STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6617

)

PRINCE EDWARD DENTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at West Palm Beach, Florida, on March 28, 1991, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

For Respondent: William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman, Davis, Marks, & Rutledge,P.A.

First Florida Bank Building, Suite 400

215 South Monroe Street Post Office Box 1877 Tallahassee, FL 32302

-and-

D. Brent Davis, Esquire Peterson & Bernard

1550 Southern Boulevard, Suite 300 Post Office Drawer 15700

West Palm Beach, FL 33416 STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent violated certain statutory and rule provisions governing the practice of dentistry, as charged in an Administrative Complaint. The case basically involves allegations of improper delegation of tasks to a dental assistant.

PRELIMINARY STATEMENT

At the hearing on March 28, 1990, the Petitioner presented the testimony of three witnesses (the subject patient, the Respondent's former dental assistant, and an expert witness in the field of dentistry) and offered three exhibits, all of which were received in evidence. At the conclusion of the Petitioner's case, the Respondent rested without offering any evidence.

Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on April 15, 1991. The parties were allowed ten days from the filing of the transcript within which to file their proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. The proposed findings of fact submitted by both parties are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Prince Edward Denton, D.D.S., is now, and has been at all times material to this proceeding, a licensed dentist in the State of Florida, having previously been issued license number DN 0006762.

   
   

2. Carol Hepp has been a dental assistant for twenty-seven years. She received her initial training as a dental assistant after graduation from high school when she went to work for Dr. Seth Rhodes in North Miami Beach. Since that time she has attended many training courses in her career as a dental assistant, including expanded duties courses at Emory University and the University of Florida. Ms. Hepp was employed by the Respondent as a dental assistant for a total of approximately four and one-half years. Ms. Hepp was so employed on February 2, 1988.

   
   

3. On February 2, 1988, patient C.H. went to the Respondent's office to obtain treatment for a cracked tooth. The cracked tooth was tooth number 18, which was the last tooth in the patient's left lower jaw.

   
   

4. During that visit, the patient C.H. was examined by the Respondent and by his dental assistant, Carol Hepp. Ms. Hepp explained the tooth crowning procedure to the patient.

   
   

5. Ms. Hepp took a preliminary impression of the lower jaw by placing a two-part putty-like substance called "citrocon" in a tray, placing a plastic sheet over the top, and placing the tray into the patient's mouth. She held the tray in place for approximately six minutes and then removed it. This procedure yielded an approximate image of the patient's lower teeth.

   
   

6. The Respondent took the final impression by applying a viscous substance around tooth number 18, and then inserting the preliminary impression into the patient's mouth. The Respondent held the impression in place until it was set or non-moveable, at which time Ms. Hepp took over the task of holding the impression in place for the balance of the approximately four-minute period during which the final impression material completely set up. After the impression was finished, Ms. Hepp took it to the Respondent who examined it and approved the finished final impression.

7. After the final impression had been taken, Ms. Hepp made a wax form for purposes of fabricating a temporary crown for C.H.`s tooth number 18. This was done prior to the "preparation" of the tooth.

   
   

8. The "preparation" of a tooth for crowning is the actual grinding down of the tooth that is to be crowned. The Respondent, and not Ms. Hepp, ground down the patient C.H.`s tooth number 18 in preparation for crowning. Following the Respondent's "preparation" of the subject tooth, Ms. Hepp packed a cord around the tooth. 1/

   
   

9. The grinding down, or "preparation," of a tooth for crowning is an irremediable task, which under no circumstances should be delegated to a dental assistant.

   
   

10. Following the Respondent's "preparation" of the tooth, Ms. Hepp then fabricated and installed a temporary crown on the patient's tooth number 18. This was done by utilizing the wax form she had previously made, filling the form with a self-curing jet material, adding tooth color, and then placing the temporary crown over the prepared tooth.

    
    

11. At all times during the treatment of the patient C.H., the Respondent was aware of, and had authorized, each step performed by Ms. Hepp, and was available to assistt Ms. Hepp had she requested his assistance. Accordingly, Ms. Hepp was working under the direct supervision of the Respondent at all times material to this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. In a case of this nature, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. The nature of clear and convincing evidence is described in Slomowitz

    v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes the foregoing with approval and also includes the fo1lowing at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used

    in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

14. Turning first to the most quickly disposed of issue, there is no evidence in the record of this case as to whether any certificates of Ms. Hepp's successful completion of approved formal training programs were or were not displayed in the office where she practiced. Accordingly, the evidence is insufficient to establish a violation of Rule 21G-16.002(3)(f), Florida Administrative Code, 2/ as alleged in Paragraphs 8 and 9 of the Administrative Complaint. 3/

    
    

15. Similarly, the evidence is insufficient to establish the allegations of Paragraph 4 of the Administrative Complaint to the effect that the Respondent's dental assistant performed the preparation on a patient's tooth. To the contrary, the evidence establishes that the preparation was performed by the Respondent, as it should have been.

