STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) Case No. 85-3840
) 86-0141
JOHN R. PARRY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above- styled cause on March 11, 12 and 13, 1987, in Orlando, Florida, before Diane A. Grubbs, a Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Errol H. Powell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Kenneth M. Meer, Esquire
180 South Mills Avenue Winter Park, Florida 32789
ISSUE
Whether respondent committed the acts alleged in the Administrative Complaint and, if so, whether respondent's license should be revoked or suspended, or whether some other penalty should be imposed.
BACKGROUND
On October 1, 1985, an Administrative Complaint was filed against the respondent charging him with violating Section 466.028(1)(y), Florida Statutes (1983), by being guilty of incompetence by failing to meet the minimum standard of diagnosis and treatment when measured against prevailing peer performance.
Specifically, the complaint alleged that Sylvia Lassetter was treated by respondent from January 15, 1982, until February 10, 1982; that the treatment provided consisted of the extraction of teeth numbers 5, 7, 8, 9, and 16, as well as the placement of full immediate upper denture; and that respondent's diagnosis and treatment of Ms. Lassetter failed to meet the minimum acceptable standards as evidenced by the following:
The failure to recognize, treat or advise the patient of existing peridontal disease;
The failure to recognize or treat a pathological lesion on Lassetter's mandibular anterior alveolar ridge;
The failure to recognize the complete lack of space in the maxillary turberosity areas for a denture base, and the failure to perform preliminary surgical preparation of Lassetter's mouth by alveolectomy or extraction of the malposed and peridontally involved mandibular second and third molars;
The failure to recognize severe undercuts in the maxillary anatomy that required surgical preparation to permit proper denture retention;
The fracturing of the labial alveolar bone in the area of teeth 8, 9 and 10 during extraction, causing the loss of a large segment of bone;
The failure to institute antibiotic therapy or other treatment after Lassetter developed an osteitis that caused extensive infection and severe pain;
The failure to properly close the extraction sites after surgery and the alveolar fracture, in that there was a large area of exposed alveolar bone at the #9 extraction site; and
The failure to properly treat the exposed alveolar bone or refer Lassetter to a specialist for treatment.
The complaint further alleged that the denture base provided by respondent was extremely ill-fitting; that when the mandible was closed in centric relation, none of the denture teeth occluded with the mandibular teeth; that the denture was grossly overextended in the buccal flang areas; that the denture had no seal in the post-dam area; and that the denture had no reasonable adaptation to the maxillary ridge and no teeth posterior to the second bicuspids.
Respondent filed an Election of Rights form disputing the factual allegations of the complaint and requesting a formal hearing pursuant to Section 120.57(13, Florida Statutes. The matter was referred to the Division of Administrative Hearings on November 5, 1985, and assigned Case No. 85-3840.
On November 20, 1985, the petitioner filed another Administrative Complaint against the respondent. Count I of the complaint alleged that on August 14, 1984, Jean Blanchard went to respondent's office, Florence Denture Clinic, to have an upper full denture and lower partial denture fabricated; that the impression for the dentures were not take by a dentist licensed in the State of Florida and that respondent knew or had reason to know that unlicensed personnel took the impression; that on October 22, 1984, Ms. Blanchard executed an authorization for release of medical information for an investigator of the Department of Professional Regulation (DPR); that on January 23, 1985, and again on February 2, 1985, the investigator attempted to obtain from respondent Mrs. Blanchard's patient records; and that respondent had failed to provide such records. Based on the foregoing, respondent was charged with violating Section 466.028(1)(aa), Florida Statutes, by delegating professional responsibilities to a person not qualified by training, experience or licensure to perform them, and Section 466.028(1)(o), Florida Statutes, by 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.
Count II of the complaint alleged that on August 14, 1984, James Blanchard went to respondent's office to have upper full and lower partial dentures fabricated; that the impressions for the dentures were not taken by a dentist licensed in the State of Florida and that respondent knew that unlicensed personnel took the impressions; that respondent provided Mr. Blanchard with a maxillary immediate full denture and a mandibular partial denture; and that the treatment provided to Mr. Blanchard by respondent failed to meet minimum acceptable standards of performance in that (a) respondent failed to diagnose or treat the periodontal condition of Mr. Blanchard's remaining mandibular teeth prior to construction and insertion of the lower partial
denture; (b) respondent failed to advise Mr. Blanchard of the need for periodontal treatment; (c) the dentures did not partially occlude when in the centric relation position; (d) the dentures displayed an open bite in several regions, causing instability of the upper full denture when pressure was applied and loss of retention; (e) the dentures were defective in design, fit and function in that they lacked the proper centric relation necessary to a balanced occlusal function; and (f) the lower partial denture lacked necessary occlusal rests and retention clasps, and was inserted upon inflammed or periodontally involved tissue. The complaint also alleged that Mr. Blanchard executed an authorization for release of medical information to a DPR investigator; that the investigator on January 23, 1985, and on February 2, 1985, requested Mr. Blanchard's patient record; and that respondent had not provided the patient records as of November 18, 1985. Based on the allegations set forth in Count II, respondent was charged with violating subsections 466.028 (l)(o), (y), and (aa), Florida Statutes (1983).
Count III of the complaint alleged that on February 13, 1985, Dorothy E. McPeck went to respondent's office to have a complete maxillary and partial mandibular denture fabricated; that Wayne Giddens, a lab technician and dental assistant employed by respondent, took impressions for Ms. McPeck's dentures; that Mr. Giddens was not licensed as a dentist in Florida; that on or about February 15 and February 20, 1985, Mr. Giddens delivered, diagnosed problems, and adjusted Ms. McPeck's dentures, all with respondent's knowledge; that respondent failed to keep adequate written dental records for Ms. McPeck as evidenced by respondent's failure to obtain a medical history, to chart then present dental conditions, to take radiographs or other diagnostic information, and to prepare treatment plans; that during respondent's treatment of Ms. McPeck, respondent was the treating dentist and the dentist of record; that respondent submitted an unsigned procedure authorization form for the fabrication of Ms. McPeck's dentures to a denture lab on February 13, 1985; that during respondent's treatment of Ms. McPeck, respondent provided her with complete maxillary denture, a partial mandibular denture, and a duplicate maxillary denture; and that the dentures, as provided by respondent, were below minimum acceptable standards as evidenced by the following: (a) the dentures, as a set, contained a 3 millimeter discrepancy between centric relation and occlusion; (b) the maxillary dentures contained large areas of no contact, with approximately 50% of the tissue bearing surface failing to make contact with the palatal tissue; (c) the maxillary dentures lacked proper retention; and (d) the partial mandibular denture lacked properly adapted, individually cast clasps fitted to a surveyed model, lacked lingual reciprocal clasps to the facial retentive clasps, lacked cast metal lingual rests, and contained large areas of no
tissue contact. Based upon the foregoing allegations, respondent was charged with violating Section 466.028(1)(i), Florida Statutes (1983), by failing to perform a statutory or legal obligation placed upon a licensee, by failing to sign a written dental work order as required by Section 466.021, Florida Statutes (1983); Section 466.028(1)(n), Florida Statutes (1983), by failing to keep written dental records and medical history records that justify the course of treatment of a patient; Section 466.028(1)(y), Florida Statutes; and Section 466.028(1) (aa), Florida Statutes.
Count IV of the complaint charged respondent with the same violations as alleged in Count III in regard to his treatment of Florence R. Page.
Count V of the complaint alleged that based on the prior allegations, respondent had violated Section 466.028(1)(g), Florida Statutes (1983), by aiding, assisting, procuring, or advising any unlicensed person to practice dentistry.
