STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6628

)

JOSEPH H. SHEPPE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above-styled cause before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel Manry, on April 9, 1991, in Boca Raton, Florida.

APPEARANCE

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Joseph H. Sheppe, Pro Se

1521 Powell Court

Huntington, West Virginia 25701 STATEMENT OF THE ISSUES

The ultimate issues for determination in this proceeding are whether Respondent committed the acts alleged in the Amended Administrative Complaint and, if so, what penalties, if any, should be imposed against Respondent's license.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on October 31, 1989, and an Amended Administrative Complaint on December 11, 1989, alleging that Respondent had violated the provisions of Sections 466.028(1)(m) and 466.028(1)(y), Florida Statutes. The Amended Administrative Complaint alleged that: Respondent applied orthodontic appliances to a patient with underlying periodontal disease; was found guilty of dental malpractice resulting in a single indemnity in excess of $5,000; and failed to keep adequate written dental records, in that the patient's dental chart did not reflect a medical history, diagnosis, or treatment plan.

Respondent requested a formal hearing, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on November 30, 1989. The case was assigned to Hearing Officer Jane C. Hayman on

December 7, 1989, and scheduled for formal hearing on June 12, 1990, pursuant to a Notice of Hearing issued on December 19, 1989. 1/ The case was transferred to Hearing Officer Michael M. Parrish on or before February 23, 1990.

The parties entered into a stipulation for settlement and this proceeding was placed in abeyance pending consideration of the parties' stipulation by the Board of Dentistry. The settlement stipulation was rejected by the Board of Dentistry on August 25, 1990, and a formal hearing was scheduled for April 5, 1991. The formal hearing was rescheduled for April 9, 1991, pursuant to an Order Rescheduling Hearing entered on February 28, 1991. This proceeding was transferred to the undersigned on April 8, 1991.

At the formal hearing, Petitioner presented the testimony of Michael J. Doherty and Barry I. Matza. Petitioner also presented by deposition the expert testimony of Dr. John Fishman, D.D.S., Dr. Leonard Garfinkel, D.D.S., Dr. Alan

1. Burch, D.D.S., and Dr. David Kornbluth, D.M.D. Petitioner offered five exhibits for admission in evidence. Petitioner's exhibits were admitted in evidence without objection. 2/

   
   

   Respondent testified in his own behalf and offered eight exhibits for admission in evidence. Respondent's Exhibits 1-3 and 5-9 were admitted in evidence without objection. Respondent's Exhibit 4 was withdrawn.

   
   

   A transcript of the record of the formal hearing was requested by Petitioner and filed with the undersigned on May 22, 1991. Official recognition was taken of Chapters 455 and 466, Florida Statutes, and Florida Administrative Code Chapter 21G. Petitioner timely filed its proposed findings of fact and conclusions of law on May 31, 1991. Respondent's request for an extension of time to file his proposed findings of fact and conclusions of law was granted, and Respondent timely filed his proposed findings of fact and conclusions of law on June 4, 1991. The parties' proposed findings of fact are addressed in the Appendix to this Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is a licensed dentist in the State of Florida, having been issued license number DN 0009725. Respondent's last known address is 1521 Powell Court, Huntington, West Virginia, 25701.

      
      

   2. The minimum standard of care for treatment of any patient with periodontal disease who anticipates orthodontic treatment requires either that the underlying periodontal disease be resolved prior to orthodontic treatment or that the periodontal disease be controlled through frequent and regular periodontal care administered concurrently with the orthodontic treatment. Orthodontic treatment can exacerbate existing periodontal disease in any patient. Adequate, frequent, and regular periodontal care is especially important for adults who typically have less bone turnover and cell repair than that found in younger patients. Responsibility for monitoring and supervising the periodontal health of a patient is shared by the orthodontist, on the one hand, and either the general dentist or the periodontist, on the other.

      
      

   3. Respondent provided dental services and treatment to Michael J. Doherty, an adult male, from November 7, 1983, until sometime in June, 1985. The dental services and treatment provided by Respondent consisted of the extraction of 4 bicuspids and the application of an orthodontic appliance.

   4. Respondent first saw Mr. Doherty on November 7, 1983, at the Omni Dental Clinic (the "Clinic"). Respondent was not the dentist of record for Mr. Doherty. The dentist of record was a general dentist who was also employed at the Omni Dental Clinic.

