STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3590
)
PHILIP B. OKUN, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 21 and 22, 1988, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Gregory A. Victor, Esquire
Carolyn B. Kellman, Esquire 3225 Aviation Avenue, Suite 400
Miami, Florida 33133
For Respondent: Salvatore A. Carpino, Esquire
4830 West Kennedy Boulevard One Urban Centre, Suite 750 Tampa, Florida 33609
BACKGROUND
By administrative complaint filed on June 6, 1986, petitioner, Department of Professional Regulation, Board of Dentistry, charged that respondent, Philip
B. Okun, a licensed dentist, had violated Subsection 466.028(1)(y), Florida Statutes (1985), by being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It is alleged that, while providing dental services to a patient between November 23, 1982, and January 20, 1983, respondent performed a root canal on tooth number 11 and (a) allowed the patient to leave the office with the tooth open to oral bacterial contamination, (b) permanently closed and overfilled the tooth without antibiotics in too short a time period, (c) failed to take appropriate steps after discovering he had overfilled the tooth, and (d) improperly placed an endodontic post in the tooth. On June 15, 1988, petitioner was granted leave to file an amendment to the complaint. This amendment reflected respondent's correct license number. 1/
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was referred by petitioner to the Division of Administrative Hearings on August 17, 1987, with a request that a hearing officer be assigned to conduct a formal
hearing. By notice of hearing dated September 2, 1988, the final hearing was scheduled on January 11 and 12, 1988, in Fort Lauderdale, Florida. At respondent's request, the matter was continued to March 8 and 9, 1988, at the same location. A second motion to continue filed by respondent was granted and the hearing was rescheduled to March 23 and 24, 1988. At petitioner's request the matter was rescheduled to June 21 and 22, 1988, at Fort Lauderdale, Florida. Petitioner's request to again continue the matter was denied by order dated June 15, 1988.
At final hearing, petitioner presented the testimony of Dr. Jerry W. Zimmerman, an expert in general dentistry, and Teresa Roderman, the wife of the patient. It also offered petitioner's exhibits 1-5 and 8. All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of Dr. Harry Blechman, a board certified endodontist and accepted as an expert in microbiology and endodontics, and Dr. Rupert C. Bliss, an expert in general dentistry. He also offered respondent's exhibits 1-3. All exhibits were received in evidence.
The transcript of hearing (two volumes) was filed on July 13, 1988.
Proposed findings of fact and conclusions of law were due on August 5, 1988. Petitioner timely filed its proposed order. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order. 2/
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Introduction
At all times relevant hereto, respondent, Philip B. Okun, was a licensed dentist having been issued license number DN 0005278 by petitioner, Department of Professional Regulation, Board of Dentistry (Board). He has been licensed in Florida since 1971. He also holds a license in the State of New York where he graduated from the New York University School of Dentistry in 1967. Respondent presently practices dentistry at 8269 West Sunrise Boulevard, Plantation, Florida.
The genesis of this action lies in respondent's treatment of a patient in November 1982 and January 1983. Ultimately, a complaint was filed with the Board on behalf of the patient, and this culminated in the issuance of an administrative complaint on June 6, 1986, or more than three years after the treatment occurred. The complaint alleges generally that respondent failed to conform to minimum standards of performance in four respects while performing root canal therapy on the patient in question. More specifically, the complaint alleges that Dr. Okun erred by (a) initially allowing the patient to leave his office with the tooth "open," (b) permanently closing and overfilling the tooth without antibiotics and in too short a time, (c) failing to open the periapical tissue and removing the root, filling and apical granulomatous tissue after noting the "severe" overfill, and (d) placing an endodontic post in the overfilled tooth thereby blocking access to the canal space. The Board's action resulted in the instant proceeding.
A Basic Primer on Root Canals
Endodontics is a specialty within the field of dentistry. It involves the treatment of the root canals of the teeth and their surrounding structure.
A root canal (PC) is an endodontic procedure and involves the sterile filling of the interior of a tooth. Its purpose is to save the tooth for further use rather than lose it by extraction.
