STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0001

)

STEVEN B. SCHWARTZ, D.M.D. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing in this matter was conducted by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, in Fort Myers, Florida, on February 20, 1997.

APPEARANCES

For Petitioner: Laura P. Gaffney

Senior Attorney

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317

For Respondent: Salvatore A. Carpino, Esquire

Colonial Square Office Park

8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614

STATEMENT OF THE ISSUES

Whether Respondent, a dentist licensed by the Board of Dentistry, violated provisions of Chapter 466, Florida Statutes, in any of three ways alleged in an Order of Emergency Suspension issued December 20, 1996? First, did he administer a legend drug other than in the course of the professional practice of dentistry?

Second, did he commit misconduct in the practice of dentistry by

using nitrous oxide upon himself in his dental office? Third, and most seriously, did he commit misconduct in the practice of dentistry by administering nitrous oxide under pretense to his dental assistant in his dental office in order to initiate and engage in sexual activity with her without her consent while she was under the influence of the nitrous oxide?

PRELIMINARY STATEMENT

On January 2, 1997, the Division of Administrative Hearings received a letter from the Agency for Health Care Administration requesting assignment of an administrative law judge to conduct proceedings arising from an Emergency Order of Suspension issued against Steven B. Schwartz, D.M.D., in AHCA Case No. 96-13128, (Board of Dentistry).

Attached to the letter was a copy of the Order of Emergency Suspension issued December 20, 1996 and a "Request for Immediate Formal Hearing," served December 26, 1996. The case was assigned to the undersigned administrative law judge.

After a conference with the parties, the matter was set for final hearing on January 28 and 29, 1997. Following an unopposed motion for continuance filed by Dr. Schwartz, whose license remained under emergency suspension, the matter was set for hearing in Fort Myers, Florida on February 20, 1997.

At final hearing, petitioner presented the testimony of eight witnesses: Elizabeth Jimerson, Investigator Richard Snodgrass, Detective Michael Torregrossa, Janet Hanabarger, Terri Hall, Jean Clyne, Douglas Lovelass, D.M.D., accepted as an expert in dentistry, and Van Keith Riley, D.M.D., also accepted as an expert

in the field of dentistry. Petitioner offered two exhibits, both of which were accepted into evidence: a certified letter relating information about Respondent's licensing records with the Board of Dentistry and a copy of a joint Agency for Health Care Administration and Board of Dentistry publication of Chapters 455 and 466, Florida Statutes, and Chapter 58Q, Florida Administrative Code.

Respondent presented no evidence at hearing but filed two post-hearing exhibits: a composite exhibit composed of a number of letters from patients and members of the community where Dr.

Schwartz has practiced attesting to his competence and professionalism and a deposition of Christopher J. Straight.

No objection was filed to either of Respondent's exhibits, although petitioner's proposed recommended order refers to the "prejudicial nature of some of the letters," and characterizes the entire exhibit as both lacking authenticity and hearsay, "which cannot be found to corroborate other evidence which would be admissible under Chapter 90, Florida Statutes." Both exhibits are admitted into evidence.

Petitioner filed a proposed recommended order on March 14,

FINDINGS OF FACT

Nitrous Oxide

1. Nitrous Oxide ("nitrous") is a legend drug that is administered as a gas by means of inhalation. It is commonly used in the practice of dentistry. Depending on the level of nitrous

   used, it has different effects on the dental patient or person inhaling it. At low levels it causes mild sedation. At higher levels it produces more profound effects, even amnesia. Typically, a person under the influence of therapeutic doses of nitrous is aware of events close by but is rendered incapable of responding to them because of the effect of the drug.

2. As a legend drug, nitrous can only be used when prescribed by an authorized licensee. Dentists licensed by the State of Florida are authorized to prescribe and administer nitrous oxide in the practice of dentistry by virtue of their licensure as dentists.

   Even when prescribed and administered in the practice of dentistry by a dentist on a dental patient, it should be administered only in the presence of a third person.

   The Parties

3. Petitioner, the Agency for Health Care Administration, (the "Agency" or "AHCA") is the state agency charged with regulating the practice of dentistry pursuant to Sections 20.165 and 20.42, Florida Statutes, as well as Chapter 455 and 466, Florida Statutes.

4. Respondent, Steven B. Schwartz, D.D.S., is a dentist. He has been licensed as a dentist in the State of Florida since July 27, 1990, when his license, number 0012402, was first issued. Dr. Schwartz' license is currently suspended and has been since December 20, 1996, when the Emergency Order of Suspension which serves as the foundation of this case was issued by the Agency.

   August 19, 1996

5. On August 19, 1996, Elizabeth Ann Jimerson was a dental assistant for Dr. Schwartz. Her duties included assisting Dr. Schwartz in the administration of nitrous oxide. Ms. Jimerson had been working for Dr. Schwartz for about one month, having started in his employ in mid-July, 1996. At the time she began to work for Dr. Schwartz, Ms. Jimerson had had one year of prior experience as a dental assistant. During that year of prior experience, she had not assisted in the administration of nitrous oxide.

