vs. ) CASE NO. 83-961
) LESTER B. GREENBERG, D.D.S., ) RICHARD J. SHAWN, D.D.S., )
JOHN H. QUIRK, D.D.S., ) JACQUES L. ESCLANGON, D.D.S., ) PAUL C. SCHMIDT, D.D.S., and ) LESTER J. HUTCHINSON, D.D.S., )
Respondents. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
vs. ) CASE NO. 83-962
) LESTER B. GREENBERG, D.D.S., ) AUBREY W. EPPS, D.D.S., )
RICHARD J. SHAWN, D.D.S., ) JACQUES L. ESCLANGON, D.D.S., ) LESTER J. HUTCHINSON, D.D.S., ) and PAUL C. SCHMIDT, D.D.S., )
Respondents. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above-styled cases on June 29 and 30, 1983, at Bradenton, Florida.
Bruce D. Lamb, Esquire
Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201
By Administrative Complaints filed February 18, 1983, and February 11, 1983, the Department of Professional Regulation, Board of Dentistry, Petitioner, seeks to revoke, suspend, or otherwise discipline the licenses of Lester B. Greenberg, Richard J. Shawn, John H. Quirk, Jacques L. Esclangon, Paul C. Schmidt, and Lester Hutchinson in Case 83-961 and the licenses of Lester B. Greenberg, Aubrey W. Epps, Richard J. Shawn, Jacques L. Esclangon, Lester J. Hutchinson, and Paul C. Schmidt in Case 83-962, as dentists. As grounds therefor it is alleged in Case 83-961, Count I, that Respondents Quirk, Esclangon, and Shawn are guilty of incompetence in the treatment of patient Cindy Patton on November 19 and 20, 1981; in Count II that all Respondents failed to comply with the dentist of record provision of Section 466.018, Florida Statutes; and in Count III that Respondent Quirk failed to maintain proper dental records.
In Case 83-962 it is alleged in Count I that Respondents Epps, Shawn, and Esclangon are guilty of incompetence in the treatment of William Kimball, Jr., during the period June 25-July 2, 1982; in Count II that all Respondents failed to comply with the dentist of record provisions of Section 466.018, Florida Statutes; in Count III that Respondent Greenberg failed to comply with a lawfully issued subpoena; and in Count IV that Respondent Greenberg advertised in a manner contrary to the provisions of Section 466.017(2) Florida Statutes.
At the commencement of the hearing Respondents' motion to dismiss and motion to exclude evidence of local standards of competency were denied; Respondents stipulated that at all times relevant to these proceedings they were licensed dentists as alleged; Petitioner in Case 83-961, Count I, voluntarily dismissed the allegations respecting Esclangon and Quirk; voluntarily dismissed Count II with respect to Greenberg, Schmidt, Hutchinson, and Esclangon; and voluntarily dismissed Count III, Petitioner in Case 83-962, Count I, voluntarily dismissed the allegations respecting Epps and Esclangon; voluntarily dismissed Counts III and IV; and voluntarily dismissed Count II with respect to Greenberg, Schmidt, Hutchinson, and Esclangon.
As modified by these dismissals, only Respondent Shawn is charged with incompetence in the treatment of Cindy Patton in Case 83-961, and in the treatment of William Kimball in Case 83-962; Respondents Shawn and Quirk remain in Count II of Case 83-961; and Shawn and Epps remain in Case 83-962 involving the dentist of record allegations.
Thereafter, Petitioner called five witnesses, Respondent called four witnesses, and eight exhibits were admitted into evidence.
The parties' proposed findings of fact, to the extent they are incorporated herein are adopted; otherwise they are rejected as unsupported by the evidence, unnecessary to resolution of the issue, or mere recitation of testimony presented at hearing.
On November 12, 1981, Cindy Patton (Brown) (Romines) (hereinafter called Cindy) went to the Manatee Dental Center to have a filling that had fallen out replaced. At this time Respondents Greenberg, Schmidt, and Hutchinson owned the clinic; Respondents Quirk, Esclangon, and Shawn were salaried employees of the clinic; and all were licensed by Petitioner as dentists of Florida.
