STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5159

)

BERT ONG, D. M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this proceeding was held on September 7, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer from the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Susan Branson, Esquire

Department of Professional Regulations

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Richard I. Wallsh, Esquire

217 East Ivanhoe Boulevard North Orlando, Florida 32804

BACKGROUND AND PROCEDURAL MATTERS

The proceeding arose from Respondent's request for a formal hearing in response to an Administrative Complaint dated September 1, 1987.

The complaint alleged that the Respondent's treatment of his patient, Margaret Antonette, failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, in violation of Section 466.028(1)(y), F.S. (1981).

Subsequently the complaint was amended, by leave of the hearing officer, to include a second count alleging a violation of Section 466.026(1)(m), F.S. (1981) for failure to maintain dental records and medical history records justifying the course of treatment of the same patient. The Amended Complaint is dated April 12, 1988.

The Complaint was amended a second time on June 23, 1988, with no substantive changes. Petitioner's motion to amend was granted on August 9, 1988.

Respondent filed Motions to Dismiss each of the complaints, alleging prejudice due to a delay of approximately twenty-six months between the agency's

receipt of a complaint and the filing of its Administrative Complaint. These motions were taken under advisement pending the presentation of evidence at the formal hearing.

At the hearing, Petitioner presented three witnesses and fourteen exhibits, including several depositions. The exhibits were received without objection, except for exhibit B, a videotape of Dr. Chace's deposition, and exhibit G, a letter by Dr. Ferris.

The objection to exhibit B is sustained. Respondent has no objection to the written transcript of the deposition but he had insufficient notice that it was to be videotaped, and promptly objected. The videotape is not essential to an understanding of the testimony and was not viewed in the preparation of this recommended order.

The objection to Dr. Ferris' letter, Exhibit G, is overruled for reasons stated in the conclusions of law, below.

Respondent testified in his own behalf and submitted five exhibits, including a deposition of his expert witness, all admitted without objection.

After hearing and the preparation of a transcript, both parties submitted well-referenced and thorough proposed recommended orders. Specific rulings on the proposed findings of fact are found in the attached appendix.

ISSUES

The issues for determination are whether Respondent violated the provisions of Section 466.028, F.S. (1981), as alleged, and whether a delay in investigation and processing the administrative complaint resulted in such prejudice as to warrant dismissing the complaint.

FINDINGS OF FACT

Based on the evidence of record and Respondent's admissions dated August 29, 1988, the following facts are found:

1. Bert Ong, D.M.D. is licensed as a dentist in the State of Florida, having been issued license #DN 0006246.

   
   

2. Dr. Ong graduated in dentistry from the University of the East in Manila, Philippines, in 1964. He immediately left for the United States and between then and 1974, when he was first licensed in Florida, he attended the University of Pittsburgh, and worked as a doorman, a dental assistant, a dental researcher, and medical records clerk.

   
   

3. Dr. Ong has an active general dentistry practice at 4435 Curry Ford Road, Orlando, Florida.

   
   

4. Margaret Antonette, previously known as Margaret Tyre or Margaret Harp (due to marriage), became a dental patient of Dr. William Branham at a clinic in Longwood, Florida in January 1981. In the course of his examinations, Dr. Branham took some x-rays, prepared study models, and did periodontal probings of Ms. Antonette's teeth. Those probings, for the purpose of determining the depth of pockets between a patient's gums and teeth, are recorded on Dr. Branham's chart.

5. Healthy gums generally have pockets of three millimeters or less. Dr. Branham found pockets in Ms. Antonette's upper teeth ranging from two millimeters to eight millimeters (one eight, several sixes and two sevens).

   
   

6. Dr. Branham refers patients to a periodontal specialist when depths exceed five millimeters. He referred Ms. Antonette to periodontist, Robert Ferris, D.D.S. as he wanted to have her periodontal condition evaluate prior to doing restorative work that she needed.

   
   

7. Dr. Ferris diagnosed Ms. Antonette as having chronic periodontitis on September 1, 1981. He outlined a treatment plan and gave her an estimate of his fee. She did not follow up on that treatment, but instead went to Dr. Ong, because a friend told her he could do both her crowns and bridges and the periodontal surgery.

   
   

8. Margaret Antonette's first visit to Dr. Ong was on February 16, 1982. She had a badly infected upper tooth and was in misery. She told Dr. Ong that she had recently been told by Dr. Ferris that she needed periodontal surgery and that she wanted bridges and crowns.

   
   

9. Dr. Ong assured that he could do everything she needed, that he could give her healthy gums and pretty teeth.

   
   

10. Although Dr. Ong claims that he did periodontal probes, these are nowhere indicated on his chart, with the exception of some ambiguous ink shading on the diagram for upper tooth number six. Even for that tooth the probe depth is missing.

    
    

11. At the first visit Dr. Ong took X-rays and made study models. On March 11, 1982, he extracted tooth number six, the one that had been infected.

