vs. ) Case No. 01-3509PL
Respondent. )
Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this proceeding on November 6, 2001, in Ft. Myers, Florida, on behalf of the Division of Administrative Hearings ("DOAH").
For Petitioner: Tracy J. Sumner, Esquire
For Respondent: Frank R. Recker, Esquire
Frank R. Recker & Associates Company L.P.A.
Jay P. Chimpoulis, Esquire O'Connor & Meyers
The issue for determination is whether Respondent violated Section 466.028(1)(x), Florida Statutes (2001), by failing to refer patient L.D. to a specialist for evaluation and treatment of numbness of her tongue. (All statutory references are to Florida Statutes (2001) unless otherwise stated.)
On July 12, 2001, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.
At the hearing, Petitioner presented the testimony of two witnesses who were present at the hearing and three witnesses whose testimony was offered by deposition transcripts.
Petitioner submitted six exhibits for admission in evidence. Respondent testified in his own behalf, offered the deposition testimony of three witnesses, and submitted five exhibits for admission in evidence. The identity of the witnesses and exhibits and any attendant rulings are set forth in the Transcript of the hearing filed on November 29, 2001. The parties timely filed their respective Proposed Recommended Orders on December 10, 2001.
Petitioner is the state agency responsible for regulating the practice of dentistry in Florida pursuant to
Section 20.43 and Chapters 456 and 466. Respondent is licensed as a dentist in Florida pursuant to license number DN9676.
Respondent is a general dentist. Respondent practices dentistry in Cape Coral, Florida, and has practiced dentistry for approximately 18 years. Respondent has no prior discipline against his license.
The patient at issue is identified in the Administrative Complaint as L.D. The parties stipulated that L.D. is the same person identified in Respondent's medical records as L.V. and in the Transcript as L.W.
L.D. is a female who was 19 years old when Respondent removed her four wisdom teeth on February 26, 1998. At the time, Respondent's records correctly identified the patient as
L.V. L.V. subsequently married D.D. who was her boyfriend at the time. L.V. is now L.D. L.D. and D.D. were both patients of Respondent.
L.D. suffered an injury to her lingual nerve when Respondent extracted her wisdom teeth. Lingual nerve injury is a foreseeable risk of wisdom tooth extraction, and the parties agree that Respondent properly disclosed that risk to L.D. prior to extracting her wisdom teeth.
The symptoms of lingual nerve injury include paresthesias, i.e., numbness, of the tongue. The applicable standard of care for lingual nerve injury is observation and,
under certain circumstances, referral to an oral and maxillofacial surgeon ("oral surgeon").
Surgery for symptoms of a lingual nerve injury may be exploratory, or it may be undertaken to perform a nerve grafting procedure. One of the risks of such surgery is dyscesthesia, i.e., pain, thereby making the symptoms worse rather than better. Therefore, surgery is not appropriate unless the patient experiences severe or debilitating pain, lip biting and cheek biting, or cannot function. The prudent dentist should observe the patient over time to determine whether the patient is improving and to determine the nature and scope of the patient's symptoms.
The Administrative Complaint contains two essential allegations against Respondent. One allegation is that Respondent failed to diagnose the lingual nerve injury. The other allegation is that Respondent failed to refer L.D. to an oral surgeon.
Respondent properly diagnosed the lingual nerve injury to L.D. After extracting L.D.'s wisdom teeth on February 26, 1998, Respondent examined L.D. in 1998 on February 27; March 5, 12, and 26; April 30; May 4; and July 8. L.D. did not call or seek an appointment with Respondent between May 4 and July 8, 1998.
The first examination on February 27, 1998, was routine. Respondent checked to make sure L.D. had no signs of any complications, gross infection, or pus from the area of the surgery. L.D. had no complaints of numbness. Respondent instructed L.D. to return on March 5, 1998.