The center of a tooth contains nerves and arteries. This area is susceptible to invasion by bacteria (decay). If decay is present, it will show up on an X-ray in the form of a periapical radiolucency (a dark circle). Once the nerve has been invaded by bacteria, the tooth must be extracted or given PC therapy.
In a noncomplicated PC, which is the type involved in this case, certain procedures are normally followed by the prudent dentist. They include
(a) removing the decay, (b) enlarging the canal with filing tools, (c) removing the debris, (d) sterilizing the inside of the canal, and (e) filling the inside of the tooth with a permanent filling.
Decay in a tooth is normally removed by drilling. Once the drilling is completed, the inside of the tooth should be sterilized with a recognized medicament and temporarily closed (until the PC therapy is performed) to prevent the introduction of bacteria into the canal. However, there are circumstances when a tooth can be left open to "drain." The most common are when the patient experiences pain or when exudate (pus, blood and similar fluids) is present. In addition, there may be other circumstances which justify leaving a tooth open. For example, if a patient will be taking a trip by airplane immediately after the decay is removed, but before RC therapy can be completed, an endodrain (a small piece of plastic sponge) may be installed in the tooth to avoid pain and discomfort caused by expanding gases due to changes in atmospheric pressure. If the tooth is left closed, the trapped gases have no way to escape and can cause a blowup in the tooth area. However, before leaving the tooth open under these circumstances, the dentist must observe some sensitivity or tenderness in the tooth area, and the X-rays should reflect a radiolucent area around the tooth. The patient should also be advised that he runs the risk of having bacteria introduced into the canal space and that prompt, follow-up care will be required. As a general rule, an unclosed tooth should be monitored by a dentist and, if conditions permit, closed within the next few days. However, if the tooth is left open for several weeks, the introduction of microorganisms into the canal does not mean the area will automatically become infected. Finally, when removing decay, a dentist must take care to eliminate the decay without pushing it through the apex (the bottom of the tooth next to the gum) and into the gum. If this occurs, the patient risks having an infection in the bone area which, prior to the RC, was not contaminated.
After the decay is removed, the endodontic treatment is begun. This involves the filing or reaming of the canal with precision tools that vary in size. Filing is normally begun with the smallest file and gradually increased to the desired size. 3/ The intent is to file or ream the walls of the canal so as to remove any irregularities, decay, nerves and arteries that are present. The walls are made into a narrowing, tapered cylinder shaped hole with the narrowest point being closest to the gum.
After each step of the reaming is completed, the tooth is lavaged (washed out) with sterile solutions so as to remove the filing debris and sterilize the inside of the tooth. After drying the tooth with sterile paper points, a medicament is placed inside the tooth to kill bacteria. The most common medicaments are camphorated monochlorophenol (CPNC), formacreosol and calcium hydroxide. Thereafter, the tooth is temporarily sealed with a soft, putty-like substance to prevent bacteria from entering the canal.
There is conflicting testimony concerning the length of time that must elapse after the foregoing procedures are completed but before the tooth is permanently closed. All witnesses agreed that a RC can be started and completed in the same visit so long as no bacteria is present and the tooth is kept sterile. They disagree on whether a tooth can be temporarily sealed on one day and permanently filled the next, particularly when the tooth has been left open for up to six weeks. The more persuasive and credible evidence is that, as long as the tooth is "comfortable," "dry," properly "shaped" and has "no fistulas," there is no set waiting period between installing the temporary and permanent fillings. Put another way, unless the dentist observes some contraindication, he may make a permanent closure on the day after the temporary seal has been installed.
On the visit when the permanent closure is made, the temporary filling or seal is first removed, and a paper point is placed in the canal to ascertain if any exudate is present. If the canal is clear, it is lavaged and dried. After a medicament is placed in the canal, it is permanently filled with guttapercha (inert rubber material) or cement to prevent the entry of bacteria. A dentist generally seeks to fill the canal approximately one-half to one millimeter short of the radiographic apex of the tooth since it is better to fill the canal short than long.
