STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 90-5112
)
DWIGHT BARRON, D.M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Sanford, Florida, on December 4-6, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Albert Peacock
Senior Attorney Nancy M. Snurkowski Chief Attorney
Department of Profession Regulation 1940 North Monroe Street Tallahassee, FL 32399
For Respondent: T. Dwight Barron, pro se
201 Thistlewood Circle Longwood, FL 32779
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent committed certain disciplinary violations and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
By Administrative Complaint filed December 13, 1989, Petitioner alleged that Respondent administered Phenergan, nitrous oxide, Demerol, and mepivicaine to an eight year old patient, who soon went into respiratory distress and ultimately cardiac arrest before expiring from an overdose of mepivicaine. The Administrative Complaint alleges that Respondent's office failed to have a positive pressure oxygen delivery system, oral and nasal airways, a pulse oximeter, current Narcan, Benadryl, written emergency protocols for various
emergencies, and documentation of training of staff in emergency management.
The Administrative Complaint alleges that Respondent's staff had not completed the training necessary to control pain and anxiety or even to monitor a patient.
Based on these allegations, the Administrative Complaint alleges that Respondent delegated professional responsibility to persons unqualified by training, experience, or licensure to perform such duties; allowed staff to monitor the patient, who was under parenteral conscious sedation when the staff lacked the necessary training, education, or experience; failed to maintain adequately trained staff, equipment, or medications, as required by his parenteral conscious sedation permit; misdiagnosed the emergency situation; administered an excessive amount of mepivicaine; recorded conflicting amounts of mepivicaine administered to the patient; failed timely to contact emergency help; ignored legal requirements concerning safe practice in the administration of the mepivicaine; ignored legal requirements regulating parenteral conscious sedation; and practiced below the relevant standard of care in terms of inadequately trained staff, lack of adequate facilities, and excessive use of mepivicaine.
The Administrative Complaint alleges that Respondent thereby violated Section 466.028(1)(q), Florida Statutes, by administering a legend drug other than in the course of the professional practice of the dentist, where it is presumed that prescribing legend drugs in excessive or inappropriate quantities is not in the course of the professional practice of the dentist, regardless of his intent; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against prevailing peer performance; Section 466.028(1)(aa), Florida Statutes), by delegating professional responsibilities to a person not qualified by training, experience, or licensure; Section 466.028(1)(bb), Florida Statutes, and Rule 21G-14, Florida Administrative Code, by failing to comply with the requirements of a parenteral conscious sedation permit; Section 466.028(1)(gg), Florida Statutes by operating a dental office so as to result in dental treatment that is below minimum acceptable standards of performance for the community as to, among other things, the use of substandard materials or equipment, the imposition of time limitations within which dental procedures are to be performed, or the failure to maintain patient records required by Chapter 466; and Section 466.028(1)(hh), Florida Statutes, by administering anaesthesia in a manner in violation of the rules adopted under Section 466.017, Florida Statutes.
By Election of Rights dated December 20, 1989, Respondent demanded a formal hearing.
The file was transferred to the Division of Administrative Hearings on August 14, 1990. The case was originally set for hearing on November 19, 1990, and then reset for March 4, 1991, after Respondent's motion for a continuance was granted. Subsequent requests by Respondent to abate and continue the hearing were denied by orders entered December 11, 1990, and February 4, 1991, respectively. Another motion by Respondent to continue the case, "until all threat of criminal liability has ended," was denied by order entered March 4, 1991.
By oral request for continuance made March 7, 1991, Respondent agreed, as a condition of the continuance, that he voluntarily refrain from practicing dentistry. The request was granted by order entered March 13, 1991, which reset the hearing for July 29, 1991. Because of a delay in the resolution of the criminal prosecution, an order entered June 28, 1991, reset the final hearing
for December 2, 1991. By order entered November 26, 1991, the final hearing was delayed for two days to give Respondent another opportunity to comply with the conditions of an earlier order, entered November 21, requiring that he comply with a discovery request served upon him by Petitioner.
The order entered November 26 also granted Petitioner leave to file an Amended Administrative Complaint, which added a second count to the above- described allegations. The second count alleges that Respondent was indicted on March 28, 1991, for a second degree felony of manslaughter, based on the above- described incident. Respondent allegedly pleaded nolo contendere on October 31, 1991, and was adjudicated guilty and sentenced to six months' community control and five years' probation. The second count alleges that Respondent thereby violated Section 466.028(1)(c), Florida Statutes, by being convicted or found guilty of or entering a plea of nolo contendere to, regardless of adjudication, a crime relating to the practice of dentistry.
At the commencement of the hearing, Respondent filed a motion to continue, which was denied. Respondent was deemed to have denied the material allegations of the Amended Administrative Complaint.
During the hearing, the undersigned denied Petitioner's motion in limine, which had been filed December 2, 1991. In the motion, Petitioner sought to prevent Respondent from calling three witnesses. The location of one witness was unknown and a second witness, Alexander S. Nurrell, D.D.S., was allowed to testify after Petitioner's counsel had an opportunity to speak with him.
The third witness, Cyril H. Wecht, M.D., J.D., was unavailable to testify live at the hearing. The undersigned granted Respondent leave, under certain conditions, to take a
telephone deposition of Dr. Wecht. The transcript of the deposition was duly filed on January 27, 1992, and is admitted as Respondent Exhibit 6.
Pursuant to the ruling allowing Respondent to take the deposition of Dr. Wecht, Petitioner was given leave to take the deposition of a single rebuttal witness. Petitioner took the deposition of Vincent Dimaia, M.D. The transcript of the deposition was duly filed on February 10, 1992, and is admitted as Petitioner Exhibit 33.
At the hearing, Petitioner called 15 witnesses and offered into evidence 33 exhibits, including the late-filed deposition transcript. Respondent called six witnesses and offered into evidence six exhibits, including the late-filed deposition transcript. All exhibits were admitted into evidence. The deposition transcript of Dr. Wecht was filed timely. Petitioner did not request leave to take a rebuttal deposition.
The transcript was filed on January 6, 1992. By Order entered January 24, 1992, the parties were given until February 21, 1992, to file their proposed recommended orders. Petitioner filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the appendix.
FINDINGS OF FACT
Respondent is a licensed dentist in the State of Florida, holding license number DN 0008830. He was granted a parenteral conscious sedation permit on February 27, 1988. Respondent has been licensed in the State of Florida since August 3, 1981. There is no evidence that he has been the subject of prior disciplinary proceedings.
J. C. was born November 28, 1980. J.C. died August 17, 1989, at 7:10
p.m. due to anoxic encephalopathy, which is brain damage from lack of oxygen. Anoxic encephalopathy was due to complications of preparation for dental extractions.
Two years prior to visiting Respondent, J. C. had been seen by another dentist, Alexander S. Nurrell. Complaining of a toothache, J. C., who was six years old, was seeing a dentist for the first time.
The medical and dental history, which was provided by J. C.'s mother, revealed nothing material to this case. The mother noted that the child had never experienced an "unhappy" reaction of a dental or medical procedure. Following an examination, Dr. Nurrell determined that J. C. had been "neglected," at least in terms of her dental needs, which were considerable. Due to the scope of the work required by J. C., which involved repairs to 11 teeth, Dr. Nurrell intended to hospitalize J. C. in order to provide the necessary dental treatment.
About one week after the visit to Dr. Nurrell, J.C.'s father took her to another dentist, Peter Weisbruch. Again, her complaint involved a toothache, which apparently had not been treated by Dr. Nurrell. Dr. Weisbruch commenced a dental treatment plan that J. C. followed for some time.
Dr. Weisbruch administered a local anesthetic to J.C. on three occasions. On the first visit, Dr. Weisbruch administered an anesthetic, but failed to record the type or amount. On April 26, 1988, Dr. Weisbruch, while extracting one of J.C.'s teeth, administered 0.9 cc of 3% Carbocaine, which is a brand name of mepivicaine. On May 14, 1988, Dr. Weisbruch administered 0.9 cc of 2% lidocaine, as well as 0.9 cc of 1:100,000 epinephrine solution. On no occasion did J. C. exhibit an unusual reaction to any local anesthetic. She was, however, an uncooperative patient.
On June 1, 1988, J. C.'s father informed Dr. Weisbruch's office that J. C.'s mother would be resuming responsibility for ensuring that J. C. received adequate dental care and that J. C. would not be returning to Dr. Weisbruch's office.
Financial constraints limited the ability of J.C.'s parents to obtain dental services for their daughter. By June, 1989, however, her mother was prepared to recommence J.C.'s dental treatment. She looked for a dentist in the yellow pages based on physical proximity to their home. When she found Respondent's advertisement, she was impressed by its emphasis upon patient comfort, including such features as stereo headphones and anaesthesia.
