STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )

)

Petitioner, )

)

vs. )

)

LUYEN NGUYEN, D.D.S., )

)

Respondent. )

Case No. 03-4034PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 29, 2004, in Naples, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Irving Levine, Esquire

Department of Health

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

For Respondent: Michael W. Bond, Esquire

1815 Monte Vista Street Fort Myers, Florida 33901

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (2001), 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 dated February 7, 2003, against Luyen Nguyen D.D.S. (Dr. Nguyen), alleging that he had violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (2001).1 Dr. Nguyen filed an Election of Rights form, disputing all allegations and requesting an administrative hearing. On October 31, 2003, the case was forwarded to the Division of

Administrative Hearings for assignment to an Administrative Law Judge.

The case was originally scheduled for January 6 and 7, 2004. On December 19, 2003, Dr. Nguyen filed Respondent's Motion to Continue. The motion was granted, and the final hearing was rescheduled for January 29 and 30, 2004.

The parties filed a Joint Prehearing Stipulation on December 19, 2003, in which they stipulated to certain facts. To the extent relevant, those stipulated facts are incorporated in this Recommended Order.

By order dated December 30, 2003, official recognition was taken of Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes, and Florida Administrative Code Rules 64B5-13.005 and 64B5-17.001 (2001).

At the final hearing, the Department called Melvin A. Platt, D.D.S., as its witness. Petitioner's Exhibits 1 through 3 were admitted in evidence. Dr. Nguyen testified in his own behalf, and called Dr. Juan Pablo Rodriguez and Sara

Riche as his witnesses. Respondent's Exhibits 1 through 3 were admitted in evidence.

The one-volume Transcript was filed on February 11, 2004.

The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. The Department filed Petitioner's Proposed Recommended Order on February 20, 2004. As of the date of this Recommended Order, Dr. Nguyen had not filed a proposed recommended order.

FINDINGS OF FACT

1. The Department is charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456, 466, and 120, Florida Statutes (2003).

2. At all material times to this proceeding, Dr. Nguyen was a licensed dentist in the State of Florida, having been issued license number DN0014768.

3. On April 17, 2002, Patient J.N. presented to Dr. Nguyen complaining with pain from a broken tooth. She brought a full set of x-rays taken by another dentist approximately a year before her visit to Dr. Nguyen. J.N. filled out a form entitled

   "Health Questions." J.N. indicated on the form that her teeth were sensitive to cold.

4. He examined J.N.'s teeth and saw that tooth 30 was fractured to the gum line. J.N. complained that the broken area of the tooth was sharp and was rubbing against her tongue causing irritation. His examination further revealed that she had some slight gum disease in the upper right side. J.N. was not experiencing a throbbing pain from tooth 30, and tooth 31 was not giving her any discomfort. Her discomfort was due to the inflammation of her gums and her tongue. Dr. Nguyen did a percussion test, i.e. tapping on the tooth, and probed in her mouth, measuring the tooth.

5. Dr. Nguyen did not do any vitality testing and did not perform any periodontal charting of the teeth.

6. J.N. did not want Dr. Nguyen to take any additional x-rays since she had brought a full set of x-rays with her. Dr. Nguyen felt that the set of x-rays that J.N. provided was sufficient for him to be able to treat J.N. for her fractured

   tooth. The x-rays did not show the fracture, but fractures may not necessarily show up on an x-ray.

7. Dr. Nguyen told J.N. that she may or may not need a root canal.

8. Dr. Nguyen discussed treatment options with J.N., and she decided to have a three-quarter crown on one tooth and an

   overlay on the other tooth. He removed all of the fracture of tooth 30 and made impressions for the three-quarter crown and inlay, which were sent to the laboratory for the fabrication of the crown and inlay. She left the office with temporary teeth on teeth 30 and 31.

9. Dr. Nguyen made the following progress note concerning his treatment of J.N. on April 17, 2002:

   pt came in w/ fmx from another DDS. Dr. Richardt in Bonita. Both 30 & 31 have very large old fractured decay amalgam. Both lingual cusps #30 fractured to gingival line. Complaint of "uncomfortable." #30 prep for crown / 3/4 crown. #31 prep for MOB onlay. Composite provisional.

