STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )
Petitioner, )
)
vs. ) Case No. 07-1164PL
)
JOSEPH GAETA, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on October 21 and 22, 2008. The predecessor Administrative Law Judge William F. Quattlebaum conducted the first day of final hearing, which took place on October 23, 2007.
APPEARANCES
For Petitioner: Wayne Mitchell
Assistant General Counsel Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
For Respondent: Max R. Price
Law Offices of Max R. Price, P.A. 6701 Sunset Drive, Suite 104
Miami, Florida 33143
STATEMENT OF THE ISSUES
The issues are whether Respondent is guilty of recordkeeping violations of Section 466.028(1)(m), Florida Statutes, and standard-of-care violations of Section 466.028(1)(x), Florida Statutes, in connection with bridgework, implants, and root canals that he performed on a single dental patient.
PRELIMINARY STATEMENT
The allegations of the Administrative Complaint, which is dated February 28, 2005, require detailed rendering because of several disputes concerning the scope of the allegations. The Administrative Complaint comprises three sets of paired counts: one count in each pair pertains to recordkeeping and the other count pertains to the applicable standard of care. The Administrative Complaint contains three headings, which address bridgework (Counts I and II; referred to as the Bridgework Counts), implants (Counts III and IV; referred to as the Implant Counts), and root canals (Counts V and VI; referred to as the Root Canal Counts).
The first seven paragraphs of the Administrative Complaint are introductory. The first three paragraphs are entirely routine matters pertaining largely to jurisdiction and are not at issue in this case.
The fourth paragraph provides a synopses of the allegations. It alleges that Respondent provided dental care to
W. C. from mid-1995 through February 1, 2002. This paragraph alleges that Respondent repeatedly attempted to place an upper bridge and a lower bridge, each of which required at least two replacements. This paragraph concludes by stating that Respondent also "attempted root canal, implant surgery, and crown seating treatments which either failed or were inappropriate for the teeth being treated "
The only dates contained in the fourth paragraph are a seven-year span, during which Respondent performed many procedures on W. C. The paragraph mentions two or three placements of an upper and lower bridge, but does not state that these actions are grounds for discipline. The paragraph alleges that Respondent attempted (more likely meaning is "performed") a root canal, implant surgery, and crown-seatings that "either failed or were inappropriate." Because not all failures are grounds for discipline, this disjunctive pleading leaves it unstated that the failed root canal, for example, is a ground for discipline. Moreover, the fourth paragraph does not identify which root canal, implant, or crown-seating is at issue. These generalities, which would be critical deficiencies in operative pleadings, reveal the more modest purpose of the fourth paragraph, which is to provide information as both
background and summation of the operative allegations that follow the first seven paragraphs.
Paragraphs five through seven of the Administrative Complaint are different from paragraph four. Paragraph five states only that, on January 3[1], 1996, W. C. presented to Respondent for a routine exam and cleaning, and Respondent performed an inter-oral exam, including x-rays. Paragraph six adds that, during that visit, Respondent orally informed W. C. that he needed a new upper left bridge at teeth numbers 2-7 and a new lower right bridge at teeth numbers 19-21, but failed to present any written treatment plans with explanations of risks and benefits or alternate treatment options or obtain informed consent from W. C. The seventh paragraph states that, during October and November 1996, Respondent completed the initial seating of these bridges, but from May 30, 1997, through the end of 1997, W. C. experienced continuous pain, discomfort, and bridgework loosening. The seventh paragraph concludes that Respondent removed and reseated the bridges at least three times during the last six months of 1997.
Paragraph five identifies an office visit, but no act or omission on which discipline is based in this case. Paragraph six implies that discipline may be based on Respondent's alleged failure to present a written treatment plan with risks and benefits and alternate treatments and a failure to obtain
informed consent. Curing the deficiencies of paragraph four by providing a date and specific omissions, paragraph six--if an operative allegation--would suffer from vagueness in identifying the violation: recordkeeping or standard of care. As noted below in the Conclusions of Law, the recordkeeping requirements do not require the presentation of written materials to a patient or the obtaining of informed consent from a patient, so paragraph six does not seem to allege a recordkeeping violation. If intended to state a standard-of-care violation, paragraph six would fail because it does not allege these omissions as such, nor are the matters mentioned in the sixth paragraph included in the standard-of-care counts detailed below.
Like paragraph six, paragraph seven is sufficiently detailed as to timeframe of the alleged acts, but, like paragraph six, paragraph seven fails to allege that these acts violate the standard of care, nor are they included in the standard-of-care counts detailed below.
The most reasonable reading of the Administrative Complaint reveals that the operative allegations start no earlier than 1998 and end in 2002; this will be referred to below as the operative timeframe. Consistent with the subheading described below (except for an irrelevant discrepancy about the end of the timeframe--2001 or 2002), paragraphs 8-15 describe detailed acts and omissions with specific dates, from
July 1998 to July 2002 (with one reference to a later date merely to describe the alleged consequence of Respondent's work, as noted below). Limiting the operative allegations to this timeframe is reinforced by the references, throughout the actual counts, to statutes with dates of 1998 through 2002.
Count I, which incorporates paragraphs 1-15, predicates the alleged violation on acts and omissions described in detail in paragraphs 8-15. Although the vagueness of paragraph six permits an interpretation that would extend the recordkeeping Bridgework Count to the January 31, 1996 visit, this interpretation is less reasonable given the role of the heading that follows the first eight paragraphs and the indisputable restriction of the standard-of-care Bridgework Count to July 1998 to July 2002.
Immediately following the first heading, "1998 & 2001 Bridge Replacement Work," the operative allegations of Counts I and II commence. Paragraph eight of Counts I and II states that, during the first half of 1998, Respondent sectioned the lower left bridge and performed root canal treatments for periodontally compromised teeth numbers 20 and 21. Paragraph nine states that, from mid-July though September 1998, Respondent re-performed root canal therapy for W. C.'s tooth number 20 and placed implants to try to re-cement the lower left bridge using the same abutment teeth in long-span pontics
between teeth numbers 18-21, but the bridgework failed within one year, as the previous bridgework had failed.
Paragraph 10 of Counts I and II states that the bridge seated in the upper right quadrant extended from an implant distal at tooth number 2 to natural teeth numbers 6-8. In October 1999 and February 2000, Respondent allegedly placed implants at teeth numbers 3-5 to better anchor this bridge. Counts I and II allege that the bridge continued to come loose and required multiple refittings.
Paragraph 11 of Counts I and II states that the prevailing standard of dental care in performing bridgework requires a dentist to perform adequate diagnosis to determine the optimal design and appropriate use of a bridge and to properly make, seat, and fit such a device to strong abutment teeth.
Respondent allegedly used W. C.'s teeth numbers 3, 5, and 19, 20, and 21 as abutment teeth for a bridge without determining from a comprehensive examination whether these teeth were compromised and further weakened by periodontal problems in
W. C.'s mouth. Respondent allegedly did not perform complete examinations, including full mouth x-rays, study models of
W. C.'s mouth, periodontal exams, and depth charting to support a comprehensive treatment plan for using an upper left quadrant long span and an upper right quadrant fixed bridge in W. C.'s mouth.
Paragraph 12 of Counts I and II states that, during the multiple preparations and re-seating of the upper bridge between teeth numbers 18-21 and the lower bridge between teeth numbers
3-5 (actually, this is a harmless error that reverses the locations of the upper right bridge and lower left bridge), Respondent failed to perform an `adequate comprehensive diagnostic evaluation. Respondent's treatment notes for W. C.'s exams allegedly fail to document comprehensive radiographs, study models or impressions to aid in fabrication of a bridge, and a periodontal exam with depth charting and general teeth charting. Additionally, Respondent allegedly failed to document informed consent with an explanation of treatment alternatives and possible treatment alternatives.
Paragraph 13 of Counts I and II states that, by early 2001, Respondent determined that his treatment plans were failing due to the existence of periodontally compromised teeth numbers 19, 20, and 21 (lower left) and 3 and 5 (upper right), which were the primary abutment teeth in Respondent's bridgework.
Respondent allegedly modified the treatment plan to include extraction of the compromised teeth, renewed root canal treatments for the abutment teeth, surgical placement of implants for securing new bridges, and the seating of numerous crowns on the remaining teeth. Respondent allegedly undertook these modifications to the treatment plan without documenting
adequate diagnostic exam findings and without presenting treatment options or obtaining informed consent from W. C.
Paragraph 14 of Counts I and II states that, from February 2001 through July 8, 2002, Respondent undertook numerous remedial treatments, including root canals on teeth numbers 6, 8, 20, 21, and 22, attempting to use the compromised teeth as natural abutment teeth for reseating the bridges, which continued to fail. By August 22, 2001, Respondent allegedly had extracted all of the periodontally compromised abutment teeth (3 and 5 in the upper right and 20 and 21 in the lower left), placed surgical implants at these sites, and attempted without success to remake and anchor the same bridge designs to the remaining abutment teeth 2 and 6 and 18, 19, and 22.