Upon arrival at the clinic, Cindy was referred to Respondent Quirk, who examined her and concluded that tooth No. 19 could not be repaired by simply filling the cavity, but that root canal therapy (RCT) followed by a crown was required. He so advised Cindy, who responded that she was not prepared to pay for the RCT at that time. Quirk agreed to commence the RCT and have Cindy return when she was ready to have the work completed. Quirk opened the tooth and located three canals which he reamed out to 40 mm. Medication was placed in the opening, the opening was temporarily sealed and Cindy was discharged to return at a later date. Four days later, on November 16, 1983, a small part of the temporary filling fell out and Cindy returned to the clinic to have the RCT completed and crowned. Upon her arrival she was assigned to Respondent Esclangon, who completed the RCT. For reasons not fully explained at the hearing, this RCT was not successful although Esclangon worked on Cindy several hours before closing the hole. The same afternoon Cindy returned to the clinic in considerable pain and was again treated by Esclangon, who reopened the cavity, rereamed the canal, and resealed the tooth. He made notations on Exhibit 1 that patient was due back the following day, 11/17/81. Upon her return on November 17, Cindy, who was nervous, upset, and in pain, was referred to Respondent Shawn, who examined her and concluded the RCT was a "failed" one and the only solution was to extract tooth No. 19 and replace it with a partial bridge. Since the failure of the RCT was responsible for the extraction and bridge, Respondent Shawn advised Cindy that there would be no additional charge (over the cost of the RCT and crown) for the extraction and bridge.
On November 17, 1981, after anesthesizing the area, Shawn extracted tooth No. 19, prepared teeth 18 and 20 for the bridge, immediately took impressions to have a permanent partial bridge constructed, fabricated a temporary bridge, and placed the temporary bridge in Cindy's mouth. At this time Cindy's mouth was still anesthesized, her gums were swollen and sore from the "failed" RCT and extraction, and, when the temporary bridge was -installed, she was not capable of enough sensation in the mouth to say the bridge fit or not. Shawn testified he used articulating paper to check the occlusion and it appeared all right. Cindy was rescheduled to return for the permanent bridge to be installed on November 27, 1981. On November 18 Cindy was called to reschedule her appointment to December 1. On November 17 Cindy returned to the clinic complaining of soreness and that the temporary bridge was digging into her gums. She was seen on this visit by Respondent Hutchinson, who prescribed she rinse frequently with a warm solution one-half saline and one-half peroxide, and he gave her a prescription for Percodan. Although Cindy testified she did not return to the clinic again despite her mouth not improving, Exhibit 1 indicates she went to the clinic on November 25, 1981, to pick up the X-rays taken of her mouth. On November 25, 1981, Cindy went to see Dr. Steinberg complaining of discomfort and exhibiting swollen gums and pain when biting on the bridge. Steinberg checked the temporary bridge, found the occlusion too high, and filed it down. He also found the temporary bridge poorly contoured and unpolished. He recontoured the temporary bridge and polished it. While the bridge was out he examined the jaw where tooth No. 19 had been extracted and found a dry socket which he treated and corrected. Immediately after the dry
socket was treated and the temporary bridge adjusted, Cindy's discomfort was alleviated. Dry sockets, when they occur, usually appear within three to four days after a tooth is extracted. Shawn saw Cindy only on November 17, when he extracted the tooth and performed the other work noted above.
In explanation of his decision to take the impression for the permanent bridge immediately after the tooth was extracted and while the gum was inflamed, Respondent Shawn testified the reason for departing from the normal practice of taking an impression several days after an extraction, which will allow the gums to shrink to a more stable state and to heal, was to "better serve her." Cindy had been through an arduous but unsuccessful RCT the previous day, was tense, upset, and had a sore mouth. Respondent Shawn further testified the technique used is described in the textbook by Tylman as a technique for fabricating immediate permanent replacement dentures. However, excerpts from Tylman produced at the hearing indicate this technique calls for taking the impression before the tooth is extracted, is generally used where anterior teeth are involved with the cosmetic effect more important than where posterior teeth are involved, and where no secondary infection exists. Cindy had been prescribed penicillin the previous day either for an infection she may have had or to inhibit an infection from starting as the result of the dental work.