On March 5, 1998, L.D. complained for the first time of numbness on both sides of her tongue. Respondent properly examined and diagnosed the cause as lingual nerve injury. By using an explorer to identify the areas of paresthesia, or numbness, Respondent determined that the right tip of L.D.'s tongue did not respond to the explorer, the right mid-tongue did respond, the left tip did not respond, and the left mid-tongue did not respond. Respondent also determined that both lingual tissue areas, i.e., the areas toward the tongue, did not respond to the explorer.
Respondent properly treated L.D. after diagnosing the lingual nerve injury. Respondent observed L.D. for approximately four months to determine the nature and scope of L.D.'s symptoms. L.D.'s paresthesia of the tongue improved during the four months immediately following the removal of her wisdom teeth.
After examining and diagnosing L.D. on March 5, 1998, Respondent explained to L.D. that the numbness may be either transient or permanent and that she was to return in one week for observation. L.D. returned to Respondent's office on March 12,
1998. Respondent stated that the feeling was coming back to her tongue, especially on her left side, and that she felt tingling.
L.D. complained only of a tingling sensation on the right side of her tongue. L.D. did not complain that her tongue was numb or that she was biting her tongue. L.D. stated that her tongue was still a little bit numb, and it was tingling a little bit on the right side.
A tingling sensation is hyperesthesia or paresthesia.
Hyperesthesia can be an indication that the lingual nerve is repairing or healing. It indicates that the nerve is intact, that nerve conduction is occurring, and may indicate a potential for spontaneous self-repair. Respondent instructed L.D. to return for observation in two weeks.
L.D. returned to Respondent's office on March 26, 1998.
L.D. stated the feeling had returned to the left side of her tongue and that the right side of her tongue was still tingling. Respondent instructed L.D. to return for observation in six weeks.
L.D. returned to Respondent's office on April 30, 1998.
L.D. stated that she no longer had sensitivity on the right side of her tongue. The comment that she had "no sensitivity" indicated that the patient had none of the tingling sensation that had been her only complaint on March 26, 1998.
L.D. returned to Respondent's office on May 4, 1998, for a dental prophylaxis, i.e., cleaning. L.D. did not complain of any numbness or tingling on May 4, 1998.
On July 8, 1998, L.D. and D.D. both visited Respondent's office for dental care. D.D.'s visit was routine and not material to this proceeding. L.D. returned to Respondent's office and reported conflicting symptoms. L.D. indicated that she had feeling in her lips, but did not respond to the explorer on the gum in the front or the back of the teeth or in the areas of the tongue in which she had previously indicated that sensation had returned.
The symptoms displayed by L.D. on July 8, 1998, included symptoms of buccal nerve damage. The buccal nerve goes to the gum and cheeks and is different from the lingual nerve. Prior to July 8, 1998, L.D. had not previously shown any signs of buccal nerve damage. Because of these conflicting complaints, Respondent referred L.D. to an oral surgeon on July 8, 1998.
Respondent referred L.D. to the Southwest Florida Oral Surgery Associates ("Southwest"). Respondent has referred patients exclusively to Southwest for approximately 10 years.
Respondent's records for July 8, 1998, do not include an express statement that he was referring L.D. to an oral surgeon. However, the records include a notation, "PTR for records," that indicates L.D. was to return for her records.
The notation in the records is consistent with Respondent's longstanding protocol when referring a patient to a specialist. The protocol is to have the patient's records copied and prepared for the patient to pick them up and deliver to the specialist.
On July 13, 1998, D.D. obtained copies of the records for L.D. and for D.D. from Respondent's office. The records included a written referral form for L.D. in accordance with Respondent's protocol. Respondent's office staff inadvertently filed Respondent's copy of the written referral form for L.D. in D.D.'s dental records and recovered the form after Respondent was asked to retrieve D.D.'s records during discovery in this proceeding.
Respondent informed his office manager on July 8, 1998, that he had referred L.D. to an oral surgeon. Respondent's office manager confirms that Respondent stated to her at the time that he was referring L.D. to an oral surgeon.