Paragraph 15 of Counts I and II states that, during the 2001 treatment visits, Respondent did not take comprehensive x-rays of teeth numbers 2 and 6 and 18, 19, and 22 to assess
satisfactory seating of the new bridges and did not document any radiographic or other diagnostic findings to support the use of these teeth as natural abutment teeth with enough structure to support a bridge. Respondent also allegedly failed to document periodontal exam results with depth and teeth charting to support or justify his overall regimen. By 2003, the bridgework allegedly failed again, and a subsequent dentist determined that tooth 6 was "hopeless" and had to be extracted.
Count I realleges the preceding allegations and states that Section 466.028(1)(m), Florida Statutes, and Florida Administrative Code Rule 64B5-17.002 authorize discipline for failing to keep written dental records and medical history justifying the course of treatment of the patient, including patient histories, examination results, test results, and any
x-rays taken. Count I states that Respondent's dental records fail to justify the course of treatment
in that the Respondent did not record an overall comprehensive written diagnosis, periodontal charting or treatment plan; failed to document whether teeth numbers 3,
5 and 19, 20, 21 were appropriate abutment teeth for a bridge and later for supporting bridge replacements; and failed to obtain adequate treatment radiographs or study models prior to any of the treatment visits for Patient W. C. The Respondent also failed to document presenting treatment options to or obtaining informed consent from Patient W. C. prior to initiating any of the treatment provided.
Count I concludes that Respondent thus violated Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records justifying the course of treatment.
Count II realleges the general allegations and states that Section 466.028(1)(x), Florida Statutes, authorizes discipline for failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including the undertaking of
diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice.
Count II alleges that Respondent was negligent and failed to meet the Applicable Standard of Care in diagnosing and treating W. C. because:
the Respondent failed to provide a comprehensive diagnosis with adequate radiographs, study models or impressions, periodontal charting, and a comprehensive treatment plan prior to initiating bridge placements in Patient W. C.'s mouth from 1998 through 2002; and
the Respondent used Patient W. C.'s teeth numbers 3, 5, 19, 20, 21 as abutment teeth for a bridge, and later used 2, 6, 18, 19, 22 for bridge replacements without a comprehensive examination, including adequate x-rays, periodontal charting, and study models to aid in determining Patient
W. C.'s overall dental condition and to support the use of these teeth as natural abutment teeth for the replacement bridges. (Petitioner withdrew an additional allegation that Respondent failed to properly try in the bridges before each was permanently seated in 1998, 2001, and 2002-- each of which failed).
The next heading is "1999-2001 Implant Surgery Efforts," which marks the commencement of Counts III and IV. Paragraph 23 of Counts III and IV alleges that, during the extended course of bridge-seating efforts, Respondent tried to place surgical implants in the lower left and upper right quadrants to better anchor the bridgeworks. In October 1999 and February 2000, Respondent allegedly placed implants at teeth site numbers 3-5,
after extraction of compromised teeth, in order to better anchor this bridge. However, these implants allegedly failed several times and had to be redone along with the failed bridgework.
Paragraph 24 of Counts III and IV alleges that, on October 4, 1999, Respondent's treatment notes indicate that he performed a sinus lift in the upper quadrant, but the notes
contain no diagnostic exam results or description of a condition necessitating such a procedure, nor was the procedure presented in a treatment plan to W. C. Counts III and IV allege that there was no informed consent in any treatment records.
Paragraph 25 of Counts III and IV alleges that Respondent surgically opened the upper sinus and grafted bone material in the upper jaw through the sinus. Counts III and IV allege that Respondent used IV sedation, but the records lack any description of anaesthesia management or monitoring during the procedure. Counts III and IV allege that, during the procedure, Respondent punctured W. C.'s sinus cavity, causing heavy bleeding and requiring W. C. to seek treatment at a local emergency room.
Paragraph 26 of Counts III and IV alleges that, on February 7, 2000, Respondent replaced implants at teeth sites 3 and 5, and, on March 27, 2000, Respondent's treatment notes state only that the implants had to be removed.
Paragraph 27 of Counts III and IV alleges that, on February 19, 2001, Respondent's treatment notes state that he performed a bone grafting procedure on an implant in the lower left quadrant around tooth sites 19, 20, and 21, but the notes failed to state why or what type of bone substance was used or the outcome. The notes allegedly fail to indicate that Respondent obtained W. C.'s informed consent.
Paragraph 28 of Counts III and IV alleges that, on
August 20, 2001, Respondent's treatment notes state that he had to remove the implants placed at tooth sites 20 and 21 due to an infection associated with the implants. Counts III and IV allege that no other diagnostic or prognostic notes are included in the record for that day of treatment.
Paragraph 29 of Counts III and IV alleges that Respondent's treatment notes fail to justify any of the treatments because there are no diagnostic or exam findings to support placement or later removal of the implants, no underlying pathology, no description of the procedures used, including the size and gauge of the implants, no description of the IV sedation management protocol used, and no description of W. C.'s condition that required multiple removal of the failed implants. The notes allegedly fail to indicate that Respondent obtained W. C.'s informed consent.
Paragraph 30 of Counts III and IV alleges that a dentist who performs dental or implant surgery fails to meet the minimum standards of performance in diagnosis and treatment if informed consent is not obtained prior to such surgery. The prevailing standard of care in blade implant surgery allegedly requires a dentist to determine, prior to surgery, that adequate bone structure exists to support implants to avoid their failure and the type of sinus injury that W. C. suffered in October 1999.
Counts III and IV allege that, in addition to standard x-rays, a surgeon "should" order dental scans, periapical x-rays, CAT scans or tomography to make the necessary determination prior to surgery. Counts III and IV allege that Respondent did not pursue or fully interpret comprehensive diagnostic options, including periodontal depth charting and bone density determinations at implant sites prior to proceeding with invasive implant restorative surgery, and his implant efforts failed.
Count III realleges the preceding allegations and states that Section 466.028(1)(m), Florida Statutes, and Florida Administrative Code Rule 64B5-17.002 authorize discipline for failing to keep the required dental records. Count III states that Respondent's dental records fail to justify the course of treatment because Respondent
did not perform or produce adequate x-rays and other diagnostic scan results prior to performing implant surgery The
Respondent also failed to record that he fully discussed with and/or obtained informed consent from Patient W. C. to proceed with restorative implant surgery, after fully disclosing known complications with persons experiencing periodontal problems or extreme bone loss. . . . .
* * *
The Respondent also failed to document any periodontal exam results, depth or teeth charting, or a comprehensive treatment plan for any of the implant procedures. The Respondent's treatment notes do not describe diagnostic or exam findings to support placement or subsequent removal of the implants, the underlying pathology, a description of the procedures employed including size and gauge of the implants, a description of the IV sedation management protocol employed, and no description of the patient's condition requiring multiple removal of the failed implants.
Count III concludes that Respondent thus violated Section 466.028(1)(m), Florida Statutes, by failing to keep written dental and medical history records justifying the course of treatment of the patient.
Count IV realleges the preceding allegations and states that Section 466.028(1)(x), Florida Statutes, authorizes discipline for failing to meet the applicable standard of care.
Count IV alleges that Respondent was negligent and failed to meet the applicable standard of care in diagnosing and treating W. C. because
the Respondent failed to provide an adequate pre-operative diagnosis of Patient
W. C.'s suitability for implant placements by failing to note whether adequate bone structure existed in the upper right and lower left quadrants to support implant placements prior to initiating invasive implant treatment on Patient W. C.;
the Respondent placed implants without adequate bone structure to support the implants, causing the implant efforts to fail numerous times between 1999-2001, both at sites 3, 5 and at sites 20, 21; the Respondent also damaged Patient W. C.'s sinus cavity during one of these procedures in October 1999, ultimately resulting in pain and injury in the upper right side of Patient W. C.'s mouth; and
the Respondent did not adequately interpret or produce comprehensive x-rays and other diagnostic scan results prior to performing implant surgery dental procedures on the patient; the Respondent also failed to record that he discussed with and/or obtained informed consent from Patient W. C. to proceed with restorative implant surgery, after fully disclosing known complications of implant surgery with persons experiencing bone loss or periodontal problems.
The final heading is "1999-2000 Endodontic Treatment Efforts," which marks the commencement of Counts V and VI. Paragraph 40 of Counts V and VI alleges that, during the extended course of Respondent's bridge-seating efforts, he tried to salvage several abutment teeth by performing root canals, so that he could continue to use the compromised teeth as natural abutment teeth. However, the compromised teeth allegedly failed and had to be extracted due to their unsuitability.
