STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0981

)

ALEXANDER BUCHWALD, D.D.S. )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on July 13, 1990, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Chief Trial Attorney

730 South Sterling Street Suite 201

Tampa, Florida 33609

For Respondent: Alexander Buchwald, pro se

3025 Lakewood Lane

Hollywood, Florida 33021 STATEMENT OF THE ISSUES

The issue in this case is whether the license of Alexander Buchwald, D.D.S., (Respondent) should be disciplined based upon actions he is alleged to have taken in his treatment of a patient named Dean Fodera, between August 1986, and June 1987, as more particularly set forth in the Administrative Complaint issued herein on or about January 23, 1989, and the Amendment thereto which was allowed by Order entered on May 16, 1990.

PRELIMINARY STATEMENT

At the hearing, the Department of Professional Regulation (Petitioner) called six witnesses and introduced 11 exhibits. The Respondent did not testify on his own behalf, but he did introduce 4 exhibits.

The Respondent's Motion to Dismiss for Lack of Subject Matter Jurisdiction filed on May 29, 1990, was considered and denied at the commencement of the final hearing. A Notice of Jurisdictional Impropriety was filed on July 12, 1990, the day prior to the commencement of the hearing, and therefore, a ruling on this Notice, which is construed as a Supplemental Motion to Dismiss, was reserved. After consideration, this Supplemental Motion to Dismiss is also

denied. At hearing, the Respondent made an ore tenus Motion to Dismiss for Improper Joinder, which was denied, and a Motion to Dismiss based upon the alleged improper composition of the probable cause panel, a ruling on which was reserved to allow the presentation and consideration of evidence on this point. However, the evidence in the record does not establish that the probable cause panel which considered the investigative report in this matter was improperly constituted, and accordingly, the Respondent's Motion to Dismiss on this point is denied. It is also concluded that an ore tenus Motion to Dismiss which is presented on the day of hearing is untimely. South Broward Citizens for a Better Environment, Inc. v. South Broward Resource Recovery Project, Inc., 502 So.2d 9 (Fla. 1st DCA 1986).

The transcript of the final hearing was filed on July 27, 1990, and the parties were allowed to file proposed recommended orders within ten days thereafter. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a dentist in the State of Florida, having been issued license number DN-00003723.

   
   

2. On November 15, 1982, the Board of Dentistry filed an Order in Case Number 0015545 (DOAH Case No. 82-1292) which approved and adopted a stipulation which Respondent had executed on October 5, 1982, in which he admitted that dental assistants who were employed by him and who were not licensed to practice dentistry in the State of Florida, had, in the course of their employment and with Respondent's knowledge, performed the task of forming orthodontic archwires. Based upon this stipulation, the Board of Dentistry disciplined Respondent's license by imposing a reprimand and assessing an administrative fine in the amount of $5,000.

   
   

3. On or about August 18, 1986, the Respondent rendered treatment to the patient Dean Fodera which included, but was not limited to, orthodontic care for the patient. At the time, Dean Fodera was fourteen years old. Specifically, the Respondent placed fixed appliances, or braces, on Dean Fodera's teeth.

   
   

4. After these appliances had been in place until June, 1987, Respondent determined that they could be removed and replaced with a retainer. As a result, Fodera was seen on June 11, and 30, 1987, at Respondent's dental office for the removal of his braces. However, Respondent did not personally remove Fodera's braces on either visit. While Respondent was present in the office and saw Fodera on the June 11, 1987, visit, the patient's posterior braces (bands and brackets) were actually removed by Robin Crews, a dental assistant employed by Respondent who is not licensed to practice dentistry in the State of Florida. On June 30, 1987, Respondent was not present in his office, and although another licensed dentist, Kenneth R. Scherer, was present in the office, Dr. Scherer did not treat Fodera. Instead, his remaining braces (anterior brackets) were also removed by Robin Crews on June 30, 1987. Dr. Scherer was not aware of the fact that Fodera's remaining braces had to be removed during the June 30, 1987 visit, but rather was under the impression that he was only delivering the patient's retainer. The findings set forth in this paragraph are based upon the testimony of Dean Fodera, as well as that of his parents and the deposition testimony of Dr. Scherer, which is specifically found to be more credible than the testimony of Robin Crews.