   
   

10. A few days later, J.N. called Dr. Nguyen's office complaining of a lot of pain. J.N. was given a prescription for penicillin and Tylenol No. 3.

11. On April 26, 2002, J.N. returned to Dr. Nguyen's office complaining of pain. She had taken the prescribed pain medication prior to her visit so that it was difficult for

    Dr. Nguyen to assess the pain. Dr. Nguyen made an adjustment to her bite and told her that if the pain continued that he would refer her to an endodontist. Dr. Nguyen asked J.N. to stop taking the pain medication and return to his office after 5 p.m. that day so that he could accurately assess her pain without having the pain medication masking the pain. She did not return to his office.

12. On May 1, 2002, J.N. went to see another dentist, who referred J.N. to Juan Pablo Rodriguez, D.D.S. (Dr. Rodriquez), who specializes in root canals.

13. J.N. complained to Dr. Rodriguez that she was having pain in tooth 30 and it was waking her up at night. Tooth 31 did not respond to cold. Dr. Rodriguez diagnosed J.N. with irreversible pulpitis for tooth 30, which means that the nerve of the tooth had inflammation, and that the nerve would not get better, but would die. He determined that tooth 31 was non- vital or necrotic.

14. On May 8, 2002, J.N. called Dr. Nguyen's office and stated that she wanted to have her tooth extracted rather than have to pay for a root canal. She indicated she wanted her money back. The next day, J.N. came to Dr. Nguyen's office demanding her money back and wanting her x-rays. Dr. Nguyen kept the original x-rays and provided J.N. a copy of the x-rays which she had furnished him on her initial visit.

15. J.N. had paid Dr. Nguyen a portion of his fees by credit card, and a portion of his fees had been paid by J.N.'s dental insurance plan. Dr. Nguyen refunded all fees paid to him.

16. Melvin A. Platt, D.D.S., testified as an expert witness for the Department. It is Dr. Platt's opinion that Dr. Nguyen, in relation to his treatment of J.N., did not

    practice dentistry within the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. His opinion is based on

    Dr. Nguyen's failure to determine the need for a root canal prior to preparing the teeth for restoration. According to Dr. Platt, Dr. Nguyen should haven taken an x-ray of teeth 30 and 31, performed vitality testing, and done periodontal charting.

17. Dr. Platt was also of the opinion that the dental records maintained by Dr. Nguyen regarding his care of J.N. failed to justify his course of treatment. According to Dr. Platt there was nothing in the progress notes to justify

    going ahead with the restorations without any prior testing of any kind.

18. Dr. Nguyen's license has previously been disciplined by the Department for failing to include in an advertisement the statement required by Section 456.062, Florida Statutes (1999). Department of Health v. Luyen Nguyen, D.D.S., Case No. 2000- 01848 (Dept. of Health 2002).

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

20. 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 & Co., 670 So. 2d 932 (Fla. 1996).

21. In Count I of the Administrative Complaint, the Department alleged that Dr. Nguyen violated Subsection 466.028(1)(x), Florida Statutes, by relying "on one-year old x-rays from another treating dentist to treat Patient J.N., without utilizing additional diagnostic protocols, even though

    Patient J.N. presented with pain" and by initiating "restorative procedures on Patient J.N., who presented with pain, without first determining the need for root canal therapy."

22. In Count II of the Administrative Complaint, the Department alleged that Dr. Nguyen violated Subsection 466.028(1)(m), Florida Statutes, by failing "to maintain dental records justifying his course of treatment for Patient J.N., in that Respondent failed to document current, full-series x-rays for Patient J.N." and by failing "to document additional diagnostic protocols, including, but not limited to pulp testing of the afflicted teeth, study models, and/or test to determine Patient J.N.'s tolerance to hot and cold."

    23. Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes, provide:

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

* * *

(m) Failing to keep written dental records and medical history records justifying the course of the treatment of the patient including, but not limited to, patient histories, examination results, test results, and x rays, if 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. For purposes of this paragraph, it shall be legally presumed that a dentist is not guilty of incompetence or negligence by declining to treat an individual if, in the dentist's professional judgment, the dentist or a member of her or his clinical staff is not qualified by training and experience, or the dentist's treatment facility is not clinically satisfactory or properly equipped to treat the unique characteristics and health status of the dental patient, provided the dentist refers the patient to a qualified dentist or facility for appropriate treatment. . . .