    
    

12. At the next visit on March 26, 1982, Dr. Ong did sub-gingival scaling, curettage and root planing on teeth numbers two, three, seven and eight. He also prepared those teeth for a crown by using a burr to remove the enamel and shape them. He put a temporary crown on the teeth. His chart indicates only "crown preparation and temporary", for teeth numbers seven and eight, as he forgot to note numbers two and three and he made no note of the periodontal procedures.

    
    

13. On April 9, 1982 he performed the same procedures on teeth numbers nine, ten and eleven; and on April 15, 1982, the same procedures were performed on teeth numbers fourteen and fifteen. The chart notations for those dates list the teeth numbers and note "crown preparation and temporary". No mention is made of the periodontal procedures.

    
    

14. Permanent crowns and bridges were cemented on Ms. Antonette's upper teeth on May 7, May 18 and June 10, 1982.

    
    

15. June 10, 1982, was Ms. Antonette's final visit to Dr. Ong. She understood the work was finished and she was set up for a recall appointment in February 1983, eight months later. She did not return.

    
    

16. The treatment administered to Ms. Antonette by Dr. Ong was extremely painful. At one point he prescribed Darvon and Valium to her.

    
    

17. Within a year of her final visit she began suffering with bleeding gums. The gums became more infected and she finally consulted a periodontist in

    October or November 1984. Appropriate extensive periodontal surgery was completed in December 1984.

    
    

18. The result of the subsequent periodontal treatment was a shrinking of Ms. Antonette's gums, leaving unsightly and difficult to clean gaps between her replacement teeth and the maxillary and residual ridge in her upper mouth. The crown and bridgework done by Dr. Ong needs to be replaced.

    
    

19. Dr. Ong should have diagnosed Ms. Antonette's periodontal disease on her first visit. He was aware that she had consulted a periodontist prior to visiting him and noted this on her chart. He claims that he can remember what the periodontal probes were, even though they were not written down, because they were mostly normal.

    
    

20. In spite of this, he performed the periodontal procedures noted above, consisting of scraping with a sharp instrument, a scaler, removing tartar and calculus buildup from the roots of the teeth and removing diseased tissue from inside the gums.

    
    

21. These procedures may be done by a general dentist, but it is essential that the patient be recalled after one or two months in order to evaluate the results on the gums. If the gums have not healed, it is generally accepted that periodontal surgery is required and, the patient is referred to a specialist.

    
    

22. In February 1982, Ms. Antonette's gums were not mostly normal. Both Dr. Branham and Dr. Ferris had noted severe problems. She received no treatment for those problems prior to consulting Dr. Ong, and they would not have healed on their own. At best, the gums would have stayed the same, with no further deterioration.

    
    

23. Even assuming that Dr. Ong had initially proceeded correctly with the curettage and root planning, he failed to wait to evaluate the results of the treatment prior to commencing the replacement work. Not only was the process more painful for the patient, his failure to wait until the gums had healed caused her to have to seek subsequent periodontal treatment that rendered Dr. Ong's replacement work useless.

    
    

24. In addition to the problems caused by Ms. Antonette's subsequent essential periodontal treatment, the crowns placed by Dr. Ong were defective as they contained open margins. This means that spaces were left under the crown, making it impossible to clean the area and accelerating the progression of the periodontal disease.

    
    

25. Dr. Ong failed to maintain dental records to justify his course of treatment of Margaret Antonette. No mention whatsoever is made of the condition of her gums. The "periodontal condition" (transcript, p. 238) that, according to Dr. Ong, justified the subgingival scaling and curettage, was not described on the chart or in Dr. Ong's testimony. Moreover, the procedures were not recorded.

    
    

26. Dr. Ong's diagnosis and treatment of Margaret Antonette failed to meet minimum standards when measured against generally prevailing peer performance. Petitioner's several credible expert witnesses established this fact. Dr. Ong's own witness, Charles Graham, D.D.S., conceded that Dr. Ong's standard of care was on the "low end of the scale" (Respondent's exhibit #2, p. 34), and that he could use some training.

27. Dr. Ong's motion to dismiss is based, in part, on his claim of prejudice by a delay of approximately 26 months between Ms. Antonette's complaint to the agency and the filing of the administrative complaint. During that time the records of Dr. Ferris, the periodontist whom she had consulted before going to see Dr. Ong, were destroyed in a flood. What remains of those records, as they pertain to Ms. Antonette, is a letter dated February 12, 1985, prior to the flood, addressed to Ms. Antonette, which Dr. Ferris dictated as he reviewed the actual charts. The letter summarizes his findings, outlines the treatment plan and establishes his fee.

    
    

28. A finding that Ms. Antonette had periodontal disease at the time that she first visited Dr. Ong is based not only on this letter and Dr. Ferris' testimony, but also the records and testimony of Dr. Branham, Ms. Antonette's testimony, and the expert witnesses presented by the agency.