5. While in the employ of Respondent from 1985 to 1988, Robin Crews routinely and repeatedly removed fixed appliances, or braces, from patients while Respondent was not present and with his full knowledge.

   
   

6. The removal of fixed orthodontic appliances, such as braces, is an irremediable task, and is not a function that a dentist can delegate to a non- dentist because there is a significant chance of irremediable tooth fractures when braces are removed, or other tooth damage in the removal of adhesive materials.

   
   

7. Respondent received payment by checks dated June 11 and 30, 1987, in the total amount of $205.00 for services performed on these dates for Deane Fodera.

   
   

8. Based upon the testimony of David L. Leever, who was accepted as an expert in orthodontics, Myron Graff, a licensed dentist specializing in orthodontia, and the deposition testimony of Lucas E. Stevens, who is accepted as an expert in orthodontics, it is found that the care and treatment rendered to the patient Dean Fodera by the Respondent between August 18, 1986, and June 30, 1987, failed to meet the minimum acceptable standards in the dental profession.

   
   

9. Specifically, when his braces were removed, Dean Fodera had a remaining overbite of 4mm, required a composite restoration of his maxillary left lateral incisor, and exhibited labioversion of his maxillary left lateral incisor as well as severe mobility and occlusal trauma. Labial root torque of his maxillary left cuspid was also noted in addition to posterior malocclusion. The only form of continuing treatment provided for Dean Fodera by Respondent was a standard Hawley retainer. It was established that a Hawley retainer could not correct this patient's severe mobility and occlusal trauma that was noted at the time.

   
   

10. Respondent's decision to remove orthodontic appliances from Dean Fodera in June's 1987, was premature, absent a continuing treatment plan which could effectively address his remaining dental problems. His premature removal of these fixed appliances, and also his failure to provide an adequate continuing treatment plan constitutes the practice of dentistry below acceptable minimum standards of care.

    
    

11. On October 20, 1988, a probable cause panel met to consider the investigative report in this matter. The members present, Dr. William F. Robinson and Mr. Tom Kraemer, both voted to find probable cause, and a memorandum of finding of probable cause panel was prepared on October 26, 1988. Official recognition was taken of Rule 21G-1.001, Florida Administrative Code, which authorizes a finding of probable cause by majority vote, or two members, of a panel consisting of three members. Thus, the finding of probable cause in this instance was properly made by two members of the probable cause panel. The facts in this case are distinguishable from those in Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1083 (Fla. 4th DCA 1982), wherein the Court found that despite the clear requirements of applicable statutes and rules that there be at least two members on the probable cause panel, one board member and a lay member, an improperly constituted panel consisting of only one board member was convened and found probable cause.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes Since this is a case in which the Petitioner is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to engage in the practice of dentistry, Petitioner has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. As it relates to the evidence adduced at hearing, the Petitioner has charged Respondent with violating Sections 466.028(1)(y),(bb), 466.024, Florida Statutes and Rules 21G- 16.001 through 16.004, Florida Administrative Code, which provide, in pertinent part, as follows:

    
    

14. Section 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:

       * * *

       1. 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 . .

          (bb) The violation or the repeated violation of this chapter, chapter 455, or any rule promulgated

          pursuant to chapter 455 or this chapter; the violation of a lawful order of the board or department previously entered in a disciplinary proceeding .

          Section 466.024 Delegation of duties; expanded functions. --

          1. A dentist may not delegate irremediable tasks to a dental hygienist or dental assistant except as provided by law. A dentist may delegate remediable tasks to a dental hygienist or dental assistant when such tasks pose no risk to the patient. A dentist may only delegate remediable tasks so defined by law or rule of the board. The board by rule shall designate which tasks are remediable and delegable . .