The patient records of Manatee Dental Center identify the dentists working on the patient by a numerical code. Dentists and the number identifying each dentist are listed in Exhibit 3. No specific notation is made on the patient's record that "Dr. " is the dentist of record, yet these records identify each dentist who performs work on the patient.
William Kimball went to the Manatee Dental Center on June 18, 1982, complaining of a toothache. He was referred to Respondent Epps, who extracted tooth No. 18. Epps prescribed penicillin and noted patient "needs teeth cleaned and scaled." Kimball did not have the prescription for penicillin filled. He returned to the clinic on June 25, was referred to Respondent Esclangon, and complained of soreness in the area of the extraction, of inability to open his mouth, and of difficulty in swallowing. He was advised to take penicillin for the infection that was developing and was given another prescription for penicillin. Kimball returned to the clinic on June 28 and was referred to Respondent Epps. He was still complaining of pain in the area of the extraction and had difficulty opening his mouth and swallowing. Epps made an adjustment of the occlusion to correct an overbite and prescribed Demerol for the pain. That prescription was filled June 28. On June 30 Kimball returned to the clinic still complaining of pain and was referred to Respondent Shawn. Upon examination Shawn observed (Exhibit 2) that Kimball could barely open his mouth, the side of his face was swollen, and his throat was sore. Shawn recorded "Pt. had pterygoid mandibular infection." Kimball was told to drink a lot of liquids and return on Friday (July 2). When he returned July 2, 1982, Kimball's condition had not improved. He was again seen by Shawn, who lanced the gum in the vicinity of the extraction but only a little pus drained out. Kimball was told to stay on his medication and was given prescriptions for Keflex and Percodan. By July 3 (Saturday) Kimball was in such bad shape that he had to be driven to the clinic by his brother. He could not open his mouth or swallow and exhibited evidence of a massive infection in his mouth. He was examined by a dentist on duty, Dr. Cole, who sent him to an oral surgeon as an emergency patient. This oral surgeon, Dr. Kropp, was reached on his paging service and had Kimball sent to his office. Upon arrival Kropp found a very ill patient who could not open his mouth and had difficulty swallowing and breathing. Kropp concluded the situation was acute and he lanced the jaw and removed an estimated
150 cc. of very foul-smelling purulent solution. The pain immediately subsided
and the other symptoms of swelling, difficulty breathing, and swallowing, moderated.
By the time Kimball was referred to Kropp on July 3, 1982, the infection had spread to the parapharyngeal space and Kropp feared it would spread to the media thynum. Pus in that area could prove fatal. Kropp described Kimball on July 3 as moribund, indicating a very ill patient. When Kropp lanced the abscess he lanced in a completely different area than was lanced by Shawn. Infection in the parapharyngeal space will cause the patient difficulty in swallowing. Kropp opined the treatment given Kimball up through June 30 was proper, but the results from the July 2 treatment demonstrated a little incompetence and a little bad luck. Kropp acknowledged it was very rare to have an infection in the submandibular space and Kimball's infection had spread from the submandibular space to the parapharyngeal space where it had become life-threatening.
Respondent's expert witness, Richard M. Rose, M.D., who specializes in respiratory infections, reviewed the X-rays and dental records of Kimball, and listened to the testimony respecting Kimball's diagnosis and treatment. Among his conclusions is that Kimball is a poor host for infections and is not as likely to respond to treatment for these infections as are most people. He opined that from the information available on June 30, the infection was not ready for drainage and could only be treated with antibiotics and hot soaks to increase blood flow and localize the infection; on July 2 there was some indication the infection was localized and surgical drainage was the primary treatment for infection; the dramatic change in Kimball's condition between July
2 and July 3 simply means the infection had progressed to the next stage and not necessarily that the infection was worse; and that the treatment rendered on July 2 was proper for the symptoms presented.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
As noted above only Respondent Shawn remains charged with incompetence in the treatment rendered to patients Cindy Patton and William Kimball. The specific statutory provisions under which Respondents were charged are contained in Section 466.028(1)(y), Florida Statutes, which provides in part the following acts shall constitute grounds for which disciplinary action against a dentist's license may be taken:
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.
