STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0187

)

PETER KURACHEK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on March 28, 1990 at Venice, Florida.

APPEARANCES

For Petitioner: Janine Bamping, Esquire

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Peter Kurachek, pro se

3920 Bee Ridge Road Sarasota, Florida 34233

STATEMENT OF THE ISSUES

Whether Respondent is guilty of misconduct in the practice of dentistry and/or operating a dental office in such a manner that dental treatment provided is below minimum acceptable standards for the community.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 28, 1989, the Department of Professional Regulations, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Peter Kurachek, Respondent, as a licensed dentist in Florida. As grounds therefore it is alleged that a contract dentist employed by Respondent did, on or about April 15, 1988, undertake a root canal on a patient with an abscessed tooth, that subsequent to this initial treatment said patient suffered severe pain, and in the evening attempted to telephone Respondent's office but received no answer. The patient then went to the emergency room at the local hospital where she was treated by a dentist on duty who also attempted to telephone Respondent's office, but received no reply from a recorder or answering service. This is alleged to violate Sections 466.028(1)(u), (bb) and (gg), Florida Statutes and Rules 21-G-13.005(3) and 21G-7.004, Florida Administrative Code.

At the hearing petitioner called two witnesses, Respondent called five witnesses, including himself, and fifteen exhibits were admitted into evidence. Objection to Exhibit 12 on grounds of relevancy was sustained. Proposed findings were submitted by Petitioner. Treatment accorded those proposed findings not accepted is contained in the appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Peter Kurachek, Respondent, was licensed as a dentist in Florida and was the owner of American Dental Center, a dental clinic located in Venice, Florida.

   
   

2. Commencing in August 1987, Thomas A. Saitta D.D.S., licensed to practice dentistry in Florida, was employed at the American Dental Center as an independent contractor and was so employed at all times relevant hereto.

   
   

3. On Friday, April 15, 1988, patient Kim Pierce a/k/a Kim Hendrick entered the American Dental Center complaining of a toothache and was seen by Dr. Saitta. Examination revealed an abscessed tooth for which Dr. Saitta believed root canal therapy was needed.

   
   

4. The patient revealed she had no insurance and no money to pay. Nevertheless, Dr. Saitta commenced the root canal, prescribed penicillin for the inflammation, told the patient if the swelling did not subside quickly a serious medical problem would arise and she should then go to the emergency room at the Venice Hospital.

   
   

5. The patient Kim Hendrick returned to the dental clinic Saturday, April 16, 1988 and was again seen by Dr. Saitta who gave her a prescription for Keflex for the infection, told her that if the swelling and pain did not subside by evening she should go to the hospital for medical intervention. He also gave her his professional card with his home telephone number she could call for emergency assistance.

   
   

6. On the evening of April 16, 1988 at 11:10 p.m. Kim Pierce presented herself at the emergency room at Venice Hospital with a slight temperature, right eye swollen shot and a marked facial cellulitis. The duty emergency room dentist, Dr. John J. Yurosko, an oral and maxillofacial surgeon was called to treat the patient. Dr. Yurosko incised the gum, drained the infected area, advised the patient to continue the Keflex prescribed by Dr. Saitta and to present at his office Monday.

   
   

7. After treating the patient Dr. Yurosko telephoned the number for the dental clinic and received no answer. He then, around midnight, from his home called the residence of Respondent whose wife was up and visiting with a neighbor and who answered the telephone. Yurosko asked to speak to Respondent and was told he was in bed asleep. Yurosko asked that Respondent be called to the telephone. When Respondent got on the line Yurosko complained about the patient (Kim) not being able to contact anyone by calling Respondent's office number, as well as Yurosko's failures to get an answer when he called that number.

8. Following his inability to contact the Dental Center and his conversation with the Respondent, Dr. Yurosko, on April 29, 1988, submitted a complaint to the Department of Professional Regulation (Exhibit 4) in which he advised the Department of his involvement with patient Kim Pierce and his inability to contact her treating dentist.

   
   

9. During the investigation which followed this complaint the investigator placed several long distance calls from Fort Myers to the number listed for the American Dental Center during the evening hours and received no answer from an answering service or machine. Respondent's witnesses testified that, except for the short period in April when telephone work was being done in the office clinic, the answering machine was operable. Respondent was able to offer no satisfactory explanation for the investigator's failure to receive an answer when the Dental Center's number was dialed during evening hours.

