STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0646
)
JOHN W. DELK, D.D.S., )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0647
)
JOHN W. DELK, D.D.S., )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-3313
)
JOHN W. DELK, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on March 21, 22, 23, 1990, and May 4, 1990 in Orlando, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: John Namey, Esquire
1520 East Livingston Street Orlando, Florida
For Respondent: Thomas Gordon, Esquire
320 North Magnolia Avenue, Suite 5-B Orlando, Florida
STATEMENT OF THE ISSUES
Whether Respondent committed various violations of Chapter 466, Florida Statutes, as alleged in the Administrative Complaints.
PRELIMINARY STATEMENT
On November 1, 1988, Petitioner filed a two count Administrative Complaint and a separate one count Administrative Complaint both charging Respondent with various violations of Chapter 466, Florida Statutes. One January 30, 1989, Respondent disputed the allegations in the Complaint and, requested a formal hearing under Chapter 120. This matter was referred to the Division of Administrative Hearings on February 8, 1989 and, subsequently assigned to this Hearing Officer. The cases were consolidated and set for hearing. Respondent filed a motion to dismiss or strike which was denied by Order dated September 20, 1989. On December 22, 1988, Petitioner filed a third Administrative Complaint which Respondent disputed. This matter was referred to the Division on June 23, 1989 and assigned to a different Hearing Officer. Pursuant to an order to show cause, these matters were consolidated and set for hearing.
Subsequent to extensive prehearing discovery and motion practice, this matter was heard over a three-day period in March, 1990. Due to the illness of the principal complaining witness in Case No. 89-0646, permission was granted to take her deposition which was accomplished on April 12, 1990. The hearing was concluded on May 4, 1990.
At the hearing, the Petitioner offered six exhibits which were admitted in evidence as to Case No. 89-0646 and presented the testimony of three dentists; Doctors P. Anthony Pirkle, Thomas Hand, and Malcolm Henley; and the deposition to perpetuate testimony of J. R. Nine exhibits were admitted as exhibits for the Respondent; and Donald Berman, Jacqueline Hansen, Doctor Hart Long and the Respondent testified. Petitioner offered five exhibits and the testimony of patient, R.J.W.; and three experts in dentistry, Doctors William F. Robinson, Lewis S. Earle, and David Boers as to Case No. 89-647. The Respondent presented the testimony of Doctors Bruce D. Manne and P. Anthony Pirkle and testified himself. Respondent also offered three exhibits in evidence. For Case No. 89- 3313, three exhibits were admitted for the Petitioner; and it presented the testimony of patient, P.F., and three dentists, Doctors Wayne M. Bennett, Joan Houng Ming Chen, and Mac R. Barnes. Respondent offered one exhibit, testified in his own behalf and offered the testimonies of Jacqueline Hansen and Larry Brown.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Petitioner Department of Professional Regulation is the state agency charged with regulating the practice of dentistry pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes.
At all times material to the allegations contained within the Administrative Complaint, Respondent was a licensed dentist in the State of Florida having been issued license number DN005I06.
FINDINGS PERTAINING TO CASE NO. 89-0646
The Respondent provided dental services to patient J.R. from about March 27, 1984 until about April 23, 1985.
During this treatment period, the Respondent employed several dental assistants in his dental office.
The Respondent allowed his dental assistants to assist in the preparation of the teeth for temporary crowns. All actual grinding of the teeth was done by Dr. Delk.
Donald Berman, dental assistant, did make temporary crowns at the dental office. He also took the impressions for making the temporary crowns and would adjust occlusions on the temporary crowns in the lab or with a hand piece. Dr. Delk's practice utilized nine (9) operatories, half of which would be used when he was the only dentist present on the premises.
The Respondent is the dentist of record for patient J.R. and is responsible for the dental services provided by his authorized delegates.
During the course of treatment, the Respondent performed root canal therapy for patient J.R. on tooth number 5 and placed bridges on teeth number 5, number 3 through number 14 and number 18 through 30.