1. The Department has failed to establish that Dr. Nguyen violated Subsection 466.028(1)(x), Florida Statutes, by failing to take x-rays of J.N.'s teeth 30 and 31. The patient came to his office with a full set of x-rays which had been taken by another dentist approximately a year before and refused to let

   Dr. Nguyen take x-rays of her teeth. Dr. Nguyen could not perform the x-rays without the patient's consent.

2. The Department did establish by clear and convincing evidence that Dr. Nguyen did not perform a vitality test. Such a test would be required as a minimum standard of care. Additionally, the Department did establish by clear and convincing evidence that prior to doing restorative work,

   Dr. Nguyen failed to determine whether J.N. needed to have a root canal. The minimum standard of care required that he make this determination prior to doing the restorative work. Thus, the Department has established by clear and convincing evidence that Dr. Nguyen violated Subsection 466.028(1)(x), Florida Statutes, by failing to meet the minimum standards of performance in diagnosis and treatment when measured against general prevailing peer performance.

3. The Department has failed to establish by clear and convincing evidence that Dr. Nguyen violated Subsection 466.028(1)(m), Florida Statutes. The dental records contained J.N.'s patient history. No x-rays were taken by Dr. Nguyen so none could be included in the records; however, the x-rays that

   J.N. gave to Dr. Nguyen and upon which he relied were kept by Dr. Nguyen and were part of J.N.'s dental records. Dr. Nguyen did examine J.N.'s teeth and recorded in the progress notes that teeth 30 and 31 had "very large old fractured decay amalgam" and

   that "[b]oth lingual cusps #30 were fractured to the gingival line." Although Dr. Nguyen did not indicate that he had performed a percussion test, the pain was not a throbbing pain and was being caused by the cracked tooth rubbing against J.N.'s tongue. Dr. Nguyen did record that tooth 30 was "uncomfortable." Dr. Nguyen indicated in his progress notes that he had prepared tooth 30 for a three-quarter crown and tooth 31 for an overlay. When J.N. returned to Dr. Nguyen's office on April 26, 2002, Dr. Nguyen indicated in his progress notes that he adjusted J.N.'s bite and that if the pain continued he would refer J.N. to an endodontist. Dr. Nguyen's dental records for J.N. meet the statutory requirements set forth in Subsection 466.028(1)(m), Florida Statutes.

4. Florida Administrative Code Rule 64B5-13.005, in effect at the time of the incident at issue, provided that "[u]nless relevant mitigating factors are demonstrated the Board shall always impose a reprimand and an administrative fine not to exceed $3,000.00 per count" when disciplining a dentist for a violation of Subsection 466.028(1)(x), Florida Statutes. The reprimand and fine are in addition to imposing "a period of probation, restriction of practice, and/or suspension."

5. Pursuant to Florida Administrative Code Rule 64B5- 13.005(4), in effect at the time of the incident at issue, aggravating and mitigating factors which may be considered are:

   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 detrimental 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 the 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.

       
       

6. In Petitioner's Proposed Recommended Order, the Department correctly sets forth the following reasons for

mitigation:

In the present case, while the event is

significant, it was not severe nor exacerbated by Respondent's actions; there was and is no danger to the public; it was a single incident; although Respondent has been previously disciplined, it was not for a similar offense; actual damages were not

significant and all money paid was refunded; and J.N. was a difficult patient with which to deal.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that Luyen Nguyen, D.D.S., did not violate Subsection 466.028(1)(m), Florida Statutes, but did violate Subsection 466.028(1)(x), Florida Statutes; imposing a $1,000 administrative fine; and issuing a reprimand.

DONE AND ENTERED this 4th day of March, 2004, 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 4th day of March, 2004.

ENDNOTE

1/ Unless otherwise specified all references to the Florida Statutes are to the 2001 version.

COPIES FURNISHED:

Michael W. Bond, Esquire 1815 Monte Vista Street Fort Myers, Florida 33901

Irving Levine, Esquire Department of Health

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

R. S. Power, Agency Clerk Department of Health

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

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

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: 03-004034PL

Orders for Case No: 03-004034PL