Aside from her dental problems, J. C.'s health at the time that she first saw Respondent was good. She had been seen periodically by a pediatrician for a well visit and then for a couple of common viral complaints.
When she first contacted Respondent's office, J.C.'s mother told the receptionist that she needed to be able to pay for the dental work by periodic payments. The receptionist advised the mother to bring in J. C. for an initial consultation.
J. C. and her mother first visited Respondent on June 29, 1989. The medical and dental history revealed nothing unusual except that J. C. had "extensive" dental complaints. Respondent took x-rays and fitted J. C. for a
retainer on her first and second visits, with the latter taking place on July 5, 1989. J. C.'s mother paid $157 on July 10, leaving a balance of $125, which was to be paid over 90 days.
As a result of his examination of J. C.'s teeth, Respondent advised J.
C. and her mother that J. C. should have eight primary teeth removed. He apparently prescribed an antibiotic to treat a dental infection, but this treatment is irrelevant to the case. In any event, Respondent's office gave J.
C. an appointment for August 9, 1989, for the extraction of the eight teeth.
On August 8, Respondent's receptionist called J.C.'s mother and told her that Respondent had decided to put J.C. asleep during the extractions. Thus, he wanted an early morning appointment. They agreed to reschedule the appointment for August 16 at 8:30 a.m.
J. C. was excited about going to the dentist. She intended to go out for the cheerleading squad once school
started. She and her mother arrived at Respondent's office just before 8:30
a.m. J. C. sat on her mother's lap and was a little nervous, but they did not have to wait long. J. C. weighed 50- 55 pounds at this time.
No later than 8:30 a.m., dental assistant Terri Neff came out to the waiting room and took J. C. and her mother into Operatory #2. Operatory ##2 and
3 are identical in terms of equipment and size. Respondent, who apparently was the only dentist practicing in his office, also used a third operatory, which is smaller and lacked a dental assistant chair.
Ms. Neff was, at the time of the incident, a certified dental assistant. She had been for the preceding five years and had assisted in dental procedures and monitored patients in anaesthesia. She also held current certification in dental radiology, the administration of nitrous oxide, and cardiopulmonary resuscitation (CPR). As was the case with all of Respondent's employees, Ms. Neff had never attended the course entitled "Guidelines for Teaching Comprehensive Control of Pain and Anxiety."
Just before J. C. was seated in the examination chair, Ms. Neff gave her a glass of water, which J. C. drank. As Ms. Neff explained to J.C.'s mother, the water contained five ml of Phenergan, which Respondent had prescribed to control the nausea occasionally experienced by patients from nitrous oxide. J. C. drank the Phenergan solution at 8:35 a.m.
Phenergan, or promethazine, is an antiemetic used
to control nausea in patients about to receive nitrous oxide. A central nervous system depressant, Phenergan is an antihistamine with a minor sedative effect.
The drug manufacturer's literature, which is inserted into each box or carton of the drug, warns that the sedative action of Phenergan is "additive to the sedative effects of central nervous system depressants; therefore, agents such as . . . narcotic analgesics . . . should either be eliminated or given in reduced dosage in the presence of [Phenergan]." The drug insert advises that the dose of meperidine or Demerol be reduced by one-quarter to one-half.
The drug insert also advises:
[Phenergan] may lower seizure threshold. This should be taken into consideration when administering to persons with known seizure disorders or when in combination
with narcotics or local anesthetics which may also affect seizure threshold.
Five ml of Phenergan contains 6.25 mg of promethazine. Used in isolation, this dosage of Phenergan was appropriate and bordered on the low end of a safe and effective dosage. For preoperative medication, the recommended dose is 0.5 mg per pound in combination with an equal dose of meperidine and an "appropriate dose of an atroprinelike drug," according to the drug insert. In
J. C.'s case, the recommended dose is thus 27.5 mg, and she received only about 23% of the recommended maximum dose of Phenergan. The same amount is the recommended dose when Phenergan is used in isolation to control nausea.
Ms. Neff next placed a nasal mask over J. C.'s nose preparing to administer nitrous oxide. The mask was supposed to have a bubble gum smell, which is intended to please pediatric patients. When Ms. Neff asked J. C. if she could smell the bubble gum, the girl said she could not, so Ms. Neff replaced the mask with a strawberry-scented one. J. C. said she could smell this one, although her mother thought she might be humoring them.
The nasal mask does not cover the mouth. It is made of rubber and is not heavy. The mask, which was a child's size, fit tightly on J. C.'s face. The nitrous oxide machine has settings for nitrous and oxygen. Each unit represents one liter of gas delivered per minute.
Pursuant to Respondent's direction as to initial mix and time of commencement, Ms. Neff turned on the nitrous oxide machine shortly after placing the mask on J. C. The initial setting was 1:3 nitrous to oxygen. Nitrous oxide is a central nervous system depressant.
J. C. was fidgety in the chair. After the mask was applied, she touched the mask frequently. She said that the mask felt funny and made her nose itch. She remained quite talkative.
After the nitrous oxide had been administered to J. C. for about 30 minutes, Respondent entered the operatory to check on the girl. He waited awhile, noting that J. C. was still not calm enough to proceed. He then advised Ms. Neff that they would need to give J. C. an injection of Demerol.
At about 9:02 a.m., Respondent gave J. C. an injection of 50 mg Demerol, or meperidine, in her right deltoid muscle. J. C. cried upon receiving the injection.
Demerol is a narcotic analgesic similar in effect to morphine. Demerol is a central nervous system depressant. The drug insert warns prominently that "[Demerol] should be used with great caution and in reduced dosage in patients who are concurrently receiving . . . other CNS depressants .
. .. Respiratory depression, hypotension, and profound sedation or coma may result."
In isolation, the maximum dose is 0.8 mg per pound of body weight when the drug is used as premedication, which is how Respondent used the drug in this case, although the drug insert states that the "usual dosage" is 0.5 mg per pound when Demerol is used for preoperative medication. Using the rate of 0.8 mg per pound, the maximum dosage was 44 mg., if the Demerol had been used in isolation.
No expert opined that the amount of Demerol administered to J. C. would have been excessive, if the drug had been used in isolation. However, when used, as here, in connection with one or more other central nervous system depressants, the dosage of Demerol was excessive, especially when combined with the administration of mepivicaine, as discussed below.
J. C. cried when she received the injection. Respondent left the room, and J. C., evidently agitated, asked her mother, "is this how Grandma died?"
Her mother tried to reassure her that everything was alright. After receiving the injection, J.C. began to rub around her eyes and face. This itchiness was due to a combination of one or more of the following: fidgetiness, continued resistance or possibly minor reaction to the mask, and a short-term release of histamines caused by the administration of the Demerol. However, the itchiness was not evidence of a serious allergic or anaphylactic reaction for reasons discussed below. Respondent's testimony that he noticed itchiness to an extent that he had not previously seen is discredited by, among other things, his failure to chart what would have been an unprecedented observation.
At about the time of the Demerol injection, the nitrous oxide mix was changed, by Respondent's instructions, to 3:5. 1/ Ms. Neff remained with the mother and J. C. for about 30 minutes, waiting for J. C. to relax sufficiently so Respondent could proceed to administer the local anesthetic and begin the extractions. J. C. remained talkative during this period.
While Ms. Neff was waiting with the mother and J.C. for the Demerol to take effect, someone told Ms. Neff that she was needed by another patient. Another assistant, Sarah Staley, joined J. C. and her mother at this time. At about this time, J. C. began to become more subdued.
Aside from the receptionist, Ms. Staley was the least trained of Respondent's employees. First employed by Respondent about one year earlier, Ms. Staley had no prior dental experience. She had not undergone any formal training as a dental assistant or in CPR. Her position was best described as a business assistant/clerk. Ms. Staley was not trained to recognize any symptoms of a patient in sedation.
At about 9:35 a.m., Respondent returned to Operatory #2. Finding J.
C. sufficiently calm to proceed, Respondent began the process of administering mepivicaine.
Mepivicaine, which is also a central nervous system depressant, is a local anesthetic. The drug insert warns: "Great care must be exercised in adhering to safe concentrations and dosages for pedodontic administration." The drug insert adds:
If sedatives are employed to reduce patient apprehension, use reduced doses, since local anesthetic agents, like sedatives, are central nervous system depressants which in combination may have an additive effect. Young children should be given minimal doses of each agent.
Injection of repeated doses of mepivicaine may cause significant increases in blood levels with each repeated dosage due to slow accumulation of the drug or its metabolites, or due to slower metabolic degradation than normal.
Tolerance varies with the status of the patient. Debilitated, elderly patients, acutely ill patients, and children should be given reduced doses commensurate with their weight and physical status.
As to adverse reactions, the drug insert states:
Reactions involving the central nervous system are characterized by excitation and/or depression.
