STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5544
)
PETER KURACHEK, D.M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Sarasota, Florida on May 19 and June 28, 1989.
APPEARANCES
For the Petitioner: David Bryant, Esquire
13015 North Dale Mabry Highway Suite 315
Tampa, Florida 33618
For the Respondent: Salvatore A. Carpino, Esquire
One Urban Centre, Suite 750 4830 West Kennedy Blvd.
Tampa, Florida 33609 STATEMENT OF THE ISSUES
Whether Respondent's license as a dentist in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
PRELIMINARY STATEMENT
On October 13, 1988, Charles F. Tunnicliff, Chief Attorney, for Lawrence A. Gonzalez, Secretary of the Department of Professional Regulation, executed an Administrative Complaint in this case alleging that the Respondent had, during the period June 18 - July 13, 1984, failed to meet the minimum standards of performance in diagnosis and treatment by dentists in violation of Section 466.028(1)(y), Florida Statutes. Respondent thereafter, in writing, disputed the allegations of fact contained in the Administrative Complaint and requested formal hearing.
By letter dated November 7, 1988, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on November 12, 1988, the undersigned set the matter for hearing in Sarasota on February 16, 1989. However, Respondent requested three separate continuances which were granted with the hearing being finally set for May 19, 1989 at which time it was
begun. Upon the stipulation of the parties after completion of Petitioner's case, the hearing was adjourned until June 28, 1989, at which time it was completed.
At the hearing, Petitioner presented the testimony of Morris W. Kemmerer, Respondent's patient in the treatment in question; Dr. Philip M. Davis, II, an expert in general dentistry; and Dr. David R. Smith, also an expert in general dentistry. Petitioner also introduced Petitioner's Exhibits 1 through 7.
Respondent testified in his own behalf and presented the testimony of Dr. Randall M. Carter, an expert in general dentistry, and by deposition, that of Dr. F. David Hemerick, also an expert in general dentistry. He also introduced Respondent's Exhibits A through E.
Petitioner only submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the allegations in the Administrative Complaint, the Respondent was licensed as a dentist in Florida and the Petitioner was the state agency charged with regulating the practice of dentistry in this state.
In June, 1984, Morris W. Kemmerer went to the Respondent, Peter M. Kurachek's, dental office because he needed dental work done and Respondent's office was handy. He was examined on this first visit by the Respondent and told Respondent what he wanted. Respondent went to work right away and within a few minutes of the patient's sitting in the chair, pulled a tooth which had broken and had to come out. Though Mr. Kemmerer had asked Respondent to put him to sleep for the extraction, Respondent did not do so.
Respondent told Mr. Kemmerer what he planned to do as a course of treatment, and advised him of the expected cost and how it could be paid. Mr. Kemmerer claims he did not take a dental history nor did he, at any time, either before or after the work was done, discuss the patient's oral hygiene which was, supposedly, poor. The chart prepared by Respondent on Mr. Kemmerer contains, aside from notations as to work done, only the most basic information, such as allergies and prior medical condition, as well as current status of the mouth. Though minimal, it can be considered a dental history.
After the initial procedure done the first day, Mr. Kemmerer returned to Respondent's office every day for awhile. On his second visit, the Respondent told him he needed a bridge and, though Mr. Kemmerer's memory on the matter is poor, probably told him of the remainder of the course of treatment. The bridge in question was necessary because the tooth Respondent pulled on the first visit was the one to which Mr. Kemmerer's existing bridge was anchored, and extraction of that anchor tooth required Respondent to make another bridge to be affixed to the next sound natural tooth. However, Mr. Kemmerer recalls that the bridge made for him by the Respondent did not fit correctly from the beginning and Respondent had to make several for him before a reasonably comfortable fit was finally achieved. This was done by grinding down Mr. Kemmerer's opposing natural teeth. Even with that measure, however, the fit was never completely correct.
