STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE No. 91-2325

) KLEYN B. RUSSELL, JR., D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on May 7 and 8, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Nancy M. Snurkowski, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Kennan George Dandar, Esquire

DANDAR & DANDAR, P.A.

One Urban Centre, Suite 447 4830 West Kennedy Boulevard Tampa, Florida 33609-2517

STATEMENT OF THE ISSUES

Whether or not Respondent administered a legend drug other than in the course of his professional practice as a dentist, failed to maintain written dental and medical history records justifying the course of treatment, and failed to practice dentistry within the minimum standards of performance in diagnosis and treatment when measured against the prevailing peer community in violation of Subsections 466.028(1)(y), (m) and (q), Florida Statutes and, if so, what if any, administrative penalty should be imposed.

PRELIMINARY STATEMENT

By its Administrative Complaint filed on February 4, 1991, Petitioner, Department of Professional Regulation, alleged that Respondent, Kleyn B. Russell, Jr., D.D.S., violated the foregoing provisions of Chapter 466, Florida Statutes. Respondent executed an Election of Rights Form disputing the allegations in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

On April 15, 1991, the matter was transferred to the Division of Administrative Hearings and on April 18, 1991, pursuant to an expedited request by Respondent, a hearing date was established for May 7 and 8, 1991, in Tampa, Florida, and was heard as scheduled. Thereafter, Respondent filed a motion for continuance on about April 29, 1991, which was denied by Order dated May 2, 1991. At the hearing, Respondent made an ore tenus request for continuance of the formal hearing and following consideration of the arguments of counsel, Respondent's motion was denied.

At the hearing, Petitioner presented the testimony of Cheryl Ann Morris, Dale Massad, M.D., Ronald Bell, Edward Corcoran, M.D., Frank Courts, D.D.S., and Rupert Bliss, D.D.S. Petitioner offered Exhibits 1-16, which were received in evidence at the hearing. Respondent presented the testimony of Peter O. Knight, M.D., John Downs, M.D., John Feegel, M.D., Jose Berrios, M.D., Scott Applebaum, D.D.S., and Respondent testified on his behalf. No exhibits were offered by Respondent.

A transcript of the hearing was filed on June 7, 1991, and the parties filed proposed recommended orders on June 27, 1991. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an Appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

FINDINGS OF FACT

1. During times material hereto, Respondent, Kleyn B. Russell, Jr., held a license as a dentist in Florida, having been issued license number DN 0008401 by Petitioner, Department of Professional Regulation.

   
   

2. During times material hereto, Respondent practiced dentistry in Florida.

   
   

3. Bethany Morris (Bethany), a three year old female patient of Respondent, weighed 34 pounds when she was treated by Respondent. Bethany was born with hemangiomas (port wine scars) on the majority of her body.

   
   

4. Cheryl Morris, the mother of Bethany, brought Bethany to Florida to undergo laser surgery treatment to remove hemangiomas, following consultation with laser surgery experts in California, Duke University in North Carolina and with several practitioners in the Midwest and in Florida.

   
   

5. Bethany Morris' first laser surgery was performed by Dr. Massad on March 9, 1990.

   
   

6. Between March 9, 1990 and May 15, 1990, Cheryl Morris had discussions with Dr. Massad and Jeffrey Waterer, a business representative for the laser equipment which was used in the surgical procedures for Bethany, regarding possible alternatives to general anesthesia, specifically a dental nerve "block".

   
   

7. On or about May 15, 1990, Respondent was consulted and retained by Dr. Massad to provide a trigeminal facial nerve block to Bethany's face to alleviate any discomfort she may experience during laser surgery to remove the port wine scars on her face and lips.

8. Respondent produced a trigeminal facial nerve block on Bethany on three separate occasions by using local anesthesia.

   
   

9. Local anesthesia is the loss of sensation of pain in a specific area of the body, generally produced by a topically applied agent or injected agent without causing loss of consciousness. Rule 21G-14.001, Florida Administrative Code. 1/

   
   

10. On May 15, 1990, Respondent administered 12.5 carpulets of 2% Lidocaine with 1:100,000 Epinephrine to Bethany.

    
    

11. On or about July 11, 1990, Respondent administered 11 carpulets of 2% Lidocaine with 1:100,000 Epinephrine to Bethany.

    
    

12. On or about August 22, 1990, Respondent administered 8.5 carpulets, 280-306 mg., of 2% Lidocaine with 1:100,000 Epinephrine to Bethany within a one- hour period.