Paragraph 41 of Counts V and VI alleges that Respondent's treatment notes document that, during the first half of July 1998, Respondent sectioned the lower left bridge and performed root canals for teeth numbers 20 and 21.
Paragraph 42 of Counts V and VI alleges that, from mid-July through September 1998, Respondent allegedly redid the root canal for tooth number 21. Counts V and VI allege that, from February 2001 through July 8, 2002, Respondent performed numerous remedial treatments, including root canals, on teeth numbers 6, 8, 20, 21, and 22, still trying to use compromised teeth as natural abutment teeth for reseated bridges that continued to fail.
Paragraph 43 of Counts V and VI alleges that, by August 22, 2001, Respondent had extracted all of the periodontally compromised teeth (numbers 3, 5, 20, and 21), on which he had previously attempted root canals, and had placed surgical implants, unsuccessfully trying to remake and anchor the same bridge designs to the remaining abutment teeth numbers 2, 6,
18-19, and 22.
Paragraph 44 of Counts V and VI alleges that, during the 1998-2002 treatment visits involving root canals, Respondent failed to take comprehensive x-rays of teeth numbers 2-6 and 18-22 and failed to note an radiographic or other diagnostic findings to support the use of these teeth as natural abutment
teeth with enough structure to support a bridge. Respondent allegedly failed to document periodontal exam results with depth and tooth charting to support or justify his overall regimen and failed to obtain informed consent or discuss alternate treatment options with W. C.
Paragraph 45 of Counts V and VI alleges that Respondent's post-operative radiographs show that canals for treated teeth numbers 20 and 21 were inadequately shaped and improperly filled. The canal filling for tooth number 20 allegedly showed poor apical (root end) control of endodontic filling with an extension of the filling material into the adjacent bone structure beyond the root.
Paragraph 46 of Counts V and VI alleges that the canal filling for tooth number 6 allegedly showed an inadequate amount of canal filling and excessively long and wide retaining post for a core and crown cap. By 2003, the bridgework allegedly failed again, and a subsequent dentist had to extract tooth number 6.
Count V realleges all but the allegations of the Implant Counts and states that Section 466.028(1)(m), Florida Statutes, and Florida Administrative Code Rule 64B5-17.002 authorize discipline for failing to keep the required dental records.
Count V alleges that Respondent's dental records fail to justify the course of treatment because
[and c)] [t]he Respondent did not include any diagnostic exam notes, record any symptoms, or include adequate radiographs in the treatment records for Patient W. C. to support the need for performing root canal procedures on teeth numbers [6,] 20, 21 of Patient W. C. in 1998, 2001, and through July 2002; and
[and d)] [t]here were also no periodontal exam results with depth and teeth charting documented by the Respondent to support or justify his overall regimen, and there was no indication that informed consent along with alternate treatment options was ever presented to Patient W. C.
Count V concludes that Respondent thus violated Section 466.0128(1)(m), Florida Statutes, by failing to keep written dental and medical history records justifying the course of treatment.
Count VI realleges all but the allegations of the Implant Counts and states that Section 466.028(1)(x), Florida Statutes, authorizes discipline for failing to meet the applicable standard of care.
Count VI alleges that Respondent was negligent and failed to meet the applicable standard of care because
[and c)] the Respondent performed root canal procedures on teeth numbers [6,] 20,
21 of Patient W. C. in 1998, 1999 and extending through July 2001, but did not make any diagnostic notes, record any symptoms, or include adequate radiographs in the treatment records for Patient W. C. to support the need for these procedures;
the Respondent performed root canal procedures on teeth numbers 20, 21 of Patient W. C. in 1998, 1999 and extending through July 2001, with canals which were inadequately shaped and improperly filled; the canal filling for tooth number 20 showed poor apical (root end) control of endodontic filling with an extension of the filling material into the adjacent bone structure beyond the root; and
d) the Respondent performed root canal procedures on tooth number 6 of Patient
W. C. in 1998, 1999 and extending through July 2001, but the canal filling for tooth number 6 showed an inadequate amount of canal filling used, and a retaining post used in the canal for a core and crown cap was excessively long and too wide to properly fit tooth number 6. By 2003, tooth number 6 was deemed hopeless and required extraction by a subsequent dentist.
The court reporter filed the transcript on February 2, 2009. The witnesses and exhibits are identified in the transcript. The parties filed proposed recommended orders on March 19, 2009.
On March 19, 2009, Respondent filed a Motion to Strike Dr. Hal Haering's Expert Opinions Which Exceeded His Deposition Testimony. This motion is denied, as are any and all still-
pending motions. Additionally, all objections raised during the depositions are overruled as to questions whose responses provide the bases for findings set forth below.
FINDINGS OF FACT
Background
At all material times, Respondent has been a licensed dentist, holding license number DN 11262. He is not Board- certified in any areas recognized by the American Dental Association, but he is a fellow, associate fellow, or diplomate with four associations, not recognized by the American Dental Association, devoted to dental implants.
Respondent has been licensed to practice dentistry for over 20 years. At all material times, Respondent practiced in Port Charlotte. At one time, his practice grew to six offices employing 13 dentists and 80 employees. During that timeframe, Respondent performed about 100 crowns and bridges per month, endodontics (which includes root canals) on 7-10 teeth per month, and limited periodontics, including 20-30 implants and
2-3 sinus lifts per month.
Respondent has been disciplined previously. In Nebraska, where he was licensed to practice dentistry, Respondent's license was suspended in 1989 upon his conviction for a felony for obtaining a controlled substance by fraud in writing one or more prescriptions, ostensibly for his father, so that Respondent could satisfy his chemical dependency. The Board of Dentistry consequently imposed discipline the following
year for this offense (or the suspension arising from it), suspended Respondent's Florida license for one year, and required him to attend the PRN program for impaired practitioners.
In February 1995, the Board of Dentistry imposed discipline against Respondent for his violation of the applicable standard of care by failing to diagnose periodontitis prior to seating crowns. The Board imposed a $3000 administrative fine and required Respondent to attend the PRN program and complete 35 remedial continuing education hours.
Two years later, the Board of Dentistry imposed discipline against Respondent for his failure to pay the fine. The Board imposed a $500 administrative fine and issued a reprimand. In February 2002, the Board of Dentistry imposed discipline against Respondent for his violation of the applicable standard-of-care and recordkeeping requirements by failing to diagnose and treat periodontitis or recording required exams prior to seating a bridge and crowns and failing to document examinations and test results. The Board imposed a $6000 administrative fine and required Respondent to attend 60 hours of continuing education.
In December 1993, evidently in connection with the acquisition of an existing practice, Respondent acquired W. C. as a patient. W. C. was a cost-conscious, aging man who wanted to preserve his natural teeth. Respondent treated him for about
ten years and often acceded to W. C.'s requests for reduced pricing for specific procedures. The relationship ended only when Respondent insisted that W. C. pay off a balance that he had agreed to pay. Over the course of their professional relationship, which included about 120 visits, Respondent wrote off $10,000 in charges in an effort to help W. C. control costs.
Likely due to pricing sensitivity, W. C. was an episodic patient, rather than a regular patient. This means that W. C. visited Respondent only for relief from particular problems, rather than appearing regularly for cleaning, x-rays, and maintenance. Sometimes W. C.'s refusal to visit the dentist except when he had a problem and his desire to control costs conflicted with his dental needs, which at times became fairly extensive.
All of the issues in this case involve, directly or indirectly, Respondent's treatment of two bridges: one in the upper right quadrant and one in the lower left quadrant. The issues require findings addressing the endodontic (root canal) and implant issues, but these issues arose in the larger context of the bridgework issues that W. C. presented. When Respondent acquired W. C., he found bridges already in place in these two locations.
A bridge is a fixed prosthesis that supports missing teeth between crowns. Abutment teeth are the retainers; missing
teeth are the pontics (or false teeth). The bridge permits the patient to replace missing teeth without having to take them out overnight. Bridges are intended to remain in place for at least five years, although some may remain in place for 20 years.
Bridges may be placed temporarily or "permanently." Although some dentists use plastic bridges for temporary placements, Respondent did not do so with W. C. References below to temporary bridges mean that Respondent used temporary cement with no intent, for various reasons, of "permanently" seating the bridge at that time.
At the start of the operative timeframe, W. C.'s lower left bridge supplied a pontic for missing tooth number 19, tooth number 17 was missing, and tooth number 18 was a blade implant. On the other side of the pontic were teeth numbers 20 and 21. The presence of a blade implant confirms the age of the lower left bridge, as this type of implant was not typically in use after the 1980s.
