STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NOS. 89-5273

) 89-6492

MICHAEL ALBERT, D.D.S., ) 90-5801

) 90-5802

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled consolidated cases on July 10 and 11, 1991, in Boca Raton, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Senior Attorney

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Salvatore A. Carpino, Esquire

Suite 1010

One North Dale Mabry Tampa, Florida 33609

STATEMENT OF THE ISSUE

As to Case No. 89-5273, whether Respondent committed the offenses set forth in the Amended Administrative Complaint dated December 28, 1989, and, if so, the penalties that should be imposed.

As to Case No. 89-6492, whether Respondent committed the offenses set forth in the Administrative Complaint dated October 31, 1989, and, if so, the penalties that should be imposed.

As to Case No. 90-5801, whether Respondent committed the offenses set forth in the Administrative Complaint dated January 18, 1990, and, if so, the penalties that should be imposed.

As to Case No. 90-5802, whether Respondent committed the offenses set forth in the Administrative Complaint dated March 9, 1990, and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent, Michael Albert, is a dentist licensed by Petitioner to practice dentistry in the State of Florida. Each of these four cases alleges certain dealings by Respondent with a certain patient and each alleges that Respondent committed violations of the laws regulating the practice of dentistry in the State of Florida during the course of those dealings.

The Amended Administrative Complaint filed in Case No. 89-5273 alleges certain facts involving Respondent's treatment of a patient who will be referred to as S.D. Based on those dealings, Respondent is alleged to have violated the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances. It is also alleged that Respondent violated the provisions of Section 466.028(1)(m), Florida Statutes, by failing to maintain adequate dental records.

The Administrative Complaint filed in Case No. 89-6492 alleges certain facts involving Respondent's treatment of a patient who will be referred to as

E.M. Based on those dealings, Respondent is alleged to have violated the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances.

The Administrative Complaint filed in Case No. 90-5801 alleges certain facts involving Respondent's treatment of a patient who will be referred to as

H.F. Based on those dealings, Respondent is alleged to have violated the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances.

The Administrative Complaint filed in Case No. 90-5802 alleges certain facts involving Respondent's treatment of a patient who will be referred to as

L.M. Based on those dealings, Respondent is alleged to have violated the provisions of Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or a third party; the provisions of Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; the provisions of 466.028(1)(bb), Florida Statutes, by utilizing the services of auxiliary personnel before a dentist has issued a prescription for the services of a dental hygienist; and the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances.

These four disciplinary cases were consolidated for formal hearing.

At the formal hearing, Petitioner presented the following witnesses: L.M., S.D., H.F., Dr. George C. Karr, Dr. Anders K. Finnvold, and Dr. Michael D. Flax. Petitioner also presented testimony from the following by deposition: E.M., Dr. Joseph LaViola, Dr. Martin Staub, Dr. Edward F. Gonsky, and Dr. Clare Garner.

Drs. Karr, LaViola, and Staub are practicing dentists in the State of Florida and each was accepted as an expert witness in the field of general dentistry. Dr. Karr gave expert opinions as to Respondent's treatment of L.M. and of H.F. Dr. LaViola gave expert opinions as to Respondent's care of S.D. and of L.M. Dr. Staub gave expert opinions as to Respondent's care of E.M. Dr. Finnvold is a practicing dentist who examined H.F. after Respondent had examined her. Dr.

Garner is a practicing dentist who S.D. consulted after her treatment by Respondent. Dr. Flax is a practicing dentist who specializes in the field of endodontics and who provided certain care for S.D. following Dr. Garner's examination of S.D. Dr. Gonsky is a practicing dentist who L.M. consulted after her examination by Respondent and after she had received certain recommendations as to a course of treatment from a periodontist who practiced in the same office facility as Respondent. Petitioner introduced nine exhibits, eight of which was accepted into evidence and one of which was withdrawn as an exhibit.

Respondent presented the testimony of Dr. Rupert Bliss and of Dr. Frederick

J. McFall. Both Dr. Bliss and Dr. McFall are practicing dentists and each was accepted as an expert witness in the field of general dentistry. In lieu of the testimony of the Respondent, the parties stipulated as to what his testimony would be if he had testified. Respondent introduced one exhibit, which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Respondent, Michael Albert, was engaged in the general practice of dentistry in the State of Florida. Respondent is the holder of license number DN0009815, which was issued by Petitioner and which authorizes him to engage in the practice of dentistry in the State of Florida. His office, known as "9 to 9 Family Dental Centre" 1/ , was located at 7015 Beracasa Way, Boca Raton, Florida 33433.

