STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2440

)

JOSEPH J. CARROLL, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the designated Hearing Officer by the Division of Administrative Hearings on April 19, 1989, in Fort Lauderdale, Florida. No transcript of the hearing has been filed, and the parties have waived the opportunity to file proposed findings of fact and conclusions of law.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

517 Southwest First Avenue Fort Lauderdale, Florida 33301

For Respondent: Salvatore A. Carpino, Esquire

One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

ISSUE PRESENTED

The issue is the appropriate penalty to be imposed upon Dr. Carroll for two admitted violations of the Dental Practice Act: (1) performing root canal treatment which was below acceptable standards, and (2) practicing beyond the scope of dentistry.

PROCEDURAL BACKGROUND

Dr. Carroll has reached an agreement with the Board of Dentistry to admit, or not contest, certain allegations of the Administrative Complaint filed against him. The parties presented evidence and argument at the final hearing concerning the appropriate penalty to be imposed.

FINDINGS OF FACT

Findings Concerning Liability

The following findings of fact are based upon the paragraphs or subparagraphs of the Administrative Complaint which Dr. Carroll admits:

Inadequate Root Canal Therapy

1. Dr. Carroll treated Sylvia Lankheim. He performed root canal therapy on Ms. Lankheim's lower left second bicuspid (tooth #20) and provided a post and crown for the tooth.

   
   

2. Dr. Carroll's endodontic treatment and post and crown restoration of tooth #20 were inadequate, and subsequently failed.

   
   

   Practicing Beyond the Scope of Dentistry

   
   

3. Dr. Carroll neither admits nor denies the following allegations found in the Administrative Complaint, but agrees that they make out a prima facie case for the charge of practicing beyond the scope of dentistry:

   
   

   1. On or about October 31, 1983, Dr. Carroll made a presentation at a local condominium association concerning the purported hazards of mercury poisoning resulting from amalgam restorations in teeth. His presentation included films, testimonies by two former patients, and paraphernalia used to test for mercury toxicity.

      
      

   2. As the result of this presentation, Ms. Sylvia Lankheim scheduled an appointment with him on about November 3, 1983.

      
      

   3. When Dr. Carroll saw Ms. Lankheim on November 3, he took full mouth x-rays and made an impression of her teeth for study models.

      
      

   4. On or about November 8, 1983, Dr. Carroll's dental assistant conducted a Mercury Patch Test on Ms. Lankheim to determine her sensitivity to mercury. The test involves placing a solution of mercury chloride on a band- aid, placing the band-aid on the forearm, removing the band-aid 24 hours later and interpreting the patient's dermatological response to the test.

      
      

   5. Use of a patch test to determine an allergic response or sensitivity to mercury is not within the scope of the practice of dentistry as defined in Section 466.003, Florida Statutes (1985). The patch test used by Dr. Carroll to determine an allergic response or sensitivity to mercury is not reliable and its use is unproven.

      
      

   6. Based upon these facts, Dr. Carroll has agreed he is guilty of the charge of practicing beyond the scope of dentistry, in violation of Section 466.028(1)(z), Florida Statutes (1985), as alleged in paragraph 13(d) of the Administrative Complaint.

      
      

      Findings Pertaining to Penalty

      
      

4. Penalty guidelines have been adopted by the Board of Dentistry in Rule 21G-13.005, Florida Administrative Code. The penalty for incompetence in the practice of dentistry is prescribed under Rule 21G-13.005(2)(bb) as follows:

   
   

   Being guilty of incompetence.

   The usual action of the Board shall be to impose a period of probation, restriction of practice, suspension and/or revocation.

5. The usual penalty for practicing beyond the scope of dentistry is stated in Rule 21G-13.005(2)(dd) as follows:

   
   

   Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.

   The usual action of the Board is to impose a period of probation, restriction of practice, and/or suspension.