Count VI of the complaint alleged that on December 17, 1983, the respondent was found guilty by the Florida Board of Dentistry of violating subsections 466.028(1)(g) and (y), Florida Statutes, and, therefore, respondent has violated Section 466.028(1)(b), Florida Statutes, by repeatedly violating provisions of Chapter 466, Florida Statutes.
Respondent disputed the allegations of fact contained in the second Administrative Complaint and requested a formal hearing on those charges. On January 15, 1986, the second Administrative Complaint was forwarded to the Division of Administrative Hearings and assigned Case No. 86-0141. On February 17, 1986, the petitioner filed a Motion to Consolidate the two proceedings, and on February 27, 1986, the motion was granted.
Prior to the hearing, both parties filed pre-hearing statements. In its pre-hearing statement, petitioner stated that Count IV of the Administrative Complaint in Case No. 86-0141 would not be prosecuted and was being stricken from the Administrative Complaint.
At the hearing, petitioner presented the testimony of Dorothy E. McPeck, Sylvia Lassetter, Retha Tucker, Wayne Lloyd Giddens, Dr. David Sweeney, Dr. Wayne Bennett, Dr. Ted Robinson, Dr. Lewis Earle, Gene Blanchard, and James Blanchard. The respondent presented the testimony of Dr. Calvin S. Savage, Dr. Ronald Michael Marini, and Dr. John Parry. Petitioner's Exhibits numbered 1-27 were admitted into evidence, and respondent's exhibits 1-4, which included the depositions of Dr. Joseph Uricchio and Dr. Phillip Lightbody, were admitted into evidence.
A five-volume transcript of the hearing has been filed, and both parties have filed proposed findings of fact and conclusions of law. A ruling on each of the proposed findings of fact has been made in the Appendix to this order.
FINDINGS OF FACT
John R. Parry is and was at all times material to the complaint a licensed dentist in the State of Florida having been issued License No. 0005282. At all times material to the complaint, respondent's address was 255 Wymore Road, Winter Park, Florida, and 315 Wymore Road, Winter Park, Florida. Respondent's address has subsequently changed.
At all times material to the complaint, respondent - operated his practice of dentistry under the fictitious name of Florence Dental Clinic. Dr. Parry's practice was limited to the practice of prosthetics, the replacement of missing teeth. In other words, Dr. Parry confined his practice to the provision of partial and full dentures and related services.
Wayne Giddens worked for Florence Dental Clinic for about five years, from 1980 through 1985. Wayne Giddens was not licensed to engage in the professions of dentistry or dental hygiene in the State of Florida, and he had not been issued a certificate of expanded duties by the Board of Dentistry. Retha Holt, now Retha Tucker, also worked at Florence Denture Clinic. She was neither a licensed dentist nor a dental hygienist, and she had not been issued a certificate for expanded duties by the Board of Dentistry.
LASSETTER CASE
On January 15, 1982, Sylvia Lassetter went to the Florence Denture Clinic (FDC) to have all of her remaining upper teeth removed and a full upper denture made. Ms. Lassetter had only six remaining upper teeth. Ms. Lassetter had not seen a dentist for at least five years prior to seeing respondent. At that time, she was advised that she had gum disease and would eventually lose all of her teeth. When she went to FDC, she was having problems with the teeth on the right side of her mouth and, since she had been told that she would eventually lose all of her teeth, Ms. Lassetter decided to have all of the remaining upper teeth extracted and a full upper denture made. Ms. Lassetter went to FDC because she heard that FDC would provide her with a denture she could wear immediately.
Respondent was the dentist of record and performed dental services for Ms. Lassetter. On the day Ms. Lassetter went
to FDC, general medical information was obtained and x-rays were taken. Later that same day, respondent extracted all of the remaining top teeth, which were teeth number 5, 6, 7, 8, 9, and
Dr. Parry also provided her with a full immediate maxillary (upper) denture.
The upper denture initially had a full complement of teeth. However, when the denture was first placed into Ms. Lassetter's mouth, it was discovered that there was insufficient room for the posterior denture teeth. Ms. Lassetter had natural teeth on both sides of her lower jaw that were extremely extruded, causing premature contact with the denture teeth. With the denture in place, Ms. Lassetter could not close her mouth, she could not swallow, and she could not talk. In an attempt to alleviate the problem, the posterior teeth on the maxillary denture were ground off, leaving ten teeth on the maxillary denture.
Ms. Lassetter was able to keep the denture in her mouth until about 10:00 that evening. At that point, her gums were swollen and she was in such pain that she could not tolerate wearing the denture any longer. The next day the problem had gotten worse. Ms. Lassetter noticed drainage coming from a hole located at the top left front area of her gum where teeth had been pulled. She also observed what appeared to be a portion of bone which was protruding through the gum adjacent to the hole. She called the emergency number which had been provided to her by FDC, since Dr. Parry was going out of town, and talked to Dr. Marini. Although Dr. Marini asked her to come to his office, Ms. Lassetter was unable to do so, and Dr. Marini prescribed some medication.
As soon as possible, Ms. Lassetter returned to FDC. Respondent flushed out the area where the drainage was occurring and replaced the denture. Although Ms. Lassetter had been told to keep the denture in place, she was unable to do so. By the time she was halfway home she was "foaming at the mouth" because she could not swallow. She removed the dentures.
She returned to FDC and saw Dr. Parry again. She explained the problems she was having with the dentures. No adjustments to the dentures were made, and the only treatment she received was to have the area where the drainage was occurring flushed out.
Although Ms. Lassetter continued to experience difficulty with the denture and with the extraction area in the front of her mouth, returning to FDC on several occasions to have the problems corrected, the only treatment she received was flushing out the socket. She was also advised to wear the
denture; however, apparently no adjustments to the denture were made, and Ms. Lassetter continued to be unable to wear it.
Finally, Ms. Lassetter called the clinic and explained to the woman who answered the phone that she wanted the protruding bone removed and that if Dr. Parry could not do it ski' would find someone who could. However, when Ms. Lassetter went to the clinic for her appointment, Dr. Parry told her that the bone had to stay in her mouth and that she would not be able to wear the denture if the bone were removed. Ms. Lassetter did not return again to FDC for treatment. Her last appointment was apparently on February 10, 1982.
On February 24, 1982, Dr. Lewis Earle, a dentist, examined Ms. Lassetter. He took a single periapical x-ray and a single panoramic scan. During the course of his examination he observed a lesion or fibroma in the area of teeth numbers 24 and 25; he noted a large defect in the maxillary left central and lateral incisor region where a "dry socket" osteitis had developed; he noted what appeared to be an exposed necrotic, alveolar bone; and he observed that there was severe periodontal disease in the remaining mandibular teeth, with a hopeless prognosis on the second and third molars. Dr. Earle also noted maxillary exostoses, or tori, in the palatal aspect of the endentulous second and third molar regions, with corresponding prominent undercuts. There was also alveolar prominence in the left canine area. Dr. Earle observed that Ms. Lassetter's mandibular second and third molars had erupted above the normal plane of occlusion, which occurred due to the lack of opposing occlusion and the mobility of the molars resulting from the periodontal disease. When the mandible was closed, approximating normal verticle dimension, the molars appeared to actually touch the soft tissue of the maxillary tuberosity (2nd and 3rd molar) area, indicating a lack of space for a maxillary denture base.
Dr. Earle also examined Ms. Lassetter with the maxillary denture in place. He noted that there was extremely poor contact when the mandible was closed in centric relation. On the left side, there was some contact between the mandibular teeth and the denture base in the molar area, and the natural lower canine tooth touched the upper denture tooth in the first bicuspid area. Everything on the right side was totally out of occlusion. In the anterior teeth, the "open bite" was 6 to 8 millimeters. Ms. Lassetter was able to slide out of centric relation, to the right and forward, to get slightly better contact, but it was still very poor and was imbalanced.