At the start of the operative timeframe, the upper right bridge supplied pontics for missing teeth numbers 3, 4, and 5. Prior to 1996, a predecessor to this bridge used natural teeth numbers 2 and 6 as abutments. However, in early 1996, Respondent extracted tooth number 2, replaced it with an implant, and installed a new bridge that used the implant at the site of tooth number 2 and teeth 6 and 7 as abutments. In May
1997, when W. C. returned with a loose upper right bridge, Respondent's notes state that he advised W. C. that he needed an implant and performed only palliative treatment. In June 1997, Respondent performed a root canal on tooth number 6, installed a temporary bridge, and later installed a new permanent bridge in the upper right quadrant. Petitioner's expert witness,
Dr. Harold Haering, testified that, by July 24, 1997, Respondent extended this bridge to abutment tooth number 8. This is borne out by the note for that date, as well as the notes for
October 27, 1997, and July 23, 1998.
Some more remote history is available for both these bridges. The record contains dental records for W. C. as far back as September 1974, at which time he had periodontal surgery for teeth numbers 3 through 8. In November 1974, W. C. received a bridge for teeth numbers 4 through 7--a precursor of the upper right bridge at issue in this case. Five years later, the dentist treating W. C. recommended that the upper right bridge be remade after periodontal surgery to tooth number 5. He placed a new upper right bridge in August 1979 and performed a root canal on tooth number 4 in May 1980. In April and May 1981, the dentist placed another bridge, although his notes prevent identifying where. In June 1982, after performing the root canal on tooth number 21, as noted above, the dentist removed the lower left bridge due to decay in tooth number 18.
The dentist continued to treat the teeth at the lower left bridge through 1982, removing and recementing the bridge as needed. In January 1983, the dentist discovered a cracked root in tooth number 4. He removed the upper right bridge and then extracted tooth number 4.
Likely, dental records are missing from the record for the next five years because, in mid-1988, the records restart with the removal of sutures at teeth numbers 2-5. The records note that this bridge still suffers from mobility. A few months later, the dentist had to remove the upper right bridge again and take new impressions. In mid-1989, the lower left bridge failed, as pontics at sites 18 and 19 separated. At this time, the dentist replaced the lower left bridge.
Respondent began to see W. C. in December 1993. Still prior to the operative timeframe, on February 15, 1995, after noting that the prognosis for tooth number 2 was guarded to hopeless, Respondent performed a root canal on this tooth. One year later, Respondent sectioned the upper right bridge and, as noted above, placed an implant at site number 2. In September 1996, Respondent prepared a bridge from teeth sites or numbers
2-7, using 2, 6, and 7 as abutments. After a couple of trials, Respondent cemented the permanent upper right bridge on November 5, 1996. The upper right bridge was rechecked for
looseness in May and June 1997, at which time Respondent removed
the bridge to perform a root canal on tooth number 6 and prepared a temporary upper right bridge. On July 24, 1997, Respondent prepared tooth number 8 for inclusion in the upper right bridge, which had previously stopped at tooth number 7. The temporary upper right bridge broke on August 6, 1997, at tooth number 6. A week later, Respondent tried in the permanent upper right bridge, but found it needed additional porcelain to the pontic area and took new bite impressions. His notes reflect that he would deliver the bridge after August 28, 1997. On September 3, 1997, Respondent had to send the upper right bridge back to the lab for more porcelain to the occlusal surface and recemented the temporary bridge, which had broken and presumably was repaired again. On October 10, 1997, Respondent cemented the permanent upper right bridge and adjusted it two weeks later.
On October 27, 1997, Respondent again recemented the upper right bridge, noting that he was going to submit to
W. C.'s insurer a request for pre-approval of a sinus lift in the upper right quadrant. This note states that Respondent was not going to permanently cement the upper right bridge (presumably, again) until he received a response from the insurer.
On January 6, 1998, W. C.'s temporary upper right bridge was loose, and Respondent recemented it. For the first
time in nearly nine years, based on the notes in the record, attention was also focused on the area of the lower left bridge. Respondent noted pockets of 4-5 mm at tooth number 20. Scaling removed a large seed hull from the vicinity of teeth numbers 20 and 21.
On June 10, 1998, W. C. visited Respondent with complaints of sensitivity in the area of the lower left bridge. Respondent took periapical and bitewing x-rays of tooth number
These x-rays, which are part of the dental records, justify the root canal for tooth number 20 that Respondent proposed, if the tooth were to be saved for use in the bridge, which was
W. C.'s desire. Respondent's notes reflect that he scheduled a root canal for tooth number 20 on the next office visit.
A root canal may be called for due to irritation or infection in the tooth's pulp. To perform a root canal, a dentist drills a hole through the crown to access the tooth's pulp and nerves, removes the pulp and nerves for disinfection, fills the resulting cavity, and reseals the tooth. The intent is to clean out the area to the far end of the root, which is called the apex. Overinstrumentation of the cavity or overfilling of the cleaned-out cavity may result in fill escaping beyond the tooth's apex. Underinstrumentation of the cavity results in fill failing to reach to the tooth's apex.
On July 1, 1998, Respondent performed a root canal on tooth number 20. Respondent cut a hole in the crown that had already been placed on the tooth and proceeded to clean out and disinfect the interior of the tooth. After he was finished, he placed composite fill to reseal the tooth. Respondent completed the root canal in this single visit. His records adequately record the procedure.
Although Respondent had taken intraoperative x-rays that revealed the location of the endodontic cleaning
instrument--a file--relative to the apex of tooth number 20, the post-operative x-ray revealed that the fill extended beyond the apex of the tooth almost 3 mm. This means that the fill extended beyond the tooth and into the bony area surrounding the tooth.
Dr. Haering testified with evident conviction that the standard of care requires fill to the apex, but not beyond.
Dr. Haering testified that the standard of care permits the fill to end 0.5 mm short of the apex. He noted that the standard of care is not violated by an apical puff, in which cement may spiral out during application beyond these limits, but added that this case is not an example of an apical puff.
Dr. Haering explained that fill past the apex much more often than not will create sensitivity and will require correction. He testified that "every clinical exam"
administered to dental students requires zero extrusion of fill past the apex.
The dental records do not reveal any post-operative instructions. Dr. Haering stressed the importance of such instructions after this procedure, more than any other in this case, because of the likelihood of pain from the extrusion of the fill past the apex. Dr. Haering did not find fault with Respondent's practice of performing a root canal and "permanently" sealing it in a single visit.
One week later, W. C. returned to the office, complaining of pain at the site of tooth number 20. Respondent reopened the root canal and recleaned the area, although nothing suggests that he found it necessary to readdress the extent of the fill. Respondent applied xylocaine in the cavity and temporarily resealed it until W. C. could return on July 15 for further treatment. He also prescribed an antibiotic and a painkiller. During this visit on July 8, Respondent noted that the upper right bridge was loose.
On July 15, W. C. returned to the office and presented again with complaints of pain. However, the notes reveal a loosened lower left bridge, so it is unclear whether the recently treated tooth or the lower left bridge was causing the pain. Unable to remove the bridge, Respondent had to cut it out. He then removed the temporary fill for tooth number 20,
rechecked the tooth, and completed the endodontic treatment of this tooth by placing permanent fill in the cavity. During the same visit, while the bridge was off, Respondent also retreated a root canal previously done on tooth number 21, which appears not to have been retreated since it was originally done in 1982. Respondent temporarily sealed the cavity in tooth number 21 and permanently resealed it during an office visit two weeks later. Respondent prescribed an antibiotic and Motrin.
The Administrative Complaint alleges that Respondent inadequately shaped and improperly filled the cavity left after the root canal of tooth number 21. During the operative timeframe, Respondent did nothing more than clean out the existing cavity left by the previous root canal, and nothing suggests that Respondent extended the cavity in tooth number 21 beyond the tooth's apex or that he overfilled or underfilled this cavity.
Dr. Haering testified that a postoperative x-ray of tooth number 21 revealed that the fill in that cavity did not extend to the apex, although he fails to specify by how much the fill was short. He testified that the applicable standard of care requires filling to the apex. However, as noted above, when testifying about the root canal of tooth number 20,
Dr. Haering conceded that 0.5 mm short is acceptable, and a
dentist would always want to be short rather than long with the fill.
From an endodontic perspective, Petitioner has failed to make a standard-of-care case against Respondent for his retreatment of tooth number 21. Nothing suggests that he did any more than re-clean the preexisting cavity left after a root canal performed many years prior to the operative timeframe. Nothing suggests that Respondent underfilled the cavity, such as by leaving a gap, nor does clear and convincing evidence establish that leaving the fill short--by whatever amount it was short in tooth number 21--would violate the applicable standard of care.
