STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 97-1405

)

DELROY W. WEBB, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on August 25, 1997, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wendy Smith Hansen, Senior Attorney

Agency for Health Care Administration Office of the General Counsel-MQA Allied Health

Post Office Box 14229 Tallahassee, Florida 32399-4229

For Respondent: Abe A. Bailey, Esquire

18350 Northwest Second Avenue, Fifth Floor Miami, Florida 33169

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaint.

2. If so, what punitive action should be taken against

   Respondent.

   PRELIMINARY STATEMENT

   
   

   On November 6, 1996, Petitioner's predecessor, the Agency for Health Care Administration (AHCA), issued a two-count Administrative Complaint against Respondent. The Administrative Complaint read as follows:

   COMES NOW, the Petitioner, Agency for Health Care Administration hereinafter referred to as "Petitioner," and files this Administrative Complaint before the Board of Dentistry, against DELROY W. WEBB, hereinafter referred to as "Respondent," and alleges:

   
   

   1. Petitioner, Agency for Health Care Administration is the state agency charged with regulating the practice of dentistry pursuant to Section 20.165; Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes.

      
      

   2. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0009016. Respondent's last known address is P.O. Box 2256, Miami, Florida 33056-3841.

      
      

   3. On or about May 19, 1988, Patient C.A. presented to Respondent for radiographs. Respondent made no mention of periodontal disease in Patient C.A.'s records, and the radiographs indicated that all teeth were in place pertinent to [the] problematic area.

      
      

   4. On or about October 5, 1989, periodontal disease was first mention[ed] by a dentist employed by the Respondent, and approximately one week later the dentist performed oral surgery on Patient C.A., and referred Patient

      C.A. back to the Respondent for restorative procedures.

      
      

   5. On or about December 5, 1989, Patient C.A.'s record indicates bridge preparation was done and impressions were taken by the

      Respondent. Patient C.A.'s record, however, does not indicate radiographs of missing teeth between May 19, 1988 and December 5,

      1989.

      
      

   6. On or about January 3, 1991, Patient C.A. returned to the dentist employed by the Respondent for an apicoectomy, at which time the dentist's prognosis was questionable due to extensive bone loss. On or about March 24, 1990, Respondent had attempted to perform endodontic treatment on Patient C.A. but was unsuccessful.

   7. On or about February 12, 1991, Patient

      C.A. presented to a subsequent treating dentist, who diagnosed Patient C.A. with periodontal disease and multiple endodontic problems. The subsequent treating dentist further recommended that the existing restorative dentistry be changed because it was contributing to the periodontal problem.

      
      

   8. Patient C.A.'s records do not indicate that an overall treatment plan was ever formulated or followed by the Respondent. Furthermore, Patient C.A.'s records do not correctly indicate amounts owed to the Respondent in relation to amounts paid by Patient C.A.

      
      

      COUNT I

      
      

   9. Petitioner realleges and incorporates by reference the allegations of fact contained in the foregoing paragraphs one (1) through eight (8) as if fully stated herein.

      
      

   10. Based on the foregoing, Respondent is subject to discipline pursuant to Section 466.028(1)(x), Florida Statutes, by 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.

       COUNT II

   11. Petitioner realleges and incorporates by reference the allegations of fact contained in the foregoing paragraphs one (1) through eight (8) as if fully stated herein.

       
       

   12. Based on the foregoing, Respondent is subject to discipline pursuant to Section 466.028(1)(m), Florida Statutes, by 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, and x-rays, if taken.

WHEREFORE, Petitioner respectfully requests the Board of Dentistry to enter an order imposing one or more of the following penalties: revocation or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the [R]espondent on probation, and/or any other relief that the Board deems appropriate.

Respondent subsequently requested a Section 120.57(1) hearing on the allegations made against him. On March 18, 1997, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the Section 120.57(1) hearing Respondent had requested.

As noted above, the hearing was held on August 25, 1997. At the hearing, seven witnesses testified: Paul Danziger, D.D.S. (who gave expert testimony on behalf of Petitioner); Leigh Thompson; Respondent; Kathy Redfearn; Mel Simkins; Sophia Giscombe; and Todd Smith, D.M.D. In addition to the testimony of these seven witnesses, nine exhibits (Petitioner's Exhibits 1 through 4 and 7 through 11) were offered and received into evidence. Among these exhibits were the depositions of Ronald

Cohen, D.D.S.; Todd Smith, D.M.D.; Sophia Giscombe; and Frederick Knoll, D.D.S.

At the close of the evidentiary portion of the final hearing in this case, the undersigned announced on the record that the deadline for filing proposed recommended orders was 21 days from the date of the filing of the hearing transcript with the Clerk of the Division of Administrative Hearings (Division). A transcript of the final hearing was filed with the Division's Clerk on September 10, 1997. A corrected transcript was filed two weeks later on September 24, 1997.

