STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1293

)

SETH RHODES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on February 23, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Richard A. Hamar, Esquire

155 South Miami Avenue, Suite 111 Miami, Florida 33130

Pursuant to an Administrative Complaint filed by the Petitioner, the Respondent Seth Rhodes is charged with constructing and fitting a partial upper denture plate for one Jewel Taub which proved to be unusable and unsuitable in that the acrylic palate is excessively thick, the lingual rest is ineffective on the upper left cuspid and that there is no tooth support or reciprocation for the labial clasp. The denture is allegedly unstable and has a "lateral rock." The rest on the upper right first bicuspid is bulky and not seated; the anterior palatal border encroaches on the tissue lingual to the anterior teeth; and the bite is open about three and one-half millimeters anteriorly. The Petitioner charges that these alleged defects in the construction and fitting of the subject denture constitute incompetency in the practice of dentistry in violation of Section 466.028(1)(y), Florida Statutes (1979) and (Supp. 1980).

The Petitioner introduced the deposition of Jewel Taub, the complaining witness, and Dr. Marshall Brothers, an expert witness, as well as introducing the patient records of the treatment provided by the Respondent of Jewel Taub. All Petitioner's exhibits were admitted into evidence. The Respondent called Dr. Gary Golden and Dr. Tyrone Lloyd Cheeping, who were accepted as expert witnesses. Ruffino Anthony Gonzales, Jennie Banks and the Respondent were lay witnesses for the Respondent. The Respondent submitted five exhibits which were admitted into evidence. At the conclusion of the hearing, the parties availed themselves of their right to file proposed findings of fact and conclusions of

law and requested an extended schedule for the filing of the same, concomitantly waiving the requirements of Rule 28-5.402. Proposed findings of fact and conclusions of law were timely filed on or before March 31, 1983.

The issue to be resolved in this proceeding concerns whether the Respondent violated Section 466.028(1)(y), Florida Statutes (1981), by rendering dental treatment, in the form of his preparation and fitting of the partial denture for Mrs. Jewel Taub, which was below minimum, acceptable dental practice standards for his community and, if so, whether disciplinary action is warranted.

FINDINGS OF FACT

1. The Respondent is a dentist licensed in the State of Florida, having been issued license number 0001575. The Petitioner is an agency of the State of Florida charged with regulating the standards for licensure and for practice of dentists in the State of Florida and with enforcing compliance with those licensure and practice standards contained in Chapter 466, Florida Statutes (1981).

   
   

2. Jewel Taub is an elderly dental patient who first saw Dr. Seth Rhodes on January 28, 1980. On February 14, 1980, the Respondent took impressions of Mrs. Taub's mouth to construct a partial denture for her. On February 26, 1980, the denture was tried in the patient's mouth by Dr. Tyrone Cheeping, an associate of the Respondent. On March 4, 1980, the denture was delivered to Mrs. Taub by the Respondent and an initial adjustment performed by him, Mrs. Taub complaining that the denture palate was too thick. On April 28, 1980, the Respondent again adjusted the denture in response to Mrs. Taub's complaint that the denture or its palatal portion, was still too thick.

   
   

3. In approximately March of 1980, the patient had stopped putting the partial denture in a container of liquid as she had been instructed by the Respondent. She began at that time to keep the partial denture in a dry envelope in her medicine chest. The patient had worn lower dentures and had been advised many times that if she did not properly care for and maintain this upper denture it could be damaged. She stopped caring for and maintaining the partial denture because she had no intention of ever wearing it again because of her dissatisfaction with its fit.

   
   

4. Dr. Marshall Brothers, a contract dentist for the Department of Professional Regulation/Board of Dentistry, was accepted as an expert witness. He examined Jewel Taub in his office on November 25, 1981, and examined the upper partial denture in question. The theory of the design of the upper partial denture was correct because the Respondent planned that appliance to have full palatal coverage because the patient needed the additional support from the roof of her mouth and that type of denture would aid her in making a transition eventually to a full upper denture. Dr. Brothers opined that the thickness of the plate, the impingement, the openness of the bite and a lateral rock rendered the execution of the partial denture to be below community standards for manufacture and fit of such dentures. Dr. Brothers did not, in formulating this opinion, consider the passage of time during which the denture was not used by the patient and not properly cared for and was not aware whether there had been any movement in the teeth, change in size of the gums or adjacent tissue, during more than one and one-half years since the attempted adjustments.