Dr. Earle referred Ms. Lassetter to Dr. Robinson, an oral and maxillofacial surgeon, for an evaluation and a treatment
plan. Dr. Robinson saw Ms. Lassetter on March 2, 1982. He examined her and reviewed the x-rays received from Dr. Earle.
The panoramic x-ray revealed severe periodontial disease. The six mandibular molars, as well as the other remaining teeth, had less than half of their roots supported by bone. The periapical x-ray of the maxillary left anterior alveolar process revealed ragged and irregular alveolar bone and one fragment which could have been a segment of bone working loose or a part of a tooth root.
Dr. Robinson's examination confirmed the existence of periodontal disease. Dr. Robinson also observed bilateral palatal exostoses, a posterior buccal undercut in the right maxilla and a mild prominence in the maxillary right bicuspid region. He saw the exposed bone or tooth fragment, and noted that the maxillary left cuspid area was prominent and irregular with surface inflammation and tenderness. He also saw a lesion in the endentulous area of the mandibular central incisors.
Dr. Robinson recommended excising the bilateral exostoses, flapping and reducing the undercuts in the posterior right maxilla and maxillary right bicuspid region, removing the necrotic segment of bone with appropriate alveoloplasty in the left central incisor and cuspid region, removing the mandibular lesion and submitting it for biopsy, and extracting the mandibular first through third molars on the right and left side.
On March 5, 1982, Dr. Robinson performed the recommended procedures. After removing the exposed calcified substance from the upper left central incisor area, Dr. Robinson thought it was probably tooth root rather than bone. The size of the fragment was about 2 mm. by 3 mm. by 10 mm. The mandibular lesion removed by Dr. Robinson was benign.
Dr. Wayne Bennett saw Ms. Lassetter on June 4, 1982. He examined her dentures, her dental records, Dr. Earle's report, and her x-rays. He noted that the buccal flanges on the denture
were over-extended. He felt that there was reasonable adaptation of the denture to the maxillary ridge except in the areas where surgery had been performed. He was unable to reach any conclusions, based on his own observations, concerning the way the denture originally fit; including the occlusion when in centric relation, due to the extensive surgery that had been performed by Dr. Robinson prior to Dr. Bennett's examination.
SPECIFIC CHARGES--LASSETTER:
WHETHER RESPONDENT FAILED TO RECOGNIZE, TREAT, OR ADVISE MS. LASSETTER OF EXISTING PERIODONTAL DISEASE.
Ms. Lassetter did not go to FDC to get periodontal treatment. When she went to FDC she knew she had periodontal problems and had been told that she would eventually loose all her teeth. She went to FDC simply to have all of her remaining upper teeth extracted and an upper denture made. However, there was no evidence that respondent was aware that Ms. Lassetter knew she had periodontal disease. No one at FDC told Ms. Lassetter that she had periodontal disease or whether the disease was treatable. Further, there is nothing in Ms. Lassetter's records to indicate that Ms. Lassetter's severe periodontal disease was recognized.
WHETHER RESPONDENT FAILED TO RECOGNIZE OR TREAT A PATHOLOGICAL LESION ON MS. LASSETTER'S MANDIBULAR ANTERIOR ALVEOLAR RIDGE.
There was no evidence presented to establish that the pathological lesion which was observed by Dr. Earle and removed by Dr. Robinson was present when the respondent treated Ms. Lassetter. Although a lesion, or fibroma, such as the one Ms. Lassetter had, is-usually slow developing because it is typically caused by some sort of chronic irritation, it is impossible to say with any certainty that the lesion was present when Dr. Parry treated Ms. Lassetter.
WHETHER RESPONDENT FAILED TO RECOGNIZE THE LACK OF SPACE IN THE MAXILLARY TURBEROSITY AREAS FOR A DENTURE BASE, AND WHETHER PRELIMINARY SURGICAL
PREPARATION OF MS. LASSETTER'S MOUTH WAS NECESSARY.
There was no question that Dr. Parry did not recognize the insufficient space in the maxillary tuberosity areas for an upper denture with a full complement of teeth. The mandibular second and third molars were extremely extruded, rising above the occlusal plane. Due to the height of the second and third molars, there was simply no room for opposing teeth to be placed on the upper denture. Nevertheless, there was nothing in Dr. Parry's record to reflect that he recognized this lack of space and, prior to preparing the upper denture, he did not advise Ms. Lassetter of the lack of space for denture teeth. Indeed, the denture originally had a full complement of teeth. It was only after the denture was placed in Ms. Lassetter's mouth that Dr. Parry realized there was insufficient space for the denture teeth, and the molars on the denture were ground off.
Although there was clearly no room for opposing denture teeth in the molar area, both Drs. Marini and Savage testified that, based on Dr. Parry's x-ray, there was sufficient room for a denture base. Dr. Earle also testified that Dr. Parry's x-ray revealed a slight space between the upper gum tissue and the lower teeth. Thus, there may have been room for a thin denture base with no denture teeth. However, a denture should have a full complement of teeth. Under normal circumstances, there should be teeth posterior to the bicuspids. Sufficient room for the complete upper denture could have been made either by performing an alveolectomy, or bone reduction, in the maxillary molar area or by removing the extruded mandibular teeth. In this case, the latter solution was clearly the best solution. The extruded molars could not have been salvaged anyway, due to the severe periodontal disease, and it was preferable to have as much maxillary bone as possible to support the denture. Dr. Parry should have recognized that the mandibular molars needed to be extracted to allow room for the upper denture.
Respondent asserts that Ms. Lassetter only wanted removal of her upper teeth and insertion of a full upper denture. He asserts that she did not want and could not afford additional surgical preparation of her mouth. However, the evidence does not support this assertion. Ms. Lassetter was never advised that there was a lack of space for upper denture teeth in the molar region. She was not advised to have her lower molar teeth extracted. Respondent asserts that Ms. Lassetter received the services she sought. To the contrary, Ms. Lassetter wanted an upper denture with a full complement of teeth. Ms. Lassetter was never advised that unless she had surgery, she would not have any molars on her upper denture. Finally, because Dr. Parry did not advise Ms. Lassetter of this problem, because Ms. Lassetter's dental records do not indicate that Dr. Parry was aware of the problem, and because the denture was originally made with molar teeth, it is apparent that Dr. Parry simply did not recognize the problem.
WHETHER RESPONDENT FAILED TO RECOGNIZE SEVERE UNDERCUTS IN THE MAXILLARY ANATOMY THAT REQUIRED SURGICAL PREPARATION TO PERMIT PROPER DENTURE RETENTION.
An exostosis is an abnormal bony growth or protuberance. There is a natural undercut over an exostosis. If the exostosis is not removed, the denture will not fit properly and there will be a loss of retention. However, it is possible to build around an exostosis. When the denture is constructed, the undercut can be blocked out. However, this results in having an area of no contact between the tissue and the denture base.
If there is only one exostosis, the denture base can be
constructed to conform to the undercut. In that situation, the denture is put in sideways until the undercut is engaged and then the denture is snapped into position. However, in this case, Ms. Lassetter had large palatal exostoses on the right and left side, she had a posterior buccal undercut in the right maxilla, and an undercut in the maxillary right bicuspid region. Ms. Lassetter could not have a comfortable, well-adapted denture without the exostoses being removed. It was poor judgment and inadvisable to build over the exostoses. Further, Ms. Lassetter was not advised of the need for surgery, and her dental records do not indicate that Dr. Parry was aware of the problem.
