vs. ) CASE NO. 83-1085
JOHN R. PARRY, D.D.S., )
Respondent. )
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on September 2, 1983. The issue for consideration was whether Respondent's license to practice dentistry in the State of Florida should be disciplined because of alleged misconduct as outlined in the Administrative Complaint.
For Petitioner: Julie Gallagher, Esq.
An Administrative Complaint was filed on February 18, 1983, by the Secretary, Department of Professional Regulation, alleging that Respondent was guilty of malpractice in violation of Section 466.028(1)(y), Florida Statutes (1981), and of other violations of Section 466.028(l) by aiding an unlicensed person to practice dentistry [Subsection (g)] and by delegating professional responsibilities to an unqualified individual [Subsection (aa)]. Respondent submitted an Election of Rights form on March 18, 1983, in which he disputed the allegations and requested a formal hearing. The hearing was originally scheduled for July 19, 1983, but, upon request of Respondent, was continued to the current hearing date.
At the bearing, Petitioner called Wayne M. Giddens, Nancy Ellen (Bradley) Herring, Leslie Langley Wilson, Dr. Wayne M. Bennett, Dr. Wayne Todd, and Dr. T. Russell Weinstein, and introduced Petitioner's Exhibits 1 through 4. Respondent called Wayne Giddens as his own witness, testified in his own behalf, and introduced Respondent's Exhibits A, B, and E.
Respondent, Dr. John R. Parry, at all times pertinent to this hearing, was licensed by the State of Florida to practice dentistry under License No. DN- 0005282. His primary practice is at the Florence Denture Clinic, located at 255 Wymore Road, Winter Park, Florida, but he also operates several other clinics under the same name in Jacksonville and St. Petersburg, Florida.
In late February, 1981, Nancy Bradley, a 28-year-old married woman living in Leesburg, Florida, was experiencing extreme pain due to an abscessed tooth. She had tried to get dental treatment in her hometown, but for some reason was unable to do so, so she requested that her sister, Leslie Wilson, who lives in Orlando, get an appointment for her with a dentist in that area. Ms. Wilson contacted Respondent's Winter Park clinic and made an appointment for Ms. Bradley for February 27, 1981. During the course of her conversation with the receptionist, she was quoted the price for various services provided by the clinic. She called this clinic because she had been treated there before and it was the only place she knew that was reasonable.
On February 27, 1981, Ms. Bradley and Ms. Wilson went to Respondent's clinic early in the morning. Ms. Bradley told the receptionist she had a bad tooth, filled out some forms, paid $180 in advance, and was told to wait. At this time, even though early in the morning, the waiting room was crowded.
After a wait of approximately 30 minutes, she was called in for X rays and afterwards, after a wait of an additional five minutes or so, was taken into the work area. She described this area as a large room broken up by partitions into separate work stations. After being put in the chair, she waited for a few minutes until a man she identified later as Wayne Giddens came in and took a molded impression of her mouth. She described the man in question and heard him referred to by others as Wayne. Her description fits that of the Wayne Giddens who testified at the hearing.
After Giddens left, Respondent came in and examined her mouth, telling her she needed to have four teeth pulled. Ms. Bradley told Respondent to pull only those teeth which could not reasonably be saved. Respondent did not tell her which teeth would have to be pulled. At this point, Ms. Wilson, who was also present, started asking questions as to why the teeth could not be saved. Respondent became upset by these questions, told Ms. Wilson to leave, threw the X rays down on the tray and told Ms. Bradley that if he did not pull the teeth, he would not do anything. When she acquiesced, he told her to come back at 2:00 that afternoon.
Because she had already paid for the treatment, because she was in much pain from her teeth, and because she thought the doctor knew what he was talking about, she came back as instructed and was taken into another room for treatment. This time her sister, Ms. Wilson, remained in the waiting room.
When Ms. Bradley was seated, a different dentist from Respondent came in and, after quickly looking at her chart, gave her an injection of anesthetic. Almost immediately and before the injection had a chance to take effect, this dentist started to pull her teeth. It hurt badly, and she asked for more anesthetic, which the doctor administered, and again began to pull her tooth. Partly through the procedure, however, he stopped, called someone on the phone that was there, and asked why an oral surgeon had not been called in. Apparently satisfied with the answer he received, he returned to the patient and finished the extraction.
