STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 92-0687
)
ROBERT J. FISH, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, a formal hearing was conducted in this case on June 1, 1993 in Fort Lauderdale, Florida before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: J. Ashley Peacock, Senior Attorney
Department of Professional Regulation 1940 North Monroe Street
Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
For Respondent: Max R. Price, Esquire
Solms & Price, P.A.
6701 Sunset Drive, Suite Number 104 South Miami, Florida 33143
STATEMENT OF THE ISSUES
The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violations of Section 466.028(1)(y), Florida Statutes, as set forth in the Amended Administrative Complaint.
PRELIMINARY STATEMENT
In an Amended Administrative Complaint filed on October 9, 1991, Petitioner, the Department of Professional Regulation, charged the Respondent, Robert J. Fish, D.D.S., with violating certain provisions of Section 466.028(1)(y), Florida Statutes. The Amended Administrative Complaint charges that Respondent was guilty of incompetence or negligence by failing to meet the minimum standards in diagnosis and treatment when measured against generally prevailing peer performance. The allegations arose from Respondent's treatment of a patient D. E. Respondent disputed the allegations contained in the Amended Administrative Complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.
As noted above, Respondent was represented at the hearing by Max Price, a member of The Florida Bar. Prior to the hearing, Joel Berger, D.D.S. filed an Affidavit requesting that he also be accepted as a representative of Respondent in this matter. The Affidavit represented that Dr. Berger obtained an undergraduate and dental degree from New York University and was actively engaged in the practice of dentistry for 27 years. According to the Affidavit, Dr. Berger has also obtained a law degree and achieved a passing grade on The Florida Bar Exam. As of the date of the Affidavit, Dr. Berger had not been admitted as a member of The Florida Bar. At the hearing, Petitioner objected to Dr. Berger's appearance as a representative of Respondent. After listening to argument from the parties, Dr. Berger was allowed to assist Mr. Price during the hearing and to conduct the direct examination of Respondent.
At the hearing, Petitioner presented the testimony of two witnesses: D. E. (the "Patient") and Mervyn Dixon, D.D.S., who was accepted as an expert in general dentistry. Petitioner offered one exhibit into evidence, which was accepted without objection. At Petitioner's request, official recognition was taken of Chapter 466, Florida Statutes.
During the hearing, Respondent attempted to file a Motion In Limine seeking to prevent the testimony of Dr. Dixon. That Motion was not accepted because of Respondent's failure to comply with the provisions of the Order of Prehearing Instructions entered in this matter on February 25, 1992. When Dr. Dixon was called to testify, Respondent objected and moved ore tenus to strike any testimony from the witness on the grounds that x-rays, a photograph, a bite registration and a study model which Dr. Dixon prepared of the Patient were lost and never made available to Respondent to review. After listening to argument from the parties, Respondent's objections and motion to strike were overruled and Dr. Dixon was permitted to testify.
Respondent testified on his own behalf and introduced thirteen exhibits into evidence, all of which were accepted without objection. Respondent's exhibits 1-4 were depositions of D. E., Dr. Dixon, and two subsequent treating dentists, Dr. Garrison and Dr. Anderson. The parties agreed that only portions of those depositions should be reviewed for purposes of this case. Accordingly, only those pages cited in the parties' post-hearing submittals have been considered in the preparation of this Recommended Order.
A transcript of the proceedings has been filed. The transcript of the proceedings does not clearly reflect a due date for post-hearing submittals. Petitioner submitted a Proposed Recommended Order 45 days after the filing of the transcript. Respondent submitted a Proposed Recommended Order and a legal brief in support thereof 60 days after the filing of the transcript. On September 2, 1993, Petitioner filed Petitioner's Motion To Strike Respondent's Proposed Recommended Order. Respondent filed Respondent's Response To Petitioner's Motion To Strike Respondent's Proposed Recommended Order on September 20, 1993. Those documents reflect a dispute as to whether post- hearing submittals were due 45 days or 60 days after the filing of the transcript. Unfortunately, a review of the transcript does not conclusively resolve this issue. The record reflects that, at the conclusion of the hearing, Respondent requested 60 days from the filing of the transcript to submit proposed findings of fact and conclusions of law, but the undersigned Hearing Officer expressed some reluctance to grant such an extended period. The notes of the undersigned Hearing Officer reflect that the parties were granted 45 days with the option of seeking an extension if necessary. However, because the record of the proceeding does not clearly reflect this ruling and because the
undersigned does not believe that consideration of Respondent's post-hearing submittals changes the ultimate findings and conclusion in this case, Petitioner's Motion To Strike Respondent's Proposed Recommended Order is denied and Respondent's post-hearing submittals have been reviewed and considered. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times pertinent to this proceeding, Respondent, Robert J. Fish, was licensed by the Department of Professional Regulation (the "Department"), Board of Dentistry (the "Board",) as a dentist in the State of Florida having been issued license number DN0005694.
At all times pertinent to this proceeding, Respondent was engaged in the practice of dentistry in Tamarac, Florida.
At the time of the hearing in this matter, the Patient whose treatment is the subject of the allegations in the Amended Administrative Complaint was 83 years old. At the hearing, D.E. admitted that, because of certain health problems, she had experienced some loss of memory.
The Patient first presented to Respondent's office for oral examination on June 27, 1983. For some time prior to this visit, she had been treated by a periodontist in Broward County. The nature and extent of that prior treatment is not clear.
During her visit to Respondent's office on June 27, 1983, the Patient completed a dental and medical history form. According to those forms, the Patient had a history of cancer and high blood pressure. Respondent also confirmed that the Patient had not received any hormone replacement therapy for post-menopausal osteoporosis. Based upon her medical history, Respondent recognized that the Patient's immune system was possibly compromised and she was a likely candidate to suffer loss of the bone supporting her teeth.
During her first visit, Respondent performed a complete periodontal examination, charting all of the Patient's visible defects. The Patient was diagnosed as having "chronic gingivitis [and] furcation involvement."
Respondent noted bone loss of between three to five millimeters around teeth 23, 24, 25, 26 and 27.
On July 19, 1983, the Patient returned to Respondent's office at which time his hygienist performed a prophylaxis. The Patient was advised that she should anticipate the need to address other aspects of her periodontal condition.
The Patient visited Respondent's office four times in 1984, six times in 1985, and two times in 1986 for routine dental procedures.
On August 12, 1986, Respondent informed the Patient of certain undesirable changes in the health of the bones of her jaws and the condition of her teeth. Respondent advised the Patient that she was losing the support for some of her teeth and bone was disappearing around some of the roots. The Patient was told that she should seek treatment for these matters or she would risk more serious problems down the line. The Patient indicated that she would let Respondent know when she desired any additional treatment.
On January 29, 1987, Respondent performed a full-mouth series of x- rays to evaluate the Patient's worsening periodontal status. The Patient returned in August of 1987, at which time she had to have the two fractured roots of tooth number 30 extracted. It is not clear why the Patient did not return until August of 1987. On September 3, 1987, the Patient returned for the removal of the sutures and the area seemed to be healing well.
The Patient's next visit to the Respondent's office was on October 1, 1987. During that visit, Respondent examined and charted the Patient's mouth and developed a treatment plan with multiple stages and options. Respondent's treatment plan included the making of a bridge for teeth 27, 28 and 29 and the fabrication of a partial denture, either an acrylic wrought clasp type or a chrome frame marked with acrylic saddles. The plan was discussed with the Patient who selected a course of treatment and signed the plan.
