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STATE OF FLORIDA

DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH,

PETITIONER,

P.02/19

v.

Ben Mac-Ryan Spivey, D.M.D.

RESPONDENT.

. CASE NO. 2009-00927

ADMINISTRATIVE COMPLAINT

COMES NOW Petltione1; Department of Health, by and through its undersigned counsel, and files this Administrative Complnint before the Board of Dentistry against R spondent Ben Mac-Ryan Spivey, O.M.D., and in support thereof alleges:

1. Petitioner Is the state department charged with regulating the pr;ictice of dentistry pursuant to Section Z0.43, Florida Statutes; Chapter 456, Florida Statutes; c1nd Chapter 466, Florida Statutes.

2. At all times material to this Complaint, Respondent was a

   
   

   licensed dentist within the State of Flurida, having been issued license number DN 1648<,J.

3. Respondent's address of remrd is 1815 S. W. 29th Street, Ocala,

   
   

   Florida, 34471.

   
   

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4. Respondent provided treatment to l'atient D.S. from on or about August 4, 2008, t.o on or about January 22, 2009. Patient D.B.

   presented to Respondent seeking a second opinion from her then treating

   dentist, who had advised her of severe periodontal pathology which

   
   

   
   

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   needed Lreatment prior to other dental treatment being undertaken,

   '1 particularly around teeth numbers 2., 5, 12 and 15.

   5. At no time during the course of his treatment did Respondent diagnose, address and/or treatment plan for any existing periodontal

   pathology in Patient D.8.'s mouth prior to embarking upon restorative prosthetic treatment in both upper quadrants; at tl",eth sites 5-7 and 11-13.

   1. On or about August 4, 2008, Patient □.B. presented to

      Respondent tor an initial new patient examination. According to the treatment notes, Patient D.B.'s chief complaint was discomfort in thf' upper left and right quadrants, where existing crowns/bridges were seated at teeth sites 5-7, and 12-17. Respondent took a panorex x-ray and

      performed a clinical exam. Respondent noted that teeth numbers 3 and 5

      needed extraction due to decay.

      
      

   2. Respondent noted in the treatment record that his cliniral examination of Patient D.B. also revealed gross decay at teeth numbers 6 and 1 s. Respondent's clinical findings, as written in the patient's treatment

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        record, failed to diagnose, identify and/or address proposed treatment for existing periodontal pathology in Patient D.B.'s mouth.

   3. R<"spondent developed a treatment plan that recornmended the

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extraction of teeth numbers 3, 5, and 15; root canal treatment at tooth number 6; a crown restoration al tooth nurnber 21; followed by fabrication of a three-unit cantilever bridge at teeth sites 4 to 7; fabrication of a four­

unit cantilever bridge at teeth sites 10 to 13; and the performing of an

initial c.;omprehensive diagnosis and oral hygiene evaluation. Respondent's comprehensive treatment plan was apparently based rolely on his initial limited oral examination of Patient. D.B. and a single panoramic x-ray of the patient's dentition. Patient D.B. agreed to this plan.

Respondent's radiographic exarnination of Patient D.S. taken on or about August 4, 2008, consisted of a single panoramic ri:!diograph. No other x-rays were tdken ot Patient D.S. during Respondent's entir1::1 course of treatment. No detailed diagnostic findings were recorded for this radlograph in the patient's treatment record. By failing to take and/or interpret an appropriate number and type of dental rudlographs, Respondent

failer:I to perform and/or record c1 complete and appropriately comprehensive diagnostic examination of Patient D.B.'s dentition prior to

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performing multiple tooth extraction and initiating signlfic;;mt prosthodontic.; and restorative treatment.

1. Despite radiographic indiCc:1Lions of periodontal p thology in

   
   

   several areds ot Patient D.B.'s mouth, as evidenced by the panoramic radiograph taken on or about August 4, 20[)8, Respondent failed to perform and/or record the results ot a comprehensive periodontal examination of Patient D.B., including bul not limited to periodontal pocket depth probing and tooth mobility testing, during the patient's initial vic;it or at any other time during Patient D.B.'s course of treatment. Respondent therefore failed to address and/or develop a comprehensive diagnosis and treatment plan that adequately addressed Patient D.B.'s periodontal condition prior to initiating significant restorative work.

2. Respondent further failed to record during the initial visit, or at any other vi5it of Patient D.B., a tooth charting, showing the condition of existing teeth, noting where restorations existed, noting overall conditions in Patient D.B.'s mouth, and noting the presence of pathology and/or decav (except for noting decay at teeth numbers 6 and 15).

