STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5798

)

ROMEY BUZLEA, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 20, 1995, in Orlando, Florida. The parties, the court reporter, and witnesses attended the formal hearing in Orlando. The undersigned conducted the formal hearing by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

Department of Business & Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Thomas E. Gordon, Jr., Esquire

3751 Maguire Boulevard, Suite 150 Post Office Box 1975

Orlando, Florida 32803 STATEMENT OF THE ISSUES

The issues for determination are: whether Respondent violated Section 466.028(1)(y), Florida Statutes, 1/ by failing to meet the minimum standards of performance in the diagnosis and treatment of a patient for whom Respondent surgically extracted a lower left molar; and whether Respondent violated Section 466.028(1)(m) by failing to keep written records and a medical history justifying Respondent's course of treatment.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on July 19, 1994. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of six witnesses and submitted eight exhibits for admission in evidence. Respondent testified in his own behalf, presented the testimony of three witnesses, and submitted three exhibits for admission in evidence. The deposition testimony of two witnesses

for Petitioner and two witnesses for Respondent were submitted as late filed exhibits on July 6, 1995.

The identity of the witnesses and exhibits and the rulings concerning each are reported in the transcript of the formal hearing filed on March 15, 1995, and in the late filed exhibits filed on July 6, 1995. Petitioner timely filed its proposed recommended order ("PRO") on July 24, 1995. Respondent timely filed his PRO on July 17, 1995. Proposed findings of fact in the parties' PROs are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494.

   
   

   BACKGROUND

   
   

2. Ms. Julie Weathers is a female born on April 16, 1973 (the "patient"). The patient initially saw Respondent on December 7, 1992, for a broken lower left molar ("number 19"). The patient broke number 19 the night before while eating popcorn at a movie theater.

   
   

3. The broken tooth was not an emergency that required immediate attention. The patient did not experience any pain, and her only complaint was that number 19 was sharp and uncomfortable on her tongue.

   
   

4. Number 19 had received root canal treatment approximately three years earlier. The patient could not afford a replacement tooth. Therefore, the patient sought to have number 19 extracted.

   
   

5. The patient was not a behavioral management problem for Respondent. The patient drove herself to Respondent's office. She felt confident and relaxed. She was not frightened, anxious, or agitated.

   
   

6. In the waiting room, the patient completed a medical history. The receptionist took the medical history form and seated the patient in the dentist chair.

   
   

7. Respondent took a periapical x-ray. The patient cooperated with the x-

   ray.

   
   

8. The patient did not feel frightened, anxious, or agitated. Nor was she

   in any pain. However, she did experience slight discomfort with the x-ray film in her mouth.

   
   

9. The pre-operative x-ray taken by Respondent was of no diagnostic value for a surgical procedure. The x-ray does not show the root configuration and surrounding periapical structures for number 19.

   
   

10. In addition to the periapical x-ray machine, Respondent has a panoramic x-ray machine (a "panorex"). 2/ Even if the patient had been such a severe behavioral management problem that use of the periapical x-ray was ineffective, Respondent could have used the panorex to obtain a pre-operative x-ray with diagnostic value sufficient for a surgical procedure.

11. Respondent did not suggest that the patient see an oral surgeon to have number 19 extracted. Respondent administered local anesthesia in preparation for the extraction.

    
    

12. During the extraction, number 19 shattered. Respondent told the patient that the charge would be greater than the charge quoted prior to beginning the procedure because Respondent would need to remove the remaining root tip for number 19.

    
    

13. Respondent began digging into the patient's jaw to remove the root tip and pulling on the patient's jaw with forceps. The patient experienced severe pain. Respondent gave the patient seven carpules of anesthesia.

    
    

14. Even though she was in severe pain, the patient was not a behavioral management problem for Respondent. She did not become hysterical. She tolerated the procedure relatively well.

    
    

15. Eventually, the pain became so great that Respondent terminated the procedure. Respondent told the patient that he had removed 95 percent of the tooth.

    
    

16. Respondent took neither an interoperative nor a postoperative x-ray to verify that he had removed 95 percent of tooth. Without such an x-ray, there is no way Respondent could determine the portion of number 19 that had not been extracted.

    
    

17. Respondent intended to take out the remainder of number 19 the following week. However, Respondent failed to inform the patient of his post- operative treatment plan or to so document his written records.

    
    

18. Respondent placed a nonresorbable suture in the area of number 19. However, Respondent did not inform the patient that the suture was nonresorbable and needed to be removed. Nor did Respondent document his records to that effect.