   
   

5. It is quite unusual that a denture should fit the first time it is tried in a patient's mouth. Thickness alone, even if a denture is too thick, does not alone render the execution of that denture below the standard of care.

   If a substantial period of time elapses (here in excess of one and one-half years) between the time when the denture was made and the time expert opinions are rendered regarding the fit of the denture in this patient, there can be movement in the teeth and changes in the dimensions of gums or tissue which can alter the fit of the denture. This is particularly true in the case of an 80- year-old patient. The fit of the denture can be altered for the additional reason that the patient failed to maintain the denture properly during that intervening one and one-half years between the time she quit wearing it, in approximately April of 1980, and the time expert examination and opinions regarding its fit were rendered, shortly prior to this hearing.

   
   

6. The manufacture of the denture with a palatal portion of a thickness in excess of one and a half millimeters is not necessarily too thick and the fact that that thickness exceeds one and a half millimeters does not render the manufacture and fit of that denture a departure from the proper standards of care of the dentist who manufactures and fits it. Indeed, proper palatal thickness varies considerably from one patient to another and the prescribing of a proper palatal thickness in such a denture is not an exact science since patients' mouths and their dimensions are all different. Indeed, the Respondent prescribed and fitted dentures for a substantial number of his patients who required a palatal thickness of between 3 and 6.2 millimeters and those patients all reported satisfaction with the fit of their dentures. The material used in the denture in question is an acrylic material containing a metal reinforcing mesh. That material is manufactured and supplied to dentists such as the Respondent with a thickness slightly in excess of one and a half millimeters. That then is the minimum dimension of the palatal material which then must be built-up by the dentist in constructing an accurate fit in the palatal portion of the denture to conform to a particular patient's mouth. The slightly more than one and a half millimeter palatal material is therefore a minimum or starting point for the dentist in constructing the denture and it is practically impossible for the material to be thinner than that dimension. Indeed most of the similar dentures satisfactorily fitted by the Respondent were of a palatal thickness of between 3 and 6.2 millimeters. Thus, a palatal thickness in excess of one and a half millimeters cannot be per se excessive.

   
   

7. The Respondent's expert witness, Dr. Gary Golden, is also a contract dentist with the Department of Professional Regulation/Board of Dentistry. He conducts a limited clinical specialty practice in prosthodontics and in maxillofacial prosthetics. He is assistant professor of orthodontics and oral surgery at the University of Miami and has conducted extensive study in his specialty area. He is the author of numerous papers and articles on the subject. One article in particular, admitted into evidence as Respondent's Exhibit 3, deals specifically with the issue of palatal size in dental prosthetics. It is not possible to merely observe a denture and determine if one and a half millimeters, the so-called "old standard" is too thick or too thin for a given patient. The partial denture in this case was outside of the patient's mouth for over one and a half years and that fact alone makes it difficult for the patient to reinsert it comfortably. This is true because of shrinkage of areas of her mouth or gums not containing teeth and the resultant movement of her remaining teeth. In an 80-year-old lady such as the complaining witness, particularly, teeth tend to "drift" because of previous extraction of teeth which the denture was designed to replace. It is quite likely that with this patient movement of her teeth occurred during the one and a half years when she did not use the denture, causing the poor fit.

   
   

8. A patient's cooperation is quite necessary in obtaining the proper fit for such a partial denture and it is not unusual for numerous adjustments to

   have to be made. Here the patient quit coming to the Respondent's office for adjustments after the fourth adjustment during a short period of time after the initial fitting. After that the patient ceased cooperating with the Respondent and did not care for the denture properly by not maintaining it in a liquid environment. The lack of care by the patient, coupled with the fact that only a one-half millimeter movement of the teeth in any direction can render the fit of such a denture improper was more likely the cause of the improper fit than the initial design and manufacture of the denture and the adjustments made during the four opportunities the Respondent had to adjust the denture.

   
   

9. When the patient complained of excessive palate thickness, the Respondent made adjustments and trimmed the thickness and the coverage of the palatal portion of the denture. After that, the patient failed to appear in his office again (for any further adjustment). Finally, the Respondent established that the interior metal mesh in the material from which the palate was construction is itself one and a half millimeters thick and thus it was impossible for the palate, including the acrylic material surrounding the mesh, to be only one and a half millimeters thick and although one and a half millimeters could possibly be too thick for some patients, it was not the case with this patient. The patient's complaint was really a generalized one regarding "all that stuff in the roof of my mouth" and in reality it was not established that the denture in question could be made successfully in any other way.