3. On or abuut August 18, 2008, Patif'nt D.B. returned to

   
   

   R.e pondent's office, and Respondent amended his proposed treatment plan to lndude the two upper bridqes (tE'f'th sites 4·7; 10·13) three extractions

   
   

   
   

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   (teeth numbers 3, 5, 15), 9 porcelain crown restorations in lieu of the one initially planned at tooth number 21, and the root canal at tooth number 6.

4. Respondent again developed this (amended) treatment plan for Patient D.B. on or about August 18, 2008, without performing a comprehensive diagnostic examination, including an adequate number of radiographs, to support any of the proposed treatment in his modified treatment plan. Respondent ultimately failed to perform cmd/or record an adequate diagnosis resulting from a comprehensive clinical examination and a sufficier1t number and type of diagnostic dentdl radiographs prior to pelforming multiple tooth extractions and initiating significant pmsthetic and

   
   

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   restorative treatments.

   
   

5. Respondent also tailed to perform and/or record the results ot a comprehensive periodontal examination of Patient D.B., including but not limited to periodontal pocket depth probing and tooth mobility testing. Respondent therefore failed to address and/or develop a comprehensive

   diagnosis and treatment plan that adequately addressed Palient D.B.'s periodontal condition prior to initiating significant restorative work.

6. On or about August 25, 2008, Patient D.S. presented ID Respondent for the extraction of teeth n mbcrs 3, 5, and 15. Respondent then modified the patient's treatment plan to Include the fabrication of a

   
   

   
   

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   tvvo Instead of a three-unit bridge from tooth number 5 to 7. Respondent placed temporary b1idqes at sites 5-7 and 10-13.

7. Between the appointment dates of August 25, 2008, and

   
   

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   January 15, 2009, Patient D.S. was seen multiple times to re-cement and replace the temporary bridges, which broke and/or came loose multiple times. Respondent took final impressions for· the permanent bridges in

   Patient D.B.'s mouth on or about December 9, 2008.

   
   

8. On or about January 15, 2009, Respondent cemented the permanent bridges in Patient D.B.'s mouth, and recorded within a week that patient was satisfied. However, Patient D.B. as early ..is January 9, 2009, sought opinions from subsequent treaters re: this same treatment and after January 2009, did not return to Respondent but instead

   requested her treatment records and a refund for the work she was unhappy with. Palient D.B, filed this complaint on or about February 5, 2009.

   lnjtjal Defective Periodontal Diagnosis/Treatment Plan

   
   

9. A patient presenting with perlodonlal disease can have either "gingivitis" or "periodontitis." Periodontal disease can be both acute (gingivitis) and/or chronic (periodontiti ), and can atfect both the ginqiva (the yums) around the teeth c:1nd the supporting bone arournJ the te.eth

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     (alveolar bone). Gingivitis, which typlcally involves only the gingiva, causes the gingiva to typically become puffy, red, inflamed and to bleed ea<;ily. Gingivitis is treatable, but lett untreated, it can advance to periodontitis

     which causes the loss of the supporting alveolar bone that surrounds each

     
     

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     . ,J I tooth root, while il simultaneously leads to increased periodontal pocket

     depths.

     
     

10. A periodontal pocket is the distance that is mei:lsured from the height of the marginal gingiva thdl surrounds a tooth to the lower level attachment of the gingiva to the cementum of the tooth ruot. Periodontal

    pocket dr;pths are typically mea!:iured using a periodontal probe on three surfaces 011 the front (fc1clal or buccal) of a tooth and three surfaces on the back (lingual) of a tooth - for a total of six periodontal pocket depth measurements for each tooth,

11. A patient with pocket depths of no more than 3-4 millimeters

    should be monitored c:1nd advised by a treating dentist that he/she should be able to clean out intra-oral bacteria to the depths of those periudontal poc:kets using goud oral hygiene - tooth brushing and flossing. A patient with pocket depths of greater than 3-4 mm, especially 5-8 mrn or more, would not be able to self-clean lo those increased periodontal pock t depths and the incipient bacteri.:l therein would continui::! to release toxins

    
    

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    and most likely cause the continuance and/or advancement of chronic perlodonlitis.

12. A patient with pocket depths of greater than 3-4 mm generally

    has more advanced periodontal di ase that Is affecting both the gingiva aruund the teeth, and the level of the attachment ot the ginglv,;1 lo the cementum of each affected tooth root (the periodontal pocket depth) and

    likely is experiencing ongoing resorption of the alveolar bone that support the teeth.