The Patient was advised by Respondent in October, 1987 of problems on her lower left side that would need attention in the future. Respondent proposed to use a "temporary provisional" partial in order to avoid the cost of making it twice.
From October through December, 1987, the Patient returned to Respondent's office approximately twelve times. During this period, Respondent constructed a three-tooth (#'s 27, 28 and 29) porcelain-fused-to-metal splint and a "transitional" acrylic-based partial lower denture.
From October 1987 through August 1988, the Patient experienced some discomfort with the acrylic-based partial lower denture. She returned to Respondent's office approximately seventeen times for adjustments, repairs and/or realigns. These visits were necessitated, at least in part, by the ongoing physiological changes in the Patient's lower jaw during the first year after the extraction of her lower right molar.
In August of 1988, the Patient experienced some discomfort on her lower left side. On August 11, 1988, she consulted with the Respondent who confirmed the loss of bone in that area.
On August 16, 1988, Respondent performed another complete periodontal examination. Respondent found that the Patient had pockets of approximately 6 to 7 millimeters around teeth 23, 24, 25 and 26. In other words, the Patient's periodontal health was not good and there were great stresses on her teeth which were significantly out of bone. With the aid of x-rays, Respondent generated a diagnosis and treatment plan which was accepted and signed by the Patient. Respondent's plan was to further explore the condition of the Patient's lower left side, extract non-salvageable teeth and modify her recently made partial lower denture to accommodate the teeth that had to be removed on the lower left side.
On October 16, 1988, Respondent began this treatment plan and determined that the roots of two of the teeth were so badly infected and diseased that they were non-salvageable. The existing bridge was severed and the four roots from teeth 18 and 19 were removed. A new bridge was made and the teeth that had been removed were added to the removable partial. At this point, the Patient's right side had still not completely healed.
During the remainder of 1988, Respondent continued to make adjustments to the Patient's partial lower denture. Many of the adjustments were necessitated by bone recontouring and healing. In December of 1988, Respondent
advised the Patient that she needed to have her partial lower denture relined and repaired. The Patient had the denture adjusted on January 24, 1989, but did not have it relined.
On February 14, 1989, the Patient telephoned Respondent's office and complained of discomfort. There is conflicting evidence as to whether or not Respondent was in the office on that date. It is not necessary to resolve that issue for purposes of disposing of this case. In any event, the Patient appeared at Respondent's office without an appointment and demanded to see him. After a dispute with the office staff, the Patient left and subsequently refused to return for any further treatment.
On May 8, 1989, the Patient went to see another dentist, Dr. Harvey Garrison. On the medical history form that she filled out for that visit, she denied experiencing any pain or discomfort.
Dr. Garrison examined the Patient on May 8, 1989 and noted her need for fillings, endontics, prophylaxis and crowns. He did not make any notation that she was experiencing pain or discomfort.
The Patient returned to Dr. Garrison's office on June 5 and 8, 1989. Again, there is no notation that the Patient was experiencing any pain or discomfort.
Dr. Garrison's records include a notation dated June 27, 1989 which states "27, 28, 29 buccal margins are open plus the patient was made a lower temporary partial. I'm recommending that she contact Broward County Dental Society. The treatment was completed in 1988 by Dr. Fish." In his deposition offered into evidence during this proceeding, Dr. Garrison could not provide any more specific information regarding the open margins he allegedly found and he was unable to provide any further explanation of the Patient's condition on June 26.
The Patient was treated by Dr. Garrison on July 26, 1989. The notes from that treatment indicate that the Patient had complained about her "L Part" on June 27, 1989.
Dr. Garrison's notes of his examination of the patient on July 26, 1989 indicate that he found open margins around the end of the crowns of teeth #s 27, 28 and 29. There is no chart notation and Dr. Garrison does not recall the location or extent of the margins. His notes do not reflect any clinical significance or treatment necessary.
On July 26, 1989, Dr. Garrison began to treat the Patient's upper arch. On November 21, 1989, he provisionally inserted ten crowns and a partial upper removable denture that he had fabricated.
Dr. Garrison's notes do not reflect any further complaint of pain or treatment regarding the lower denture until November 20, 1989 when the Patient's lower partial denture was sent to a dental laboratory for repair. Dr. Garrison does not know the extent of the repair.
The Patient testified that Dr. Garrison did not do any work on her lower denture. Dr. Dixon, Petitioner's expert, assumed that no work was done on the Patient's lower denture after she left Respondent's care. However, Dr. Garrison's records clearly reflect that the lower partial was sent to the
laboratory for repair on November 20, 1989 and Dr. Garrison adjusted the lower partial on November 20 and November 22, 1989.
There is no evidence as to the extent of the repairs or adjustments conducted on the lower partial in November of 1989.
On November 6, 1989, Dr. Garrison sent a letter to DPR addressed "To Whom It May Concern." The letter states that
[DE] came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort.
I examined the lower bridge work and found the buccal margins of teeth #27,28,29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated.
In my opinion, the care rendered fell below the minimum standards expected. . . .
In his testimony for this case, Dr. Garrison could give no further explanation of his findings. When asked to explain why the lower partial was "inadequately fabricated," Dr. Garrison simply said that his office did not like using acrylic for lower partials and he only used acrylic for temporary devices. He admitted that he did not know what the general practice was in other offices. He also admitted that he had not reviewed Respondent's records and did not know what Respondent's treatment plan was for the Patient.
From December 19, 1989 through June 5, 1990, Dr. Garrison performed various adjustments and modifications to the fixed bridge he inserted in the Patient's upper arch. It is clear that from November 1989 through June 1990, Dr. Garrison performed many dental procedures which may have significantly altered the Patient's dentition. The extent and impact of the alteration is not clear.
On June 16, 1990, approximately a year and a half after Respondent last saw the Patient, D. E. was examined by Dr. Dixon, an expert retained by DPR to evaluate Respondent's treatment of the Patient. Dr. Dixon's examination included the taking of an x-ray, a photograph, a bite registration and a bite impression or study model. Apparently, all of those items were misplaced, and none of them were ever made available to Respondent to review. None of them were offered into evidence at the hearing. As noted in the Preliminary Statement and in the Conclusions of Law, Respondent's Motion In Limine and objection to Dr. Dixon's testimony based upon the failure to produce these items were denied. Nevertheless, the absence of these items is a factor that has been considered in determining the weight to be afforded Dr. Dixon's testimony.
Dr. Dixon testified that the three-tooth bridge (splint) for teeth #27, 28 and 29 did not meet community standards because it had open margins and improper occlusion. Dr. Dixon also testified regarding other deficiencies that he says he found in Respondent's treatment of the Patient, including clasps that were too tight and an improper adaptation (fit) of the denture to the lingual portion of the Patient's teeth. As discussed in the Conclusions of Law below, the Amended Administrative Complaint does not specifically charge
Respondent with all of these purported deficiencies. In any event, after considering all of the evidence, Dr. Dixon's conclusions and opinions regarding Respondent's treatment of the Patient are not convincing.
Dr. Dixon admitted that he had not read Dr. Garrison's records. At the time of his examination of the Patient and at the hearing, Dr. Dixon did not know that the Patient's lower partial had been adjusted and repaired by Dr. Garrison. He also did not know that Dr. Garrison had treated the Patient's entire upper arch. Dr. Dixon admitted that it was important to know exactly what Dr. Garrison had done for the Patient and/or how it affected the dentistry performed by Dr. Fish. However, the evidence indicates that Dr. Dixon did not have the benefit of this information. Thus, he was unable to comment on the impact that Dr. Garrison's treatment had on the Patient's occlusion.