    
    

13. Lidocaine is a medicinal drug. Section 465.003(7), Florida Statutes.

    
    

14. On or about August 22, 1990, Bethany began to experience seizures, respiratory difficulty and respiratory arrest shortly after Respondent administered the last injection of local anesthetic to her.

    
    

15. Bethany stopped breathing and Dr. Massad and Respondent began cardiopulmonary resuscitation. These efforts were unsuccessful and "911" was called and Bethany was transported to Mease Hospital in Dunedin, Florida.

    
    

16. Bethany Morris died on August 25, 1990, and the cause of her death was anoxic encephalopathy due to cardiac arrest due to Lidocaine toxicity. Prior to her death, Bethany exhibited symptoms indicating that Respondent injected Lidocaine to her facial area in an amount in excess of the manufacturer's recommended dosage for a patient of her age/size. Specifically, on the first occasion that Respondent administered the nerve block, Bethany had to be repeatedly slapped in the face to avoid slipping into a coma. On the second occasion following Respondent's administration of Lidocaine to effect a nerve block, Bethany had to be carried to her car and slept from Respondent's office in Tampa to her temporary residence in the Brandon area.

    
    

17. On three separate occasions, specifically May 15, 1990, July 11, 1990 and August 22, 1990, Respondent administered 2% Lidocaine with 1:100,000 Epinephrine to his patient, Bethany Morris, in an amount that exceeded the manufacturer's maximum recommended dosage.

    
    

18. Respondent failed to recognize that special calculations were required when administering local anesthetics to children.

    
    

19. During the administration of local anesthetics to Bethany, Respondent admitted that he failed to comprehend the correct amount of anesthetic that could be safely administered to her. Respondent's admission was borne out by his calculations of the amount of Lidocaine he administered to Bethany.

    
    

20. Respondent's administration of 280 mg. - 306 mg. of 2% Lidocaine with 1:100,000 Epinephrine to Bethany on August 22, 1990, was an amount in excess of the recommended maximum dosage for a patient of Bethany Morris' size.

21. Respondent failed to maintain records in his office indicating his administration of anesthesia to Bethany Morris.

    
    

22. Respondent failed to properly recognize, diagnose and treat Bethany Morris once she began exhibiting signs of respiratory depression which led to cardiac failure due to Lidocaine toxicity.

    
    

23. Respondent has recently been the subject of prior disciplinary action by Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

26. The authority of the Petitioner is derived from Chapter 466, Florida Statutes.

    
    

27. Petitioner has the burden of proving, by clear and convincing evidence, that Respondent committed the alleged violations of Chapter 466, Florida Statutes, as set forth in the Administrative Complaint. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

28. Section 466.028(1)(y), Florida Statutes, authorizes the Board of Dentistry to take disciplinary action against a dentist who 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. Petitioner established, by clear and convincing evidence, that Respondent failed to practice dentistry by the minimum standard of care based on his administration of excessive amounts of Lidocaine to Bethany Morris on three separate occasions, to wit, May 15, July 11 and August 22, 1990. In addition to the Respondent's administration of Lidocaine in an amount in excess of the safe and recommended dosage for a patient of Bethany Morris' stature, Respondent failed to recognize and properly treat Bethany Morris for the classic signs of local anesthetic overdose.

    
    

29. Petitioner presented clear and convincing evidence to establish that Respondent practiced dentistry below the standard of care when measured against the prevailing peer community in violation of Section 466.028(1)(y), Florida Statutes.

    
    

30. Petitioner presented, by clear and convincing evidence, that Respondent administered a legend drug other than in the course of professional practice as a dentist by administering Lidocaine to Bethany Morris in excessive and inappropriate quantities which was not in her best interest, in violation of Section 466.028(1)(q), Florida Statutes. Statutorily, an excessive or inappropriate administration of a legend drug is legally presumed to be either not in the best interest of the patient or not in the course of the professional practice of dentistry, without regard to intent.

    
    

31. Petitioner presented, by clear and convincing evidence, that Respondent failed to keep written dental and medical history records justifying

the course of his treatment of Bethany Morris, in violation of Section 466.028(1)(m), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's license to practice dentistry in Florida for a period of five (5) years and prior to his reinstatement to practice dentistry, Respondent take and successfully complete continuing education courses in the administration of legend drugs in the course of his professional practice of dentistry under such terms and conditions as the Board of Dentistry may impose.

RECOMMENDED this 29th day of August, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 29th day of August, 1991.