After the first tooth was removed, the doctor started to pull a front tooth. Ms. Bradley asked why he was pulling there, when her pain was in the back. The attending dentist said it was because Respondent, Dr. Parry, bad said so. The attending dentist, however, indicated his opinion that the extraction of the front tooth was questionable.
A total of four teeth were pulled from Ms. Bradley's mouth that day. These were teeth numbered 3, 9, 10, and 12. Aside from the initial comment to Respondent requesting that any teeth that could be saved not be pulled and her question to the attending dentist, Ms. Bradley did not raise any objection to the extraction of her teeth. She indicated that she trusted the doctor involved, and since she had come in to seek relief from an abscess, in light of her prefatory comments, she felt that if teeth were pulled, they had to be pulled. In fact, she signed a consent form numbered 1083, which refers to an attached Information Sheet. Ms. Bradley does not recall having seen the information sheet, but no doubt was furnished one. However, review of the information sheet shows the "procedures outlined" are not at all clearly defined. In fact, it is more in the form of a disclaimer and cannot in any reasonable way be considered as forming the basis for an informed consent. Consequently, it is clear that the procedures undertaken by Respondent and his staff were not based on a full and informed consent by the patient, Ms. Bradley.
After the teeth in question were pulled, Ms. Bradley was taken into another room, where she was put in a chair. At this point, though her mouth was still bloody from the extractions, the same individual who took the impressions earlier in the day came in with the dentures and inserted them in her mouth. He told her to leave them there for 24 hours and not to eat for the period, and left. Ms. Bradley was then led out to the waiting room, where her sister met her.
Ms. Wilson was quite upset by the condition of Ms. Bradley and, after taking her to the car, immediately went back into the clinic to talk with someone about the situation. When she asked for Respondent, she was told that he and all other dentists were gone for the day.
A few days later, Ms. Bradley went to another dentist, Dr. Rucher, who treated her for four dry sockets, where the teeth had been pulled, and a gum infection. He also made a new partial bridge for her to replace the one made at Respondent's clinic, which device did not fit properly. She did not return to Respondent's clinic.
Mr. Giddens, the individual who took the impression of Ms. Bradley's mouth and who placed the completed bridgework in, is not a licensed dentist, but is a dental technician and has been for approximately 14 years. He has had no formal schooling for his work and has secured all his knowledge through on-the- job training. With the exception of a three-month hiatus in the summer of 1982, he has worked for Respondent since 1980. He primarily works in quality control, inspecting dentures when they come from the laboratory. His duties do not include taking impressions of patients' mouths or the fitting of dentures.
These are functions performed by others in the office. He denies having put any dentures in Ms. Bradley's mouth. If he were to do so, he states, Respondent would fire him. The dental chart on each patient contains the initials of the individual who actually accomplished the work. For example, the chart on Ms.
Bradley shows that on February 27, 1981, the examination and the X rays were performed by "P," which stands for "Parry." The delivery of the dentures is noted by the initials "WG." Mr. Giddens' first name is Wayne. Therefore, since Ms. Bradley positively identified Mr. Giddens as the individual who took the
impression of her mouth and later inserted the denture, since she called him by name from overhearing his name mentioned by others in the clinic while the work was being done, and since the witness alone initialed the records denoting delivery of the dentures, it is found that Mr. Giddens did, in fact, do both, as alleged.
As was previously found, four teeth were pulled from Ms. Bradley's mouth at Respondent's clinic on February 27, 1981. These teeth were identified on her dental chart as Nos. 3, 9, 10, and 12. Several experts in the field of dental surgery examined the X rays that were taken of Ms. Bradley's mouth at Respondent's clinic on the day of her visit, but before the extraction. This X- ray picture shows clearly the condition of teeth numbered 9, 10, and 12. It was the consensus of all experts that teeth numbered 9 and 10 were not in such deteriorated condition that they needed to be pulled. A reasonable amount of restoration work by a competent dentist could have saved these two teeth. It was also the consensus that tooth numbered 12 was not reasonably salvageable and was properly extracted. Because of the location of tooth numbered 3 and the quality of the X ray, no firm opinion was reached by the experts with regard to this tooth. Therefore, it is found that of the four teeth pulled, two, Nos. 9 and 10, could have been saved by the use of root canal and crown work, a reasonably simple procedure which was available, but considerably more costly than the extraction and bridgework. Ms. Bradley indicated that while she has paid little attention to her mouth and tooth condition prior to this episode, and that while her mouth, at the time in question, was not in good shape and did not reflect good dental hygiene practices, she would have paid what was necessary to save her teeth.