Nervousness, dizziness, blurred vision, or tremors may occur followed by drowsiness, convulsions, unconsciousness, and possible respiratory arrest. . . .
Reactions involving the cardiovascular system include depression of the myocardium, hypotension, bradycardia, and even cardiac arrest.
Allergic reactions are rare and may occur as a result of sensitivity to the local anesthetic. . . . As with other local anesthetics, anaphylactoid reactions to Mepivicaine have occurred rarely. The reaction may be abrupt and severe and is not usually dose related.
The drug insert states that the "lowest dosage needed to provide effective anesthesia should be administered." The drug insert specifies the dosage as follows: "A dose of up to 3 mg per pound of body weight may be administered."
Respondent injected mepivicaine into the area of the upper and lower jaws. Neither Ms. Staley nor the mother noted the number of cartridges of anesthetic that Respondent used. As the injections started, J. C. began to cry, and her mother held her hand to calm her.
A cartridge, or carpule, is a glass tube containing medication in solution form. The cartridge in this case contained a 3% solution of mepivicaine. Each cartridge contained 1.8 cc of the medication or 54 mg. of mepivicaine. The cartridge is placed in the syringe, a negligible amount is expressed to eliminate any air bubbles and to ensure proper operation of the syringe, and then the remainder is available to be injected into the patient.
The evidence is contradictory as to the amount of mepivicaine actually injected into J. C. There are two reasons for this. First, there is conflicting evidence as to the number of cartridges. Second, there is some evidence that less than an entire cartridge was injected each time.
Although not arriving in the operatory until at least 10 minutes after the completion of the mepivicaine injections, dental assistant Kathleen Lyttle charted the entry, "mepivicaine 3%." Respondent later charted the remaining information concerning the number of cartridges of mepivicaine.
Respondent first noted that he had used eight cartridges from 9:30
a.m. to 9:50 a.m. He made entries showing injections into the upper and lower left and right jaws. Although no number was placed next to each location, obviously a pair of injections in each of the four locations would result in eight cartridges.
Respondent then made two interlineations. First, he wrote above the notes for the two upper-jaw entries the following notation: "x2," meaning that two cartridges each were injected in the upper left and right jaw for a total of
six cartridges. The effect of this addition is to imply that only one was injected lower left and right jaw. Second, Respondent crossed out the number "8" and added, above the crossed-out "8," the notation, "5-6," meaning that a total of five to six cartridges were injected.
In a conversation with the Orange County Medical Examiner shortly after the incident, Respondent stated that five to six cartridges were administered. Respondent told the medical examiner that he first completed the injections into the upper and lower left and right jaws, then injected a little more. In a written statement to the medical examiner, Respondent stated that six cartridges were administered.
Petitioner has proved by clear and convincing evidence that Respondent administered to J. C. no less than six cartridges of mepivicaine. This number is consistent with the written statement that Respondent provided the medical examiner. This number is also consistent with the detailed itemization Respondent noted on the dental chart where he showed one injection each in the lower left and right jaw and then two injections each in the upper left and right jaw.
The second issue is whether Respondent injected the entire contents of each cartridge. In his practice, Respondent often did not empty a cartridge of local anesthetic but instead left up to 20% of the contents uninjected.
Petitioner has proved by clear and convincing evidence that Respondent injected the entire contents of the first four cartridges used in the upper right and left jaw, except for the negligible amount expressed for the reasons set forth above.
Respondent had concluded that J. C. was an uncooperative patient. He had already chosen what he testified was the "upper limit" for the Demerol, which in fact was excessive in view of the prior administration of Phenergan. Respondent had also increased the nitrous oxide ratio to administer more nitrous. Most important, Respondent testified that, during his eight-year career, he had ignored maximum recommended dosages of local anesthetics.
Nothing in the record suggests that, in the use of local anesthetics and central nervous system depressants, Respondent subscribed to the maxim, "Start low, go slow." Also, the consequences of the administration of the mepivicaine, which, as noted below, demonstrate local anesthetic toxicity rather than allergic reaction, are strong proof that Respondent administered a dosage of mepivicaine far in excess of the maximum recommended dosage.
As to the final two cartridges, Petitioner has proved by clear and convincing evidence that Respondent did not withhold more than 20% of the contents of each cartridge. There is substantial evidence, as set forth in the preceding paragraph, that Respondent withheld less in this case. However, the results would be the same, based on the following findings.
Respondent's testimony that he administered no more than about 200 mg of mepivicaine is discredited. This would represent the contents from 3.75 cartridges. By the time that Respondent spoke with the medical examiner, he had had more than enough time to reflect on the possibility that J. C. may have suffered a toxic reaction to a local anesthetic. Given that possibility, and the obvious ramifications that it held for Respondent, he certainly would have carefully reflected upon the actual amount of mepivicaine administered to J. C. It is inconceivable that if, instead of 5-6 cartridges, he determined that he had injected only 3.75 net cartridges, he would not have so informed the medical
examiner at that time. It is more likely that the netting process, in order to reflect the unused contents of a cartridge, resulted in a reduction from eight to six cartridges.
Based on the foregoing, the least amount of mepivicaine that Respondent actually injected into J. C. is four full cartridges into the upper and lower jaws followed by not less than four-fifths of a cartridge each injected into the upper right and left jaw. This yields a total of 5.6 cartridges or about 300 mg of mepivicaine.
The finding of 5.6 cartridges or 300 mg of mepivicaine corresponds to Respondent's estimate of 5-6 cartridges. Petitioner has proved by clear and convincing evidence that Respondent's estimate is already reduced by at least the amount of medication that Respondent actually withheld. There is significant evidence, although not clear and convincing, that Respondent injected eight cartridges, which, assuming a 20% reduction even in each injection, means that he administered 6.4 cartridges or about 345 mg of mepivicaine.
When used in isolation, mepivicaine is administered at the rate of not more than three mg per pound of body weight. 2/ In the case of J. C., the maximum recommended dosage would have been 165 mg of mepivicaine, if the drug had been used without any other medications.
When used in connection with other central nervous system depressants or sedatives, like Phenergan, nitrous oxide, and Demerol, mepivicaine's maximum recommended dosage is not more than two mg per pound of body weight. In this case, then, the maximum recommended dosage for J. C. was 110 mg because the drug's effect would be potentiated by the other medications already given J. C.
If J. C. had not been given other drugs, the dosage that she received was 1.8 times more than the recommended maximum dosage. Because she had already received other central nervous system depressants, the dosage that she received was 2.7 times the recommended maximum dosage. 3/
Respondent injected the mepivicaine from 9:35 a.m until about 9:52
a.m. He then left the operatory. As the mother and Ms. Staley watched over J. C., she said, "I love you, mommy." She then turned her head to the side and seemed to fall asleep, lying back in the chair.
Respondent's testimony that, immediately following the injections, J.
C. began to experience extremely bad itching around her eyes and face is discredited. If J. C. had experienced such a remarkable response, Respondent would have at least charted it, if not remained in the operatory until the phenomenon resolved itself. At best, Respondent has confused the onset of the itching, which in fact began with the application of the nitrous oxide mask.
After Respondent left the operatory, the mother and Ms. Staley chatted about their preparations for the new schoolyear. Suddenly, at about 9:57 a.m.,
J. C. sat straight up in the chair with her eyes open unnaturally wide, trying to catch a breath, but unable to do so. After a few seconds, she slumped back into the chair and her arms and legs began shaking violently. After a few more seconds, her posturing and convulsions ended.
Ms. Staley immediately summoned Respondent. Ms. Neff had by chance just been entering Operatory #2 at the moment that J. C. had sat upright in the chair. Ms. Neff immediately turned the nitrous oxide machine to 100% oxygen at its maximum setting of 10+ liters per minute. Ms. Neff testified that she was
unaware that anything was wrong at this time and only thought that J. C. might need to go to the bathroom. Even after a few moments in the operatory, Ms. Neff continued to think that the they simply had "a nervous little girl in the chair."
Another dental assistant, Lisa Ann Barlette, who was in the operatory across the hall, happened to see out of the corner of her eye J. C. when she had sat upright. Ms. Barlette had almost two years' experience as a dental assistant and was currently certified in CPR and dental radiology.
Immediately excusing herself from her patient, Ms. Barlette started to walk across the hall into Operatory #2 and saw J. C.'s hands trying unsuccessfully to push the nitrous oxide mask up over her nose. Respondent entered the operatory immediately ahead of Ms. Barlette, who remained in the doorway.
Respondent and Ms. Staley were telling J. C. to calm down. Upon entering Operatory #2, Respondent immediately tilted J. C.'s head back and chin up so as to establish an airway and eliminate any upper airway obstructions. He also began to take her pulse.