To eliminate any confusion that may have arisen as the result of the filing of a corrected transcript, the undersigned, on September 26, 1997, issued on order "advis[ing] the parties that proposed recommended orders [had to] be filed no later than October 15, 1997 (which [was] 21 days from the date of the filing of the corrected hearing transcript with the Division's Clerk)." On October 9, 1997, and October 16, 1997, respectively, Petitioner and Respondent filed proposed recommended orders. The undersigned has carefully considered these post-hearing submittals.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. Petitioner is a state government licensing and regulatory agency.

2. Respondent is now, and has been since August 5, 1981, a dentist licensed to practice dentistry in the State of Florida.

3. His license number is DN 0009016.

   
   

4. In 1982, Respondent formed Dade Family Dental Facilities, Inc. (DFDF), a multidentist, multioffice dental practice in Dade County. He and Todd Smith, D.M.D., are currently co-owners of DDF.

5. At all times material to the instant case, C.A., who is presently 40 years of age, was a patient at DFDF under the primary care of Respondent.

6. C.A. was not just a patient of Respondent's. He was also someone whom Respondent considered to be a friend. Nonetheless, C.A. proved to be an uncooperative and difficult patient.

7. It was not uncommon for C.A. to miss scheduled appointments.

8. Oftentimes, C.A. would show up at one of DFDF's three Miami offices without an appointment claiming that he had a dental emergency and needed to be seen. Whenever his schedule permitted, Respondent accommodated C.A. and provided him with treatment, even though C.A. did not have a scheduled appointment.

9. C.A. failed to take proper care of his teeth and gums. Furthermore, he was a heavy smoker. (Smoking can exacerbate periodontal problems.)

10. By Respondent's own admission (made at the final hearing in this case), he "could have been a lot more extensive in [the] notes [he maintained on C.A.], but because [C.A.] was a friend, he . . . neglected to [provide such additional detail.]" His handwritten notes (and those made by his assistants pursuant to his instructions and directives) concerning his care and treatment of C.A. are sketchy and incomplete.1 They do not provide sufficient information to give neutral third parties a reasonably clear understanding of the full extent of the services he provided C.A. and the circumstances that led him to follow such a course of treatment.

11. C.A. first presented to Respondent on May 19, 1988. It was an emergency visit. C.A. complained to Respondent of pain in tooth number 18. Respondent began a root canal in an attempt to alleviate the pain C.A. was experiencing. Thereafter, full-mouth x-rays were taken, and a complete examination was given. Based upon his review of the x-rays and the results of his examination, Respondent devised a treatment plan for C.A., which he reduced to writing and included in C.A.'s chart. Respondent's written treatment plan did not contain any mention of tooth number 18.

    It was merely a partial listing of work that needed to be done on

    
    

    C.A. At no time did Respondent subsequently update, supplement or otherwise modify this written treatment plan.

12. The root canal that Respondent began on May 19, 1988, was completed by him on or about May 29, 1988.

13. C.A. next visited Respondent on June 15, 1988. He came in without an appointment complaining of pain in tooth number 21. Respondent performed root canal therapy on the tooth.

14. Although Respondent had determined that C.A. had periodontal disease, he did not specifically so state in the dental records that he maintained on C.A.

15. Respondent initially treated C.A.'s periodontal disease by having his dental hygienist, Glenda Garvin, perform root planning (scraping the roots below the gums) and curettage (detoxifying the root surfaces from plaque). These procedures were performed on December 13, 1988, and again on February 2, 1989.

16. Root planning and curettage are generally accepted methods of initially treating periodontal disease.

17. Respondent subsequently determined that C.A. required the services of a periodontal specialist. He therefore referred

    C.A. to Ronald Cohen, D.D.S.

    
    

18. Dr. Cohen is a Florida-licensed dentist. At the time he had an arrangement with Respondent whereby he performed periodontal services for Respondent's patients at Respondent's Northwest 18th Avenue and 183rd Street (Miami) office. He performed these services, not under the direction or supervision of Respondent, but as an independent contractor. Respondent billed the patients (or their insurance companies) for the

    periodontal services Dr. Cohen performed and he paid Dr. Cohen a percentage of the fees he received.

19. Dr. Cohen first saw C.A. on October 5, 1989. He confirmed Respondent's diagnosis of periodontal disease. Unlike Respondent, however, Dr. Cohen made mention of this diagnosis in the notes that he made concerning his care and treatment of C.A. and which he left with Respondent. Among the other things that he mentioned in his notes was that tooth number 3 "[m]ay need distal root application."

20. Dr. Cohen determined that C.A. required osseous (referring to the bone supporting the teeth) surgery.

21, Dr. Cohen performed such surgery approximately one week after C.A.'s October 5, 1989, visit.

