STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3289

) NORMAN A. FENICHEL, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on December 8, 1987, at West Palm Beach, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: William P. Doney, Esquire

1615 Forum Place, Suite 200 West Palm Beach, Florida 33401

For Respondent: Norman A. Fenichel, D.D.S.

7544 Lake Worth Road

Lake Worth, Florida 33463 BACKGROUND AND PROCEDURAL MATTERS

This case began on June 11, 1987, when Petitioner filed its Administrative Complaint against Respondent and alleged Respondent to be in violation of Sections 466.028(1)(o) and 466.028(1)(y), Florida Statutes (1985). Petitioner claimed Respondent had failed to make available to a patient copies of documents relating to that patient's treatment and had provided diagnosis and treatment below minimum acceptable standards of performance when measured against generally prevailing peer standards. Respondent executed an Election of Rights on July 13, 1987, denied the allegations of fact, and requested a formal hearing.

The case was forwarded to the Division of Administrative Hearings for formal proceedings on August 4, 1987.

At the hearing, Petitioner presented the testimony of Sandy Friedel and Dr.

Robert Williams. Petitioner's exhibits 1 (deposition of James A. Makowski, D.D.S.), 2 (deposition of Richard S. Lubell, D.M.D.), and 3 (composite of x- rays) were admitted into evidence. Respondent testified in his own behalf. Respondent's exhibits 1 (account card), 2 (acquaintance form), and 3 (treatment record) were admitted.

The transcript was filed with the Division of Administrative Hearings on January 6, 1988. The parties were granted leave until January 18, 1988, to file their proposed findings of fact and conclusions of law.

After the hearing, Petitioner filed a proposal which has been carefully considered in the preparation of this Recommended Order and specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this cause is whether the Respondent is guilty of the violations alleged in the Administrative complaint dated June 11, 1987; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Petitioner, the Department of Professional Regulation, Board of Dentistry, is the appropriate state agency charged with regulating the practice of dentistry in Florida.

   
   

2. Respondent, Norman A. Fenichel, D.D.S., is, and has been at all times material to this case, licensed to practice dentistry in Florida (license number 008157).

   
   

3. From September, 1984 through December 11, 1984, Respondent treated a patient named Sandy Friedel. During the course of this treatment, Respondent attempted to perform root canal therapy and to place a permanent cast restoration (crown) on Friedel's maxillary right second molar.

   
   

4. The crown was cemented December 11, 1984, and Friedel immediately complained that the crown did not fit properly and that pain in the tooth continued. Friedel stopped payment on her check on December 12, 1984, after Respondent refused to correct or review the work. Friedel was concerned the work should be corrected before the bond was totally set. Friedel did not return to Respondent's office.

   
   

5. In July, 1985, Friedel's dental plan referred her to another participating dentist, Dr. James Makowski, who examined her, cleaned her teeth, and took x-rays. At the initial visit Friedel complained of pain in the area where the root canal had been performed. Dr. Makowski observed food trapped between the teeth but could not find that the root canal had been completed.

   Dr. Makowski recommended that the crown be removed, the decay be removed, a root canal be performed, and that a post with crown be reinstalled.

   
   

6. After the visit with Dr. Robert Makowski, Friedel requested her dental records from Respondent. Friedel wanted to obtain the x-rays taken before the root canal so that Dr. Makowski could compare them with his. Respondent refused to release the records since Friedel had stopped payment on her check. Eventually the Department obtained the x-rays and forwarded them to Dr. Williams.

   
   

7. At the Department's request, Dr. Williams interviewed Friedel and performed an examination of the dental work in question in January, 1986. After hearing the patient's history and symptoms and having examined her and the x-

   rays, Dr. Williams determined that the root canal treatment had failed and that the restoration was defective.

   
   

8. Dr. Williams discovered a fistula which led to the incomplete root canal treatment. Dr. Williams considered the root canal improper or incomplete because it did not extend to within a millimeter or so of the apex of the tooth. Additionally, Dr. Williams determined that the root canals had not been sufficiently widened to assure that the pulp tissue causing infection had been removed.