Respondent also made an additional partial denture for Mr. Kemmerer which could never be worn because it didn't fit. When Mr. Kemmerer told
Respondent about this, he tried to fix it but was not able to do so satisfactorily and Mr. Kemmerer suffered an extended period of pain as a result.
Mr. Kemmerer paid Respondent approximately $1,700.00 for the work done and did not see him again after August 9, 1984. Even though the work done was not to his satisfaction, Mr. Kemmerer did not see another dentist because he could not afford to do so. However, at the suggestion of his coworkers, he agreed to see Dr. Philip M. Davis, II, another dentist in Sarasota who, after an examination, told him the work Respondent had done had to be done over. Mr. Kemmerer ultimately contacted the Department of Professional Regulation about the treatment he received from the Respondent and filed a civil suit against Respondent, settling without trial for $3,000.00. The fact that the suit was settled in Mr. Kemmerer's favor has no bearing on the issue of care involved in this hearing and is not considered.
Dr. Davis first saw Mr. Kemmerer as a patient on June 11, 1986 when Mr. Kemmerer presented himself complaining of swelling and pain in a right upper molar, (tooth 4). Upon examination, Dr. Davis found the patient had a partial bridge with crown and observed that the crown margins did not touch the prepared edge of the supporting tooth as they should. His x-rays taken at the time showed Mr. Kemmerer had an infection in the tooth and when he opened it through the crown, he found a space filled with cement, food, and waste, and that the tooth tissue was leathery. All that indicated to him that decay had gotten up under the crown and the base of the tooth had rotted because, in his opinion, the crown edge, (margin), did not properly fit to the tooth base.
Dr. Davis noted that the margins of several crowns prepared by the Respondent several years earlier, were not good fits. Photographs of Mr. Kemmerer's mouth made in August, 1987 and October, 1988, as much as 3 and 4 years after completion of Respondent's work, reveal that at that time the margins on several teeth were substantially open. When Dr. Davis saw Mr. Kemmerer in 1986, he noted that the bridge constructed by the Respondent had been cemented to the abutment teeth which also had open margins.
Regarding the specific teeth in question, photos of tooth 4 show a failure of the margin of the crown to touch the tooth and the preparation thereof. This indicates the crown was not properly fitted to the prepared tooth. It had never fully seated on the tooth and appeared to have been cemented in a suspended position above the tooth instead of being seated down on it. Insertion of a crown such as this one is a routing procedure and is not particularly complex. By not properly seating the crown, the installer, (Respondent), left an open space for saliva to enter and wash out the cement. Acceptable tolerance for a margin of this nature is 40 microns, (40/10,000 in.). On tooth 4, the margin was 2 mm short on the cheek side and 3 mm short on the tongue side. This led to the cement being washed out and to the entry of food and bacteria resulting in decay and infection of the bone. Had the crown been seated properly, it should have lasted for 10 - 20 years or more, absent trauma.
As to tooth 11, examined by Dr. Davis on July 21, 1986, again, the crown margin was found to be well shy of the preparation margin on the tooth.
On the tongue side, the crown was 1 mm short of full seating and was pulled away from the tissue. On the cheek side, the crown was too bulky for the preparation and did not match with a smooth, continuing surface.
When Dr. Davis examined tooth 6 that same day, he found that here, too, the crown was too bulky and the margin did not fit. On the tongue side, it was 1/2 mm short and allowed food and bacteria to get up into an area of the
tooth where the patient could not get it out. Dr. Davis did not measure the degree of separation, if any, on the cheek side. He did, however, find that on tooth 10, the margin was at one point 1/2 mm off and allowed food and bacteria retention.
With regard to tooth 7, Dr. Davis found the margin on the lip side to be excessively heavy, (overbuilt), and on the tongue side, to be 1/2 mm short. In none of these cases were the margins acceptable as they far exceeded the 40 micron tolerance.