      
      

   5. Mr. Doherty was diagnosed by the dentist of record as having early periodontal disease. The dentist of record prescribed treatment for Mr. Doherty's periodontal disease before Respondent began orthodontic treatment. The treatment for Mr. Doherty's periodontal disease consisted of: a gross scaling of Mr. Doherty's entire mouth on November 30, 1983; a prophylaxis cleaning for approximately one hour on December 14, 1983; and a periodontal

      scaling of the entire mouth on January 9, 1984. The patient was also instructed to increase the frequency of his brushing and other home health care. The patient was released for orthodontic treatment, and Respondent began such treatment on January 23, 1984. During Respondent's orthodontic treatment, the patient received two more prohylaxis cleanings in August, 1984, and on December 27, 1984.

      
      

   6. The diagnostic studies and periodontal treatment for Mr. Doherty prior to and during Respondent's orthodontic treatment of the patient were inadequate. Adults with existing periodontal disease should receive adequate periodontal care and monitoring every six weeks. The care required to properly treat the periodontal disease may range from basic scaling all the way to surgical procedures. Mr. Doherty received two prohylaxis cleanings during Respondent's orthodontic treatment. Responsibility for the periodontal health of a patient during orthodontic treatment is shared by the orthodontist.

      
      

   7. The condition of Mr. Doherty's periodontal disease deteriorated significantly during Respondent's orthodontic treatment. The patient consulted another orthodontis, Dr. David Kornbluth, on December 5, 1985. Dr. Kornbluth was concerned over the fact that the patient's teeth were very loose and that there was considerable pocketing in and around the teeth. Dr. Kornbluth questioned whether continued orthodontic treatment was appropriate and referred Mr. Doherty to a general dentist, Dr. Alan Burch. Dr. Burch examined Mr. Doherty on December 6, 1985, and concluded that the patient needed immediate periodontal and endodontic evaluation. Dr. Burch referred the patient to a periodontist, Dr. Leonard Garfinkel. 3/

      
      

   8. Dr. Garfinkel examined Mr. Doherty on December 23, 1985, and diagnosed the patient as having severe periodontal disease with gross soft tissue inflammation and significant osseous loss. 4/ The condition of the patient's lower anterior teeth was poor. He had generalized pockets and excessive mobility in his teeth. The patient was instructed to discontinue orthodontic treatment and was placed on periodontic treatment consisting of three visits of deep scaling and curettage in conjunction with plaque control. The patient was also placed on a Hawley retainer to adjust his bite. 5/ The orthodontic appliance was subsequently removed and periodontic treatment in the form of deep scaling was repeated on March 27 and May 16, 1986. The patient's prognosis improved from poor to guarded.

      
      

   9. Respondent failed to meet the minimum standards of care in the practice of dentistry by applying orthodontic appliances without an accurate diagnosis of Mr. Doherty's periodontal condition. Respondent failed to meet the minimum standards of care in the practice of dentistry by providing orthodontic treatment without adequate care of the patient's underlying periodontal disease.

   10. Respondent was found guilty of negligence in the services provided to Michael J. Doherty. The adjudication of negligence was entered on January 1, 1988, in the Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida.

       
       

   11. Respondent did not fail to keep adequate medical records. The Omni Dental Clinic was not operated or controlled by Respondent. Respondent was an independent contractor of the clinic. Records for Mr. Doherty were kept by both Respondent and the patient's general dentist and were maintained by the Clinic. The Clinic went out of business and disposed of the records in a manner that made them unavailable to Respondent. Records that otherwise would have been available to the parties in this proceeding were in the possession of counsel for the plaintiffs in the civil negligence action. The records produced in this proceeding did not comprise all of the records of Respondent.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction of the subject matter and parties pursuant to Subsection 120.57, Florida Statutes. The parties were duly noticed for the formal hearing.

       
       

   13. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Amended Administrative Complaint and that the penalties requested by Petitioner should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   14. Respondent did not fail to keep adequate written dental records and a medical history for Mr. Doherty in violation of Section 466.028(1)(m), Florida Statutes. The evidence was less than clear and convincing that deficiencies in the medical records for Mr. Doherty, if any, were caused by Respondent or that the records produced at the formal hearing were all of the records on Mr. Doherty.

       
       

   15. Respondent violated Section 466.028(1)(y), Florida Statutes, by failing to meet the minimum standards of performance in the diagnosis and treatment of Mr. Doherty. Respondent applied orthodontic appliances without an accurate diagnosis and treatment plan of the patient's underlying periodontal disease. The periodontal treatment received by Mr. Doherty during Respondent's orthodontic treatment was inadequate. Respondent shared responsibility for the care and maintenance of the patient's periodontal health. Respondent violated Section 466.028(1)(y) by being found guilty of dental malpractice resulting in payment of a single indemnity in excess of $5,000 in a judgement or settlement.