On March 3, 1999, L.D. saw Dr. Kevin Pollack at Southwest. Dr. Pollack found that L.D. could not perceive touch or pressure on the left side of her tongue. On April 1, 1999,
L.D. saw Dr. Timothy Hogan at Southwest. L.D. had improved since she saw Dr. Pollack. Dr. Hogan found that L.D. could perceive light touch and pressure on the left side of her tongue.
Petitioner's expert opined that failure to refer L.D. to an oral surgeon failed to comply with the applicable standard of care for lingual nerve injury. However, the issue of whether Respondent referred L.D. to Southwest is an issue of fact for which expert opinion is admissible if: specialized knowledge will assist the trier of fact in understanding the evidence; and the opinion can be applied to evidence at the hearing. Section 90.702.
The record does not disclose any specialized knowledge needed to resolve the factual issue of whether Respondent referred L.D. to Southwest. The expert did not testify at the hearing as to why the expert's knowledge, skill, experience, training, or education would assist the trier of fact in making a finding concerning the factual issue of whether Respondent referred L.D. to Southwest.
The opinion of Petitioner's expert was not applied to evidence at the hearing. The expert apparently disregarded the entries in Respondent's records that L.D. was to pick up her records, and the expert was not present at the hearing to listen to other evidence and testify as to whether the evidence at hearing altered his opinion.
The only other evidence that the expert opinion could be applied to is the testimony by L.D. and D.D. that Respondent did not refer L.D. to Southwest. However, the testimony of L.D.
and D.D. is neither credible nor persuasive and is less than clear and convincing.
The memories of the two witnesses are not clear and are not without confusion. Most of the facts to which the witnesses testified are not distinctly remembered. The testimony is not precise and explicit. Their testimony lacks certainty and consistency as to specific facts and circumstances and details.
Both witnesses testified that they clearly recalled that Respondent did not refer L.D. to Southwest. However, neither witness could recall how L.D. ended up at Southwest. Nor could either witness recall picking up records from Respondent, what was contained in those records, and whether a written referral was included in the records. When asked why L.D. had not returned to Southwest, L.D. refused to answer the question.
The testimony of L.D. and D.D. does not produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegation that Respondent failed to refer L.D. to Southwest. The assumption inherent in the testimony of Petitioner's expert that Respondent did not refer L.D. to an oral surgeon is not based on underlying facts or data in evidence and, therefore, is not admissible pursuant to Section 90.705. Even if it were admissible, the underlying facts and data are less than clear and convincing and not persuasive.
Petitioner submitted evidence that Respondent failed to meet the applicable standard of care because Respondent did not refer L.D. to an oral surgeon in a timely manner. Without identifying the appropriate time for a referral, Petitioner relies on expert opinion that, "sooner is better than later."
The Administrative Complaint does not allege that Respondent failed to meet the applicable standard of care by failing to refer L.D. to an oral surgeon in a timely manner. Rather, the Administrative Complaint alleges that Respondent failed to refer L.D. to an oral surgeon at any time. It would violate fundamental principles of due process to put Respondent on notice in the Administrative Complaint that he must be prepared to defend against the allegations in the Complaint and then prove a different allegation during the administrative hearing.
Even if the Administrative Complaint were to allege that Respondent failed to timely refer L.D. to an oral surgeon, the evidence is less than clear and convincing that the referral by Respondent was not timely. Respondent did not refer L.D. to a specialist prior to July 8, 1998, because the numbness in her tongue had been improving. In April of 1999, L.D. had recovered a large percentage of the feeling on the left side of her tongue and was experiencing tingling on her right side.
If Respondent had referred L.D. to a specialist during the time that she had been reporting improvement in her parethesias, the referral would have been inappropriate. In the absence of debilitating pain and lip and cheek biting, a dentist need not refer a patient with lingual nerve paresthesia to an oral surgeon. If a patient who experiences lingual nerve parethesias after the removal of wisdom teeth shows signs of improving or if the patient has some feeling in the tongue, the dentist need only observe the patient and need not refer the patient to a specialist.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter. The parties received adequate notice of the administrative hearing.