ENDNOTES

1/ Official notice was taken of Rule 21G, Florida Administrative Code and Chapter 466, Florida Statutes.

COPIES FURNISHED:

Nancy M. Snurkowski, Esquire Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kennan George Dandar, Esquire DANDAR & DANDAR, P.A.

One Urban Centre, Suite 447 4830 West Kennedy Boulevard Tampa, Florida 33609-2517

William Buckhalt, Executive Director Florida Board of Dentistry Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0765

Jack McRay, Esquire General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, DOAH CASE NO.: 91-2325 LICENSURE NO.: DN0008401

vs.

KLEYN B. RUSSELL, JR., D.D.S.,

Respondent.

/

FINAL ORDER

THIS MATTER wad heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on November 8, 1991, in Tallahassee, 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 vs. Kleyn B. Russell, Jr., D.D.S., Case No. 91-2325. At the hearing, Petitioner was represented by Nancy 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 fully advised, the Board makes the following rulings, findings, and conclusions:

RULINGS ON EXCEPTIONS TO FINDING OF FACT

Respondent timely filed exceptions to the Hearing Officer's recommended findings of fact and conclusions of law. Respondent's first exception requests the Board to expand upon the Hearing Officer's findings set forth in paragraph

15 of the recommended findings of fact. The Board determines that the Hearing Officer's findings are supported by competent substantial evidence in the record and that the Board does not have authority to make new findings of fact. Furthermore, the findings suggested in Respondent's exception would be irrelevant. Respondent's first exception is rejected.

Respondent's second exception challenges the Hearing Officer's findings set forth in paragraph 16 of the recommended findings of fact. The Board finds that there is competent substantial evidence to support the Hearing Officer's determination that Lidocaine was injected in an amount in excess of the manufacturer's recommended dosage. Respondent's second exception is rejected.

Respondent's third exception included two further objections to the Hearing Officer's findings set forth in paragraph 16 of the recommended findings of fact. The Board finds that there is not competent substantial evidence to support the Hearing Officer's finding that patient B.M. had to be repeatedly slapped in the face to avoid slipping into a coma. This portion of Respondent's third exception is accepted. The second issue raised in Respondent's third exception is that Respondent was not present during transportation of the patient. Although this contention may be supported by the record it is beyond the Board's authority to make new findings of fact. Furthermore, such findings as suggested by Respondent would be irrelevant. This portion of Respondent's third exception is rejected.

Respondent's fourth exception challenges the Hearing Officer's findings set forth in paragraph 17 of the recommended findings of fact. The Board finds that there is competent substantial evidence to support the Hearing Officer's determination that on the three specified dates 2% Lidocaine with 1:100,000 Epinepherine was administered by Respondent in an amount that exceeded the manufacturer's maximum recommended dosage. Respondent's fourth exception is rejected.

Respondent's fifth exception challenges the Hearing Officer's findings of fact set forth in paragraph 18 of the recommended findings of fact. The Board finds that there is competent substantial evidence to support the Hearing Officer's determination that Respondent failed to recognize that special calculations were required when administering local anesthetic to children.

Respondent's fifth exception is rejected

Respondent's sixth exception challenges the Hearing Officer's findings set forth in paragraph 19 of the recommended findings of fact. The Board finds that paragraph 19 could be misconstrued and read to mean that while in the process of administering local anesthetics Respondent admitted failing to comprehend the correct amount of anesthetic. The Board does not believe that to be the Hearing Officer's intent. Therefore, - paragraph 19 shall be amended to state:

19. Respondent admitted that during the administration of local anesthetics to patient B.M. he failed to comprehend the correct amount of anesthetic that could be safely administered to her. Respondent's admission was borne out by his calculations of the amount of lidocaine he administered to patient B.M.

To this extent, Respondent's sixth exception is accepted.

Respondent's seventh exception challenges the Hearing Officer's findings set forth in paragraph 20 of the recommended findings of fact. This exception is rejected (see rulings on exceptions 2 and 4).

Respondent's eighth exception challenges the Hearing Officer's findings set forth in paragraph 21 of the recommended findings of fact. The Board finds that there is competent substantial evidence to support the Hearing Officer's determination that Respondent failed to maintain appropriate medical records regarding patient B.M. in his own office. Respondent's eighth exception is rejected.

Respondent's ninth exception challenges the Hearing Officer's findings set forth in paragraph 22 of the recommended findings of fact. The Board finds that there is competent substantial evidence to support the Hearing Officer's determination that Respondent failed to properly recognize, diagnose and treat patient B.M. once she began exhibiting signs of respiratory depression which led to cardiac failure due to lidocaine toxicity. There is no evidence in the record to support Respondent's exception. Respondent's ninth exception is rejected.