       
       

15. Petitioner has proven, by clear and convincing evidence, that

    Respondent violated these above-cited provisions of Chapter 466, and administrative rules adopted thereunder. As stated in Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989) the standard of clear and convincing evidence to be used in license disciplinary cases

    
    

    requires that the evidence must be found to be credible; the facts to which the witnesses

    testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses

    must be lacking in confusion as to the facts in issue. The evidence must be of such weight

    that it produces in the mind of the trier fact the firm belief of conviction, without hesitancy, as to the truth of the allegations

    sought to be established. 550 So.2d at 116, n.5

    
    

16. The witnesses called in support of the allegations in the Administrative Complaint were clear and convincing in their testimony concerning Respondent's failure to meet minimum standards of performance in his treatment of the patient Dean Fodera. Respondent directed that his braces be removed prematurely, and then failed to pro4ide any adequate or effective treatment plan for his remaining dental condition. The Hawley retainer provided by the Respondent was inadequate and inappropriate for Fodera, given the problems which continued to exist in June 1987, and which were noted by Drs. Graff and Stevens. As such, Respondent has violated Section 466.028(1)(y).

    
    

17. It has also been established, by the requisite degree of proof, that Respondent delegated to Robin Crews the irremediable task of the removal of fixed appliances, or braces, from Dean Fodera. Rule 21G-16.001, Florida Administrative Code, which was in effect in June, 1987, set forth a specific listing of the "only" tasks deemed remediable by the Board of Dentistry in addition to those listed in Section 466.024(1), Florida Statutes. The removal of braces, or fixed appliances, is not listed as a remediable task in either the statute or rule, and therefore, could not be delegated by the Respondent to Robin Crews, a non-dentist, in June, 1987. The currently effective version of Rule 21G-16.001 defines remediable tasks as

    
    

    those intra-oral tasks which do not create unalterable changes in the oral cavity or contiguous structures, are reversible and do not expose a patient to increased risks.

    
    

18. It was shown that Robin Crews regularly carried out similar procedures on other patients, and did so on June 13 an 30, 1987 for Dean Fodera without any supervision from the Respondent. The Respondent was not even in his office on June 30, 1987, and the dentist he left in charge on that day, Dr. Scherer, was not aware of the fact that Fodera was to have his remaining braces removed, and therefore, Dr. Scherer did not perform or supervise this removal on June 30, 1987. The removal of fixed appliances, or braces, is an irremediable task which cannot be delegated by a dentist to a non-dentist since it was not a specifically listed remediable task in the version of Rule 21G-16.001 that was effective in June, 1987. As such, Respondent has violated Sections 466.024(1) and 466.028(1)(bb), Florida Statutes.

    
    

19. In determining the appropriate penalty to be recommended in this case, it is relevant to consider the fact that Respondent has previously been disciplined by the Board of Dentistry for the unauthorized delegation of certain tasks, the formation of orthodontic archwires, to his dental assistants who were not licensed to practice dentistry. In addition, the relevant provisions of the Board of Dentistry's Rule 21G-13.005, Florida Administrative Code, prescribing disciplinary guidelines, should also be considered.

RECOMMENDATION

Based upon the foregoing,, it is recommended that Board of Dentistry enter a Final Order imposing on Respondent an administrative fine of $6,000 and a six month period of suspension, provided however, that prior to its expiration, the Board of Dentistry may terminate this period of suspension and place Respondent

on probation for an additional six months if the Respondent submits documentation f his satisfactory completion of at least thirty (30) hours of continuing education in the area of orthodontics, or as otherwise specified by the Board.

DONE AND ENTERED this 31st day of August, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1990.