   
   

10. During the period around April 15, 1988, work was being performed rerouting telephone lines at American Dental Center and the telephone answering machine was not working. This fact was known to Respondent and other staff members at the dental center. Respondent had directed the other dentists, including Saitta, to be sure they provided the patients treated during this period with the dentist's home telephone number in case emergency treatment was needed. Additional cards were provided the receptionist to give the telephone number of their treating dentist to the patients when they checked out of the dental center.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Respondent is here charged with violating Sections 466.028(1)(u), (bb) and (gg) Florida Statutes which provide in pertinent part:

    
    

    (u) Fraud, deceit or misconduct in the practice of dentistry to dental hygiene. (bb) The violation or the repeated violation of this chapter, Chapter 455, or any rule promulgated pursuant to Chapter 455 or this chapter;...

    (gg) Operating or causing to be operated a dental office is such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community.

    
    

13. Rule 21G-13.005(3)(j) Florida Administrative Code establishes disciplinary guidelines for a dentist found guilty of failure to perform any statutory or legal obligation placed upon a licensee.

14. Rule 21G-17.004 Florida Administrative Code provides:

    
    

    It is the responsibility of every dentist practicing in this state to provide, either personally, through another licensed dentist, or through a reciprocal agreement with another agency, reasonable twenty-four (24) hour emergency services for all patients under his continuing care.

    
    

15. No evidence was presented that Respondent is guilty of fraud, deceit, or misconduct in the practice of dentistry. Dr. Saitta was the treating dentist for the patient, Kim, and no evidence was submitted that any procedure he followed in treating this patient deviated from acceptable dental practices.

    Dr. Saitta recognized the potential danger from the facial cellulitis from which Kim was suffering and that medical intervention might be needed.

    
    

16. The only allegation made to which evidence was submitted was the failure of Respondent to provide reasonable 24 hour emergency services for all patients under his continuing care as required by Rule 21G-17.004 Florida Administrative Code. That evidence consisted of the testimony of Dr. Yurosko that he could not get an answer at the Dental Center when he called that number around midnight April 16, 1988; and the testimony of the investigator that he called the listed number several times during evening hours and received no answer. A satisfactory reason for the failure of Dr. Yurosko to get an answer was provided by Respondent, i.e., the answering machine was not working on that date. Respondent's actions in having members of the staff at the Dental Center give the treating dentist's home phone number to patients during the period the answering machine was inoperative was adequate to comply with the 24-hour emergency service requirement of the rule.

    
    

17. At the time of the hearing Kim could not be located and, accordingly did not testify. Dr. Yurosko's testimony that Kim told him she had tried to call the Dental Center before coming to the hospital is hearsay and cannot, without admissible corroborative evidence, support a factual finding. Section 120.58(1)(a) Florida Statutes.

    
    

18. The only remaining evidence that Respondent failed to provide 24-hour emergency services for his continuing care patients was the testimony of the investigator regarding unanswered night time calls to the Dental Center. The investigator was not a patient under Respondent's continuing care (nor was Kim) and no evidence was presented that one of Respondent's patients was unable to reach him outside regular office hours to provide emergency dental treatment. Interpreting the evidence in the light most unfavorable to the Respondent would lead to the conclusion that, unless Respondent provided the patients with his home phone number, there were times they would have been unable to reach him in an emergency. However, it is submitted that this is not the intent of the rule. Instead the intent of this rule is to place the responsibility on a dentist to make provision for treatment of his continuing care patients when the dentist is unavailable by reason of vacation, illness, etc. rather than during other than office hours. While it is recognized the rule is sufficiently broad to provide for emergency dental care outside regular office hours, nevertheless the primary purpose of the rule is to insure emergency treatment is provided for patients during the patients' regular dentist's absence.

19. Since this is a license disciplinary proceeding the Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. From the foregoing it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Peter Kurachek D.D.S. committed fraud, deceit or misconduct in the practice of dentistry; that he operated his dental office so as to result in dental treatment below minimum acceptable standards; or that he violated any provision of Chapters 455 or 466 or Rule of the Dental Board.

RECOMMENDATION

It is

RECOMMENDED: that all charges preferred against Peter Kurachek D.D.S. in the administrative complaint filed July 28, 1989 be dismissed.

ENTERED this 8th day of May, 1990, in Tallahassee, Florida.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8 day of May, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-0187

Petitioner proposed findings are accepted except the following:

15 Rejected as uncorroborated hearsay.

19-21 Dr. Yurosko was accepted as an expert in dentistry and oral surgery--not in dental office procedures or what constitutes adequate emergency services as that phrase is used in Rule 21G- 17.004 Florida Administrative Code.

Accordingly, his interpretation of the rule constitutes a legal opinion rather than a dental opinion and, as much, is entitled to little weight.

COPIES FURNISHED:

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

William Buckhalt Executive Director Board of Dentistry

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Janine Bamping, Esquire Department of Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Peter Kurachek

3920 Bee Ridge Road Sarasota, FL 34233

Docket for Case No: 90-000187

Orders for Case No: 90-000187