STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1142

)

RALPH GARCIA, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

On August 26, 1994, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Ashley Peacock, Esquire

Senior Attorney

Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33619

For Respondent: Bruce D. Lamb, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Dentistry should discipline the Respondent on charges set out in the Administrative Complaint in Agency for Health Care Administration (AHCA) Case No. 91-011671. The Administrative Complaint charged the Respondent with a violation of Section 466.028(1)(y), Florida Statutes, for incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It alleged: that the Respondent treated a patient identified by the initials V. G. for temporomandibular joint (TMJ) dysfunction from August 14, 1986, through July, 1991; that the treatment included maxillary brackets and other orthodontic treatment from August, 1987, through May, 1991; that the patient's TMJ problems recurred during the orthodontic treatment; that the length of time of the Respondent's orthodontic treatment was excessive, resulting in the recurrence of the TMJ problems; that the Respondent utilized an inappropriate circuitous method to accomplish tooth movement (i.e., moving teeth back and forth); that the Respondent's orthodontic treatment had to be corrected by a subsequent treating dentist; and that the "Respondent failed to provide written documentation informing the patient . . . of expected results "

PRELIMINARY STATEMENT

The Administrative Complaint was filed on October 7, 1992. The Respondent requested a formal administrative proceeding on or about October 13, 1992, but for reasons not apparent from the record the request was not processed until much later. The case was referred to the Division of Administrative Hearings (DOAH) on March 1, 1994, and was scheduled for final hearing on June 8, 1994.

Due to a conflict in the Respondent's calendar on that date, final hearing was continued to August 26, 1994.

At the final hearing, the parties had Joint Exhibits A through E admitted in evidence. The Agency for Health Care Administration (AHCA) called two witnesses, including one expert, and had Petitioner's Exhibits 1 through 5 admitted in evidence. The Respondent called three witnesses, including one expert, and also testified in his own behalf. He also had Respondent's Exhibits

1 through 9 admitted in evidence.

At the end of the hearing, the AHCA ordered the preparation of a transcript of the final hearing, and the parties were required to file their proposed recommended orders within ten days after the filing of the transcript. The transcript was filed on September 22, 1994, but the AHCA's unopposed request for an extension of time to October 11, 1994, for filing proposed recommended orders was granted.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-1142.

FINDINGS OF FACT

1. The Respondent, Ralph Garcia, D.D.S., is a licensed dentist in the State of Florida, having license number DN000324.

   
   

2. On August 14, 1986, a patient identified by the initials V. G. presented to the Respondent with complaints including jaw popping and discomfort in the jaw area.

   
   

3. The patient, who was approximately 34 years of age, gave a history of extraction of her bicuspids and subsequent orthodontic treatment in her teen years and extraction of her third molars in her early twenties.

   
   

4. The Respondent's examination revealed an impaired range of motion in her mouth. She could only open her mouth 43 millimeters. (Normal is 50.) She also could move her jaw only 7 millimeters to the left. (Normal is 12.)

   
   

5. The patient's condition was further complicated by compromised dentition, poorly inclined teeth, unparallel roots, stretched ligaments, and a cervical condition.

   
   

6. Transcranial x-rays revealed that, when the patient's teeth were together, both condyles compressed backward in the fossa, compressing tissues and causing pain.

7. The Respondent correctly diagnosed the patient as having mandibular dislocation, myalgia, myofascitis, coronoid tendinitis, stretched ligaments, and headache. These are all conditions associated with temporomandibular joint (TMJ) dysfunction.

   
   

8. The Respondent's treatment plan was: (1) to use an oral repositioning appliance (a splint) to treat the dislocation; (2) to use physical therapy to treat the myalgia and myofascitis; (3) to use trigger point injections to treat the coronoid tendinitis; and (4) to use orthopedics, orthodontics and possibly prosthetics to achieve functional occlusion.

   
   

9. The Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It was not necessary at that point to more precisely describe planned tooth movements and mechanics.

