STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1384

)

LEONARD FOLEY, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on September 8, 1982, in West Palm Beach, Florida. The following appearances were entered: Theodore R. Gay, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Professional Regulation, Board of Dentistry; and Patrick L. Bailey, Pompano Beach, Florida, appeared on behalf of the Respondent, Leonard Foley.

On or about April 15, 1982, the Petitioner issued an Administrative Complaint against the Respondent. Petitioner is seeking to suspend or revoke the Respondent's license to practice dentistry in Florida, or to take other disciplinary action against the Respondent. The Respondent requested a formal administrative hearing, and the matter was forwarded to the office of the Division of Administrative Hearings on May 17, 1982. The final hearing was scheduled as set out above by notice dated July 2, 1982.

Petitioner called the following witnesses at the hearing: Sally Cohen, a former patient of the Respondent; and Dr. Richard A. Saal, a licensed dentist. The Respondent testified as a witness on his own behalf and called the following additional witnesses: Jenny Hopler, a former investigator employed with the Department of Professional Regulation; and Michael Overleese, a dentist who shares offices with the Respondent. Petitioner's Exhibits 1, 2, and 3, and Respondent's Exhibit 1 were offered into evidence and received. Petitioner's Exhibit 4 was offered into evidence and rejected.

The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous.

ISSUE

The ultimate issues to be decided in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the practice of dentistry and, if so, whether his license should be revoked or suspended for a specified period, or whether other disciplinary action should be

invoked. Petitioner contends that Respondent violated the provisions of Section 466.028(1)(y), Florida Statutes, in connection with his construction and adjustments of a set of upper and lower dentures for Sally Cohen, a former patient. Respondent disputes the allegation and contends that his diagnosis and treatment of Sally Cohen was proper.

FINDINGS OF FACT

1. Petitioner holds license No. 1808 issued by Petitioner and has been licensed to practice dentistry in the State of Florida since 1953. Prior to his being licensed in Florida, the Respondent practiced dentistry in other locations beginning in 1940. Since approximately 1963, the Respondent's practice has been solely in the area of fabricating, constructing, fitting, and adjusting complete and partial dentures.

   
   

2. Sally Cohen was formerly a patient of the Respondent. The Respondent first saw her during October, 1978, with a broken lower denture. The Respondent repaired it and refit it in her mouth. The Respondent saw Ms. Cohen in October, 1980. She was complaining of her old dentures. The Respondent observed her dentures and noted that they were slipping. He recommended that she get new dentures, and he told her that he would be able to make the dentures for her.

   He saw her again in April, 1981, observed the same conditions, and made the same recommendations. Ms. Cohen requested that he fit her for a new set of dentures.

   
   

3. The Respondent took impressions, developed models, and sent the models to his laboratory for processing into dentures. When the laboratory completed the manufacture of the new dentures, Ms. Cohen returned to the Respondent's office to have the dentures fitted. The Respondent placed the dentures in her mouth, checked for "occlusion," and observed the fit of the dentures. The term "occlusion" pertains to the manner in which the upper and lower dentures touch. With dentures, it is important that the occlusion is as uniform as possible so as to assure a proper fit and prevent slippage of the denture plates within a patient's mouth. The occlusion and fit of Ms. Cohen's dentures appeared appropriate. The Respondent explained to Ms. Cohen at the fitting that there would be an adjustment period, and he explained good oral hygiene procedures to her. Ms. Cohen's upper ridge was anatomically good, but her lower ridge was in poor shape; and it was difficult to accomplish a fit of the lower plate without "overextending" the denture borders so as to make the lower denture as stable as possible in the patient's mouth.