1. Thereafter, Dr. Cohen referred C.A. back to Respondent for restorative procedures.

2. Respondent saw C.A. on December 5, 1989. Respondent's notes of C.A.'s December 5, 1989, visit read simply as follows: "Bridge Prep. #s 3-6. Imp. for Temp." No other information is given. The pontics and abutments of the bridge referenced in the notes are not identified. Furthermore, the notes do not indicate, nor does a review of the other materials in the records maintained by Respondent reveal, any reason why a bridge was needed for teeth numbers 3 through 6. Respondent's records do not contain any x-rays or notations indicating that any of these teeth were missing at the time of C.A.'s December 5, 1989, visit.

3. In March of 1990, after C.A.'s gums had healed sufficiently from the surgery Dr. Cohen had performed,2 Respondent prepared a bridge for C.A. for teeth numbers 18 through 30.

4. He used bridge work made by Budget Labs. Respondent was not satisfied with the appearance or the fit of the bridge. He therefore told C.A., on March 27, 1990, that he would have the bridge replaced, at no cost to C.A.

5. The replacement bridge was for teeth numbers 19 through

   
   

   31 (rather than 18 through 30).

   
   

6. It was made by Mel Simkins.

   
   

7. Simkins has been a dental technician for the past 48 years.

8. Respondent wanted to make absolutely sure that there were not any problems with the bridge, so he asked Simkins to be present when the bridge was fitted and tested.

9. The bridge was put in on or about May 26, 1990.

   
   

10. At the time, it fit well and C.A. had no complaints. The margins were adequately sealed.3 There were sufficient embrasure spaces. The abutment-to-pontic ratio was adequate.

11. Respondent saw C.A. again on September 18, 1990. At the time the bridge (that he had put in on or about May 26, 1990) appeared to still be intact and fit well. C.A., however, complained of pain in the area of tooth number 27, one of the teeth used as an abutment for the bridge. (On a previous visit

    on March 24, 1990, Respondent had performed root canal therapy on this tooth.)

12. Respondent consulted with Dr. Cohen about the matter. He asked Dr. Cohen "how efficient he was at doing an apicoectomy" (which involves removal of the root tip). Dr. Cohen indicated that he was capable of performing such a procedure. Respondent subsequently referred C.A. to Dr. Cohen to perform an apicoectomy on tooth number 27.

13. Before seeing Dr. Cohen again, C.A. returned to the DFDF on September 25, 1990. On this visit, he was seen by Dr. Smith, who did composite restoration work on teeth numbers 6 and

    11 (located on the upper arch).4 Although he performed work on the upper arch, Dr. Smith visually examined C.A.'s entire mouth, and he noticed the bridge on the lower arch. The bridge did not appear to be ill-fitted. Dr. Smith commented to C.A. that the bridge looked good. In response to this comment, C.A. indicated to Dr. Smith that he was pleased with the bridge.

14. C.A. saw Dr. Cohen on January 3, 1991, at which time Dr. Cohen performed an apicoectomy on C.A.'s tooth number 27.

15. Approximately a week later C.A. saw Respondent. For the first time, C.A. expressed to Respondent dissatisfaction with the aesthetics of C.A.'s lower bridge. Respondent examined C.A. He observed that "the tissue was resorbed, so that the gums pulled back from the bridge." Respondent told C.A. that he would replace the bridge at no cost to C.A. C.A. declined the offer

    stating that he "wanted to move on." He asked Respondent to give him back his money (that he paid Respondent for the lower bridge). Respondent refused.

16. As he said he would, C.A. "moved on" to another dentist. On February 12, 1991, he went to see Frederick Knoll,

    D.D.S. Dr. Knoll examined C.A. He then discussed his findings and available treatment options with C.A. During the discussion,

    C.A. advised Dr. Knoll that he was not "going to do anything about [his condition]." C.A. left Dr. Knoll's office without receiving any treatment or making a return appointment.

17. Several months later, Dr. Knoll was asked by attorneys that C.A. had retained to provide them with a written assessment of C.A.'s condition based upon his February 12, 1991, examination of C.A. In response, Dr. Knoll wrote the following letter, dated August 20, 1991, to C.A.'s attorneys, in which he described what his February 12, 1991, examination had revealed:

    [C.A.] presented himself to me for a complete dental examination on 2/12/91. His chief complaint was of pain in the lower right area, and a general discomfort. A full series of radiographs were taken by [C.A.'s] periodontist and were made available for me to examine.

    
    

    [C.A.] has class III periodontitis with the sequela of alveolar bone loss and tooth mobility. He has the additional problem of multiple endodontic problems, some of which may need to be solved by surgery. The existing restorative dentistry needs to be changed. It is currently contributing to the periodontal problem, and additional splinting will be necessary for stability. Extensive caries are also present.

    I have recommended to [C.A.] that his problem requires a multi-disciplined approach to achieve a satisfactory result. I asked him to continue with his periodontist and to get the necessary help from an endodontist. I would coordinate the treatment and do all the restorative dentistry. I have enclosed a proposed treatment plan with the current costs involved. This treatment plan does not include the cost and treatment Dr. August will incur from the periodontist or the endodontist.

    
    

    If you need any further information on this matter, please feel free to contact me.