From an endodontic perspective, the standard-of-care case as to tooth number 20 is closer. Respondent probably overinstrumented the cavity and clearly overfilled the area past the apex. However, post-operatively, Respondent treated the pain at the site during the July 8 visit when he removed the permanent fill, injected a painkiller, and placed temporary fill in the cavity, as well as prescribing an antibiotic and painkiller. Although Respondent still complained of pain at the follow-up visit on July 15, it is at least as likely that the cause was the loosening of the lower left bridge, given the fact that Respondent did not retreat the endodontics and the records reveal no more complaints of pain in this area in the ensuing
months. It appears that Respondent successfully treated tooth number 20, whose failure, years later, is more likely due to the failure of the blade implant at site 18 than to this root canal.
In light of these developments, as well as Dr. Haering's inconsistency as to whether a short fill
necessarily violates the standard of care, the testimony of Respondent's expert witness, Dr. Robert Fish, as to overfills is entitled to greater weight, at least as to whether an overfill or underfill is, in itself, a violation of the applicable standard of care. Dr. Fish properly stressed that teeth numbers
20 and 21 lasted for the duration of treatment and their ultimate failure was due to the loss of support of the aged blade implant at site number 18, not due to endodontic failure. This failure occurred two years and nine months after Respondent's endodontic work in July 1998. Dr. Fish's testimony is more persuasive as to the endodontics, although his testimony that tooth number 20 was not overfilled and that intentional overinstrumentation is sometimes required to ensure the removal of all infected material is not credited.
For these reasons set forth above, Petitioner failed to prove that Respondent violated the applicable standard of care in the root canal that he performed on tooth number 20.
Additionally, Petitioner has failed to prove a dental records violation with respect to these root canals. As
Dr. Fish testified, the pre-operative x-rays themselves justify the course of treatment. Contrary to the allegations, Respondent recorded symptoms of pain with respect to both teeth.
Contrary to Petitioner's contention, nothing in the record explains why Respondent would have to perform a periodontal exam before doing a root canal on tooth number 20 or revising a root canal on tooth number 21, especially when neither tooth failed until the old blade implant at site number 18--not, as alleged, placed by Respondent--failed nearly three years later. The preoperative x-rays showed adequate bone and no periodontal pathology to suggest any periodontal issues with these teeth prior to the endodontic work that Respondent did. The mobility that later developed in teeth numbers 20 and 21 was due to the ultimate failure of the blade implant at site number 18, which took place long after the endodontic work of Respondent on teeth numbers 20 and 21.
The only remaining issue concerning the Root Canal Counts is tooth number 6. As noted above, the allegations pertain to root canal procedures performed on tooth number 6 from 1998 through 2001 or 2002. Respondent performed no such procedures on tooth number 6 during these timeframes.
For these reasons, Petitioner has failed to prove the recordkeeping and standard-of-care Root Canal Counts.
On July 23, 1998, W. C. presented for a repair of the porcelain on tooth site number 3 in the temporary upper right bridge. Respondent also scheduled W. C. for preparation of a new bridge to replace the lower left bridge that he had had to cut off.
On the next office visit, which was July 29, Respondent took a final impression for a new lower left bridge. During this visit, he recemented the temporary bridge into place and, according to the notes, discussed shade and coping options with W. C. On August 4, Respondent recemented the temporary lower left bridge, but, on August 17, he had to return it to the lab after another try-in. Ten days later, Respondent had to recement the temporary lower left bridge. Three days later, on August 30, W. C. returned with the temporary bridge broken, and Respondent repaired it and recemented it. On September 15, 1998, the coping failed, and Respondent returned the lower left bridge with a new occlusal mounting. On October 9, 1998, Respondent cemented the permanent lower left bridge, which remained in place until its removal on February 19, 2001.
Dr. Fish testified persuasively that there were no violations of the standard of care during this period. He testified that the notes were sufficient for what was essentially revisionary treatment of pre-existing dentistry in the form of the placement of both bridges. The sectioning of
the lower left bridge at the time of the endodontics was merely reflective of the age of the bridge, according to Dr. Fish, and the sensitivity that required the root canal of 20 and retreatment of a pre-existing root canal in 21.
For the upper right quadrant, where Respondent had placed a permanent bridge in October 1997, he had to recement the bridge in January and again in July and then repair it later in July when a pontic broke. But there were no more problems with this bridge in 1998. It is true that in 1997, prior to the operative timeframe, this bridge suffered more failures, but the first two loosenings--in May and June 1997--appear to be related to problems with tooth number 6, prior to its root canal. Later problems with loosening and breakage involved the temporary, except for one recementing of the new permanent on October 27, 1997. Significantly, Respondent attached to the notes for this visit the need to obtain pre-approval from W. C.'s insurer for a sinus lift, which, as described below, is necessary to permit the placement of implants in an area where the bony area was insufficient for implants.
For the lower left quadrant, where Respondent had performed the root canal and root canal retreatment described above, there were two or three recementings of the temporary lower left bridge that Respondent placed after he had to remove the pre-existing lower left bridge to deal with teeth numbers 20
and 21. The additional work consisted of taking impressions for a new bridge, trying it on for size, and fixing breaks in the temporary lower left bridge--all ending with the placement of the permanent lower left bridge on October 9, 1998.
After delivering the permanent lower left bridge, the next time that W. C. visited Respondent's office was on February 19, 1999, for full-mouth x-rays and, three days later, for a periodontal screening. The x-rays revealed some caries under the upper right bridge. During the cleaning that took place on February 22, W. C. declined Perioguard, a medicated rinse for gum health. This is a relatively inexpensive way to facilitate healthy gums and suggests that W. C. may have been reluctant to assume his share of the responsibility for maintaining good dental health.
A note on March 23, 1999, states that W. C.'s physician recommends postponing treatment due to a heart problem. The postponed dental treatment is not specified, but it is the sinus lift, for which Respondent had sought pre- approval from the insurer. The sinus lift would require intravenous sedation, which, due to W. C.'s health problems, required clearance from his physician. Thus, this note implies that Respondent continued to recognize that the status quo was not sustainable for the upper right quadrant and that a more- lasting solution required a bone augmentation in order to permit
the placement of implants to better secure a fixture in the upper right area.
Almost as important as Respondent's recognition of the need for a sinus lift is the timing of it: it does not accompany any failure of the permanent upper right bridge that Respondent had seated in October 1997. Instead, the note confirms that Respondent was aware that the upper right bridge was precarious and needed to be readdressed.
Consistent with Respondent's recognition of the need to proceed with a bone augmentation and implants in the upper right quadrant, on June 9, 1999, W. C. returned to the office because the upper right bridge had fallen out of his mouth while brushing his teeth. The dental note for this visit states that
W. C.'s physician advises that the patient cannot undergo intravenous sedation until early September at the earliest. The note concludes with the tentative scheduling of a pre-operative sinus lift followed by an implant.
During the operative timeframe, the instability of the upper right bridge was not due, as Petitioner contends, to Respondent's placement of an excessively long and wide post when doing the root canal in tooth number 6 prior to the operative timeframe; the upper right bridge had had problems before that root canal was performed, and the evidence is mixed as to whether this tooth even had an excessively long post--an issue
outside of the scope of this case due to the pre-1998 date of service for this procedure. Nor does there seem to have been a problem with the implant at site number 2 that Respondent had placed prior to the operative timeframe. Respondent's expert, Dr. Carl Misch, testified persuasively that the implant served as an acceptable abutment. (Misch deposition, p. 35.) Also, Respondent's placement of an implant at site number 2 is an issue outside the scope of this case due to the pre-1998 date of service for this procedure.
During the operative timeframe, the immediate need-- given W. C.'s rejection of removable dentures--was the placement of multiple implants in the upper right area, as Respondent recognized at the time. This is a fact agreed to by Petitioner's expert, Dr. David Clary, (Clary deposition,
p. 19.), and Dr. Misch, who succinctly explained:
between tooth number two and tooth number six there are no teeth. [B]etween
those two teeth, which is basically the last molar on the upper right and the eye tooth on the upper right, this patient is missing three teeth. And as a consequence of that span a good option . . . is to put some implants in that span. However, if you don't have any bone you can't place implants.
(Misch deposition, pp. 32-33.)
On August 30, 1999, Respondent took another x-ray of
W. C.'s mouth. This is the x-ray that Dr. Haering testified was
necessary, before undertaking a sinus lift, to determine the thickness of the bone at the intended site of the implant.
During this visit, Respondent scheduled W. C. for intravenous sedation and a sinus lift between September 9 and October 19.
A sinus lift is a not-uncommon procedure that may be performed by a general dentist to augment bone in preparation for implant surgery. If the patient's sinus drops down too far, it leaves insufficient bony structure to secure the implant, so the dentist moves the membrane of the maxillary sinus and applies a paste derived from freeze-dried bone. The new material is then sutured into place. Eventually, the new material integrates into the adjacent bone, essentially augmenting the available bone to allow, in this case, the successful placement of implants.