When permanently sealing a tooth, it is not uncommon for a dentist to overfill a RC. In the words of one expert, "(overfilling) occurs with a great deal of frequency." Overfilling means that too much guttapercha has been placed in the canal, and the filling has penetrated the periodontal ligament and entered the periapical space above the apex. However, the filling material is resorbed over time by the body, and an overfilling does not result automatically in an endodontic failure. Indeed, most overfilled canals are successful. Further, an overfill is not objectionable as long as the overfill does not impinge on vital structures such as blood vessels and nerves. If overfilling occurs, two options are available to the dentist. First, if necessary, he may surgically remove the filling material by cutting into the gum and cleaning out the area. This procedure is known as a periapical curettage. If surgery is required, the dentist must cut laterally into the bone above the apex area. Therefore, if the guttapercha has been pushed beyond the apex area, the fact that a post has been placed into the tooth is immaterial since it does not block surgical access to the filling. The second and more desirable alternative is for the dentist to simply monitor the patient's condition through future office visits to see if the problem resolves itself through the resorption process. If the overfill resolves itself, and no pain or swelling occurs, surgery is not required. Finally, antibiotics need not be prescribed to a patient with an overfilled tooth unless symptoms of an infection are present.
Once a broken-down, anterior tooth is endodontically filled, it is normal practice for a dentist to place a post two-thirds of the way into the RC as a support for anchoring the crown. This is because the inside of the root is the only place where retention for the appliance can be obtained.
The Patient's Visit
In November 1982 one George Roderman, then a California resident and around sixty eight years of age, visited his son, Barry, in the Fort Lauderdale area for a few days. Because Barry was a patient and friend of Dr. Okun, respondent agreed to see George Roderman on an emergency basis. Roderman's
primary complaint was that he needed repairs on a temporary bridge on teeth numbers 4-11. Roderman's initial visit to respondent was on November 23.
After removing the temporary bridge, respondent examined Roderman's teeth and found Roderman had not followed good dental hygiene practices and that his teeth were in poor condition. Respondent learned that the patient had not seen a dentist since the temporary bridge was made some two years earlier. Although Roderman did not complain of any pain, the front part of the bridge was broken, there was inflammation and infection around the gums, and he had a great deal of recurrent decay on many margins of the bridge. After taking panoramic
X-rays, Dr. Okun observed a rarefaction (a radiolucent area at the apex of the tooth) and recurrent decay in tooth number 11. The tooth was nonvital (dead) and had pulp exposure. However, there was no pus or oozing, and the area of the tooth was dry. Respondent initially removed the decay from tooth 11, medicated the tooth and inserted a temporary filling. After mending the bridge, the patient was advised that a RC had been initiated, that he needed a permanent bridge fabricated after the canal was completed and that a post would be placed in tooth 11. He was also instructed to resume good oral hygiene practices.
Finally, primary impressions to fabricate a new temporary crown and a custom tray were taken. A second appointment was scheduled on November 26, or three days later. In his records, Dr. Okun noted that a twelve unit appointment (twelve blocks of 15 minutes each) would be set up for continued RC therapy when Roderman returned to Florida. The appointment contemplated other work as well, including the fabrication of a new bridge which generally took a month or so to complete. According to respondent, these appointments were a courtesy to Barry Roderman since he did not know specifically when Barry's father would return to Florida.
On November 26 Roderman returned to Dr. Okun's office so that respondent could monitor his condition. Respondent did not observe any exudate, and the tooth was dry. The patient had no complaints of pain. However, after learning that Roderman was returning by airplane that evening to California, Dr. Okun percussed tooth 11 and found the patient experienced a slight tenderness and sensitivity due to inflamed fibers supporting the tooth. Based on this clinical observation, and the presence of a radiolucent area on the patient's X- ray, Dr. Okun reopened the tooth, removed the temporary stopping and medication and installed an endodrain. He did this because he was concerned that the pressure change from the airplane might cause a buildup of gases in the tooth resulting in discomfort and pain. Respondent believed that Roderman had felt no discomfort on his flight from California to Florida because Roderman had a natural passageway (by virtue of the extensive decay in the canal) for bacteria and gases to escape from the tooth. Doctor Okun advised the patient that he was more at risk by leaving the tooth open and that he must see a California dentist to have the root canal therapy completed. This advice was consistent with respondent's normal practice of having a patient with an open tooth return within 24 to 48 hours for further evaluation and treatment. Roderman was also given a four or five day prescription for antibiotics as a precautionary measure and his full mouth series of X-rays for use by the California dentist. When the patient left, respondent assumed he would see a dentist in California for further treatment.