A review of the x-rays taken by Respondent and those taken subsequently by Dr. Garrison indicates there was some movement of the posts and necessarily the crowns away from the teeth (roots) with the passage of time. In addition, because of the extensive surgery conducted on the Patient's mouth and because of her age and medical condition, a lengthy recovery process with tissue shrinkage and bone recontouring could reasonably be expected. In view of all the factors, the evidence was insufficient to show that any negligence or incompetence by Respondent was responsible for the inadequacies that Dr. Dixon observed in the Patient's lower partial denture and/or splint.
It should also be noted that Dr. Garrison was unable to testify with any specificity regarding the deficiencies in Respondent's work.
At the hearing and in his proposed recommended order, Respondent referred to the lower partial denture that he made for the Patient as "transitional" or "temporary." It is not entirely clear what Respondent meant by these references. The Patient clearly did not understand that Respondent intended to fabricate a "permanent" partial denture in the future. Petitioner has suggested that Respondent's use of acrylic in fabricating the lower partial denture for the Patient was improper. Even assuming that this allegation fits within the scope of the Amended Administrative Complaint filed in this matter, the evidence presented was insufficient to establish that Respondent's use of this material given the facts and circumstances of this case fell below the minimum standards expected of a dentist in this community.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1) and 455.225, Florida Statutes (1993).
Pursuant to Section 466.028(2), Florida Statutes, the Board of Dentistry is empowered to revoke, suspend, or otherwise discipline the license to practice dentistry of any dentist in the State of Florida found guilty of any of the acts enumerated in Section 466.028(1)(a), Florida Statutes.
Petitioner has the burden to prove by clear and convincing evidence all essential allegations made against Respondent. See Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).
Disciplinary action with respect to a professional license is limited to the offenses and facts alleged in the administrative complaint. Sternberg v.
Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985).
The Amended Administrative Complaint filed in this case charges Respondent with violating Section 466.02(8)(1)(y), Florida Statutes, (1991). That statute provides as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in Subsection (2) may be taken.
* * *
(y) being 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. . .
The Amended Administrative Complaint provides only sketchy details of the alleged violation. The pertinent provisions of the Amended Administrative Complaint provide as follows:
The subsequent treating dentist examined patient D. E.'s bridgework and observed the buccal margins of teeth #27, #28, and #29, were inadequately sealed. He also noted that the lower partial was the type usually used
as a temporary partial.
On or about June 16, 1990, patient D. E. presented to a departmental expert for examination. The consultant observed the teeth #27, #28, and #29 contained open margins.
Failure to adequately provide a lower denture that was absent any open margins is failure to practice dentistry within the minimum standards of care as recognized by the prevailing peer community.
The investigation of Respondent was apparently prompted by Dr. Garrison's statements to the Patient and his November 6, 1989 letter to the Department. As the subsequent treating dentist, Dr. Garrison's allegations of deficiencies in Respondent's work are not conclusive. See Robinson vs. Florida Board of Dentistry, 447 So. 2d 930 (Fla. 3rd DCA 1984). The evidence indicates that Dr. Garrison did not make any notations regarding open margins until the Patient's fourth visit to his office which was more than six months after Respondent last treated the Patient. Dr. Garrison had no specific recollection of the extent of the margins and he had no knowledge regarding the treatment rendered by Respondent.
The Department's expert did not examine the Patient until a year and a half after Respondent last saw the Patient. Before the Department's expert saw the Patient, Dr. Garrison had repaired and adjusted the Patient's lower partial. The Department's expert was not aware of the extent of the repair or adjustments and, in fact, did not even know the subsequent treating dentist had done any work on the Patient's lower partial. Furthermore, the Department's expert did not address the impact of the tissue shrinkage and bone recontouring that could reasonably be expected given the Patient's age, medical condition and prior oral
surgery. For all of these reasons, the conclusions offered by the Department's expert were not convincing.
The Department's expert testified regarding some alleged deficiencies in Respondent's treatment of the Patient that were not specifically set forth in the Amended Administrative Complaint. These new allegations included an alleged malocclusion and clasps that were supposedly too tight. To the extent the allegations made by the Department's expert were not specifically alleged in the Amended Administrative Complaint, they cannot serve as a basis for disciplinary action in this proceeding. In any event, the evidence established that the Department's expert did not consider the impacts of the subsequent treating dentist's work on the Patient and, consequently, the conclusions of the Department's expert were not persuasive.
The Amended Administrative Complaint insinuates that the Respondent failed to meet minimum standards when he fabricated a lower partial that was "the type usually used as a temporary partial." The evidence was inconclusive as to whether the lower partial was intended to be temporary or permanent. Irrespective of Respondent's treatment plan and/or intent with respect to the lower partial, no persuasive evidence was presented at the hearing to substantiate this insinuation that the use of acrylic in fabricating the lower partial was improper.
Respondent has argued that he was denied due process of law as guaranteed by Article I, Section 9 of the Florida Constitution and the Fifth and Fourteenth Amendments of the U.S. Constitution. Essentially, Respondent contends that he has been denied due process because he was unable to examine certain records and models prepared by Petitioner's expert and conduct cross examination regarding them. While the x-rays, bite registration, study model and photograph taken by the Petitioner's expert were apparently misplaced and never provided to Respondent, Petitioner's expert did not specifically reference any of those items during his direct testimony and it did not appear that those items were essential to the formulation of his opinions. The absence of those demonstrative items is a factor to be considered in the weight afforded to the expert's testimony, but the absence of these items did not unduly impact upon Respondent's ability to cross examine the witness.
In sum, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a Final Order finding the
Respondent, Robert J. Fish, not guilty of the allegations set forth in the Amended Administrative Complaint and dismissing the charges.
DONE and ENTERED this 24th day of January 1994, in Tallahassee, Leon County, Florida.
J. STEPHEN MENTON 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 24th day of January 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-687
Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.
Petitioner's Proposed Findings of Fact.
Rejected as unnecessary.
Adopted in substance in Findings of Fact 1.
Subordinate to Findings of Fact 11-13.
Subordinate to Findings of Fact 11-13.
Subordinate to Findings of Fact 15-17.
Subordinate to Findings of Fact 15-17.
Subordinate to Findings of Fact 21-23.
Subordinate to Findings of Fact 21-25.
Subordinate to Findings of Fact 30.
Adopted in substance in Findings of Fact 32.
Subordinate to Findings of Fact 33.
Subordinate to Findings of Fact 35.
Respondent's Proposed Findings of Fact.
Rejected as unnecessary.
Adopted in substance in Findings of Fact 1.
Subordinate to Findings of Fact 4.
Rejected as unnecessary.
The first sentence is adopted in substance in Findings of Fact 4. The second sentence is rejected as unnecessary.
Adopted in substance in Findings of Fact 5.
Subordinate to Findings of Fact 6 and 7.
Adopted in substance in Findings of Fact 8.
Adopted in substance in Findings of Fact 9.
Adopted in substance in Findings of Fact 9.
Subordinate to Findings of Fact 10-14.
Adopted in substance in Findings of Fact 10.
Adopted in substance in Findings of Fact 10.
Adopted in substance in Findings of Fact 11.
Adopted in substance in Findings of Fact 11.
Subordinate to Findings of Fact 13.
Adopted in substance in Findings of Fact 14.
