STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5816

) MICHAEL J. HAMMONDS, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on January 31, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Albert Peacock, Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violating the minimum standards of competence, in violation of Section 466.028(1)(y), Florida Statutes; unlawfully delegating certain responsibilities to an unlicensed person, in violation of Section 466.028(1)(aa), Florida Statutes; and failing to maintain adequate records, in violation of Section 466.028(1)(n), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 28, 1989, Petitioner alleged that in October, 1987, Respondent examined a patient and informed her that her dentures should be relined. However, after taking impressions, Respondent failed to obtain a satisfactory fit for the relined dentures. The Administrative Complaint alleges that Respondent violated Section 466.028(1)(y), Florida Statutes, by failing to meet the minimum standard of care of the generally prevailing peer community; Section 466.028(1)(m), Florida Statutes, by failing to maintain adequate records; and Section 466.028(1)(aa), Florida Statutes, by delegating professional responsibilities to an unlicensed person.

By Election of Rights dated March 13, 1990, Respondent denied the material allegations and requested a formal hearing. In the Election of Rights, Respondent states that his current address is 834 Gulf Pavilion Drive, Naples, Florida 33963.

Respondent did not appear at the final hearing. Notice of the hearing had been provided him at the address shown on the Election of Rights. Respondent provided the same address to Petitioner in connection with his licensing records.

Petitioner located Respondent living and practicing in the Ft. Myers area and provided him by facsimile transmission a copy of the Amended Notice of Hearing. One of Petitioner's investigators contacted Respondent by telephone on the morning of the hearing and confirmed that he was still in the Ft. Myers area and did not intend to attend the hearing. The Ft. Myers addressfor Respondent at the end of the recommended order is the address that the investigator provided on the day of the hearing as Respondent's office address.

In the absence of good cause to postpone the hearing, the hearing proceeded without Respondent. Petitioner called two witnesses and offered into evidence four exhibits. All exhibits were admitted into evidence.

The transcript was filed on February 12, 1991. Petitioner filed a proposed recommended order. All of the proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as a dentist.

   
   

2. On October 7, 1987, B. K. visited Respondent's office to have her teeth cleaned. She had recently moved to Orlando and had not previously seen a dentist there. She selected Respondent based on the proximity of his office to her home.

   
   

3. At her initial visit, B. K., who is 62 years old, presented a natural lower arch, except for the absence of molars that apparently caused her no trouble, and full dentures on the upper arch.

   
   

4. In the course of examining B. K., Respondent asked her how old her dentures were. When B. K. replied 12 years, he told her that they should be replaced. She expressed reservations and told Respondent that she had had no problems ordiscomfort with her dentures. Respondent answered that the dentures should at least be relined. B. K. agreed to this suggestion.

   
   

5. Respondent's office notes incorrectly recite that, as of the original visit, the dentures did not fit correctly. There is no evidence of a poor fit. Further, there is no reason to replace or reline dentures once they reach a certain age. Changes in fit or comfort may dictate the replacement or relining of dentures; age alone is irrelevant.

   
   

6. The remainder of the initial visit was devoted to cleaning B. K.'s teeth and taking an impression of her arch for the purpose of relining the dentures. Respondent took the impression. At the conclusion of the visit, Respondent retained B. K.'s dentures and advised her to schedule a visit for about a week later, at which time she could pick up her relined dentures.

7. When B. K. returned for her second appointment, Respondent installed the relined dentures. B. K. immediately complained that they were much too big. She did not believe that they were even the same dentures that she had left the week before. Respondent assured her that they were her dentures, and they would take additional impressions.

   
   

8. An employee of Respondent named Stacy or Terry took the second impression, which took place during the second visit. After taking it, he told

   B. K. that something went wrong and asked her if he could taken another impression. B. K. agreed and another impression was taken.

   
   

9. The employee told B. K. that her dentures could be ready in three of four days. When she returned, the dentures still were too large. At this point, B. K. embarked on a process that involved more impressions, more office visits, and more ill-fitting dentures.

   
   

10. During this period, Respondent's employee routinely blamed the laboratory doing the relining work and finally said that they would change labs. On the only occasion that Respondent saw B. K. following her initial visit, he also said that they would be changing labs. However, he never took another impression after the first.

    
    

11. In the process, the dentures seemed to be getting larger each time. At some point, B. K. learned from Respondent's employee that he was not a licensed dental assistant or hygienist and lacked any special training.

    
    

12. Unable to obtain from Respondent a properly fitting set of dentures,

    B. K. finally contacted the local dental society and obtained the name of another dentist. She retrieved her dentures from Respondent's office, which refunded the portion of the payment that she had made for the dentures. (She had paid $125, and her insurance company paid $300.)

    
    

13. B. K. visited the other dentist and soon obtained a new set of upper dentures that fit properly.

    
    

14. Petitioner retained an independent dentist to examine the relined dentures prepared by Respondent and his employee. Without regard to B. K.'s complaints, the relineddentures were objectively unsatisfactory with regard to the adaptation of the denture to the gum.

