STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3566

) 88-3670

RALPH TOOMBS, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on May 25, 1989, in Kissimmee, Florida.

APPEARANCES

For Petitioner: John Namey, Esquire

Department of Professional Regulation 1520 East Livingston Street

Orlando, Florida 32803

For Respondent: Ronald M. Hand, Esquire

241 East Ruby Avenue Waterfront Square, Suite A Kissimmee, Florida 32741

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, Ralph Toombs, committed violations of Chapter 466, F.S., with regard to two dental patients, as alleged in two Administrative Complaints. If the violations are found, some disciplinary action must be recommended.

PRELIMINARY STATEMENT

An administrative complaint, dated May 6, 1988, alleges that Respondent violated Section 466.928(1)(y), F.S. by failing to meet minimum acceptable standards of diagnosis and treatment in dental services he provided to patient, S.C.

After Respondent requested a formal hearing on the matter, it was referred to the Division of Administrative Hearings, was assigned case number 88-3566, and was set for hearing.

A second administrative complaint, dated October 13, 1988, was referred to the Division upon Respondent's request for a formal hearing. That complaint alleges other violations of Chapter 466, F.S. in the treatment of patient, A.K.

The two cases were consolidated on January 10, 1989. After several continuances at the request of the parties, the hearing was held on May 25, 1989, as stated above.

As they had been directed, the parties filed a joint prehearing statement stipulating to certain facts and to the admissibility of most documentary evidence in the proceeding.

At the commencement of the hearing, Respondent filed and argued a motion to supplement the record with depositions, still to be taken, of two out-of-state expert witnesses. The motion was denied as the parties had been granted liberal continuances and had been afforded ample time to prepare their respective cases.

The following exhibits were received in evidence, by stipulation: Petitioner's Exhibit 1-AK- deposition of Edward

Sheinis, D.D.S., with dental records attached.

Petitioner's Exhibit 2-AK- deposition of Joseph

Lunsford, D.D.S. Petitioner's Exhibit 3-AK- deposition of David Feuer,

D. D. S.

Petitioner's Exhibit 4-AK- deposition of Charles

Friedman, D.D.S.

Petitioner's Exhibit 5-AK- composite, radiographs

of AK

Petitioner's Exhibit 6-AK- composite, photographs of

AK

Petitioner's Exhibit 7-AK- Dr. Toombs' letter to Board

of Dentistry 7/3/86 Petitioner's Exhibit 1-SC- deposition of Steve Kiltau,

D.D.S, with dental records attached.

Petitioner's Exhibit 2-SC- deposition of John R.

Jordan, D.D.S. Petitioner's Exhibit 3-SC- deposition of Kenneth

Embler, D.D.S. Petitioner's Exhibit 4-SC- deposition of Howard

B. Kay, D.D.S. Petitioner's Exhibit 5-SC- X-rays of S.C. Petitioner's Exhibit 6-SC- dental records of S.C. Petitioner's Exhibit 7-SC- photographs of S.C. Petitioner's Exhibit 8-SC- Dr. Toombs' letter to the

Board of Dentistry, 5/28/86

In Addition, Petitioner's exhibit 9-SC, a deposition of the patient, S.C., was received without objection.

Petitioner's witnesses at bearing included the patient, A.K., and Gregg R. Kroen, D.D.S.

Respondent testified on his own behalf and presented the deposition testimony of Alan R. Heap, D.M.D., received in evidence as Respondent's exhibit # 1-AK, without objection.

After the hearing and the filing of a transcript, both parties submitted proposed recommended orders, separate orders for each case. The findings of fact submitted in each have been considered and are addressed in the attached appendix.

FINDINGS OF FACT

1. Ralph E. Toombs, D.D.S., is and at all relevant times has been licensed as a dentist in the State of Florida having been issued license number DN 0007026.

   
   

2. At all times relevant to the allegations of the two complaints, Dr. Toombs practiced general dentistry in West Palm Beach, Florida, under the group which he owned, the Florida Dental Group.

   
   

   He has since left the West Palm Beach area, and resides in St. Cloud, Osceola County, Florida.

   
   

3. In March 1984, patient A.K. was referred to Dr. Toombs for a problem with the joint in her jaw, the temporal mandibular joint (TMJ). She was given a mouth brace, but lost it. She also obtained general dentistry services. After she lost the mouth brace, she moved into orthodontic treatment by an orthodontist, Edward Sheinis, D.D.S., who was employed by the Florida Dental Group.

   
   

   This treatment, including the fitting and adjustment of braces, lasted about a year, until May 1985. At that time Dr. Sheinis left the group and opened his own office in Coral Springs, Florida.

   
   

4. When he left, Dr. Sheinis informed his orthodontic patients where he was going. Under his contract with the Florida Dental Group, the patients and their records belonged to the group. His contract expired on May 31, 1985, but Dr. Toombs asked him to leave the day before his final day for treating patients. Dr. Sheinis felt that Dr. Toombs had the idea that he was trying to take patients away.

