Judges: WILLIAM E. WILLIAMS
Agency: Department of Health
Latest Update: Oct. 23, 1984
Summary: Respondent was not responsible for problems with dentures if patient didn't allow dentist to make standard corrective adjustment. Recommend reprimand.
83-0373
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 83-0373
)
JOHN R. PARRY, )
)
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 April 1, 1983, in Orlando, Florida.
APPEARANCES
For Petitioner: Julie Gallagher, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Thomas V. Infantino, Esquire
and Paul M. Barbato, Esquire
180 South Knowles Avenue Post Office Box 30
Winter Park, Florida 32790
In a two-count Administrative Complaint, Respondent is charged with violations of Sections 466.028(1)(y) and
(1)(o) , Florida Statutes, by allegedly incompetently constructing a denture for his patient, Ellen Canton, and by failing to make available copies of documents in his possession relating to his treatment of the patient.
At final hearing, petitioner called Ellen Canton, Wayne Bennett and John R. Parry as its witnesses.
Petitioner offered Petitioner's Exhibits 1 and 2, which were received into evidence. Respondent testified in his own behalf, and called Ronald M. Marini as a witness.
Respondent offered Respondent's Exhibits 1 and 2 which were received into evidence.
Counsel for both Petitioner and Respondent submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
FINDINGS OF FACT
At all times material hereto, Respondent was a licensed dentist in the State of Florida, holding license No. DN0005282.
On or about March 31, 1981, Ellen Canton went to Respondent's dental office to have a set of dentures made. Impressions were taken on this initial visit, and the dentures were delivered to Mrs. Canton by Respondent on the following day. On the day the dentures were delivered, some adjustments were made to the dentures by Respondent prior to Mrs. Canton's departure from his office. The evidence in this cause is unrefuted that at the time Mrs. Canton left Respondent's office, the dentures were in centric occlusion, and seated properly to the extent that they did not dislodge.
Shortly after leaving Respondent's office, however, Mrs. Canton began to experience problems with the dentures. Among these problems were sore spots on her gums due to unsatisfactory fit, and the dentures becoming easily dislodged. However, because of a television news story which Mrs. Canton saw concerning dissatisfaction of some of Respondent's patients with his work, Mrs. Canton never returned to Respondent's office for adjustments to be made in her dentures. In fact, Mrs. Canton never advised Respondent of the problems she had experienced after leaving his office.
However, on June 4, 1982, Mrs. Canton wrote a letter to Respondent at his dental office requesting that he release her dental records to her. On June 7, 1982, one of Respondent's employees responded to Mrs. Canton's request and informed her that her dental records could not be released. At the time of these communications, Respondent's office policy was not to release the dental records themself to patients, at least in Part because of a lack of copying facilities. In addition, Respondent was unaware that patients were entitled to receive copies of dental records upon demand. The record in this cause is, however, clear that Mrs. Canton was subsequently furnished all the information in Respondent's control, which apparently was limited to information on a three-by-five index card containing the patient's name, address, telephone number, and the fact that the patient was fitted with a full set for dentures at a cost of $150.00. Mrs. Canton's records were limited to this skeletal information due to the fact that no procedure other than taking an impression and fitting her with her dentures was performed.
In the Administrative Complaint, Respondent is charged with failing to meet acceptable standards of practice in his treatment of Mrs. Canton as follows:
The upper dentures have no retention. The buccal flanges are over-extended and any action of the musculature in the vestibule dislodges them.
There is no post-dam.
Teeth on the new dentures are long.
The lower denture does not fit well. It is long in the lingual flange area and does not seat at all.
When the upper and lower dentures are seated, the occulsion is end-to-end; the bicuspids are not in occlusion. The only contact is in the anterior and molar regions.
Upon opening, both dentures dislodged.
The patient cannot tolerate both dentures at the same time; the increased vertical dimension causes breathing problems.
At the time Mrs. Canton visited Respondent, she was wearing a set of dentures that she had worn for approximately 17 years. Because of a problem with
"gagging" the post-dam had been removed from this old set of dentures. In view of this history of gagging, Respondent also removed the post-dam from the upper dentures with which he fitted Mrs. Canton. Removal of the post- dam reduces retention, as a result of which, Respondent determined it necessary to over-extend the buccal flanges to attempt to increase retention.