Prior to the 1979 amendment to the Dental Practices Act, the law provided, inter alia, that disciplinary action could be taken against a dentist's license if he is found guilty of gross ignorance, malpractice, or willful negligence in the practice of dentistry. Respondent contends that, in amending the statute by replacing those grounds with incompetency, the legislature intended to eliminate malpractice, gross ignorance, or willful
negligence as grounds for disciplinary action. That position is not well taken for the simple reason that gross ignorance, willful negligence, malpractice, or even simple negligence may be evidence of incompetence.
As defined in 25 Fla. Jur. 75 Physicians and Surgeons:
Malpractice, as the term is used with reference to physicians and surgeons, is a practice of a physician or surgeon that is bad or unskillful and results in injury to his patient. Negligent malpractice by physician or surgeon consists of his failure to exercise the required degree of care, skill, and diligence, doing something he should not have done, or omitting something he should have done, resulting in injury to his patient.
As professionals, dentists hold themselves out to possess the skill, knowledge, and experience required to properly treat patients. By qualifying to take the examination given by the state, a dentist has demonstrated that he possesses the training required for such licensure; and, by passing the examination and becoming licensed, he has demonstrated at least a rudimentary knowledge of dental practices and procedures. By receiving licenses to practice dentistry, dentists become "experts" in the practice of dentistry and have to meet the standards of care established by law for such professions. That standard is the same standard used in determining malpractice actions, i.e., the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. Accordingly, incompetence is evidenced by a dentist performing substandard dental work, by gross negligence in treating or diagnosing a patient, or by negligently committing any other acts relating to the practice of dentistry, or omitting to do something he should have done that is likely to or does injure his patient.
With respect to the treatment of Cindy Patton, Respondent Shawn took impressions for the permanent bridge and inserted the temporary bridge immediately following the extraction, while the gums were swollen and while the area was anesthesized. Despite Shawn's testimony that impressions to prepare the permanent bridge were then taken for the benefit of the patient and was certainly not a cheaper method for the clinic, such practice, particularly with respect to a posterior tooth, is below the minimum standards of performance as measured against generally prevailing peer performance.
It is not uncommon to prepare a temporary bridge as was done in this case. With gums anesthesized, the patient would be less likely to report discomfort caused by poor occlusion. Use of articulating paper on such a patient would allow a proper fit to be achieved, but it would be less successful than on a patient who could report pain when biting on a temporary bridge. When Cindy returned to the clinic on November 20, she was seen by Respondent Hutchinson, who should have corrected the occlusion problem that was subsequently found on November 25 by Dr. Steinberg.
With respect to the failure of Respondent Shawn to discover the dry socket that developed between the time Cindy's tooth was extracted November 17 and November 25 when she was seen by Dr. Steinberg, it is noted that Respondent saw Cindy only on November 17, that on November 20 she was seen by Respondent Hutchinson, and a dry socket could not have developed between the time Shawn extracted the tooth and Cindy left the dental clinic on November 17, 1981.
Furthermore, this is not one of the grounds alleged in the Administrative Complaint which formed the bases upon which Shawn was charged with incompetency in Case 83-961. Of those facts alleged in paragraph 12 of the Administrative Complaint upon which the charge of incompetency against Shawn is founded in Case 83-961, evidence was presented only with respect to the work performed on Cindy Patton by Shawn in taking the impressions immediately following the extraction and in fabricating the temporary bridge. The only evidence respecting the inadequacy of the temporary bridge was Exhibit 4 and Steinberg's testimony that he adjusted the temporary bridge to correct hyperocclusion, recontoured and polished this bridge, then recemented it in Cindy's mouth. Considering other evidence that this temporary bridge was not replaced with the permanent bridge for a year and a half and was apparently satisfactory after the adjustments by Steinberg during that one and a half year period, the fact that the temporary bridge needed adjustment and polishing is certainly not clear and convincing evidence that this temporary bridge was incompetently fabricated. Although Steinberg opined that failure to check the occlusion with marking paper before the patient leaves the office is evidence of incompetency, Shawn testified he always checks dentures and crowns with marking paper.