    
    

18. "[T]he existing restorative dentistry" to which Dr. Knoll referred in his letter was upper and lower crown and bridge work. Upon examining C.A. on February 12, 1991, Dr. Knoll had observed crowns with "wide open margins."

19. On October 28, 1992, C.A. filed a malpractice lawsuit against Respondent alleging that Respondent had failed to properly diagnose his periodontal disease and, as a result, his crown and bridge work failed and he suffered bone loss. Respondent had never before, nor has he subsequently, been a defendant in a malpractice lawsuit.

20. The lawsuit was settled on May 18, 1994. The settlement agreement provided for a payment of $55,000.00 to C.A. The payment was made on behalf of Respondent by his insurer.

21. Upon being notified of the settlement, AHCA commenced an investigation to determine if the initiation of a disciplinary proceeding against Respondent was warranted. The AHCA investigator assigned the case, Kathy Redfearn, invited

    Respondent to submit a written statement for consideration. Respondent submitted such a statement. It read as follows:

    This case [C.A.] vs Webb was originally [C.A] vs Webb/Cohen. [C.A.'s] attorney later dropped Ron Cohen from the suit because, as I was told, they were unable to obtain a mailing address on Dr. Cohen and subsequently pursued me for vicarious liability.

    
    

    [C.A.] went through a regimental Perio program which included root planning/curettage and full mouth flap and osseous performed by Dr. Ron Cohen. After perio surgery a bridge #18-305 was completed on 6-26-90. [C.A.] was very pleased with the bridge and indicated so to the lab technician and his friend a periodontist.

    
    

    On 9-18-90, [C.A.] complained of pain on #27 and was referred to Dr. Cohen for a second opinion on a possible Apicoectomy on #27.

    Dr. Cohen performed [an] apicoectomy [on] #27, on 1-3-91, for [C.A.] and following this procedure [C.A.] complained of a "botched job" on the apicioectomy, #27, and dissatisfaction with the esthetics of the placed bridge.

    
    

    The bridge I placed was compromised after the apicoectomy procedure because of resorption in areas #25, 26, and 27 where the flap had been extended possibl[y] due to no buccal bone and extreme cyst. (see Dr. Cohen's notes.)

    
    

    Prior to the apicoectomy there w[ere] no signs of resorption under the bridge and no signs of a compromised or inferior bridge. This case went to mediation and both parties negotiated in certain areas including the fact that I was ultimately responsible for Dr. Cohen's work because I had employed him, hence vicarious liability.

22. AHCA sought C.A.'s assistance in the investigation, but he refused to cooperate. He was asked to sign and return an

    Authorization for Release of Patient Information, but he failed to do so.

23. After AHCA completed its investigation, the matter was presented to a probable cause panel.

24. Thereafter, the Administrative Complaint which is the subject of the instant case was issued

    CONCLUSIONS OF LAW

    
    

25. The Board of Dentistry (Board) is now, and has been at all times material to the instant case, statutorily empowered to take one or more of the following punitive actions against a dentist licensed to practice dentistry in the State of Florida based upon any of the grounds enumerated in Section 466.028(1), Florida Statutes: revoke or suspend the dentist's license; place the dentist on probation "for a period of time and subject to such conditions as the [B]oard may specify, including requiring the licensee to attend continuing education courses or demonstrate competency through a written or practical examination or to work under the supervision of another licensee"; reprimand the dentist; deny the renewal of the dentist's license; restrict the authorized scope of the dentist's practice; and impose an administrative fine not to exceed $3,000.00 for each count or separate offense. Section 466.028(2), Florida Statutes.

26. Proof greater than a mere preponderance of the evidence must be submitted before the Board may take punitive action against a licensed dentist. Clear and convincing evidence of the

    dentist's guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v.

    Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Florida Statutes("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

27. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses 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.'" In re Davey, 645 So. 2d

    398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

28. The punitive action taken against the dentist may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Chrysler v. Department of Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Arpayoglou v. Department of Professional Regulation, 603 So. 2d 8 (Fla. 1st DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1992); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

29. Furthermore, in determining whether Section 466.028(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be

    construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977); see also Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996)("Because the statute [Section 626.954(1)(x)4, Florida Statutes] is penal in nature, it must be strictly construed with any doubt resolved in favor of the licensee.").

30. The Administrative Complaint issued in the instant case alleges that punitive action should be taken against Respondent because, in connection with his care and treatment of C.A., he violated Section 466.028(1)(x), Florida Statutes (Count I) and Section 466.028(1)(m), Florida Statutes (Count II).

31. Subsection (1)(x) (formerly subsection (1)(y)) of Section 466.028, Florida Statutes, provides, in pertinent part, as follows:

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

       taken: . . .

       
       

       (x) 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.

       
       

       These provisions (now found in Section 466.028(1)(x), Florida Statutes) have been in effect at all times material to the instant case.