13. M. part of a patient's Initial comprehensive oral examination, a

    dentist should perform a comprehensive periodontal examlnatiun including diagnosis of the condition of the gingiva, tooth mobility testing and full" mouth periodontal pocket depth probing. Thec;e diagnoses r;hould be fully and accurately recorded in treatment notes and/or charted when the exam is performed, and updated regularly on periodont.al depth probe teeth charts.

14. A dentist should also correlate periodontal pocket depth findings with a careful review of diagnostic x-rays to determine if there is any bone loss around teeth where pocketing is noted. If the periodontal pocket depthr; are greater that 3-4 millimeters and the x-rays show loss of alveolclr bone, a dentist should irT1mediately and adequately diagnose the severity ot the patient's periodontal condition, fully inform the patient, and

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develop an effective treatment plan to treat the periodontal disease. This should include expeditiously providing appropriate clinical treatments, instruction on home hygiene to enhance the riatient's periodontal health, regular monitoring and cleanings with notations rt!: the periodontal condition, and/or referral to a specialist for appropriate treatment before performing further restorative treatment in the patient's mouth. Respondent failed to meel any of these stand<"lrds, from the initial visit of Patient D.B. forward.

Ongoing Regorative/Defective Diagnosis to Support Treatment

24. Respondent proposed, then modified his treatment plans for

Palient D.B. on August 4, and 18, 2008, respectively, then had Patient D.B. sign the treatmPant plan proposals. Respondent proposed his treatment plans, but did not notate in the treatment notes any written comp!'f'hensivc treatment plans with explanation of risks and benefits, alternate treatment options presented, and did not document adequate informed consent from Pc:ilient D.B. before proceeding with his treatment.

1. The prevailing standdrd of dental care In performing bridgework requires o1 dentist to perform adequate diagnnsis to determine the optimal dec;ign and appropriate use of a bridge and to properly make, seat, and fit such a device to strung abutment natural teeth. The Respondent utili2.ed

   
   

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   teeth number<; 5-7 and 10-13 as abutment te.eth for bridges without determining from a mmpreh,msive examination and adequate diagnosis it these teeth were compromised, angulated and/or weakened by periodontal problems exi'lting in Patient D.B.'s mouth. The Rf'spondent did not perform compr!::!hensive diagnostic examinations including adequate x-rays, study models of the patient's mouth or present adequate follow up x-rays to support modifa.:ation of a comp1·ehensive treatment plan involving extensive restoration and prosthetic work which was undertaken in Patient

   
   

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   D.B.'s mouth.

   
   

   COUNT ONE

   
   

2. PetiUoner realleges and incoqxirates parag1aphs one (1)

   
   

   through twenty-five (25) as if fully set forth herein.

   
   

3. St>ction 466.028(1)(x), Florida Statutes (2008), provides that being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailinq peer performance, including, but not limited to, the undertaking uf diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice constitul.es grounds for disciplinar,' actiun by thf' Board of Denlistry.

   
   

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4. The prevailing standard of care requires that a dentist perform,

   
   

   document, and evaluate the results of the following prior to initiating comprehensive dental treatment: ;i complete and comprehensive radiographic examlnatiun; a comprehensive hard tissue, tooth-by-tooth examination that includes, but is not limited to, documenting or recording the patient's missing teeth, existing restorations and possible decay; and a comprehensive periodontal examination, including but not limited to periodontal pocket depth charling and tooth mobility testing.

5. The prevailing standard of care requires that c:1 dentist perform an adequate diagnosis resulting from a comprehensive clinical examination, including a review of the appropriate type and number of diagnostic dental

   radlographs, prior to performing multiple tooth extractions and initiating significant prosthodontic and restorative treatments.

6. The prevailing standard of care requires that a dentist not pertorm major restorative or prosthetic work, such as crowns and/nr bridges, on a patient with active periodontal disease Without first diagnosing and treating the patient's periodontal 1_;ondition.

7. Respondent failed to meet the minimum standards of

   
   

   performance in dlagno is and treatment when measured against generally prevailing pE'!er performance in one or more of the following ways:

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   1. By failing to perform a complete and appropriately comprehensive radiographic examination of Patient D.B.'s dentition prior to initiating comprehensive dental treatment;

      
      

   2. By failing to perform a periodontal mination of Patient D.B., including but not limited to periodontal porket depth t:harting and tooth mobility testing, prior to initiating comprehensive dental treatment;

      
      

   3. By failing ta perform dn adequate diagnosis of Patient D.B. resulting from a comprehensive clinical examination and an appropriate number and t;ype of dental radiographs prior to performing multiple tooth extractions and initiating significant pro hodontic and restorative treatments; and/or

      
      

   4. By failing to address Patient D.B.'s periodontal pathology and/or develop a treatment pl,m for Patient D.B.'s periodontal pathology prior to initiating restorative and prosthetic work, despite radiographic evidence from a radiograph taken on or about Augul:it 4, 2008, that revealed moderate to severe pathology and/or bone loss in multiple areas of Patient D.B.'s mouth.