During the period of treatment, J. R. complained of soreness in the jaw area on several occasions.
The six unit bridge covering teeth number 3 through number 8 on patient J.R. placed by Dr. Delk was loose, and all the abutment teeth had either recurrent or residual caries.
Dr. Malcolm Henley, a subsequent treating dentist, testified that upon his examination of patient J.R. in December 1985, he found that the bridge was loose and all of the abutment teeth had either recurrent or residual caries.
Tooth number 5 had been inadequately endodontically treated. A proper endodontic treatment should fill the canal, and this procedure was 50 percent complete. Tooth number 5 was inadequately filed to the apex of the root, and that as such the treatment provided was below minimally acceptable standards in the community.
Teeth number 9 through number 13 had defective gingival margins when examined in December 1985 and by subsequent examining dentists. It would have been unusual for these defective margins to have occurred naturally in the period of time between April 1985 and her presentment to Dr. Henley in December 1985.
Tooth number 10 showed radiological evidence of a periapical abscess. Petitioner's expert, Dr. Pirkle, examined J.R. in 1987 and found radiological evidence of a periapical lesion on tooth number 10 and did not observe any indication of root canal therapy on tooth number 10. Dr. Henley, a subsequent treating dentist, observed radiological of a periapical lesion on his radiographs taken on December 6, 1985. The periapical lesion was possibly present on those taken by Dr. Delk, but in 1984 may not have been abscess. Dr. Delk had indicated to patient J.R. that two of her teeth were in need of root canal therapy, but only one root canal was performed, and the other tooth was
capped but not endodontically treated. There is no notation in the records of Respondent that root canal therapy was started or completed on tooth number 10.
The crown on tooth, number 18, the abutment tooth, was loose when examined by two experts, and the fit contributed to recurrent decay. When examined in 1987, the tooth had broken away due to intervening decay.
Teeth number 20 and number 22 had defective gingival margins with a one millimeter gap as to each of the teeth at the margin. The predominant cause could be a combination of the quality of the original work done and intervening caries.
The patient, J.R., experienced clicking and popping in the right temporomandibular joint. Whether temporomandibular pain was directly attributable to the services performed by Respondent is inconclusive. Dr. Pirkle, an expert called by the Petitioner, indicated that due to the design, the function of the teeth apparently stressed the muscles which would cause the symptoms described by the patient. He further felt that the joint as a result of the treatment would be compromised for an indefinite period of time. Dr. Hand, an expert called by Petitioner, found that the occlusal relationship of the situation was below the accepted standard of care, and the occlusal relationship may well be a predisposing factor to the recurrent temporal- mandibular joint problem. The occlusal concept was so extreme that the cementation with temporary cement was not a factor. Dr. Hand indicated that the occlusal concept is stressful and would induce trauma to the teeth, the musculature and the temporal-mandibular joint, and that the design of the prosthesis is below the minimally acceptable dental standard. Dr. Henley found anterior displacement posterior condylar displacement, pain in the joints and audible clicks. Dr. Hart Long, an expert called by the Respondent, found pursuant to his examination of the patient "a good strong click" in both joints. Dr. Long indicated that the occlusal relationship may have been compromised by proceeding with a full arch restoration rather than proceeding a quadrant at a time and that preceding in such a fashion would put the patient at a greater risk of having a temporal-mandibular joint disorder. However, prior to treatment by Dr. Delk, several molars were removed and the patient chewed only with her front teeth. This condition could also cause the disorder.
All of the experts presented were in general agreement that the design of the prosthedonic devices placed by Dr. Delk was such that due to the lack of embrasure space, the appliance would render home care extremely difficult to floss, which would lead to tooth decay.
The standard of care in general as to the placement, design and structure of the prosthedonic devise was below minimally acceptable standards in the community because of the presence of open margins around the crowns, failure to remove active decay, improper occlusal contact and recognition, and failure to properly treat pathological condition prior to placement of the crown and bridge.