FINDINGS OF FACT

The Board having reviewed the entire record in this matter hereby adopts and incorporates the Findings of Fact recommended by the Hearing Officer as modified to conform with the Board's rulings on Respondent's third and sixth exceptions. (Recommended Order attached as Exhibit A)

RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW

Respondent filed four exceptions to the Hearing Officer's recommended conclusions of law. The Board' finds each of the challenged conclusions to be appropriate in light of the factual determinations in this case. All of Respondent's exceptions to the Hearing Officer's conclusions of law are rejected.

CONCLUSIONS OF LAW

The Board having reviewed the Hearing Officer's recommended Conclusions of Law hereby adopts and incorporates the recommended Conclusions of Law of the Hearing Officer.

PENALTY

Both parties sought to have the Board alter the recommended penalty of the Hearing Officer. Respondent sought reduction of the penalty based upon the intervening emergency treatment of patient B.M. by other individuals and the representation that this was Respondent's first experience of this kind.

Petitioner sought an increase in the penalty to revocation of Respondent's license to practice dentistry.

The Board finds that the Hearing Officer's recommended penalty is not appropriate in light of the facts of this case. As set forth in Petitioner's Motion to Increase Penalty, Respondent exhibited a lack of fundamental knowledge and gross incompetence in relation to his use of local anesthetics on a child

patient. Respondent's failure to respond properly to the third and final reaction of patient B.M. further aggravated the situation. Respondent exhibited a complete disregard for the life of patient B.M. as exhibited by his lack of consideration of the consequences involved with the use of such excessive dosages of anesthetic even after multiple unfavorable reactions by the patient. Petitioner's Motion To Increase Penalty is adopted and incorporated for the purpose of providing citations to the record to support these determinations. (Motion to Increase Penalty attached as Exhibit B)

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

That the recommended Penalty of the Hearing Officer is rejected and the Respondent's license to practice dentistry in Florida is REVOKED.

This Final Order takes effect upon filing with the clerk of the Department of Professional Regulation.

NOTICE

The parties are hereby provided notice pursuant to Section 120.59, Florida Statutes, that they may appeal this Final Order by filing within thirty (30) days of the effective date of this Final Order, a notice of appeal with the Clerk of the Department of professional Regulation and a copy of the notice of appeal, accompanied by an appropriate filing fee as prescribed by law with the District Court of Appeals.

DONE AND ORDERED this 3rd day of February, 1992.

BOARD OF DENTISTRY

RICHARD J. CHICHETTI, D.M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by U.S. Mail to Kleyn B. Russell, Jr., D.D.S. c/o Kennan George Dandar, Esquire, One Urban Centre, Suite 447, 4,830 West Kennedy Boulevard, Tampa, Florida 33609-2517 and to James D. Bradwell, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Nancy M. Snurkowski, Chief Attorney, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, this 3rd day of February 1992.

================================================================= DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

KLEYN B. RUSSELL, JR., NOT FINAL UNTIL TIME EXPIRES TO D.D.S., FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

v. CASE NO. 92-4071

DOAH CASE NO. 91-2325

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Appellee.

/ Opinion filed November 14, 1994.

An appeal from an order of the Department of Business and Professional Regulation.

Kennan George Dandar of Dandar & Dandar, P.A., Tampa, for Appellant.

Lisa S. Nelson, Assistant General Counsel; Kathryn L. Kasprzak, Staff Attorney, Department of Business and Professional Regulation, for Appellee.

DAVIS, J.

Appellant, Kleyn B. Russell, appeals a final order of the Department of Business and Professional Regulation, Board of Dentistry (Board). Finding no error in the Board's denial of appellant's motion to set aside a previously entered final order, we affirm.

Appellant was a licensed dentist practicing in Crystal Beach, Florida.

During May through August 1990, he was asked by a laser surgeon, Dr. Massad, to administer trigeminal facial nerve blocks to a patient Massad was treating for port wine stains (hemangiomas) about the face. The purpose of the nerve blocks was to alleviate discomfort during laser surgery. The patient, B.M., was three years old and weighed 34 pounds at the time of the treatment.

