m

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6808

)

ROBERT JOHN ROBERTS, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 17, 1993, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Dentistry should discipline the Respondent, Robert John Roberts, for violating Section 466.028(1)(m) and (y), Fla. Stat. (1991), by failing to meet minimum standards of performance and by failing to keep adequate dental records, as alleged in the Administrative Complaint, DPR Case No. 91-11243.

PRELIMINARY STATEMENT

The Respondent's request for formal administrative proceedings on the Administrative Complaint was received by the Department of Professional Regulation on or about August 31, 1992. The matter was referred to the Division of Administrative Hearings on November 12, 1992. In accordance with the Department's Unilateral Response to Initial Order, final hearing was scheduled and noticed for March 17, 1993.

The Respondent did not appear at the final hearing. The Department called two witnesses, one of whom was an expert, and had Petitioner's Exhibits 1 through 3 admitted in evidence. Petitioner's Exhibit 2 was the transcript of the deposition of a dentist who treated the patient after the Respondent.

At the end of the hearing, the Department ordered the preparation of a transcript of the final hearing. The transcript was filed on March 31, 1993. Only the Department filed a proposed recommended order.

The proposed findings of fact contained in the Department's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.

FINDINGS OF FACT

1. The Respondent, Robert John Roberts, D.D.S., is a Florida licensed dentist, having been issued Board of Dentistry license number DN 0012197.

   
   

2. A patient who will be identified by her initials, M. N., saw the Respondent on February 22, 1991, about having crowns replaced.

   
   

3. The Respondent's dental records on the patient's medical history and his record of the clinical oral examination of the patient were inadequate. In addition, the records contained no diagnosis and treatment plan. In total, the records do not adequately explain what the Respondent planned to do, and why.

   
   

4. There apparently was some confusion about the number of lower crowns to be replaced. The patient apparently first requested, and understood that she was having, six lower crowns replaced, three on either side (teeth 22, 23, 24, 25, 26 and 27.) But two of the six, one on either side (22 and 27), were splinted to the crown on the tooth next to it (21 and 28, respectively). At some point, the Respondent apparently decided not to attempt to split the splints, but rather decided to replace the crowns on all eight teeth. The Respondent's medical records do not adequately explain when this decision was made, or why, or whether it was explained to the patient. The patient remains confused as to why more than six lower crowns were replaced.

   
   

5. The patient wanted the crowns replaced by June 1, 1991, so that the work would be covered by her existing insurance. The Respondent required $1,700 to begin the work. Work began on May 6, 1991. Temporary crowns were cemented on May 23, 1991. Although the patient's dental work was not unusually difficult or complicated, unusual problems developed in making and fitting the permanent crowns. Several efforts had to be made to attempt to complete the work. On occasion, the permanent crowns did not fit. On other occasions, they broke.

   The patient's temporary crowns had to be removed and replaced several times. Between May 6 and August 14, 1991, the patient had to be seen nine times.

   
   

6. On August 14, 1991, a day on which the patient was scheduled to return to the Respondent's office to finally have the permanent crowns fitted and cemented, the Respondent's office called to cancel the appointment because the Respondent was not in the office. At the end of her patience, M. N. asked for her money back. The Respondent's office refused, suggesting other alternatives that were not acceptable to the patient. Instead, in September, 1991, the patient made an appointment with another dentist who had to start over at a cost of $4,000, in addition to the $1,700 the patient already had paid to the Respondent.

   
   

7. Normally, permanent crowns are made, fitted and cemented within six weeks after the patient gets temporary crowns. Nothing in the Respondent's records explains or justifies the delay in completing the work for this patient. The evidence is that the Respondent's performance in the treatment given to the

   patient, M. N., failed to meet the minimum standards when measured against generally prevailing peer performance.

   
   

8. Contrary to the Department's allegations, the X rays taken by the Respondent before treating the patient, M. N., were not of poor quality. The Department's allegation was based on the opinion of their expert, who was given poor copies of the X rays the Respondent took and who was given to understand that the copies he was sent were indicative of the quality of the X rays the Respondent took.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 466.028, Fla. Stat. (1991), provides in pertinent part:

   
   

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

      * * *

      (m) Failing to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test results, and X rays, if 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 . . ..

      * * *

   2. When the board finds any licensee

      guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

      * * *

      1. Revocation or suspension of a license.

      2. Imposition of an administrative fine not

         to exceed $3,000 for each count or separate office.

      3. Issuance of a reprimand.

      4. Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requiring

         the licensee to attend continuing education courses or demonstrate his competency through a written or

         practical examiniation or to work under the supervision of another licensee.

      5. Restricting the authorized scope of practice.

      
      

10. F.A.C. Rule 21G-13.005(3)(p) provides that the Board of Dentistry usually imposes a period of probation in the case of a violation of Section 466.028(1)(m), Fla. Stat. (1991).

    
    

11. F.A.C. Rule 21G-13.005(3)(cc) provides that the Board of Dentistry usually imposes a period of probation, restriction of practice, and/or suspension in the case of a violation of Section 466.028(1)(y), Fla. Stat. (1991).

12. F.A.C. Rule 21G-13.005(4) sets out aggravating and mitigating factors that can justify a deviation from the penalties recommended in (3).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order: (1) finding the Respondent, Robert John Roberts, guilty of violating Section 466.028(1)(m) and (y), Fla. Stat. (1991); (2) reprimanding the Respondent; (3) fining the Respondent $3,000; and (4) placing the Respondent on probation for two years, conditioned upon the successful completion of thirty hours of continuing education in fixed prosthetics and fifteen hours in risk management, and upon payment of the $3,000 fine.

RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 April, 1993.

COPIES FURNISHED:

Albert Peacock, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Robert John Roberts, D.D.S.

172 Wickford Street East Safety Harbor, Florida 34695

William Buckhalt Executive Director Board of Dentistry Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Board of Dentistry written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Board of Dentistry concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 92-006808

Orders for Case No: 92-006808