STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-653

)

ANTHONY ARCIERO, D.M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on June 16, 1952, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Leonard M. Bernard, Jr., Esquire

707 S.E. Third Avenue Post Office Drawer 14126

Fort Lauderdale, Florida 33302

Carl E. Jenkins, Esquire Post Office Box 14309

Fort Lauderdale, Florida 33302 ISSUES PRESENTED

The issue to be decided in this cause is whether Respondent violated provisions of Chapter 466, Florida Statutes, by ". . . being guilty of incompetence in the practice of dentistry. This cause arises from an Administrative Complaint filed by the Department of Professional Regulation ("Petitioner") on December 9, 1981, against Respondent, Anthony Arciero ("Respondent"), a licensed dentist, alleging two counts of incompetence.

Specifically, the Administrative Complaint alleges that Respondent provided crown and bridgework to two patients, Karen Hansen and Eileen Murray, which failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

At the final hearing in this cause, Petitioner called Karen Hansen, Eileen Murray, and Mervyn Dixon, as its witnesses. Petitioner offered Petitioner's Exhibits 1 through 11, which were received into evidence. Respondent testified

in his own behalf and called J. F. Halladay as a witness. Respondent offered Respondent's Exhibits 1 through 6, which were received into evidence.

FINDINGS OF FACT

1. Respondent is a licensed dentist holding license No. DN0003704. In 1980, Karen Hansen was a patient of Respondent. In August of 1980, Respondent furnished Ms. Hansen a four-unit fixed bridge encompassing the upper left cuspid, the left lateral incisor, the left central incisor, and the upper right central incisor. Despite pain and sensitivity to hot and cold, Ms. Hansen was satisfied initially with the work performed by Respondent. However, shortly after the bridge was installed, she began to experience pain and sensitivity to hot and cold, and became dissatisfied with the aesthetics of the bridge. She returned to Respondent for adjustments, but Respondent was unable to correct the problems or alleviate her pain and sensitivity.

   
   

2. On June 8, 1981, Ms. Hansen was examined by Petitioner's dental consultant. Upon examination of Ms. Hansen, the following conditions were observed:

   
   

   1. The porcelain was badly chipped on the upper left cuspid;

   2. The facial margin of the crown on the upper left cuspid was short of the gingiva;

   3. The porcelain on the facial aspect of the upper left central incisor was chipped and a jagged edge was present;

   4. The facial margin of the crown on the right central incisor was short of the gingiva; and

   5. Occlusion was extremely heavy and traumatic in the bridge area.

      
      

3. Ms. Hansen was examined by Petitioner's expert several months after the bridge was seated. As a result, he was unable to state with absolute certainty that the short margins existed at the time the work was completed. However, since less than a year had passed since the bridge was seated, it is likely that the short margins were present in August of 1980.

   
   

4. The bridge provided by Respondent to Ms. Hansen is neither functionally nor aesthetically serviceable. There was nothing so unusual about Ms. Hansen's oral condition that would have made it difficult to fabricate a serviceable bridge for her. The roots of her teeth were not so large that it would have been impossible to crown the teeth to the gingiva, in accordance with acceptable dental practice. Furthermore, the patient's decision not to crown an additional tooth had no effect on the occlusion or the short margins found upon later examination of the bridge. For these reasons, the bridge furnished by Respondent to ?s. Hansen failed to meet the minimum acceptable standard of practice.

   
   

5. Respondent first saw Eileen Murray as a patient on or about December 13, 1976. Ms. Murray at that time was a 23-year-old female who had approximately 11 teeth missing including her four wisdom teeth. At the time she was first seen by Respondent her mouth was in very poor condition. She needed bridgework involving 22 teeth, including the two upper right bicuspids which were missing. She also gave a history of having had severe bruxism for over ten years prior to seeing Respondent.

6. The dental work performed by Respondent was completed on or about March 20, 1977. In September of 1977, Ms. Murray returned to Respondent because the porcelain on one of her bicuspids had fallen away from the gold backing. From that point until May of 1981, Ms. Murray experienced many problems with the crown and bridgework installed by Respondent and returned to his office numerous times for repairs and adjustments. In addition to the aforementioned problem, Ms. Murray again saw Respondent in March of 1978 when she experienced sensitivity to hot and cold and the short margin developed on an upper cuspid. In January of 1979, the last two teeth on the upper bridge broke away from the bridge itself. In July of 1979, the last two teeth on the lower bridge broke away. In June of 1980, the lower bridge broke into four pieces when it was removed by Respondent. Finally, in September of 1980, the porcelain chipped on the upper central incisor of the bridge.

