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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3249

) STEPHEN C. TARWICK, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before,

1. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on May 17, 1982, in Pensacola, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Theodore R. Gay, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   For Respondent: H. Edward Moore, Jr., Esquire

   Sherrill, Moore and Hill Post Office Box 1792 Pensacola, Florida 32598

   
   

   Pursuant to an Administrative Complaint filed against the Respondent, it is alleged that the Respondent failed to make available to a patient, Wendy Ling, copies of her treatment records which were in his possession and control after that patient elected to discontinue treatment under the care of the Respondent. It is alleged that the Respondent refused to transfer Ms. Ling's patient records to her or to her subsequent dentist until she paid a $140 disputed fee for services rendered by the Respondent. It is alleged that as a result of the Respondent's refusal to forward her records to the second dentist that Ms. Ling has been unable to continue her dental treatment. The Petitioner further alleges that the Respondent informed the Department of Professional Regulation that Ms. Ling's patient records would only be duplicated and transferred upon her payment of a $50 service fee. The Petitioner asserts that the $50 service fee is unjustified because it does not reflect the cost of duplication and transfer of those records and is therefore excessive and operates as an unreasonable bar to the availability of treatment records to the patient.

   Accordingly, the Respondent is charged with violating Section 466.028(1)(bb), Florida Statutes (1980), Section 466.028(1)(o), Florida Statutes (1980) and Section 455.241(1), Florida Statutes (1979). At the hearing the Petitioner presented one witness, Wendy Ling herself, and two exhibits, both of which were admitted. The Respondent presented three witnesses consisting of the Respondent himself, Dr. William D. Jacobs, an orthodontist and former President of the

   Florida Association of Orthodontists, who testified as to the custom and practice within the profession of dentistry and the speciality of orthodontics regarding forwarding of records and fee disputes. Mr. Robert A. Benz, a certified Public Accountant, testified regarding office costs attributable to the duplication of records. The Respondent presented seven exhibits, all of which were admitted.

   
   

   The parties elected to obtain a transcript of the proceeding at the the conclusion of the hearing arid to file proposed findings of fact and conclusions of law, which were timely filed.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, at all times material hereto, has been a dentist licensed in the State of Florida, holding license number DN 0005029. He is engaged in the practice of dentistry in Pensacola, specializing in orthodontics.

      
      

   2. The Petitioner is an agency of the State of Florida charged with regulating the licensure status, admission to practice and practice standards in the State of Florida.

      
      

   3. During the period from September 1980 until July 1981, Ms. Wendy Ling became a patient of the Respondent and went to the Respondent's office on a number of occasions during that period of time to receive dental treatment. During the course of her dental treatment involving installation, fitting and maintenance of braces, she became somewhat dissatisfied with the Respondent's services, claiming that he should have spent more time personally with her when she was in his office. Because of her dissatisfaction, she sought the services of another orthodontist, Dr. Trum.

      
      

   4. When she left the care of Dr. Tarwick and sought the services of Dr. Trum, she owed Dr. Tarwick $140 for services already rendered her for dental care. When Dr. Trum assumed responsibility for her care, he informed her that he would need copies of her dental records. Shortly thereafter, either Dr. Trum, a person in his office or Ms. Ling called Dr. Tarwick's office to seek the records. Dr. Tarwick's financial secretary responded that $140 was still owed on her bill from Dr. Tarwick. Dr. Tarwick refused to forward her records until her bill was paid. She continued to refuse to pay her outstanding bill and the doctor filed a civil action against her in county court and prevailed. The court found that she owed the sum in question but the Respondent accorded she and her husband, a doctor, "professional courtesy" and agreed to discharge the debt for the sum of $80.

      
      

   5. During the time when he had refused to forward her records prior to her paying her outstanding bill, she complained to the Petitioner regarding this situation. A representative of the Department of Professional Regulation contacted the Respondent and informed him of the legal requirement that he forward records regardless of whether an outstanding bill was due. The Respondent professed ignorance of that provision of the law, was apologetic and hastened to forward her records contending, as he did at the hearing, that he was unaware that it was illegal to withhold forwarding of the dental records pending payment of an outstanding bill for services rendered.

