STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-904

)

EDWARD J. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on December 1, 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Brandt C. Downey III, Esquire

Post Office Drawer 2197 Clearwater, Florida 33517

By Administrative Complaint filed March 1, 1982, the Department of Professional Regulation, Board of Dentistry, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Edward J. Smith, Respondent, as a dentist. As grounds therefor it is alleged that in preparing a crown and upper precision partial denture for Ms. Marcia Girouard and in doing a root canal on Ms. Girouard Respondent was incompetent, negligent, and the finished work demonstrated gross ignorance or incompetence.

At the hearing Petitioner called three witnesses, Respondent called eight witnesses, including Respondent, and 18 exhibits were admitted into evidence. Respondent's Motion for Directed Verdict upon the conclusion of Petitioner's case was denied at the hearing partly because certain depositions admitted into evidence had not been read by the Hearing Officer. After having heard and considered all evidence presented by Petitioner, Respondent's Motion for Directed Verdict is again denied.

Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was licensed as a dentist by Petitioner.

   
   

2. During the period between September 1978 and March 1979 Marcia Girouard was a patient of Respondent. Following consultation on September 15, 1978, Respondent and Ms. Girouard agreed that she would have three crowns and upper and lower partial dentures installed. The dentures were priced at $300 for the lower, $500 for the upper precision partial and the crowns were $200 each. Respondent installed two crowns for Ms. Girouard and made her lower and upper partial dentures. The bill for these services was $1200.

   
   

3. While the temporary crown was on tooth 11 it came off a few times and was recemented by Respondent. When the precision partial was installed the permanent crown was in place.

   
   

4. Ms. Girouard had no posterior teeth aft of the two number 3 teeth on the lower jaw and teeth 6 and 11 and the upper jaw (Exhibit 5). Accordingly, the upper partial plate was anchored to tooth 11. In view of the lack of teeth to which to anchor the upper partial denture, Respondent, after discussing it with Ms. Girouard, made precision partial dentures for the upper jaw. Tooth 11 was ground down and fitted with a crown to which the female part of the precision partial was attached. When the precision partial was completed and the crown installed Respondent put the upper precision partial in place and adjusted it.

   
   

5. Shortly after the upper precision partial gas installed Ms. Girouard complained of pain in tooth 11 and Respondent performed root canal therapy on this tooth. As is customary with root canal therapy a temporary closure was made of the cavity drilled and filled where the root had been removed. From the time this root canal work was done on February 1, 1979, until Ms. Girouard's last visit to Respondent's office on March 12, 1979, Ms. Girouard continued to complain about some sensitivity in tooth 11.

   
   

6. When the lower and upper partials were seated on December 14 and 27, 1978, Ms. Girouard was instructed in removing and reinstalling these dentures. The lower partial was attached by clasps and never presented any problem to Ms. Girouard. How- ever, the upper precision partial did present serious problems in that while at home Ms. Girouard had great difficulty and little success in removing this upper precision partial. During the period between the initial seating of the upper precision partial on December 27, 1978, Exhibit 5 indicates Ms. Girouard was in Respondent's office on January 24, 1979,to have the crown on tooth 11 reseated; on February 1, 1979, for root canal; on February 8 for reseating partial; on February 9 for recementing crown; and on February 15 for an impression to convert the upper precision partial to conventional clasps. On March 12, 1979, Ms. Girouard made her last visit to Respondent's office and on this occasion she had her teeth cleaned. A subsequent appointment some two weeks later Was cancelled by Ms. Girouard as she was unsatisfied with the dentures she had received from Respondent.

   
   

7. When the precision upper partial was converted to clasps Ms. Girouard was able to remove the denture but it did not fit as snugly as had the precision partial.

   
   

8. Ms. Girouard's testimony that Respondent had difficulty installing and removing the upper precision partial from Ms. Girouard's mouth and that on

   several occasions he had to resort to the use of a dental tool to remove the denture was contradicted by Respondent and several assistants who worked in the office during the period Ms. Girouard was a patient. Respondent acknowledged that when the upper precision partial was first installed it did fit tight and he may have resorted to a dental tool to remove it the first time but that after making standard and routine adjustments he had no further difficulty removing this partial. Several witnesses observed Ms. Girouard insert and remove the precision partial in the dental office and confirmed her testimony that she complained about being unable to remove the precision partial at home. Because of her inability to remove this precision partial Respondent replaced the male connectors on the precision partial with clasps so the partial could be removed by Ms. Girouard. The female connection was left on the crown in case Ms.

   Girouard subsequently went back to the precision connection.

   
   

9. At the time of Ms. Girouard's last visit to Respondent's office on March 12, 1979, she was complaining about the looseness of the upper partial and the root canal hole had not been permanently sealed. Respondent intended to permanently seal this tooth after the pain stopped and further treatment of this tooth would be unnecessary.