      
      

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8. Based on the foregoing, Respondent has violated Section

   
   

   466,U28(l)(x), Florida Statutes (2008), by being guilty of incompetenc.e or negligence by falling to meet the minimum s\i.tndards of pcrformcince 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.

   
   

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   COUNT TWO

9. Petitioner realleges and inc:orporates paragraphs one (i)

   
   

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   through twenty-five (25) as if fully set forth herein.

   
   

   
   

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10. Section 466.028(i)(m), Florida Statutes (2008), provides thilt failing to keep written dental records and medical history records justifying the course of treatment of the patient inc:luding, but not limited to, patient histories, examination results, test results, and x-rays, if taken, constitutes grounds for discipline by the Board of Dentibtry,

11. Rule G4B5-17.002, Florida Administrative Code requires that a

    
    

    
    

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    dentist shall maint.ain written records on each patient which shall contain, at a minimum, appropriate medical history; results of clinical examination and Le5ts conducted induding the identification, or lack thereof, of any oral pathology or diseases; any radiog1·aphs used for the diagnosis or treatment of the patient; treatment plan proposed by the dentist; and treatment rendered to the patient. A dentist shall maintain the written dental record of a patient for a period of at least four (4) years from the date the patient was lasl examined or treated by the dentist.

12. Respondent failed to keep written dental records and medical history rec.:ords justifying the course of treatment in one or more of the following ways:

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    1. By failing to record the results of a complete radiographic examination of P"'dtient D.B.'s dentition and periodontum prior to initiating comprehensive dental treatment;

       
       

    2. By failing to record the results of a comprehensive periodontal examination of Patient D.B., including but not limited to periodontal pocket depth probing and tooth mobility testing, prior to initiating dental treatment;

       
       

    3. By failing to record and/or present writt!:!n treatment options with explanation of risks/benefits a sociated with each in order to document adequate informed consent for the treatment provided to the patient;

       
       

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    4. By failing to record an adequate and/or comprehensive diagnosis in Patient D.B.'s treatment record to justify Respondent's course of trcatmenL; including the presence of existing conditions and pathology in the patient's mouth.

       
       

13. Based on the foregoing, Respondent has violated Section 466.028(1)(m), Florida Statutes (2008) by failing to keep written dental records and medical history r!:!cords justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test results, and x-rays, if taken.

WHERl::FORE, Petitioner respectfully requests that the Board of Dentistry enter an order impusing one or more of the following penalties: pP.rmanent revocation or suspension of Respondent's licern,!:!, restriction of practice, imposition of an administrative fine, is.:;uance of a reprimand, placement of Respur1dent on probcition, correc.i.ive action, refund of fees

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billed or collected, remedial education and/or any other relief that the

Board deems appropriate.

SIGNED this /-?-;/_ day of

FILED

DE!'I\RTMl:N"i" OF HEM.Th

Ana M. Vlamonte Ros, D.B., M.P.H.

State Surgeon Gener I

_&_AAz I!;, ;               

Wayne 1tchell

9f!'UiY,,Cl.=l'lg,_

Cl.ERK. l ,

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Assistant General Counsel DOH Prosecution Servic Unit

OAT::: 2./ I f ;:;>,-01,.0

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PCP: ..2 /;.)./ I(JC

PCP Members: l · A1, LSI(, JJ

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399· 3265 Florida Bar# 869414

Phone: (850) 245-4640

Fax: (850) 245-4683

DOH v Ben Mac-Ryan Spivey, DMD; Case 71 2009-00927

NOTICE OF RIGHTS

Respondent has the right to request a hearing to be conducted in accordance with section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses And to have 1oubpoena and subpoena duces tecum i1osued on his or her behalf if a hearing i5 requested.

NOTICE REGARDING ASSESSMENT OF COSTS

Respondent is placed on notice that Petitioner has incurred costs related to the Investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation aind prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed.

\M@isal\wavn@ mitctud/\ 1-1Df..AC1 s\ iDiuY(XJCmnoo,-0927,erwnbridSt-dnr.

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Docket for Case No: 11-002187PL