Respondent noted that J. C. was in "severe respiratory distress." At about 10:03 a.m., J.C. had a second seizure in which she stiffened and then shook violently. She had a third seizure at about 10:04 a.m. and a fourth at about 10:05 a.m. She suffered a fifth seizure, of somewhat lesser intensity, at about 10:07 a.m. and a more intense seizure at about 10:09 a.m.
During these seizures, J. C. gasped, as though sobbing, and continued to breathe as though she was trying to catch her breath. Between seizures, she responded to her mother with eye movements and by squeezing her hand. When told by her mother or Respondent to relax, J. C. responded by relaxing her grip. These were the limits of J. C.'s responses following the onset of the convulsions.
At about 10:04 a.m., Respondent ordered that a rubber bite block be inserted to help control the upper airway during the seizures. After a few minutes following the first seizure, Ms. Staley began to suction mucous secretions from J. C. and continued to do so while J. C. remained in the chair.
Entering Operatory #2 shortly after the clinical emergency began, Kathleen Lyttle, who later charted the mepivicaine, asked Respondent if he wanted her to take J.C.'s vital signs. Respondent nodded yes, and, because the blood pressure cuff in Operatory #2 was behind Ms. Staley and difficult to reach, Ms. Lyttle obtained one from another operatory.
Ms. Lyttle was currently certified in dental radiology and CPR. She seemed to be the most experienced among Respondent's employees in handling a clinical emergency.
Respondent administered at about 10:12 a.m. 4/ one cc of Narcan (0.4 mg/ml) by injection into the jaw. Narcan is a narcotic antagonist capable of counteracting the Demerol within seconds. At this time, J. C.'s respirations were beginning to decrease and she began to become cyanotic from a lack of oxygen. About a minute after injecting the Narcan, Respondent administered one ml of adrenalin chloride 1:1000 in the form of epinephrine solution by injection below the tongue.
Attaching the blood pressure cuff on J.C.'s right thigh, Ms. Lyttle took her first reading of J. C.'s vital signs at about 10:13 a.m. J. C.'s blood pressure was 160/90, her pulse was 160, and her respiration was irregular. The vital signs were unchanged one minute later. By 10:15 a.m., the pulse and respiration were unchanged, but the blood pressure had dropped to 115/44. The interval between seizures was increasing, the seizures seemed to be lessening in intensity, and J.C. continued to respond between seizures in the manners described above.
At about this point, Ms. Lyttle then turned to the mother and asked if
J. C. had epilepsy. When told that she did not, Ms. Lyttle said, "Well, she's having an epileptic seizure."
Since the first seizure, the mother had been standing in front of J.
C. holding her arms or, as instructed by Ms. Lyttle shortly after she entered the operatory, massaging her daughter's chest. She could see her daughter's eyes moving wildly, then focusing as though on something in the distance that the rest of them could not see. Sometime after Ms. Lyttle had asked about epilepsy, which probably was after 10:15 a.m., the mother told Respondent to call the hospital, but no one responded.
Ms. Barlette had earlier expressed the possibility of contacting emergency medical services. At about 10:00 a.m., Ms. Barlette caught Respondent's eyes and mouthed the words, "Do you want me to call?" She did not give voice to the words to avoid further alarming the mother. Staring at him, Ms. Barlette saw no response. It is not clear that Respondent comprehended what Ms. Barlette was trying to communicate.
Within 30 seconds after her voiceless request, Ms. Barlette, noting that J. C. was turning red, caught Respondent's attention and asked audibly, "Do you want me to call 911?" About one minute later, or no later than 10:02 a.m., by which time J.C. had turned purple, Ms. Barlette repeated her request. Responding to neither request, Respondent evidently was so preoccupied that he either did not hear the requests or their meaning did not register with him.
Despite the clear clinical emergency, the only vital sign taken was J. C.'s pulse until 10:13 a.m., when Ms. Lyttle first read J. C.'s vital signs. Surprisingly, the chronologies prepared by Respondent, the dental chart, and the testimony fail to disclose any meaningful activity during the period from 10:15
a.m. through 10:30 a.m.
By the end of this 15-minute period, the seizures, which had evidently decreased in frequency and intensity, reintensified to the degree to which they resembled the early seizures. The next entry on the chart following 10:13 a.m. is 10:30 a.m., at which time J. C.'s vital signs are blood pressure 115/44, pulse 180, and respiration irregular. The notes add, "cardiac irreg[ular with] arrhythmia." Respondent's oral and written statements to the medical examiner add that J. C. was cyanotic or becoming cyanotic at this time. Five minutes later the vitals are 90/54, 200 and climbing, and irregular respiration.
In the meantime, at about 10:34 a.m., Ms. Neff took the mother out of the room so she could make any telephone calls that she thought necessary, such as to alert J.C.'s father. The mother went into a nearby conference room for a few minutes, but was unable to make any calls because she could not remember anyone's telephone number.
At 10:36 a.m., the chart notes for the first time "bronchial spasms [with] laryngeal spasms." The vitals are 60/44, 200 and climbing, and irregular respiration with tachycardia. The pulse is now thready and shallow.
At 10:38 or 10:39 a.m., Ms. Lyttle stated that the blood pressure had "bottomed out." J. C. was in respiratory and cardiac arrest. Ms. Lyttle asked, "Call 911?" Respondent answered, "Go." Ms. Lyttle called 911 at about 10:41 or 10:42 a.m. and summarized the situation. Ms. Barlette later helped with the call.
In the meantime, Respondent had taken J. C. from the chair and placed her on the floor where he could begin CPR. She vomited and aspirated the vomit and some mucous before Respondent cleared the vomit from her mouth and upper throat. Respondent began mouth-to-mouth and Ms. Lyttle, who had left Ms. Barlette with the phone, returned and immediately commenced compressing J. C.'s chest.
As the mother was returning to Operatory #2, the mother heard Ms. Barlette on the telephone saying something about "Demerol." When she reentered the operatory, she saw that her daughter was now on the floor undergoing CPR. Although still without any pulse, J. C.'s color began to return to normal.
The first ambulance arrived at 10:51 a.m. The paramedics found that
J. C. was unconscious. Her lung sounds were clear, her pupils dilated, and her skin warm and dry. She still had no pulse, respiration, or blood pressure.
Within a couple of minutes, the paramedics, after one failed attempt, successfully intubated J. C. and began ventilating her with an ambu bag that is attached to a portable oxygen cylinder. J. C. tried unsuccessfully to take a couple of breaths. After placing MAST pants on her to force the blood from her lower extremities, the paramedics quickly placed her on a rigid back board and transported her to Florida Hospital-- Altamonte Springs.
From Florida Hospital--Altamonte Springs, J. C. was transferred by helicopter to Florida Hospital--South. However, she never regained consciousness and expired the evening of the following day.
At 11:09 a.m., Respondent's office informed Florida Hospital-- Altamonte Springs of the medications given. In addition to noting aspects of the emergency treatment that J. C. received from the paramedics while still in Respondent's office, including being placed on oxygen under a positive pressure delivery system, the dental chart notes at the bottom: "1) anaphylactic response . . . to Demerol." Under this entry is "2) mepivicaine." The second entry is then crossed out.
The internal examination of the autopsy revealed, as to the lungs, "moderate pulmonary congestion and edema . . .." As to the brain, there was "marked generalized brain swelling and softening." As for the brain-stem, cerebellum, and portion of the cerebrum, there was "severe generalized edema and softening."
Upon microscopic examination, the autopsy reveals, as to the central nervous system, no evidence of chronic hypoxia, but "diffuse marked edema and hypoxic injury . . .." The lungs show "much pulmonary edema and congestion . .
. with multifocal early bronchopneumonia . . .." The report continues:
The changes in the lungs are consistent with acute bronchopneumonia, due to gastric aspiration, or due to reduced pulmonary toilet from being on a respirator with a greatly decreased mental status with or without gastric aspiration.
Numerous factors compel the rejection of Respondent's theories that J.
C. suffered an allergic, anaphylactic, or anaphylactoid reaction, perhaps in combination with an asthma attack. The evidence is clear and convincing that Respondent administered J. C. mepivicaine in excess of the maximum recommended dosage and, as a result of the overdose, J.C. suffered a toxic reaction to the local anesthetic.
In dentistry, the overadministration of a drug, including a local anesthetic, accounts for about 85% of all adverse drug reactions. Drug allergies account for only about 15% of adverse drug reactions. Drug overdoses are even slightly more common in children than in adults.
The central fact is that Respondent administered an overdose of mepivicaine to J. C. of 2.7 times the maximum recommended safe dosage. The patient's young age raised the possibility of higher blood levels per unit dose due to the greater likelihood that the functions of absorption, metabolism, and excretion in a child may be imperfectly developed. Another predisposing factor of which Respondent was aware was the stress and anxiety that J.C. has previously displayed. The local- anesthetic seizure threshold is reduced in such patients.
