STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6004

)

RUSSELL ERNEST DUKE, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on April 25, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: Russell Ernest Duke, D.D.S., Pro se

4125 South Cleveland Avenue Fort Myers, Florida 33907

STATEMENT OF THE ISSUES

Whether the Respondent's license to practice dentistry in Florida should be revoked, suspended, or otherwise disciplined, based upon the following allegations: that a diagnosis of patient P.U. was below the minimum acceptable standards; that the treatment recommended by the Respondent would have exploited the patient for financial gain.

PRELIMINARY STATEMENT

The Petitioner, Department of Professional Regulation, filed an Administrative Complaint before the Board of Dentistry alleging that the Respondent, Russell Ernest Duke, D.D.S., had violated state law in his capacity as a dentist. The Petitioner seeks to have disciplinary sanctions imposed upon the license of the Respondent.

The Administrative Complaint was filed by the Department on November 3, 1988. In an Election of Rights Form signed November 25, 1988, the Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. The hearing was originally scheduled for January 19, 1989, but was continued until April 25, 1989, to allow the Petitioner the

opportunity to take the deposition of the complainant, P.U., who presently resides in California.

During the hearing, the Petitioner presented the testimony of one witness, and submitted four exhibits. One of the exhibits was the deposition testimony of the patient, P.U. The deposition of Kevin M. Larkin, D.D.S., was taken just prior to hearing, and was accepted as a post-filed exhibit. The Respondent testified in his own behalf, recalled the Petitioner's expert witness, Dr.

Smith, and offered three exhibits. All of the exhibits were admitted into evidence, including the exhibits attached to the depositions of P.U. and Kevin

M. Larkin, D.D.S.

A transcript of the proceedings was filed with the Division of Administrative Hearings on May 11, 1989. At hearing, the Respondent waived his opportunity to submit proposed findings of fact, and the Petitioner was given twenty days to file a Proposed Recommended Order from the date of the transcript filing. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent, Russell Ernest Duke, D.D.S., was a licensed dentist in Florida, and held license number DN 0007124. The Respondent was employed as a dentist at sunbelt Dental Center.

   
   

2. On or about July 2, 1986, at the sunbelt Dental Center located in Sarasota, Florida, the Respondent performed an examination on the teeth of P.U., a new patient who had responded to the Center's advertisement regarding a teeth cleaning and dental checkup for nine dollars and ninety-five cents.

   
   

3. During the Center's promotion on cleanings and checkups, the Respondent maintained his regular patient schedule of eighteen patients a day. In addition, he performed examinations on patients who responded to the advertisement.

   
   

4. X-rays were taken during the examination of the patient P.U. An explorer was used to probe and check the patient's teeth, along with the Respondent's visual examination. While the examination was being conducted, the Respondent would relate the result of his examination to his dental hygienist, Michelle Caldwell, who would chart the results on the patient record

   
   

5. After the examination, the patient P.U. was told by the Respondent that she needed several fillings. An estimate of one hundred and eighty dollars (Petitioner's Exhibit A, Deposition of P.U.) was given to the patient. It was recommended that she obtain fillings in the following areas: tooth number 1 on the biting surface of the tooth occlusal; tooth number 3 on the occlusal and lingual areas; tooth number 16 on the occlusal surface; tooth number 17 on the occlusal surface; and tooth number 19 on the mesal, occlusal, distal and facial surfaces.

   
   

6. On September 23, 1986, Kevin M. Larkin, D.D.S., examined the teeth of the patient P.U. During this examination, Dr. Larkin did not find any indication of carious lesions on any tooth other than tooth number 19. It was Dr. Larkin's opinion that the distal area of tooth number 19 had the start of a carious lesion. A watch was placed on this tooth, but a filling was not recommended at this stage in the patient's treatment plan. The patient was

   requested to return in six months for another examination, and a review of her treatment plan.

   
   

7. During Dr. Larkin's initial examination, he noted that the patient had heavy staining from tobacco use. The patient chart, which is attached to Dr. Larkin's deposition, notes heavy staining in most of the same areas which had been indicated in the Respondent's examination as areas in need of fillings. Calculus deposits were also noted in Dr. Larkin's patient record during the patient's two visits.