These observations were confirmed by an examination of Mr. Kemmerer conducted at the request of the Board of Dentistry on May 13, 1987 by Dr. Davis
R. Smith, an expert in general dentistry and the Board's consultant. Dr. Smith found the bridge built by Respondent to be poorly fitted around the preparation line of the teeth to which it related. Decay was present in every tooth to which Respondent had fitted a crown. The bridge had come loose, the crowns were not fitted properly, and the margin lines were short, open, and/or overcontoured. On each tooth involved, there was some combination of all those defects. When describing the margin shortage on some of Respondent's work on Mr. Kemmerer, Dr. Smith characterized it as, "ridiculously far off minimum standards." Dr. Smith's measurements were made visually and consisted of his running a probe over the margin seam which, in each case, he found to be excessive. A space of 50 microns can barely be felt with a probe and a space of
30 to 40 microns can barely be seen with the naked eye. Here, the margins were so poor that the space could be visually seen and entered with a probe. Both the experts opinioned that Respondent's seating of the crowns in question, so as to leave extensive gaps at the margins, was below standards.
Respondent contends that at the time of installation, the crowns fit properly, and his expert, Dr. Carter, urges that a 1987 review of work done in 1984 cannot determine whether the margins at the time of installation were correct. This is because:
Many things could have transpired
in the patient's mouth in the interim such as changes in bone and tissue structure
or a natural alteration of the appliance;
Chemical changes in the mouth can erode tooth structure from beneath the margin, and
tooth structure can be removed by cleaning.
Respondent also contends that if the margins had been as poor from the beginning as indicated, the patient would have suffered pain and sensitivity associated with them. The evidence clearly demonstrates he did.
Both Drs. Davis and Smith were of the opinion that, aliunde the margins, Respondent's office practice and record keeping were poor. In Dr. Davis' opinion, when a patient such as Mr. Kemmerer, of advanced age and obviously poor dental hygiene, comes in, the dentist must do a complete examination and charting to look for gum disease, cavities, occlusion and malocclusion, and evidence of cancer, and the examination should include full mouth x-rays. He must also talk with the patient and see what the patient perceives as his needs. If these are not great, the preliminaries need not be extensive, but in his opinion, to start work immediately, as Respondent did here, was improper since there was no emergency to justify disregard of a full
work-up. Under the circumstances, he feels Respondent should have done a complete examination, determined what the patient needed, explained it all to the patient, and lectured on proper oral hygiene instead of jumping right in to do the crown and bridge work. It is found that would be the appropriate course for him to have followed.
It must be noted that Mr. Kemmerer came in to Respondent's office indicating he was in pain. Respondent examined him and identified the cause of the pain. He corrected that problem and, in addition, began additional crown and bridge work which, while profitable, was not shown to be unnecessary. The procedures described by Drs. Smith and Davis are unquestionably the clinically appropriate things to do. While Respondent did not do all the things described as appropriate, he did identify his patient's immediate problem and correct it. Either he or his assistant advised the patient to practice better dental hygiene. He also incorporated his findings into his records on this patient.
In that regard, the charting practices taught in school are appropriate for a school environment, but what is considered acceptable in private practice is not necessarily as detailed as in school. Respondent's expert is of the opinion that a dentist should advise his patient thoroughly on home care but that advice need not be noted in the records. He has found that records have become verbose, time consuming, and generally a pain in the neck, and, more importantly, record keeping such as is suggested, takes time away from caring for the patient. Legal action requires the dentist to protect himself, but in Dr. Carter's opinion, one cannot put everything on a chart; only those things which support patient care. While perhaps not conforming to optimum standards of practice, Respondent's actions in regard to record keeping and procedure choice cannot be said to be materially below standards. The formulation of the treatment plan is the primary responsibility of the dentist.