Three facial nerve blocks were administered by appellant on three different occasions. Shortly after the third nerve block was administered, the child experienced respiratory distress and seizures, lapsed into cardiac arrest, and was transported to a local hospital by ambulance. Tragically, B.M. died three days later, on August 25, 1990, due to anoxic encephalopathy as a result of cardiac arrest which was triggered by lidocaine toxicity. In layman's terms, the child received an overdose of nerve block and, as a result, sustained a cardiac arrest which deprived her brain of oxygen.

An administrative complaint was filed against the appellant, alleging that he failed to meet the minimum standard of care by failing to comprehend that special calculations are required when giving anesthetics to children, and by administering, on three occasions, an amount of anesthesia which exceeded the maximum dosage recommended by the manufacturer. The administrative complaint also alleged a failure to maintain adequate written records, a violation of section 466.028(1)(m), Florida Statutes.

The cause was referred to the Division of Administrative Hearings for an administrative hearing, following which, the hearing officer issued a recommended order finding, by clear and convincing evidence, that appellant had practiced dentistry at a level below the prevailing standard of care and that appellant failed to maintain proper records as required by statute. After noting that appellant had been the subject of prior disciplinary action by the Board, the hearing officer recommended that appellant be suspended from the practice of dentistry for 5 years and be allowed to resume practice only after successful completion of certain education courses.

With limited exceptions not material to the outcome of this case, the Board adopted the findings of fact and conclusions of law made in the recommended order, but rejected the recommended penalty and entered a final order revoking appellant's license. No appeal was taken from that order. Specifically, the Board found that there was "competent substantial evidence to support the Hearing Officer's determination that on the three specified dates" Respondent administered the anesthetic "in an amount that exceeded the manufacturer's maximum recommended dosage." The Board also expressly found competent substantial evidence to support the Hearing Officer's determination that Russell "failed to recognize that special calculations were required when administering local anesthetic to children." The Board did not reject the Hearing Officer's conclusion that Russell had admitted his failure to comprehend the correct amount of anesthetic that could safely be administered. The Board merely rephrased this paragraph to make it clear that the admission was not made at the time he was physically in the process of administering the anesthetic. The Board also found competent substantial evidence to support the determinations that Russell failed to maintain appropriate records and failed to properly diagnose and treat B.M. after she began to exhibit signs of the respiratory depression which resulted in her death.

Several months later, appellant moved to set aside the final order or, in the alternative, for a new hearing on the ground of newly-discovered evidence, i.e., evidence regarding a manufacturer's recall of certain batches of ASTRA Xylocaine. After hearing arguments of counsel, the Board issued a final order denying the Motion to Set Aside. The Board determined that it was without jurisdiction to revisit appellant's case and noted that it found appellant's arguments unpersuasive.

It is true that there are some cases in which an agency may exercise its inherent authority to reopen a closed case when there is a change in circumstances or a demonstrated public need or interest. Mann v. Dept. of Professional Regulation, Bd. of Dentistry, 585 So.2d 1059 (Fla. 1st DCA 1991). This, however, is clearly not such a case. Therefore, the Board correctly determined that it lacked jurisdiction to revisit this decision, in the absence of a material change in circumstances or demonstrated public need.

In Peoples Gas System Inc. v. Mason, 187 So.2d 335 (Fla. 1966), the supreme court observed that Florida "is among those jurisdictions holding that such agencies do have inherent power to reconsider final orders which are still under

their control. However, the decisions of this court clearly say that this inherent authority to modify is a limited one." Id. at 338 (citation omitted). The Peoples Gas court noted that a modification attempted four years after entry of a final order was inappropriate. Id. at 339. The court suggested further that the PSC's inherent authority to modify a final order should be exercised only upon a change of circumstances or upon a demonstrated public need or interest. Id. The principles announced in Peoples Gas were reaffirmed in Austin Tupler Trucking Inc. v. Hawkins, 377 So.2d 679 (Fla. 1979). See also Richter v. Florida Power Corp., 366 So.2d 798, 800 (Fla. 2d DCA 1979)(Florida case law recognizes the rule that an administrative agency may alter a final decision under "extraordinary circumstances"). Richter was recently cited with approval in Mann v. Department of Professional Regulation, Board of Dentistry, 585 So.2d 1059 (Fla. 1st DCA 1991)