On January 13, 1983, or a day earlier than his scheduled appointment, Roderman telephoned respondent's office and was told to come over that afternoon. Respondent expected to see Roderman with a completed RC and the series of X-rays in his possession. However, to Dr. Okun's surprise, Roderman had neither. Since Roderman left his X-rays in California, it was necessary that he take another series. Respondent proceeded with the RC therapy by
completely irrigating and drying the canal in tooth 11, filing it to a number 60 file, sterilizing it with CPNC and applying a temporary filling. These steps were in conformity with generally accepted and prevailing standards for dentists.
On January 14, 1983, the patient returned for his regularly scheduled visit. He was first "reeducated" on proper oral hygiene and given a stimulator and gum brush. Dr. Okun next examined tooth 11 and the apical area and found the patient had no symptoms of discomfort, pain or abscess. There was no clinical sign of infection. In view of this, respondent decided to fill the canal with a permanent filling. After removing the temporary filling, respondent observed that the tooth was dry and clean, did not smell and had no exudate. Accordingly, he filled the canal with guttapercha and paste. A periapical X-ray taken after the filling revealed that there was a slight overfill of guttapercha. However, this did not appear to be unusual, excessive or severe, and it did not impinge on any vital structures. Respondent advised Roderman the canal was "a little overfilled" and that, if Roderman intended to return to California, he must get "immediate attention" if he experienced any discomfort. Roderman was told further that when he returned to respondent's office, respondent would monitor the tooth to ensure no problems occurred. Doctor Okun also decided to place a post into the canal on tooth 11 as an anchor for a new crown. Finally, the patient was given a new temporary bridge for teeth numbers 3-14.
On January 17, 1983, Roderman returned to Dr. Okun's office and was given the final prep and impression for a new twelve-unit fixed porcelain to metal cantilever bridge. The patient was also given Tylenol with codeine and was told to rinse and massage his gums because of a slight gum irritation caused by the bridge fitting.
On January 20, Roderman made a final visit to respondent's office. A color selection (shade) for the bridge was taken and Roderman took a bite registration. The bridge was thereafter sent to the laboratory to be fabricated. However, Roderman left for California and never returned to respondent's office to pick up his permanent bridge.
At no time during any visits in January 1983 did Roderman complain of pain or discomfort regarding tooth 11.
Root Canal Therapy or Heresy?
Three experts testified concerning the level of skill and treatment exercised by respondent while treating Roderman. The Board expert concluded that Dr. Okun did not conform to minimal, acceptable standards. Conversely, respondent's two experts reached the opposite conclusion. The pertinent findings relative to this testimony are set forth below.
To support its allegation that Dr. Okun violated various statutory provisions while treating Roderman, the Board presented the testimony of Dr. Jerry W. Zimmerman, a general dentist in North Miami Beach, Florida, since 1970 and who has performed "hundreds" of endodontic procedures during his career.
Before reaching an opinion, Dr. Zimmerman reviewed the pertinent patient records in question and "did copious research into books, journals (and) magazines" because of the "complex nature of the case." He acknowledged later the case was not complex and involved a relatively simple endodontic procedure.
According to Dr. Zimmerman, Dr. Okun fell "far short" of the minimum standards of performance in the treatment of Roderman. As to Dr. Okun leaving Roderman's RC open after the November 26, 1982, visit, Dr. Zimmerman noted that, because of the likelihood of bacteria being introduced into the tooth, he would not leave the tooth open unless the patient was experiencing extreme pain and had a large amount of exudate. Even then, the witness suggested the tooth should be resealed within the next 24 to 48 hours. Unlike respondent, Dr. Zimmerman did not believe an imminent airplane trip was justification to leave the tooth open. In reaching this conclusion, the witness assumed the patient had no pain or exudate and that the tooth was not sensitive or tender when percussed. He assumed further, albeit incorrectly, that the patient was not instructed to see a dentist as soon as he got to California.