   
   

   CASE NO. 89-5273 - PATIENT S.D.

   
   

2. Patient S.D. is a female who was born November 6, 1950. S.D. went to Respondent for the first time in May 1987, for a general examination and cleaning.

   
   

3. S.D. had her four front upper teeth (teeth 7, 8, 9, and 10) capped when she was between 12 and 14 years of age. The cap on one of those teeth had been chipped and had begun to flake, and S.D. wanted that crown replaced. Respondent recommended to S.D. that she have those four caps replaced to maintain a match- up in color and also recommended that she have three other teeth (teeth 12, 14, and 31) capped because those teeth had open margins. S.D. knew that Respondent's recommendation to have teeth 7, 8, 9, and 10 recapped was based solely on aesthetic considerations. S.D. concurred with the recommendations as to teeth 7, 8, 9, and 10, and S.D. agreed to allow Respondent to perform the work that he had recommended on those teeth as well as the recommendations he made as to teeth 12, 14, and 31. Respondent took x-rays of S.D. and ultimately capped the seven teeth he had identified.

4. S.D. was uncertain as to the order in which Respondent performed this work. Respondent's records reflect that S.D. visited Respondent on May 13, 1987, and on May 21, 1987, and that during those visits the Respondent capped teeth 7, 8, 14, and 31. Respondent's records further reflect that S.D. visited Respondent on May 28, 1987, and on June 15, 1987, and that during those visits the Respondent capped teeth 9, 10, and 12.

   
   

5. S.D. had no complaints about the work performed by Respondent until she began to develop pain in a tooth that Respondent had capped. She returned to Respondent who replaced the crown on that tooth. The pain that S.D. had experienced went away after the crown was replaced, but S.D. had lost confidence in Respondent. Consequently, S.D. went to another dentist when it was time for her six month checkup.

   
   

6. S.D. visited Dr. Clare Garner on March 28, 1988. Dr. Garner was of the opinion that S.D. needed a root canal and a new crown on tooth 31, that she needed a new post and core on tooth 7, and that she needed a root canal on tooth

1. S.D. did not return to Dr. Garner for follow-up care.

   
   

   1. S.D. visited Dr. Michael Flax for the first time on April 4, 1988. During subsequent visits in April and May of 1988, Dr. Flax performed root canal therapy on teeth 7 and 31. S.D. later experienced pain in tooth 10. Dr. Flax performed an apicalectomy on tooth 10 and determined that tooth 10 had a fracture at the apex which he believed was caused by an oversized post being placed inside of the tooth. Dr. Flax did not know who placed the post. S.D.'s last visit with Dr. Flax was on September 8, 1988. Dr. Flax recommended a general dentist to "take care of her crowns". 2/

      
      

   2. There was no competent, substantial evidence that the initial crowns done by Respondent had any open margins.

      
      

   3. Respondent used a panorex x-ray together with bite-wing x-rays in performing his work on S.D. There are some areas that one can see on a periapical x-ray that one cannot see on a panorex x-ray. Likewise, there are areas that one can see on a panorex x-ray that one cannot see on a periapical x- ray. There was dispute among the experts as to whether Respondent should have also used a periapical x-ray in performing his work on S.D. Petitioner's experts clearly preferred to use periapical x-rays. The greater weight of the evidence, however, is that a panorex x-ray can provide sufficient detail when used with the bite-wing x-rays. There was no evidence that the original panorex x-ray upon which Respondent based his diagnosis had insufficient detail. The record failed to establish by clear and convincing evidence that Respondent's use of the panorex x-rays and the bite-wing x-rays fell below minimum standards of care.

      
      

   4. Dr. Flax testified that Tooth #7 should have been pulp tested for vitality before any further prosthetics were placed onto the tooth. However, he did not testify that the failure to pulp test Tooth #7 for vitality fell below minimum standards.

      
      

   5. Dr. Flax also testified that another tooth (which was not identified by number) should have been retreated with a root canal before a crown was placed on top of it. Dr. Flax did not testify that the failure to perform this root canal prior to placing the crown fell below minimum standards.

   6. Dr. Flax also testified that there was a crack in the apex of tooth #10 due to an incorrectly placed or incorrectly sized post within the tooth. He did not testify that the placing of the post fell below minimum standards and he did not know whether Respondent placed the post.

