STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF ) PROFESSIONAL REGULATION, ) BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6173

)

PHILLIP OKUN, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 8, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida

For Respondent: Salvatore A. Carpino, Esquire

One North Dale Mabry, Suite 1010 Tampa, Florida

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent failed to meet minimum standards of performance in the diagnosis and treatment of a patient by making a diagnosis without adequate x-rays, by continuing to repair and use a dental splint, and by failing to advise the patient that either a new splint or new treatment plan was needed.

PRELIMINARY STATEMENT

Petitioner filed two Administrative Complaints against Respondent on July 28, 1989, and August 17, 1990. Respondent requested a formal hearing by letters dated August 8, 1989, and September 7, 1990. The matters were referred to the Division of Administrative Hearings for assignment of a hearing officer, and assigned to Hearing Officer J. Stephen Menton on October 4, 1990. The two proceedings were not consolidated pursuant to the Order entered on October 19, 1990, but were scheduled for one formal hearing in the interest of economy and efficiency. A formal hearing was scheduled for May 8-9, 1991, pursuant to the Order Granting Motion To Amend and Continuing Hearing entered on January 23, 1991. 1/ The separate matters were transferred to the undersigned on May 6, 1991.

At the formal hearing, Petitioner presented the testimony of Dr. Mervin J. Dixon and Dr. Stewart Moraitis, both of whom were accepted as expert witnesses. Petitioner submitted three exhibits for admission in evidence. Petitioner's Exhibits 1-3 were admitted in evidence without objection. The parties submitted one joint exhibit which was admitted in evidence as Joint Exhibit 1.

Respondent testified in his own behalf and presented the testimony of Dr. Reda A. Abdel-Fattah who was accepted as an expert. Respondent submitted four exhibits for admission in evidence. Respondent's Exhibits 1-4 were admitted in evidence without objection. Respondent's Exhibit 1 is the deposition testimony of Dr. Michael D. Williams.

A transcript of the record of the formal hearing was requested by Petitioner and filed with the undersigned on June 3, 1991. Proposed findings of fact and conclusions of law were originally due from the parties on July 3, 1991. The time for filing proposed findings of fact and conclusions of law was extended without objection until August 2, 1991, in response to Respondent's Motion for Enlargement of Time filed on July 11, 1991. Petitioner's proposed findings of fact and conclusions of law were timely filed on July 3, 1991.

Respondent's proposed findings of fact and conclusions of law were timely filed on August 2, 1991. The parties' proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed dentist in the state, holding license number DN 0005278.

   
   

2. Respondent provided dental services to patient N.S. from February 21, 1984, through February 19, 1986. N.S. had periodontal problems, worn-down teeth, a bad bite, and previous restorations including bridge work. Respondent recommended a treatment plan that included periodontal surgery, bite reconstruction, and bite rehabilitation.

   
   

3. The treatment plan recommended by Respondent was refused by N.S. N.S. wanted to look more presentable but wanted to avoid the cost of major bite reconstruction, periodontal surgery, or of having the previous bridge work reworked.

   
   

4. On April 19, 1984, Respondent provided N.S. with a splint for teeth 7-

   11 and cemented the splint in place. The splint was anterior porcelain fused to a metal crown on the five unit bridge. Respondent advised N.S. prior to the application of the splint that the splint was susceptible to fracture because of the patient's bad bite and that failure to follow the original treatment plan recommended by Respondent would lead to failure of the splint.

   
   

5. The splint required repair on four occasions. When the splint first broke on August 10, 1984, it was sent to the laboratory and replaced. Thereafter, Respondent attempted to repair the splint when it broke. On November 6, 1985, a mandibular orthopedic repositioning appliance was provided to the patient by Respondent. The patient was subsequently treated by Dr. Michael D. Williams.

6. The dental care provided to N.S. by Respondent was within acceptable standards. The recurring breakage that occurred on the splint was caused by excessive biting pressures and not by an improper fit of the splint. The patient's teeth were quite short and there was excessive pressure being placed on the patient's teeth as a result of the patient's bad bite. The patient suffered from traumatically induced osteoarthritis and showed signs of having temporomandibular joint disfunction. If the patient had agreed to bite reconstruction and rehabilitation, the patient's bite could have been opened up, and the outcome improved.

   
   

7. The x-rays taken by Respondent provided a sufficient basis for Respondent's diagnosis. The x-rays included panoramic x-rays and transcranial x-rays.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

9. The burden of proof is on Petitioner to show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the penalties requested by Petitioner should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. Petitioner failed to show by clear and convincing evidence that Respondent violated Section 466.028(1)(y), Florida Statutes. The testimony of Respondent's experts was persuasive. Dr. Michael D. Williams treated the patient and was the only witness other than Respondent who actually saw N.S. The testimony of Petitioner's experts was based upon a review of the medical records, including the x-rays taken by Respondent. Petitioner's experts both testified that they would defer to a subsequent treating dentist who actually saw the patient and made a determination as to the standard of care given by Respondent. In the opinion of Dr. Williams, the dental care provided by Respondent was appropriate. The testimony of Petitioner's witnesses was less than clear and convincing.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Petitioner should enter a Final Order finding Respondent not guilty of the allegations in the Amended Administrative Complaint.

RECOMMENDED this 3rd day of September 1991, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1991.

ENDNOTE

1/ Petitioner filed a Motion To Amend The Administrative Complaint in Case No. 90-6173 on December 27, 1990. The Administrative Complaint in Case No. 90-6182 was not amended.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6173

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

The Petitioner's Proposed Findings of Fact

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

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

The Respondent's Proposed Findings of Fact

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

1. Accepted in Finding 2

2. Accepted in Finding 3

3. Accepted in Finding 5

4. Rejected as a conclusion of law

5. Accepted in Finding 5

6. Rejected as recited testimony

7. Accepted in Finding 6

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street

P.O. Box 1900 Orlando, FL 32801

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Albert Peacock, Esquire Senior Attorney

Department of Professional Regulation - Legal Section

1940 North Monroe Street Tallahassee, Florida 32399-0792

Salvatore A. Carpino, Esquire One North Dale Mabry, Suite 1010 Tampa, Florida 33609

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 90-006173

Orders for Case No: 90-006173