Doctor Zimmerman believed that respondent erred by continuing the RC therapy on January 13, 1983, and promptly closing it the following day. This conclusion was based on the assumption that the tooth was infected after being open for six weeks and that a minimum of three visits would be necessary to completely eradicate the bacteria and sterilize the canal. It was also based upon technical literature which suggested that a comparable waiting period was appropriate. It should be noted, however, that other technical literature of record supports the practice of instrumenting and closing in the same session abscessed teeth that had been left open for drainage.
The state's expert opined further that Dr. Okun was negligent and incompetent by failing to prescribe antibiotics for Roderman on January 14, 1983. This opinion was predicated upon a belief that the canal space could not be adequately sterilized in the one visit on January 13, and that by overfilling the canal on January 14, bacteria would have been pushed through the apex of the tooth.
Doctor Zimmerman characterized the degree of overfilling by respondent as "gross" and contended (incorrectly) that guttapercha cannot be resorbed by the body. However, he later conceded the material could be resorbed. The witness stated that he would have removed the excess guttapercha in a nonsurgical manner by simply melting it with a chemical. The witness added that respondent complicated matters by placing a post in the canal which prevented the use of this nonsurgical technique. However, as pointed out in other findings, the melting procedure was unavailable in this case due to the location of the overfill and the hazardous nature of the chemical.
Finally, the expert concluded that Dr. Okun was incompetent in his work by failing to clean the canal with any lavages after it was reamed. He based this conclusion on the records which indicated that the canal was simply "filed to number 60 and closed."
Testifying on behalf of respondent was Dr. Harry Blechman, a board certified endodontist and presently the professor and chairman of the Department of Endodontics at the New York University School of Dentistry and onetime dean of the school from 1967 through 1975. After reviewing the patient records and
X-rays, and interviewing respondent, Dr. Blechman concluded that respondent's care and treatment of the patient were in conformity with the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
According to Dr. Blechman, it was acceptable for respondent to leave Roderman's tooth open after removing the decay on November 26, 1982. This was because the patient was about to embark on a lengthy airplane trip, was
experiencing tenderness after having the tooth percussed, had been given a precautionary supply of antibiotics, and had access to a dentist in the state to which he was traveling. The witness suggested that, by leaving with his tooth closed, the patient would risk a "blowup" and possible serious complications.
As to the charge that Dr. Okun erred by permanently closing and overfilling the tooth without the use of antibiotics in too short a period of time, Dr. Blechman responded first that, if the tooth is asymptomatic (free of symptoms), comfortable and dry, there is no time sequence for a permanent filling of a RC. Concluding those circumstances were present, the witness found it was acceptable for respondent to permanently close the tooth on January 14 after filing the tooth on January 13, even though the tooth had been left open previously for six weeks. Secondly, the witness noted that overfills occur "with a great deal of frequency," and while a concern, do not constitute "a risk to the health" of the patient. In this case, he found the overfill did not put Roderman at risk. He added that an overfill by itself is within acceptable standards for a dentist. Finally, the expert observed that antibiotics were not necessary since there was no sign of infection.
Doctor Blechman found nothing improper by respondent's failing to open the periapical tissue and removing the guttapercha after learning the tooth had been overfilled. Indeed, the witness opined that Dr. Okun exercised good judgment by opting to see if the situation would resolve itself through the resorption process rather than resorting to a surgical procedure, particularly since the tooth was asymptomatic. He disagreed also with Dr. Zimmerman's conclusion that, without a post in the canal, the guttapercha could be safely removed by a nonsurgical procedure.
Also testifying on behalf of respondent was Dr. Rupert C. Bliss, a general dentist in Jacksonville, Florida, and licensed since 1956. Doctor Bliss is a former chairman of the Board of Dentistry and still serves under contract as a part-time consultant to the Board. He concluded that, based upon a review of the records and X-rays and a discussion of the matter with respondent, respondent adhered to minimum standards of performance for a dentist while treating Roderman.