      
      

   7. Symptomatic periapical abscesses can develop at any time. The record fails to establish by clear and convincing evidence that there was a periapical abscess that existed at the time Respondent treated S.D. or that the failure to either treat or diagnosis any abscess was below acceptable standards of care. The record fails to establish by clear and convincing evidence that the root canals performed by Dr. Flax were necessary because of substandard treatment by Respondent.

      
      

   8. There was no testimony that the records maintained by Respondent were inadequate.

      
      

      CASE NO. 89-6492 - PATIENT E.M.

      
      

   9. E.M. is a female who 73 years of age when she first visited Respondent on April 14, 1988. The initial visit was prompted by pain from an abscess. Respondent performed root canal therapy on E.M.'s teeth 18 and 26.

      
      

   10. Between April 14, 1988, and October 5, 1988, Respondent fitted E.M. with a complete denture on her upper arch and with a bridge on her lower. The upper denture placed by Respondent did not fit correctly. On a subsequent visit, Respondent did a chair side reline of E.M.'s upper denture. There was disagreement among the expert witnesses as to whether the chair side reline was appropriate since E.M. was an edentulous patient. This conflict is resolved by finding that the chair side reline performed by Respondent did not fall below minimum standards of care.

       
       

   11. There was a substantial and significant personality disagreement between E.M. and Respondent and his staff. E.M. was unhappy with the services performed by Respondent and complained that the upper plate did not fit correctly even after the chair reline. As a result of this disagreement, E.M. refused to return to Respondent for follow-up care to adjust her dentures. Although there was testimony that Respondent should have been able to better fit E.M.'s upper denture initially, the greater weight of the evidence and the more persuasive expert testimony is that follow-up care is important for the proper fitting of dentures. Dentures have to be adjusted on the average eight times before the fit is proper and the normal break-in period for dentures is between two and six months. E.M.'s refusal to submit to follow-up treatment contributed in large part to the dissatisfaction she had with the dentures fitted by Respondent.

       
       

   12. Although E.M. complained of pain, she had not seen any dentist for over two years. At the time she was examined by Dr. Martin Staub, Petitioner's expert, on February 17, 1989, she was still able to wear the dentures that Respondent had prepared for her. Dr. Staub found that the denture adaptation was poor in the post-dam area causing the denture to slip and to have insufficient suction. Dr. Staub found that the denture finish was rough and inconsistent due to excess pieces from the reline adhering to the buccal portion of the denture and being too thick in the palatal area. Despite these findings, Dr. Staub testified that he considered Respondent's performance as a dentist had fallen below minimum standards of care only in that he should have been more patient with E.M. and that he should have been more caring and compassionate. 3/

   13. Dr. Staub's report reflected a finding that there were open margins on teeth 19, 27, and 31. During his cross examination, he admitted that the tooth he reported as being tooth 27 could have been another tooth since Respondent's records reflect that tooth 27 had been extracted. Consequently, there would not have been a margin on tooth 27. Respondent placed the crowns on E.M.'s teeth 19 and 31 with temporary cement because Respondent anticipated that she would require periodontal treatment due to her poor oral hygiene. There was a dispute among the expert witnesses as to whether the margins that Dr. Staub observed were caused by substandard treatment by Respondent. This conflict is resolved by finding that the evidence fails to clearly and convincingly establish that these margins were the result of substandard care by Respondent. These margins could have resulted from causes that should not be attributed to Respondent.

       For example, there was testimony that the margins could have resulted from the temporary cement washing out or by natural changes in E.M.'s mouth.

       
       

   14. Petitioner failed to establish that the dental care and treatment rendered E.M. by Respondent fell below minimum standards of care.

       
       

       CASE NO. 90-5801 - PATIENT H.F.

       
       

   15. H.F. is a female who was born April 6, 1970. H.F. resided in Atlanta, Georgia, at the time of the formal hearing, but she resided in Boca Raton, Florida, with her family when Respondent examined her. H.F. was examined for the first time by Respondent on August 20, 1987.

       
       

   16. On August 2, 1988, H.F. returned to Respondent for a checkup and cleaning. Respondent diagnosed cavities in H.F.'s teeth numbers 3, 14, 15, 18, 20, 29, and 31, and presented H.F. with a treatment plan requiring all seven teeth to be filled and called for amalgam restorations. In making his diagnosis, Respondent took x-rays of her teeth, visually inspected her mouth, and probed her teeth with the use of an explorer.