   
   

10. The Respondent advised the patient of his diagnosis, treatment goals, and proposed treatment plan. He also advised her of treatment options, the plan to use splint therapy in treatment, the plan to treat the patient in phases, and the potential complications of treatment.

    
    

11. There was no evidence that minimum standards of performance when measured against generally prevailing peer performance required the Respondent to provide the advice described in the Finding 10 (or 17, below) in written form or to document the advice in writing. It would, however, be prudent to do so to preclude charges that the Respondent did not given the patient informed consent.

    
    

12. From August 14, 1986, through July 14, 1987, the Respondent treated the patient's TMJ condition and resulting pain with splint therapy, physical therapy, and trigger point injections. (This was the first phase of treatment.) The splint therapy increased the space in the jaw joint by moving the lower jaw forward. This relieved the pressure on the joint.

    
    

13. X-rays taken on July 9, 1987, show that the patient's jaw joint had moved forward on both sides, which decompressed the tissues of the joint. Contrary to the patient's allegations (and the understanding the patient gave to the AHCA expert), the relative positioning of the patient's upper and lower jaw did not create a "bulldog" Class Three Prognathic position (underbite). Rather, the positioning of the patient's upper and lower jaw created an approximate "open bite." (An "open bite" occurs when the front teeth meet.) At worst, the patient's lower jaw was slightly (3.5 millimeters) behind the upper jaw, i.e., in a Class One or Class Two underbite position. It was not proven that this positioning was inappropriate or failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

    
    

14. As a result of the first phase of treatment, the patient's TMJ problems were alleviated.

    
    

15. In July, 1987, the Respondent discussed with the patient the next phases of treatment. What remained to be done for the patient was more than just realigning her teeth using brackets and wires ("traditional orthodontics"). For one thing, the patient's upper jaw was too narrow and too constricted to provide proper occlusion. This caused the patient to have a cross-bite on the right side of the jaw. The Respondent recommended the use of a four-screw appliance, which he designed, to expand the two halves of the upper jaw, or maxilla. He then planned to use a retainer to hold the expansion. Next, the

    molars in the patient's lower jaw had to be moved back on the jaw bone through use of a modified splint. Use of the modified splint allowed the jaw to be held in position while the molars were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. The Respondent recommended that the molars be moved slowly and carefully, one at a time, to minimize damage to the roots of the teeth and the jaw bone and to attempt to maintain the improvements in the patient's TMJ condition during treatment.

    Next, the second bicuspids had to be moved back on the patient's lower jaw through use of a modified Sved appliance. Use of the modified Sved allowed the jaw to be held in position while the bicuspids were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. Finally, the lower front teeth had to be moved back through the use of brackets and elastics. After the lower teeth were moved into their new positions in the new arch, they had to be "erupted," i.e., pulled up out of the jaw, to meet and have proper functional occlusion with the teeth in the upper jaw in the closed position. An appliance had to be used in conjunction with the brackets and elastics to hold the jaw in position while the lower teeth were being erupted so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. "Traditional orthodontics" (brackets, elastics and wires) would be utilized for finer adjustments to level, align and position the teeth to close gaps and for aesthetic purposes.

    
    

16. The rest of the Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

    
    

17. The Respondent discussed his treatment goals and proposed treatment plan in July or August, 1987. He also advised her of treatment options. He informed her that he would have to proceed carefully and deliberately and that it would be a slow process. He also informed her that the time of treatment would depend on many factors, including the patient's response to and compliance with treatment.

    
    

18. The Respondent also discussed the cost of the remaining phases of treatment. To keep the fee for his orthopedic and orthodontic services under

    $4,000, the Respondent agreed to charge the patient a flat fee calculated based on his normal fee for 18 months of adjustments to appliances ($3,655), plus the cost of the orthopedic appliances. He did not intend to give the patient the impression that the orthopedic and orthodontic phases of treatment would be completed within 18 months. But his way of presenting his fee was potentially confusing and apparently contributed to the deterioration of the relationship between the Respondent and the patient later in treatment.

    
    

19. The orthopedic phase of the treatment began with the use of the four- screw appliance in August, 1987. On September 29, 1987, the Respondent began the long, slow process of posteriorizing the molars and bicuspids on the patient's lower jaw. It was not completed until July 28, 1989. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method.