According to Dr. Bliss, respondent's decision to leave Roderman's tooth open on November 26 was strictly a clinical judgment. Based upon the expert's knowledge of the facts of the case, this witness would have also left Roderman's tooth open.
Doctor Bliss opined that there is no set time between temporarily and permanently closing a tooth and that the one-day interval used by respondent was permissible. He also pointed out that the medication applied to the tooth on January 13 was sufficient to sterilize and clean the tooth for permanent closure on January 14. Since there was no indication of an infection present in the tooth when Roderman returned to respondent's office on January 13, 1983, he concluded that antibiotics were not required.
The expert did not characterize the degree of overfill in this case as being objectionable or unusual since it did not impinge on any vital structures. As to the allegation that respondent erred by not opening the periapical tissue and removing the overfill, Dr. Bliss observed that surgery is not required unless the overfill fails to resolve itself through the resorption process. The witness suggested further that the use of a nonsurgical procedure, as suggested by witness Zimmerman, was not practical here since the guttapercha extended
slightly beyond the confines of the canal, and under these circumstances the use of chloroform to melt the material would be a very risky procedure.
Finally, Dr. Bliss opined that the placement of a post in an overfilled tooth was in conformity with minimal recognized standards since it did not impede surgical access to the overfill material and was necessary to anchor the crown.
The undersigned has resolved the conflicts in the above testimony in respondent's favor. In doing so, the undersigned finds respondent's experts to be more credible and persuasive, particularly since the testimony of the Board's witness was grounded on certain erroneous assumptions. Accordingly, it is found that respondent met the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance while treating patient Roderman.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
Because respondent's professional license is at risk, the agency must prove the allegations in the complaint by clear and convincing evidence. See, e.g., Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3rd DCA 1988).
The administrative complaint recites the following infirmities in Dr. Okun's care and treatment of patient Roderman:
Respondent allowed Mr. Roderman to leave his office with tooth number II open to oral bacterial contamination when there was no indication to do so.
Respondent permanently closed and over- filled the tooth without the use of antibiotics in too short a time period. The tooth should have been cleaned, irrigated, medicated and closed temporarily. At the same time, antibiotics should have been prescribed and
the root canal finished about three to fourteen days later, if symptoms were absent.
When Respondent noted the severe overfill, he failed to open the periapical tissue and remove the foreign body (root and filling)
along with the apical granulomatous tissue from the bone.
Respondent placed an endodontic post in the tooth that had just been overfilled, thereby retain this blocking access to
the canal spaced (sic).
It is alleged further that these acts constitute a violation of Subsection 466.028(1)(y), Florida Statutes (1981). That subsection makes unlawful the following conduct by a licensee:
(y) Being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the
undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience.
It should be noted here that respondent is not charged with failing to keep adequate written dental records. Therefore, this statutory requirement is of no concern. The relevant allegations will be reviewed separately hereinafter in light of the above standard of proof to determine whether they have been sustained.
The more credible and persuasive evidence supports a conclusion that respondent acted within acceptable standards by leaving tooth 11 open on November 26. This conclusion is based upon observations by respondent that the tooth was tender and sensitive to percussion, a radiolucent area was present, and the patient was about to leave on a long-distance airplane trip. In addition, precautionary antibiotics were prescribed, and the patient was instructed to see a dentist in California. Therefore, the allegations in paragraph (a) of the complaint must fail.
As to the allegations in paragraph (b), the more credible and persuasive evidence supports conclusions that the slightly overfilled tooth did not pose a risk to the patient, antibiotics were not needed since no sign of infection was present, respondent's "turnaround time" for permanently filling the tooth was within acceptable limitations under the circumstances, and respondent cleaned, irrigated, medicated and temporarily closed the tooth in an appropriate manner. Therefore, the allegations in paragraph (b) have not been substantiated.
As to the allegation in paragraph (c), the more credible and persuasive evidence reflects that respondent took the appropriate course of action by electing not to perform a periapical curettage but choosing instead to monitor the patient to see if the matter resolved itself through the resorption process. Therefore, this charge should be dismissed.