APPENDIX DOAH CASE NO. 89-0981

Rulings on the Petitioner's Proposed, Findings of Fact:

1. Rejected as unnecessary.

2. Adopted in Finding 1.

3-4. Adopted in Finding 3.

5. Adopted in Finding 4.

6-8. Adopted in Findings 8-10.

9-10. Adopted in Finding 9.

11. Adopted in Findings 8-10.

While the Respondent filed several post-hearing documents, including a Special Appearance Concerning Jurisdictional Impropriety, a Special Appearance on Constructive Notice and Summation of Facts, and a Special Appearance Objecting To and Rebutting Petitioner's Proposed Recommended Order, none of these documents set forth specific proposed findings of fact upon which specific rulings can be made. They consist largely of legal argument, summations of testimony, and are lacking in any citation to the record, as required by Rule 22I-6.03)(3), F.A.C.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Chief Trial Counsel

730 South Sterling Street Suite 201

Tampa, FL 33609

Alexander Buchwald, D.D.S. 3025 Lakewood Lane

Hollywood, FL 33021

Kenneth E. Easley, General Counsel 1940 North Monroe Street Tallahassee, FL 32399-0792

William Buckhalt, Executive Director Board of Dentistry

1940 North Monroe Street Tallahassee, FL 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO.: 89-0981

ALEXANDER BUCHWALD, D.D.S.,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on November 3, 1990, in Tallahassee, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is included as Appendix A) in the case of Department of Professional Regulation v. Alexander Buchwald, D.D.S., Case No. 89-0981. At the hearing, Petitioner was represented by Bruce D. Lamb, Chief Trial Counsel. Respondent was present and was not represented by legal counsel. Respondent moved the Board of Dentistry to reopen the hearing proceedings in this matter. The motion submitted on behalf of Respondent by legal counsel, whose appearance in this case was limited only to the written Motion to Re-Open Proceedings, was not timely filed with the Board, but was served upon counsel for Petitioner. The motion argues that Respondent did not have competent representation and that the Hearing Officer did not review important evidence.

Having reviewed the Motion and the record in this matter the Board specifically finds that Respondent was originally represented by legal counsel in this matter, but chose to dismiss his attorney during the pendency of theses proceedings. Respondent later consulted with a second attorney and chose not to employ him as legal counsel. Respondent was advised by the Division of Administrative Hearings with regard to the responsibilities of proceeding pro se. Although Respondent proceeded pro se, it is apparent from his various

pleadings that he was receiving some form of legal assistance. Furthermore, Respondent participated fully in an extensive motion practice throughout the hearing process and fully exercised his discovery rights during these proceedings. Respondent appeared at the formal hearing and fully represented himself including cross- examination of witness, submission of evidence, and the raising of appropriate defenses and objections. Respondent was advised by the Hearing Officer of his rights to file a Proposed Recommended Order, but failed to do so. However, he did timely file exceptions to the Hearing Officer's Recommended Order in this case.

It is clear from the record that Respondent fully and competently represented himself in this case. He chose freely to proceed pro se and the Hearing Officer had no authority to refuse Respondent's request to proceed pro se. There is no constitutional or statutory requirement for the Hearing Officer or the Board to assure Respondent representation by legal counsel. For the foregoing reasons Respondent's Motion to Re- Open Proceedings is DENIED.

Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been fully advised in its premises by both parties and by its own counsel, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are approved, adopted and incorporated herein by reference with the following amendments:

   
   

   1. Paragraph 3 of the Hearing Officer's Findings of Facts is amended to delete the final sentence. The finding that Respondent placed fixed appliances or braces on Dean Fodera's teeth is not supported by competent substantial evidence in the record. The only evidence and testimony in the record indicates that a previous treating dentist placed the fixed appliances.