32. A licensed dentist may not be found guilty of violating Section 466.028(1)(x), Florida Statutes, based upon the negligence or incompetence of others where there has been no misconduct personal to licensee. See Ganter v. Department of Insurance, 620 So. 2d 202, 205 (Fla. 1st DCA 1993); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245, 250 (Fla. 1st DCA 1992); McDonald v. Department of Professional Regulation Board of Pilot Commissioners, 582 So. 2d 660, 669 (Fla. 1st DCA 1991; Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So. 2d 1063 (Fla. 3d DCA 1984).

33. In its proposed recommended order, Petitioner argues that "Respondent must be found guilty of violating Section 466.028(1)(x), Florida Statues," inasmuch as "[t]he statute clearly provides that a payment of a single indemnity in excess of $5,000 in a settlement [such as that made to settle C.A.'s lawsuit against Respondent] is dental malpractice, and if a dentist is guilty of dental malpractice, then he is guilty of incompetence or negligence for Licensure discipline."

34. The Administrative Complaint, however, does not charge Respondent with having committed dental malpractice by virtue of

    the indemnity payment made on his behalf as part of the settlement of C.A.'s lawsuit against him. Neither the lawsuit, nor the settlement, is even mentioned in the Administrative Complaint. Under such circumstances, Respondent may not be found guilty of violating Section 466.028(1)(x), Florida Statues, based upon the outcome of the lawsuit.

35. Moreover, Section 466.028(1)(x), Florida Statutes, should be read as establishing a rebuttable, not a conclusive, presumption of guilt of dental malpractice based upon an "indemnity paid in excess of $5,000 in a . . . settlement" of a dental malpractice civil lawsuit. Such a construction is mandated by the requirement that statutes be interpreted, where possible, in such a manner that they will withstand constitutional attack. See Rich v. Ryals, 212 So. 2d 641, 643 (Fla. 1968).

36. This rule of statutory interpretation was also applied in Ayala v. Department of Professional Regulation, 478 So. 2d 1116 (Fla. 1st DCA 1985). Ayala was a Florida-licensed physician who pled nolo contendere to criminal charges relating to his practice. His plea was accepted and he was placed on probation. Adjudication of guilt was withheld. Thereafter, an administrative complaint was filed alleging that, because of the entry of this plea, Ayala was in violation of Section 458.331(1)(c), Florida Statutes (1983), which provided as follows:

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

    
    

    Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

    
    

37. A hearing on the complaint was held before the Board of Medical Examiners (now the Board of Medicine). The evidence established that Ayala "had always maintained his innocence of the criminal charges" and that he "considered his nolo contendere plea to be a plea of convenience in order to avoid the hassle and risks involved in a criminal trial." In deciding whether disciplinary action was warranted, the Board of Medical Examiners adopted the position that "since [Ayala] had pled nolo contendere to the criminal charges and section 458.331(1)(c) provide[d] that a nolo contendere plea 'shall be considered a conviction,' [Ayala] was guilty as a matter of law of violating the standards of professional conduct and was thus subject to disciplinary action."

38. Ayala appealed the Board's final order to the First District Court of Appeal. On appeal, Ayala challenged the constitutionality of Section 458.331(1)(c), Florida Statutes, as interpreted by the Board of Medical Examiners. The First District responded to the arguments advanced by Ayala as follows:

    [Ayala's] arguments have caused us to view with substantial concern the constitutional validity of section 458.331(1)(c) as it was construed and applied by the Board of Medical Examiners in this case. The Board construed this section, in effect, as establishing a conclusive presumption of guilt of the underlying criminal charges so that any consideration of the proffered circumstances surrounding [Ayala's] nolo contendere plea would be relevant only to potential mitigation of the punishment to be imposed.

    We do not reach the constitutional arguments, however, because we must first construe section 458.331(1)(c) in any permissible way that will allow it to withstand constitutional attack. Rich v. Ryals, 212 So.2d 641 (Fla. 1968). We find that section 458.331(1)(c) is clearly constitutional by construing the word "shall" in the last sentence of that subsection as permissive rather than mandatory in meaning. Rich v.

    Ryals, 212 So.2d 641, 643. As so construed, the Board of Medical Examiners may presumptively consider the nolo contendere plea as evidence of a conviction for purposes of chapter 458; however, in accordance with the Supreme Court's opinion in The Florida Bar v. Lancaster, 448 So.2d 1019, the Board must allow [the licensee] the opportunity to rebut this presumption and assert his innocence of the underlying criminal charges by explaining the reasons and circumstances surrounding his plea of nolo contendere, and thereby attempt to convince the Board that he is not guilty of a crime in violation of the provisions of section 458.331(1)(c). The Board must consider this evidence in deciding [the licensee's] guilt or innocence for purposes of the disciplinary charges.

    Because the Board had not done so in Ayala's case, the First District reversed the Board's order finding Ayala in violation of Section 458.331(1)(c), Florida Statutes (1983). See also Son v. Florida Department of Professional Regulation, Division of Real Estate, 608 So. 2d 75 (Fla. 3d DCA 1992)(Third District Court of

    Appeal "approve[d] the holding in Ayala" and construed language in real estate licensing law similar to Section 458.331(1)(c), Florida Statutes (1983) as creating rebuttable, not conclusive, presumption of guilt based upon nolo contendere plea).