       
       

   17. H.F. did not return to Respondent to have her teeth filled. On August 19, 1988, H.F. went to Dr. Anders K. Finnvold, her mother's dentist, for a second opinion. Dr. Finnvold conducted a thorough examination of H.F. Dr. Finnvold examined a copy of the x-rays that Respondent had taken of H.F., visually inspected her mouth and probed her teeth with the use of an explorer. Dr. Finnvold found no cavities. On October 12, 1989, Dr. Finnvold examined H.F. for the second time and again found no cavities.

       
       

   18. On August 2 or 3, 1990, Dr. George C. Karr, one of Petitioner's expert witnesses, examined H.F. and found clinical decay on teeth numbers 2, 3, 14, 15, and 18. Dr. Karr did not find any cavity on H.F.'s teeth numbers 20, 29, and

1. Dr. Karr considered H.F. to have poor oral hygiene. Dr. Karr was of the opinion that Respondent had misrepresented H.F.'s condition and that his treatment plan was over-zealous and below minimum standards.

   
   

   1. A caries is a technical term for a cavity or a hole in the tooth and results from acid dissolution of the enamel and/or dentin structure of a tooth. Poor oral hygiene contributes to the development of caries. H.F. had poor oral hygiene. A caries may be diagnosed by use of an x-ray, by visually inspecting the mouth, by probing the teeth with an explorer, or by a combination of those diagnostic means. In diagnosing caries by use of an explorer, the dentist is making an educated assumption based on the resistance the dentist feels in probing a pit or fissure. In making this educated assumption, the dentist should consider the patient's oral hygiene and the patient's susceptibility to developing cavities. A catch or resistance when using an explorer indicates

      that either a fissure has become carious or has the probability of becoming carious. If a sharp explorer is used and it hangs on the teeth, that is indicative that there is either decay present or a situation of pre-decay. It is within acceptable standards of care to recommend filling those areas. The evidence was clear that the detection of cavities by use of an explorer is a difficult task, and that legitimate differences of opinion can occur. The disagreements between Respondent, Dr. Finnvold, and Dr. Karr illustrate that difficulty.

      
      

   2. Respondent used a sharp explorer to examine H.F.'s teeth. The explorer grabbed or stuck on teeth 3, 14, 15, 18, 20, 29, and 31, and he believed that each of those teeth should be treated in the manner he recommended.

      
      

   3. It is dentally improper to deliberately misrepresent the existence of decay and the need for treatment. However, the fact that Respondent was of the opinion that there existed cavities that Dr. Finnvold and Dr. Karr did not detect does not establish, clearly and convincingly, that Respondent deliberately misrepresented H.F.'s condition or that he failed to practice within acceptable standards of care.

      
      

      CASE NO. 90-5802 - PATIENT L.M.

      
      

   4. During the summer of 1987, L.M. presented to the Respondent for routine dental care. This was L.M.'s initial visit.

      
      

   5. Respondent examined L.M., took x-rays, and then advised L.M. that he suspected that she had a little problem with her gums.

      
      

   6. Respondent directed her to Dr. Rosa, 4/ a periodontist who worked in the same dental office as Respondent. Respondent advised Dr. Rosa that he felt that L.M. had a problem with her gums and asked Dr. Rosa to examine her.

      
      

   7. Dr. Rosa diagnosed periodontal breakdown and recommended an extensive treatment plan for L.M., which included root planing, dental wedge procedures, and osseous surgery.

      
      

   8. The estimate for the work to be performed was given to L.M. on a form which reflected that it was from "9 to 9 Dental Centre". Although it was established that "9 to 9 Dental Centre" was the name of the dental office in which Respondent practiced, and that L.M. associated that name with that of Respondent, there was no showing as to how or why Respondent should be held responsible for acts of Dr. Rosa. The evidence clearly establishes that Respondent was not acting below accepted standards merely in recommending that a periodontist with whom he worked examine a patient he thought may have a periodontal problem. The record does not establish that Respondent misrepresented L.M.'s condition when he asked Dr. Rosa to examine her.

      
      

   9. Petitioner's experts who later examined L.M. established that L.M. did not have periodontal problems that would justify the recommended treatment plan proposed by Dr. Rosa.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

       
       

   11. Section 466.028, Florida Statutes, provides, in pertinent part, as follows:

       
       

       1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection may be taken:

          * * *

          1. Making deceptive, untrue, or fraudulent representations in the practice of dentistry.

          2. Failing to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, exami- nation results, test results, and X rays, if taken.