      
      

   2. Paragraph 6 of the Hearing Officer's Findings of Fact is amended to delete The removal of fixed orthodontic appliances, such as braces, is an irremediable task, and is not a function that a dentist can delegate to a non- dentist because...". The foregoing is actually a Conclusion of Law and will be adopted as such. As adopted paragraph 6 shall read, "There is a significant chance of irremediable tooth fractures when braces are removed, or other tooth damage in the removal of adhesive materials."

      
      

2. There is competent substantial evidence in the record to support each Finding of Fact as adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57(1), and Chapter 466, Florida Statutes.

   
   

2. The Hearing Officer's Conclusions of Law are approved and adopted with the addition of the language from paragraph 6 of the Hearing Officer's Findings of Fact as noted above and are incorporated herein by reference.

   
   

3. The Conclusions of Law adopted by the Board are supported by the record in this case.

   DISPOSITION

   
   

   The Board adopts the Hearing Officer's Recommendation that Respondent pay an administrative fine of $6,000.00 and have his license suspended for a period of 6 months. The Board does not choose to exercise the option provided by the Hearing Officer regarding early termination of the suspension. Section 466.028(3), Florida Statutes, explicitly requires a minimum suspension of 6 months for the violation committed by Respondent. The suspension shall take effect 30 days after the effective date of this Final Order. This delay is given for the purpose of permitting Respondent to arrange alternate treatment and care for his patients. The administrative fine is also payable within 30 days of the effective date of this Final Order and should be paid to the Executive Director of the Board of Dentistry.

   
   

   WHEREFORE, it is hereby ORDERED AND ADJUDGED that the Respondent violated Sections 466.028(1)(y) and (bb), Florida Statutes, Rules 21G-16.001 through 16.004, Florida Administrative Code, and Section 466.024(1), Florida Statutes, and Respondent shall therefore be fined the amount of $6,000.00 and shall have his license to practice dentistry in Florida suspended for a period of 6 months.

   
   

   This Final Order becomes effective upon its filing with the Clerk of the Department of Professional Regulation.

   
   

   The parties are hereby notified that they may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a copy of the Notice of Appeal and the appropriate filing fee with the District Court of Appeal within 30 days of the date this Final Order is filed.

   
   

   DONE AND ORDERED this 19 day of February , 1991.

   
   

   DONALD I. CADLE BOARD OF DENTISTRY

   Vice-Chairman

   
   

   CERTIFICATE OF SERVICE

   
   

   I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its Appendixes has been forwarded by certified United States Mail this 25 day of February 1991, to Alexander Buchwald, D.D.S., 3025 Lakewood Lane, Hollywood, Florida 33021 and to Bruce D. Lamb, Chief Trial Counsel, 730 Sterling Street, Suite 201, Tampa, Florida 33609.

   
   

   William H. Buckhalt Executive Director

   APPENDIX B

   (DOAH Case No: 89-0981)

   
   

   Rulings on Respondent's Exceptions:

   
   

   1-3. Not exceptions to any finding or conclusion.

4. Rejected. Record supports finding that procedure complied with requirements of law.

5-7. Not exceptions to any finding or conclusion.

1. Same as #4 above.

2. Rejected. Irrelevant and there is competent substantial evidence in the record to support the Hearing Officer's Finding of Fact set forth in paragraph 2.

3. Accepted. See Findings of Fact in Final Order.

4. Rejected. Not supported by the evidence in the record.

5. Rejected. Goes to credibility of the witnesses.

6. Rejected. Addresses material not in the record.

14-16. Rejected. Goes to credibility of the witnesses and weight of evidence as determined by the Hearing Officer.

17-19. Rejected. Findings of Fact of the Hearing Officer are supported by competent substantial evidence in the record.

1. Not an exception to any finding or conclusion.

2. Rejected. Goes to credibility of the witnesses.

22-23. Rejected. Findings of Fact of the Hearing Officer are supported by competent substantial evidence in the record.

24. Rejected.

25-27. Rejected.

28. Rejected. Irrelevant.

Docket for Case No: 89-000981

Orders for Case No: 89-000981