   
   

   RECOMMENDATION

   
   

   Based upon the foregoing facts and conclusions of law, it is recommended that Petitioner enter a final order finding Respondent guilty of violating Section 466.028(1)(y), Florida Statutes, impose a $5,000 administrative fine, and suspend Respondent's license for 3 months. The final order should provide that, upon reinstatement, the Respondent's license shall be placed on probation for a period of 2 years. During the period of probation, Respondent should be required to complete 30 hours of continuing education in diagnosis and treatment planing, 30 hours of continuing education in periodontics, and 18 hours of continuing education in risk management. All continuing education should be in compliance with Florida Administrative Code Rule 21G-12.

   RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of July, 1991.

   
   

   
   

   DANIEL MANRY

   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 22nd day of July, 1991.

   
   

   ENDNOTES

   
   

   1/ An Amended Notice of Hearing was issued on February 23, 1990, establishing a hearing date of June 12, and June 13. On June 1, 1990, an Order Rescheduling Hearing was issued establishing that the hearing be held in Pompano Beach, Florida.

   
   

   2/ Petitioner's Exhibit 1 is the deposition of Dr. Fishman. Exhibit 2 is the Deposition of Dr. Burch. Exhibit 3 is the deposition of Dr. Garfinkel. Exhibit

   4 is the Deposition of Dr. Kornbluth. Exhibits 2-4 also contain accompanying exhibits. Exhibit 5 is a certified copy of the complaint, jury verdict, and final judgment in the civil trial in which Respondent was found to have committed negligence.

   
   

   3/ Dr. Burch also referred the patient to an endodontist, Drs. Mautner, Miller and Oppenheimer for evaluation of teeth numbers 10, 19, and 30.

   
   

   4/ Osseous loss reults in deterioration of the jaw bone around the teeth. The patient suffered an abnormal amount of deterioration during the two year period he undertook orthodontic treatment.

   
   

   5/ The purpose of a Hawley retainer is to disarticulate the posterior teeth to allow for eruption. Instead of all of the back teeth on the top hitting all of the back teeth on the bottom, Mr. Doherty had contact with only one or two teeth. The Hawley retainer prevented Mr. Doherty's back teeth from touching and caused the teeth to erupt to simulate a proper bite. It was hoped that the Hawley retainer would also improve occlusion, reduce mobility, and reduce pocketing.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6628

   
   

   Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Although most of Petitioner's proposed findings were cast in the form of "fact", they were in substance argument and rejected accordingly.

   The Petitioner's Proposed Findings of Fact

   
   

   Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

   1. Accepted in Finding 1

   2. Accepted in Finding 3

   3. Accepted in Findings 3, 5

   4. Rejected for the reasons stated

      in Finding 11

   5. Accepted in Finding 6

   6. Accepted in Finding 10

      
      

   7. Accepted in Findings 2, 9

   
   

   Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

   
   

   Respondent Proposed Findings of Fact

   
   

   Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

   
   

   1. Rejected as irrelevant and immaterial

   2. Accepted in Finding 1

   3. Accepted in Finding 3

      
      

   4. Accepted in Findings 3, 4

      
      

   5. Rejected as irrelevant and immaterial

   
   

   6	Accepted	in	Finding	5
   7	Accepted	in	Finding	5

   
   

   1. Rejected for the reasons

      stated in Finding 5

   2. Accepted in Finding 5

   3. Rejected for the reasons

      stated in Finding 5

   4. Accepted in Finding 5

   5. Rejected as irrelevant and immaterial (See Finding 11)

   6. Rejected as irrelevant and immaterial

   7. Accepted in Finding 5

   8. Accepted in Finding 5

   9. Accepted in Finding 11

      
      

   10. Rejected as irrelevant and immaterial (See Finding 11)

       
       

   11. Accepted in Finding 3

       
       

   12. Rejected as irrelevant and immaterial

       
       

   13. Accepted in Finding 2

       
       

   14. Rejected as conclusion of law

   
   

   COPIES FURNISHED:

   
   

   William Buckhalt Executive Director Board of Dentistry

   Department of Professional Regulation

   1940 North Monroe Street, Suite 60

   Tallahassee, Florida 32399-0792

   
   

   Charles F. Tunnicliff, Esquire Department of Professional

   Regulation

   1940 North Monroe Street, Suite 60 Northwood Centre

   Tallahassee, Florida 32399-0792

   
   

   Dr. Joseph H. Sheppe 1521 Powell Court

   Huntington, WV 25701

   
   

   Jack McRay, General Counsel Department of Professional

   Regulation

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   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.