Respondent took this step with a view toward making any adjustment that might be necessary after the patient had worn the dentures for a period of time. However, because Mrs. Canton did not return to Respondent's office for these adjustments, Respondent was unable to correct any problems associated with the flanges. There is no credible evidence of record that would in any way establish that removing the post- dam and extending the buccal flanges in order to seek increased retention constitutes a departure from accepted standards of dental practice.
Some of the teeth on the dentures Respondent furnished Mrs. Canton appeared to be approximately one and one-half millimeters longer than "normal." The evidence is clear, however, that this situation is easily remedied by simple adjustments, and the only problem associated with the teeth being too long is essentially cosmetic. There is no evidence of record in this cause to establish that the existence of these facts constitutes a departure from minimum acceptable standards of dental practice.
The lower denture fabricated by Respondent for Mrs. Canton is long in the lingual flange area. Respondent purposely constructed the denture in this fashion to attempt to increase retention. As with the upper denture, Respondent's intention was to make any adjustment necessary should the longer flanges prove uncomfortable to the patient, but was never afforded that opportunity as a result of the patient's election not to return for adjustment. As conceded by Petitioner's expert, Mrs. Canton had a very compromised lower ridge which would have made it difficult to have ever gotten an extremely stable lower denture. There is no evidence of record to establish that Respondent's attempt to increase retention by over- extending the lingual flange and attempting to make any subsequent adjustments necessary, constitutes a departure from accepted standards of dental practice.
Evidence in this cause is unrefuted that the dentures were in proper occlusion at the time Mrs. Canton
left Respondent's office. Petitioner's expert, who examined Mrs. Canton and the dentures some 18 months thereafter, conceded that it was "very possible" that occlusion was proper at the time Respondent fitted Mrs. Canton with her dentures. Accordingly, there is no evidence to establish that Respondent departed from minimal acceptable standards of dental practice insofar as the occlusion of the dentures is concerned at the time he fitted Mrs. Canton with them.
The record in this cause clearly establishes that Mrs. Canton's dentures dislodge easily upon any action of the musculature in her jaws. This apparently is caused by the over- extended flanges on the upper and lower dentures, by which Respondent sought to obtain greater retention as a result of the lack of a post-dam in the upper denture and the compromise condition of Mrs. Canton's lower ridge. As noted above, this problem is subject to easy adjustment by reducing the over extension of the flanges. However, because of Mrs. Canton's failure or refusal to return to Respondent's office, he was unable to perform these adjustments. Again, there is no credible evidence of record to establish that Respondent departed from accepted standards in this regard.
At the time of her visit to Respondent, Mrs. Canton had decreased vertical occlusion with the old denture which she had worn for 17 years. As a result, it could reasonably have been expected that Mrs. Canton might eventually have either joint problems or distortion in her face. In an attempt to address the problem of decreased vertical occlusion, Respondent attempted to increase her vertical dimension by approximately 5 millimeters. Respondent advised Mrs. Canton at the time he fitted her with the dentures that she might experience some discomfort as a result of this large increase in her vertical dimension, and that she should return for adjustment if this occurred. With the new denture in place, there was difference of three millimeters between Mrs. Canton's resting tonic vertical dimension and the dimension of occlusion. This difference is within acceptable limits of practice. Further, there is no evidence of record that Mrs. Canton suffered any breathing problems as a result of increased vertical dimension in the new dentures.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 466.028(1)(o), Florida Statutes, provides that a licensed dentist may be disciplined for:
Failing to make available to a patient or client, or to his legal representative, copies of documents in the possession or under control of the licensee which relate to the patient or client.
Section 466.028(1)(y), Florida Statutes, provides for disciplinary action against a licensed dentist who is determined to be:
. . . 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 a licensed dentist, who is found guilty of any of the provisions of Section 466.028(1), Florida Statutes, may have his licensed revoked, suspended, reprimanded, or have an administrative fine not to exceed $1,000.00 for each count or separate offense imposed.
Based on the foregoing findings of fact and conclusions of law, it is concluded that the record in this cause fails to establish that Respondent in any way violated any of the provisions of Section 466.028(1)(y) relating to incompetence in the practice of dentistry. It is further concluded that Respondent committed a technical violation of Section 466.028(1)(o), by failing to furnish copies of Mrs. Canton's records to her upon demand. In view of the fact that Mrs. Canton was subsequently furnished this information, it is concluded that a written reprimand is the appropriate penalty for this violation.