On October 4, 1999, Respondent removed the upper right bridge and performed a sinus lift in the area of the upper right quadrant. As conceded by Petitioner's expert, Dr. Gerald Laboda, an oral and maxillofacial surgeon, Respondent's notes adequately detail the sinus lift procedure and materials used, although they omit mention of the fact that W. C. bled heavily and had to go to the emergency room for treatment. However, a note one week later states that W. C. was doing well and not in any pain.
Obviously, the bleeding that necessitated a visit to the emergency room is a serious matter. Dr. Laboda testified that the medial wall of the sinus is the lateral wall of the nasal cavity, and Respondent "may" have penetrated this wall accidentally during the procedure. Dr. Laboda was ambivalent in opining whether the applicable standard of care requires a general practitioner to conduct a CT scan prior to a sinus lift in order to identify the anatomy of the patient and reduce the chances of an incident during surgery. On direct examination, Dr. Laboda was unable to say unequivocally that the incident would have been avoided with the anatomical information that a CT scan would have yielded. At one point, Dr. Laboda testified that a general dentist must always obtain a CT scan, in addition to x-rays, prior to performing a sinus lift, but then he quickly characterized this statement merely as a recommendation.
Some of Dr. Laboda's ambivalence may be explained by the testimony of Dr. Misch on this point. He testified that
x-rays alone met the standard of care and a CT scan exceeded the standard of care, (Misch deposition, p. 66.), but he stated that he has used a CT scan prior to sinus lifts since 2005, even though this practice is still not the standard of care. (Misch deposition, p. 289.) Considering the testimony of both dentists, it appears that the standard of care may be evolving toward the requirement of a CT scan prior to a sinus lift, but
did not so require when Respondent performed the sinus lift in 1999. Additionally, Petitioner's proof on this issue was not helped by the refusal of Dr. Laboda to accept Respondent as his peer in implants, suggesting that Dr. Laboda may not be an especially good source of generally prevailing peer performance, and the refusal of Dr. Haering, Petitioner's lone witness who was a general dentist, to opine as to the sinus lift.
Likewise, the records justify the course of the treatment in terms of the sinus lift. The need for this procedure is reflected in the records, including the x-rays, which revealed that implants could not be placed unless the bone was augmented. The other notes justifying this course of treatment have already been detailed above.
On February 7, 2000, after giving the bone augmentation time to stabilize, Respondent placed an implant in site 3 and an implant in site 4, according to Dr. Clary's interpretation of the record, which is credited. There does not appear to be any real issue with the placement of these implants, which, surprisingly, works somewhat to the disadvantage of Respondent as to recordkeeping, for the reasons set forth below. Dr. Misch testified that, judging from the
x-rays, the placement of the implants was acceptable. (Misch deposition, p. 294.) Dr. Laboda testified that the placement of the implants did not violate the applicable standard of care,
and he could not opine as to why any implants failed (if, in fact, they did), although he attributed his inability partly due to Respondent's records, which he deemed inadequate.
Respondent also replaced the temporary upper right bridge at this time, but his main focus was, of course, on the two new implants. An x-ray on February 29 disclosed that "everything [was] healing well." However, on March 23, a note written by someone other than Respondent states that x-rays were taken and tissue was growing around the bridge, but W. C. needed to return to the office to see Respondent "to have removed"-- apparently, referring to the implants, but possibly the bridge. Four days later, the same person wrote that the bridge was removed, revealing 6 mm pockets around the "implant," although the pockets were around both implants. Without further analysis in the records, Respondent removed the implants.
Based on the dental records, the removal of the implants seems to have simply happened. The finding of 6 mm pockets, without more, explains nothing. The placement of the implants was, as noted above, unremarkable. Dr. Laboda explained that 6 mm pockets are not necessarily pathological, and the sole reason for removing the implants is mobility, about which Respondent's notes state nothing. Dr. Laboda added that six-week implants are still integrating into the bone, so concern with these pockets should dictate nothing more than a
trimming of the gum around the implants, a procedure known as a gingivalplasty. When asked why a dentist would remove implants with 6 mm pockets, Dr. Misch, acknowledging that some dentists would repair them, never addressed why this condition would justify removal; he merely addressed what other dentists would do. (Misch deposition, p. 296.)
Dr. Fish's testimony is unpersuasive on this point.
He testified that diagnosis was ongoing--evidently confusing findings of pockets with the diagnosis of a problem requiring the removal of the implants and, more importantly, with careful analysis of the course that the patient was taking with the implants. Dr. Fish also tried to justify the scant records concerning the removal of the implants based on the "fact" that the treatment plan was based on the presentation of an episodic problem. This clearly misses the mark: Respondent had been trying to initiate a treatment plan for the upper right bridge for two years and finally, with the clearance obtained from
W. C.'s physician, was able to execute the plan. The best that Dr. Fish could offer, after looking at an x-ray, was that one implant "might" start to travel--hardly justification for the removal of the two implants after only six weeks.
Dr. Fish's testimony that Respondent was diagnosing
W. C. continuously following the implants, implying some insight on Respondent's part as to why he thought that the implants had
failed or were failing, contradicts the more persuasive testimony of Dr. Misch, who stated that, typically, a dentist does not know why an implant fails. (Misch deposition, p. 68.)
Respondent testified that he removed the implants due to the presence of the 6 mm pockets. He testified that the problem was not so much periodontal as that the surgical site needed more time to heal. (Respondent deposition, pp. 40-41.) This testimony suggests that the implants may have been placed prematurely, or at least that Respondent thought so.
Either way, Petitioner has proved a standard-of-care violation as to the removal of the implants. If Dr. Laboda's testimony were credited over Respondent's testimony on the status of the implants at the time of their removal, and it is, Respondent violated the standard of care by removing these implants prematurely and subjecting an elderly patient unnecessarily to the trauma of the removal and, as noted below, replacement of these implants a short time later. If Respondent's testimony were credited on the status of the implants at the time of their removal, and it is not, Respondent violated the standard of care by placing the implants prematurely. In this instance, the records are silent as to the reason for the removal of these two implants because there was no good reason to do so at that time. Thus, Petitioner has proved the standard-of-care Implant Count.
Petitioner has also proved the recordkeeping Implant Count in the removal of the implants. As Dr. Laboda testified, when admitting that he could not explain the failure of the implants, the problem lies in the scant information contained in Respondent's records. Records justifying the course of treatment would detail the case sufficiently so it would be clear whether the implants were placed prematurely or, as is found, they were removed prematurely. If the pockets alone warranted the removal of the implants, Respondent needed to document this fact to justify their removal, rather than treatment of the gums, and to guide his or another dentist's attempt to place implants in the upper right quadrant of W. C.'s mouth in the future. If the implants were mobile, Respondent needed to state this fact, again for the same purposes.
On May 8, 2000, using local anaesthetic, Respondent added bone to the area where he had performed the sinus lift and had placed and later removed the two implants described above. Checking them for the first month at two-week intervals and then one month later, on July 5, 2000, Respondent noted that the tissue was healing fine. Later in July, as well as in August, September, and October, Respondent had to repair the temporary bridge, as the permanent bridge still awaited the successful seating of two implants at sites 3 and 4.
On November 13, 2000, Respondent again placed implants at sites 3 and 4. He noted the procedure as he had the previous procedure. These implants performed fine and integrated into the surrounding bone as intended.
After a series of fittings, Respondent delivered the permanent fixtures for the upper right quadrant on May 22, 2001. Acknowledging the stability problems with the upper right bridge in its past configuration--although failing to mention this analysis anywhere in his notes--Respondent chose not to try to use a single bridge. Toward the back, he splinted together implants at sites 2, 3, and 4. Toward the front, he cantilevered a pontic at site 5 off natural teeth 6, 7, and 8.
Petitioner's expert, Dr. Clary testified that he was "very fine" with the design for 2, 3, and 4. (Clary deposition,
p. 123.) Dr. Clary expressed concerns about the cantilever bridge that extended from abutment teeth numbers 6, 7, and 8 to the pontic at site number 5. (Clary deposition, p. 124.) In particular, Dr. Clary questioned the length of the post in tooth number 6, for which, as noted above, Respondent had performed a root canal prior to the operative timeframe. (Clary deposition,
p. 125.) Ultimately, Dr. Clary's concerns about the cantilever bridge are unpersuasive.
The contemporary reader of Respondent's notes probably would not have known that Respondent delivered two fixtures on
May 22. Prior to May 22, the lone indication of two fixtures is a brief note, dated May 2, that states that Respondent repaired the broken upper right bridge by cementing 6-8 with one bond and 2-4 with a different bond.