FINDINGS OF FACT FOR CASE NO. 89-0647
On or about December 3, 1984, the Respondent examined and took x-rays of the patient, R.J.W. The patient was concerned about tooth number 13, which was sensitive to hot and cold liquids.
The Respondent advised the patient that tooth number 13 required a new crown. Crown preparation on number 13 for patient R.J.W. was accomplished on or about January 19, 1985.
Patient R.J.W. subsequently went to another Dentist, and root canal therapy was subsequently performed on tooth number 13.
Examination revealed visible caries on the dentition after the prep at Dr. Delk's office. Dr. David Boers, a general dentist, testified that he saw the patient, R.J.W., based on a referral from Dr. Cowle. Dr. Boers testified that it was necessary for him to prep the tooth so that it was clean for a restoration. Dr. Boers indicated that he found visible decay on tooth number 13 and that he would not have expected to see such decay on a tooth that had been prepped on the 17th or 18th day of January.
Respondent failed to adequately remove dental caries in making his full crown preparation of tooth number 13. Leaving the decay on the tooth increased the chance of failure of the restoration. Failure to remove the decay was below the minimally accepted standard of care in the community.
The patient indicated that the tooth lacked sensitivity and that he asked Dr. Delk and his assistant if there was a way to test with an electric probe tester to see if the tooth is alive.
Dr. Delk sought to determine the pulp vitality of tooth number 13 by performing radiographs, thermal tests, hot and cold, percussion and palpitation. An electronic pulp test was not performed.
Dr. Lewis Earle, Petitioner's expert, found radiographic evidence indicative of suspected pathology.
FINDINGS OF FACT FOR CASE NO. 89-3313
That on or about July 18 1984, patient P.F. presented herself to Respondent's dental center for dental services.
At all times material to the allegations contained in the Administrative Complaint, the Respondent was the dentist of record for the patient, P.F.
On or about Jul ,8, 1984, Joan Chen, D.D.S., at the direction or request of Respondent, began crown preparation on patient P.F.'s teeth number 18, number 19, number 30 and number 1, during the initial visit.
The treatment rendered by Respondent consisted of root canal therapy on teeth number 19 and number 30, and placement of crowns on teeth number 18, number 19, number 30 and number 31.
Treatment provided P.F. by Respondent as the dentist of record failed to meet the minimum standards of diagnosis and treatment by failure to complete endodontic treatment on patient's teeth number 19 and number 30.
The patient indicated that at the time of her initial visit she was told she would need two root canals, one on each side.
Dr. Delk had told the patient of this need and gave the patient an estimate for services.
A person with a "certificate" started the drilling for the root canal, and Dr. Delk completed it.
After the teeth were drilled, Dr. Delk offered to extract the teeth for the stated reason that her mouth was too small to accommodate them.
The endodontic treatment on teeth number 19 and number 30 were never completed.
The failure to complete endodontic treatment was beneath the standard of care in the community. It enhanced the possibility of tooth loss due to the involvement of the bifurcation.
A permanent crown was placed over tooth number 19, which was fractured.
Tooth number 19 had a violation of the bifurcation which showed "absolutely no dental skill at all". There was junk "piled" down to the bifurcation and a permanent crown placed over it. Tooth number 30 was also perforated.
According to the pre-operative x-ray, this was a good healthy tooth.
No treatment called for a permanent crown to be placed, and the tooth was left in that condition.
The chart did not reflect the patient was ever informed of the perforation and that the minimal acceptable practice would be to inform the patient.
The capping of the tooth after perforation was beneath the minimal standard of care.
The patient first learned of the perforation of the tooth from Dr. Buljevic, a subsequent treating dentist in Chile.
There was a level of awareness by both the Respondent and his staff of the perforation of at least one of the teeth according to the testimony of Jacqueline Hansen on July 18, 1984.
Dr. Delk was aware of the perforations which were done in this case.
Dr. Delk did not note in his chart the perforations or any attempt to notify the patient of the perforations.