    
    

15. Respondent's dentures were grossly inadequate in terms of retention. When the independent dentist examined Respondent's dentures installed in B. K., he found a defective occlusion that left B. K. unable to bring her upper and lower arches together without distorting her jaw. Even if she could so distort her jaw, the resulting pressure on the dentures caused them to pop out.

    
    

16. Poorly taken impressions led Respondent to cause the preparation of dentures of grossly excessive vertical dimension. Compared to properly fitting dentures, Respondent's dentures measured another 10 millimeters in the vertical dimension, substantiating B. K.'s recurring complaints about the size of the relined dentures.

    
    

17. The fit of the dentures was also improper where it contacted the roof of the mouth. Contacting not more than 50% of the surface area of the roof of the mouth, the relined dentures allowed air continually to break the seal caused by the sheeting action of saliva, which is vital for the retention of upper dentures.

18. It is improper for a dentist to delegate to an unlicensed person the duties of taking an impression for the purpose of preparing a prosthetic device, such as dentures.

    
    

19. Respondent also failed to maintain adequate dental records. The records contain no medical history on B. K., norecord of Respondent's findings, and no treatment plan. In fact, the record do not even bear the name of B. K. The most material item in the records, which is that B. K. complained about her dentures during the initial visit, is incorrect and reflects either extreme carelessness or deceit.

    
    

20. Based on the above-described facts, Respondent was 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.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

22. The Board of Dentistry is authorized to take disciplinary action against a licensee for a violation of any provision of Section 466.028. Section 466.028(2).

    
    

23. Section 466.028(1)(y) identifies as grounds for disciplining a licensee:

    
    

    Being guilty of incompetence or negligence by failing to meet the minimum standards of per- formance in diagnosis and treatment when measure against generally prevailing peer performance . . ..

    
    

24. Section 466.028(1)(m) identifies as grounds for disciplining a license:

    
    

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

    
    

25. Section 466.028(1)(aa) identifies as grounds for disciplining a license:

    
    

    Delegating professional responsibilities to a person who is not qualified by training, exper- ience, or licensure to perform them.

    
    

26. Section 466.028(2) provides that the Board of Dentistry may, upon a finding of a violation of any provision of Section 466.028(1), enter an order imposing one or more of the following penalties: revocation, suspension,

    imposition of an administrative fine not to exceed $3000 per "each count or separate offense," issuance of a reprimand, placement of the license of probation, and restriction of the scope of practice.

    
    

27. Section 466.028(3) provides that a dentist guilty of violating Section 466.028(1)(aa) shall receive a minimum six-month suspension.

    
    

28. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

29. Petitioner has proven by clear and convincing evidence all of the material allegations of the Administrative Complaint.

    
    

30. Petitioner seeks in its proposed recommended order an administrative fine of $6000, suspension of Respondent's license for 12 months, and issuance of a reprimand. Theviolation of Section 466.028(1)(aa) carries a minimum penalty of at least a six-month suspension of Respondent's license.

    
    

31. Rule 21G-13.005(1) provides that, in the absence of mitigating factors:

    
    

    the Board shall always impose a reprimand and an administrative fine not to exceed $3000 per count or offense when disciplining a licensee for any of the disciplinary grounds listed in subsections (2) and (3) of this rule. The

    reprimand and administrative fine is in addition to the penalties specified in subsections (2) and (3) for each disciplinary ground.

    
    

32. Rule 21G-13.005(2)(p) provides that the "usual action of the Board" for failing to keep records is "to impose a period of probation."

    
    

33. Rule 21G-13.005(2)(bb) and (cc) addresses incompetence and negligence, respectively. For these matters, the "usual action of the Board shall be to impose a period of probation, restriction of practice, suspension, and [in the case of incompetence] revocation."

    
    

34. Rule 21G-13.005(2)(ee) provides that, in addition to the mandatory

    six-month suspension, the Board "may impose an additional period of probation or restriction of practice" for the delegating of professional responsiblities to a person not qualified by training, experience, or licensure.

    
    

35. Petitioner has established by clear and convincing evidence that Respondent failed to keep adequate medical records on B. K., rendered negligent or incompetent advice concerning the need to reline her dentures when no need existed, and improperlydelegated professional responsiblities to a person not qualified by training, experience, or licensure.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Board of Dentistry enter a final order finding Respondent guilty of violating Section 466.028(1)(m), (y), and (aa), suspending Respondent's license for a period of six months, imposing an administrative fine of $9000, and issuing a reprimand.

RECOMMENDED this 12th day of March, 1991, 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 12th day of March, 1991.

COPIES FURNISHED:

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 Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Michael J. Hammonds, D.D.S. 4901 Palm Beach Blvd.

Ft. Myers, FL 33905

Docket for Case No: 90-005816

Orders for Case No: 90-005816