vs. ) CASE NO. 82-2591
PAUL M. LEYDEN, D.D.S., )
Respondent. )
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 February 10, 1983, at Clearwater, Florida.
For Respondent: Kenneth M. Meer, Esquire
By Administrative Complaint filed August 31, 1982, as amended by Amended Administrative Complaint dated January 13, 1983, the Department of Professional Regulation, Board of Dentistry, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Paul M. Leyden as a licensed dentist in Florida. As grounds there for it is alleged that in removing and replacing crowns on teeth Nos. 20 through 28 on Ms. Helen Hampton, Respondent was incompetent by failing to meet the minimum standards of performance as measured against generally prevailing peer performance.
At the hearing Petitioner called two witnesses, and two witnesses' depositions were admitted as Exhibits 1 and 2; Respondent called three witnesses, including Respondent; and seven exhibits were admitted into evidence. Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.
Paul M. Leyden was licensed as a dentist in Florida in 1945 and was so licensed at all times here relevant.
Helen Hampton went to Sheppard Dental Center on September 21, 1981, to have crowns on her lower teeth replaced and was referred to Respondent for
consultation and treatment. At this initial appointment Respondent examined the crowns Ms. Hampton wanted replaced, viewed X-rays that Ms. Hampton had brought with her of these teeth, and advised Ms. Hampton that the existing crowns appeared to be alright. Ms. Hampton did not like the appearance of these crowns and wanted them replaced. An appointment to do this work was made.
On October 1, 1981, Respondent removed the existing crowns on teeth Nos. 20 through 28 of Ms. Hampton and took impressions for replacement crowns. Decay was noted on teeth Nos. 21 and 22, the decay was removed, and the space left thereby cemented. The teeth were prepared and temporary crowns put on pending the construction of the permanent crowns by the laboratory. Ms. Hampton was given an appointment for October 12, 1981, to have the permanent crowns seated. The laboratory was two days late and on October 15, 1981, the permanent crowns were seated by Respondent. Ms. Hampton was pleased by the appearance of these crowns.
On October 19, 1981, Ms. Hampton returned to Respondent for replacement of crowns on teeth Nos. 2, 3, 4, 9, and 14. At this time she complained of pain in the lower jaw where crowns had recently been put. At this time Ms. Hampton wanted tooth No. 24 redone but this was postponed until the crowns were replaced on the upper jaw on November 5, 1981.
When Ms. Hampton first visited Respondent, he observed some irritation in her gums and prescribed a penicillin mouthwash. Subsequently, when Ms. Hampton complained about soreness in the lower jaw where crowns had been placed on teeth Nos. 20 through 28, Respondent again prescribed penicillin mouthwash. Before the crowns were replaced, he relied upon the X-rays Ms. Hampton provided. After the crowns had been replaced and Ms. Hampton complained of pain and soreness, no additional X-rays were taken. Respondent told Ms. Hampton that she could expect soreness for sometime after new crowns were installed Ms. Hampton's testimony that Respondent told her she could experience pain for two years after crowns were installed was denied by Respondent, who testified that he advises all his patients that crowns can be sensitive for three to six months.
On November 23, 1981, when the redone crown was replaced on tooth No. 24, Ms. Hampton again complained of pain in the lower jaw and Respondent suggested she use a water pic. Ms. Hampton called the Sheppard Dental Center several times to talk to Respondent about the pain in her lower jaw, but was unable to make contact with him. When Respondent tried to return her calls, she was out. On December 14, 1981, Ms. Hampton did speak with Respondent on the telephone and complained about the pain. Respondent prescribed penicillin mouthwash with Phenaphen and suggested Ms. Hampton make an appointment for him to check her teeth. By this time Ms. Hampton had been in Respondent's office three times since he had placed the crowns on teeth Nos. 20 through 28, each time she complained of pain in those teeth, and each time Respondent had done other work in her mouth, paid scant attention to her complaints, and left Ms. Hampton quite dissatisfied with the treatment she received. Accordingly, when Respondent, on December 14, 1981, suggested Ms. Hampton come back for him to check her teeth, she did not do so.
On December 15, 1981, Ms. Hampton went to John T. Flanigan, D.D.S., complaining of pain in her lower jaw and told him she had those crowns replaced some two months ago. Dr. Flanigan took Panorex X-rays, conducted a visual examination of Ms. Hampton's mouth, found the margins on some of the crowns short, which could cause sensitivity, and suggested she go back to the dentist who had installed the crowns. He did not treat Ms. Hampton. In his deposition (Exhibit 2) taken February 1, 1983, Dr. Flanigan reviewed the X-rays of Ms.