Respondents Shawn, Quirk, Epps, and Esclangon are also charged with violating Section 466.018, Florida Statutes, which provides:
Each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patients regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary rendering such treatment in conjunction with, at the direction or request of, or under the supervision of such dentist of record. The purposes of this section are to assign primary responsibility for each patient to one dentist in a multi-dentist practice of any nature and to assign primary responsibility to the dentist for treatment rendered by a dental hygienist or auxiliary under his supervision. This section shall not be construed to assign any responsibility to a dentist of record for treatment rendered pursuant to a proper referral to another dentist not in practice with the dentist of record or to prohibit a patient from voluntarily selecting a new dentist without permission of the dentist of record.
This statute is self-executing and is not subject to being violated. It succinctly states each patient shall have a dentist of record, that such dentist shall be primarily responsible for the patient, and clearly contemplates the dentist who first treats the patient shall remain the dentist of record and responsible for treatment rendered by his assistants who work under his supervision or for work performed by another dentist.
In interpreting statutes several canons of statutory construction are used. The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Products
Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed. 2d 766 (1980). Inasmuch as a statute is to be taken, construed, and applied in the form enacted, the law clearly requires that the legislative intent be determined primarily from the language of the statute, since the legislature must be assumed to know the meaning of the words and to have expressed its intent by the use of the words found in the statute. Thayer v. State, 335 So.2d 815 (Fla. 1976). Where legislative intent as evidenced by the statute is plain and unambiguous, there is no necessity for any construction or interpretation of the statute and courts need only give effect to the plain meaning of its terms. State v. Egan, 287 So.2d 1 (Fla. 1973).
Here the legislative intent or purposes as expressed in the statute is to "assign primary responsibility for each patient to one dentist in a multi- dentist practice of any nature and to assign primary responsibility to the dentist for the treatment rendered by a dental hygienist or auxiliary under his supervision." Since the intent of the statute is to assign responsibility for treatment of each patient to a specific dentist, the statute expressly does that regardless of how many dentists treat one patient. While this may present complications in a dental clinic setting where patients are assigned to any available dentist rather than to the dentist to whom they were referred on a previous visit, the statute speaks solely of responsibility for the treatment given and unequivocally states that one dentist shall be the dentist of record. Whether this is the owner or owners of the clinic as testified to by witnesses for Respondent or whether it is the dentist who actually performed work on the patient, the statute simply says that one dentist shall be primarily responsible for each patient. No evidence was presented tending to show no one was responsible for the dental treatment rendered to Cindy Patton and William Kimball; accordingly, no violation of Section 466.018, Florida Statutes, was shown.
Here the burden is on Petitioner to prove the charges alleged. Balino
v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1 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 is 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.
2d 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 states 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. 123,
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 clearly are 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 standards 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 where, as here, a valuable license to practice the
profession for which Respondent has devoted a large part of his life in preparation is in jeopardy, the state has the burden of proving the charges against Respondent by clear and convincing evidence.
From the foregoing it is concluded that Richard J. Shawn, D.D.S., is guilty of incompetence in taking impressions and fabricating a temporary bridge for Cindy Patton on November 17, 1981, immediately after extracting tooth No. 19 and while the gums were inflamed from the unsuccessful RCT the previous day, and not guilty of all other charges. It is further concluded that this incompetence is not of a type sufficiently serious as to warrant suspension or revocation of a license. It is also concluded that Respondents, Richard J. Shawn, John H. Quirk, and Aubrey W. Epps, are not guilty of violating the dentist of record provisions of Section 466.018, Florida Statutes. It is
RECOMMENDED that Richard J. Shawn be placed on probation pending successful completion of forty (40) hours of continuing education in the area of oral surgery and crown and bridge preparation.
DONE AND ENTERED this 11th day of August, 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 11th day of August, 1983.
Julie Gallagher, Esquire Bruce D. Lamb, Esquire Department of Professional
Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201
Fred M. Roche, Secretary Department of Professional Regulation