Subordinate to Findings of Fact 15.
Adopted in substance in Findings of Fact 16.
Adopted in substance in Findings of Fact 17.
Adopted in substance in Findings of Fact 17.
Subordinate to Findings of Fact 18.
Adopted in substance in Findings of Fact 18.
Adopted in substance in Findings of Fact 18. 25.-33. Subordinate to Findings of Fact 19.
Adopted in substance in Findings of Fact 20.
Subordinate to Findings of Fact 20.
Subordinate to Findings of Fact 21.
Adopted in substance in Findings of Fact 22.
Subordinate to Findings of Fact 23.
Subordinate to Findings of Fact 24 and 25.
Subordinate to Findings of Fact 25.
Adopted in substance in Findings of Fact 26.
Adopted in substance in Findings of Fact 27.
Adopted in substance in Findings of Fact 28 and 30.
Adopted in substance in Findings of Fact 30.
Rejected as argumentative. This subject is addressed in Findings of Fact 30.
Rejected as argumentative. This subject is addressed in Findings of Fact 30.
Rejected as argumentative and subordinate to Findings of Fact 30.
Rejected as constituting legal argument rather than a finding of fact. This proposal is an incorrect statement of the ruling made at the hearing.
Adopted in substance in Findings of Fact 28.
Adopted in substance in Findings of Fact 31.
Subordinate to Findings of Fact 31.
Adopted in substance in Findings of Fact 32.
Adopted in substance in Findings of Fact 32.
The first sentence is adopted in substance in Findings of Fact 32. The remainder is rejected as constituting argument. The subject matter is addressed in the Preliminary Statement and the Conclusions of Law.
Adopted in substance in Findings of Fact 33.
Subordinate to Findings of Fact 34.
57.-58. Subordinate to Findings of Fact 32 and 35.
Rejected as vague and unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Subordinate to Findings of Fact 28.
Adopted in substance in Findings of Fact 34.
Rejected as constituting argument. This subject matter is addressed in Findings of Fact 33.
Rejected as unnecessary and subordinate to Findings of Fact 28.
Adopted in substance in Findings of Fact 28 and 34.
Subordinate to Findings of Fact 33 and 35.
Rejected as constituting argument. The subject matter is addressed in paragraph the Conclusions
of Law.
Adopted in substance in Findings of Fact 33
Adopted in substance in Findings of Fact 33 and in the Conclusions of Law.
Subordinate to Findings of Fact 33.
Rejected as unnecessary.
Rejected as vague and ambiguous.
Rejected as constituting argument.
Rejected as unnecessary.
COPIES FURNISHED:
Ashley Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street
Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
Max R. Price, Esquire Solms & Price
6701 Sunset Drive, Suite #104 South Miami, Florida 33143
Jack McRay, Esquire Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
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 REMAND ORDER
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STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DOAH CASE NO. 92-687
vs. CASE NO. 89-09812
LICENSE NO. dn0005694
ROBERT J. FISH,
Respondent.
/
REMAND ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on April 16, 1994, in Jacksonville, Florida, for consideration of the Hearing Of ficer's Recommended Order (a copy of which is attached as ExhibitA) in the case of Department of Professional Regulation v. Robert J. Fish, Case No. 92-0687. At the hearing, Petitioner was represented by Nancy N. Snurkowski, Chief Attorney. Respondent appeared before the Board with Max R. Price, Esquire. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.
The Hearing officer's findings of fact are rejected to the extent that any recommended finding of fact states or implies that there is insufficient specification of the nature or location of the open margins that are at issue in this cause. Specificaly, paragraphs 23, 25, 30, 35, 36 and found to either state, imply or rely upon such findings. The Board specifically finds references to open buccal margins to be sufficiently specific as those terms are used in the practice of dentistry. The margins of crowns are identified in quadrants with the "buccal" being that quadrant facing the patient's cheek; the "lingual" being the quadrant facing the patients tongue; the "mesial" being the quadrant facing the front of the patient's mouth; and the "distal" being the quadrant facing the patient's throat. An open margin on a crown is an unsealed margin. These terms are well and universally understood in dentistry and use of the description "open buccal margin" provides a specific identification of the location and nature of a margin that has been prepared in a manner that is below the acceptable standard of care for a licensed dentist in Florida.
The Board also finds that it was not appropriate for the Hearing Officer to fail to consider all of the competent evidence admitted in the formal hearing.
The deposition testimony of Dr. Dixon was admitted into evidence and should be considered as corroboration of Dr. Garrison's testimony reg&rdless of the parties' failure to address such testimony in their proposed recommended orders.
Therefore, the Board hereby remands this matter to the Hearing Officer with the following directions:
The Hearing Officer shall accept the foregoing findings with regard to the term open buccal rnargins and apply it to his consideration of the evidence and testiniony in this cause.
The Hearing Officer shall consider all of the testimony and evidence admitted during the formal hearing, including specifically the depositions that are Respondent's exhibits 1-4 and were admitted without objection.
Based upon the foregoing directions, the Hearing Officer shall submit appropriate recommended findings of fact, and conclusions of law and penalty.
This Order becomes effective upon being filed with the Clerk of the Department of Business and Professional Regulation.
DONE AND ORDERED this 13th day of May, 1994.
BOARD OF DENTISTRY
EDWARD R. SCOTT, II, D.M.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been forwarded by Certified United States Mail this 13th day of May, 1994, to Dr. Robert J. Fish c/o Max R. Price, Esquire, 6701 Sunset Drive, Suite 104, Miami, Florida 33143 and by U.S. Mail on the same date to J. Stephen Menton, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Aplachee Parkway, Tallahassee, Florida 32399-1550, and hand delivered to Nancy
M. Snurkowski, Chief Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750.
William H. Buckhalt, C.P.M. Executive Director
Board of Dentistry
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ORDER ON REMAND
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, BOARD OF )
DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 92-0687
)
ROBERT J. FISH, D. D. S., )
)
Respondent. )
)
ORDER ON REMAND
In an Amended Administrative Complaint filed on October 9, 1991, Petitioner charged Respondent with violating certain provisions of Chapter 466, Florida Statutes. The allegations arose from Respondent's treatment of a patient, D. E. Respondent disputed the allegations contained in the Amended Administrative Complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted a hearing on June 1, 1993. The hearing was conducted before the undersigned Hearing Officer.
Following the completion of the hearing, both parties submitted proposed findings of fact and conclusions of law. After considering those proposals, a Recommended Order was entered by the undersigned Hearing Officer on January 24, 1994. That Recommended Order concluded that Respondent should be found not guilty of the allegations set forth in the Amended Administrative Complaint and all charges against him should be dismissed.
On May 19, 1994, the Division of Administrative Hearings ("DOAH") received a copy of a Remand Order which was apparently entered by the Board of Dentistry (the "Board") after consideration of the Recommended Order. On June 13, 1994, Respondent filed an Objection to Remand Order and Motion to Compel Production of Hearing Transcript and Other Documentation. Respondent also filed Respondent's Proposed Supplemental Findings of Fact and Conclusions of Law. On July 15, 1994, Petitioner filed Petitioner's Response to Respondent's Proposed Supplemental Findings of Fact and Conclusions of Law and Petitioner's Response to Respondent's Objection to the Remand Order. On August 29, 1994, Respondent filed a transcript of the April 16, 1994 Board meeting during which the Recommended Order was considered and the Board's attorney was directed to prepare the Remand Order. Neither the Board nor its attorney have bothered to return to DOAH a copy of the transcript of the June 1993 hearing and/or the exhibits which were transmitted to the Board at the time the Recommended Order was entered. In view of the conclusions reached herein, the undersigned Hearing
Officer has concluded that further review of the transcript of the hearing in this matter and/or the exhibits offered into evidence is unnecessary.
