STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3248

)

STAN LEE KROMASH, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Melbourne, Florida on June 25, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Benjamin Y. Saxon, Esquire

Saxon and Richardson, P.A.

111 South Scott Street Melbourne, Florida 32901

This matter arose on Petitioner's Administrative Complaint charging Respondent with violating Subsections 466.028(1)(p) and (y), Florida Statutes (1979), based on the allegation that Respondent erroneously performed a maxillary labial frenectomy on a patient referred to him for a lingual frenectomy. Respondent's proposed findings of fact have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondent was licensed as a dentist in Florida at all times pertinent to this proceeding. He specializes in oral surgery and restricts his dental practice to that specialty.

   
   

2. Dr. James Spurling, who practices general dentistry, examined Stephen Rice on March 21, 1980. At that time, Rice mentioned an irritation to his lingual frenum (the tissue which connects the front of the tongue to the floor of the mouth). Spurling diagnosed this condition as ankyloglossia (tongue-tie), and advised Rice that he would refer him to Respondent for consultation.

3. Spurling did not contact Respondent directly, but asked his secretary to complete the referral. Spurling's secretary then called Respondent's secretary who noted the referral as "frenectomy" on her records, but did not specify "lingual frenectomy" which is the procedure to correct the tongue-tie condition.

   
   

4. On March 26, 1980, Spurling and Respondent along with several other Melbourne area dentists had lunch together. Spurling mentioned the tongue-tie patient to Respondent at that time and they briefly discussed this condition.

   
   

5. Respondent saw Rice on April 4, 1980, for the consultation recommended by Spurling, and determined that Rice required a maxillary labial frenectomy. This procedure involves cutting connective tissue between the upper lip and the upper jaw. Respondent noted that Rice did have ankloglossia, but did not consider a lingual frenectomy necessary.

   
   

6. Respondent made an appointment for Rice to have the maxillary labial frenectomy on April 11, 1980. Rice kept the appointment and Respondent performed the maxillary labial frenectomy on that date.

   
   

7. Respondent introduced ample evidence to establish that the maxillary labial frenectomy he performed on Rice was beneficial to prevent Rice's front teeth from separating. Similarly, Respondent demonstrated that his reservations regarding the lingual frenectomy in Rice's case were reasonable since Rice did not suffer from a speech impediment.

   
   

8. Respondent testified credibly that he explained the maxillary labial frenectomy to Rice in lay terminology and offered to answer any questions Rice had. Respondent did not, however, seek Rice's view on this matter or the error would have immediately become apparent.

   
   

9. Rice had confidence in Respondent, who had removed his wisdom teeth several years earlier. Thus, he asked no questions in the belief that Respondent would carry out the procedure for which he had been referred by Spurling.

   
   

10. Throughout the consultation and the surgery, Rice believed he was receiving the procedure to correct his tongue-tie condition, and did not realize an entirely different procedure had been performed until he left Respondent's office. This lack of awareness established that he avoided focusing his attention on either the discussion of the surgery or the surgery itself. Thus, Rice is partly responsible for the failure of communication.

    
    

11. However, this failure of communication became possible initially because Respondent did not know or did not remember that the consultation referral was specifically for a lingual frenectomy and not merely a frenectomy. Because of this, he did not explain to Rice that the lingual frenectomy was, in his view, inappropriate. Rather, he explained the maxillary labial frenectomy which he believed was required, and which Rice erroneously assumed was the tongue-tie surgery he sought.

    CONCLUSIONS OF LAW

    
    

12. Section 466.028, Florida Statutes (1979), pertaining to the discipline of dentists, provides in part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in Subsection (2) may be taken:

       (p) Performing professional services which have not been duly authorized by the patient or client, or his legal representative, except as provided in 768.13 and 768.46.

       (y) Being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience.

       
       

13. Count I of the Administrative Complaint charges Respondent with incompetence in diagnosis and treatment. The evidence did not support this charge and it should be dismissed.

    
    

14. Count II of the Administrative Complaint charges Respondent with violation of Subsection 466.028(1)(p), Florida Statutes, quoted above. Respondent did, in fact, perform a professional service which was not duly authorized by his patient, Stephen Rice.

    
    

15. Responsibility for this violation was not established to be solely that of Respondent. Dr. Spurling's referral through his secretary may have been for "frenectomy" as recorded by Respondent's secretary, rather than for the precise procedure sought. The patient's inattention to Respondent's explanation also contributed to this failure of communication.

    
    

16. Respondent must, however, be held partially responsible in failing either to document or confirm the purpose of the referral with Dr. Spurling. He also failed to obtain the patient's view of the situation which would have clarified the reason for the referral. As a result, Respondent performed a surgical procedure which was not duly authorized by his patient.

RECOMMENDATION

From the foregoing it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 466.028(1)(p), Florida Statutes (1979), substantially as charged in Count II of the Administrative Complaint. It is further

RECOMMENDED that the Petitioner issue a reprimand as provided in Subsection 466.028(2)(d), Florida Statutes (1979).

DONE and ENTERED this 23rd day of July, 1982, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer 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 23rd day of July, 1982.

COPIES FURNISHED:

Benjamin Y. Saxon, Esquire Saxon and Richardson, P.A.

111 South Scott Street Melbourne, Florida 32901

Salvatore A. Carpino, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Varn, Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32301

Honorable Samuel R. Shorstein Secretary, Department of

Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003248

Orders for Case No: 81-003248