    
    

20. Between July 28 and November 21, 1989, the Respondent used brackets and elastics to move the lower front teeth back. This phase of treatment also was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method.

21. "Eruption" of the lower teeth was then accomplished between November 21, 1989, and October 22, 1990, using brackets and vertical elastics in a process known as "vertical development." The Respondent's method did not utilize wires, and the AHCA expert criticized the method used as not being "mainstream" orthodontics. But the expert defined "mainstream" orthodontics as being the methods taught in a majority of dental colleges. Under such a definition, a method which is out of the "mainstream" is not necessarily inappropriate. Notwithstanding the one expert's differing opinion as to the best way to erupt teeth, it was not proven that the method used by the Respondent to erupt the patient's lower teeth was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance.

    
    

22. When the eruption process ended, "traditional" orthodontics began on October 22, 1990. During this phase, the Respondent placed brackets, bands and wires on the patient's teeth. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

    
    

23. During the Respondent's treatment of the patient, the patient's TMJ symptoms recurred from time to time. But TMJ is cyclical in nature.

    Recurrences during treatment (and even after treatment) are not unusual and do not prove that the Respondent's treatment was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance.

    
    

24. In approximately April, 1991, the patient's TMJ symptoms recurred significantly. (They ceased during the course of completion of the treatment.) Although the symptoms were not much different from prior recurrences, by this time the patient was disillusioned with the Respondent due in part to the length of the process (even though, as a result of the flat fee arrangement, it was the Respondent who was "losing money" the longer the process took, not the patient) and in part to the Respondent's chairside manner and demeanor. The patient's "last straw" was when the Respondent ground uneven surfaces of the patient's front teeth (although the evidence was clear that this procedure was appropriate and met minimum standards of performance when measured against generally prevailing peer performance.) Instead of discussing the recurrence of the TMJ symptoms with the Respondent, the patient discontinued treatment with the Respondent on May 30, 1991, and sought the opinion of another dentist, Randy Feldman, D.D.S., on July 17, 1991.

    
    

25. Feldman mentioned near the outset of his consultation with the patient that he could identify the patient's dentist without her telling him.

    Suspecting the worst of the Respondent, the patient thought Feldman was being critical of the quality of Respondent's work and became more convinced that the Respondent's work was below minimum standards of performance. In fact, Feldman only meant to say that he was familiar with the appliances and techniques used by the Respondent from having been invited to observe the Respondent's work in the Respondent's office and from having attended continuing education seminars conducted by the Respondent.

    
    

26. Feldman also mentioned at one point during the consultation that the patient was fortunate to have had a flat fee contract for the Respondent's work since he knows patients who have paid thousands of dollars to the Respondent for his treatment. Again, suspecting the worst of the Respondent, the patient thought Feldman was implying that the Respondent's charges were inflated. In

    fact, Feldman only meant to state the fact that treatment by the Respondent often is complicated and expensive and that the patient seemed to have been fortunate not to have been charged more.

    
    

27. Contrary to the allegations against the Respondent, Feldman did not have to "correct" the Respondent's work. He did not have to return teeth to prior positions (in the alleged "circuitous" manner). Rather, he advised the patient that it only was was necessary for her to complete the treatment which the Respondent had been providing. He tried to convince the patient that it would be in her best interest to return to the Respondent and let him finish the treatment, but the patient refused. Feldman did nothing more than finish the treatment which the patient had interrupted by leaving the Respondent's care. (He changed some of the brackets and appliances, but the evidence is not clear why.)

    
    

28. Notwithstanding the duration of the Respondent's treatment, it was not excessive for what had to be accomplished. Each phase was a necessary part of the overall treatment, and no phase lasted an excessive period of time. Tooth movement occurs when pressure applied to the teeth and transmitted to the bone in which the teeth are rooted causes the bone to dissolve and allow the teeth to move. Then, the bone structure must reform behind the teeth being moved. This takes time. It takes longer in adults than in children or adolescents. The Respondent's decision to proceed cautiously and conservatively was in the patient's best interest. Trying to go faster would have increased the risk of damage to tooth roots and bone structure.