WHETHER RESPONDENT FRACTURED THE LABIAL ALVEOLAR BONE DURING EXTRACTION, CAUSING THE LOSS OF A LARGE SEGMENT OF BONE; WHETHER RESPONDENT PROPERLY CLOSED THE EXTRACTION SITES AFTER SURGERY AND THE ALVEOLAR FRACTURE; AND WHETHER RESPONDENT PROPERLY TREATED THE EXPOSED ALVEOLAR BONE.
It is not uncommon, and certainly not incompetent, to cause a bone fracture during the extraction of teeth. A tooth root can also break during the extraction of teeth. In some cases, it is not necessary to remove the broken root tip. However, because there is a liklihood of subsequent infection if a large root segment is not removed, a root fragment that is more than 2 or 3 millimeters long should be removed unless the risk of removing it exceeds the benefit of removal. In some cases, roots that have had root canal treatment done on them are intentionally left in place to help maintain the height of the alveolar bone. However, in this case, it was totally inappropriate to leave the exposed bone or root fragment in place. There was inflammation around it, indicating that the area had become infected. The bone fragment or root tip was exposed at the time Dr. Parry was treating Ms. Lassetter. Indeed, Ms. Lassetter asked that it be removed. It was clearly below minimum standards for Dr. Parry to leave the fragment in place, whether it was a segment of bone or tooth root.
Although it is not always necessary to suture an extraction site, when there are multiple extractions the preferred procedure is to suture the extraction sites. However, if a denture is to be worn immediately after extractions, it is not below minimum standards to fail to suture the extraction sites.
WHETHER RESPONDENT FAILED TO INSTITUTE PROPER ANTIBIOTIC THERAPY OR OTHER TREATMENT AFTER MS. LASSETTER DEVELOPED AN OSTEITIS.
A localized osteitis, or dry socket, is an infection of the bone. After an extraction, a blood clot normally plugs the socket and protects the alveolar bone. If the clot breaks down, or deteriorates, exposing the bone to the oral cavity, bacteria invades the bone causing infection. This infection, or osteitis, is very painful and must be treated to relieve the patient's pain.
At the time Dr. Earle saw Ms. Lassetter, she did not have acute osteitis. However, her condition was consistent with a partially healed dry socket, and her symptoms immediately after the extractions were consistent with osteitis. The evidence indicates that Ms. Lassetter developed an osteitis subsequent to the extractions by Dr. Parry. However, respondent treated the condition by flushing the socket. Medication, apparently an antibiotic, was prescribed by Dr. Marini and noted on Ms. Lassetter's dental records. Although Dr. Parry's treatment of Ms. Lassetter's condition may not have been the best, there was no evidence that the treatment provided was below minimum standards.
WHETHER THE DENTURE PROVIDED BY DR. PARRY WAS EXTREMELY ILL-FITTING, WAS GROSSLY OVEREXTENDED IN THE BUCCAL FLANGE AREA, LACKED A SEAL IN THE POST-DAM AREA, HAD NO REASONABLE ADAPTATION TO THE MAXILLARY RIDGE, AND HAD NO TEETH POSTERIOR TO THE SECOND BICUSPIDS.
When Dr. Earle examined Ms. Lassetter, the denture had very poor retention; it did not have any natural adhesion. However, Dr. Earle saw Ms. Lassetter two weeks after her last appointment with Dr. Parry, and approximately a month after her teeth had been extracted. Ms. Lassetter had not worn her upper denture during this time. After extractions, there is a substantial amount of bone resorption and tissue change in the area of the extractions. The denture acts as a mold or splint for the tissue. If the denture is not worn, there is nothing for the tissue to conform to and, even after a few days, the denture will not fit properly. The teeth that were extracted by Dr. Parry were in the front of Ms. Lassetter's mouth, and there was insufficient evidence to determine whether the denture ever fit in that area. However, the posterior and palatal areas would not have changed very much at the time Dr. Earle saw Ms. Lassetter, and the denture fit very poorly in the area of the palatal exostoses at that time. In essence, the poor fit of the denture
was simply a corollary of the denture being improperly built over the exostoses.
The denture did not appear to have a post-dam seal. The post-dam area is where the soft and hard palate meet. A post-dam seal is a raised area on the denture which creates a seal, keeping the denture from dislodging when the soft palate moves. Some seals, such as a "butterfly" seal, are not as noticable as other types of post-dam seals. However, Ms. Lassetter's denture did not appear to have any type of post-dam seal. Although it is not always necessary to have a post-dam seal, it does enhance the suction which keeps the denture in place. Since a post-dam seal aids in retention, a post-dam seal would be especially helpful where large undercuts are blocked out, as in this case, and the retention is poor.
The buccal flanges, the areas of the denture on the side of the gums next to the check, were overextended. The side of the denture, or buccal flange, should not extend so far up that movement of the muscles or soft tissue cause the denture to dislodge. Although the buccal flange will often be overextended when the denture is received from the lab, it should be trimmed back before the patient leaves the office with the denture in place. Although there will be some tissue changes with time, there will not be major changes that would affect a well-adjusted flange. In this case, the height of the buccal flanges in the posterior areas would not have changed with time.
There was insufficient evidence to establish that the denture had no reasonable adaptation to the maxillary ridge. As stated previously, Ms. Lassetter was unable to wear the denture. When a denture is not worn after extractions, it would be expected that the denture would not have a reasonable adaptation to the ridge after even a short period of time. Further, Dr. Bennett's testimony, which is accepted, indicated that the adaptation to the ridge was fair, though not exact, except in the areas where there had been corrective surgery.
As stated previously, the denture did not have any teeth posterior to the second bicuspids.
WHETHER, WHEN THE MANDIBLE WAS CLOSED IN CENTRIC RELATION, NONE OF THE DENTURE TEETH OCCLUDED WITH THE MANDIBULAR TEETH LEADING TO A SEVERE "OPEN BITE" RELATIONSHIP.
"Centric relation" refers to an arch-to-arch or to jaw- to-jaw relationship. It is the relationship of the mandible the maxilla when both condyles are in their terminal hinge axis location irrespective of tooth contacts. "Centric occlusion"
refers to the maximum occlusal contact irrespective of condylar position. Centric relation is very important to the comfort of the teeth, joints and muscles of the jaw. If centric occlusion is not in harmony with centric relation, the condyles must be pulled out of their terminal hinge position in order to make the teeth fit. The end result of the disharmony between centric relation and centric occlusion is stress on the teeth, joints and muscles. Therefore, it is very important for centric occlusion to be in harmony with centric relation.
When Dr. Earle saw Ms. Lassetter he manipulated the mandible into the centric relation position. In centric relation there was exceedingly poor contact between the denture teeth and the mandibular teeth. Indeed, the only tooth-to-tooth contact was on the left side where the lower canine tooth touched the upper denture tooth in the first bicuspid area. There was also contact between the left lower molars, which were subsequently removed, and the denture base. The right side was totally out of occlusion, and the "open bite" in the anterior teeth was six to eight millimeters. When the mandible deviated from the first tooth contact to the maximum occlusal contact, a process commonly called a "slide in centric" which is really a slide out of centric relation the occlusal contact was still quite poor.
In his proposed findings of fact respondent suggests that Dr. Earle's testimony regarding the occlusion in centric relation should be rejected because it conflicted with his written report, which stated that none of the denture teeth occluded with the mandibular teeth, and because there appeared to be differences in the position of the mandible in the slides taken by Dr. Earle which were admitted into evidence. Respondent points out that the slides were taken with check retractors in place, which could affect the position of the denture, and that one cannot make a determination of the occlusion in centric relation from merely looking at the slides. Nevertheless, Dr. Earle's testimony is accepted. Although there may have been slight shifts in position while the slides were taken, the slides were only meant to illustrate what Dr. Earle observed. Dr. Earle did not have to take check bites because he was not treating Ms. Lassetter and was not going to modify the denture. Occlusal discrepancies can be observed when the patient closes in centric relation and the initial tooth-to-tooth contact is made.