   
   

8. On October 19, 1987, David R. Smith, D.D.S., examined the patient P.U. at the request of the Department of Professional Regulation.

   
   

9. During his examination, Dr. Smith found that there was surface stain on the occlusal pit on tooth number 1. There were little grooves on the biting surface of the tooth. During the visual examination, the stain in this area appeared to be caries. However, an exploration in the area with a fine-tipped explorer revealed that there was no indication of caries on this tooth. Tooth number 1 was merely pitted and stained, as reflected in the patient's record, which is Petitioner's Exhibit 4.

   
   

10. Tooth number 3 had a small pit filling in the area described as in need of a filling by the Respondent. In Dr. Smith's opinion, there was no need for a new filling to be placed in that area.

    
    

11. Tooth number 16 was found to be stained, but there was no decay.

    
    

12. Tooth number 19 had a broken amalgam restoration. In Dr. Smith's opinion, this tooth was definitely defective, and the prior restoration needed replacement.

    
    

13. The Respondent was correct in his diagnosis that a filling was needed by the patient P.U. in tooth number 19. The Respondent misdiagnosed tooth number 1, but the condition of the tooth gave all indications that caries existed in the area recorded by the Respondent. This was a "false cavity" which required the removal of soft matter within the tooth crevice, which was deeper than is normally expected. Discovery of the false cavity would require more inspection than what was completed during the general examination agreed upon by the dentist and patient during this initial visit.

    
    

14. The Respondent's diagnosis of decay on tooth numbers 3, 16, and 17 which he determined were in need of restorative work, was the result of incompetence or negligence. The problem in these areas was staining, not tooth decay. The diagnosis was below the minimal acceptable standards of diagnosis for general practitioners of dentistry in Florida. The ability to properly diagnosis whether a tooth has decay or non-carious staining is a fundamental aspect of the practice of general dentistry.

    
    

15. The Respondent's receptionist gave the patient P.U. a price quote for the treatment suggested by the Respondent. However, the treatment was never undertaken, and no exploitation of a patient for financial gain occurred. The problems in diagnosis in this case could have occurred as a result of a number of factors: an improper notation of stains as caries by the dental hygienist, a superficially performed initial examination, or the use of an explorer that was not sharp enough to confirm that the visual determination that caries existed was actually non-carious staining. There were no facts presented to demonstrate

    that the misdiagnosis was created to exploit the patient for the Respondent's financial gain.

    
    

16. Dr. Smith, the Department of Professional Regulation's independent expert witness opined that the misdiagnosis was not done with the intention to defraud the patient.

    
    

17. The Respondent was employed by sunbelt Dental Center on a salaried basis, and was not required to encourage treatment beyond what he deemed was necessary in his professional opinion as the examining dentist.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceedings. Section 120.57(1), Florida Statutes.

    
    

19. Section 466.028, Florida Statutes (1986), empowers the Board of Dentistry to revoke, suspend, or otherwise discipline the license of the Respondent if he is found guilty of any of the acts enumerated in Section 466.028(1), Florida Statutes (1986).

    
    

20. A proceeding to discipline a license is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). In such contests, the Petitioner has the burden and must prove by clear and convincing evidence that the Respondent committed the violations set forth in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

21. The Respondent in this case has been charged with two separate violations: 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 under Section 466.028(1)(y), Florida Statutes (1986); and having exploited a patient for financial gain, under Section 466.028(1)(n), Florida statutes (1986).

    
    

22. The evidence adduced at hearing demonstrates, by clear and convincing evidence, that a misdiagnosis occurred on tooth numbers 3, 16 and 17. This misdiagnosis could not be explained by the exercise of reasonable professional judgment. Mistaking calculus, pitting, and staining for tooth decay after a visual examination, an exploration, and x-rays on these particular teeth, was below the minimum acceptable standards of diagnosis for general practitioners of dentistry in Florida. As a result, the Respondent is guilty of a violation of Section 466.028(1)(y), Florida Statutes.

    
    

23. There was no competent evidence presented to prove by clear and convincing evidence that the misdiagnosis was committed for the purpose of exploiting the patient for the financial gain of the Respondent. Testimony to the contrary was given by the Respondent. The Petitioner's own independent, expert witness opined that the Respondent just missed the diagnosis, and that it was not his intent to defraud the patient. Accordingly, the Respondent is not guilty of this violation.