After considering the Remand Order and the arguments submitted by the parties, it is concluded that the Remand Order is legally insufficient and factually inaccurate. Moreover, the issues raised by the Board in its Remand Order are totally irrelevant to the fundamental deficiencies in the proof offered by Petitioner at the final hearing.
Before addressing the specific issues raised by the Board in its Remand Order, it is necessary to review the purpose of a formal proceeding under Chapter 120, Florida Statutes. The clear legislative goal in enacting Chapter
120 (the "APA") and providing for administrative proceedings to be conducted before DOAH was to provide a fair, impartial, independent forum to resolve disputed issues of fact between a state board or agency and a private citizen whose substantial interests are impacted by the actions or decisions of the board or agency. State ex. rel. Department of General Services v. Willis, 344 So.2d 580, 591-92 (Fla. 1st DCA 1977); 3 England and Levinson, Florida Administrative Practice Manual, Reporter's Comments on Section 0120.10 of the Proposed Act, at page 22. Chapter 120 seeks to provide a level playing field so that all parties in a formal proceeding litigate on an equal footing. See, Section 120.57(1)(b)3; Dore, Access to Florida Administrative Proceedings, 13
F.S.U. Law Review 965 at 1079 (1986). Such a level playing field is denied when the Board unilaterally remands a case for further proceedings because it is unhappy with the results of the formal hearing and/or wants a second chance to prove its case.
There is no provision in the APA, the DOAH Rules (Chapter 60Q, Florida Administrative Code), or the Model Rules of Procedure (Chapter 28-5, Florida Administrative Code) authorizing or permitting an agency or Board to "remand" or "reopen" a case following the entry of a Recommended Order by a Hearing Officer after a formal hearing pursuant to Section 120.57. See, Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Florida Department of Law Enforcement v. Dukes, 484 So.2d 645, 647 (Fla. 4th DCA 1986); Henderson Signs v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981). The reopening of an administrative proceeding to take additional evidence has been directed by the courts in certain unique or special circumstances. See, Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Department of Professional Regulation v. Wise, 575 So.2d 713 (Fla. 1st DCA 1991). Petitioner has not cited any unique or special circumstances which would mitigate in favor of accepting a remand in this case. Cf. Board of Medicine v. Mata, 561 So.2d 364 (Fla. 1st DCA 1990).
In sum, it is clear that the Board cannot reopen or remand a case simply to submit new evidence in an attempt to fill in the gaps in the proof offered by Petitioner at the formal hearing. Similarly, the Board has no authority to demand a Hearing Officer to reconsider the weight and/or credibility afforded to particular evidence or testimony. Arguably, the matters cited by the Board in its Remand Order should be rejected under these principles. Such a conclusion is unnecessary since the additional matters which the Board requests the Hearing Officer to include in his consideration are extraneous to the fundamental deficiencies found in the proof offered by Petitioner at the formal hearing.
In a license disciplinary case such as this one, the role of a Hearing Officer is not to serve as an investigator on the part of the Department to determine whether there is any evidence to support the allegations contained in
an Administrative Complaint. Instead, a Hearing Officer is an independent fact finder who considers the evidence submitted by the parties.
Disciplinary action with respect to a professional license is limited to the offenses and facts alleged in the Administrative Complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129,
133 (Fla. 5th DCA 1987). As noted in the Recommended Order, Petitioner had the burden of proof in this case and was obligated to prove all essential allegations made against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989). The nature of clear and convincing evidence has been described in Solomowitz 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 precise and explicit and the witness 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, 958 (Fla. 1st DCA 1988). The evidence presented at the hearing in this case failed to meet this standard. Even if the matters cited by the Board are taken into account, the evidence still does not reach this standard. Even if the matters cited by the Board are taken into account, the evidence still does not reach this standard.
The Remand Order provides in pertinent part as follows:
The Hearing Officer's finding [sic] of fact are rejected to the extent that any recommended finding of fact states or implies that there is insufficient specification of the nature or location of the open margins that are at issue in this cause. Specifi- cally, paragraphs 23, 25, 30, 35, 36 and [sic] found to either state, imply or rely upon such findings. The Board specifically finds references to open buccal margins to be sufficiently specific as those terms are used in the practice of dentistry. The margins of crowns are identified in quadrants with the "buccal" being that quadrant facing the patient's cheek; the "lingual" being the quadrant facing the patients [sic] tongue; the "mesial" being the quadrant facing the front of the patient's mouth; and the "distal" being the quadrant facing the patient's throat. An open margin on a crown is an unsealed margin. These terms are well
and universally understood in dentistry and use of the description "open buccal margin" provides a specific identification of the location and nature of a margin that has been prepared in a manner that is below the acceptable standard of care for a license dentist in Florida.
The Board also finds that it was not approp- riate for the Hearing Officer to fail to consider all of the competent evidence admitted in the formal hearing. The deposi- tion testimony of Dr. Dixon was admitted into evidence and should be considered as corroboration of Dr. Garrison's testimony regardless of the parties' failure to address such testimony in their proposed recommended orders. Therefore, the Board hereby remands this matter to the Hearing Officer with the following directions:
The Hearing Officer shall accept the foregoing findings with regard to the term open buccal margins and apply it to his consideration of the evidence and testimony in this case.
The Hearing Officer shall consider all of the testimony in evidence admitted during the formal hearing, including specifically the depositions that are Respondent's exhibits 1-
4 and were [sic] admitted without objection.
Based upon the foregoing directions, the Hearing Officer shall submit appropriate recommended findings of fact, and conclusions of law and penalty.
Buccal Margins
It is highly questionable whether the Board has the authority to remand a case to a Hearing Officer to "accept [the Board's explanation of the universally understood meaning' of] the term open buccal margins and apply it to [the] consideration of the evidence and testimony in this case." See, Henderson Signs
v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981). However, this issue need not be resolved in the present case since the conclusion in the Recommended Order that the Administrative Complaint should be dismissed was not premised on any uncertainty or confusion over the location of the purported margins.
The Board cites to five paragraphs (Nos. 23, 25, 30, 35 and 36) of the Findings of Fact in the Recommended Order which it suggests reflect some uncertainty as to the meaning of the term "buccal margins." Even if the Board's explanation of the term "buccal margins" was included in any or all of these findings, the ultimate conclusion reached in the Recommended Order would not change. Quite simply, the specific location of the purported margins is not of significant importance to any of those findings.
Before reviewing the specific paragraphs cited by the Board, it is helpful to summarize some of the uncontested findings of fact that were made based upon
the evidence presented at the hearing. Respondent began treating the Patient in question in June of 1983. At that time, the Patient was approximately 73 years old. She had a history of periodontal problems and her medical history indicated that her immune system was possibly compromised. She had already suffered some bone loss around her teeth and was a likely candidate for further loss due to menopausal osteoporosis. During her initial visit to Respondent in 1983, the Patient was diagnosed as having "chronic gingivitis [and] furcation involvement." See Findings of Fact 3-6.