Hampton's crowns and testified that tooth No. 20 had an open and short margin on the distal side; tooth No. 21 had an open margin on the mesial side; tooth No.
28 had an open margin on the mesial side; tooth No. 29 had an open margin on the mesial side; and several teeth had short margins on the lingual side. Dr. Flanigan concluded that the crowns on teeth Nos. 20 and 21 were below minimal acceptable standards for the community.
In March, 1982, Ms. Hampton went to Woodrow W. Garcia, D.D.S., complaining of pain in the lower jaw. Dr. Garcia briefly examined her, took full mouth X-rays, and told her to go back to the clinic where she had the work done. His examination revealed, inter alia, a fracture of the root of one of the capped teeth. She told Dr. Garcia it hurt so bad "and so I advised her to have it extracted but to go back to the Sheppard Dental Clinic and let them do what they had to do over there because I did not want to take that case on" (Exhibit 1 p. 8). Ms. Hampton returned to Dr. Garcia on May 3, 1982, again complaining of pain. In his deposition (Exhibit 1) Dr. Garcia appears to confuse the March and May visits, as Exhibit 1 leaves some doubt as to whether
X-rays were taken on the March or May visit, or both. Regardless of when the X- rays were taken, Dr. Garcia observed some decay on the capped teeth but performed no work on Ms. Hampton.
Subsequent to her last visit to Respondent, Ms. Hampton complained to Petitioner and, on March 22, 1982, she was examined by Daniel R. Manrique, Jr.,
D.D.S. Dr. Manrique heard the patient's complaints, took X-rays of teeth Nos.
20 through 28, and conducted a clinical examination on Ms. Hampton. The radiological examination revealed (Exhibit 5):
Tooth No. 20 - distal margin open and short Tooth No. 21 - mesial margin open and short Tooth No. 22 - mesial margin open and short Tooth No. 26 - mesial and distal margins open
and short.
The clinical examination revealed open margins on teeth Nos. 20 and 21 and margins short on all other teeth. On teeth Nos. 23 and 26 the margins were short as much as 2 mm. Dr. Manrique concluded that the work done on Ms. Hampton by Respondent failed to meet the minimum standards of the community.
Following the examination of Dr. Manrique, Ms. Hampton went to a Dr. Collins and he replaced the crowns on the teeth that were bothering her.
When open margins exist they can lead to decay of the tooth under the crown, as there is a space between the crown and the tooth that is not protected by enamel and can be attacked by bacteria. If the tooth is vital such decay will cause pain. A root canal had previously been done on Ms. Hampton's tooth No. 20, so this tooth was no longer vital. She would not experience pain if decay started in that tooth as she would in a vital tooth.
Where short margins exist the crown does not cover the prepared surface where the enamel has been disturbed or removed by the dentist in preparing the tooth to receive the crown. Short margins can also lead to decay even if below the gingiva, as the exposed dentine is more susceptible to caries than is the tooth covered by enamel.
Some tolerance in the fit of the crown over the tooth is inevitable; however, the amount of prepared tooth surface the short crown fails to cover should average about 50 microns, or .050 millimeters. Accordingly, a crown that
is two millimeters short far exceeds the allowable tolerance. Since the enamel has been removed to prepare the tooth for the crown, failure of the crown to cover the prepared surface subjects the tooth to attack by bacteria where there is no enamel to provide protection.
All witnesses, including Respondent, testified that the crown on tooth No. 20 should have been redone because of the open margin. The open margins on teeth Nos. 21 and 22 were also recognizable from the X-rays, as were the short margins on most of these teeth. Since the X-rays cannot penetrate the metal in the crown, all sides of the tooth cannot be observed on the X-rays that were taken. The only witness who acknowledged performing a clinical examination of Ms. Hampton while the crowns installed by Respondent were in place is Dr. Manrique. No evidence to rebut his clinical findings was submitted.
Before crowns are permanently seated, it is routine dental practice to place these crowns on the teeth for which they are made to see if they fit.
When doing this the dentist can observe if the crown covers the prepared surface and fits snugly to the teeth so no open margins will remain when the crown is cemented on. The crowns on teeth Nos. 20 and 21 should have been observed by Respondent to fit so poorly that open margins would exist when the crowns were permanently attached. Likewise, the crowns for teeth Nos. 23 and 26, which were short by two centimeters when examined by Dr. Manrique, certainly should have been found unacceptably short when first put on these teeth by Respondent.