    
    

29. The AHCA expert based his opinion in part on a misunderstanding as to when "traditional" orthodontic treatment began. In fact, it did not begin until October 22, 1990, when wires were attached to wires. Other aspects of treatment also did not last as long as the patient led the expert to believe. Elastics were used without wires starting on July 28, 1989; eruption lasted less than a year, not for "years," as alleged by the patient; teeth were not moved back and forth in a "circuitous" manner.

    
    

30. It was not proven that the duration of treatment (whether or not excessive) "caused" TMJ symptoms to recur. See Finding 23., above.

    
    

    CONCLUSIONS OF LAW

    
    

31. Section 466.028(1), Fla. Stat. (1993), provides in pertinent part:

    
    

    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, including, but not limited to,

    the undertaking of diagnosis and treatment for which the dentist is not qualified by training

    or experience or being guilty of dental malpractice.

    . . . As used in this paragraph, "dental malpractice" includes, but is not limited to, three or more

    claims within the previous 5-year period which resulted in indemnity being paid, or any single

    indemnity paid in excess of $5,000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.

    
    

32. The AHCA has the burden of proving the charges alleged in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

33. As found, the AHCA did not prove that the Respondent was guilty of violating Section 466.028(1)(y), Fla. Stat. (1993).

    
    

34. Section 766.103(3)(a)2., Fla. Stat. (1993), requiring informed consent for medical or dental treatment, requires only that information be provided to the patient from which a "reasonable individual, . . . under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures . . .." As found, it was not proven that the Respondent violated Section 766.103, Fla. Stat. (1993), or otherwise failed to inform the patient of expected results, as alleged.

    
    

35. Section 766.103(4)(a), Fla. Stat. (1993), does not require that the information be provided in writing but only provides that, if provided in writing, the writing raises a rebuttable presumption of a valid consent. Nor does there appear to be any other legal requirement for the Respondent to have informed the patient in writing or to have documented that he informed the patient as required. There is no charge that the Respondent failed to keep written dental records and medical history records justifying the course of treatment under Section 466.028(1)(m), Fla. Stat. (1993).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order dismissing the charges against the Respondent in this case.

RECOMMENDED this 21st day of November, 1994, 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 21st day of November, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1142

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-5. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven that maxillary brackets were placed as early as August, 1987. Also, a question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted-- through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated.

2. Rejected as not proven.

8.-10. Accepted and incorporated. 11.-14. Rejected as not proven.

15. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

1.-20. Accepted and incorporated to the extent not subordinate or unnecessary.

21.-22. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated.

23.-24. Accepted and incorporated.

1. A question of semantics whether the tooth movement through the use of the four-screw appliance constitutes orthodontics, orthopedics, or both. Otherwise, accepted and incorporated.

2. Accepted and incorporated.

27.-28. Not clear from the evidence whether the patient's upper jaw was expanded or just the bone holding the teeth flared out. Otherwise, accepted and incorporated.

29.-39. Accepted and incorporated to the extent not subordinate or unnecessary.

40. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated.

41.-48. Accepted and incorporated to the extent not subordinate or unnecessary.

49. Accepted as to "traditional orthodontics" and incorporated. A question of semantics whether earlier methods constituted orthodontics, orthopedics, or both.

50.-63. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Not clear from the evidence necessarily as to all inconsistencies. As to some inconsistencies, accepted and subordinate to facts found.

2. Accepted and incorporated.

66.-69. Accepted but subordinate and unnecessary.

1. Accepted but unnecessary.

2. "Well above" not clear from the evidence. "Above" accepted and incorporated.

COPIES FURNISHED:

Nancy Snurkowski, Esquire Chief Attorney

Allied Health Section

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0782

Bruce D. Lamb, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard Suite 1000

Tampa, Florida 33602

William Buckhalt Executive Director Board of Dentistry

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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: 94-001142

Orders for Case No: 94-001142