   
   

7. In July of 1981 Ms. Murray was examined by a consultant to Petitioner. She was also examined in September of 1981 by another consultant retained by Petitioner. Both consultants noted the following conditions present in Ms. Murray's mouth:

   
   

   1. The metal substructure of the ontics was fractured between the pontics which replaced

      the maxillary right, first and second bicuspids;

   2. There were open margins on the facial

      aspect of tooth Nos. 6, 8, 10, 11, 18, 22, and 27;

   3. There were short margins on the facial aspect of tooth Nos. 22, 23, and 26;

   4. There were short margins on the lingual aspect of tooth Nos. 3, 23, 26, and 30;

   5. Porcelain was chipped on the incisoral edge of the maxillary right cuspid and the maxillary right central;

   6. Metal was exposed on the occlusal or incisal surfaces of tooth Nos. 12, 26, 27, and 30;

   7. The porcelain in the bridge exhibited an overall contamination indicative of poor dentistry;

   8. There was generalized periodontal involvement of the soft tissues; and

   9. There was severe malocclusion.

      
      

8. As a result of the foregoing problems, the record in this cause establishes that the work done by Respondent on Ms. Murray is not salvageable, but must be redone in its entirety.

   
   

9. The breakage problems experienced by Ms. Murray would not have occurred had the porcelain not been of such poor quality. In addition, the metal utilized by Respondent was inadequate and could not withstand the stress of the prosthesis as designed by Respondent. When the metal substructure of Ms. Murray's bridge fractured, the bridge should have been remade, but Respondent chose not to do so. The margin on tooth No. 10 was never adequate. The incisal edges of several teeth are opaque and do not resemble natural teeth. On most teeth this is largely a cosmetic consideration, but on the molars, this thick, opaque, rounded "mothball" appearance severely effects the function of the teeth, in that the lack of a properly contoured incisal edge makes chewing extremely difficult. Apparently, little consideration was given by Respondent to the function of the bridgework. The upper bridge was apparently designed to be aesthetically pleasing, and the lower bridge was then shaped to fit around or

   under the upper prosthesis. This lack of consideration for function is further indicated, in part, by a flat spot on one lower tooth, and a generally poor occlusal table.

   
   

10. The record in this cause also reflects that Ms. Murray had active periodontal disease when she first consulted Respondent. The inadequate restorative dentistry described above contributes to the progress of periodontal disease. In Ms. Murray's case, it is likely that her periodontal disease was exacerbated by the poor restorative dentistry performed by Respondent.

    
    

11. It is clear from the record in this cause that Ms. Murray had a long history of bruxism when she was first seen by Respondent. She made this fact known to Respondent, and Respondent in fact furnished certain appliances to Ms. Murray because of her bruxing problem. In most cases, properly done crown and bridgework will eliminate bruxism. However, neither the mouth guards prescribed by Respondent nor the restorative dental work performed by him served to alleviate Ms. Murray's bruxism. However, the record in this cause establishes that the poor restorative dentistry practiced by Respondent in fact worsened Ms. Murray's bruxism.

    
    

12. Both counsel for Petitioner and counsel for Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been included in this Recommended Order, they have been specifically rejected as either irrelevant to the issues in this cause, or as not having been supported by evidence of record.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

14. Section 466.028(1)(y), subjects a dentist to disciplinary action when it is found that he has been

    
    

    guilty of incompetence by failing

    to meet the minimum standards of per- formance in diagnosis and treatment when measured against generally pre- vailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which

    the dentist is not qualified by train- ing or experience.

    
    

15. Section 466.028(2), Florida Statutes, provides as follows:

    
    

    When the board finds any applicant or licensee guilty of any of the grounds set forth in subsection (1) it may enter an order imposing one or more of the following penalties:

    1. Denial of an application for licensure.

    2. Revocation or suspension of a license.

    3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requir- ing the licensee to attend continuing education courses or demonstrate his competency through a written or prac- tical examination or to work under the supervision of another licensee.

    6. Restricting the authorized scope of practice.

       
       

16. Based upon the foregoing Findings of Fact and Conclusions of Law, it is concluded, as a matter of law, that Respondent has violated Section 466.028(1)(y), Florida Statutes, as to both Counts I and II in the Administrative Complaint, and it is, accordingly,

RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Professional Regulation, Board of Dentistry, suspending Respondent's license to practice dentistry for three months, imposing an administrative fine of

$1,000.00 and requiring Respondent to attend such continuing education courses in restorative dentistry as the Board may deem appropriate.

DONE AND ENTERED this 13th day of December, 1982, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 13th day of December, 1982.

COPIES FURNISHED:

Julie Gallagher, Esquire Samuel R. Shorstein, Secretary Department of Professional Department of Professional Regulation Regulation

130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Leonard M. Bernard, Jr., Esquire 707 S.E. Third Avenue

Post Office Drawer 14126

Fort Lauderdale, Florida 33302

Carl E. Jenkins, Esquire Post Office Box 14309

Fort Lauderdale, Florida 33302

Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000653

Orders for Case No: 82-000653