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STATE OF FLORIDA DEPARTMENT OF HEALTH

DEPARTMENT OF HEALTH,

PETITIONER,

v. CASE NO. 2009-04610

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

RESPONDENT.

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ADMINISTRATIVE COMPLAINT

COMES NOW Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Dentistry against Respondent Ben Mac-Ryan Spivey, D.M.D., and in support thereof alleges:

1. Petitioner is the state department charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 466, Florida Statutes.

2. At all times material to this Complaint, Respondent was a licensed dentist within the State of Florida, having been issued license

   '1 number ON 16489.

   
   

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

   
   

   Florida, 34471.

   
   

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4. Respondent provided treatment to Patient R.J. from on or about October 24, 2006, to on or about October 16, 2008. Patient R.J. first

   presented to Respondent at "Spivey Dental Cala Hills Clinic" (Cala Hills) located at 2130 SW 22nd Pl # 102, Ocala, FL, 34471, on October 24, 2006. Respondent provided most of the treatment at issue in this complaint at Cala Hills, except for one emergent visit resulting in root canal treatment by Respondent on or about April 14, 2008, which was provided at Canopy Oak Modern Dentistry Clinic, 8075 SW Hwy 200, Ocala, FL 34481. Cala Hills and Canopy Oak clinics are two of six clinics in the Ocala, Florida area which the Respondent apparently operates under a dental management company known as "Dental Health Services" (DHS). DHS clinics in the Ocala area also include· Steeplechase, Health Brook, Spivey Modern

   : Dentistry, and Spivey Modern Dentistry, South.

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5. Patient R.J. first presented to Respondent on October 24, 2006.

   
   

   Respondent's treatment notes indicate the patient was seen for an initial oral exam during which Respondent took x-rays and recorded that the patient's "restorative" was charted, and that the patient had a retained primary tooth #H. Patient R.J. was referred to an orthodontist to close spaces on her front upper teeth. Respondent formulated a treatment plan

   for restoration (composite fillings) of eight teeth (numbers 2, 3, 15, 18, 19,

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   20, 30 and 31) and extraction of a retained primary tooth #H. Patient R.J. agreed with this plan.

6. During Respondent's initial exam, x-rays were taken, but no

   
   

   detailed diagnostic findings were recorded for the radiographs in the patient's treatment record. By failing to interpret an appropriate number and type of dental radiographs, Respondent failed to perforrn and/or record a complete and appropriately comprehensive diagnostic examination of Patient R.J.'s dentition prior to performing restorative treatment.

7. Respondent failed to perform and/or record the results of a comprehensive periodontal examination of Patient R.J., including but not limited to periodontal pocket depth probing and tooth mobility testing, during the patient's initial visit. Respondent therefore failed to address and/or develop a comprehensive diagnosis and treatment plan that

   , adequately addressed Patient R.J.'s condition prior to initiating significant

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   restorative work. Respondent further failed to record during the initial visit, or at any other visit of Patient R.J., a tooth charting, showing the condition of existing teeth, noting where restorations existed, noting overall conditions in Patient R.J.'s mouth, and noting the presence of pathology and/or decay.

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8. On or about August 31, 2007, Patient R.J. returned to Respondent for treatment consisting of a recall exam, hygiene appointment

   and filling of the eight teeth needing restorative treatment (numbers 2, 3, 15, 18, 19, 20, 30 and 31). Respondent failed to produce any original treatment notes indicating that none were maintained for this visit.

   Respondent's Account History. (a financial history of procedures billed for) showed that the eight posterior teeth were restored this day with composite restorations of various sizes (numbers 2, 3, 15, 18, 19, 20, 30

   and 31).

   
   

9. On May 6, 2009, Respondent apparently created and printed treatment notes for this appointment. The August 31, 2007, treatment

   notes created nearly two years later in May 2009, record that caries were diagnosed on several teeth. This progress note recorded the restorations

   · that were placed, including a three surface composite on tooth #15, an MOL restoration, and record that 2 carpules of anesthetic were used in performing composites on the eight teeth in 4 quadrants.

10. On or about April 14, 2008, Patient R.J. i,resented to

    
    

    Respondent at the Canopy Oak clinic with a chief complaint of a fractured

    tooth #8. The treatment note records that the nerve was exposed and indicates that tooth number 8 needed a root canal and that both teeth

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    numbers 8 and 9 should be crowned for esthetics. No other details were recorded for the root canal or crown preps this day in the original treatment note maintained by Respondent.

11. During the April 14, 2008 visit, Respondent took a preoperative Periapical x-ray of tooth number 8 and an x-ray labeled "Limited PA 4-14- 08". This ·radiograph revealed that tooth number 8 fractured, and also showed that the incisal ¼ of both teeth numbers 8 and 9 had significant

    occlusal wear, and that tooth number 10 was slightly rotated. Respondent

    
    

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    apparently completed the root canal and seated temporary crowns on teeth numbers 8 and 9 during this visit, but no original treatment notes describe that treatment in detail. Radiographs labeled "Endo Treatment Films" released by Respondent revealed two working length radiographs taken during the root canal procedure on tooth number 8, and showed that no rubber dam clamp was used on the tooth.