WHETHER RESPONDENT WAS GUILTY OF INCOMPETENCE BY FAILING TO MEET THE MINIMUM STANDARDS OF PERFORMANCE IN DIAGNOSIS AND TREATMENT.
For the reasons stated in the above paragraphs it is apparent that respondent's diagnosis and treatment of Ms. Lassetter was below minimal accepted standards. Although
petitioner was unable to prove all of the specific allegations set forth in the Administrative Complaint, the evidence presented clearly established respondent's incompetency.
THE JEAN BLANCHARD CASE
On August 14, 1984, Jean Blanchard went to FDC to get her upper denture relined or, if that could not be done, to get a new upper denture and lower partial.
Dr. Parry examined Ms. Blanchard and then an impression was taken. Although Ms. Blanchard testified that a girl named "Ria," apparently Retha Holt Tucker, placed the tray in her mouth, Mrs. Tucker testified that she never took an impression while at FDC, although she stated that she did place empty trays in patients' mouths to determine the size of the tray to be used. Mrs. Tucker also explained that she would hold the tray in place while the impression set.
Mrs. Blanchard testified that the first attempt at taking an impression failed. When the tray was inserted in Mrs. Blanchard's mouth, the material in the tray came out and started going down her throat. She began to choke and had to jerk Mrs. Tucker's hand away. Mrs. Tucker was holding the tray in place. The impression was no good and another impression had to be taken. Mrs. Blanchard remembered Dr. Parry taking the second impression. He stayed in the room with her while it set.
Although Mrs. Tucker admitted that she took impressions for another dentist after leaving Dr. Parry, she testified decisively that she never took an impression while working at FDC. She stated that Dr. Parry told her that her job was only to hold the tray in place. She was not permitted to put the tray in the patient's mouth or take it out. Mrs. Tucker's testimony is accepted. It is, therefore, concluded that Dr. Parry placed the tray in Mrs. Blanchard's mouth on both occasion and that Mrs. Tucker merely held the tray in place. Holding the tray in place does not constitute the taking of an impression.
On October 22, 1984, Mrs. Blanchard executed an Authorization for Release of Medical Information for Merry Paige of the Department of Professional Regulation (Department). On January 23, 1985 and on February 2, 1985, Investigator Paige presented respondent with Mrs. Blanchard's authorization in an attempt to obtain Mrs. Blanchard's patient records. Respondent failed to release Mrs. Blanchard's patient records. The records were ultimately provided to the Department by respondent's counsel in October of 1985.
JAMES BLANCHARD CASE
James Blanchard went to FDC on August 14, 1984, along with his wife. Mr. Blanchard was having trouble with his teeth and wanted a full set of dentures. He filled out and signed forms provided by FDC. One of the forms contained certain statements regarding the type of work the patient wanted. Mr. Blanchard placed his initials by some of the statements, including the statement, "I do not wish periodontal (gum) treatment to save my teeth." Mr. Blanchard was aware that he had periodontal disease.
Mr. Blanchard told Dr. Parry that he wanted a full set of upper and lower dentures. However, Dr. Parry advised Mr. Blanchard that three teeth on each side of the mandible could be saved. Dr. Parry also told Mr. Blanchard that he had periodontal disease, although he did not tell Mr. Blanchard whether the periodontal disease was treatable. Upper and lower impressions were made. Although Mr. Blanchard believed that the impressions were taken by a lady by the name of "Ria," apparently Retha Tucker, Mrs. Tucker merely held the tray in place while the impressions were setting. Retha Tucker did not actually take the impressions.
Dr. Parry referred Mr. Blanchard to Dr. Philip Lightbody, an oral and maxillofacial surgeon, for the extractions. On the same day, August 14, 1984, Dr. Lightbody removed eighteen teeth, ten from the upper jaw and eight from the lower jaw. Dr. Parry determined the number of extractions to be made since he was the referring dentist; Dr. Lightbody did not make any decisions regarding the teeth to be extracted. However, as part of the surgery, he also performed a bilateral lingual tuberosity reduction to facilitate the denture fit. Lingual tuberosity refers to a projection of bone on the inside or tongue side of the lower jaw.
Mr. Blanchard returned to FDC after the extractions and received his dentures, a full upper and a lower partial, the same day. No one at FDC specifically informed Mr. Blanchard that his dentures were treatment or temporary dentures, and he assumed that the dentures were permanent. However, on the forms Mr. Blanchard completed he initialed the following statement:
"I realize that this is just a temporary denture or partial and it may need to be relined or remade due to bone changes during the process of healing, and this will be done at my expense."
Mr. Blanchard returned to FDC the following day to have the dentures adjusted because the full upper denture was gagging him and the lower partial denture made his tongue sore and was cutting into his jaws on the inside. Dr. Parry made an adjustment to the upper denture which consisted of grinding down the back of the denture.
Mr. Blanchard returned one more time to FDC. His upper dentures were still gagging him. This time, he saw Wayne Giddens who removed the denture and took it out of the room, apparently to have adjustments made. Mr. Blanchard did not know what was done to the denture. Whatever adjustment was made did not help the problem; however, Mr. Blanchard never returned to FDC. He lived 90 miles away and felt that another visit would not solve anything since neither of his earlier visits had helped.
On September 5, 1984, Mr. Blanchard saw Dr. David Sweeney, a general dentist located in Brandon. He complained that he could not wear the dentures he had because of discomfort and difficulty in chewing. Because of Mr. Blanchard's complaints, Dr. Sweeney suggested a new upper full denture and a new lower partial. He also advised Mr. Blanchard that he had periodontal disease and that if he wanted to save his six remaining teeth he would need to undergo some periodontal therapy.
At the time of the initial visit Dr. Sweeney did a soft reline of the upper denture and lower partial. Dr. Sweeney did a permanent reline of the upper on October 10, 1984. Dr. Sweeney subsequently provided Mr. Blanchard with a new lower partial and, as soon as he could afford it, Mr. Blanchard had another upper denture made.
On December 3, 1984, Mr. Blanchard executed an Authorization for Release of Medical Information for Investigator Merry Paige of the Department. On January 23, 1985 and on February 2, 1985, Investigator Paige presented the authorization to respondent to obtain Mr. Blanchard's patient records. On both occasions respondent failed to release the records. On October 28, 1985, Respondent through his counsel, mailed the Department a copy of Mr. Blanchard's patient records.
Dr. Lewis Earle examined Mr. Blanchard on February 21, 1985, approximately six months after Mr. Blanchard had received his dentures from Dr. Parry and after the upper denture had been relined twice and the lower partial relined once. At the time of Dr. Earle's examination, Mr. Blanchard had been wearing the new lower partial constructed by Dr. Sweeney.
Dr. Earle examined Mr. Blanchard with Dr. Parry's dentures in place. The dentures did not properly occlude when the mandible was closed in centric relation. There was no contact on the posterior teeth' and there was an open bite in several regions which caused instability in the maxillary denture when biting pressure was applied.
WHETHER THE DENTURES PROVIDED BY DR. PARRY DID NOT PROPERLY OCCLUDE; DISPLAYED AN OPEN BITE IN SEVERAL REGIONS, CAUSING INSTABILITY OF THE UPPER FULL DENTURE WHEN PRESSURE WAS APPLIED AND A LOSS OF RETENTION, AND WERE DEFECTIVE IN DESIGN, FIT AND FUNCTION IN THAT THEY LACKED THE PROPER CENTRIC RELATION NECESSARY TO A BALANCED OCCLUSAL FUNCTION.
Dr. Earle examined Mr. Blanchard six months after Dr. Parry provided the dentures for Mr. Blanchard. Dr. Earle observed that the dentures did not occlude properly when the mandible was closed in centric relation. Because there was not balanced occlusion, when pressure was applied the upper denture dislodged.