39. Department of Professional Regulation v. Nudel, 556 So. 2d 766 (Fla. 1st DCA 1990) is another case which supports the view that Section 466.028(1)(x), Florida Statutes, should not be construed as creating a conclusive presumption of guilt based upon an "indemnity paid in excess of $5,000 in a . . . settlement" of a dental malpractice civil lawsuit. Nudel was a physician who, in a disciplinary proceeding before the Board of Medicine, was charged with "repeated malpractice," as prohibited by Section 458.331(1)(t), Florida Statutes (1985), which provided, in pertinent part, that "repeated malpractice" included "three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of

    $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician." Nudel sought and obtained in Leon County Circuit Court a declaratory judgment enjoining the disciplinary proceeding on the ground that this statutory provision was unconstitutional as applied to him. On appeal, the First District Court of Appeal reversed, holding that the lower court was without authority to interfere with the disciplinary proceeding inasmuch as the statutory provision being challenged was not facially

    unconstitutional. The First District cited Ayala in support of its determination that Section 458.331(1)(t), Florida Statutes (1985), was not unconstitutional on its face.

40. In the instant case, Respondent's evidentiary presentation was sufficiently persuasive to overcome and rebut any presumption that he committed the "dental malpractice" alleged in C.A.'s lawsuit, to wit: that he had failed to properly diagnose C.A.'s periodontal disease (which presumption would have arisen, by operation of Section 466.028(1)(x), Florida Statutes, if pleading requirements had been met, from proof of the $55,000.00 indemnity payment made on Respondent's behalf to settle C.A.'s dental malpractice civil lawsuit). Although Respondent may not have specifically so indicated in the notes that he maintained on C.A., the preponderance of the record evidence establishes that Respondent properly diagnosed and treated C.A.'s periodontal disease and referred him to Dr. Cohen when it became apparent that the services of a periodontal specialist were required.

41. In view of the foregoing, to the extent that the Administrative Complaint alleges that Respondent failed to meet minimum standards of performance in violation of Section 466.028(1)(x), Florida Statutes, in diagnosing and treating C.A.'s periodontal disease, it should be dismissed.

42. In its proposed recommended order, Petitioner further argues that "[t]he restorations completed by Respondent failed to meet the minimum standards of performance."

43. The Administrative Complaint, however, does not allege that Respondent performed any restorative procedures in a substandard manner. It merely alleges (in paragraph 7 thereof) that a subsequent treating dentist to whom C.A. presented on February 12, 1991, more than eight months after Respondent had last performed restorative work for C.A., "recommended that the existing restorative dentistry be changed because it was contributing to [C.A.'s] periodontal problem." No allegation is even made that this "existing restorative dentistry," which, in the opinion of the subsequent treating dentist, needed to be changed, was Respondent's work product. In any event, the record evidence is insufficient to clearly and convincingly establish that the restorative work that Respondent did for C.A. was not done in accordance with minimum performance standards.6 Petitioner did present evidence that, as of February 12, 1991, the date of Dr. Knoll's initial examination of C.A, C.A. had upper and lower crown and bridge work that was inadequate and needed to be replaced. Such evidence, however, when viewed in light of the other evidence adduced at hearing, including, most significantly, Respondent's own credible, exculpatory testimony concerning the quality of the restorative work that he performed for C.A. and the possible reasons why these restorations may have

    no longer been adequate at the time of Dr. Knoll's February 12, 1991, examination of C.A. (more than eight months after Respondent had last done restorative work for C.A.),7 has not produced in the mind of the undersigned "a firm belief or conviction, without hesitancy," that Respondent failed to meet minimum standards in performing this restorative work.8

44. In paragraph 6 of the Administrative Complaint, reference is made to endodontic treatment that Respondent provided C.A. on March 24, 1997, which, according to the Administrative Complaint, was unsuccessful. The evidence supports the allegation made in the Administrative Complaint that Respondent provided such treatment on the date specified and that such treatment was unsuccessful. To establish a violation of Section 466.028(1)(x), Florida Statutes, however, Petitioner had to do more than plead and prove simply that the endodontic treatment provided by Respondent to C.A. had an unsuccessful outcome. Rather, it had to allege and demonstrate by clear and convincing evidence that, in performing these endodontic services for C.A., Respondent acted "incompeten[tly] or negligen[tly] by failing to meet the minimum standards of performance . . . when measured against generally prevailing peer performance." This it failed to do.

45. There is an absence of clear and convincing record evidence establishing that, as to any matter referenced in the Administrative Complaint relating to his care and treatment of

    C.A., Respondent acted "incompeten[tly] or negligen[tly] by failing to meet the minimum standards of performance . . . when measured against generally prevailing peer performance." Accordingly, Count I of the Administrative Complaint, which alleges that "Respondent is subject to discipline pursuant to Section 466.028(1)(x), Florida Statutes," should be dismissed in its entirety.