   
   

4. The Respondent ordinarily likes to wait for approximately one week after dentures are fitted to make an adjustment. Ms. Cohen, however, returned to his office on the first day after the fitting, complaining of pain. It appears that Ms. Cohen has a low pain threshold. Respondent again explained proper oral treatment to her. He observed no sore spots of significance in her mouth. He again checked the occlusion and fit of the dentures and observed no problems. Several times thereafter, Ms. Cohen returned to the Respondent's office complaining of pain from the new dentures. Each time, the Respondent checked the occlusion and fit of the dentures. He made minor adjustments. He properly observed the occlusion and observed no problems. The Respondent last observed Ms. Cohen on June 12, 1981. He felt at that time that she was in good condition. The Respondent was going on vacation, and he informed Ms. Cohen that Michael Overleese, the dentist who shared office space with the Respondent, would be handling any adjustments while the Respondent was away.

   
   

5. While the Respondent was on vacation from his practice, Ms. Cohen made several appointments to see Dr. Overleese. She continued to complain that the

   dentures hurt her mouth. She complained of generalized discomfort, but was generally unable to pinpoint a specific area of pain. Dr. Overleese made four adjustments of the patient's dentures during June and July, 1981. He properly observed the occlusion and fit of the dentures. He observed no problems. He felt that Ms. Cohen was not keeping the dentures in her mouth long enough to adjust to them. He did not observe any ulceration or irritation in places where Ms. Cohen indicated she was experiencing pain. Dr. Overleese did grind some spots on the patient's dentures in order to improve occlusion, but this is not an unusual occurrence. Occlusion of dentures can typically always be improved at least slightly. Dr. Overleese was somewhat frustrated with the situation.

   On her last visit, Ms. Cohen felt that Dr. Overleese told her that she would not be able to return for further adjustments. Dr. Overleese did not give instructions of that sort, but was misunderstood by Ms. Cohen.

   
   

6. After the last visit, Ms. Cohen visited a lawyer. The attorney assisted her in filing a complaint with the Petitioner. The Petitioner conducted an investigation and retained Richard A. Saal, D.D.S., to examine Ms. Cohen. Dr. Saal examined her in October, 1981, and observed that there was a premature occlusion. He observed that the first bicuspid on the upper and lower right dentures met prematurely. The premature occlusion was obvious to Dr. Saal. Such an occlusion would result in movement of the denture plates, resulting in pain.

   
   

7. Dr. Saal concluded that the most logical explanation for the premature occlusion was improper manufacture and fitting of the dentures or an improper adjustment of the occlusion. While this may be the most common explanation, it is not the only one. Such a prematurity could result from structural problems in the patient's mouth and from changes in the structure. Tooth grinding on the part of the patient or any action that changes the contour of the lower ridge of a patient's mouth could result in such a prematurity. It is not uncommon for such prematurities to develop with dentures that displayed a proper occlusion and fit when first placed in the patient's mouth. Given the fact that the Respondent and Dr. Overleese properly observed the occlusion of Sally Cohen's dentures and observed no abnormalities of the sort observed by Dr. Saal, it is concluded that events which occurred after Ms. Cohen's last visit to Respondent's office resulted in the premature occlusion.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(4), 120.60, Florida Statutes.

   
   

9. In the Administrative Complaint, the Petitioner charged the Respondent with violating the provisions of Florida Statutes Section 466.028(1)(y), which provides in pertinent part:

   
   

   1. The following acts shall constitute grounds for which the disciplinary action 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.

Petitioner has failed to establish that the Respondent violated the statute. The Respondent properly observed the occlusion and fit of Sally Cohen's dentures. He took steps which would have revealed any premature occlusion that may have existed and found none.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Professional Regulation, Board of Dentistry, dismissing the Administrative Complaint that has been filed against the Respondent, Leonard Foley, D.D.S.

RECOMMENDED this 1st day of November, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 1st day of November, 1982.

COPIES FURNISHED:

Theodore R. Gay, Esquire Mr. Samuel R. Shorstein Department of Professional Secretary, Department of

Regulation Professional Regulation

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

Patrick L. Bailey, Esquire Mr. Fred Varn Sullivan, Ranaghan, Bailey Executive Director

& Gleason, P.A. Board of Dentistry

2335 East Atlantic Boulevard Department of Professional Post Office Box 549 Regulation

Pompano Beach, Florida 33061 130 North Monroe Street

Tallahassee, Florida 32301

Docket for Case No: 82-001384

Orders for Case No: 82-001384