6. Throughout the month that Ms. Jimerson had worked for Dr. Schwartz, he suggested that she be administered nitrous oxide and experience its effects herself. Dr. Schwartz made the suggestion under the pretense that with personal knowledge of the drug's effects, Ms. Jimerson would be able to explain better its effects to patients who would be administered it in the course of Dr. Schwartz' practice. In reality, Dr. Schwartz had something else in mind when he made the suggestions.

7. On the evening of August 19, not long after the close of business, it was raining hard outside Dr. Schwartz' office. Ms. Jimerson was just outside the office waiting for the rain to die down so she could get to her car. As she waited, Dr. Schwartz invited her back in until it stopped raining and suggested she wait in the office's dental lab.

8. After small talk about the weekend, Dr. Schwartz asked Ms. Jimerson if she wanted to try the nitrous. Ms. Jimerson testified, "he had been telling me since I started that I needed to get under it so I could explain it better. I said that was fine. It was

   raining. We couldn't leave ...". (Tr. 13).

9. Ms. Jimerson set the nitrous oxide dispenser on the typical setting, "7" for nitrous oxide and "3" for oxygen. She sat in the dental chair, placed the mask over her face and began breathing the mixture of nitrous oxide and oxygen.

10. A short while later, Ms. Jimerson was aware of Dr. Schwartz adjusting the settings on the nitrous oxide dispenser. Soon she began to feel more of the effects of the nitrous. She felt like she was "in and out of reality," (Tr. 14), but she was aware of what was happening around her. Her experience of awareness while under the effects of nitrous oxide is a common one.

    A person may be aware of what is happening while under the influence of nitrous yet incapable of responding in a meaningful way.

11. Still in the chair, woozy from the nitrous oxide, aware

    of what was going on yet powerless to respond, Ms. Jimerson realized that Dr. Schwartz was lifting up her shirt. There was nothing she could do about it because of the effects of the nitrous oxide. Dr. Schwartz lifted up her bra and began fondling her breasts. He unzipped his pants, and placed Ms. Jimerson's hand on his penis until he achieved an orgasm, ejaculating onto the area of her breast and shirt.

12. Ms. Jimerson did nothing to initiate or participate in any of Dr. Schwartz' sexual activity. There was no element of consent on her part. Her mental response was quite different - she felt like she was dreaming. She was aware of Dr. Schwartz' unwanted invasion of her person but because of the effects of the

    nitrous oxide, she was unable at any time during the entire ordeal in Dr. Schwartz' dental chair to rebuff in any manner his sexual advance and the degrading actions that followed.

13. Once Dr. Schwartz had finished the sexual activity at the expense of Ms. Jimerson, he left the room. Ms. Jimerson was able to remove the nitrous mask. She sterilized it and went to the bathroom where she washed her hands and tried to wash her shirt. Extremely upset, Ms. Jimerson was shaking very badly. Dr. Schwartz returned and told her to don the mask again to receive pure oxygen because she was trembling so. She asked him if it would affect her heart because she has a heart problem. Dr. Schwartz responded no and she left.

14. Ms. Jimerson went to the house of a friend and called her mother and Richard Snodgrass, an investigator with the Major Crimes Unit in the Lee County Sheriff's Office. Ms. Jimerson then contacted the Cape Coral Police Department.

    Other Nitrous Oxide Episodes

15. Ms. Jimerson was not the first employee with whom Dr. Schwartz had attempted to engage in sexual activity. He also propositioned Ms. Terri Hall, an employee who performed clerical duties in his office. Dr. Schwartz did not invite Ms. Hall to try nitrous oxide, but during the six months that she worked for him she observed him emerge from his office three or four times after having used nitrous oxide himself.

16. On several occasions when at home around eight o'clock in the evening, Ms. Hall received calls from Dr. Schwartz' wife. Ms. Hall related the following,

    I lived closer to the office than his wife did. And it would get to be later in the evening, eight o'clock at night or so, and she would call and say, ... Terry (sic), I really apologize. I know Steve fell asleep on the nitrous oxide. Can you please wake him up.

    
    

    The first couple of occasions, I went and I woke him up. And as I would go in the room, he would be on the nitrous, his pants undone, his belt undone and everything half hanging out.

    (Tr. 54, 55). On another occasion, Ms. Hall pounded on the door to wake Dr. Schwartz. Dr. Schwartz emerged, pants undone, genitals exposed and asked Ms. Hall to get on a chair with him and perform oral sex.

17. Dr. Schwartz also used nitrous during office hours when he first opened a new solo practice in Cape Coral before he had many patients. On one occasion of such use, Ms. Hall was told by Dr. Schwartz to interrupt him if a patient arrived at the office. Ms. Hall last saw Dr. Schwartz use nitrous oxide on himself in December of 1991 or January of 1992 shortly before she quit working for him.