Finally, the more credible and persuasive evidence supports a conclusion that respondent's placement of a post in the overfilled tooth was within acceptable standards since the post did not block surgical access to the material, and the nonsurgical removal of the filling could not be safely performed. Therefore, the final charge must fail.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed against
respondent be DISMISSED, with prejudice.
DONE AND ORDERED this 19th day of August 1988, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
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 19th day of August, 1988.
ENDNOTES
1/ An effort by petitioner during the course of the hearing to add a further charge against respondent was denied on the grounds it was untimely and deprived Dr. Okun of due process.
2/ Proposed findings of fact and conclusions of law were originally due on July 28, 1988. The parties' request to extend this time to August 5 was granted and this was confirmed in writing in a letter authored by petitioner's counsel.
Respondent's proposed findings of fact and conclusions of law were not filed until August 11, 1988. No request to late-file this pleading was made, and petitioner's motion to strike is accordingly granted.
3/ The files range from as small as a number 10 file to as large as a number
120 file. However, it is unusual to use file larger than a number 60.
APPENDIX
Petitioner:
Covered in finding of fact 1 except that respondent's office is in Plantation and not Fort Lauderdale.
Partially covered in finding of fact 2. The last sentence has been rejected as being irrelevant.
Covered in finding of fact 13.
4-5. Covered in finding of fact 14.
Covered in finding of fact 15.
Partially used in finding of fact 15. The second and third sentences have been rejected as being contrary to the more credible evidence.
Covered in finding of fact 16.
9-10. Covered in finding of fact 17.
11. Covered in finding of fact 3.
12-14. Covered in finding of fact 6.
Rejected as being contrary to the more credible evidence.
Partially covered in finding of fact 6 to the extent the same is consistent with the more credible evidence.
Partially covered in finding of fact 25. The last sentence is rejected since it is contrary to the more credible evidence that respondent did not intend to leave the tooth open for six weeks.
Rejected as being contrary to the more credible evidence.
Partially covered in findings of fact 9 and 25. The remainder is rejected as being contrary to the more credible evidence.
Rejected as being contrary to the more credible evidence.
Partially covered in finding of fact 25. The remainder has been rejected as being contrary to the more credible evidence.
Rejected as being contrary to the more credible evidence.
Covered in finding of fact 11.
Generally covered in finding of fact 17 except that part which concludes that respondent was negligent by overfilling. This conclusion is inconsistent with the more credible evidence.
25-26. Partially covered in findings of fact 11 and 17. The remainder is contrary to the more credible evidence.
27-28. Rejected as being contrary to the more credible and persuasive evidence.
Rejected as being argument of counsel, conclusions of law or recitations of testimony.
Rejected as being irrelevant since (a) witness Blechman qualified his affirmative response to counsel's question and (b) witness Bliss was not asked if he agreed with the text material, and he gave other testimony which concluded respondent's time frame for opening and closing was permissible.
Rejected as being contrary to the more credible and persuasive evidence.
Respondent's untimely proposed findings were not considered.
COPIES FURNISHED:
Gregory A. Victor, Esquire Carolyn B. Kellman, Esquire 3225 Aviation Avenue
Suite 400
Miami, Florida 33133
Salvatore A. Carpino, Esquire 4830 West Kennedy Boulevard One Urban Centre, Suite 750 Tampa, Florida 33609
Pat Guilford, Executive Director Board of Dentistry
130 North Monroe Street Tallahassee, Florida 32399-0750
Bruce D. Lamb, Esquire Acting General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
| Issue Date | Proceedings |
|---|---|
| Aug. 22, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 17, 1988 | Agency Final Order | |
| Aug. 22, 1988 | Recommended Order | Dentist did not demonstrate incompentency while performing a root canal on patient |
BOARD OF DENTISTRY vs THOMAS ELLIOTT WORSTER, 87-003590 (1987)
DEPARTMENT OF HEALTH, BOARD OF DENISTRY vs ROY HART, DDS, 87-003590 (1987)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs GARY GOLDEN, D.D.S., 87-003590 (1987)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs JOSEPH A. GAETA, JR., D.D.S., 87-003590 (1987)