The ensuing signs and symptoms are further evidence that J. C. died due to local anesthetic toxicity caused by the administration of an overdose of mepivicaine.
The first effect of a toxic reaction to mepivicaine would be to depress the central nervous system. This effect manifested itself in J. C.'s case by the first objective signs: posturing and convulsions.
Characteristic of toxic reactions to local anesthetics, such as mepivicaine, is a central nervous system excitatory phase. The reason for an excitatory phase is that the neurons in the central nervous system associated with excitation or stimulation are the last to be depressed by plasma levels of local anesthetics. Once unrestrained by the now-depressed inhibitory neurons, the electrical activity proceeds freely along the stimulatory pathways and stimulates muscle tissue, which may result in convulsions.
The patient suffering an allergic reaction would not experience seizures until he had suffered hypoxia, which is an oxygen deficiency. At the time of J. C.'s initial seizures, which were due to the depression of aspects of the central nervous system, her breathing was still sufficient to preclude allergy-induced hypoxia.
The depression of the central nervous system also affects respiration and blood pressure, as basic brain activities begin to decrease. During the early stages of the clinical emergency, J. C. continued to try to breathe.
Contrary to Respondent's assertions, these efforts coupled with labored breathing were not evidence of an allergic reaction, but were entirely characteristic of central nervous system depression.
The course of a toxic reaction to a local anesthetic proceeds to respiratory depression, where, as Respondent acknowledges, the desire to breathe is decreased. Then, the patient proceeds to respiratory arrest, followed by cardiac depression and cardiac arrest.
This process is the result of reduced oxygen to the brain. The central nervous system depression initiates the reduction of oxygen to the brain. The seizures themselves exacerbate the problem. The convulsing brain requires increased oxygen to continue functioning. During the seizure, the patient breathes little, if at all. Once the brain activity has been impaired to the extent that respiratory depression begins, obviously the flow of oxygen is impaired even further, which further raises the likelihood of seizures. The flow of oxygen to the brain obviously ends completely with respiratory arrest. Within four to five minutes, the oxygen-deprived brain sustains irreversible damage.
The evidence of allergy, including an anaphylactic reaction, is insubstantial. As noted above, Respondent administered an excessive amount of mepivicaine to J. C., and allergic reactions are very rare relative to drug overdoses.
In addition, seizures and central nervous system excitement are not typically associated with allergic or anaphylactic reactions. Likewise, high blood pressure readings are uncharacteristic of allergic or anaphylactic reactions. The patient suffering an allergic reaction, such as an anaphylactic reaction, typically suffers only depressed blood pressure. The person suffering a toxic reaction to a local anesthetic experiences, as did J. C., first high blood pressure and then decreased blood pressure.
Respondent asserts that several signs suggest the presence of an allergic or anaphylactic reaction. Itching is a classic sign of an allergic reaction. However, the itching in this case has been explained above. At most,
J. C. may have experienced a minor reaction to the Demerol or a substance in the mask. The timing of J. C.'s subsequent symptoms is too delayed to be attributed as an allergic or anaphylactic reaction to the Demerol, nitrous oxide, or mask itself. Because the itchiness preexisted the administration of the mepivicaine, the local anesthetic could not have caused the itching.
Another classic sign of an allergic reaction is a rash, but no rash was reported in this case. The tenacious mucous that Respondent reports did not appear initially. Such mucous is nonspecific and normally attends dental procedures, especially when the patient is a child under sedation. Moreover, when the body is undergoing a crisis of the type suffered by J.C., such mucosal secretions are normal.
There is no reliable evidence of significant pulmonary edema, which is the accumulation of fluids within the air cells of the lungs, until at a stage of the clinical emergency at which the sign becomes quite nonspecific. Although associated with allergic reactions, pulmonary edema and congestion may also accompany local anesthetic toxicity, especially following the onset of respiratory depression. In any event, pulmonary edema and congestion are extremely common when persons die other than suddenly, as edema and congestion are associated with the failure of the respiratory and cardiovascular systems.
The evidence of bronchial spasms and wheezing offered by Respondent is unpersuasive. Although normally associated with allergic or anaphylactic reactions, bronchial spasms and wheezing, to whatever extent they existed at all, do not appear to have been defining signs or symptoms of J. C.'s clinical emergency.
A case report appearing in the November-December 1991 issue of the Journal of Dentistry for Children describes a case featuring many similarities with that of J. C. In the reported case, a five year old girl was being prepared for multiple extractions. After receiving five minutes of nitrous oxide at an unknown concentration, she then received five cartridges of 3% mepivicaine or 270 mg of the drug.
Ten minutes later the girl experienced "'stiffening and shaking' of all extremities that lasted approximately ten seconds." She then underwent another convulsive episode, after which she was placed on 100% oxygen. After a third convulsive episode, the patient was still breathing on her own but was no longer responsive to verbal commands. Ten minutes after the first convulsion, she was transferred to a physician's office where she arrived in cardiac and respiratory arrest.
Following CPR, the patient was given sodium bicarbonate, epinephrine, calcium gluconate, and atropine about 55 minutes after being given the local anesthetic. She was then transferred to a hospital where she was intubated due to lack of spontaneous respirations. Four days later, she was declared brain dead due to anoxic brain injury secondary to cardiopulmonary arrest following an overdose of mepivicaine.
The article quotes "Malamed," who is the author of Respondent Exhibit 2, as advising that the maximum safe dose of mepivicaine is two mg per pound of body weight. 5/ The case report notes that higher blood levels of mepivicaine, resulting from more high overdoses, may result in convulsions due to
an initial blockage of inhibitory neurons in the CNS, thus leaving the excitatory neurons firing unopposed. Still further increases in blood levels lead to unconsciousness and respiratory depression. The cardiovascular effects of a local anesthetic overdose include vasodilation, which in turn can lead to a drop in systemic blood pressure. There is also a direct depressant effect on the myocardial cell membrane, which can cause a progressive bradycardia and full cardiac arrest. Death can occur due to either respiratory depression or cardiac arrest. It is also important to realize the narcotic sedative regimens lower the convulsive threshold of local anesthetic and increase the likelihood of respiratory depression.
The case report explains that average peak blood levels of 3% mepivicaine usually appear within 15-30 minutes following injection, and the plasma half-life is 90-120 minutes. The report concludes that, based on injection volumes, the maximum safe dosages are more rapidly reached with 3% mepivicaine than with 2% lidocaine plus epinephrin, which extends the effectiveness of the local anesthetic.
In addition to confirming signs and symptoms described above, the article provides evidence that, in terms of the timing of signs and symptoms,
J.C. suffered from a toxic reaction to an overdose of a local anesthetic. The first seizure took place 22 minutes after the first injection and five minutes after the last, which corresponds both to the timeframe for average peak blood levels and the 10-minute delay in the reported case.
Not only did Respondent clearly fail to attain the minimum standards of performance in diagnosis and treatment when measured against prevailing peer performance (Standard of Care) in administering an overdose of mepivicaine to J. C., he then failed to attain the Standard of Care in equipping himself for detecting and managing such a clinical emergency and in the actual management of the crisis.
The preparation of J. C. in this case is an example of the use parenteral conscious sedation. Parenteral conscious sedation, which alters a patient's awareness, does not render the patient unconscious or affect his active reflexes, such as a choking response. This type of sedation is defined further in the Conclusions of Law.
First, Respondent's office lacked a pulse oximeter. This noninvasive device constantly measures the subject's pulse and oxygen saturation level in the peripheral blood. The failure to have and use a pulse oximeter while administering parenteral conscious sedation is in itself a failure to attain the Standard of Care. With such a device in J.C.'s case, Respondent probably would have been able to detect reduced oxygen levels, as a result of central nervous system depression, well in advance of the first convulsion. With proper treatment, Respondent possibly could have prevented the convulsions and averted the ensuing clinical emergency.
Second, Respondent's office lacked a positive pressure oxygen delivery device. Unlike the pulse oximeter, which is a diagnostic device, the positive pressure oxygen device is used to treat certain patients who are suffering respiratory distress. The importance of this device is underscored by the fact that it is not unusual for a patient under parenteral conscious sedation to stop breathing or require breathing assistance. The dentist must then inflate the patient's lungs, typically using one of two devices: the demand valve mask or the breathing bag. The failure to have a positive pressure oxygen delivery system during the parenteral conscious sedation of a patient is in itself a failure to attain the Standard of Care.
A dentist with ready access to a pulse oximeter and positive pressure oxygen delivery device should have been able to manage J. C.'s toxic reaction to the mepivicaine without the loss of life or even serious injury. Even without a pulse oximeter, a dentist should have been able to manage this clinical emergency without the loss of life or even serious injury.