   
   

10. Believing that she had been treated unfairly by Respondent Ms. Girouard in April 1979, contacted an attorney to institute a malpractice action against Respondent. This attorney sent her to Dr. Steve Hager for a dental examination. On April 25, 1979, when examined by Dr. Hager, Ms. Girouard had both upper and lower partials in her mouth. Hager's examination indicated no evidence that the work performed on Ms. Girouard by Respondent was below acceptable community standards or that anything was wrong with the work performed by Respondent (Exhibit 8). By letter of April 30, 1979, (Exhibit 9) Ms. Girouard was advised of Dr. Hager's findings.

    
    

11. Nevertheless, by letter dated June 5, 1979, the attorney advised Respondent of Ms. Girouard's dissatisfaction with the work done and suggested a monetary settlement to Ms. Girouard of the money she paid for the partial dentures would deter her from filing a complaint with the Florida Board of Dentistry. In reply thereto Respondent, by letter dated June 8, 1979 (Exhibit 7), advised Ms. Girouard he did not feel the partials were improperly constructed or fitted but he would make further adjustments if it would help her.

    
    

12. After Ms. Girouard was examined by Dr. Hager, Mr. Girouard returned the partials to Respondent's office. He does not recall with whom he left the dentures and none of Respondent's employees recall receiving these dentures. The fact that these dentures were returned was not disputed.

    
    

13. On March 21, 1979, Mr. Girouard wrote a letter to Governor Graham complaining about the treatment his wife had received from Respondent and requested something be done about it. Girouard was referred to the Department of Professional Regulation and an investigation was initiated. In November 1981, Ms. Girouard was examined by a board-appointed dentist. She had received no dental treatment between her last visit to Respondent on March 12, 1979, and November 1981. At this time the permanent closure had not been placed on the root canal and Ms. Girouard did not have any of her partial dentures. This board-appointed witness testified that the work done by Respondent was below minimally acceptable standards because the root canal hole had not been closed with a permanent seal. Upon cross-examination he acknowledged that the six weeks from the time the root canal was done until Ms. Girouard's last visit to Respondent's office was not necessarily too long to wait for permanently closing

    the root canal opening and that if the patient refused to cooperate with the dentist the latter could not install the permanent seal. This witness also acknowledged under cross-examination that it was difficult to determine that dentures do not fit properly if the dentures are not seen in the patient's mouth.

    
    

14. Expert witnesses called by Respondent testified that it was proper to leave the temporary filling on a root canal until the pain was gone or its cause ascertained and that this period could take upwards of six months. These witnesses further concurred that without seeing the dentures in the patient's mouth it is difficult to determine whether they fit properly. They also concurred that precision partial dentures should easily be removable by patients and that adjusting these precision partials is not a difficult process. The fact that the upper partial had to be attached to an anterior tooth and the lack of natural posterior teeth created greater pressure on the tooth to which this partial was attached. The increased leverage on this tooth due to the length of the partial would also create more torque and could lead to potential problems.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

    
    

16. Section 466.028(1), Florida Statutes, provides in part the following acts shall constitute grounds for which disciplinary action may be taken against a licensed dentist:

    
    

    (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 and experience.

    
    

17. An administrative tribunal measures proof presented to it by a preponderance of the evidence standard, Florida Department of HRS v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974) and the burden of proof is on the party asserting the affirmative. Balino v. Department of HRS, 348 So.2d

    349 (Fla. 1st DCA 1977). Here the burden is on the Petitioner to establish, by a preponderance of the evidence, that in the preparation and installation of the crowns and precision partial denture and in performing the root canal treatment on Ms. Girouard, Respondent was negligent, incompetent, or performed these dental functions in a manner below acceptable minimum standards for a Florida dentist. This burden is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt. Department of HRS v. Career Service Commission, supra.

    
    

18. From the evidence presented Petitioner has not met its burden of proof. Its only witness to opine that Respondent violated the provisions of Section 466.028(1), Florida Statutes, acknowledged that his opinion was largely predicated upon the two and one-half years the temporary filling had been left in the root canal; and, if the patient refused to return, Respondent could hardly replace this temporary closure with a permanent filling. Instead of showing Respondent was negligent in his treatment of Ms. Girouard, a

    preponderance of the evidence indicates that this work was satisfactorily performed and in accordance with acceptable dental practices.

    
    

19. From the foregoing it is concluded that Petitioner failed to show by a preponderance of the evidence that the dental work performed by Respondent on Ms. Girouard was below acceptable minimum standards or that Respondent was negligent or incompetent in the performance of this work. It is,

RECOMMENDED that the Department of Professional Regulation, Board of Dentistry, enter a final order finding Edward J. Smith not guilty of all charges and ordering all charges dismissed.

ENTERED this 3rd day of January, 1983, at Tallahassee, Florida.

K. N. AYERS 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 3rd day of January, 1983.

COPIES FURNISHED:

Julie Gallagher, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Brandt C. Downey III, Esquire Post Office Drawer 2197 Clearwater, Florida 33517

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Varn Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000904

Orders for Case No: 82-000904