46. As noted above, Count II of the Administrative Complaint alleges that, in connection with his care and treatment of C.A., Respondent was guilty of recordkeeping deficiencies in violation of Section 466.028(1)(m), Florida Statutes.

47. At all times material to the instant case, subsection (1)(m) of Section 466.028, Florida Statutes, has authorized the Board to take punitive action against a licensed dentist for "[f]ailing 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." This statutory provision does not purport to encompass the standards of any professional or accrediting organization or "those of a 'reasonably prudent [dentist];'" nor can it "be interpreted as authorizing disciplinary action for a [dentist's] failure to document in a patient's medical chart a basis for not undertaking a particular course of treatment." Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So. 2d 469, 471

    (Fla. 1st DCA 1990). It does impose upon the dentist, however, an obligation to provide sufficient documentation "so that 'neutral third parties can observe what transpired during the course of treatment of a patient.'" Robertson v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 153, 156- 57 (Fla. 1st DCA 1990).9 .

48. The record evidence in the instant case clearly and convincingly establishes that Respondent failed to meet this obligation by not including the following in the dental records that he maintained on C.A., as alleged in the Administrative Complain: mention of his diagnosis that C.A. had periodontal disease; x-rays or other documentation reflecting that a bridge was needed for C.A.'s teeth numbers 3 through 6 at the time of C.A.'s December 5, 1989, visit; and a complete treatment plan.10

49. His failure to have included such information in his records was a violation of Section 466.028(1)(m), Florida Statutes, for which he should be disciplined.

50. In determining the particular punitive action the Board should take against Respondent for having committed this violation, it is necessary to consult Rule 64B5-13.005 (formerly 21G-13.005, 61F5-13.005, and 59Q-13.005), Florida Administrative Code, which contains the Board's "[d]isciplinary [g]uidelines." Cf. Williams v. Department of Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency required to comply with its

    disciplinary guidelines in taking disciplinary action against its employees).

51. Rule 64B5-13.005, Florida Administrative Code, provides, in pertinent part, as follows:

    1. Unless relevant mitigating factors are demonstrated the Board shall always impose a reprimand and an administrative fine not to exceed $3,000.00 per count or offense when disciplining a licensee for any of the disciplinary grounds listed in subsections

    2. or (3) of this rule. The reprimand and administrative fine [are] in addition to the penalties specified in subsections (2) and

    3. for each disciplinary ground. . . .

       
       

       1. When the Board finds an applicant or licensee whom it regulates under Chapter 466, Florida Statutes, has committed any of the acts set forth in Section 466.028, Florida Statutes, it shall issue a Final Order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines: . . .

          
          

          (p) Failure 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. The usual action of the Board shall be to impose a period of

          probation. . . .

          
          

       2. Based upon consideration of aggravating or mitigating factors, present in an individual case, the Board may deviate from the penalties recommended in subsections (2) and (3) above. The Board shall consider as aggravating or mitigating factors the following:

       
       

       1. The severity of the offense;

          
          

       2. The danger to the public;

       3. The number of repetitions of offenses or number of patients involved;

          
          

       4. The length of time since the violation;

          
          

       5. The number of times the licensee has been previously disciplined by the Board;

          
          

       6. The length of time the licensee has practiced;

          
          

       7. The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage;

          
          

       8. The deterrent effect of the penalty imposed;

          
          

       9. The effect of the penalty upon the licensee's livelihood;

          
          

       10. Any efforts of rehabilitation by the licensee;

           
           

       11. The actual knowledge of the licensee pertaining to the violation;

           
           

       12. Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation;

           
           

       13. Related violations against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

           
           

       14. Penalties imposed for related offenses under sections (2) and (3) above;

           
           

       15. Any other relevant mitigating or aggravating factor under the circumstances. . . .

       
       

52. Having considered the facts of the instant case in light of the provisions of Rule 64B5-13.005, Florida Administrative Code, it is the view of the undersigned that the appropriate punitive action to take against Respondent in the

instant case for his violation of Section 466.028(1)(m), Florida Statutes, is to issue him a reprimand, fine him $1,000.00, and place him on probation for a period of one year subject to such conditions as the Board may specify.

RECOMMENDATION

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

RECOMMENDED that the Department issue a final order (1) dismissing Count I of the Administrative Complaint; (2) finding Respondent guilty of violating Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Administrative Complaint (except to the extent that Count II charges Respondent with violating Section 466.028(1)(m), Florida Statutes, by not keeping records "correctly indicat[ing] amounts owed to [him] in relation to amounts paid by Patient C.A.," which allegation should be dismissed); and (3) as punishment for Respondent's violation of Section 466.028(1)(m), Florida Statutes, issuing him a reprimand, fining him $1,000.00, and placing him on probation for a period of one year subject to such conditions as the Board may specify.