During their examinations, both Drs. Davis and Smith noted that Mr. Kemmerer had lost a lot of enamel from the teeth occluding with the bridge. It appeared this was caused by Respondent's extensive grinding of the natural tooth material down to the dent in in order to get a proper occlusion with the bridgework he had installed, instead of removing the bridge and adjusting it to properly meet the natural teeth, or making another which did fit. Neither expert considered the worn condition of Mr. Kemmerer's teeth to be the result of natural grinding or bruxism. In any case, Respondent could have polished the rough enamel so as to reduce the resultant abrasion and he failed to do so. Respondent's actions here were, in the opinion of the Board's experts, below practice standards, and it is so found, notwithstanding Dr. Carter's testimony tending to exculpate Respondent's actions.
Dr. Carter claims that Respondent's use of porcelain in the bridge, which, since it is harder that normal tooth tissue, will wear it down, was appropriate. He also asserts that if the patient did not wear his tooth 2 - 4 partial, he would still have had the abrasion problem because all chewing force being applied on the front teeth would wear them down. On balance, however, the evidence supports more clearly a finding that Respondent knowingly ground Mr. Kemmerer's natural teeth down to achieve the fit rather than taking appropriate corrective action when he found the bridge did not fit properly and he admits to this.
The bridge in issue was made of metal and porcelain. When Respondent inserted the upper bridge, it was necessary for him to adjust the occlusions and to do so, he ground down the opposing lower natural teeth so the uppers and lowers would fit harmoniously. He denies that his placing of the upper teeth caused excessive wear on the lower teeth. The reduction in mass of the lower
teeth was the direct result of Respondent's grinding down the natural teeth to fit to the false teeth on the bridge.
Respondent presented the testimony by deposition of Dr. Hemerick, accepted as an expert in general dentistry. Dr. Hemerick was also offered as an expert in the field of prosthodontics. Petitioner accepted the witness as an expert in general dentistry but objected to him being classified as an expert in the field of prosthodontics. The objection is well taken. Though the witness is retained as an expert to evaluate dental performance for an insurance company which provides malpractice insurance to many dentists, his stated educational background and experience in the specialized field do not qualify him as "expert" in that specialty.
He can, however, appropriately state his opinion as to the Respondent's treatment of Mr. Kemmerer in its totality and concluded that Respondent's treatment met accepted standards. Specifically, he stated that margins, as here, which fit acceptably when installed, can spread and open due to mouth activity over a period of years. What this witness, as well as Dr. Carter overlooks, however, is the excessive thickness of the device at the margin where it abuts the actual tooth. While the margin may open with time, construction material cannot grow on the appliance to make it thicker than when installed, and this, according to Petitioner's experts, was a basis for claiming Respondent's work was below standard in addition to the open margins. However, it is found that the likelihood of the margins opening as much as appears here, by normal mouth activity, is remote.
Respondent has been a practicing dentist since 1966 when he got his degree in Kentucky. Over two separate periods, he has practiced in Florida for approximately 14 years. Mr. Kemmerer came to him initially for repair or replacement of a very old, (1943), denture which replaced front teeth 8 and 9 and which was not reparable. Respondent and Mr. Kemmerer discussed possible alternative treatments but both agreed treatment could not be postponed for this demanding cosmetic problem. It seems Mr. Kemmerer was in the real estate profession and needed teeth, and according to Respondent, wanted to leave Respondent's office that day with replacement teeth in his mouth. Respondent agreed to provide them.
However, before starting treatment, Respondent determined from his examination of Mr. Kemmerer that due to long neglect of his dental hygiene, major treatment was necessary. Mr. Kemmerer wanted a patch job, Respondent alleges, and he refused to do that. Before work was started, however, Respondent left the room, leaving to his dental assistant the task of advising Mr. Kemmerer of the proposed treatment plan. Respondent had charted Mr. Kemmerer's mouth and instructed his assistant to go over the proposed work with him and give him a price for the work to be done. The assistant was to answer any questions Mr. Kemmerer might have.
When Respondent returned to the treatment room, Mr. Kemmerer had a lot of questions to ask. His main concern was whether a new bridge would last. Respondent went over the proposed procedures with him and told him that with good home care, the appliance should last for the rest of Mr. Kemmerer's life.