          3. Exercising influence on the patient or client in such a manner as to exploit the patient or client for the financial gain of the licensee or of a third party, which includes, but is not limited to, the promotion or sale of services, goods, appliances, or

          drugs ... . Paying or receiving any commission, bonus, kickback, or rebate; or engaging in any split-fee arrangement in any form ...

          * * *

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

          * * *

          (bb) The violation ...[of any provision] of this chapter ... .

          
          

   12. The provisions of Section 466.023(2), Florida Statutes, provides, in pertinent part, as follows:

       
       

       (2) Dental hygienists may perform their duties:

       (a) In the office of a licensed dentist;

       * * *

       (c) Upon a patient of record of a dentist

       who has issued a prescription for the services of a dental hygienist, which prescription shall be valid for 2 years unless a shorter length of time is designated by the dentist

       ... [several types of facilities are thereafter described, none of which is pertinent to these proceedings].

   13. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

       
       

       That standard has been described as follows:

       [C]lear and convincing evidence 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 of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established.

       Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

       
       

   14. By the Amended Administrative Complaint filed in Case No. 89-5273, pertaining to patient S.D., Respondent is alleged to have violated the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances. It is also alleged that Respondent violated the provisions of Section 466.028(1)(m), Florida Statutes, by failing to maintain adequate dental records. There was no evidence offered in support of its allegation that Respondent failed to maintain adequate dental records. The evidence that was presented failed to establish by clear and convincing evidence Petitioner's allegations that Respondent's treatment fell below minimally accepted standards in violation of Section 466.028(1)(y), Florida Statutes. Petitioner has failed to meet its burden of proof as to Case No. 89-5273.

       
       

   15. By the Administrative Complaint filed in Case No. 89-6492 pertaining to Respondent's treatment of E.M., Respondent is alleged to have violated the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances. The evidence that was presented failed to establish by clear and convincing evidence Petitioner's allegations that Respondent's treatment fell below minimally accepted standards in violation of Section 466.028(1)(y), Florida Statutes. Petitioner has failed to meet its burden of proof as to Case No. 89-6492.

       
       

   16. By the Administrative Complaint filed in Case No. 90-5801 pertaining to Respondent's treatment of H.F. Respondent is alleged to have violated the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances. The evidence that was presented failed to establish by clear and convincing evidence Petitioner's allegations that Respondent's treatment fell below minimally accepted standards in violation of Section 466.028(1)(y), Florida Statutes. Petitioner has failed to meet its burden of proof as to Case No. 90-5801.

   17. By the Administrative Complaint filed in Case No. 90-5802 pertaining to Respondent's treatment of L.M., Respondent is alleged to have violated the provisions of Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or a third party; the provisions of Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; the provisions of 466.028(1)(bb), Florida Statutes, by utilizing the services of auxiliary personnel before a dentist has issued a prescription for the services of a dental hygienist (which is alleged to be a violation of Section 466.023(2)(c), Florida Statutes); and the provisions of Section 466.028(1)(y), Florida Statutes, by failing to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performances. The evidence that was presented failed to establish by clear and convincing evidence Petitioner's allegations that Respondent violated the provisions of Section 466.028(1)(n), Florida Statutes, by exercising influence on patient L.M. in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party or that he violated the provisions of Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations to L.M. The greater weight of the evidence was that Respondent's referral of L.M. to Dr. Rosa was warranted, that Respondent did not misrepresent her condition, and that such a referral is within the acceptable bounds of practice. The evidence that was presented failed to establish by clear and convincing evidence Petitioner's allegations that Respondent violated the provisions of Section 466.028(1)(y), Florida Statutes. There was no evidence and no theory advanced for the allegation that Respondent violated the provisions of 466.028(1)(bb), Florida Statutes, by utilizing the services of his dental hygienist before he had issued a prescription for the services of the dental hygienist. Petitioner has failed to meet its burden of proof as to Case No. 90-5802.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses all charges brought against Respondent in Case No. 89-5273, which dismisses all charges brought against Respondent in Case No. 89-6492, which dismisses all charges brought against Respondent in Case No. 90-5801, and which dismisses all charges brought against Respondent in Case No. 90-5802.

RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November, 1991.

CLAUDE B. ARRINGTON

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 November, 1991.

ENDNOTES

1/ The name on the office letterhead was "9 to 9 Family Dental Centre". The office was also referred to as "9 to 9 Dentistry". In addition to Respondent, dental hygienists and a periodontist named Dr. Rosa practiced out of this office. There was no evidence as to whether other professionals practiced out of this office and there was no evidence as to whether Respondent was an owner of this dental practice.