    
    

16. With regard to the allegations of Paragraphs 5, 6, and 7 of the Administrative Complaint, the evidence in this proceeding is more confusing than clear. The evidence reveals that in the treatment of the patient C.H., the dental assistant engaged in some type of "wax bite" activity, but the exact nature of that activity is not clear. 4/ Such confusing evidence is an insufficient basis for fact-finding in a case such as this where the proof must be by clear and convincing evidence.

    
    

17. In its proposed recommended order, the Petitioner argues that the Respondent is in violation of the applicable statutes and rules by reason of two specific actions of his dental assistant; namely, (1) the dental assistant's packing of a cord around the prepared tooth of the subject patient, and (2) the dental assistant's holding of the mold for the final impression after the Respondent had taken the final impression and had held the mold in place until it was set or non-moveable. The argument fails for the following reasons.

    
    

18. First, the Respondent is not charged in the Administrative Complaint with any violation based on either of the two actions described in the immediately preceding paragraph. It is well settled in Florida that disciplinary action may not be imposed against licensees on the basis of facts that have not been charged in the Administrative Complaint. See Willner, M.D.

    v. Dept. of Professional Regulation. Bd. of Medicine, 563 So.2d 805 (Fla. 1st DCA 1990); Celaya, M.D. v. Dept. of Professional Regulation, Bd. of Medicine,

    560 So.2d 383 (Fla. 3d DCA 1990); Sternberg, M.D. v. Dept. of Professional Regulation, Bd. of Medical Examiners, 465 So.2d 1324 (Fla 1st DCA 1985).

    
    

19. Second, even if the Administrative Complaint had contained charges alleging the actions described in Paragraph 6, above, there is an absence of clear and convincing evidence that such actions constitute activities that are beyond those that may properly be delegated to a dental assistant.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st day of July, 1991.

MICHAEL M. PARRISH

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 31st day of July, 1991.

ENDNOTES

1/ The record in this proceeding does not contain any information regarding how or why a cord is packed around a tooth.

2/ The rule numbers used in this Recommended Order are the numbers of the rules as of the time of the events alleged in the Administrative Complaint. Many of the rule numbers have since been changed.

3/ Even if it had been proved that the display of certificates required by Rule 21G-16.002(3)(f), Florida Administrative Code was not being made, the ambiguity of the rule language makes it most unlikely that any such failure could be a basis for disciplinary action against the Respondent. The rule requires only that the certificates "must be conspicuously displayed in the office where such hygienist or assistant practices." The rule does not state whether the duty to display certificates is imposed on the dentist or on the hygienist or assistant to whom the certificate was issued. And it is well settled in Florida that disciplinary statutes and rules must be strictly construed, "with any ambiguity interpreted in favor of the licensee." Elmariah, M.D. v. Dept. of Professional Regulation, Bd. of Medicine, 574 So.2d 164, 165 (Fla. 1st DCA 1990). See also: Taylor v. Dept. of Professional Regulation, 534 So.2d 782, 784 (Fla. 1st DCA 1988); Lester v. Dept. of Professional and Occupational Regulation, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

4/ Even the Petitioner's expert appeared to be confused as to just what the Respondent's dental assistant did with regard to any "wax bite" activity. See page 66 of the hearing transcript. But in any event, the Petitioner's expert was of the opinion that whatever the Respondent's dental assistant did in the way of "wax bite" activity was a permissible activity within the scope of duties delegable to dental assistants. See page 73 of the hearing transcript.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-6617

The following are my specific rulings on all findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraphs 1 through 6: Accepted in substance, with some minor modifications to some details.

Paragraphs 7 and 8: Rejected for several reasons. First, these proposed findings are irrelevant, because the acts to which they relate were not charged in the Administrative Complaint. Second, the evidence in support of these proposed findings is neither persuasive nor clear and convincing.

Findings proposed by Respondent:

Paragraphs 1 through 10: Accepted in substance, with some minor modifications in some details.

Paragraph 11: Rejected for two reasons; first, because it is irrelevant to the disposition of this case and,, second, because it is not supported by persuasive competent substantial evidence.

Paragraphs 12 through 14: Accepted in substance, with modifications in some details.

COPIES FURNISHED:

Mr. William Buckhalt Executive Director Board of Dentistry

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Albert Peacock, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman, Davis, Marks, & Rutledge, P.A.

First Florida Bank Building, Suite 400

215 South Monroe Street Post Office Box 1877 Tallahassee, FL 32302

D. Brent Davis, Esquire Peterson & Bernard

1550 Southern Boulevard, Suite 300 Post Office Drawer 15700

West Palm Beach, FL 33416

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 davs 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: 90-006617

Orders for Case No: 90-006617