After Mr. Kemmerer met with Respondent's assistant, he elected to have the bridge made. Thereafter, Respondent had his assistant take impressions of Mr. Kemmerer's upper and lower jaw. Respondent anesthetized the upper area to be worked on and began the crown preparation on teeth 4, 6, 7, 10, and 11. He also adjusted the incisal edges on the abutting lower teeth, poured the upper
and lower models, made a plastic temporary device for the upper area, and inserted it.
There appears to be some dispute over whether Respondent made and utilized study models in the preparation of Mr. Kemmerer's appliance. He claims he did and there is little evidence to the contrary. Certainly, models were made and whether these constitute the required models has not been defined.
It was obvious to Respondent early on that Mr. Kemmerer did not practice good dental hygiene. When Mr. Kemmerer returned to the office with stains on the temporary after only a short period of insertion, Respondent became concerned over his dental practices. However, it was not so bad a situation as to cause the needed repairs to be deferred and in Respondent's opinion, it was safe to begin the restorative treatment regardless of the fact that Mr. Kemmerer required periodontal treatment as well.
It also appeared to Respondent that Mr. Kemmerer was an individual who was very susceptible to pain. It is because of this he believes that if all the margins had been open from the beginning, as alleged in the Complaint, Mr. Kemmerer would have sustained a lot of pain right away. At no time, however, during treatment, and after insertion of the permanent appliance did Mr. Kemmerer complain to him of pain. Respondent also contends that according to the records kept by Dr. Davis, when Mr. Kemmerer went to him in 1986, he complained of suffering pain for only 2 days.
Respondent claims to have constructed in excess of 1,000 partial bridges in his 20 year career. He agrees that the margins as they now exist in Mr. Kemmerer's mouth are not acceptable and are excessive. However, he contends, these conditions did not exist when he placed the bridge and there were no open margins. It is his practice, he alleges, to return for reconstruction any bridge which does not fit properly and if at insertion this bridge had had the margins it now has, he would have done it over at no charge. He claims he saw Mr. Kemmerer's bridge on five separate occasions after it was inserted and claims never to have seen any open margins. However, Mr. Kemmerer's record shows that he only came back twice after the bridge was inserted and Respondent, commenting on the alleged lack of "follow-up" stated that after the bridge was completed and inserted, Mr. Kemmerer didn't come back. It would appear Respondent's memory is somewhat less than complete.
Respondent also sees no problem in his ability to complete Mr. Kemmerer's work within 4 weeks from initial visit. When comparing that with the other expert's estimate of 6 to 9 months for completion of a proper treatment for this patient, Respondent claims the longer period is for rehabilitation of the entire mouth which, he asserts, he did not propose or agree to do. It is found that Respondent's operation is one of direct response to a particular problem, and he is not a provider of broad scale dental care.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In the Administrative Complaint filed herein, Petitioner seeks to discipline Respondent's license to practice dentistry in this state alleging several actions on his part which, it claims, individually and severally, constitutes malpractice, in violation of Section 466.028(1)(y), Florida
Statutes, (1987). This provision permits the Board to take disciplinary action against a licensee when it can show that the licensee has:
[been] 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
The burden to establish the Respondent's substandard performance is upon the Petitioner which, to prevail, must demonstrate by clear and convincing evidence that Respondent's professional activity falls within the purview of the statute standard. Ferris v. Turlington, 510 So.2d 292, 295 (Fla. 1987).
Petitioner alleges as grounds for its conclusion that Respondent's performance constitutes misconduct that:
he failed to determine what the patient's preexisting condition was before beginning treatment;
he began complex restorative treatment on a patient who demonstrated very poor oral hygiene and failed to give proper hygiene instruction to the patient;
he failed to incorporate study models in the course of treatment;
he failed to provide substantive diagnostic work follow-up;
teeth on which he inserted crowns had unacceptable and excessive open margins;
the crowns were improperly installed resulting in decay being allowed to take place up under it; and
his installation resulted in unnecessary damage to the lower teeth which occluded with those artificial teeth on the bridge he constructed.