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner, DOAH CASE NO.: 89-6628 DPR CASE NO.: 0101036

   vs.

   
   

   JOSEPH H. SHEPPE, D.D.S.

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1)(b)10., Florida Statutes, on September 20, 1991, in Tallahassee, Florida, for consideration of the Hearing Officer's Recommended Order and the timely Exceptions of the parties filed thereto (Copies are attached as Exhibits A, B and C respectively). At the hearing, Petitioner was represented by Nancy

2. Snurkowski, Chief Attorney. Respondent did not appear before the Board and was not represented by legal counsel. Upon consideration of the Hearing Officer's Recommended Order, the Exceptions of the parties and after review of the complete record, the Board makes the following determinations:

   
   

   RULINGS ON EXCEPTIONS

   
   

   1. The Board adopts in part and rejects in part Petitioner's Exception to paragraph 11 of the Hearing Officer's Findings of Fact. The only competent evidence in the record supports a finding that Respondent failed to keep adequate medical records. However, the Hearing Officer's findings as to the disposal of the' records is supported by competent evidence.

   2. The Board adopts Petitioner's Exception to paragraph 3. of the Hearing Officer's Conclusions of Law. As required by subsections 466.018(3) and(4), Florida Statutes, it was clearly Respondent's legal obligation to keep adequate medical records and any shortcoming in such records must be attributed to the Respondent.

      
      

   3. The Board adopts Respondent's Exception to paragraph 6. of the Hearing Officer's Findings of Fact. The only competent evidence in the record supports a finding that Mr. Doherty received 3 prophylaxis cleanings during Respondent's orthodontic treatment.

      
      

   4. The Board having individually considered each of Respondent's remaining Exceptions rejects them as irrelevant and unsupported by the record.

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact set forth in paragraphs 1-5 are adopted and incorporated herein as findings of fact by the Board.

   
   

2. The Hearing Officer's Finding of Fact set forth in paragraph 6. is amended to reflect the patient's receipt of 3 rather than 2 prophylaxis cleanings during Respondent's orthodontic treatment. Paragraph 6. as amended herein is adopted and incorporated as a Finding of Fact by the Board.

   
   

3. The Hearing Officer's Findings of Fact set forth in paragraphs 4-10 are adopted and incorporated herein as Findings of Fact by the Board.

   
   

4. The first sentence of the Hearing Officer's Finding of Fact set forth in paragraph 11. is amended to reflect that Respondent did fail to keep adequate medical records. Paragraph 11. as amended herein is adopted and incorporated as a Finding of Fact by the Board.

   
   

5. There is competent, substantial evidence to support the Board's Findings.

CONCLUSIONS OF LAW

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

   
   

2. The Hearing Officer's Conclusion of Law set forth in paragraph 2. is adopted and incorporated herein as a Conclusion of Law by the Board.

   
   

3. The Hearing Officer's Conclusion of Law set forth in paragraph 3. is amended to state only that Respondent failed to keep adequate written dental records and medical history for Mr. Doherty in violation of Section 466.028(1)(m), Florida Statutes.

   
   

4. The Hearing Officer's Conclusion of Law set forth in paragraph 4. is adopted and incorporated herein as a Conclusion of Law by the Board.

   
   

5. There is competent, substantial evidence to support the Beard's conclusions.

   
   

6. The Board approves and, adopts the Hearing Officer's Recommendation that Respondent pay an administrative fine of $5,000.00; have his license suspended for a period of 3 months; and upon reinstatement be placed on

probation for a period of 2 years during which probation Respondent shall complete 30 hours of continuing education in diagnosis and treatment planning,

30 hours of continuing education in periodontics and 18 hours of continuing education in risk management. All continuing education required herein shall be in compliance with Rule 21G-12, Florida Administrative Code, shall be in addition to any continuing education required for Respondent's biennial renewal of his license and shall be live courses attended in-person by Respondent.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent is found to have violated Sections 466.028(1)(m) and (y), Florida Statutes and Respondent shall have his license disciplined as set forth above.

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

DONE AND ORDERED this 12th day of November, 1991.

BOARD OF DENTISTRY

RICHARD J. CHICHETTI, D.M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by Certified U.S. Mail this 12th day of November, 1991, to Joseph H. Sheppe, D.D.S., 1521 Powell Court Huntington, West Virginia 25701, by

U.S. Mail to David Manry, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Nancy M. Snurkowski, Chief Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0750.

WILLIAM H. BUCKHALT

Executive Director Board of Dentistry

Docket for Case No: 89-006628

Orders for Case No: 89-006628