CONCLUSIONS OF LAW AS TO CASE NO. 89-064E
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
The Petitioner has the burden to prove, by clear and convincing evidence, the violations of Chapter 466, Florida Statutes alleged in the administrative complaints issued against Respondent. Ferris v. Turlington, 5-10 So.2d 292 (Fla. 1987).
That all times relevant to these proceedings the Respondent was a registered dentist as that term is used pursuant to Chapter 466, Florida Statutes.
Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.028(1)(aa), Florida Statutes, by delegating professional responsibilities to a person when a licensee delegating such responsibility knows or has reason to know that such person is not qualified by training, experience or licensure to perform them. Rule 21G-16.005, Florida Administrative Code, provides for those tasks which are remedial tasks delegable to dental assistants. The rule provides in relevant part that making impressions for study casts which are not being made for the purpose of fabricating any intra-oral appliances, restorations or orthodontic appliance with the exception of making impressions to' be used for opposing models; and making of impressions for the purposes of making temporary crowns do not constitute a delegable task pursuant to Rule 21G- 16.005. Further, the making of impressions as testified to by patient J.R. would also be violative of the above rule, but was not proven by clear and convincing evidence.
Respondent further violated 466.028(1)(aa), Florida Statutes, and Rule 21G-16.005 by allowing his dental assistants to adjust occlusions and seat temporary crowns. The aforementioned rule allows dental assistants only to fabricate temporary crowns and bridges intra-orally which shall not include any adjustment of occlusions or opposing dentition; the adjustment of even temporary crowns for occlusal purposes is violative of the rule and statute. Further, according to the testimony of J.F., occlusal adjustments were made to the permanent crowns by dental assistants.
Rule 21G-16.005(3)(b), Florida Administrative Code, allows the fabrication of temporary crowns by a dental assistant, if the fabricated temporary crowns or bridges are done in a laboratory and under direct supervision. In this instance, Respondent allowed the fabrication to take place by a dental assistant who did so in a laboratory in his office.
CONCLUSIONS OF LAW AS TO CASE NO. 89-0647
Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.028(1)(y), Florida Statutes, by failing to meet the minimum standards of care as recognized by the prevailing peer community by:
Failing to adequately remove dental caries in
making his full crown preparation of tooth number 13, and
Leaving visible decay present on tooth number 13.
It has not met its burden of proof on the issue of failure to utilize the necessary judgment, techniques or instruments to diagnose pulp necrosis or to refer to a practitioner who could diagnose the same.
CONCLUSIONS OF LAW AS TO CASE NO. 89-3313
Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.208(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance by:
Failing to complete endodontic treatment on patient's tooth number 19.
Failing to complete endodontic treatment on patient's tooth number 30.
Placement of a permanent crown over fractured tooth number 19.
Perforation of tooth number 30.
By failing to inform the patient of the condition or to note it in his chart.
It is further found that the Respondent cannot avoid responsibility for his actions in light of Section 466.018, Florida Statutes, which provides that each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patient regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary rendering such treatment at the direction or request of or under the supervision of such dentist of record.
Dr. John W. Delk was the dentist of record for patient P.F. when the treatment was rendered.
Any attempt to disclaim responsibility based on the performance of services by another dentist is unsupported by the record, but even if, assuming arguendo, it was supported by the record, it does not excuse Dr. Delk's actions based upon Section 466.018, Florida Statutes, which places responsibility on the dentist of record.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the, Department of Professional Regulation, Board of
Dentistry, enter its final order finding Respondent guilty of Count I and not
guilty of Count II as to Case Nos. 89-0646; guilty of the allegations contained in Case Nos. 89-0647 and 89-3313; imposing a fine of $500 each for Case Nos. 89- 0646 and 0647 and a fine of $1000 for Case No. 89-3313; suspending the Respondent's license for two years; and placing Respondent on probation for 24 months subsequent to the expiration of the suspension period, conditioning reinstatement of Respondent's license to practice dentistry to such reasonable conditions as the Board may require. The suspension period reflects the consideration of Rule 21G-13.005, Florida Administrative Code, which provides the following be considered: (a) the severity of the offense, (b) the danger to the public, (c) the number of repetitions of offenses or number of patients involved, (d) the length of time since the violation, (e) the number of times the licensee has been previously disciplined by the Board, (f) the length of time the licensee has practiced, (g) the actual damage, physical or otherwise caused by the violation and the irreversibility of the damage, (h) the deterrent effect of the penalty imposed, (i) the effect of the penalty upon the licensee's livelihood, (j) any efforts of any rehabilitation by the licensee, (k) the actual knowledge of the licensee pertaining to the violation, (l) the attempts by the licensee to stop or correct the violation or refusal by the licensee to correct or stop the violation, (m) related violations against licensee in another state, including findings of guilty or innocence penalties imposed and penalties served, (n) penalties imposed for related offenses under Sections 2 and 3 above, and (o) any other relevant mitigating or aggravating factor under the circumstances.