The above cited allegations can be categorized into two classes; those which are substantial and those which can better be classified as
judgemental. Among the latter are those dealing with the Respondent's beginning a major restorative program on a patient whose mouth was in poor condition without first clearing up, or at least improving, that condition. Respondent claims that when Mr. Kemmerer came to him he indicated he wanted cosmetic restoration immediately because of his need for a proper appearance in his real estate business. This is believable and well may have occurred, but the weight of the evidence indicates that while Respondent could have done some of the work, and could have presented Mr. Kemmerer with an acceptable appearance, before constructing and inserting the permanent bridge, he should have treated the gum problems and done a full work up since there was no emergency condition to justify disregarding it. Further, the evidence shows that Respondent delegated the majority of the hygiene counseling he should have done to his assistant.
Petitioner has, however, failed to show that Respondent did not incorporate study models in the course of his treatment, and that he failed to provide substantive diagnostic work follow- up. In fact, Petitioner has failed to define the latter to a degree where it can be understood.
On the other hand, Petitioner has clearly shown that the margins between the crowns and the preparations on the teeth in question were improperly and not professionally fitted. Not only were the margins open to an extent considered unacceptable within the profession, but they appear to have been that way from the beginning. Respondent's contention that they all opened since insertion due to factors beyond his control is rejected and unsupported by the evidence.
There is other evidence of improper installation, however, in the thickness of the crown wall. Assuming, arguendo, that the margins had originally been acceptable and had, as claimed, opened in the several years since insertion of the bridge, this does not explain the fact that, according to Petitioner's experts, the wall of the crown was too thick and bulky for the preparation and did not match with a smooth, continuing surface. Surely the thickness of the crown could not increase by the accretion of metal over the years. Consequently, it is evident that the crown did not properly match the preparation when installed, as alleged by Petitioner.
Further, the evidence indicates that on almost every tooth, installation of the crown by the Respondent allowed the cement to wash out and food and other debris to get up under the crown causing decay to the underlying tooth. It may be accepted that one or two teeth might legitimately have this problem, but when it appears, as here, that almost every tooth to which Respondent had fitted a crown had the problem, then the only reasonable conclusion is that the crowns were improperly applied. This is the conclusion of Petitioner's experts who opined that if properly done, the work should have lasted for between 10 and 20 years.
One of the experts, Dr. Smith, characterized the crown work done by Respondent as "ridiculously far off minimum standards." This is the independent conclusion drawn here as well, notwithstanding Dr. Hemerick's opinion to the contrary.
The installation of the crowns on the bridge were not the only example of Respondent's inferior performance, however. The evidence clearly demonstrates, and Respondent admits, that when the occlusion between the artificial teeth on the bridge and the natural lower teeth was not satisfactory, instead of adjusting the artificial teeth to meet properly with Mr. Kemmerer's natural teeth, Respondent ground away substantial portions of the natural teeth to make them fit the bridge. This is, in the opinion of the Board's experts, below practice standards and it is independently so concluded here, Dr. Carter's exculpatory opinion notwithstanding.
Taken together, then, it is concluded that the Petitioner has satisfied its burden to establish by clear and convincing evidence that the Respondent's treatment of Mr. Kemmerer, as alleged in the Administrative Complaint, failed in the many particulars described to meet the minimum standards of performance when measured against generally prevailing peer performance.