Dr. Sweeney saw Mr. Blanchard a few weeks after he had obtained the dentures from Dr. Parry. Dr. Sweeney testified that there was no open bite areas and that the occlusion was fair. He testified that the dentures were adequate as treatment or temporary dentures.
Based on Dr. Sweeney's testimony, which was credible and is accepted, it is concluded that the dentures provided by Dr. Parry were not below minimum acceptable standards relating to occlusal function and design.
WHETHER THE LOWER PARTIAL DENTURE LACKED NECESSARY OCCLUSAL RESTS AND RETENTIVE CLASPS AND WAS INSERTED UPON PERIODONTALLY INVOLVED TISSUE.
Respondent's lower partial was an acrylic tissue- bearing partial. This type of partial is approved by the American Dental Association. This type of partial would also be the treatment of choice for periodontally involved tissue, as it is less likely to cause an extraction of the adjacent remaining natural teeth. A clasp placed on a periodontally involved tooth will destroy it. The clasp will act as a pair of forceps as it works, eventually pulling out the periodontally involved tooth. Therefore, although the denture provided to Mr. Blanchard did not have rests and retentive clasps, it was not below minimum acceptable standards. Although the denture was placed on periodontally involved tissue, it is acceptable to provide a
functional immediate or treatment partial to a patient without first providing periodontal treatment when the patient has refused such treatment. Under the circumstances of this case, placing the acrylic tissue-being partial upon periodontally involved tissue was not below minimum standards.
Based on the foregoing specific findings, it is apparent that respondent's treatment of Mr. Blanchard was not below the minimal acceptable standards when measured against prevailing peer performance.
THE McPECK CASE
On February 13, 1985, Ms. Dorothy McPeck went to FDC to have two full maxillary dentures and a partial mandibular denture made. She wanted one upper denture for a spare in case anything happened to the other one.
Prior to going to FDC, Ms. McPeck had been wearing a full upper denture and a partial lower denture for over thirty years. The teeth on both dentures were worn down--she had not had her upper denture replaced since around 1971 and had been wearing the same lower partial for over thirty years.
When she went to FDC, Ms. McPeck completed no paper work and no x-rays were taken. Respondent failed to obtain her medical history, failed to chart her then-present dental condition, failed to take any diagnostic information and failed to prepare a treatment plan for her.
The impressions for Ms. McPeck's dentures were taken, and she returned that afternoon to get her dentures. Wayne Giddens, one of Dr. Parry's assistants, brought the dentures into the room. Ms. McPeck thought they were very nice looking but too white.
Ms. McPeck wore the dentures all afternoon. However, that evening she was unable to eat dinner because the dentures hurt when she tried to eat. She tried the other upper denture, but that was no better, and she had to put in her old upper denture in order to eat.
When Ms. McPeck returned to FDC on February 15, 1985, she was seen by Wayne Giddens. Mr. Giddens-removed the denture and apparently some adjustment to the denture was made. However, when Ms. McPeck tried to eat that afternoon, the denture rocked and she couldn't eat with it in. The denture didn't hurt, but it didn't fit.
Ms. McPeck returned to FDC again and initially saw Mr. Giddens. He was unable to help Ms. McPeck and went to get Dr. Parry. Dr. Parry looked in her mouth, indicated that everything looked good, and left. He did not make any adjustments.
Ms. McPeck was not happy with the treatment she received at FDC, and not satisfied with her dentures. She never wore the dentures again, and finally, obtained a refund from FDC.
Respondent was the treating dentist and dentist of record during the treatment of Ms. McPeck at FDC.
Dr. Lewis Earle examined Ms. McPeck on May 8, 1985, along with the dentures fabricated by Dr. Parry. Dr. Earle examined both maxillary dentures. Pressure indicator paste revealed that there were large portions of the palatal area of the dentures that were not in contact with the tissue. Although the two maxillary dentures were not duplicates, both had large areas of no contact. Both uppers lacked proper retention and had poor adaptation. The lower partial had a clasp system, which gave it some retention, but the partial denture base had very poor adaptation to the lower ridge. There was only one small area on the buccal flanges that had any contact.
The two upper dentures were very similar as far as the bite. When the mandible was closed in centric relation there was an open bite of approximately three millimeters in the front.
Ms. McPeck was able to slide in centric to a position where the teeth occluded quite well. However, this shift forward was very unbalancing to the upper denture, and since it had little retention to start with, chewing in this position caused the denture to become dislodged.
The partial denture was partially tooth-borne and partially tissue-borne. It had poorly designed clasps. They were not custom made to fit the teeth to which they were clasped. A partial denture depends on close adaptation of wire or cast metal clasps to slight undercuts. The clasp should be designed so that it does not put a strain on the tooth. The partial denture had no occlusal rests on either of the abutment teeth to keep the partial from sinking into the soft tissue when biting down. It lacked reciprocal clasps or arms on the inside to provide adequate retention.
SPECIFIC CHARGES
WHETHER THE DENTURES, AS A SET, CONTAINED
A THREE MILLIMETER DISCREPANCY BETWEEN CENTRIC RELATION AND OCCLUSION.
With respondent's dentures in place, centric relation was not in harmony with centric occlusion. When the mandible was closed in centric, there was a three millimeter open bite. The mandible had to move out of centric relation for maximum occlusal contact, or centric occlusion, to be reached. Dr. Earle estimated that the mandible had to deviate approximately three millimeters from the centric relation position in order to achieve centric occlusion. Dr. Earle's testimony, that centric occlusion and centric relation were not in harmony, is accepted. The problems that Ms. McPeck was having with her dentures were consistent with centric occlusion and centric relation being out of harmony.
WHETHER THE COMPLETE MAXILLARY DENTURE AND DUPLICATE MAXILLARY DENTURE CONTAINED LARGE AREAS OF NO CONTACT; WHETHER THE DENTURES LACKED PROPER RETENTION.
There were large areas where the dentures fabricated by Dr. Parry were not in contact with tissue. Especially crucial were the areas on the upper dentures at the peripheral border or post-dam area. Due to the poor adaptation of the dentures to the tissues, the upper dentures also had poor retention, although one was better than the other. Dr. Earle tested the dentures for retention simply by putting pressure on one side and then the other.
WHETHER THE PARTIAL MANDIBULAR DENTURE LACKED PROPERLY ADAPTED, INDIVIDUALLY-CAST CLASPS FITTED TO A SURVEYED MODEL, LACKED LINGUAL RECIPROCAL CLASPS FITTED TO THE FACIAL RETENTION CLASPS, LACKED CAST METAL LINGUAL RESTS, AND CONTAINED LARGE AREAS OF NO TISSUE CONTACT.
The lower partial denture provided to Ms. McPeck was a tissue-borne acrylic partial denture wire clasps. It did not have individually-cast clasps, it lacked lingual reciprocal clasps, and it lacked cast metal lingual rests. Although it can be acceptable dental treatment to provide a partial without these rests and clasps, and to provide a tissue bearing partial, there was no evidence to explain why Ms. McPeck was not provided with a denture that had these rests and clasps. Dr. Marini, respondent's expert witness, testified that a partial mandibular denture that did not have individually-cast clasps, labial
reciprocal clasps, and cast metal labial rests was not necessarily below minimum standards. However, he indicated that such a denture should be provided only when the patient's economic situation required it. He stated, "when they are able to afford something better, you can make another type of partial." There was no evidence presented that the partial was constructed the way it was based on Ms. McPeck's economic condition. There was no evidence that Ms. McPeck could not, at the time the denture was made, "afford something better." This was also not the same situation as that of Mr. Blanchard, who required a tissue bearing partial due to his periodontal condition. Further, Mr. Blanchard's partial was intended to be a temporary denture. Ms. McPeck's denture was meant to be a permanent denture. Under these circumstances, it was below minimum standards to provide Ms. McPeck with a denture that lacked individually-cast clasps, lacked lingual reciprocal clasps, and lacked metal lingual rests.