   
   

5. After Dr. Sheinis left, no orthodontist replacement joined the group. Dr. Toombs' office continued making appointments for A.K. and she was treated by him in June, July and August.

   
   

   A. K.'s insurance company had paid for her orthodontic treatment plan in advance. She did not ask for return of the money, but neither was it offered. She did not want to travel to Dr. Sheinis' new office and she also felt that she had already paid the group for the services. She anticipated that a new orthodontist would be hired.

   
   

   Dr. Toombs claimed that the orthodontic patients were given the choice of going with Dr. Sheinis, being referred to another orthodontist, or staying with the group until another orthodontist was found. He claims that in some cases, money was refunded to patients who sought treatment elsewhere. He does not make those claims specifically with regard to A. K. and her testimony that the options and possibility of refund were never discussed with her is credible, consistent, and convincing.

   
   

6. The orthodontic treatment rendered by Dr. Toombs to A. K. in June, July and August 1985, was primarily for maintenance, rather than to advance her treatment plan. Ligatures were replaced or re-tied and some parts of the

   appliances were repaired. A new scheme of elastics was developed in the August appointment, which could have advanced her treatment, but was also only intended for maintenance, according to Dr. Toombs.

   
   

   A September appointment was made, but was cancelled by Dr. Toombs' office and another appointment for October was made. That appointment was also cancelled by Dr. Toombs' office.

   
   

7. By September or October the Florida Dental Group was in bankruptcy;

   the office was closed down and the patient files were in the hands of a trustee. Some records are still inaccessible. A. K. attempted to contact the office, but there was no answer. She heard from a friend that Dr. Toombs had left. She called the American Dental Association and was told they did not know his whereabouts. She then returned for treatment to the dentist who had originally referred her for the TMJ treatment, David Feuer, D.D.S., an orthodontist.

   
   

8. A primary purpose of orthodontic treatment is tooth movement. If a patient's treatment is simply maintained, but not advanced for two months, there may not be harm, but minimum acceptable standards of dental practice require that the patient be referred promptly when the treating dentist cannot continue the appropriate treatment plan.

   
   

9. The evidence does not clearly establish Dr. Toombs's lack of competence to appropriately continue A. K.'s orthodontic treatment. Therefore, when Dr. Sheinis left, he had the choice of making a referral and transferring the payment, or pursuing the treatment himself. He did neither.

   
   

   By his own admission, in a response to DPR investigator, Charlene Willoughby (Petitioner's Exhibit #7-AK) Dr. Toombs did nothing more than maintain A. K. orthodontically, by changing ligature ties. His attempt at hearing to explain that course as necessary to undo substandard work by Dr. Shienis is unsupported by any competent evidence.

   
   

   Patient S.C.

   
   

10. Between approximately February 1984, and October 1985, Ralph Toombs provided dental services to patient, S.C. Those services included, among others not pertinent to this proceeding, the fabrication, fitting, and delivery of a maxillary bridge and lower partial denture. In lay terms, this involved basic full mouth reconstruction.

    
    

11. At the time that S.C. began seeing Dr. Toombs he had already had bridge work beginning in 1970. He first saw Dr. Toombs on an emergency basis when he had fractured part of that work.

    
    

12. When reconstruction is done, it is necessary to provide a structure to support the bridge, where the existing teeth are incapable of that support on their own. Two methods of support are a post and core, and pins.

    
    

    Pins are used when there is more existing structure; they are screwed into a tooth. The post and core is used generally when teeth have been endodontically treated (root canal therapy). The post is inserted through the central canal area into the tooth. The post provides more stability.

    
    

    A tooth that has been treated endodontically is devitalized, dry and fragile. The use of pins in such teeth is likely to cause crazing (small

    multiple cracks) or fractures; the support is weakened, and either it fails or causes failure in another site in the structure.

    
    

13. In S.C.'s reconstruction, Dr. Toombs extensively used pins in devitalized teeth, in some instances as many as four or five pins in a single tooth.

    
    

    Dr. Toombs installed a bridge, but it cracked, and he replaced it. Later, shortly after Dr. Toombs closed his office in September or October 1985, S.C. returned to his prior dentist, Steven E. Kiltau, DDS, with a complaint that the porcelain had fractured and that his lower bridge work kept falling out.

    
    

    Dr. Kiltau found the bridge work loose and fractured. There were also bulky margins and open margins, or spaces between the original tooth and the crown, allowing the accumulation of food debris. Dr. Kiltau also suspected that some of the pins had perforated the sides of the teeth. Dr. Kiltau and other dentists who treated S.C., both before and after Dr. Toombs, as well as experts retained by Petitioner, attributed the failure of the structure provided by Dr. Toombs to his inappropriate use of pins.