Though in this case Petitioner's counsel recommends, "Revocation or suspension of Respondent's licensure, restriction of the Respondent's practice, imposition of administrative fine, issuance of reprimand, placement of the Respondent or probation and/or any other relief that the Board deems appropriate," the guidelines for penalties outlined in Rule 21G-13.005(2),
F.A.C. should be consulted and, where appropriate, followed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent's license to practice dentistry in Florida be suspended for a period of six months and he be fined $3,000.00, and that when reinstated, he be placed on probation, under such terms and conditions as the Board may prescribe, for a period of three additional years, these actions to run concurrently with the penalty, if any , imposed by the Board in its action, when taken, in its allied cases involving Respondent, heard under DOAH case numbers 89-1240 and 89-1241.
RECOMMENDED this 21st day of November, 1989, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearing The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearing this 21st day of November, 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5544
The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by Petitioner in this case.
1. & 2. Accepted and incorporated herein.
3. & 4. Accepted and incorporated herein.
5. & 6. Accepted and incorporated herein.
& 8. Accepted and incorporated herein.
COPIES FURNISHED:
David Bryant, Esquire
13015 North Dale Mabry Highway Suite 315
Tampa, Florida 33618
Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Blvd.
Tampa, Florida 33609
Kenneth E. Easley, Esquire General Counsel
DPR
1940 North Monroe Street Tallahassee, Florida 32399-0792
William Buckhalt Executive Director Board of Dentistry
1940 North Monroe Street Tallahassee, Florida 32399-0792
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO.: 88-5544
LICENSE NO.: DN 0005429
PETER KURACHEK, D.M.D.,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statute, on April 28, 1990, in Ft. Lauderdale, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit A) in the case of Department of Professional Regulation v. Peter Kurachek, D.M.D., Case No. 88-5544. At the hearing, Petitioner was represented by Nancy M. Snurkowski. Respondent was present and was represented by legal counsel. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.
EXCEPTIONS
Respondent filed five (5) exceptions to the Findings of Fact in the Recommended Order of the Hearing Officer. The exceptions were filed by mail on January 16, 1990. The Recommended Order had been filed fifty-six (56) days earlier on November 21, 1989. The Board's rules permit the filing of exceptions within twenty (20) days of service of the Recommended Order. (See Rules 21G- 1.026(1) and 28-5.404, Florida Administrative Code.) The Board determined that
each of the exceptions should be summarily rejected as being untimely. Redfern vs. Department of Professional Regulation, 498 So.2d 1313 (Fla. 1st DCA 1986); Wherefore, the five (5) exceptions filed by Respondent on January 16, 1990 are hereby rejected without consideration of the merits of the claims therein.
FINDINGS OF FACT
The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.
There is competent, substantial evidence to support the Board's findings.
CONCLUSIONS OF LAW
The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.
The Hearing Officer's Conclusions of Law, with the exception of the final sentence on page seventeen (17) of the Recommended Order, are approved and adopted and are incorporated herein by reference. The aforementioned sentence is rejected and deleted from the Conclusions of Law of the Board as not being supported by the evidence in the record of this case.
There is competent, substantial evidence to support the Board's conclusions.
The Board approves and adopts the Hearing Officers recommendation that Respondent: have his license to practice dentistry in Florida suspended for a period of six (6) months, that Respondent be fined three thousand dollars ($3,000), that Respondent upon reinstatement of licensure be placed on probation for a period of three (3) years under such terms and conditions as the Board may prescribe. However, the Board concludes that the Hearing Officer is bereft of any authority to link the penalty in this cause with the penalties in other causes pending before the Division of Administrative Hearing (DOAH). There being no evidence or Order in the record indicating that this cause has been consolidated with any other cause, the Board specifically rejects that portion of the recommendation for penalty that suggests this penalty should run concurrently with any penalty set forth in Case Numbers 89-1240 and 89-1241.
WHEREFORE, it is ORDERED AND ADJUDGED: that the Respondent violated Section 466.028(1)(y), Florida Statutes, and Respondent shall have his license to practice dentistry in Florida suspended for a period of six (6) months with said suspension to take effect immediately upon completion of any other currently existing suspension and upon reinstatement, Respondents license shall be put on probation for a period of three (3) years during which time Respondent shall complete the comprehensive general dentistry continuing education program at the University of Florida, College of Dentistry. All costs of probation are to be paid by Respondent. Furthermore, Respondent shall pay an administrative fine of three thousand dollars to be paid within thirty (30) days to the Executive Director of the Board of Dentistry.