    
    

29. Dr. Ong was not prejudiced by the delay, but rather contributed to it by his failure to honor a subpoena for his records, served on October 9, 1985, until the subpoena was enforced in May 1986.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.57(1),

    F.S. and 455.225(4), Florida Statutes.

    
    

31. In a professional license discipline case such as this, the Petitioner must prove by clear and convincing evidence that the alleged violations occurred. Ferris v. Turlington, 510 So.2nd 292 (Fla. 1987).

    
    

32. Section 466.028 (1981) provides, in pertinent part:

    
    

    466.028 Grounds for disciplinary action; action by the board.--

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (m) Failing 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.

       * * *

       (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.

       * * *

       
       

33. The agency met its burden as to both violations. The diagnosis and treatment of Margaret Antonette failed to meet minimum standards as described by credible competent expert witnesses.

34. Respondent's records of his diagnosis and treatment of this patient were grossly inadequate. The examination results are missing, no diagnosis is provided and substantial treatment procedures are left uncharted.

    
    

35. In an administrative proceeding, evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs is admissible, even though such evidence may not be admissible in a trial court. Section 120.58(1)(a), F.S. Dr. Ferris' letter, Petitioner's Exhibit 6, summarizing in detail the contents of his records of examination of Margaret Antonette, is admissible, even though the records being summarized are no longer available. Medical practitioners and their patients commonly rely on such summaries.

    
    

36. Hearsay evidence in administrative proceedings may be used for the purpose of supplementing or explaining other evidence. Section 120.58(1)(a),

F.S. The contents of Dr. Ferris' letter supplement other ample competent evidence regarding Ms. Antonette's periodontal condition.

37. Section 466.028(2), F.S. (1981) provides:

1. When the board finds any applicant or licensee guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

   1. Denial of an application for licensure.

   2. Revocation or suspension of a license.

   3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

   4. Issuance of a reprimand.

   5. Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requiring the licensee to attend continuing education courses or demonstrate his competency through a written or practical examination or to work under the supervision of another licensee.

   6. Restricting the authorized scope of practice.

38. Counsel for Petitioner has suggested disciplinary action which is consistent with the above and with the guidelines promulgated by the Board in Rule 21G-13.005, F.A.C.

RECOMMENDATION

Based on the foregoing it is hereby, RECOMMENDED:

That the Board issue its final order finding Bert Ong, D.M.D., guilty of violations of subsections 466.028(1)(m) and (y), F.S. (1981), issuing a

reprimand and imposing a $2,000.00 fine, suspending his license to practice dentistry for ninety (90) days, and thereafter placing him on probation for one year with a requirement for the completion of appropriate continuing dental education coursework in an amount and type to be specified by the Board.

DONE and RECOMMENDED this 9th day of December, 1988, in Tallahassee, Florida.

MARY CLARK

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 9th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4172

The following constitutes my specific rulings on the findings of fact submitted by the Petitioner:

1. Adopted in paragraph #1.

2. Adopted in paragraph #2. 3.-6. Adopted in paragraph #3.

7. Adopted in paragraph #4. 8.-11. Adopted in paragraph #5.

1. Adopted in paragraph #7.

2. Adopted in substance in paragraph #13.

3. Rejected as unnecessary. 15.-17. Adopted in paragraph #7. 18.-21. Adopted in paragraph #8. 22.-24. Adopted in paragraph #9.

1. Adopted in paragraph #10.

2. Adopted in paragraph #13.

3. Adopted in paragraph #15.

4. Adopted in paragraph #10. 29.-30. Rejected as cumulative.

1. Adopted in paragraph 16.

2. Rejected as contrary to the evidence. Although the porcelain shading did not match the patient's lower teeth, the uncontroverted testimony was that she selected the color and intended to have the lower teeth replaced later.

33.-35. Adopted in paragraphs #11 and 12.

36.-38. Adopted in paragraph #17.

1. Adopted in substance in paragraph #18.

2. Adopted in paragraphs #19 and #20.

Respondent' s Proposed Findings of Fact

I.-A. Addressed in conclusions of law.

-B. Adopted in paragraphs #1 and 2.

-C. Adopted in paragraphs #5 and 10.

2.-A.-D. Rejected as immaterial and unnecessary. "Count I"

1. Adopted in paragraph #3.

2. Adopted in substance in paragraph #4.

3. Adopted in part in paragraph 5, otherwise rejected as unnecessary.

4. Adopted in paragraphs #6-#11.

5. Adopted in paragraph #10, except that the recall was eight, not six, months later.

6. Adopted in substances in paragraphs #3, 4, and 11. G.-H. Adopted in summary paragraph #12.

"Count II"

A.)

B.)

C.) Adopted in paragraphs 6.

D. Rejected as contrary to the weight of evidence (as to the standard) and immaterial (as to the form).

COPIES FURNISHED:

Susan Branson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Richard I. Wallsh, Esquire

217 East Ivanhoe Boulevard, North Orlando, Florida 32804

William Buckholt, Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005159

Orders for Case No: 87-005159