The proper management of the clinical emergency requires a thorough understanding of the process by which the body reacts to an overdose of a local anesthetic. Respondent tragically failed to apprehend the significance of the mepivicaine overdose that he had administered, evidently thinking instead that
J. C. was exhibiting signs of an allergic or anaphylactic reaction, possibly to the mepivicaine.
The Standard of Care requires that a dentist determine in the first five minutes following a convulsion if he is going to require emergency medical services and, if so, to summon such services at that time.
The first thing the dentist must do after a patient suffers a convulsion is to establish an airway, which is a direct line from the patient's mouth to his lungs. If all that is required is to tilt the head back and chin up, as Respondent did, then such action is of course is sufficient. If, as here, such action is insufficient, the Standard of Care demands that a dentist using parenteral conscious sedation be prepared and able to insert an endotracheal tube or nasal airway in order to create a path for oxygen to reach the lungs.
Responding to a question concerning Respondent's care in diagnosing and treating J. C. after the onset of convulsions, Respondent's expert, Dr. Wecht, conceded that Respondent failed to attain the Standard of Care:
I think, with the time sequence here, given the circumstances, the panic, the anxiety, you know, were all understandable. I don't see anything dramatically negligent here in terms of wanton gross neglect, criminal negligence and so on. I just don't see it.
Could this case be argued in the context of plain, unadorned negligence, could it be a bona fide malpractice case? Those are reasonable observations and inquiries, and I would be the first one to say that the answer to that could, indeed, be yes . . ..
Respondent Exhibit 6, page 43.
Respondent failed to manage the clinical emergency in a manner consistent with the Standard of Care. The evidence is overwhelming that he did not in fact maintain an effective airway. He was critically handicapped by the absence of a positive pressure oxygen delivery system. Switching the nitrous oxide machine to 100% oxygen did not help J. C., whose inspirations had become so impaired that she required ventilation. Had Respondent commenced CPR within the first few minutes of the onset of the convulsions, rather than about 45 minutes later, the brain injury might have been minimal. However, by the time Respondent commenced CPR, it was too late. By this time, ventilating the patient with 100% oxygen, as the paramedics did upon their arrival 12 minutes later, could do nothing for the severe brain damage that J. C. had already suffered.
Respondent again failed to attain the Standard of Care by not summoning paramedics for about 45 minutes after the initial convulsion. Had he heeded the request of Ms. Barlette to call 911, there is a good chance that J.
C. would not have died, notwithstanding Respondent's administration of an overdose of mepivicaine, absence of vital equipment, and evident inability to diagnose and treat the ensuing clinical emergency.
Malamed, quoting Goodson and Moore, "Life Threatening Reactions after Pedontic Sedation: an Assessment of Narcotic, Local-Anesthetic, and Antiemetic Drug Interaction," in the Journal of American Dental Association, 107:239, 1983, states that the use of sedative techniques accompanied by the administration of narcotics requires continual monitoring of the cardiovascular and respiratory systems, ability of the practitioner to recognize and control the respiratory arrest and convulsions that are "easily induce[d]" by multiple sedative drug techniques, careful selection of dosages based on the body weight of the
patient, and readiness to change the technique of sedation or choice of drugs at a later appointment rather than merely increasing the dosage when the initial dosage proves inadequate.
Malamed reports that a recent three-year study attributed most deaths occurring in the dental practice related to the administration of drugs involved three factors:
Improper preoperative evaluation of the patient.
Lack of knowledge of drug pharmacology by the doctor.
Lack of adequate monitoring during the procedure.
Id. at p. 299. Malamed concludes:
. . . with care on the part of the doctor, the incidence of [an overdose reaction to the administration of CNS-depressant drugs] should be extremely low, and a successful outcome should occur virtually every time.
Id.
On March 28, 1991, Respondent was indicted for the second degree
felony of manslaughter in connection with the death of J. C. In a supplemental statement of particulars, the State of Florida alleged that Respondent administered an inappropriately high dosage of mepivicaine, Respondent's office was not equipped with a pulse oximeter or positive pressure oxygen delivery system, Respondent failed timely to contact emergency medical services, and Respondent thereby displayed a reckless disregard for human life.
By plea agreement signed October 31, 1991, Respondent pleaded nolo contendere to the charge of manslaughter and waived his right to appeal any pretrial rulings. He was adjudicated guilty by judgment entered the same day and sentenced, pursuant to the agreement, to six months' community control followed by five years' supervised probation, together with various costs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Petitioner has jurisdiction to discipline dentists for various offenses. Section 466.028.
Section 466.028(1)(q) provides that disciplinary action may be taken for the following acts:
Prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the professional practice of the dentist. For the purposes of this paragraph, it shall be legally presumed that prescribing, procuring, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, in
excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the professional practice without regard to his intent.
Section 466.028(1)(y) provides that disciplinary action may be taken if a dentist is:
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, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice. For purposes of this paragraph, it shall be legally presumed that a dentist is not guilty of incompetence or negligence by declining to treat an individual if, in the dentist's professional judgment, the dentist or a member of his clinical staff is not qualified by training
and experience, or the dentist's treatment facility is not clinically satisfactory or properly equipped to treat the unique characteristics and health status of the dental patient, provided the dentist refers the patient to a qualified dentist or facility for appropriate treatment. As used in this paragraph, "dental malpractice" includes, but is not limited to, three or more claims within the previous 5-year period which resulted in indemnity being paid, or any single indemnity paid in excess of $5000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.
Section 466.028(1)(aa) provides that a dentist may be disciplined for "[d]elegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform them."
Section 466.028(1)(bb) states that a dentist may be disciplined for a violation or repeated violation of Chapter 486, Chapter 455, or any rules promulgated pursuant to either chapter.
Section 466.028(1)(gg) provides that a dentist may be disciplined for the following acts:
Operating or causing to be operated a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community. This includes, but is not limited to, the use of substandard materials or equipment, the imposition of time limitations within which dental procedures are to be performed, or the failure to maintain patient records as required by this chapter.
Section 466.028(1)(hh) states that a dentist may be disciplined for "[a]dministering anesthesia in a manner which violates rules . . . adopted pursuant to s. 466.017."
Adopted pursuant to Section 466.107, Rule 21G parenteral conscious sedation as:
A depressed level of consciousness produced by the parenteral administration of pharmacologic substances, that retains the patient's ability to independently and continuously maintain an airway and respond appropriately to physical stimulation or verbal command. This modality includes administration of medications via all parenteral routes: that is, intravenous, intramuscular, subcutaneous, submucosal, or inhalation. For the purposes of this rule, nitrous oxide used in combination with oral drugs which results in a depressed level of consciousness is considered parenteral conscious sedation. This includes the use of nitrous oxide in combination with oral drugs (e.g. chloral hydrate).
Rule 21G-14.001(5) defines nitrous-oxide inhalation analgesia as:
The administration by inhalation of a combination of nitrous-oxide and oxygen producing an altered level of consciousness and retains the patient's ability to independently and continuously maintain an airway and respond appropriately to physical stimulation or verbal command.
Rule 21G-14.001(7) defines the office team approach as:
A methodology employed by a dentist in the administration of general anesthesia and parenteral conscious sedation whereby the dentist may use one or more qualified anesthetic assistants/dental hygienists who, working under the direct supervision of the dentist, assist the dentist, and assist in emergency care of the patient.
Rule 21G-14.004 allows:
Dental assistants and dental hygienists [to] monitor nitrous-oxide inhalation conscious sedation under the direct supervision of a licensed dentist who is permitted by rule to use general anesthesia, parenteral conscious sedation, or nitrous-oxide inhalation conscious sedation . . . under the following conditions:
Satisfactory completion of no less than a two-day course of training as described in the American Dental Association's "Guidelines for Teaching and Comprehensive Control of Pain and Anxiety in Dentistry" or its equivalent; and
Maintenances of competency in cardiopulmonary resuscitation evidenced by certification . . ..
Rule 21G-14.009 requires holders of parenteral conscious sedation permits, such as Respondent, to comply with the following requirements:
* * *
The following equipment must be readily available to the operatory . . . and maintained in good working order:
A positive pressure oxygen delivery system, including a full face mask for adults and for pediatric patients, if pediatric patients are treated;
Oral and nasal airways of various sizes;
Blood pressure cuff and stethoscope;
A pulse oximeter which provides continuous monitoring of heart rhythm and rate of oxygen saturation
of the blood shall be used during each procedure. 6/
Rule 21G-14.009(7) requires that certain records be kept when parenteral conscious sedation is administered:
* * *
Base line vital signs, including blood pressure and pulse; and
An anesthesia record which shall include:
periodic vital signs taken at appropriate intervals during the procedure;
drugs administered during the procedure, including route of administration, dosage, time and sequence of administration;
duration of the procedure;
documentation of complications or morbidity;
and
status of patient upon discharge.