    
    

24. In mitigation, the Respondent offered as an explanation for the misdiagnosis, the large numbers of new patients seen by him in addition to his regular patients during sunbelt Dental Center's promotion of cleanings, examinations and x-rays for nine dollars and ninety-five cents. However, the

    Respondent takes full responsibility for his actions, or the actions of any employees, which may have assisted in the creation of a misdiagnosis.

    
    

    Section 466.028(2), Florida Statutes (1986), provides in pertinent part:

    
    

    When the board finds any ... 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. Revocation or suspension of a license.

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

    3. Issuance of a reprimand.

    4. 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.

    5. Restricting the authorized scope of practice.

       
       

       Rule 21G-13.005, Florida Administrative Code, sets forth the following disciplinary guidelines which are applicable to this case:

       
       

       1. Unless relevant mitigating factors are demonstrated the Board shall always impose a reprimand and an administrative fine not to exceed $3,000.00 per count or offense when disciplining a licensee for any of the disciplinary grounds listed in subsection (2) or (3) of this rule. The reprimand and administrative fine is in addition to the penalties specified in subsections (2) and

(3) for each disciplinary ground.

* * *

1. When the Board finds a ... licensee

   ... has committed any of the acts set forth in section 466.028, Florida statutes, it shall issue a Final Order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines:

   * * *

   (bb) Being guilty of incompetence. The usual action of the Board shall be to impose a period of probation, restriction of practice, suspension, and/or revocation... (cc) Being guilty of negligence... The usual action of the Board shall be to impose

   a period of probation, restriction of practice, and/or suspension...

   * * *

2. Based upon consideration of ... mitigating factors, present in an individual case, the Board may deviate from the penalties recommended in subsection ...(3) above. The Board shall consider as ... mitigating factors the following:

1. The severity of the offense

2. The danger to the public;

3. The number of repetitions of offenses or number of patients involved;

4. The length of time since the violation;

* * *

(f) The length of time the licensee has practiced;

* * *

1. The deterrent effect of the penalty imposed;

2. The effect of the penalty on the licensee's livelihood;

3. Any efforts of rehabilitation by the licensee;

* * *

(o) Any other mitigating ... factor under the circumstances.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the Board of Dentistry enter a Final Order finding that the Respondent, Russell Ernest Duke, D.D.S., is guilty of one violation of Section 466.028(1)(y), Florida Statutes (1986).

   
   

2. That the penalties assessed against the Respondent include a mitigation of the penalties under Rule 21G-13.005, Florida Administrative Code.

   
   

3. That the Respondent receive a reprimand and an administrative fine of

   $1,000.00.

   
   

4. That the Board of Dentistry enter a finding that the Respondent is not guilty of a violation of Section 466.028(1)(n), Florida Statutes (1986).

DONE and ENTERED this 27th day of June, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6004

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted.

3. Accepted. See HO #1 and #2.

4. Accepted. See HO #5.

5. Accepted. See HO #6.

6. Accepted. See HO #6.

7. Accepted. See HO #7.

8. Accepted. See HO #6.

9. Rejected as to tooth number one. Contrary to fact. See HO #13. The rest of paragraph 9 is accepted. See HO #14.

10. Accepted. See HO #8.

11. Reject that the diagnosis was consistent with Dr. Larkin's. See HO #6 and #12. Accept that Dr. Smith's diagnosis was different than the Respondent diagnosis. See HO #13 and #14.

12. Accepted.

13. Accepted. See HO #5 and #15.

14. Rejected. Contrary to fact. See HO #17.

15. Rejected. Speculative. Conjecture.

16. Rejected. Speculative. Conjecture. Contrary to fact. See HO #17.

COPIES FURNISHED:

Michael A. Mone', Esquire Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Russell Ernest Duke, D.D.S. 4125 South Cleveland Avenue Fort Myers, Florida 33907

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

William H. Buckhalt, Executive Director Florida Board of Dentistry

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0765

Docket for Case No: 88-006004

Orders for Case No: 88-006004