The continued deterioration in the health of the bones of the Patient's jaw and the condition of her teeth was noted by the Respondent during the Patient's visit in August of 1986. One year later, in August of 1987, the Patient underwent oral surgery during which Respondent removed two fractured roots of tooth number 30. See Findings of Fact 9 and 10. At some point between October and December of 1987, Respondent constructed a 3-tooth porcelain-fused-to-metal splint for teeth numbers 27, 28 and 29. Over the next eight to ten months, the Patient returned to Respondent's office on numerous occasions for adjustments that were necessitated in part by ongoing physiological changes in the Patient's lower jaw as a result of her age, physical condition and the recent extraction of her lower right molar. See Findings of Fact 5 and 9.
Respondent's examination of the Patient on August 16, 1988, revealed that the Patient's periodontal health was not good and there were great stresses on her teeth which were significantly out of bone. Respondent continued to treat the Patient through the remainder of 1988. See Findings of Fact 15 through 18.
On May 8, 1989, the Patient went to set another dentist, Dr. Harvey Garrison. Dr. Garrison treated the Patient on May 8, June 5 and June 8, 1989, without any notation of deficiencies in the Patient's prior dental work. See Findings of Fact 20 through 22.
The first allegation of open margins in the Patient's dental work appears in a notation in Dr. Garrison's records dated June 27, 1989. This notation was made more than six months after Respondent stopped treating the Patient and more than one and a half years after the work in question was done. The notation is reported verbatim in Findings of Fact 23. That Finding of Fact notes that "Dr. Garrison could not provide any more specific information regarding the open margins he allegedly found and he was unable to provide any further explanation of the Patient's condition." In other words, Dr. Garrison could not testify regarding the extent or cause of the margins he found, he did not explain why the margins were not noted during the Patient's earlier visits, he admitted that the notation in his chart was not in his handwriting and he did not have any specific recollection of what he found. While the hearsay note in the records refers to "buccal margins," Dr. Garrison could not confirm the accuracy of this note. In any event, the location of the open margins purportedly found by Dr.
Garrison during this visit is of no consequence to the ultimate conclusions in the Recommended Order.
Finding of Fact 25 provides as follows:
Dr. Garrison's notes of his examination of the Patient on July 26, 1989, indicate that he found open margins around the end of the crowns of teeth numbers 27, 28 and 29. There
is no chart notation and Dr. Garrison does not recall the location or extent of the margins. His notes do not reflect any clinical significance or treatment necessary.
This finding simply describes the entry in Dr. Garrison's record. The entry from that date did not specifically refer to "buccal" margins and Dr. Garrison did not testify regarding the location of the margins noted in this entry. 1/ The Board's proffered definition of "buccal margins" does not in any way elucidate this finding.
Finding of Fact 30 provides as follows:
On November 6, 1989, Dr. Garrison sent a letter to DPR addressed "to whom it may concern." The letter states:
[D. E.] came to my office 5/8/89 for
an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort.
I examined the lower bridge work and found the buccal margins of teeth number 27, 28, 29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated.
In my opinion, the care rendered fell
below the minimum standards expected . . . .
In his testimony for this case, Dr. Garrison could give no further explanation of his findings. When asked to explain why the lower partial was "inadequately fabricated," Dr. Garrison simply said that his office did not like using acrylic for lower partials and he only used acrylic for temporary devices.
He admitted that he did not know what the general practice was in other offices. He also admitted that he had not reviewed Respondent's records and did not know what Respondent's treatment plan was for the Patient.
Again, the Board's definition of "buccal margins" does nothing to elucidate this finding. Dr. Garrison did not explain why his letter to DPR indicates that he found the margins on May 8, 1989, but his records do not reflect any notation of the alleged open margins until June 26, 1989. Respondent contends that there was no sign of open margins on teeth 27, 28 and 29 when he last examined the Patient in approximately January of 1989. As noted in paragraph 44 of the Conclusions of Law in the Recommended Order, because Dr. Garrison is a subsequent treating dentist, his allegations of deficiencies in Respondent's work are not conclusive. See, Robinson v. Florida, Board of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984). Dr. Garrison did not address many of the issues raised by Respondent's expert. These issues included possible changes in the Patient's condition during the gap in time between the completion of
Respondent's work and Dr. Garrison's treatment. Furthermore, Dr. Garrison did not address the effects the Patient's age and medical condition and/or the Patient's prior and subsequent dental treatment may have had on the margins Dr. Garrison purportedly found.
At the hearing, Petitioner presented testimony from a nontreating expert, Dr. Dixon, who examined the Patient approximately one and a half years after Respondent last saw the Patient and two and a half years after the work in question was done. As discussed in more detail below, Dr. Toxin's testimony was not persuasive. Like Dr. Garrison, Dr. Dixon failed to address many of the issues raised by Respondent's expert.
Finding of Fact 35 provides as follows:
A review of the x-rays taken by Respondent and those taken subsequently by Dr. Garrison indicates that there was some movement of the posts and necessarily the crowns away from the teeth (roots) with the passage of time.
In addition, because of the extensive surgery conducted on the Patient's mouth and because of her age and medical condition, a lengthy recovery process with tissue shrinkage and bone recontouring would reasonably be expected. In view of all these factors, the evidence was insufficient to show that any negligence or incompetence by Respondent was responsible for the inadequacies that Dr.
Dixon observed in the Patient's lower partial denture and/or splint.
This paragraph emphasizes that the evidence presented at the hearing was insufficient to establish that Respondent was responsible for any of the deficiencies noted by Petitioner's witnesses. The location of the alleged margins does not change the fundamental flaws in the proof offered by Petitioner at the hearing.
Finding of Fact 36 provides as follows:
It should also be noted that Dr. Garrison was unable to testify with any specificity regarding the deficiencies in Respondent's work.
This finding is addressed solely to Dr. Garrison's deposition testimony wherein he was unable to recall any specifics regarding the margins referenced in his records. Essentially, all Dr. Garrison said in his deposition was that his records indicated he found margins around the end of the crowns of teeth 27,
28 and 29. His records, standing alone, were of minimal persuasive value in view of the factors discussed in the preceding paragraphs.
In sum, whether the alleged margins were "buccal," "lingual," "mesial" or "distal" was of no significance to the conclusions reached in the Recommended Order.
Dr. Dixon's Deposition
The Remand Order directs the undersigned to consider "all of the evidence admitted during the formal hearing, including specifically the depositions that are Respondent's exhibits 1-4." Two of the exhibits in question were depositions of subsequent treating dentists Dr. Garrison and Dr. Anderson. Both of those depositions were fully reviewed and considered in the preparation of the Recommended Order. The other two exhibits were depositions of witnesses who were present at the hearing and testified on behalf of Petitioner: the Patient
E., and Petitioner's non-treating expert, Dr. Dixon.
It should be noted that the exhibits in question were offered into evidence by Respondent, not Petitioner. Petitioner did not offer any depositions into evidence during its case-in-chief. Any proffer by Petitioner of depositions of witnesses who testified at the hearing could likely have been rejected as unnecessarily duplicative. See Section 120.58(1)(a), Florida Statutes.
Respondent offered the depositions of the Patient and Dr. Dixon into evidence in order to highlight what he believed were certain inconsistencies between the testimony during the depositions and the testimony at the hearing. While such inconsistencies should normally have been highlighted during cross examination, the parties agreed to review the depositions after the hearing and highlight those portions that they wanted the Hearing Officer to consider by specifically pointing them out in their proposed recommended orders. Both parties had a full opportunity to submit any portions of the depositions that they wanted the Hearing Officer to consider. No objection to this approach was stated. It is totally inappropriate for Petitioner to renege on this arrangement and seek to offer additional portions of Respondent's exhibits for consideration after the entry of a Recommended Order which highlights the inadequacies of the evidence presented by Petitioner at the hearing.