Section 455.028(1)(c), which was added by the Amended Administrative Complaint, provides that a dentist may be disciplined for
Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which relates to the practice of dentistry or dental hygiene. Any plea of nolo contendere shall be considered a finding of guilt for purposes of this chapter.
Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Respondent violated all or part of each of the above-cited disciplinary provisions.
When a dentist has been proved to have violated one or more provisions of Section 466.028(1), Section 466.028(2) authorizes the Board of Dentistry to enter an order revoking or suspending the license, placing the dentist on probation, imposing an administrative fine in an amount not to exceed
$3000 per count or separate offense, issuing a reprimand, and restricting the scope of practice.
Rule 21G-13.005 sets forth disciplinary guidelines. Rules 21G- 13.005(3)(bb) and (cc) provide that probation, restriction of practice, suspension, and revocation are the normal penalties for incompetence, negligence, or malpractice. Rule 21G-13.005(3)(t) provides the same penalties for the administration of legend drugs other than in the course of the dentist's professional practice.
Rule 21G-13.005(4) identifies aggravating and mitigating factors to be considered in establishing the appropriate penalty. On the aggravating side, the factors include the severity of the offense, the danger to the public, the actual damage and its reversibility, and the deterrent effect of the penalty.
On the mitigating side, the factors are the number of repetitions of offenses or patients involved, the length of time since the violation, the lack of prior discipline, and the effect of a severe penalty on the dentist's livelihood. The other factors are either minor or are not established in the record.
Based on the foregoing, it is hereby
RECOMMENDED that the Board of Dentistry enter a final order revoking the license of Respondent.
ENTERED this 24th day of February, 1992, in Tallahassee, Florida.
ROBERT E. MEALE
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 24th day of February, 1992.
ENDNOTES
1/ Ms. Neff, who made the adjustment on the nitrous oxide machine, recorded the new setting as 3.5:3.5, which would mean that considerably more nitrous, relative to oxygen, was administered to J.C. than would have been with a 3:5 mix. She charted a 3.5:3.5 mix and testified with conviction that she was sure that she changed the mix to 3.5:3.5. It is in fact quite possible that the mix was set at 3.5:3.5, but no testimony dealt with the effect of such a mixture.
Thus, the 3:5 mix later reported by Respondent has been set forth above.
2/ Petitioner Exhibit 34, which is a chapter from a treatise upon which Respondent relied, states, as of 1986, that the maximum recommended dose of mepivicaine, in isolation, is 2.0 mg per pound. It is unnecessary to address the question of which dosage should have been used. The recommended order uses the more liberal dosage of 2.0 mg per pound, when mepivicaine is used with other CNS depressants, and 3.0 mg per pound when the drug is used in isolation.
3/ Respondent testified that he estimated that he actually injected 150-202.5 mg of mepivicaine into J.C. Although this testimony has been rejected for the reasons set forth above, the implications from Respondent's own testimony are startling. Although he is aware that he is exceeding the maximum recommended dosage, Respondent is unable to determine within a margin of error of less than about 50 mg the amount of medication that he administered to J.C. This amount is almost 1/3 of the maximum recommended dosage when the drug is used in isolation.
As already noted, 165 mg represents the maximum recommended dosage when mepivicaine is used in isolation. Respondent's testimony in essence concedes that he himself cannot state definitively that he did not overdose J.C., even if he had been using mepivicaine in isolation. Obviously, even the lower range is excessive -- by 36% -- when the additive effect of the various central nervous system depressants is considered.
The failure of Respondent to chart, or cause to be charted, the specific amount of mepivicaine actually administered to J.C., contemporaneous to the administration, is itself a violation of the applicable standard of dental care. The impact of Respondent's failure is heightened by his own inability to specify within a reasonable range the amount of mepivicaine actually injected into J.C. If Respondent in fact lacked the knowledge of exactly how much mepivicaine he had injected into J.C., this ignorance may have led to his failure to diagnose the mepivicaine overdose and begin timely, effective treatment.
4/ This is the time shown on the dental chart and Respondent's Exhibit 1. In the oral statement to the medical examiner, Respondent said that he administered the Narcan at 10:10 a.m. and the respiratory distress was "more severe." However, in his written statement, Respondent reported that he administered the Narcan at 10:00 a.m. It should be noted, though, that this entry, as well as an entry noting "Respiratory distress--severe" immediately preceding it, are the only two entries out of chronological order in the written statement. The two entries fall between 10:09 a.m. and 10:13 a.m., or, in other words, in the same timeframe as when the chart notes the administration of Narcan (10:12 a.m.) and when Respondent first told the medical examiner that the Narcan was administered and respiratory distress was "severe" (10:10 a.m.).
5/ See footnote 20.
6/ The evidence established that, as of August 16, 1989, this requirement was imposed only in the case of pediatric patients.
APPENDIX TO RECOMMENDED ORDER
Treatment Accorded Petitioner's Proposed Findings 1-10: adopted or adopted in substance.
11: adopted as to 5-6 carpules.
12-19: adopted or adopted in substance, except second sentence rejected as unnecessary.
20: adopted as to 44-45 minutes.
21-22: adopted or adopted in substance. 23-25: rejected as not finding of fact.
26-32: adopted or adopted in substance. 33: rejected as subordinate.
34: rejected as not finding of fact.
35-37: adopted or adopted in substance. 38-42 and 44: rejected as unnecessary.
43 and 45-60: adopted or adopted in substance.
61: adopted on these facts.
Copies to:
Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
William Buckhalt Executive Director Board of Dentistry
1940 North Monroe Street Tallahassee, FL 32399-0792
Albert Peacock, Senior Attorney Nancy M. Snurkowski, Chief Attorney
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399
T. Dwight Barron
201 Thistlewood Circle Longwood, FL 32779
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.
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. | CASE NO.: | 90-5112 |
LICENSE NO.: | DN0008830 | |
T. DWIGHT BARRON, D.M.D., |
Respondent.
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FINAL ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on April 10, 1992, in Miami, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit A) in the case of Department of Professional Regulation v.
Dwight Barron, D.M.D., Case No. 90-5112. At the hearing, Petitioner was represented by Nancy M. Snurkowski, Chief Attorney. Respondent did not appear and was not represented by legal counsel. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Hearing Officer's Findings of Fact paragraph 1-5, 7-120, and 122-
124 are approved, adopted and incorporated herein by reference as findings of the Board in this matter.
Paragraph 6 of the Hearing Officer's Findings of Fact is modified in the third to last sentence to replace the words "as well as 0.9 cc of" with the word "with." As modified, paragraph 6 is approved, adopted and incorporated herein by reference as a finding of the Board in this matter.
Paragraph 121 of the Hearing Officer's Findings of Fact is corrected in the second line by replacing the word "Pedontic" with the word "Pedodontic." As corrected, paragraph 121 is approved, adopted and incorporated herein by reference as a finding of the Board in this matter.
There is competent, substantial evidence to support the Board's Findings.
CONCLUSIONS OF LAW
The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.
The Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference.
There is competent, substantial evidence to support the Board's conclusions.
The Board approves and adopts the Hearing Officer's recommendation that Respondent have his license to practice dentistry in Florida REVOKED.
WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated Section 466.028(1)(q)(y)(aa)(bb)(gg) and (hh), Florida Statutes, and Rule Sections 21G- 14.009(3) and (7), Florida Administrative Code, and Respondent shall have his license to practice dentistry in Florida REVOKED.
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 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 thirty (30) days of the date this Final Order is filed.
DONE AND ORDERED this 11th day of May , 1992.
BOARD OF DENTISTRY
CHARLES L. ROSS, JR., D.D.S. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by Certified United States Mail this 11th day of May , 1992, to T. Dwight Barron, 201 Thistlewood Circle, Longwood, Florida 32779, and hand delivered to Nancy M. Snurkowski, Chief Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0750.