   6. Upon forwarding the record to Ms. Ling's new orthodontist, the Respondent charged her a duplication fee of $50 for this service. This resulted in the other count in the Administrative Complaint regarding the reasonableness of the $50 fee for duplication and forwarding of records. The Respondent established without question at the hearing that it cost in excess of $110 to duplicate such records, excluding the Respondent's own time involved. The records are not merely paper reports that must be xeroxed, they include molds and casts of the complaining witness' mouth and/or gums and teeth. Duplication of all these portions of her records is necessary because the professional association, to which the Respondent must belong, requires that he keep a complete set of records for all patients. It was thus unequivocally established that the Respondent's fee for this duplication and record forwarding was less than half of what it actually cost his office to perform.

      
      

   7. The Respondent quite candidly expressed to the Department of Professional Regulation his ignorance of the legal provision that he not withhold forwarding of records pending payment of outstanding fees and clearly informed the Department, before the Administrative Complaint was ever filed, that he did not dispute that allegation and that he would move quickly to correct the mistake, which he did. Thus, the Respondent went to the hearing in the belief that the only dispute with the Petitioner was the question of the reasonableness of the duplication and forwarding fee for the records. The Petitioner was on notice that the Respondent did not dispute the charge in Count

      I. At the hearing, however, the Petitioner voluntarily dismissed the count concerning the question of the reasonableness of the duplication and forwarding fee (paragraphs 12 and 13 of Count II of the Administrative Complaint). It is thus obvious that the only true dispute concerning which the hearing was convened was the question of the reasonableness of the duplication and forwarding fee since the department was already aware that the Respondent did not contest Count I concerning the issue of withholding the transfer of patient records pending payment of outstanding fees for services rendered. The Petitioner, however, did not voluntarily dismiss Count II and thus obviate the necessity of a hearing even though it was informed of Respondent's basis for the fee and the necessity for a large expenditure to bring in Witness Benz, who established its reasonableness, and even though it arrived at the decision to dismiss the charge in Count II some days prior to hearing. Therefore, believing that the department was proceeding against him in good faith on the question of reasonableness of the duplication fee, the Respondent hired an accountant to do a cost study of such duplication efforts by his office, whereupon aimed at a figure in excess of $110 for the performance of that service. The Respondent thus expended a substantial amount of money ($1,000) in paying the expert witness to prepare for, attend and testify at the hearing and was not informed by the department that it had chosen prior to the hearing to voluntarily dismiss that count until the convening of the hearing with the previously necessary witness already present.

      
      

   8. Both the testimony of Dr. Tarwick and the President of the Florida Association of Orthodontists established that it is customary in the profession to withhold duplication and transference of patient records until all fees have been paid and both expressed surprise that this might be illegal. Letters from other orthodontists in other cities were admitted by agreement establishing that this is indeed customary in the profession and not merely an isolated example of aberrant behavior by Dr. Tarwick. Further, it was established by Dr. Tarwick that, given that Ms. Ling's treatment contract ran through October 1982, the slight delay caused in transferring her records to her new doctor, Dr. Trum, caused no adverse effects on her course of treatment and the correction of her dental problem. Dr. Tarwick was unaware that he was violating the statute under

      which he was charged and did not intentionally do so. In all his conversations with counsel for the department, Mr. Carpino, the only dispute discussed between them concerned the $50 fee. It was the Respondent's belief that he had fully and early informed the department that he did not dispute the charge concerning the withholding of dental records in return for the payment of the outstanding fee.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

      
      

   10. Section 466.028 provides at Subsection (o) that it is the ground for disciplinary action against a dentist for:

       
       

       (o) Failing to make available to a patient or client, or to his legal re- presentative, copies of documents in the possession or under control of the licensee which relate to the patient or client.

       
       

   11. Section 466.028(1)(bb), Florida Statutes (1980), provides that it is also a violation to violate any part of Chapter 466 or Chapter 455 or any rule promulgated pursuant to either chapter or any lawful order of the board or department previously entered in a disciplinary hearing.

       
       

       Section 455.241 provides pertinently as follows:

       
       

       1. Any health care practitioner licensed pursuant to . . . Chapter 466 . . . shall, upon request of such person or his legal re- presentative, furnish copies of all reports made of such examination or treatment. The furnishing of such copies shall not be condi- tioned upon payment of a disputed fee for services rendered.