DONE AND ENTERED this 31st day of October, 1997, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 31st day of October, 1997.

ENDNOTES

1 To make matters worse, some of the entries are extremely difficult, if not impossible, to decipher.

2 C.A. was still smoking, but not as frequently as he had in the past.

3 The margin is where the crown and tooth interface. When the margins are open, decay may form under the crown.

4 At the time of the visit, Dr. Smith was newly licensed and a recent (May, 1990) graduate of dental school.

5 The bridge was actually for teeth numbers 19 through 31.

6 The opinion expressed at the final hearing by Petitioner's expert, Dr. Danziger, that Respondent's restorative work was "below the standard of care" and that Respondent "failed to recognize and properly treat on time [C.A.'s ] periodontal disease" was based upon incomplete factual information inasmuch as, at the time he testified, Dr. Danziger did not have the benefit of the testimony Respondent later gave that clarified and supplemented the information contained in the dental records Respondent maintained on C.A., upon which Dr. Danziger had relied in forming his opinion. "An expert's opinion which is based on an . . . incomplete hypothetical cannot constitute competent substantial evidence." Sabre Marine v. Feliciano, 461 So. 2d 985, 987-88 (Fla. 1st DCA 1984).

7 Respondent testified in his own defense as both a fact and expert witness. Notwithstanding its self-serving nature, the exculpatory testimony of a respondent, like that given by Respondent in the instant case, may be considered and relied upon as competent substantial evidence, even if it is uncorroborated (which was not the situation in the instant case) and contrary to the evidence adduced by the licensing agency. See Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993)("It would be an anomalous situation indeed if the testimony of the one against whom a complaint is lodged could never form the basis for competent substantial evidence."); Florida Publishing Company v. Copeland,

89 So. 2d 18, 20 (Fla. 1956)("There is no doubt that the testimony of the plaintiff, although uncorroborated, ' . . . if reasonable on its face, and believed and accepted by the jury as true can carry the burden of proof.'"); Martuccio v. Department

of Professional Regulation, Board of Optometry, 622 So. 2d 607, 609-10 (Fla. 1st DCA 1993)(expert testimony of applicant for licensure was not incompetent and could be relied upon "as competent substantial evidence to support [hearing officer's] conclusions"); Raheb v. Di Battisto, 483 So. 2d 475, 476 (Fla. 3d DCA 1986)("We are not persuaded, as urged, that the testimony of the plaintiff . . . should have been rejected by the trial court as inherently incredible; it was the trial court's function, not ours, to weigh the testimony and evidence adduced in the cause based on its observation of the bearing, demeanor, and credibility of the witnesses appearing in the cause.").

8 Significantly, C.A. did not testify and therefore the record is devoid of any testimony from him regarding those things that he may have done, or that may have been done on his behalf, particularly during the period from on or about May 26, 1990 (when he last had restorative work performed for him by Respondent) to February 12, 1991 (the date he was first examined by Dr. Knoll), which might have impacted his dental health in general and the restorative work done by Respondent in particular. If such testimony had been presented, depending, of course, on its substance and believability, it may have bolstered Petitioner's case and made Respondent's evidentiary presentation less persuasive.

9 The Board has adopted a rule, Rule 64B5-17.002, Florida Administrative Code, implementing the provisions of Section 466.028(1)(m), Florida Statutes. The rule provides, in pertinent part, that a dentist's records on each patient must contain, at a minimum, an "appropriate medical history"; the "results of clinical examination and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases"; a "treatment plan proposed by the dentist"; and information concerning the "treatment rendered to the patient."

10 The Administrative Complaint (in paragraph 8) alleges one additional recordkeeping deficiency: "Patient C.A.'s records do not correctly indicate amounts owed to Respondent in relation to amounts paid by Patient C.A." The failure to maintain accurate patient billing and payment records, however, does not constitute a violation of Section 466.028(1)(m), Florida Statutes, inasmuch as the amounts patients are billed and the amounts they pay are not matters which must be included in the records Section 466.028 requires licensees to keep. To comply with Section 466.028, a licensee must merely maintain records that give neutral third parties a reasonably clear understanding of what the licensee did to treat a patient and the circumstances that led the licensee to follow such a course of treatment. There is no need for the licensee to include information concerning the amount charged and received for providing such treatment.

In its proposed recommended order, Petitioner identifies numerous recordkeeping deficiencies in addition to those mentioned in the Administrative Complaint. Because these other deficiencies were not pled, they are not a basis upon which the Board may discipline Respondent in the instant case.

COPIES FURNISHED:

Wendy Smith Hansen, Senior Attorney Agency for Health Care Administration Office of the General Counsel

Medical Quality Assurance Allied Health

Post Office Box 14229 Tallahassee, Florida 32399-4229

Abe A. Bailey, Esquire

18350 Northwest Second Avenue Fifth Floor

Miami, Florida 33169

William Buckhalt, Executive Director Department of Health, Board of Dentistry Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0765

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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: 97-001405

Orders for Case No: 97-001405