STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3103

)

WILLIAM A. MOATS, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 22, 1991, in Orlando, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399

For Respondent: Dennis F. Fountain, Esquire Suite 250

1250 S. Highway 17-92

Longwood, Florida 32750 STATEMENT OF THE ISSUES

The underlying facts in this proceeding are uncontroverted. Respondent, a dentist, is charged with a violation of Section 466.028(1)(q), F.S., by prescribing legend drugs other than in the course of the professional practice of dentistry. The issue for resolution is whether the Respondent's prescription of drugs commonly used for the treatment of acne was within the professional practice of dentistry. If the violation occurred, the secondary issue is what discipline is appropriate.

PRELIMINARY STATEMENT

The administrative complaint was issued on November 26, 1990 and Respondent requested an administrative hearing.

At the hearing Petitioner presented the testimony of the patient, S.T.; Enrique DeArrigoitia, M.D.; Howard Freiman; and Frank Addabbo, D.D.S. Four exhibits identified as Petitioner's exhibits #1-4 were received in evidence without objection.

Respondent testified in his own behalf and presented the testimony of Donald Preble, D.D.S. Respondent's seven exhibits, identified as Respondent's #1-7 were received in evidence without objection. Exhibits #1-5 were portions from various medical texts. They were identified at the hearing and counsel for Respondent requested leave to file copies of the pages. The request was granted without objection, but the pages were not filed after the hearing.

A transcript of the hearing was provided and Petitioner filed a proposed recommended order on December 2, 1991. The findings of fact proposed in that order are substantially adopted herein.

FINDINGS OF FACT

1. Respondent, William Moats, D.D.S., has been licensed to practice dentistry in the State of Florida since 1969, under license number DN0005263. He practices at his office located at 515 Semoran Boulevard in Casselberry, Florida.

   
   

2. On March 28, 1990, the patient, S.T. presented to Dr. Moats for a routine teeth cleaning. S.T. had been a regular patient of Dr. Moats since 1979, including a period when S.T. was a military dependent.

   
   

3. During the course of the cleaning, acne lesions around S.T.'s mouth and nose area became irritated and began to bleed. Dr. Moats was concerned about the condition and told the patient he would consult a dermatologist. He then called Enrique M. DeArrigoitia, M.D., a dermatologist whom he has known since his medical service with the Navy.

   
   

   Dr. DeArrigoitia was told that Dr. Moats had a patient in his office with acne lesions, with blackheads, papules and pustules, and some bleeding around his mouth, and was asked what he would suggest. Dr. DeArrigoitia recommended five percent Benzoyl Peroxide and Retin-A, .05 cream to be used sparingly at bedtime. He said that the peroxide could be obtained without a prescription but that Retin-A required one. If necessary, Dr. DeArrigoitia said he would follow the patient.

   
   

4. Dr. Moats gave S.T. two prescriptions: Pan Oxyl gel 10% and Retin-A 0.025% gel, refillable "PRN" (as needed, or indefinitely up to the limits of the law).

   
   

   Both prescriptions were legend drugs. These were medications the patient indicated that he had used before under the care of a dermatologist; however, his prescriptions had expired and he had not seen anyone recently for the acne condition. Both prescriptions are typically used to treat acne. Dr. Moats suggested that S.T. make an appointment with Dr. DeArrigoitia.

   
   

5. S.T. did not follow up on the suggestion because he was too busy at work. He filled the prescriptions twice, the second time because he had left them in his car and they melted.

   
   

6. The two parties each presented a witness qualified as expert in general dentistry. Both experts concurred that the treatment of acne is outside the scope of the practice of dentistry.

   
   

   Dentists may diagnose and treat conditions of the human teeth, jaws or oral- maxillofacial region (generally considered the portion of the face from below the eyes, including the nose, down to the border of the chin and the lower jaw).

   Just because a condition lies within that anatomy, however, does not bring it within the scope of the practice of dentistry. Dentists are not trained to treat acne. While they do treat regions of the lip area -- typically viral sores or irritations, acne is a condition involving the dermis of the face, neck, shoulders and other parts of the body.

   
   

7. Dr. Moats contends that he was not treating acne, but rather was concerned that the open and bleeding lesion was a possible site of infection because of its proximity to the mouth and that it needed attention for the patient's protection. He does not know why he wrote the prescriptions "PRN".

   
   

   He never identified himself to others as anything but a dentist. The prescriptions are written on his prescription pads, printed with his name and address and signed by him, with D.D.S. plainly displayed. He did not consider his action to be outside his practice of dentistry.

   
   

8. The patient was not harmed nor was evidence presented of other violations or disciplinary actions involving this Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1),

   F.S. and Section 455.225(4), F.S.

   
   

10. Section 466.028(1), F.S., provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (q) Prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled sub- stance, other than in the course of the profes-

       sional practice of the dentist. For the purposes of this paragraph, it shall be legally presumed that prescribing, procuring, dispensing, admini- stering, 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 of the dentist, without regard to his intent.

       * * *

       
       

11. "Dentistry" is defined in Section 466.003(3), F.S. as:

    . . .the healing art which is concerned with the examination, diagnosis, treatment planning, and care of conditions within the human oral cavity and its adjacent tissues and structures. It includes the performance or attempted perfor- mance of any dental operation, or oral or oral- maxillofacial surgery and any procedures adjunct thereto, including physical evaluation directly

    related to such operation or surgery pursuant to hospital rules and regulations.

    * * *

    The term also includes the following:

    
    

    (f) Diagnosing, prescribing, or treating or professing to diagnose, prescribe, or treat disease, pain, deformity, deficiency, injury, or physical condition of the human teeth or jaws or oral-maxillofacial region;

    * * *

    
    

12. Petitioner, in this license discipline case, has the burden of proving its charges by evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Uncontroverted expert opinion established that treatment of acne is beyond the scope of the practice of dentistry.

    
    

14. Counsel for Respondent argues that no intent need be proven for the second sentence of paragraph 466.028(1)(q), F.S., but by implication must be proven for violations under the first sentence of that subsection. Respondent contends he did not intend to treat the patient's acne.

    
    

15. Dr. Moats' intent is evident by his actions, including his consultation with a dermatologist, rather than a dentist. Moreover, his prescription of the drugs PRN, no matter how unwitting or unthinking, was wholly inappropriate in the face of his avowed intent to treat the immediate problem of the bleeding lesions. He was plainly treating the acne with those prescriptions.

    
    

16. Dr. Moats' actions, however, were entirely benevolent, did not actually harm the patient, and were not proven to be part of some pattern of his practice beyond the scope of dentistry. He was concerned for the welfare of a youth who was a long-standing patient. He has no history of prior violations or disciplinary actions.

    
    

17. These matters have been considered as mitigating factors, pursuant to Rule 21G-13.005(4), F.A.C., in recommending the penalty in this case.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Board of Dentistry enter its final order finding that William A. Moats, D.D.S. violated Section 466.028(1)(q), F.S., and imposing a reprimand and fine of $750.00.

RECOMMENDED this 20th day of December, 1991, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

William Buckhalt, Exec. Dir. DPR-Board of Dentistry

1940 N. Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel DPR

1940 N. Monroe Street Tallahassee, FL 32399-0792

Albert Peacock, Esquire DPR

1940 N. Monroe Street Tallahassee, FL 32399-0792

Dennis F. Fountain, Esquire Suite 250

1250 S. Highway 17-92

Longwood, FL 32750

MARY CLARK

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 20th day of December, 1991.

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: 91-003103

Orders for Case No: 91-003103