          
          

   12. There is no dispute in this record and indeed the Respondent informed the department before the Administrative Complaint was ever filed that he did not dispute that he had technically violated the above authority by failing to provide the patient records until his outstanding fee was paid. The doctor quite candidly stated that he was unaware that that custom was in violation of the law and that it was followed by most orthodontists (see Respondent's Exhibits 4 and 5) in order to prevent obtaining and treating a patient who has cheated a previous practitioner. The Respondent has never been the subject of disciplinary action before and this is a pure technical violation, with no question in this record that the care he provided Ms. Ling was of the highest type. As soon as he was informed of his violation, he hurriedly duplicated the records and sent them to her, charging less than half of what it cost him to duplicate the records.

       
       

   13. The entire gravamen of Count II of the Administrative Complaint concerns paragraphs 12 and 13, which have now been voluntarily dismissed. The department thus elected immediately prior to the outset of the hearing not to prosecute the Respondent on the issue of the reasonableness of the duplication

       and forwarding fee charged. It should be pointed out, however, that that charge was conclusively proven to be a reasonable one since the charge of $50 was less than half of that required by the Respondent's office to duplicate the various molds and impressions and documentary matter which constitutes the entire patient records requested to be transferred. In that connection, it might be pointed out, parenthetically, that the subject statutory authority does not refer to all records but merely to patient "reports," although the Respondent does not rely on that technical interpretation to elude responsibility for the violation alleged in Count I. Inasmuch as the Respondent candidly admitted that he was guilty of the technical violation of Count I, had never been involved in disciplinary proceedings before and established that the violation was totally inadvertent and especially since the patient involved, Ms. Ling, suffered no adverse effects in the course of her dental treatment and care as a result of the Respondent's withholding of the records until his fee was paid, a minimal penalty is warranted.

       
       

   14. At the outset of the hearing, the Respondent made a motion to tax costs of the expert witness, Mr. Robert A. Benz, a CPA, who established, through an audit, the actual costs to the Respondent's office of duplicating and forwarding the subject records. The basis for the motion is that counsel for the department, Mr. Carpino, some days prior to the hearing, determined that the reasonableness of the forwarding fee was immaterial and that the Respondent would not be prosecuted there for. Counsel for the department at that time made the decision that only Count I would be prosecuted against the Respondent involving the issue of withholding the records themselves until the outstanding bill for services rendered was paid. The Petitioner knew, was on notice, and should have known that the Respondent never did contest the issue raised in Count I of the Administrative Complaint and had informed the Petitioner's representative prior to the filing of the complaint that indeed he was technically guilty of violating the above authority, but that it was an inadvertent violation. Consequently, the Petitioner was aware (or should have been) that there was no need to proceed on that count and it made the decision some days prior to the hearing, without communicating with the Respondent's counsel, to not prosecute regarding the reasonableness of Count II. If this had been made known to Respondent's counsel and the Hearing Officer, the necessity for the hearing would have been obviated. Concomitantly, the Respondent would not have incurred a fee in excess of $1,000 to put on proof of the reasonableness of its duplication and forwarding fee, hence, the basis for motion to tax costs against the Petitioner.

       
       

   15. The Hearing Officer is constrained to point out that, unfortunately, there is no authority within Chapter 120, Florida Statutes (1981), for a Hearing Officer to tax as costs an expert witness fee, especially as a sanction against a party causing unnecessary and unreasonable expense or other inconvenience to the Hearing Officer or to another party. Rule 28-5.302, Florida Administrative Code, provides that witness fees are to be paid by the parties at whose instance the witness is summoned, nor is there any other provision in Chapter 28-5, Florida Administrative Code, which would empower the undersigned to tax costs against the Petitioner herein. Petitioner failed to inform the Hearing Officer or the Respondent that there was, in effect, no dispute left to litigate, but there is no authority to tax costs against the Petitioner and thus the motion must be denied.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the evidence in the record, it is, therefore

RECOMMENDED:

That, in view of the technical, isolated and inadvertent violation of the above authority by the Respondent, which he corrected as soon as he became aware of the violation, a minimal penalty consisting of a private written reprimand should be imposed.

DONE and ENTERED this 29th day of December, 1982, in Tallahassee, Florida.

P. MICHAEL RUFF 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 29th day of December, 1982.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

H. Edward Moore, Jr., Esquire Sherrill, Moore and Hill

Post Office Box 1792 Pensacola, Florida 32598

Fred Varn, Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003249

Orders for Case No: 81-003249