2/ Dr. Flax testified "... I sent her to a dentist in the local area to take care of her crowns." There was no testimony from Dr. Flax that he found open margins on these crowns or that he was of the opinion that the crowns needed to be replaced. The dentist to whom he referred S.D. was not identified. S.D. testified that she did not recall this dentist's name, but that the dentist replaced all of the crowns that Respondent had placed. This work was done at approximately the same time that S.D. filed her complaint against Respondent with Petitioner. Consequently, neither Petitioner nor Respondent had the opportunity to have an independent expert examine the work that Respondent had done. There was no competent evidence to support the allegation of the administrative complaint that these crowns had to be replaced because of open margins.

3/ Dr. Staub's opinion as to the treatment E.M. received was based on E.M.'s one-sided version of her relationship with Respondent and is outside the scope of the charges brought against Respondent. Dr. Staub also formed the opinion that E.M. was a very difficult patient.

4/ Dr. Rosa's first name was not given.

APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 89-5273

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner as to Case No. 89-5273, involving patient S.D. These proposed findings are found in paragraph 1 and in paragraphs 25-32 of Petitioner's Proposed Recommended Order.

1. The proposed findings of fact in paragraphs 1, 25, 26, and 28 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 27 are rejected because the evidence establishes that Respondent completed capping the seven teeth in June 1987.

3. The proposed findings of fact in paragraph 29 are rejected as being unsubstantiated by the evidence. The testimony upon which Petitioner bases this proposed finding was from S.D. and is found at page 101 of the transcript. On page 109 Respondent moved to strike that portion of S.D.'s testimony.

   Petitioner had no objection to the motion to strike, and the motion was granted.

4. The proposed findings of fact in paragraphs 31 and 32 are rejected as being contrary to the greater weight of the evidence and as being contrary to the findings and conclusions made.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent as to Case No. 89-5273. (Respondent submitted a separate Proposed Recommended Order for each of these consolidated cases.)

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 16, 17, and 18 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 11, 12, 14, and 15 are rejected as being subordinate to the findings made.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6492

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner as to Case No. 89-6492, involving patient E.M. These proposed findings are found in paragraph 1 and in paragraphs 20-24 of Petitioner's Proposed Recommended Order.

1. The proposed findings of fact in paragraphs 1, 20, 21, 22, and 24 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 23 are rejected as being unsubstantiated by the evidence. While it is clear that E.M. was dissatisfied with Respondent's services and that she had a disagreement with Respondent and his staff, the evidence does not support a finding that Respondent treated E.M. harshly.

3. The unnumbered paragraph which follows paragraph 24 is rejected as being contrary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent as to Case No. 89-6492. (Respondent submitted a separate Proposed Recommended Order for each of these consolidated cases.)

1. The proposed findings of fact in paragraphs 1, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, and 17 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached, but the fact that E.M. testified via deposition is discussed as a preliminary matter.

3. The proposed findings of fact in paragraphs 6 and 10 are rejected as being subordinate to the findings made.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5801

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner as to Case No. 90-5801, involving patient H.F. These proposed findings are found in paragraph 1 and in paragraphs 12-19 of Petitioner's Proposed Recommended Order.

1. The proposed findings of fact in paragraphs 1, and 12-19 are adopted in material part by the Recommended Order.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent as to Case No. 90-5801. (Respondent submitted a separate Proposed Recommended Order for each of these consolidated cases.)

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 7, 9, 10, 11, and 12 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 5 are adopted in material part by the Recommended Order. The proposed finding that Respondent had a treatment plan for tooth 2 is rejected as being unsupported by the record.

3. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made.

4. The proposed findings of fact in paragraph 8 are rejected as being subordinate to the findings made.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5802

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner as to Case No. 90-5802, involving patient L.M. These proposed findings are found in paragraphs 1-11 of Petitioner's Proposed Recommended Order.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, and 11 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 7, 8, 9, and 10 are rejected as being subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent as to Case No. 90-5802. (Respondent submitted a separate Proposed Recommended Order for each of these consolidated cases.)

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, and 7 are adopted in material part by the Recommended Order.

COPIES FURNISHED:

William Buckhalt Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Albert Peacock, Esquire Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Salvatore A. Carpino, Esquire Suite 1010

One North Dale Mabry Tampa, Florida 33609

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-005273

Orders for Case No: 89-005273