Leaving open margins on crowns sufficiently large that an explorer can be inserted between the crown and the tooth constitutes dental practice which fails to meet the minimum standards of performance generally prevailing in the community. Leaving margins on crowns that fail to cover as much as 1.5 to 2 millimeters of prepared tooth surface likewise fails to meet the minimum standards of performance in the community.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
In his Memorandum of Law submitted in conjunction with the Proposed Findings of Fact, Respondent continues to argue inadequacies in the Probable Cause Panel which were resolved adverse to Respondent in Order entered December 23, 1982, following a hearing to consider Respondent's Motion to Dismiss on grounds the proceedings of the Probable Cause Panel failed to show the panel considered any evidence in finding probable cause for proceeding with the charges against Respondent. That ruling became the law of the case and res judicata.
Respondent also contends he was denied procedural due process because he was not given the opportunity to again examine Ms. Hampton before the crowns he had installed were replaced by Dr. Collins. He contends this denied him the rights of discovery provided under the criminal and civil rules of procedure.
In making this argument Respondent disregards the fact that he was the one first able to observe the work he performed on Ms. Hampton as he performed it and as it existed during the two months thereafter when Ms. Hampton visited his office three times complaining of pain in the teeth on which these crowns had been installed. Respondent acknowledged in his testimony that the X-rays taken of the crowns he installed on Ms. Hampton showed that tooth No. 20 should have been redone because of the open margins. The clinical examination conducted by Dr.
Manrique disclosed the open margins which had obviously existed from the time
Respondent installed these crowns and which should have been very evident to him had he properly checked the teeth after the crowns were seated. Accordingly, the argument that Respondent was denied his rights to discovery because the crowns were replaced before he was given another opportunity to see them is without merit.
Respondent is charged with violating Section 466.028, Florida Statutes, which provides in part:
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.
Section 466.028(2), Florida Statutes, provides that when the board finds a licensee guilty of any of the grounds listed in subsection (1) it may impose one or more of the following penalties:
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such
conditions as the board may specify, including requiring the licensee to attend continuing education courses or demonstrate his competency through a written or practical examination or to work under the supervision of another licensee.
Here the burden is upon Petitioner to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The quality of the evidence required to sustain this burden has been variously described before and after the present Administrative Procedure Act was passed. In Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966) the court concluded that an action to revoke a license was penal in nature and that penal sanctions should be directed only towards those who by their conduct have forfeited their right to the privilege [of licensee] and then only upon clear and convincing proof of substantial causes justifying the forfeiture of license.
In Florida Department of Health and Rehabilitative Services v. Career Service System, 289 So.2d 412 (Fla. 4th DCA 1974), the court held that an administrative tribunal measures proof presented to it by the preponderance of the evidence standard. That case involved the quantum of evidence required to discharge an employee for cause. This case and others of similar input seriously undercut Reid, supra.
Florida Department of Transportation v. JWC Corporation and Department of Environmental Regulation, 396 So.2d 778 (Fla. 1st DCA 1981) involved the burden of proof in a petition by the Department of Transportation for a permit from DER to construct a complex source of air pollution. In this case the court upheld the standards established by Rule 17-1.59, Florida Administrative Code, for permit proceedings involving DER which requires "The person requesting the hearing, variance, license, or other relief, shall have the burden of proof to establish, by a preponderance of the evidence, entitlement to the requested license, variance, or other relief."
Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) involved a proceeding to revoke the license of an insurance agent. In retreating from the preponderance of the evidence standard without adopting the clear and convincing evidence standard, the court stated at p. 171-2:
Although the APA does not in terms descend to such particulars, we have recognized the Act's implication that evidence 'appropriate in form' may differ from one proceeding to another depending on the 'nature of the issues involved.' Now we recognize also that in both form and persuasiveness evidence may 'substantially' support some types of agency action, yet be wanting as a record foundation for critical findings in a license revocation. So holding, we need not attempt to resurrect the pre-APA 'clear and convincing proof' standard for license revocation proceedings.
Rather, we glean a requirement for more substantial evidence from the very nature of the licensee discipline proceedings: when the standards of conduct to be enforced are not explicitly fixed by a statute or rule, but depend upon such debatable expressions as 'in the applicable regular course of business'; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and when the proceedings may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences. (Citations omitted.)
The United States Supreme Court has approached the burden of proof standards as a constitutional due process issue.
Addington v. Texas, 441 U.S. 426, 99 S.Ct. 1804 (1979) involved the standard of proof required to commit an individual involuntarily for an indefinite period to a state mental hospital. The court stated at p. 1808:
The function of standard of proof, as that concept in embodied in the Due Process Clause and in the realm of factfinding, is to "instruct the factfinder concerning the degree of confidence our society thinks it should have in the correctness of factual conclusions
for a particular type of adjudication." In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068,
1076, 25 L.Ed. 2d 368 (1970) (J. Harlan
concurring). The standards serve to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties.