    
    

19. Respondent did not give the patient any post operative instructions. Respondent did not discuss with the patient the prognosis of the extraction, the consequences of any root tip remaining in the jaw, or any treatment options for the remaining root tip.

    
    

20. Respondent gave the patient a prescription for Tylenol III (with codeine), for pain, and erythromycin, an antibiotic. He then sent the patient to the receptionist.

    
    

21. The patient wrote the Respondent a check for $95 and gave it to the receptionist. The patient left Respondent's office with blood on her face.

    
    

22. The patient did not feel comfortable driving herself home. She telephoned Ms. Debra Wreford, the patient's cousin, to follow her home.

    
    

23. The patient's cousin followed her home, placed an ice pack on the patient's jaw, and had the prescriptions filled. The patient's cousin telephoned Respondent's office the following day. The receptionist told the patient's cousin that Respondent does not normally give out post operative instructions.

24. On December 8, 1992, the patient presented to Dr. William D'Aiuto, a general dentist. Dr. D'Aiuto examined the patient and took a panoramic x-ray.

    
    

25. The panoramic x-ray revealed that approximately a third of the mesial root tip remained in number 19. The tooth also had an open socket.

    
    

26. A suture was located in the open socket where the tissue was ripped and chewed up. The suturing was inadequate. It did not reassemble the tissue contour properly.

    
    

27. Dr. D'Aiuto consulted with Dr. Thomas Salmon, an oral surgeon. The two agreed that the remaining root tip had to be removed within a few days.

    
    

28. On December 17, 1992, Dr. Salmon removed the suture placed by Respondent and extracted the remaining root tip. The root tip was difficult to remove. Dr. Salmon took an interoperative x-ray to verify that he had removed all of the root tip.

    
    

    Pre-operative X-ray

    
    

29. Respondent is guilty of incompetence or negligence for failing to take a pre-operative x-ray. Respondent failed to meet the minimum standard of performance in diagnosis and treatment of the patient.

    
    

30. The pre-operative x-ray establishes a treatment plan for a dentist. 3/ In addition to the configuration of the root, a pre- operative x-ray shows the location of the nerve canals. A dentist can not know what the root configuration of a tooth looks like without a pre-operative x-ray.

    
    

31. The pre-operative x-ray taken by Respondent has no diagnostic value. It does not show the root configuration and surrounding periapical structures. Respondent could have obtained an adequate pre-operative x-ray by using his panorex.

    
    

32. It was particularly important to take a pre-operative x- ray in this case. The root to number 19 was difficult to see because it was discolored. The tooth had a wide interseptal bone, and the roots were more divergent than the usual anatomic configuration of similarly located teeth.

    
    

    Interoperative X-ray

    
    

33. Respondent is guilty of incompetence or negligence for failing to take an interoperative x-ray. Respondent failed to meet the minimum standard of performance in diagnosis and treatment of the patient.

    
    

34. Respondent could not have known, in the absence of an interoperative x- ray, whether he had removed 95 percent of the patient's tooth. Subsequent x- rays revealed that approximately one third to a half of the root tip remained.

    
    

    Harm To The Patient

    
    

35. The patient suffered a week of pain unnecessarily due to alveolar osteitis (a "dry socket") caused by the extraction performed by Respondent. In addition, the incision healed to some extent in the week after Respondent performed the extraction and had to be reopened by the oral surgeon.

    Inadequate Medical Records

    
    

36. Respondent is guilty of incompetence or negligence by failing to keep written records justifying his course of treatment. Respondent's written records do not contain an adequate diagnostic x-ray for either pre-operative or post operative purposes.

    
    

37. Respondent's written records fail to document that: Respondent had a treatment plan to remove the remaining root tip; Respondent informed the patient of the remaining root tip; anesthesia was given; a narcotic and antibiotic was prescribed; a nonresorbable suture was placed in the patient's mouth; or the treatment plan to remove the suture.

    
    

38. Respondent's written records are not sufficient for a subsequent treating dentist to know what problems occurred in connection with the extraction of the patient's tooth. Respondent's notation of "Broken Tooth L.L." is not a diagnosis. It is the patient's chief complaint. Respondent's plan to call the patient in two or three days is an inadequate treatment plan for removing the remaining root tip for number 19.

    
    

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

40. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

41. Petitioner satisfied its burden of proof. For the reasons stated in the Findings Of Fact, Respondent is guilty of incompetence and negligence within the meaning of Sections 466.028(1)(y) and (m).