   
   

10. In summary, Dr. Brothers could not determine whether or not there had been any movement in the teeth or change in size of the gums or adjacent tissue in the patient's mouth. The patient had not maintained the denture properly during the substantial period of time when she did not wear the denture. It is not possible to accurately determine the appropriate original fit and function of the partial denture in question at the time Dr. Brothers examined it and the patient, since it was outside the mouth of the patient for a period of one and a half years and because of possible shrinkage of edentulous areas which do not contain teeth; the extrusion and drifting of the remaining teeth (since the denture is precisely cast to the teeth and gum tissue in a certain position at a certain time); and any movement or change in the teeth or gums would make it impossible to seat the denture satisfactorily. It is to be expected that in a patient 80 years of age who had not worn a partial denture for a period of one and a half years, that at least some movement of the teeth would have occurred, altering the fit of the partial denture. Thus, it was established that the fit of the denture to the patient's mouth more than one and a half years after the Respondent initially manufactured and fitted the denture was not the same. It is quite rare that a prosthetic dental device can be manufactured and simply inserted and not require a number of adjustments. It was not established that the denture was improperly made or that it should have been remanufactured.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

    
    

12. Section 466.028(1)(y), Florida Statutes, provides as follows:

    
    

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

       (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. The Petitioner has failed to demonstrate with clear and convincing evidence that a violation of Section 466.028(1)(y) has occurred and has not established that the Respondent, Dr. Seth Rhodes, in providing treatment to Mrs. Taub in the form of constructing and fitting the upper partial denture in question has been guilty of incompetence when measured against generally prevailing peer performance.

    
    

14. Although the Petitioner's expert witness, Dr. Marshall Brothers, opined that various aspects of the fit of the subject denture were deficient, his examination of the denture and its fit in the mouth of the complaining witness, Mrs. Taub, was performed in excess of one and a half years after the denture was fitted and after the fourth and final opportunity provided by Mrs. Taub to the Respondent for adjusting the fitting of the denture. Dr. Golden, the Respondent's expert witness, established that with an 80-year-old patient such as Mrs. Taub, it was especially likely that, with some teeth extracted and with the denture not in place for over one and a half years, some movement of her teeth occurred and that therefore any attempted expert opinion at such a late date cannot constitute competent evidence that the fit and function and manufacture of the denture at the time it was prescribed and attempted to be fitted by the Respondent was done in an incompetent manner. The testimony of Dr. Golden, as well as Dr. Cheeping and the Respondent himself, established that the denture was designed and constructed in a proper manner and in such a way as to comport with methods and designs used by dentists performing similar dental practice. Indeed, Dr. Rhodes established that many of his patients wear dentures constructed by him with a palatal thickness of between 3 and 6.2 millimeters without complaint and with satisfaction. It was also established by these three witnesses that generally prevailing and accepted dental practice encompasses the frequent necessity to make many more than four adjustments to such a denture before a patient is satisfied and that patient cooperation in effecting these adjustments is necessary. As established by Drs. Cheeping, Golden and Rhodes, the patient's dissatisfaction was as much attributable to her failure to cooperate with the Respondent's efforts to achieve a good fit, to her failure to adequately care for the denture for over one and a half years and to probable changes in her teeth, gums and mouth tissues, as any other factor. Under these circumstances, Dr. Brothers' examination and resulting opinion regarding the fit, design and manufacture of the denture after these probable changes in the patient's teeth, gums and mouth tissues and possible changes in the denture due to her lack of care of the appliance over such a substantial period of time cannot constitute competent and substantial evidence of a failure by the Respondent to comply with generally prevailing standards of peer performance in the prescription, manufacture, fit and function of the partial denture. It must be concluded therefore that clear and convincing evidence of incompetence by the Respondent in his treatment of this patient has not been established.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent be found not guilty of a violation of Section 466.028(1)(y) and that the Administrative Complaint be dismissed in its entirety.

DONE and ENTERED this 30th day of June, 1983, 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 30th day of June, 1983.

COPIES FURNISHED:

Julie Gallagher, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Richard A. Hamar, Esquire

155 South Miami Avenue Suite 111

Miami, Florida 33130

Fred Varn, Executive Director Board of Dentistry Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001293

Orders for Case No: 82-001293