   
   

6. The Board may deviate from these penalties in an individual case based upon the following aggravating or mitigating factors:

   
   

   1. The severity of the offense;

   2. The danger to the public;

   3. The number of repetitions of offenses or number of patients involved;

   4. The length of time since the violation;

   5. The number of times the licensee has been previously disciplined by the Board;

   6. The length of time the licensee has practiced;

   7. The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage;

   8. The deterrent effect of the penalty imposed;

   9. The effect of the penalty upon the licensee's livelihood;

   10. Any efforts of rehabilitation by the licensee;

   11. The actual knowledge of the licensee pertaining to the violation;

   12. Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation;

   13. Related violations against the

       licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

   14. Penalties imposed for related offenses...

   
   

   Rule 21G-13.005(4)(a)-(n), Florida Administrative Code.

   
   

7. Dr. Carroll relies on a number of recent cases decided by the Board of Dentistry to argue that the appropriate penalty in this case is a fine of no more than $1,000, and a requirement that he attend 20 to 25 hours of additional training in endodontics in addition to the continuing education required of dentists to maintain their licensure. He maintains that no probation is necessary, as rehabilitation or as punishment.

   
   

   1. In the case of Board of Dentistry v. Norman A. Fenichel, reported at 10 FALR 6745 (Board of Dentistry, 1988) the Board imposed an administrative

      fine of $1,500 and placed the dentist on probation for two years, with a requirement that he attend 36 hours of continuing education in crown and bridge work, 36 hours in endodontics and 12 hours in the laws and rules relating to the practice of dentistry or ethics. The penalty was based upon findings made after a formal hearing that the dentist had performed inadequate root canal therapy, and that after the patient had stopped payment on the check for that dental work due to pain and the improper seating of the crown. Fenichel had failed to forward her file to a subsequent treating dentist.

      
      

   2. Dr. Carroll also relies on other discipline cases of the Board of Dentistry to support the penalty he advocates, where there were stipulated dispositions in somewhat similar circumstances. The case of Board of Dentistry

      v. Daniel B. Baldridge, DPR Case 0066648 (Board of Dentistry 1987) involved a charge of a feeble attempt to perform endodontic therapy on tooth #3. The stipulated disposition was a fine of $1,000, a reprimand, and probation far one year during which Dr. Baldridge was required to complete 20 hours of continuing education in endodontics. No portion of the Baldridge stipulation included an agreement that Baldridge was guilty of any violation, which is a significant difference from the present case.

      
      

   3. In the case of Board of Dentistry v. Vance Bishop, Case 0068343 (Board of Dentistry 1988), Dr. Bishop neither admitted nor denied the allegations of an Administrative Complaint which charged that he had provided incomplete endodontic filling of a tooth on which he placed a crown and that two other crowns were poorly done. A fine of $1,500 was imposed, Dr. Bishop was reprimanded, placed on probation for a year and required to complete 15 hours of continuing education in endodontics and another 15 hours in the area of crown and bridge work, endodontics and another 15 hours in the area of crown and bridge work.

      
      

   4. In the case of Board of Dentistry v. David Murrin, Board of Dentistry Case 0066593 (Board of Dentistry 1988), Dr. Murrin entered into a stipulation without admitting any of the facts in the Administrative Complaint. According toe the complaint, Murrin had performed a root canal and installed a crown on a mandibular left first molar (tooth #19), but subsequent examination showed that the root canal procedure had never been concluded because there was only partial removal of pulp tissue from the tooth, and no filling material had been used. His records failed to show any therapy had been attempted. Murrin was charged with making untrue representations in the practice of dentistry in violation of 466.028(1)(l), Florida Statutes; malpractice, in violation of 466.028(1)(y), Florida Statutes; exploiting a patient for financial gain in violation of 466.028(1)(m), Florida Statutes; and fraud and deceit in the practice of dentistry, in violation of Section 466.028(1)(u), Florida Statutes. According to the stipulation he paid administrative costs of $1,000, and received a reprimand but no period of probation.

      
      

   5. In the case of Board of Dentistry v. Frederick Newton, Board of Dentistry Case 0070984 (Board of Dentistry 1988), Dr. Newton entered into a settlement stipulation in which he admitted the allegations of fact contained in the Administrative Complaint (with a small correction of those facts).