There are numerous factors for a patient to consider before making a decision to have teeth extracted. Among these are:
The willingness to have it done with the knowledge that once the tooth is gone, it is forever.
The patient's dental I.Q.--the willingness of the patient to practice good dental hygiene afterwards.
The cost of restoration versus extraction.
The pain and inconvenience to the patient, recognizing that restorative treatment may require several visits while extraction is
done in one visit.
Generally speaking and based on these considerations, most dentists believe it is better to save a tooth than to extract it. With that in mind, it is generally considered to be practice below minimum community standards not to advise a potential extraction patient of available alternative treatments. It is up to the patient, then, to make the decision whether to extract or not, after being provided with all reasonable available information. If there is a proper informed consent given by the patient, then an extraction of even salvageable teeth would not be practice below minimum standards. However, if a dentist pulls a restorable tooth without informing the patient of alternative treatments, since any taking of patient tissue is serious, this action would fall below community standards.
The standards stated above are no different for a high-volume clinic practice than for a routine practice. All elections of the patient, including
the fact that the patient was advised and declined alternate treatment, should be made a part of the patient records. Here, the records kept by Respondent reflect no advice as to alternatives nor an election as to treatment. The "consent" form utilized by Respondent is totally insufficient to establish informed consent.
Respondent did not authorize Mr. Giddens to either take the impression of Ms. Bradley's mouth or insert the appliance. To do either would be the unauthorized practice of dentistry. It is his policy that technicians do not get into a patient's mouth, particularly in the case of partial bridgework, where the fit is critical. He does not recall Ms. Bradley nor is she listed in his appointment book for the date in question. This latter factor, he states, indicates she came in either as a walk-in, or was fit in as a favor to her sister, already a patient at the clinic. As to the payment, she could not have had a fee set until it was determined what action would be taken. Also, Ms. Bradley was patient number 17 for the day. Respondent states this shows she did not come in early, but more like 8:30 or 9:00 a.m. All of these factors are claimed by Respondent to show that Ms. Bradley is not being truthful in her allegations. However, this has not been shown.
Respondent, in one statement, says he does not recall this patient, nor does he recall throwing the X rays on the table and stalking out of the office. However, he contends she asked him to take out the four teeth in question. Based on the state of the evidence, Ms. Bradley is the more credible witness.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Count I was voluntarily dismissed by Petitioner.
In Count II, Respondent is charged with a violation of Section 466.028(1)(y), Florida Statutes (1981), which states:
(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.
Here, the experts called by Petitioner, including Dr. Weinstein, who himself operates a clinic-type practice, indicated that the extraction of teeth of a patient without first advising of alternative methods of treatment and securing either a declination of alternative treatment or an informed consent to extract is guilty of performance below the minimum standards of the profession. Respondent's experts concurred. Respondent contended that he had the patient's consent to perform the extractions. While it is true that the patient did not refuse to allow the extractions once in the chair, and that may constitute consent, the weight of the evidence clearly showed the consent was not based on advice as to alternative treatment; was not, therefore, informed consent; and cannot here serve as the basis for extraction. Therefore, Respondent's conduct here falls within the terms of this statutory provision, at least as to teeth numbered 9 and 10.
In Count III, Respondent is charged with a violation of Sections 466.028(1)(g) and (aa), Florida Statutes (1981), which state:
(g) Aiding, assisting, procuring, or advising any unlicensed person to practice dentistry or dental hygiene contrary to this chapter or to a rule of the department or the board.
(aa) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
Taken in its worst light, the evidence shows only that Mr. Giddens took the impressions of Ms. Bradley's mouth and inserted the appliance, both while working as an employee of Respondent. This evidence does not support a conclusion that Respondent aided, assisted, procured, or allowed him to practice dentistry or dental hygiene. It does, however, clearly support a finding that Respondent delegated to Mr. Giddens the responsibility to insert an appliance when he knew, as evidenced by his testimony, that this was a critical procedure best accomplished by a dentist.
The parties have submitted proposed recommended orders 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 above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
That Respondent pay an administrative fine of $2,000 and be reprimanded. RECOMMENDED this 13th day of October, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1983.
Julie Gallagher, Esq. Department of professional
Thomas Infantino, Esq. Post Office Drawer 30
Mr. Fred Roche Secretary
Mr. Fred Varn Executive Director Board of Dentistry