    
    

42. Florida Administrative Code Rule 21G-13.005(5) 4/ authorizes imposition of a written reprimand, probation, a fine not to exceed $3,000, suspension, and revocation. Neither revocation nor suspension are requested by Petitioner. Neither is appropriate considering the absence of prior violations by Respondent and the degree of harm caused by Respondent's incompetence or negligence.

    
    

43. Petitioner requests a fine of $3,000 per violation, or $6,000 in the aggregate, a written reprimand, and probation in this proceeding. The proposed penalty is appropriate considering the harm to the patient, the opportunity for Respondent to correct the harm, and the failure of Respondent to do so.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of violating Sections 466.028(1)(y) and (m), issuing a reprimand, imposing a fine of $6,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO.

RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 1st day of August 1995.

ENDNOTES

1/ All section references are to Florida Statutes (1993) unless otherwise stated.

2/ A panorex is an extra-oral x-ray device. The film is located outside the patient's head rather than inside the mouth. The film revolves around the patient in such a manner as to produce a panorama of the jaws, sinuses, the mandible, and all of the teeth.

3/ There are a litany of problems that may be present in connection with an extraction. They include ankylose roots, dilacerated roots, or abscesses around the root. The incidence of ankylosis and abscesses is fairly high in teeth that have undergone root canal therapy.

4/ All references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5798

Petitioner's Proposed Findings Of Fact. 1.-36. Accepted in substance

37. Rejected as irrelevant and immaterial

38.-50. Accepted in substance

51. Rejected as irrelevant and immaterial 52.-60. Accepted in substance

61. Rejected as irrelevant and immaterial

93.-97. Accepted in substance

98. Rejected as irrelevant and immaterial 99.-100. Rejected as recited testimony

1. Accepted in substance

2. Rejected as recited testimony

3. Accepted in substance

104.-108. Rejected as recited testimony Respondent's Proposed Findings Of Fact.

evidence and as recited testimony COPIES FURNISHED:

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florid 32308

William Buckhalt, Executive Director Board of Dentistry

Agency for Health Care Administration Division of Medical Quality Assurance 1940 North Monroe Street

Tallahassee, Florida 32399-0765

Jerome Hoffman, General Counsel Agency For Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Miriam S. Wilkinson, Esquire Department of Business & Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Thomas E. Gordon, Jr., Esquire 3751 Maguire Boulevard, Suite 150 Post Office Box 1975

Orlando, Florida 32803

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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

CASE NO.: 93-10358

vs. LICENSE NO.: DN 0002495

DOAH CASE NO.: 94-5798

ROMEY BUZLEA, D.D.S.

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section l20.57(1), Florida Statutes, on January 12, 1996, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is

attached as exhibit A) in the case of Agency for Health Care Administration v. Romey Buzlea, D.D.S., Case No. 94-05798. At the hearing, petitioner was represented by Natalie Duigood, Senior Attorney. Respondent appeared before the Board without legal counsel. 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.

RULING ON EXCEPTIONS

Respondent timely filed exceptions to the hearing Officer's Recommended order and Petitioner filed responses thereto. However, at the appearances before the Board Respondent specifically waived the exceptions that had been filed on his behalf by legal counsel. The Board accepted Respondent's waiver and therefore did not rule on any of the exceptions.

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.

   
   

2. The Hearing Officer's Conclusions of Law are approved and adopted are incorporated herein by reference.

1. There is competent, substantial evidence to support the Board's conclusions.

   
   

   DISPOSITION

   
   

2. The Board approves and adopts the Hearing Officer's recommendation with the exception of the twenty hours of continuing education in the area of oral surgery.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated 466.028(1)(m) and (y), Florida Statutes, as charged in the Administrative Complaint and Respondent shall have his license to practice dentistry REPRIMANDED, Respondent shall be required to pay an administrative fine in the amount of 6,000.00, with such fine being payable to the Executive Director of the Board of Dentistry within 90 days of the effective date of this Final Order, and Respondent's license to practice dentistry shall be placed on probation for a period of one year during which time Respondent shall be required to complete ten (l0) hours of continuing educational the areas of risk management and record keeping. These hours shall be completed with courses that require personal attendance and must be in addition to those hours of continuing education required for biennial renewal of his dental license.

This Final Order becomes effective upon its filing with the Clerk for 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 Agency for Health Care Administration 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 16th day of February, 1996

BOARD OF DENTISTRY

CAROL E. WILLIAMSON CHAIRPERSON

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by United States Mail this 22nd day of February 1996, to Romey Buzlea, D.D.S., 1549 Lee Road Winter Park, Florida 32789, 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

Docket for Case No: 94-005798

Orders for Case No: 94-005798