WHETHER RESPONDENT FAILED TO MEET MINIMUM STANDARDS IN HIS TREATMENT OF MS. MCPECK.
Based on the foregoing findings, it is apparent that respondent did not-provide competent treatment to Ms. McPeck. The dentures provided to her had poor adaptation and retention. The dentures were not constructed so that centric relation would be in harmony with centric occlusion which caused Ms. McPeck to have problems when trying to eat. Further, the partial provided by Dr. Parry was not an adequate partial denture under the circumstances presented.
WHETHER RESPONDENT DELEGATED PROFESSIONAL RESPONSIBILITIES TO A PERSON NOT QUALIFIED BY TRAINING, EXPERIENCE OR LICENSURE TO PERFORM THEM.
Although Ms. McPeck testified that Wayne Giddens, respondent's dental assistant, took her impressions, worked on her dentures, and placed the dentures in her mouth on several occasions, I did not find that Ms. McPeck's testimony was credible insofar as it related to the procedures followed as FDC, including who took her impressions and adjusted her dentures. There were too many inconsistencies in her testimony and at times she seemed somewhat confused. Therefore, there was simply no competent substantial evidence to establish that respondent delegated professional responsibilities to a person not qualified to perform them.
WHETHER RESPONDENT FAILED TO SIGN A WRITTEN DENTAL WORK ORDER.
A dentist who does his own laboratory adjustments does not need to prepare a work order authorization. If the laboratory work is performed by an unlicensed person, a work order authorization must be used. In this case, a laboratory procedure authorization form was filled out indicating two upper dentures and a lower partial should be fabricated. The authorization indicated it was from Dr. Parry and for Ms. McPeck.
PREVIOUS DISCIPLINARY ACTION
On January 18, 1984, a final order was rendered in the Board of Dentistry and Department of Professional Regulation vs. John R. Parry, D.D.S., DPR Case Nos. 0012886 and 0017095, DOAH Case No. 83-1085. In that case, respondent was found guilty by the Board of Dentistry of violating Section 466.028(1)(g) and (y), Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.
Section 120.57(1), Florida Statutes. Section 466.028(2), Florida Statutes, authorizes the Board of Dentistry to revoke or suspend the license of a dentist, impose an administrative fine, place a licensee on probation, or reprimand or censure a licensee if the licensee is found guilty of committing any of the acts enumerated in Section 466.028(1).
In Case No. 85-3840, the Administrative Complaint charged the respondent with committing the act set forth in Section 466.028(1)(y), which is:
Being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience.
Petitioner has the burden to prove the charges alleged by clear and convincing evidence, Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987). The evidence presented in this case clearly and convincingly established that respondent's treatment of Ms.
Lassetter fell far below the minimum standards of treatment when measured against generally prevailing peer performance. For the reasons set forth in the findings of fact, it must be concluded that respondent is guilty of incompetence based on his treatment of Ms. Lassetter.
In Counts I, II and III of the Administrative Complaint filed November 20, 1985 (Case No. 86-0141), respondent was charged with violating Section 466.028(1)(aa), Florida Statutes, by 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. Petitioner failed to prove this charge in the Blanchard cases or in Ms. McPeck's case.
Therefore, this charge should be dismissed.
In the Blanchard cases, respondent was charged with violating Section 466.028(1)(o), Florida Statutes, by failing to make available to a patient or client, or to his legal representative, copies of documents in the possession or control of the licensee which relate to the patient or client. The parties stipulated that both Mr. and Mrs. Blanchard signed an Authorization For Release Of Medical Information form for one of petitioner's investigators. The investigator presented the authorization to respondent on two different occasions and respondent failed to produce the dental records requested.
Respondent argues that he did not violate Section 466.028(1)(o), Florida Statutes, because the evidence showed that he did make the records available. However, the records were not made available to the department until nine months after they were requested. Obviously, the records must be made available within a reasonable time. Nine months after the records are requested is not a reasonable time. Respondent also argues that respondent did not violate this section because the Department of Professional Regulation was not the "legal representative" of respondent's patients. However, the respondent was not requesting the records as the legal representative of Mr. and Mrs. Blanchard. In essence, Mr. and Mrs. Blanchard, the patients, were making a request for their own records through the department investigator. Section 455.241, Florida Statutes, requires that a dentist furnish copies of all records to the patient or his legal representative. Section 45.241(2), states that:
Such record shall not be furnished to any person other than the patient or his legal representative, except upon written authorization of the patient.
That subsection also provides that the Department of Professional Regulation may obtain patient records pursuant to a subpoena "without written authorization from the patient" under certain circumstances. From these provisions, it is quite clear that patient records are to be furnished to an investigator of the Department of Professional Regulation when the patient has executed written authorization for the release. Under such circumstances the investigator stands in the shoes of the patient. Therefore, respondent violated Section 466.028(o), Florida Statutes, as alleged in Counts I and II of the Administrative Complaint filed November 20, 1985.
Count II of that complaint also alleged that respondent was guilty of violating Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence in his treatment of James Blanchard. As set forth in the findings of fact, this charge was not proved by clear and convincing evidence, and it should be dismissed.
Count III of the complaint alleged that respondent violated Section 466.028(1)(y), Florida Statutes (1983), by being guilty of incompetence in his treatment of Ms. McPeck. As set forth in the findings of fact, this charge was proved by clear and convincing evidence. Respondent failed to meet the minimum standards of performance in his treatment of Ms. McPeck when measured against generally prevailing peer performance.
Respondent was also charged in Count III with violating Section 466.028(1)(n), Florida Statutes. That subsection authorizes disciplinary action if a dentist fails "to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, and test results." Respondent argues that his records are adequate to justify the course of treatment of Ms. McPeck, since Ms. McPeck only went to respondent to have her dentures replaced with new dentures. Nevertheless, respondent was the dentist of record for Ms. McPeck. Respondent's records did not include a patient history, the results of any examination, or any notations concerning the subsequent adjustments made to Ms. McPeck's dentures. The statute clearly indicates that patient histories and examination results should be included as part of the patient's dental records. Therefore, respondent is guilty of violating Section 466.28(1)(m), Florida Statutes, as alleged in Count III of the Administrative Complaint.
Count III of the Administrative Complaint also charged that respondent with violating Section 466.028(1)(i), Florida Statutes, by failing to perform a statutory or legal obligation placed upon a licensee. Specifically, the complaint alleged that
respondent failed to sign a written dental work order as required by Section 466.021, Florida Statutes. Section 466.021, reads as follows:
Every duly licensed dentist who uses the services of any unlicensed person for the purpose of constructing, altering, preparing, or duplicating any denture, partial denture, bridge splint, or orthodontic or prosthetic appliance shall be required to furnish such unlicensed person with a written work order in such form as shall be approved by the department . . . . This form shall be dated and signed by such dentist and shall include the patient's name or number with sufficient descriptive information to clearly identify the case for each separate and individual piece of work; said work order shall be made in duplicate form, the duplicate copy to be retained in a permanent file in the dentist's office for a period of two years. . . .
The laboratory procedure authorization form states that it is a form supplied by the Board of Dentistry in compliance with Section 466.021. Respondent did not sign the authorization work order.