   
   

9. With regard to the crown, Dr. Williams found it to be defective since at the distal margin of the restoration there was an unacceptable gap. This open margin between the tooth and crown collected decay which Dr. Williams was able to scoop out.

   
   

10. Dr. Lubell subsequently retreated the root canal. From his examination and work he was able to determine that the root canal performed by Respondent did extend to within an acceptable distance of the apex of the tooth. However, Dr. Lubell found that the canals had not been sufficiently widened to provide proper treatment.

    
    

11. Dr. Lubell also noted that the crown did not fit the tooth in that it fell 4 or 5 millimeters short at the end of the tooth.

    
    

12. Friedel's crown which had been placed on December 11, 1984, at Respondent's office was not replaced until approximately May, 1986 when Dr. Lubell retreated the root canals.

    
    

13. Dr. Lubell is a licensed endodontist familiar with the standard of practice in the Lake Worth community.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

15. The correct standard for the revocation of a license, as in the case at issue, is that the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Ferris court agreed with the district court in Reid v. Florida Real Estate Commission, 188 So.2d 846, (Fla. 2d DCA 1955), that

    
    

    The power to revoke a license should be exercised with no less careful circumspection than the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.

    
    

    This elevated standard is necessary to protest the rights and interests of the accused where the proceedings implicate the loss of livelihood. Ferris at 295. This standard has been applied in the case at issue.

16. Section 466.028(1)(o), Florida Statutes provides:

    
    

    (o) Failing to make available to a patient or client, or to his legal representative or to the department if authorized in writing by the patient, copies of documents in the possession or under control of the

    licensee which relate to the patient or client.

    
    

17. The unrefuted evidence established Respondent refused to give Friedel her x-ray records or copies of them. Apparently, Respondent had mistakenly concluded that since she had stopped payment on the check, he was entitled to hold the records. The statute, however, does not provide an exception for nonpayment circumstances. To his credit, the Respondent released the records to the Department once the complaint had been made. Nevertheless, I find Respondent guilty of the violation alleged in Count II of the Administrative Complaint.

    
    

18. Section 466.028(1)(y), Florida Statutes (1985) provides that disciplinary action may be taken against a licensee for:

    
    

    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.

    
    

19. Respondent maintained that the improper crown which was reviewed by Makowski, Williams, and Lubell was not the restoration he placed December 11, 1984. Friedel stated that no other crown had replaced Respondent's. Friedel stated the crown was ill-fitting and uncomfortable from the beginning. To suggest that Friedel coincidentally had a second defective restoration placed is not feasible. Friedel's complaint would have been lodged against the mystery second dentist. Consequently, I find that the dental treatment provided by Respondent regarding the placement of the crown failed to meet the minimum standards of performance. Respondent is, therefore, guilty of the violation alleged in Count I of the Administrative Complaint.

    
    

20. With regard to the root canal treatment, I accept the testimony of Dr. Williams and Dr. Lubell and find the root canal performed by Respondent failed to meet the minimum standards of performance since Respondent did not widen the canals to a sufficient width to assure proper debriding of the pulp tissue. Again, Respondent is guilty of the violation alleged in Count I of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Dentistry enter a Final Order finding Respondent guilty of the violations alleged in the Administrative Complaint, imposing an Administrative fine of $1500, placing Respondent on probation for a period of two years and requiring Respondent to attend such continuing education courses as may be deemed appropriate by the Board.

DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3289

Rulings on Petitioner's proposed Findings of Fact:

1. Paragraphs 1-12 are accepted.

COPIES FURNISHED:

William P. Doney, Esquire 1615 Forum Place, Suite 200

West Palm Beach, Florida 33401

Norman A. Fenichel, D.D.S. 7544 Lake Worth Road

Lake Worth, Florida 33463

Pat Guilford, Executive Director Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 87-003289

Orders for Case No: 87-003289