Appellant has failed to demonstrate in his motion to set aside the "extraordinary circumstances" which are a prerequisite for revisiting a closed case. The motion to set aside final order was based upon alleged new evidence that the child's death may have resulted from a manufacturing problem which led to a recall of the anesthesia used during administration of the third nerve block only. 1/ Yet the revocation of appellant's license was not based exclusively on the facts surrounding the third treatment of B.M. Indeed, Russell's alleged new evidence that the third and final batch of anesthetic was defective has no material bearing on any one of the findings of fact adopted by the Board. As found by the Board of Dentistry, this is not a persuasive argument for reopening this case. Appellant's license was revoked because of a persistent pattern of negligence, including three separate instances in which appellant administered anesthetic to this child in excess of the manufacturer's recommended dosage, resulting in adverse reactions each time; appellant's failure to maintain appropriate records; failure to recognize and treat the patient's respiratory distress after the third administration of anesthetic; and an unspecified recent "prior disciplinary action." The hearing officer found, and the Board agreed, that all three treatments of B.M. fell below the established standard of care; the hearing officer found further, and the Board agreed, that appellant failed to recognize that special calculations are required when administering anesthesia to children. Most importantly, the case against appellant concerned the dosages administered to the child on all three occasions which were found to be not in keeping with the standard of care as established in community, and the case concerned appellant's failure to recognize the special dosage requirements of children. Thus, while the subpotency of epinephrine in the third dosage of anesthesia may have actually contributed to the child's death, this is not to say that appellant's treatments did not nevertheless fall below the minimum standard of care given the dosages prescribed and administered by him. In other words, regardless of the child's death, appellant's dosages were found to be excessive on three occasions, his overall care was found to be below acceptable standards, and appellant failed to maintain adequate records. There is no record support for the conclusion of the dissent that the Board might choose to reduce the penalty imposed based upon evidence that Russell was not ultimately responsible for the death of his patient despite all of the reasons recounted above for the revocation of Russell's license.

Accordingly, we affirm the Board's final order denying appellant's Motion to Set aside the Final Order.

ALLEN, J., CONCURS. SMITH, Senior Judge, DISSENTS WITH OPINION.

ENDNOTE

1/ The invoice submitted by appellant shows the receipt of ASTRA Xylocaine on Aug. 8, 1990; obviously, this shipment of anesthesia could not have been used for the May 15 and July 11 treatments of B.M. There is no record indication that the anesthesia used in May and July, whether it was Xylocaine or Octocaine, was defective.

Smith, Senior Judge, dissenting.

The majority correctly states that the Board determined it was without, jurisdiction to revisit appellant's case pursuant to appellant's motion to set aside, or to rehear his case based on newly-discovered evidence. Although the Board allowed appellant's counsel to proffer for the record the testimony of two expert witnesses, Drs. Eugene Patterson and Stanley Malamed, the Board gave no consideration to the proffered evidence in weighing the decision whether to reopen appellant's case. It appears that the Board considered only the arguments of counsel, and, as noted by the majority, found them "unpersuasive." In fact, the Board unceremoniously walked out of the hearing room during the proffered testimony of the two doctors.

The majority's decision to deny relief in this case is grounded upon its conclusion that appellant "has failed to demonstrate in his motion to set aside the `extraordinary circumstances' which are a prerequisite for revisiting a closed case." My view is that: (1) the presence or absence of "extraordinary circumstances" is a determination to be made initially by the Board after due consideration under established principles of law and procedure; and, (2) the facts alleged, as amplified by the proffered testimony, demonstrate at least preliminarily a basis for relief.

I am of the view that the Board, acting under a misapprehension of the law, was under the impression that it was "totally devoid of jurisdiction" to modify previously existing disciplinary orders. Cf., Mann v. Department of Professional Regulation. Board of Dentistry, 585 So.2d 1059, 1060 (Fla. 1st DCA 1991). However, not even the Board's counsel now contends that the Board is "totally devoid of jurisdiction" to modify such orders. The Board having proceeded in error, it is my view that it is not the province of this court to finally adjudicate the case against appellant on the merits.

If for no other reason, appellant is entitled to have his case reopened for reconsideration of the sanction imposed by the Board. It should be recalled that the hearing officer recommended appellant's suspension for years, while the Board rejected the recommended penalty and revoked appellant's license. It defies common sense to assume that the unfortunate death of the patient was not a critical factor in the Board's decision to increase the recommended penalty from suspension to revocation. Yet the newly-discovered evidence, rejected out- of-hand by the Board, raised serious questions concerning the defective anesthetic as the cause of death, rather than appellant's lack of care or skill.

In conclusion, I would reverse the order appealed and remand to the Board for a hearing, with directions to reconsider its sanctions against appellant.

Docket for Case No: 91-002325

Orders for Case No: 91-002325