respondent Gerald Franklin Jenkins, D.D.S., shall be, and hereby is, REPRIMANDED.
That Respondent is assessed an administrative fine in the amount of one thousand dollars ($1000). Said fine shall be payable to the Executive Director of the Board within thirty (30) days of the filing of this final order.
That Respondent's license to Practice dentistry is placed on probation for two years subject to the terms and conditions that he perform community service for five hours per month, that he make quarterly reports to the Board, and that he appear before the Board at the end of his Probationary period.
Counts I, III, IV and V of the Administrative Complaint are DISMISSED. DONE AND ORDERED this 18th day of January 1984.
Frank Kenward, D.D.S. Chairman
Board of Dentistry
COPIES FURNISHED:
G. Steven Pfeiffer Hearing Officer
Division of Administrative Hearings
2009 Apalachee Parkway
Tallahassee, Florida 32301
L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202
Edward M. Booth, Esquire Lamar Winegeart, III, Esquire 2508 Gulf Life Tower Jacksonville, Florida 32207
| Issue Date | Proceedings |
|---|---|
| Jan. 23, 1984 | Final Order filed. |
| Oct. 25, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 18, 1984 | Agency Final Order | |
| Oct. 25, 1983 | Recommended Order | Respondent was negligent in treatment of patient who suffered respiratory failure in operation. Recommend suspension for three years. |