The transcript of the Board's April 16 meeting suggests that the Board believes that Dr. Dixon's deposition somehow elucidates his testimony and makes his opinions more persuasive. The weaknesses in Dr. Dixon's opinions became evident during his cross-examination at the hearing. As noted in paragraph 45 of the Conclusions of Law in the Recommended Order:
The Department's expert [Dr. Dixon] did not examine the Patient until a year and a half after Respondent last saw the patient [more than 2 1/2 years after the work in question was completed]. Before the Department's expert
saw the Patient, Dr. Garrison had repaired and adjusted the Patient's lower partial. The Department's expert was not aware of the extent of the repair or adjustments and, in fact, did not even know the subsequent treating dentist had done any work on the Patient's lower partial. Furthermore, the Department's expert did not address the impact of the tissue shrinkage and bone recontouring that could reasonably be expected given the Patient's age, medical
condition and prior oral surgery. For all of these reasons, the conclusions offered by the Department's expert were not convincing.
While Dr. Dixon may have been able to address some of these concerns if he had considered them prior to reaching his opinions, it is clear from his testimony at the hearing that many of the factors raised by Respondent had never been considered by Dr. Dixon. Since he had never considered many of these issues prior to the hearing, his previously taken deposition testimony is subject to the same criticisms as his direct testimony at trial. Thus, even if that deposition is considered in full, Dr. Dixon's opinions would still suffer from the same infirmities.
The Patient in question was a sweet, elderly woman who admitted that she suffered from memory loss due to her age and medication. See Finding of Fact 3. Her testimony was sometimes vague and confusing. She did not have a very good understanding of the dental issues and procedures involved in this case. Her deposition could not possibly overcome the lack of persuasiveness of the expert testimony presented by Petitioner.
CONCLUSIONS OF LAW
None of the matters raised by the Board prompt any modification or reconsideration of the findings of fact and conclusions of law set forth in the Recommended Order. Quite simply, Petitioner fell far short of proving the allegations contained in its ambiguously drafted Amended Administrative Complaint. While the Board may believe the facts are different, the evidence presented at the hearing did not prove it. Accordingly, the Remand Order is respectfully declined.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of December 1994.
J. STEPHEN MENTON Hearing Office
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 7th day of December, 1994.
ENDNOTE
1/ Respondent pointed out in its Proposed Recommended Order and in its Objection to Remand that the Administrative Complaint is ambiguous in its charges. While paragraphs 6 and 7 of the Amended Administrative Complaint referred to margins that were inadequately sealed around teeth numbers 27, 28 and 29, paragraph 8, which is the concluding paragraph of the Count, charges Respondent with "failure to adequately provide a lower denture that was absent any open margins." Petitioner has never explained how paragraph 8 can be reconciled with paragraphs 6 and 7. Arguably, this ambiguity renders the charges defective. Because of the lack of persuasive evidence to justify any possible interpretation of the charges, it was not necessary to reconcile the vagaries of the Amended Administrative Complaint in the Recommended Order.
COPIES FURNISHED:
Nancy Snurkowski Department of Business
and Professional Regulation Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
Max R. Price, Esquire Solms and Price
6701 Sunset Drive Suite 104 South Miami, Florida 33143
Jack McRay, General Counsel Department of Business
and Professional Regulation 1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
William Buckhalt Executive Director Board of Dentistry
Agency for Health Care Administration Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF DENTISTRY
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs. CASE NO. 92-0687
LICENSE NO. DN0005694
ROBERT J. FISH, D.D.S.,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on January 6, 1995, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order and Order on Remand (copies of which are attached as Composite Exhibit A) in the case of Department of Professional Regulation v. Robert J. Fish, D.D.S., Case ND. 92-0687. At the hearing, Petitioner was represented by Nancy N. Snurkowski, Chief Attorney.
Respondent was present before the Board with Max R. Price, Esquire. Upon consideration of the Hearing Officer's Recommended Orders, after review of the entire record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.
PROCEDURAL MATTERS
The Board previously considered this matter on April 16, 1994, and remanded this case to the Hearing Officer. (Remand Order attacThed as Exhibit B) On December 7, 1995, the Hearing Officer issued an Order on Remand. The Hearing Officer questions, in the Order on Remand, the authority of the Board to remand the original Recommended Order. The Board clearly has such authority and is even obligated to do so in cases such as this. See, Intelligence Group, Inc. v. Department of State, 610 So.2d 589 (Fla. 2nd DCA 1992); and Cohn v. Department of Professional Regulation, 477, So.2d 1039 (Fla. 3rd. DCA 1985). Although the Hearing Officer states in the Order on Remand that he declines remand from the Board, it is clear from that Order that remand was accepted and that the Board's instructions on remand were complied with.
The Board specifically notes that if the Hearing Officer had taken the time and effort to state his findings as clearly and completely in his Recommended Order as he did in his Order on Remand, the Board's remand might not have been necessary. On remand the Hearing Officer has fully explained the basis for his factual findings and his rulings on credibility and he has declined to change his ultimate recommendations.
FINDINGS OF FACT
The Hearing Officer's Recommended findings of fact are approved and adopted and are incorporated herein by reference as amended below:
Paragraph 23 of the Recommended Findings of Fact is modified to reflect the explanation provided by the Hearing Officer in the Order on Remand. Paragraph 23 shall read as follows:
23. Dr. Garrison's records include a notation dated June 27, 1989 which states "27, 28, 29 buccal margins are open plus the patient was made a lower temporary partial. I'm recommending that she contact Broward County Dental Society. The treatment was completed
in 1988 by Dr. Fish." In his deposition offered into evidence during this proceeding, Dr. Garrison identified the locations of the open margins he allegedly found, but he was unable to provide any further explanation of the patient's condition on June 26, 1989. He also failed
to explain why he did not record finding such open margins during his previous examinations of the patient.
Paragraph 25 is modified to delete the finding that Dr. Garrison did not recall the location or extent of the margins, because such finding is not supported by competent substantial evidence. The paragraph is adopted as follows:
25. Dr. Garrison's notes of his examination of the patient on July 26, 1989 indicate that he found open margins around the end of the crowns of teeth #s 27, 28 and 29. There is no chart notation. His notes do not reflect any clinical treatment necessary.
Paragraph 36 is rejected as not being supported by competent substantial evidence and is not adopted as a finding of fact by the Board.
There is competent, substantial evidence to support the Board's findings.
CONCLUSIONS OF LAW
The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.
The Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference with the exception of paragraph 44 which is adopted as modified below.
44. The investigations of Respondent was apparently prompted by Dr Garrison's statements to the patient and his November 6, 1989 letter to the Department. Dr. Garrison's allegations of deficiencies in Respondent's work are not conclusive. The evidence indicates that Dr. Garrison did not make any notations regarding open margins until the patient's fourth visit to his office which was more than six months after Respondent last treated the patient. Dr. Garrison had no specific recollection the extent of the margins and he had no of
knowledge regarding the treatment rendered by Respondent.
There is competent, substantial evidence to support the Board's conclusions.
The Board approves and adopts the Hearing Officer's recommendation that Respondent be found not guilty of the allegations set forth in the Amended Administrative Complaint.
WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent has not violated Chapter 466, Florida Statutes, and Respondent shall have the Amended Administrative Complaint DISMISSED.