More significantly is the omission of any findings or analysis supporting the choice to divide the upper right bridge into two fixtures. The notes continue to refer to a single
"1-8" structure on May 14 during a try-in, May 16 concerning a production process, and May 22 at the time delivery. After the hint contained in the May 2 note, the next mention of a shorter fixture is a note on June 4 referring to a "6-7" bridge, evidently for delivery by the next visit, at the end of a note describing a porcelain failure of the crown for tooth number 6. Also, on June 26, the notes state that a metal fracture--not the fault of Respondent--occurred on the "bridge" "2-4." Even after these references, a note on August 6 refers to the delivery of "2-8."
The notes are consistent with one of two situations, both of which lead to a recordkeeping violation in terms of the bridgework. Perhaps Respondent delivered another iteration of the 2-8 bridge on May 22 and, after encountering one more failure of this design only a few days later, abruptly decided to go with two fixtures. More likely, Respondent actually delivered two fixtures on May 22, and the recordkeeping was slow
to reflect this fact. Either way, the records are devoid of analysis supporting the treatment choice of two fixtures.
After W. C. switched dentists, he visited Dr. William McKenzie, a periodontist, for a consultation in January 2003 after presenting for x-rays in December 2002. Called by Petitioner as a fact witness, Dr. McKenzie testified that he found that the upper right bridge was "hopeless," (McKenzie deposition, p. 8.), at least partly due to the fracturing of tooth number 6. (In subsequent questioning, Dr. McKenzie clarified that he was referring to the cantilever bridge on teeth numbers 6-8. (McKenzie deposition, p. 13.)) He added that he could recall no other problems in W. C.'s mouth, except for tooth number 16, which lacked bone around it. (McKenzie deposition, pp. 13 and 30.) In particular, Dr. McKenzie saw no problem with the implants. (McKenzie deposition, p. 34.)
Dr. McKenzie testified that these problems could have arisen "very, very quickly." (McKenzie deposition, p. 15.)
Dr. Misch testified that about ten percent of teeth that undergo root canals suffer problems within eight years (Misch deposition, p. 39), commonly in the form of fractures (Misch deposition, p. 40). When the tooth that has undergone a root canal is used as an abutment for a bridge, the fracture risk may increase four-fold. (Misch deposition, p. 40.)
The performance of the upper right bridge and, later, the cantilever bridge, was probably undermined by several factors. First, W. C. would not accept a removable denture, and he may not have been willing to undertake the growing responsibilities that he would have to shoulder to maintain his remaining natural teeth in this area, as the incidence of certain dental problems, like caries, would suggest. Second, teeth numbers 6-8 may have had anomalies of crown height and root length, which combined with the next factor to cause problems. Third, W. C., a tooth grinder, likely placed large loads on the teeth at night, which would be especially problematic during the period, after work on the teeth, that they were to remain unloaded. On this record, though, any problems in the performance of the upper right bridge and, later, the cantilever bridge cannot be attributed to Respondent, so Petitioner has failed to prove the standard-of-care Bridgework Count, at least as to the upper right quadrant.
However, Respondent's recordkeeping concerning the upper right bridge failed to justify the course of treatment in one respect: the decision to separate the single fixture into two. When considered from the perspective of Respondent's records, this action has the same deus-ex-machina quality to it as the removal of the implants from sites 3 and 4 in March 2000: without warning, a seemingly outside force implements surprise
treatment choices. As was the case with the implant-removal decision, the decision to place an implant splint and a cantilever bridge cannot be inferred or justified from x-rays or other dental records. There are two distinctions between the abrupt decision to place two fixtures and the abrupt decision to remove the implants. First, the treatment regarding the design of the new fixtures for the upper right quadrant does not represent a standard-of-care violation, but actually reinforces the impression that Respondent had a treatment plan in mind--not on paper--from the start of the operative timeframe, if not before. Second, the notes, apart from x-rays, fail adequately to describe the implant splint and cantilever bridge and rely excessively on inference to establish even the existence of these fixtures.
The remaining factual issues concern the lower left bridge. As noted above, Respondent delivered the permanent lower left bridge on October 9, 1998. According to the notes, the next time it was addressed was when it was removed on February 19, 2001, which coincides with the end of the most intensive treatment, described above, of the upper right quadrant and precedes the delivery of the two upper right fixtures, also described above, by three months.
Although the handwritten dental records do not indicate why Respondent removed the lower left bridge, a note on
January 29, 2001, states that W. C. presented with a tooth ache in the lower left quadrant, and an x-ray taken on the same date revealed an infection around the blade implant at site number
(Respondent deposition, pp. 56 and 58.) (Respondent's response on page 58 that the blade implant was placed in 1998 was either inaccurate or inaccurately transcribed given the era in which blade implants were used and Respondent's interrupted testimony, on the next page, suggesting that another dentist placed this implant, which, if 1998, would have been when Respondent was treating W. C. and routinely doing implants.)
On February 19, Respondent placed a temporary lower left bridge and prepared for the production of a new permanent bridge. He also prepared a post and core for tooth number 20. On March 20, Respondent cleaned up the area around the blade implant at site number 18 and placed some bone material in the area to build it up to better secure the blade implant. After doing this work, on the same day, Respondent cemented the temporary lower left bridge.
Respondent recemented the temporary lower left bridge the day after W. C. was hospitalized for "lethargy," according to a note on March 27, 2001. On April 9, the records note that the tissue looked good. On April 23, Respondent again recemented the temporary lower left bridge. Initially misreading his own notes, Respondent testified that he did the
final impression for the lower left bridge on April 23 when he actually did the final impression for the upper right bridge/fixtures on that date. (Respondent deposition, pp. 61- 62.) When advised of this error, Respondent testified that he did eventually replace the lower left bridge with a permanent fixture, but it is not reflected in the notes. (Respondent deposition, p. 62.) This is an odd answer because the notes actually document the delivery of the permanent lower left bridge on July 8, 2002.
After April 23, the next reference to the lower left quadrant in the notes is June 26, 2001, when Respondent had to recement the temporary lower left bridge. On August 20, 2001, the notes indicate that Respondent "attempted to restore 20, 21 guarded." Evidently, the attempt was short-lived and the deterioration from guarded to hopeless was quick because the same note--confirmed by Respondent as accurate (Respondent deposition, p. 63)--is that he extracted teeth numbers 20 and 21.
On August 27, 2001, W. C. returned to the office.
Respondent recommended a treatment plan to include the placement of four implants in the lower left quadrant. Due to cost considerations expressed by W. C., Respondent only placed three implants, which took place on October 31, 2001. The October 31 note adequately describes the procedure.
The implants integrated into the surrounding bone after a brief infection shortly after their placement. On April 17, 2002, Respondent restored the implants and placed a temporary lower left bridge. On May 8, 2002, Respondent took a
final impression for a bridge from site number 18 to site number
On July 8, 2002, Respondent delivered the permanent lower left bridge. The professional relationship ended with a note on July 31 that W. C. agreed to pay the balance in three weeks; he later failed to appear for an appointment on January 30, 2003. Of course, by this time, he had presented for x-rays and been seen by Dr. McKenzie on a consultation in connection with dental work that W. C. was undertaking with another general dentist.
The recordkeeping fails to justify the course of treatment as to the removal of teeth numbers 20 and 21. Respondent could explain orally that these two teeth became mobile when they lost the support they required from the blade implant at site 18, but nothing in the records mentions this fact, and, from the perspective of the records, these two extractions just seem to happen.
However, Petitioner already proved the recordkeeping Bridgework Count in connection with the treatment decision to divide the single upper right bridge into two fixtures, so this additional violations may only have a bearing on the penalty. The lone count not yet proved, but still at issue in connection
with the lower left bridge, is the standard-of-care Bridgework Count because Petitioner failed to prove this count in connection with the upper right bridge.
Dr. Clary testified that he had no problem with the decision to place implants at site numbers 20 and 21; his lone criticism of this treatment is that it did not take place in 1998. (Clary deposition, p. 99.) Nor did he disagree with the placement of the third implant at site number 18. (Clary deposition, p. 100.) Questioning whether the standard of care permits the connection of implants to natural teeth (Clary deposition, p. 100), Dr. Clary conceded that this is a point of controversy within the dentistry profession (Clary deposition,
p. 101), implicitly admitting that the standard of care does not prohibit this practice. Dr. Clary conceded that controversy also existed as to the type of connector--ridged or unridged-- that should be used for these implants and natural tooth.
(Clary deposition, p. 102-03.) In sum, Dr. Clary did not try to make much of a case as to the standard of care concerning the lower left bridge, especially if one accepts the fact that patient resistance precluded the use of a removable denture in this area and that extensive work on the lower left bridge probably had to await completion of the extensive work on the upper right bridge, given W. C.'s financial constraints and the practical problem of ensuring that he could chew on at least one
side of his mouth for weeks at a time. Likewise, Dr. Laboda did not fault the placement of any implants; his focus was on the sinus lift and recordkeeping. Thus, Petitioner has failed to prove a standard-of-care violation with respect to the bridgework in the lower left quadrant.