William H. Buckhalt, C.P.M. Executive Director
Board of Dentistry
| Issue Date | Proceedings |
|---|---|
| May 14, 1992 | Final Order filed. |
| May 12, 1992 | Final Order filed. |
| Feb. 24, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 12/4-6/91. |
| Feb. 21, 1992 | (Petitioner) Proposed Recommended Order filed. |
| Feb. 10, 1992 | Deposition of Vincent Dimato filed. |
| Feb. 07, 1992 | Order Publishing Ex Partes Communications sent out. |
| Feb. 04, 1992 | Petitioner's Exhibits 1 -34 ; & Cover Letter to REM from N. Snurkowski filed. |
| Jan. 27, 1992 | Deposition of Cyril H. Wecht filed. |
| Jan. 24, 1992 | Order on Filing Deposition Transcripts and Proposed Recommended Orders sent out. |
| Jan. 17, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Jan. 09, 1992 | (Petitioner) Notice of Rebuttal Witness filed. |
| Jan. 06, 1992 | Transcript (Vols 1-5) filed. |
| Jan. 03, 1992 | Exhibits Cover Letter to REM from D. Barron filed. |
| Dec. 16, 1991 | Order of Publishing Ex Parte Communications sent out. |
| Dec. 13, 1991 | CC Merck Manuel as mentioned in HO's Order w/copy of Withdrawal + other supporting papers filed. |
| Dec. 12, 1991 | Petitioner`s Notice of Filing Petitioner`s Exhibits filed. |
| Dec. 04, 1991 | (Respondent) Motion for Continuance filed. |
| Dec. 04, 1991 | Final Hearing Held 12/4-6/91; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Dec. 04, 1991 | (respondent) Motion for Continuance filed. |
| Dec. 02, 1991 | Notice of Service of Witness List filed. (From T. Dwight Barron) |
| Dec. 02, 1991 | (Petitioner) Motion in Limine filed. |
| Dec. 02, 1991 | Letter to Nancy M. Snurkowski from T. Dwight Barron (re: Request for a motion for indefinite continuance) w/attached circuit court pleadings) filed. |
| Nov. 26, 1991 | (Petitioner) Notice of Service of Wintess List filed. |
| Nov. 26, 1991 | Final Order Compelling Respondent to Comply with Discovery sent out. |
| Nov. 26, 1991 | Notice of Filing Transcript; Transcript of Telephone Conference Call filed. |
| Nov. 25, 1991 | Transcript filed. |
| Nov. 21, 1991 | Order Granting Leave to File Amended Administrative Complaint, Compelling Discovery From Respondent, and Requiring Petitioner to Serve Witness List sent out. |
| Nov. 21, 1991 | (Petitioner) Notice of Emergency Conference Call Hearing; Amended Administrative Complaint filed. |
| Nov. 20, 1991 | (Petitioner) Motion For Emergency Conference Call Hearing; Motion ForLeave to Amend the Administrative Complaint w/Exhibits A&B; (Petitioner) Motion to Compel A Response to Petitioner's Discovery w/Exhibits A-H filed. |
| Sep. 20, 1991 | Notice of Withdrawal filed. (From Keith C. Hetrick) |
| Sep. 18, 1991 | Notice of Taking Deposition filed. (From Nancy M. Snurkowski) |
| Jul. 31, 1991 | (Petitioner) Notice of Taking Deposition (10) filed. (From Nancy M. Snurkowski) |
| Jun. 28, 1991 | Order Granting Continuance sent out. (hearing rescheduled forDec, 2-6, 1991; 9:30am; Sanford). |
| Jun. 26, 1991 | (Petitioner) Respone to Respondent's Motion to Continue filed. (From Nancy M. Snurkowski) |
| Jun. 26, 1991 | Letter to REM from Keith C. Hetrick (re: respondent's Motion for Continuance) filed. |
| Jun. 19, 1991 | (Respondent) Motion for Continuance w/exhibit-A &B filed. (From KeithC. Hetrick) |
| Mar. 19, 1991 | Order Nunc Pro Tunc Granting Motion For Cotninuance sent out. |
| Mar. 18, 1991 | (Respondent) Status Report filed. |
| Mar. 18, 1991 | (Respondent) Motion to Correct The Order Granting Continuance filed. |
| Mar. 13, 1991 | Order Granting Continuance sent out. (hearing rescheduled for8/29/91; at 9:00am; in Orlando) |
| Mar. 08, 1991 | (Petitioner) Motion for Rehearing and/or Clarification (Exhibit A); And Cover letter from W. Hyde filed. |
| Mar. 07, 1991 | (Petitioner) Notice of Taking Deposition filed. |
| Mar. 06, 1991 | Petition for Review of Non-Final Agency Action (Exhibit A-M); And Cover letter from W. Hyde filed. |
| Mar. 04, 1991 | Order Denying Motion for Continuance sent out. |
| Mar. 04, 1991 | Order Denying Motion for Continuance sent out. |
| Feb. 28, 1991 | (Respondent) Motion for Continuance (Exhibit 1); And Cover letter from K. Hetrick filed. |
| Feb. 28, 1991 | (Petitioner) Notice of Discovery Agreement filed. |
| Feb. 26, 1991 | Petitioners Notice of Filing a Response to Respondents Request for Public Records/Production of Documents filed. |
| Feb. 19, 1991 | Order Granting Continuance sent out. (hearing rescheduled for3/11-15/91; at 9:00am; in Orlando) |
| Feb. 19, 1991 | (respondent) Request for Production of Documents filed. |
| Feb. 11, 1991 | (Petitioner) Motion to Compel A Response to Petitioner's First Set ofExpert Interrogatories w/exhibit-A; Subpoena Duces Tecum (23) filed. (From Nancy M.Snurkowski) |
| Feb. 11, 1991 | Notice of Service of Petitioner's Second Request For Interrogatories,Expert Interrogatories and Request for Production; (Petitioner) Motion to Expedite Discovery Response; Motion to Compel A Response to Petitioner's First Set of I nterrogatories w/exhibit |
| Feb. 04, 1991 | Order Denying Motion to Continue Hearing sent out. |
| Feb. 04, 1991 | (Petitioner) Response to Motion to Continue Hearing filed. (From Nacey Snurkowski) |
| Jan. 28, 1991 | (Respondent) Motion to Continue w/Order Granting Motion to Continue Hearing filed. (from T. Dwight Barron) |
| Dec. 21, 1990 | Order Granting Motion to Withdraw (for Rafael E. Martinez) sent out. |
| Dec. 17, 1990 | (respondent) Motion to Withdraw as Attorneys of Record filed. (from R. Martinez). |
| Dec. 11, 1990 | Order Denying Motion to Abate sent out. |
| Dec. 11, 1990 | Respondent, T. Dwight Barron, D. M. D.'S Response to Petitioner's Request to Produce; Notice of Serving Answers to Interrogatories filed. (From T. D. Dixon) |
| Dec. 10, 1990 | Petitioner's Request for Admissions filed. (from T. D. Dixon) |
| Dec. 04, 1990 | Amended Notice of Hearing sent out. (hearing set for March 4-8, 1991:9:00 am: Orlando) |
| Dec. 03, 1990 | (Respondent) Motion to Abate filed.(From R. E. Martinez) |
| Dec. 03, 1990 | Petitioner's Response to Respondent's Motion to Abate filed. (From N.M. Snurkowski) |
| Nov. 16, 1990 | (Respondent) Notice of Cancellation of Deposition filed. (From Terry D. Dixon) |
| Nov. 08, 1990 | Order Granting Continuance and Amended Notice sent out. (hearing rescheduled for March 4-6, 1991: 9:00 am: Orlando) |
| Nov. 07, 1990 | Letter to REM from Terry D. Dixon (re: rescheduling hearing) filed. |
| Oct. 25, 1990 | Notice of Service of Petitioner's First Request For Admissions, Interrogatories, Expert Interrogatories and Request For Production filed. |
| Oct. 25, 1990 | (Respondent) Notice of Cancellation of Deposition filed.Terry D. Dixon) |
| Oct. 18, 1990 | (Respondent) Notice of Cancellation of Deposition filed. (From Terry D. Dixon) |
| Oct. 12, 1990 | (Respondent) Notice of Taking Deposition Duces Tecum filed. (from Terry D. Dixon) |
| Oct. 11, 1990 | (Respondent) Notice of Taking Deposition-Duces Tecum (5) filed. (FromTerry D. Dixon) |
| Oct. 10, 1990 | Respondent T. Dwight Barron, D.M.D. 's Motion for Continuance filed. (From Rafael E. Martinez) |
| Oct. 09, 1990 | Respondent T. Dwight Barron, D.M.D.'s Motion for Continuance filed. |
| Sep. 07, 1990 | Notice of Hearing sent out. (hearing set for Nov. 19-21, 1990: 9:00 am: Orlando) |
| Sep. 07, 1990 | Respondent T. Dwight Barron, D.M.D.'S Compliance With the DOAH'S Initial Order filed. (From Rafael E. Martinez) |
| Sep. 06, 1990 | (Petitioner) Respones to Initial Order filed. (From Nancy M. Snurkowski) |
| Aug. 23, 1990 | Initial Order issued. |
| Aug. 20, 1990 | Notice of Production from Non-Party; Subpoena Duces tecum Without Deposition (blank) filed. (from R. Martinez). |
| Aug. 15, 1990 | Administrative Complaint; Election of Rights; & agency referral letter filed. |
| Mar. 06, 1990 | (Respondent) Notice of Cancellation of Deposition filed. (from Terry D. Dixon) |
| Issue Date | Document | Summary |
|---|---|---|
| May 11, 1992 | Agency Final Order | |
| Feb. 24, 1992 | Recommended Order | Recommended revocation for administration of overdose of Mepivicaine and other drugs and failure to respond to medical emergency to save patient`s life |