18. On another after-hours occasion, Dr. Schwartz was interrupted while using nitrous oxide by Ms. Hall's boyfriend, Christopher Straight. After knocking on the door of the office, Mr. Straight observed Dr. Schwartz move to the window. He

    appeared intoxicated to Mr. Straight. His trousers were undone, his shirt was unbuttoned, the nitrous machine was running and the nitrous mask was on the floor.

19. Dr. Schwartz admitted to Mr. Straight that he used nitrous oxide for sexual pleasure, an admission he later reiterated to Detective Michael Torregrossa of the Cape Coral Police Department, while Detective Torregrossa was conducting the investigation in the wake of the events involving Ms. Jamerson.

    CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes.

21. Petitioner has the burden of proof in this license discipline case and must prove the allegations set forth in the Emergency Order of Suspension by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

22. Pursuant to Section 466.028(2), Florida Statutes, the Board of Dentistry is empowered to impose discipline on a licensed dentist, including revocation or suspension of the license, for violations on the basis of any of the "grounds set forth in subsection (1) [of Section 466.028]." Section 466.028(2), F.S. Among those grounds set forth in subsection (1) are the two with which he is charged and found in the Emergency Order of Suspension to have violated:

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

    * * *

    (p)... dispensing, administering, mixing, or otherwise preparing a legend drug, including any

    
    

    (e.s.)

    controlled substance, other than in the course of the professional practice of the dentist. ... .

    (t)... [m]isconduct in the practice of dentistry ... .

    
    

23. Dr. Schwartz' use of the nitrous on himself is misconduct. But Dr. Schwartz maintains that if any misconduct occurred under the facts of this case that it was not "in the practice of dentistry." When Dr. Schwartz used nitrous oxide on himself he did it by virtue of his status as a licensed dentist giving him access to nitrous oxide, a legend drug used commonly in the practice of dentistry. He used it on himself both during office hours and after office hours in his dental office where nitrous was kept with equipment available for use in the practice of dentistry. On at least some occasions when he administered it to himself, he did so in the dental chair. Moreover, he revealed his illicit use of nitrous oxide to an employee of his dental office during office hours. To say that Dr. Schwartz' misconduct in administering nitrous to himself was not misconduct "in the practice of dentistry" is to ignore entirely the completely dental environment in which Dr. Schwartz administered nitrous to himself.

24. Dr. Schwartz' argument with regard to Ms. Jimerson is

    even more patently meritless. First, there is absolutely no doubt that Dr. Schwartz' sexual abuse of Ms. Jimerson was misconduct of the most grievous kind. Even Dr. Schwartz does not argue that the events of August 19, 1996, do not constitute misconduct on his part. There is, however, an extra element in the misconduct comprised of the sexual abuse of Ms. Jimerson not present in the misconduct that involved Dr. Schwartz' administration of nitrous to

    himself. Dr. Schwartz lured Ms. Jimerson into his dental chair under the pretext of advancing her training as a dental assistant. When Dr. Schwartz invited Ms. Jimerson to undergo nitrous oxide inhalation so that she would be a better assistant to him in advising his patients, he did so in the context of the dentist- dental assistant relationship, a relationship clearly within the practice of dentistry. It is beyond all question that Dr.

    Schwartz' sexual abuse of Ms. Jimerson under the facts of this case was not only misconduct in the extreme but misconduct which

    occurred in this case in the practice of dentistry.

25. The Agency for Health Care Administration proved by clear and convincing evidence that Dr. Schwartz violated Subsection 466.028(1)(p) when he administered nitrous to himself in this case.

    While he committed this act in the practice of dentistry as discussed above, he did so "other than in the course of the professional practice of dentistry." (e.s.) Section 466.028(1)(p), F. S. It is not "professional" practice for a dentist to administer nitrous oxide to himself for his own pleasure, sexual or otherwise.

26. The Agency for Health Care Administration proved by clear and convincing evidence that Dr. Schwartz violated Subsection 466.028(1)(t) when he committed misconduct in the practice of dentistry both when he administered nitrous oxide to himself and, more gravely, when he administered it to Ms. Jimerson and sexually abused her.

27. The Disciplinary Guidelines of the Board of Dentistry, found in Rule 59Q-13.005, Florida Administrative Code, provide

penalties for violations of both paragraphs (p) and (t) of Section 466.028(1) ranging from a period of probation to license revocation. This case requires the most severe discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Board of Dentistry enter a final order that accepts the findings of fact in this recommended order, concludes that Respondent Steven B. Schwartz, D.D.S, is guilty of violating paragraphs (p) and (t) of Section 466.028(1), Florida Statutes, and revokes his license to practice dentistry in the State of Florida.

DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Florida.

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997.

COPIES FURNISHED:

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399

Laura P. Gaffney Senior Attorney

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317

Salvatore A. Carpino, Esquire Colonial Square Office Park

8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-000001

Orders for Case No: 97-000001