This Final Order becomes effective upon its filing with the Board Clerk.
The parties are hereby notified that they may appeal this Final 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 a Notice of
Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE AND ORDERED this 11th day of June, 1990.
BOARD OF DENTISTRY
DONALD I. CADLE, D.M.D. VICE CHAIRMAN
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 14th day of June, 1990, to Peter Kurachek, D.M.D., c/o Salvatore A. Carpino, One Urban Centre, Suite 750, 4830 West Kennedy Boulevard, Tampa, Florida 33609, and hand delivered to Bruce D. Lamb Senior Attorney, Department of Professional Regulation, 730 South Sterling Street, Suite 201, Tampa, Florida 33609.
William H. Buckhalt, C.P.M. Executive Director
Board of Dentistry
================================================================= DISTRICT COURT OPINION
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
PETER KURACHEK, D.M.D.,
Appellant,
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
Consolidated
v. Case Nos. 90-01974 and 90-01975 DEPARTMENT OF PROFESSIONAL
REGULATION,
Appellee.
/ Opinion filed September 20, 1991.
Appeal from the Department of Professional Regulation, Board of Dentistry, State of Florida.
Salvatore A. Carpino, Tampa, for Appellant.
Lisa S. Nelson, Appellate Attorney, Dept. of Professional Regulation, Tallahassee, for Appellee.
FRANK, Judge.
The appellant, Peter Kurachek, D.M.D., has sought review of two administrative orders, issued by the Board of Dentistry (Board), suspending his license to practice for one year, followed by a three year period of probation, and the imposition of a $6,000 fine. We have considered each of Kurachek's points an appeal and affirm the Board's determinations with the exception of the fines.
Kurachek's challenge to the Board's imposition of $3,000 fines for violations of section 466.028(1), Florida Statutes, is meritorious. In its complaints, the Department of Professional Regulations alleged various acts of improper conduct which occurred in the period between June, 1984 and May, 1986. The legislature amended section 466.028(2)(c) in 1986 with an effective date of October 1, to increase the amount of the maximum administrative fines assessable from $1,000 per violation to $3,000 per violation. See Ch. 86-291, Section 18, Laws of Fla. The violations which Kurachek committed, however, occurred prior to the effective date of the 1986 amendment. Thus, the maximum sustainable fine is $1,000 per violation. Florida Patient's Compensation Fund v. Scherer, 558 So.2d 411 (Fla. 1990).
Accordingly, we affirm the Department's findings and conclusions but reverse for the assessment of fines not to exceed $1000 per violation.
CAMPBELL, A.C.J., and ALTENBERND, J., Concur.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
STYLE: Peter Kurachek, D.M.D. v. Dept. of Professional Regulation
COUNTY: Hillsborough
APPELLATE CASE NO: 90-01974 & 90-01975
TRIAL COURT CASE NO: 88-5544, 89-1240 & 89-1241
This cause having been brought to this Court by appeal and after due consideration, the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that further proceedings be had in said cause in accordance with said opinion of this Court and with the rules of procedure and the laws of the State of Florida.
WITNESS the Honorable Jack R. Schooner, Chief Judge of the District Court of Appeal of the State of Florida, Second District, and seal of the said Court at Lakeland, Florida on this day.
November 18, 1991
William A. Haddad
Clerk, District Court of Appeal of Florida, Second District
| Issue Date | Proceedings |
|---|---|
| Nov. 21, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 11, 1990 | Agency Final Order | |
| Nov. 21, 1989 | Recommended Order | Dentist's personal poor work and his overdelegation of counseling to paraprofessional constitutes below minimum standards work and is basis for discipline |