      According to the admitted facts, Dr. Newton provided root canal therapy on tooth #3 and amalgam restorations on teeth #3, 14, 19 and 30. The root canal therapy on tooth #3 was inadequately filled and sealed, Johnson did not record on the patient's chart the use of a rubber dam, did not record the canal length of tooth #3, chart the measurements for the endodontic files he used, or take a post-operative x-ray showing the completed root canal therapy. He was therefore charged with malpractice in violation of Section 466.028(1)(y), Florida

      Statutes, and failing to keep records justifying the course of treatment in violation of section 466.028(1)(m), Florida Statutes. The Board's final order imposed an administrative fine of $1,500, reprimanded him and placed him on probation for a period of twelve months, in which time he was required to complete 20 hours of endodontic continuing education and one course in recordkeeping.

      
      

      CONCLUSIONS OF LAW

      
      

8. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes

   
   

9. Based upon the admitted facts and the prior actions of the Board, the appropriate penalty in this case is a fine of $1,500. This fine is more consistent with the decisions in the Fenichel and Newton cases, where there was an admission on finding of guilt. In the other cases Dr. Carroll relies on, there was no admission of liability and the penalties, including the fines, could have resulted from pleas of convenience to avoid the litigation costs of those disciplinary matters. They may not reflect the appropriate fines for proven or admitted violations of the Dental Practice Act. It also is appropriate to place Dr. Carroll's licensure on probation for a period one year, during which he will be required to complete 25 hours of continuing education in endodontics. The admitted failure to properly perform the root canal therapy shows that education is required; probation is an appropriate tool to insure that he completes the required training. Dr. Carroll should be reprimanded, for it was inappropriate to attempt to use skin patch tests which he is not appropriately trained to interpret and which fall outside the practice of dentistry.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that a Final order be entered by the Board of Dentistry finding Dr. Carroll guilty of violation of Sections 466.028(1)(y), Florida Statutes (1985) and 466.028(1)(z), Florida Statutes (1985), that an administrative fine in the amount of $1,500 be imposed, that he be reprimanded, and that his license be placed on probation for a period of one year, during which he shall complete

25 hours of continuing education in endodontics in addition to any other education required to keep his licensure current.

DONE and ORDERED this 9th day of May, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1989.

COPIES FURNISHED:

Nancy M. Snurkowski, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Michael J. Cohen, Esquire

517 Southwest First Avenue Fort Lauderdale, Florida 33301

Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William Buckhalt, Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DOAH CASE NUMBER 86-2440

vs. LICENSE NUMBER DN0004266

JOSEPH J. CARROLL, D.D.S.,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(3), Florida Statutes, on April 23, 1988, in Orlando, Florida. The Board considered the proposed Stipulation entered into between the parties in this cause which is attached to this order. Petitioner was represented by Nancy M. Snurkowski, Esquire. Respondent was present and appeared in his own behalf.

The parties had been properly noticed of the hearing. Upon consideration, it is ORDERED AND ADJUDGED:

1. The proposed Stipulation is hereby rejected.

   
   

2. This order becomes effective upon being filed with the Board Clerk.

The parties are hereby notified that they may appeal this order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty days of the date his order is filed.

DONE AND ORDERED this 5th day of July, 1988.

Robert T. Ferris, D.D.S., Ph.D. Chairman

Board of Dentistry

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by Certified United States Mail this 13th day of July, 1988, to Joseph J. Carroll, D.D.S., 2330 Northeast 9th Street, Ft. Lauderdale, Florida 33304 and Karen Coolman Amlong, Esquire, 101 Northeast 3rd Avenue, Ft.

Lauderdale, Florida 33301; and hand delivered to Nancy M. Snurkowski, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399-0750.

William H. Buckhalt, C.P.M. Executive Director

Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750 (904)488-6015

Docket for Case No: 86-002440

Orders for Case No: 86-002440