Since society has a minimum concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.
The intermediate standard, which usually employs some combination of the words 'clear,' 'cogent,' 'unequivocal,' and 'convincing,' is less commonly used, but nonetheless is 'no stranger to the civil law.' Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 488, 17 L.Ed.
362 (1966). See also, McCormick, Evidence 320 (1954); 9 J. Wigmore, Evidence 2498 (3rd ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having reputation tarnished erroneously by increasing the plaintiff's burden of proof. Similarly, this Court has used the 'clear, unequivocal and convincing' standard of proof to protect particularly important individual interests in various civil cases. See e.g. Woodby v. INS, supra, at 285, 87 S.Ct. at 487 (deportation); Chaunt v. United States, 364
U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed. 2d
120 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 63 S.Ct. 1333, 1336, 1357, 87 L.Ed. 1796 (1943) (denaturalization).
After noting the function of the legal process is to minimize the risk of erroneous decisions; that commitment for any purpose constitutes a significant deprivation that requires due process protection; that the state has a legitimate interest in providing care to its citizens unable because of emotional disorders to care for themselves; and that the state also has the authority under its police powers to protect the community from dangerous tendencies of the mentally ill, the court in Addington v. Texas, supra, concluded the middle ground between preponderance of the evidence and beyond a reasonable doubt, viz, "clear and convincing" evidence was required to meet the due process guarantees.
Santosky v. Kramer, 102 S.Ct. 1388 (1982) involved severing the rights of parents to their children upon a finding of permanent neglect. While holding that, before the state may sever completely and irrevocably rights of parents in their natural child, due process requires that the state support its allegation by at least clear and convincing evidence, the court stated at p. 1397:
The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievious loss.' Goldberg v. Kelly,
397 U.S. 254, 262 - 263, quoting Joint Anti- Facist Committee v. McGrath, 341 U.S. 12Th, 168, 71 S.Ct. 624, 646, 95 S.Ed. 817 (1951) (Frankfurter, J. concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
License revocation cases are clearly penal in nature. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Furthermore, the consequences of these proceedings can result in the loss of an occupational or professional license for which the licensee has devoted many years to acquire. This is much more than a "money judgment." In an action to revoke professional license the risk of error from using the preponderance standard is substantial; and the countervailing state interest favoring that standard is comparatively slight. The language in Bowling, supra, above-quoted that "when the proceeding may result in the loss of a valuable business or professional license, the critical matter in issue must be shown by evidence which is indubitably as 'substantial' as the consequences" is another way of saying what was earlier stated in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed. 2d 18 (1976) that both the risk of erroneous deprivation of private interests resulting from use of a "fair preponderance" standard and the likelihood that a higher evidentiary standard would reduce the risk must be considered, and, when so considered, the standard of proof that by its very terms demands consideration of the quantity, rather than the quality, of the evidence, may misdirect the factfinder in the marginal case. Santosky v. Kramer, supra.
The reviewing court measures the correctness of the administrative orders under review by competent and substantial evidence standard. Florida Department of Health and Rehabilitative Services v. Career Service System, supra. While that appellate standard does not change, the court in Bowling, supra, has raised the evidentiary standard at the trial level in license revocation proceedings by saying competent and substantial evidence in license revocation proceedings requires more than a preponderance of the evidence. It is accordingly concluded that in this case state has the burden of proving the charges against Respondent by clear and convincing evidence.
The evidence here presented was largely uncontradicted. All expert witnesses agreed that the work done by Respondent on at least one of Ms. Hampton's teeth was below the minimum acceptable standard in the community and should be redone. Only one of those expert witnesses acknowledged performing a complete clinical examination on Ms. Hampton and he concluded that all of the crowns installed by Respondent were deficient to some degree and at least four of these crowns were below the minimum acceptable standard in the community.
From the foregoing it is concluded that Respondent, in replacing crowns on teeth Nos. 20 through 28 on Ms. Helen Hampton on October 15, 1981, was incompetent in performing this work which was below the minimum acceptable standards in the community. It is
RECOMMENDED that the license of Paul M. Leyden to practice dentistry in Florida be suspended for a period of sixty (60) days, that he be required to pay an administrative fine of one thousand dollars ($1,000), and that he be placed upon probation until he completes forty (40) hours of continuing education in the area of crown and bridge work.
ENTERED this 14th day of April, 1983, at Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1983.
Kenneth M. Meer, Esquire Post Office Drawer 30
Fred M. Roche, Secretary Department of Professional