This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.
The parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE AND ORDERED this 25th day of February, 1995.
BOARD OF DENTISTRY
EDWARD R. SCOTT, II, D.M.D. CHAIRMAN
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by Certified United States Mail this 28th day of February, 1995, to Robert J. Fish, D.D.S. c/o Max R. Price, Esquire, Solms & Price, 6701 Sunset Drive, Suite 104, South Miami, Florida 33143, and to Mr. J. Stephen Menton, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and hand delivered to Nancy M. Snurkowski, Chief Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0750.
William H. Buckhalt, C.P.M. Executive Director
Board of Dentistry
| Issue Date | Proceedings |
|---|---|
| Aug. 25, 1997 | (Laura Gaffney) Notice of Withdrawal as Counsel and Motion for Continuance (filed via facsimile). |
| Mar. 06, 1995 | Final Order filed. |
| Jan. 30, 1995 | (Respondent) Notice of Filing Final Order Transcript; Final Order Transcript filed. |
| Dec. 07, 1994 | Order On Remand sent out. (remand order is declined) |
| Oct. 24, 1994 | (Petitioner) Notice of Substitution of Counsel; Notice of Substitution of Parties filed. |
| Aug. 29, 1994 | (Respondent) Notice of Filing Final Order Transcript; (Transcript) Final Order filed. |
| Jul. 15, 1994 | Petitioner`s Response to Respondent`s Motion to Compel; Petitioner`s Response to Respondent`s Proposed Supplemental Findings of Fact and Conclusions of Law; Petitioner`s Response to Respondent`s Objection to the Remand Order filed. |
| Jun. 22, 1994 | (Petitioner) Motion for Extension of Time to File Response to Respondent`s Objection to Remand Order and Motion to Compel Production of Hearing Transcript and Other Documentation and Respondent`s Proposed Supplemental |
| Jun. 13, 1994 | (Respondent) Objection to Remand Order and Motion to Compel Production of Hearing Transcript and Other Documentation; Notice of Filing; Respondent`s Proposed Supplemental Findings of Fact and Conclusions of Law filed. |
| May 19, 1994 | Remand Order filed. |
| Jan. 24, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held June 1, 1993. |
| Sep. 20, 1993 | Respondent`s Response to Petitioner`s Motion to Strike Respondent`s Proposed Recommended Order filed. |
| Sep. 02, 1993 | Petitioner`s Motion to Strike Respondent`s Proposed Recommended Order filed. |
| Aug. 23, 1993 | (Respondent) Notice of Filing; Respondent`s Brief; Respondent`s Proposed Recommended Order filed. |
| Aug. 09, 1993 | Petitioner`s Proposed Recommended Order; Petitioner`s Notice of Filing; Petitioner`s Notice of Filing Responses to Discovery w/Notice of Filing & Petitioner`s Admissions to Respondent filed. |
| Jun. 24, 1993 | Transcript of Proceedings filed. |
| Jun. 01, 1993 | (Respondent) Notice of Filing Depositions filed. |
| May 27, 1993 | (joint) Prehearing Stipulation filed. |
| May 26, 1993 | (Respondent) Notice of Taking Deposition Duces Tecum w/attached subpoena) filed. |
| May 26, 1993 | Affidavit filed. (From Joel M. Berger) |
| May 25, 1993 | Petitioner`s Proposed Prehearing Stipulation filed. |
| May 24, 1993 | Re-Notice of Taking Deposition filed. (From Max R. Price) |
| May 20, 1993 | Re-Notice of Taking Deposition (Duces Tecum) filed. |
| May 19, 1993 | Notice of Petitioner`s Response to Respondent`s Request for Production filed. |
| May 19, 1993 | Petitioner`s First Request for Official Recognition filed. |
| May 18, 1993 | Notice of Taking Deposition (Duces Tecum) filed. (From Max R. Price) |
| May 11, 1993 | Order Changing Venue sent out. (motion for change in venue is granted; hearing will be conducted on 6-1-93; 10:30am; Fort Lauderdale) |
| May 10, 1993 | (Respondent) Notice of Service of Request for Production filed. |
| Apr. 30, 1993 | (Petitioner) Motion for Change of Venue filed. |
| Apr. 20, 1993 | Petitioner`s Answers to Respondent`s First Set of Interrogatories; Notice of Petitioner`s Response to Respondent`s First Set of Interrogatories; Petitioner`s Answers to Respondent`s First Set of Interrogatories filed. |
| Apr. 09, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 6-1-93; 10:30am; Miami) |
| Apr. 06, 1993 | (Petitioner) Motion for Continuance filed. |
| Apr. 05, 1993 | (Petitioner) Notice of Substitution of Counsel filed. |
| Apr. 05, 1993 | (Petitioner) Notice of Substitution of Counsel filed. |
| Mar. 23, 1993 | (Respondent) Notice of Compliance w/Petitioner`s First Set of Trial Interrogatories to Respondent & Answers to Petitioner`s First Set of Expert Interrogatories filed. |
| Mar. 11, 1993 | (Respondent) Notice of Service of Interrogatories w/Interrogatories filed. |
| Feb. 08, 1993 | (Respondent) Notice of Filing; Petitioner`s Admissions to Respondent filed. |
| Feb. 03, 1993 | Notice of Change of Address filed. |
| Jan. 14, 1993 | Notice of Petitioner`s First Set of Trial Interrogatories to Respondent, First Set of Expert Interrogatories to Respondent, and Admissions w/Petitioner`s First Set of Trial Interrogatories to Respondent filed. |
| Jan. 14, 1993 | (Petitioner) Notice of Substitute Counsel filed. |
| Dec. 22, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 4-20-93; 10:30am; Miami) |
| Dec. 15, 1992 | (Petitioner) Emergency Motion for Continuance of Trial; Response to Petitioner`s Motion to Relinquish Jurisdiction filed. |
| Dec. 08, 1992 | (Petitioner) Motion to Relinquish Jurisdiction filed. |
| Oct. 01, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 12/18/92; 9:00am; Miami) |
| Sep. 29, 1992 | (Petitioner) Motion to Continue filed. |
| Aug. 06, 1992 | Notice of Petitioner`s First Set of Trial Interrogatories to Respondent, First Set of Expert Interrogatories to Respondent, and Admissions filed. |
| Jun. 25, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 10-8-92; 9:00am; Miami) |
| Jun. 19, 1992 | (Petitioner) Motion for Continuance filed. |
| May 05, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 7/10/92; 9:00am; Miami) |
| May 05, 1992 | Respondent`s Motion for Continuance filed. |
| May 01, 1992 | (DPR) Motion for Continuance filed. |
| Feb. 25, 1992 | Order of Prehearing Instructions sent out. |
| Feb. 25, 1992 | Notice of Hearing sent out. (hearing set for May 8, 1992; 9:00am; Ft Lauderdale). |
| Feb. 17, 1992 | Joint Response to Initial Order filed. |
| Feb. 05, 1992 | Initial Order issued. |
| Feb. 03, 1992 | Agency referral letter; Amended Administrative Complaint; Election of Rights; (Respondent) Substitution of Representative; (Respondent) Notice of Appearance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 25, 1995 | Agency Final Order | |
| May 19, 1994 | Remanded from the Agency | |
| Jan. 24, 1994 | Recommended Order | Dept did not prove dentist failed to meet mnm stnds; Dept's expert did not consider impact of work preformed by subsequent treating dentist. |