Accordingly, it is
RECOMMENDED:
That a Final Order be entered by the Board of Dentistry dismissing the charges in Count I of the Administrative Complaint, finding Respondent guilty of the charges in Count II of the Administrative Complaint, and that a written reprimand be issued to Respondent.
DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida.
Hearings
Hearings
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
FILED with the Clerk of the Division of Administrative
this 27th day of June, 1984.
COPIES FURNISHED:
Julie Gallagher, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Thomas V. Infantino, Esquire and Paul M. Barbato, Esquire
180 South Knowles Avenue Post Office Box 30
Winter Park, Florida 32790
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
AGENCY FINAL ORDER
===========================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 0023042 (DPR)
83-0373
(DOAH)
JOHN R. PARRY, LICENSE No. DW 0005282
Respondent.
/
FINAL ORDER
This matter came before the Board of Dentistry pursuant to Section 120.57(1)(b)9., Florida Statutes, on September 8, 1984, in Palm Beach. Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation v. John R. Parry, Case No. 83-373, and the Exceptions filed by Respondent. The Petitioner was represented by Julie Gallagher, Esquire. The Respondent was represented by Kenneth M. Meer, Esquire.
Upon consideration of the hearing officer's Recommended Order, the Exceptions, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted in toto.
There is competent, substantial evidence to support
the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1) and Chapter 466, Florida Statutes.
The hearing officer's conclusions of law, are hereby approved and adopted in toto, with the exception that the Board rejects the words "upon demand" in the second to last sentence of paragraph 5 of the Conclusions of Law and the entire last sentence of that same paragraph. The Board inserts, in the place of the phrase "upon demand," the phrase "as she requested" for clarification.
The Board rejects the hearings officer's recommendation that a written reprimand is the appropriate penalty for the violation found as being too lenient. The record establishes that Respondent did not simply refuse to provide the records immediately; his agent notified the patient that the office policy was that records would not be released. Furthermore, the record does not reveal that the patient was ever given her actual patient records; at most, he furnished "information" in his control not the records. Accordingly, the Board finds that the appropriate penalty is a written reprimand and an administrative fine of $1000.00, payable to the Executive Director of the Board within thirty days of the date of this Order.
Respondent's exceptions to the Recommended Order are rejected based on the reasons set forth in paragraph three immediately above.
There is competent substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
That Respondent, John R. Parry, shall be, and hereby is, REPRIMANDED.
That Respondent is assessed an administrative fine in the amount of one thousand dollars ($1000.00). Said fine is payable to the Executive Director of the Board within thirty (30) days of the filing of this Final Order.
Pursuant to Section 120.59(4), the parties are hereby notified that they may appeal this Order by filing one copy of a notice of appeal with the clerk of the Agency and by filing the filing fee and one copy of the notice of appeal with the District Court of Appeal within thirty (30) days of the date this Order is filed.
DONE AND ORDERED this 15th day of October, 1984.
W. Edward Gonzalez, Jr.,
D.M.D.
Vice Chairman Board of Dentistry
cc: Julie Gallagher, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
John R. Parry, D.D.S.
225 Wymore Road
Winter Park, Florida 32789
Thomas V. Infantino, Esquire Paul M. Barbato, Esquire Kenneth M. Meer, Esquire Infantino and Berman
Post Office Box 30 Winter Park, Fla.
William E. Williams, Esquire Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Fla. 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF THE FOREGOING FINAL ORDER AND RECOMMENDED ORDER HAS BEEN PROVIDED BY U.S. CERTIFIED MAIL TO JOHN R. PARRY, D.D.S., THOMAS V. INFANTINO, ESQUIRE, PAUL M. BARBATO, ESQUIRE, AND KENNETH M. MEER, ESQUIRE; AND BY U.S. MAIL TO WILLIAM E. WILLIAMS, ESQUIRE AND M. CATHERINE LANNON, ESQUIRE.
COUNSEL FOR THE BOARD OF DENTISTRY THIS DAY OF OCTOBER, 1984.
PATRICIA B. GUILFORD ADMINISTRATIVE ASSISTANT BOARD OF DENTISTRY
Docket for Case No: 83-000373
Orders for Case No: 83-000373
| Issue Date |
Document |
Summary |
|
Oct. 15, 1984 |
Agency Final Order
|
|
|
Jun. 27, 1984 |
Recommended Order
|
Respondent was not responsible for problems with dentures if patient didn't allow dentist to make standard corrective adjustment. Recommend reprimand.
|