Respondent argues that although respondent submitted an unsigned work order, petitioner failed to prove whether someone other than respondent actually fabricated the dentures delivered to Ms. McPeck. The statute does not require respondent to write a work order to himself if he is manufacturing the denture. For that very reason, it is apparent that respondent did not manufacture the denture. Respondent also argues that the lab which fabricated the dentures for Ms. McPeck was a lab in respondent's own office, and not an outside lab, and therefore a signed work order was not required. First, there was no evidence to establish where the dentures were actually fabricated.
Second, whether the dentures were fabricated in a lab in respondent's own office or whether they were fabricated in an outside lab is not relevant. There is nothing in Section 466.021 which suggests that a dentist does not have to sign a work order if the denture is being constructed by unlicensed personnel in his office. Respondent failed to sign the work order for Ms.
McPeck's dentures in violation of Section 466.021, and therefore, is guilty of violating Section 466.028(1) (i), Florida Statutes, as alleged in Count III of the Administrative Complaint.
Count IV of the Administrative Complaint filed November 20, 1985, was not pursued at the final hearing and
should be dismissed. Count V alleged that respondent violated Section 466.028(1) (g), Florida Statutes, by aiding, assisting, procuring, or advising an unlicensed person to practice dentistry. There was no competent, substantial evidence to support this charge and it should be dismissed.
Count VI of the Administrative Complaint alleges that respondent has violated Section 466.028(1) (bb), Florida Statutes, by repeatedly violating Chapter 466, Florida Statutes. The parties stipulated that respondent had been previously disciplined for violating Section 466.028(1)(y) and Section 66.028(1)(g), Florida Statutes. Since Section 466.028(1)(bb) permits discipline for the "repeated violation" of Chapter 466, and it is apparent that respondent has previously violated Chapter 466, respondent is subject to discipline pursuant to Section 466.028(1)(bb), Florida Statutes.
Based on the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the Board of Dentistry enter a final order finding the respondent guilty of the following acts:
Being guilty of incompetence in his treatment of Ms. Lassetter; as alleged in Case No. 85-3840;
Being guilty of incompetence in his treatment of Ms. McPeck, as alleged in Count III of Case No. 86-0141;
Failing to make Mrs. Blanchard's records available to her, through the Department's investigator, as alleged in Count I of Case No. 86-0141;
Failing to make Mr. Blanchard's records available to him, through the Department's investigator, as alleged in Count II of Case No. 86-0141;
Failing to keep-written dental records and medical history records justifying the course of treatment of Ms. McPeck, including a patient history and examination results;
Failing to perform the statutory or legal obligation imposed by Section 466.021, Florida Statutes, by failing to sign Ms. McPeck's work order; and
The repeated violation of Chapter 466.
It is further recommended that Counts IV and V of the Administrative Complaint filed in Case No. 86-0141 be dismissed; that the charges of violating Section 466.028(1)(aa), Florida Statutes, as set forth in Counts I, II and III of Case No. 86- 0141 be dismissed; and that the charge of violating Section 466.028(1)(y), Florida Statutes, set forth in Count II of Case No. 86-0141 be dismissed.
It is further recommended that the following penalties be imposed:
A total administrative fine of $3,400 to be assessed as follows:
Incompetence (Lassetter) $1,000 Incompetence (McPeck) $750
Failure to provide records $300 (Mrs. Blanchard)
Failure to provide records $300 (Mr. Blanchard)
Failure to keep proper Records $300 (McPeck)
Failure to sign work order $250 (McPeck)
Repeated violation of $500 Chapter 466
Suspension of respondent's license for a period of eighteen months, with the condition that respondent may have his license reinstated after a period of no less than six months upon satisfactory completion of a program of study or training approved by the Board.
DONE and ENTERED this 2nd day of December, 1987, in Tallahassee, Florida.
DIANE A. GRUBBS
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
The Oakland Building Tallahassee, FL 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987.
APPENDIX
Petitioner's Proposed Findings of Fact 1-3. Accepted.
Accepted generally.
Accepted.
Accepted, except last sentence.
7-8. Accepted generally though unnecessary as separate findings.
9. Accepted.
10-15. Accepted generally.
16. Unnecessary.
17-20. Accepted.
21. Unnecessary.
22-27. Accepted generally.
28. Unnecessary.
29-39. Accepted generally.
40. Unnecessary.
41-42. Accepted generally.
43-44. Rejected by contrary finding.
45-49. Accepted generally, except first sentence of paragraph
45 which is rejected by contrary finding.
Rejected as not clearly established by the evidence.
Accepted as to treatment of bone or tooth root. 52-53. Accepted generally.
Accepted.
Accepted as to area of exostoses. 56-62. Accepted generally.
Accepted, except as to beginning of first sentence.
Accepted in part, rejected in part.
Accepted.
First sentence rejected by contrary finding second sentence accepted.
Unnecessary.
68-70. Accepted.
Accepted generally.
Rejected by contrary finding.
Accepted.
Accepted to the degree stated in paragraph 47.
75-80. Accepted generally, except reject that Giddens made adjustments.
81. Irrelevant; the patient refused treatment.
82-86. Rejected by contrary findings, except paragraph 83 which is unnecessary finding as to Mr. Blanchard.
Accepted generally, except third sentence which is rejected by contrary finding.
Rejected by contrary finding. 89-91. Accepted.
First sentence rejected for lack of competent evidence;
remainder accepted generally.
Rejected as irrelevant.
Second part of sentence accepted, first part rejected as there was no evidence presented as to where denture fabricated.
Rejected, generally, for lack of competent evidence.
Accepted.
97-98. Accepted except as to Mr. Giddens role. 99-100. Accepted.
101-102. Accepted generally that centric occlusion was not in harmony with centric relation with the Parry dentures in place resulting in 3mm open bite.
103. First sentence rejected - it is not clear what it means. Second sentence accepted.
104-112. Accepted generally.
113-114. Unnecessary.
115-116. Accepted generally. Respondent's Proposed Findings of Fact
1-6. Accepted.
Reject statement that evidence did not support charge. Remainder generally accepted.
Accepted generally.
Accepted as to minimal space for denture base, remainder rejected generally by contrary findings in paragraphs 22-24.
Rejected generally by contrary findings.
Accepted generally.
First part generally rejected; last sentence accepted.
First five sentences accepted generally. Remainder rejected.
Rejected in general as stated in paragraph 26.
Rejected in part, accepted in part (see paragraph 30).
Rejected as stated in paragraphs 35-37.
Rejected generally (see paragraph 32).
Rejected generally. There was no evidence that the denture had a seal, butterfly or otherwise. Second sentence accepted.
Accepted generally. 20-25. Accepted generally.
26. Accepted as to facts stated, not legal conclusion. 27-28. Accepted generally.
Accepted as to facts stated, not legal conclusion.
Accepted.
Rejected by contrary findings in paragraph 73 and for same reasons argument as to Lassetter was rejected. Dr. Earle's testimony was accepted as to McPeck.
32-33. Rejected by contrary findings.
Rejected by contrary finding (see paragraph 75).
Accepted generally.
36-37. Rejected generally by contrary findings and conclusions of law.
COPIES FURNISHED:
Errol H. Powell, Esquire Senior Attorney
Department of Professional Regulation
130 N. Monroe Street Tallahassee, FL 32399-0750
Kenneth M. Meer, Esquire
180 South Knowles Avenue Winter Park, FL 32789
Tom Gallagher Secretary
Department of Professional Regulation
130 N. Monroe Street Tallahassee, FL 32399-0750
Pat Guilford Executive Director Board of Dentistry
130 N. Monroe Street Tallahassee, FL 32399-0750
| Issue Date | Proceedings |
|---|---|
| Dec. 02, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 18, 1988 | Agency Final Order | |
| Dec. 02, 1987 | Recommended Order | Respondent was fined and suspended. Respondent failed to keep written dental records justifying treatment and failed to make records available to patient. |