Based on the foregoing, Petitioner has proved only the following violations. First, Petitioner proved the recordkeeping Bridgework Count (Count I) concerning Respondent's decision to replace the single upper right bridge with two fixtures in May 2001. This was a good treatment choice. However, Respondent not only failed to document the reasons for this choice or findings that would support this choice; he even failed to identify adequately the treatment choice. Second, Petitioner again proved the recordkeeping Bridgework Count (again, Count I) concerning Respondent's decision to extract teeth numbers 20 and 21 in August 2001. Relying on Dr. Clary's testimony, this was probably a good treatment choice, although Dr. Clary's testimony that this action should have been taken in 1998 is not credited, at least as to the implication that it violated the standard of care for Respondent not to have taken this action earlier. Third, Petitioner proved the recordkeeping Implant Count concerning the sudden removal of the recently placed implants at site numbers 3 and 4 in March 2000. Fourth, Petitioner proved the standard-of-care Implant Count concerning
the premature removal in March 2000 of the recently placed implants at site numbers 3 and 4, although the consequences of this departure from the applicable standard of care are slight due to Respondent's immediate addition of more bone, using only local anaesthetic, and successful replacement of implants at these two locations.
Aggravating factors are the number of times that the Board of Dentistry has disciplined Respondent, including one case involving a recordkeeping violation; and the presence of three separate recordkeeping violations in this case (although two of them are alleged in the same Bridgework count). Mitigating factors are the lack of danger to the lone patient from, and the lack of severity of, the proved violations; the reversibility of the limited damage that resulted from the lone standard-of-care violation (i.e., the premature removal of the two implants followed by the addition of more bone and successful replacement of two new implants); the number of years that Respondent has practiced; and the time that has elapsed-- eight years--since the last violation, during the last seven and one-half years of which Respondent has not been disciplined.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2008).
The construction of the Administrative Complaint has been guided by Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA), which addresses an administrative complaint that charged a physician with a recordkeeping violation. For this alleged violation, the Administrative Law Judge had concluded that the Department of Health had alleged only a failure to create certain medical records. The Board of Medicine entered a final order predicating discipline on a failure to maintain these records. After acknowledging the obvious fact that a physician may not be disciplined for an act or omission not charged in the administrative complaint, the court noted that the administrative complaint mentioned Section 458.331(1)(m), Florida Statutes, which requires a physician to "keep" certain medical records. However, the court stressed that the administrative complaint charged the physician with the failure to "document" and "create" certain medical records, not a failure to "retain possession" of these records.
The Trevisani decision cites Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996), as a holding in which the mere citation of legal statutes, without allegations of acts or omissions in violation of such statutes, was insufficient notice to the licensee of the nature of the charges against him. In Cottrill, the court notes the absence of a specific charge overrode the fact that the record contained
evidence arguably sufficient to support a finding of violation of certain statutes.
Based on this authority, the Administrative Law Judge construed the Administrative Complaint in the manner described in the Preliminary Statement above.
Section 466.028(1), Florida Statutes, authorizes the Board of Dentistry to impose discipline, under Section 456.072(2), Florida Statutes, for:
(m) 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, test results, and X rays, if taken [or]
(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. . . .
Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As noted in the Findings of Fact above, Petitioner has proved two counts of recordkeeping violations (Bridgework Count and Implant Count) and one count of a standard-of-care violation
(Implant Count). In connection with the Bridgework recordkeeping count, Petitioner proved separate recordkeeping violations in connection with the upper right bridge and the lower left bridge.
Section 456.072(2), Florida Statutes, authorizes the following discipline:
* * *
Suspension or permanent revocation of a license.
Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.
Imposition of an administrative fine not to exceed $10,000 for each count or separate offense. If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of
$10,000 per count or offense.
Issuance of a reprimand or letter of concern.
Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited
to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.
Corrective action.
* * *
Refund of fees billed and collected from the patient or a third party on behalf of the patient.
Requirement that the practitioner undergo remedial education.
In determining what action is appropriate, the board, or department when there is no board, must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.
Based on violations of all six counts, including standard-of-care violations for the sinus lift procedure and for all bridge failures--violations that Petitioner has failed to prove--Petitioner has requested in its proposed recommended order the imposition of a $30,000 administrative fine, reimbursement of all fees paid by W. C. or his insurer to Respondent, 30 months' probation (during which time Respondent shall complete a two-year comprehensive remedial program in
dentistry), that Respondent pass the Florida Laws and Rules exam within one year of the final order in this case, and that Respondent undergo an audit of continuing education hours every two years.
The proved violations are not as serious as those alleged, although the repetition of multiple recordkeeping violations after earlier discipline for the same violation is unsettling. And the recordkeeping violations in this case were so egregious as to suggest a reckless disregard for professional responsibilities, rather than mere inadvertence. The failure to pay an administrative fine suggests a light regard for the regulatory function of the Board of Dentistry. It has been over seven years, though, since Respondent's last violation, and the acts and omissions in this case date back even further.
As a device for punishing the licensee and protecting the public, suspension sometimes is a blunt instrument; it would be better in this case if the Board can design a practice restriction that assures that Respondent does not see so many patients in a day that he fails to keep up with his recordkeeping responsibilities. Unfortunately, the record does not permit the Administrative Law Judge to design such a restriction, although it would be a suitable substitution for the suspension set forth below. Also, the probationary period needs to be longer to facilitate revocation for additional
recordkeeping or standard-of-care violations and drive the point home to Respondent that he must take these responsibilities more seriously.
However, the reimbursement of fees paid to Respondent is uncalled for. Although not rising to a standard-of-care violation, in hindsight, it appears that Respondent imprudently acceded to W. C.'s wishes as to cost considerations and avoiding removable dentures. Although the scant records are consistent with a high-volume practice, this is not a case of overcharging for work that clearly fails to meet the applicable standard of care or of performing unnecessary work. W. C. derived value from the dental services that he received from Respondent. Reimbursing fees to W. C. would likely be a windfall, and reimbursing them to the insurer would certainly be one.
Among the myriad motions denied and objections overruled in the Preliminary Statement above, one, and probably only one, merits comment. On November 29, 2007, Petitioner filed a motion, which it renewed several times, for payment of expert witness fees. The Administrative Law Judge denied these requests on the bases of Engel v. Rigot, 434 So. 2d 954 (Fla. 3d DCA 1983), and Section 456.072(4), Florida Statutes. However, these rulings are without prejudice to a remand by the Board of Dentistry to the Division of Administrative Hearings for findings and a recommendation as to the costs addressed by these
requests and any other recoverable costs, as allowed by Section 456.072(4), Florida Statutes--should the Board determine that its authority under this provision is, or may be, subject to the provisions of Section 120.569(1), Florida Statutes.
Based on the foregoing, it is
RECOMMENDED that the Board of Dentistry enter a final order finding Respondent guilty of Counts I, III, and IV of the Administrative Complaint and imposing the following discipline:
$20,000 administrative fine; license suspension until the greatest of 30 days, full payment of fine, or posting of security adequate to the Board for the full payment of fine; passage of the Florida Rules and Laws exam within one year of the Final Order; probation for the greater of five years or until Respondent successfully completes the two-year remedial course described above; and audits every two years to ensure that Respondent is current on his continuing education. As noted above, a suitable restriction on practice would be an effective substitute for the minimum 30-day suspension described above, although the restriction on practice would need to extend longer than 30 days.
DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
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 17th day of June, 2009.
COPIES FURNISHED:
H. Wayne Mitchell, Esquire Assistant General Counsel Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Max R. Price, Esquire
Law Offices of Max R. Price, P.A. 6701 Sunset Drive, Suite 104
Miami, Florida 33143
Susan Foster, Executive Director Board of Dentistry
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
R. S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Josefina M. Tamayo, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Dr. Ana M. Viamonte, Secretary State Surgeon General Department of Health
4052 Bald Cypress Way, Bin A00 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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 25, 2009 | Agency Final Order | |
| Jun. 17, 2009 | Recommended Order | Recommend a $20,000 fine and 30-day suspension for two record-keeping violations regarding bridgework and implants and one standard-of-care violation regarding implants. |
DEPARTMENT OF HEALTH, BOARD OF DENISTRY vs ROBERT H. BARR, D.M.D., 07-001164PL (2007)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs WILLIAM GLOVER, III, D.M.D., 07-001164PL (2007)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs RAUL GONZALEZ, D.D.S., 07-001164PL (2007)
BOARD OF DENTISTRY vs. NORMAN A. FENICHEL, 07-001164PL (2007)
BOARD OF DENTISTRY vs. JOSEPH J. CARROLL, 07-001164PL (2007)