The burden of proof is on the Petitioner. Petitioner must prove by clear and convincing evidence that Respondent committed the violations alleged in the Administrative Complaint. Department of Banking and Finance, Division of Securities and
Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996); Hoover v. Agency for Health Care Administration, 676 So. 2d 1380, 1382 (Fla. 3d Dist. 1996).
Petitioner failed to satisfy its burden of proof to establish the allegations of the Administrative Complaint. Disciplinary statutes, such as Section 466.028(1)(x), are penal
in nature and must be strictly construed against the authorization of discipline and in favor of the person sought to be penalized. Loeffler v. Florida Department of Business and Professional Regulation, 739 So. 2d 150, 152 (Fla. 1st Dist.
1999); Munch v. Department of Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st Dist. 1992); Elmariah v. Department of
Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st Dist. 1990).
Petitioner must prove each element required in the statutory definition of the violation by clear and convincing evidence. Clear and convincing evidence is considered an "intermediate level of proof."
This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
[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.
Inquiry Concerning Davey, 645 So. 2d 398, 404 (Fla. 1994) citing
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th Dist. 1983).
The evidence submitted by Petitioner was less than clear and convincing. It consisted of the testimony of an expert witness who was not present during the examination of L.D. The witness recanted his testimony that Respondent had failed to diagnose L.D.'s lingual nerve injury. The witness did not consider the entry in the Respondent's records for patient L.D., which stated that the patient was to return for her records, and simply assumed that the Respondent did not refer L.D. to a specialist.
The evidence also consisted of the testimony of two witnesses, L.D. and D.D. Neither could recall how L.D. found Southwest. They could not recall whether or not Respondent had referred L.D. to a specialist; could not recall very much at all about L.D.'s visits to Respondent's office; could not recall L.D.'s appointments with Drs. Pollack and Hogan on March 3 and April 1, 1999, respectively; could not recall whether or not D.D. had picked up L.D.'s dental records from Respondent's office or what D.D. had done with them; could not recall why L.D. first visited Respondent; and could not recall the names of the dentists L.D. visited either prior to or after seeing Respondent. The testimony of L.D. and D.D. was conflicting, inconsistent, and less than clear and convincing.
Although Respondent does not bear the burden of proof in an administrative proceeding, the testimony of Respondent and
his office manager, as well as the unrefuted entries in L.D.'s dental records, show that Respondent referred L.D. to a specialist. The referral form, retrieved from D.D.'s dental records, shows that Respondent referred L.D. to an oral surgeon.
The testimony of Respondent's expert witnesses demonstrates that, because L.D.'s paresthesia had improved during the several weeks following the removal of her wisdom teeth, the standard of care required only that Respondent observe L.D. The standard of care did not require that Respondent refer L.D. to a specialist.
The testimony of Petitioner's expert witness is inapposite. The expert is a prosthodontist, not a general dentist or an oral surgeon. The expert is not familiar with the standard of care for observing and referring a patient with a lingual nerve injury, rarely removes wisdom teeth, has never referred a patient with lingual nerve injury to an oral surgeon, and has never had a dentist refer a patient with lingual nerve injury to him. In addition, the expert would defer to the judgment of a Board-certified oral surgeon in handling lingual nerve injuries as it relates to when L.D. should have been referred.
RECOMMENDED that Petitioner enter a Final Order finding that Respondent is not guilty of violating Section 466.028(1)(x) and dismissing the Administrative Complaint.
DONE AND ENTERED on this 17th day of December, 2001, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2001.
Tracy J. Sumner, Esquire
Jay P. Chimpoulis, Esquire O'Connor & Meyers
Frank R. Recker, Esquire
Frank R. Recker & Associates Company L.P.A.
Theodore M. Henderson, Agency Clerk Department of Health
William W. Large, General Counsel Department of Health
William H. Buckhalt, Executive Director Board of Dentistry
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.