The offenses are severe since they have harmed three different patients, and Dr. Delk has previously been disciplined for improper delegation. The record does not indicate any efforts of rehabilitation by the Respondent, and he denied actual knowledge of the damage caused to P.F. in spite of, the fact that it was apparent.
DONE AND ENTERED this 26th day of September, 1990, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
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 26th day of September, 1990.
APPENDIX TO RECOMMENDED ORDER
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioner's Proposed Findings of Fact As to Case No. 89-0646
Accepted: Paragraphs 1,2,3,4,5 (in substance), 6 (in substance), 8, 9 (in
substance), 10, 15 (in substance),17, 18, 19, 20, 21(1) (in part), 21(2)(in
substance), 22 (in substance) ,23 (in substance), 24 (in substance), 26 (in
substance), 27 (in substance), 28, 29 (in part)
Rejected as not proven by clear and convincing evidence: paragraphs 7, 11, 12, 13, 14, 16 (argument), 21(1) (in part), 25 (in part)
As to Case No. 89-0647
Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 9, 14, 15 (in substance)
Rejected as not proven by clear and convincing evidence: paragraphs 8, 10, 11, 12, 13, 16 and 17, 18, 19, 20 and 21 (duplication)
As to Case No. 89-3313
Accepted: 1, 2, 3, 4, 5, 6 (in substance), 7 (in substance), 8, 9, 10, 11,
12, 13, 14, 15, 16-34 (incorporated in substance), 35 (in substance), 36, 37,
38, 39, 40, 41, 42 (in substance), 43, 44, 45, 46, 47
Respondent's Proposed Findings of Fact As to Case No. 89-0646
Respondent's recommended findings contained in 169 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation of the testimony of the
witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected.
As to Case No. 89-0647
Respondent's recommended findings contained in 129 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected.
As to Case No. 89-3313
Respondent's recommended findings contained in 248 numbered paragraphs (followed by a summary of the facts numbered A through Y) have been carefully reviewed and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected.
COPIES FURNISHED:
John Namey, Esquire 1520 Livingston Street
Orlando, FL 32803
Thomas Gordon, Esquire
320 North Magnolia Avenue Suite 5-B
Orlando, FL 32801
William Buckhalt Executive Director
Department of Professional Regulation Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
Kenneth E. Easley General Counsel
Department of Professional Regulation Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
| Issue Date | Proceedings |
|---|---|
| Jun. 08, 1992 | Objection to Extension of Time and Motion to Strike and Motion for Evidentiary Hearing filed. |
| Sep. 26, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 25, 1991 | Agency Final Order | |
| Sep. 26, 1990 | Recommended Order | Dentist improperly delegated responsibilities to assistants' negligent in endodontal treatment of three patients; fine and suspension recommended. |
BOARD OF DENTISTRY vs THOMAS ELLIOTT WORSTER, 89-000646 (1989)
DEPARTMENT OF HEALTH, BOARD OF DENISTRY vs ROY HART, DDS, 89-000646 (1989)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs JOSEPH A. GAETA, JR., D.D.S., 89-000646 (1989)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs RANDALL WEISEL, D.D.S., 89-000646 (1989)