    
    

    The testimony of these witnesses established uneqivocally that this aspect of the treatment violated minimum standards of performance.

    
    

14. Petitioner did not, however, establish that the bulky and open margins were caused by Dr. Toombs' negligence. Some evidence of decay was apparent in S.C.'s teeth and the witnesses were reluctant to conclude that this was the result, and not the cause of the margins.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction in this proceeding, pursuant to Section 120.57(1), F.S. and Section 455.225(4), F.S.

    
    

16. In a license discipline case such as this, Petitioner has the burden of proving the allegations of its complaints with evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. The complaint regarding treatment of A.K. alleges violations of Sections 466.018, F.S., 466.028(1)(u), F.S., 466.028(1)(y), F.S. and 466.028(1)(bb), F.S., for Respondent's failure to refer A.K. to a subsequent orthodontist or to continue her treatment; for failure to provide the name of a dentist of record in her patient records; for misconduct in the practice of dentistry and for failure to meet minimum standards of performance in the practice of dentistry.

    
    

18. As the records of A.K. placed in evidence in this proceeding are incomplete, it is not possible to conclude that Section 466.018, F.S., requiring such records, or Section 466.028(1)(bb), F.S. have been violated.

    
    

    Petitioner met its burden of proving violations of Sections 466.028(1)(u) and (y), F.S., by Respondent's failure to either refer A.K. or to treat her appropriately himself.

    
    

    Those Sections provide, 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:

    * * *

    (u) Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.

    * * *

    (y) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, . . .

    
    

19. The Administrative Complaint regarding Respondent's treatment of S.C. alleges violations of Section 466.028(1)(y), F.S. for his over-use of pin retention on devitalized teeth, and the appearance of margins in his reconstructions.

The former was proven, while the latter was not.

RECOMMENDATION

Based on the foregoing, it s hereby RECOMMENDED:

That the Board of Dentistry enter a final order, finding Respondent guilty of violations of Sections 466.028(1)(u) and (y), F.S., assessing an administrative fine of $3,000.00, and placing Respondent on probation for two years, with the requirement that he also attend such continuing education courses as the Board finds appropriate. Although this recommended penalty is less than that suggested by counsel for Petitioner, it is still within the guidelines of the Board in Rule 21G-13.005, F.A.C.

DONE and ORDERED this 23rd day of August, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties:

Petitioner, as to A. K.

1. Rejected as unnecessary.

2. Adopted in Paragraph 1.

3. Adopted in Paragraph 3. and 4.

1. Adopted in Paragraph 6.

2. Adopted in Paragraphs 6 and 7.

7 through 10. Rejected as statements of testimony, rather than findings of fact.

11. Adopted in Paragraph 6.

13. through 15. Rejected as statements of testimony rather than findings of fact.

Respondent, as to A. K.

1. Rejected as unnecessary.

2. Adopted in Paragraph 1.

3. Adopted in Paragraph 3. and 4.

1. Rejected as inconsistent with the weight of the evidence. Her continuation was not entirely voluntary; she had paid for the treatment and was not given an alternative.

2. Rejected as unsupported by credible evidence.

3. Rejected as contrary to the evidence.

4. Adopted in Paragraph 5.

5. Rejected as contrary to the weight of evidence.

6. through 15. Rejected as immaterial.

Petitioner, as to S. C.

1. Rejected as unnecessary.

2. Adopted in Paragraph 1.

3. Adopted in Paragraph 10, except that, according to the record, S.C.'s and treatment by Dr. Toombs began in 1984.

1. Adopted in Paragraph 13.

2. through 11. Rejected as statement of testimony, rather than findings of fact.

1. Rejected as immaterial. Other competent evidence established the existence of decay.

2. and 14. Rejected as statements of testimony.

1. Adopted in Paragraph 13.

2. Rejected as a statement of testimony.

3. through 22. Rejected as unnecessary or a statement of testimony. The margins were proven; their cause was not proven.

Respondent, as to S. C.

1. Rejected as unnecessary.

2. Adopted in Paragraph 1.

3. and 4. Adopted in Paragraph 10, except the record establishes that treatment commenced in 1984.

5. through 8. Rejected as unnecessary or immaterial.

1. Rejected to the extent that the finding implies that failure was not due to Respondent's negligence.

2. Adopted in Paragraph 14.

3. through 19. Rejected as unnecessary.

20. Rejected as contrary to the weight of the evidence.

COPIES FURNISHED:

John Namey, Esquire

Department of Professional Regulation 1520 East Livington Street

Orlando, Florida 32803

Ronald M. Hand, Esquire

241 East Ruby Avenue Waterfront Square, Suite A Kissimmee, Florida 32741

William Buckhalt Executive Director

Dept. of Professional Regulation Board of Dentistry

1940 N. Monroe St., Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 88-003566

Orders for Case No: 88-003566