STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )

)

Petitioner, )

)

vs. )

)

MARIA A. KASHLAK, D.D.S., )

)

Respondent. )

Case No. 03-1584PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 25, 2003, by video teleconference in Tallahassee and Orlando, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wayne Mitchell, Esquire

Ephraim D. Livingston, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Brian D. Stokes, Esquire

Unger, Acree, Weinstein, Marcus, Merrill, Kast & Metz, P.L.

701 Peachtree Street

Orlando, Florida 32804

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 456.057(4) and 466.028(1)(n), Florida Statutes, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 10, 2003, Petitioner, Department of Health, Board of Dentistry (Department), filed an Administrative Complaint against Respondent, Maria A. Kashlak, D.D.S.

(Dr. Kashlak), charging that Dr. Kashlak had violated Subsections 456.057(4) and 466.028(1)(n), Florida Statutes, by failing to make available to a patient a copy of the patient's dental records. Dr. Kashlak requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on May 1, 2003, for assignment of an administrative law judge to conduct the final hearing.

The final hearing was held on July 25, 2003. Petitioner called Thomas E. French, Dr. Kashlak, and D.B. as witnesses. Petitioner's Exhibits 1, 2, 3, 5, and 6 were admitted in evidence. Dr. Kashlak testified in her own behalf and called Anthony Oswick, D.D.S., as her witness. Respondent's Exhibit 1 was admitted in evidence.

Official recognition was taken of Subsections 456.057(4) and 466.028(1)(n), Florida Statutes, and Rule 64B5-17.009(3), Florida Administrative Code.

The parties stipulated to the facts contained in paragraphs one through six in section E of Respondent's pre-hearing statement. To the extent relevant, those facts have been incorporated in this Recommended Order.

At the final hearing the parties agreed to file their proposed recommended orders within ten days of the filing of the transcript. The two-volume Transcript was filed on August 12, 2003. On August 22, 2003, Respondent filed a motion requesting additional time to file her proposed recommended order. The motion was granted, and the time for filing proposed recommended orders was extended to August 25, 2003.

Unless otherwise indicated, all citations are to Florida Statutes (2001).

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the practice of Dentistry pursuant to Chapters 456 and 466 and Section 20.43.

2. Dr. Kashlak is and has been at all material times hereto a licensed dentist in the State of Florida, having been issued license number DN 0011469. Dr. Kashlak has been practicing dentistry since 1985. She and her husband,

   Dr. Anthony Oswick, have had a small general dentistry practice in Orlando since at least 1990.

3. On August 8, 2001, Dr. Kashlak first saw patient D.B. X-rays were taken on that date, and D.B.'s teeth were cleaned.

   D.B. next presented on August 21, 2001, at which time the cleaning of her teeth was completed.

4. D.B. was scheduled for a one-hour appointment at 1 p.m. on September 19, 2001. D.B. called Dr. Kashlak's office at

   10 a.m. on the morning of her appointment and advised that she had a conflict with her 1 p.m. appointment. She was advised that she would be charged a $50 cancellation fee if she did not make her appointment. D.B. advised that she would be coming, but that she would be late.

5. D.B. arrived at 1:25 p.m. for her appointment. She was advised by the receptionist that she was too late for her appointment and that she would be charged the $50 cancellation fee. D.B. was unhappy with the situation. The receptionist told D.B. that she would have the dentist call her.

6. It is the policy of Dr. Kashlak's office that she will deal with Dr. Oswick's patients on fee matters and that he will deal with her patients on fee matters. On the evening of September 19, 2001, Dr. Oswick called D.B. to discuss her concerns about the cancellation fee. D.B. and Dr. Oswick argued about the cancellation fee. D.B. advised him that she was not happy with the way that she had been treated and that she would be going to another dentist. D.B. told Dr. Oswick that she

   wanted her dental records, and he advised her to put her request in writing and send a check for $35 to cover the costs of copying the records.

7. In a letter dated September 25, 2001, D.B. sent a letter to Dr. Kashlak stating the following:

   As per your instructions, I have enclosed a check for $35 to cover the cost of duplicating my dental records--x-rays, treatment plan, and notes. Please call me at the number noted below as soon as they are available and I will come by to pick them up.

   
   

8. On October 8, 2001, D.B. received a copy of her dental x-rays and a letter enclosing a check for $99, which represented a refund of an insurance claim payment for D.B. No mention was made in the letter why all D.B.'s dental records had not been sent, and no mention was made that Dr. Kashlak or Dr. Oswick would contact D.B. concerning the remaining dental records.

9. D.B. called Dr. Kashlak's office on October 8, 2001, and spoke to Dr. Oswick. Dr. Kashlak was with Dr. Oswick during the telephone conversation with D.B. D.B. asked why she had not received all of her dental records. He told her that the diagrams of her teeth would not copy well and that there was nothing else that she needed in her records. D.B. did not indicate to Dr. Oswick that she was withdrawing her request for the records.

10. D.B. went to another dentist on October 17, 2001. She gave the x-rays to the dentist and told the dentist that she was unable to get the remaining records from Dr. Kashlak. Upon being advised by the new dentist that Dr. Kashlak was required to provide her with a copy of the records, D.B. went by Dr. Kashlak's office after her dental appointment in an attempt to get her dental records. The receptionist at Dr. Kashlak's office would not give D.B. her records. After her October 17 visit to Dr. Kashlak's office, D.B. never attempted to contact Dr. Kashlak again concerning her dental records.

11. On October 17, 2001, Dr. Kashlak and Dr. Oswick were on vacation and were not in the office. They were not advised that D.B. had stopped by the office requesting her records.

12. In April 2002, D.B. filed a complaint with the Department concerning Dr. Kashlak's treatment and the failure to provide the requested dental records. The Department investigated the complaint and contacted Dr. Kashlak by letter dated June 24, 2002, advising her of the complaint. By a Verification of Completeness of Records form dated July 15, 2002, Dr. Kashlak sent D.B.'s records, consisting of 14 pages, to the Department.

13. One page of D.B.'s dental records, which the Department received, contained the following in the upper right- hand corner:

    Personal Notes:

    9-19-01 Pt. showed up @ 125 pm -- caused disruptive scene in reception area/slanderous stmts. demanding refund. mk 9-19-01 called pt per request, became argumentative Re: broken appt. fee !!

    Also requested copy of x-rays afo 10-8-01 spoke to pt Re. Tx notes argumentative Re: BA Fee of $50 Pt's next dentist to contact us mk

    
    

14. After receiving notice from the Department of D.B.'s complaint, Dr. Kashlak also sent D.B. a copy of D.B.'s dental records, which D.B. received on July 20, 2002. D.B.'s copy did not contain the personal notes set forth above.

15. Dr. Kashlak has never had her license to practice

    
    

    dentistry disciplined.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57.

17. The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

18. The Department has alleged that Dr. Kashlak has violated Subsections 456.057(4) and 466.028(1)(n), and Rule 64B5-17.009(3), Florida Administrative Code. Subsection 456.057(4) provides:

    Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to any person shall, upon request of such person or person's legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information.

    
    

19. Subsection 466.028(1)(n) provides that a dentist may be disciplined for the following:

    Failing to make available to a patient or client, or to her or his legal representative or to the department if authorized in writing by the patient, copies of documents in the possession or under the control of the licensee which relate to the patient or client.

    
    

20. Rule 64B5-17.009(3), Florida Administrative Code, provides:

    A dentist shall comply with a patient's written request for copies of records and reports in a timely manner, with due regard for the patient's health needs. In the absence of circumstances beyond the control of the licensee, timely shall mean less than

    30 days.

    
    

21. Dr. Kashlak violated Subsections 456.057(4) and 466.028(1)(n), by failing to provide D.B.'s dental records to

    D.B. as required by those statutes.

    
    

22. Rule 64B5-13.005, Florida Administrative Code, provides a range of penalties for violations of Chapter 466 and sets forth factors which may be considered in mitigation of the

penalty. Such mitigating factors include danger to the public, previous disciplinary actions, length of time licensee has practiced, and the actual damage caused by the violation.

Dr. Kashlak has been in practice since 1985 without any disciplinary action being taken against her license, she does not pose a danger to the public, and there was no actual damage

to D.B.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Dr. Kashlak violated Subsections 456.057(4) and 466.028(1)(n), imposing an administrative fine of $750, issuing a reprimand, and requiring Dr. Kashlak to complete 30 hours of continuing dental education in record keeping or risk management.

DONE AND ENTERED this 11th day of September, 2003, in Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2003.

COPIES FURNISHED:

Wayne Mitchell, Esquire Ephraim D. Livingston, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Brian D. Stokes, Esquire

Unger, Acree, Weinstein, Marcus, Merrill, Kast & Metz, P.L.

701 Peachtree Road

Orlando, Florida 32804

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William H. Buckhalt, Executive Director Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

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: 03-001584PL

Orders for Case No: 03-001584PL