12. Patient R.J. returned for adjustments to the temporary crowns on April 17, 2008, and for a hygiene appointment April 29, 2008. On or about May 22, 2008, Respondent recorded that he adjusted teeth opposing the crowned teeth (numbers 24 and 25) to adjust the bite and fit. Respondent failed • to record in any of his treatment notes when he

    removed the temporaries, and seated the permanent final crowns at

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    Patient R.J.'s teeth numbers 8 and 9. His billing ledger indicates the final crowns were seated on or about April 29, 2008, but nothing is recorded in

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    .'. · treatment notes re: final fit, clinical/radiographic integrity and/or patient

    
    

    satisfaction.

    
    

13. Patient R.J. did not return for further treatment, and on October 16, 2008, complained a rubber dam should have been used during her root canal treatment which became infected, and requested a copy·of her treatment records be sent to her attorney. The instant complaint was

    t. filed in February 2009.

14. Respondent then created/modified a second progress note for the April 14, 2008, treatment visit on October 16, 2008, the same day Patient R.J. requested a copy of her records and complained that no rubber

    dam was used in her root canal treatment. This modified progress note

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    1 recorded details of the root canal at tooth number 8 and the crown preps on teeth numbers 8 and 9 performed on April 14, 2008.

15. The acceptable standard of care prior to performing root canal treatment includes, but is not limited to, an examination of the following: two radiographic views (bitewing and periapical); one or a combination of diagnostic tests, either pulp testing, thermal testing, and/or bite percussion; and periodontal probing/charting. A dentist should then fully

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    document and record the results of these tests, along with accompanying diagnosis, to support any proposed endodontic course of treatment. Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.J.'s tooth number 8.

16. The acceptable standard of care for a dentist performing root canal treatment includes, but is not limited to adequate examination, diagnosis and/or treatment including use of a rubber dam clamp for proper isolation of the tooth being treated from the rest of the oral environment (unless extenuating circumstances are noted which prevent use of a rubber dam). A dentist fails to meet the prevailing standard of care when a patient is not fully advised of the outcome of treatment and provided post­ treatment directions and/or re-treatment options when indicated. A patient

    
    

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    should always be provided pertinent post-op care instructions after any

    
    

    extensive treatment such as a root canal. Respondent failed to meet these requirements while or following, performing root canal treatment on tooth number 8 of Patient R.J.

    
    

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    COUNT ONE

    
    

17. Petitioner realleges and incorporates paragraphs one (1) through sixteen (16) as if fully set forth herein.

18. Section 466.028(1)(x), Florida Statutes (2006-2008), 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 prevailing peer performance, including, but not

    
    

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    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 constitutes grounds for disciplinary action by the Board of Dentistry.

19. Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance in one or more of the following ways:

    1. By failing to perform a complete and appropriately comprehensive radiographic examination of Patient R.J.'s dentition prior to initiating comprehensive restorative treatment;

       
       

    2. By failing to perform an adequate periodontal examination of Patient R.J., including but not limited to periodontal pocket depth charting and tooth mobility testing, prior to initiating comprehensive restorative treatment;

       
       

    3. By failing to perform an adequate diagnosis of Patient

       R.J. resulting from a comprehensive clinical examination and interpretation of an appropriate number and type of

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       dental radiographs prior to performing a tooth extraction and initiating restorative treatments;

       
       

    4. By failing to use a rubber dam clamp for proper isolation of Patient R.J.'s tooth number 8 during root canal treatment to isolate it from the rest of the oral environment or failing to note extenuating circumstances which prevented use of a rubber darn;

       
       

    5. By failing to fully advise Patient R.J. of the outcome of endodontic treatment on April 14, 2008, and not providing adequate post-treatment directions and/or re-treatment options if indicated; and/or

       
       

    6. By failing to record adequate exam results and/or perform a complete diagnosis in support of root canal treatment for Patient R.J.'s tooth number 8.

       
       

20. Based on the foregoing, Respondent has violated Section 466.028(1)(x), Florida Statutes (2006-2008), by being guilty of incompetence or negligence by failing to meet the minimum standards of

    ; •· performance in diagnosis and treatment when measured against generally

    ' .

    i 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.

    COUNT TWO

21. Petitioner realleges and incorporates paragraphs one (1) through sixteen (16) as if fully set forth herein.

    
    

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22. Section 466.028(1)(m), Florida Statutes (2006-2008), provides that 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, constitutes grounds for discipline by the Board of Dentistry.

23. Rule 64B5-17.002, Florida Administrative Code requires that a

    
    

    dentist shall maintain written records on each patient which shall contain, at a minimum, appropriate medical history; results of clinical examination and tests conducted including the identification, or lack thereof, of any oral

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    pathology or diseases; any radiographs 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 last examined or treated by the dentist.

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

    1. By failing to record the results of a complete radiographic examination following an exam on October 24, 2006, re: Patient R.J.'s dentition and periodontum prior to initiating restorative dental treatment;

       
       

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    2. By failing to record the results of a comprehensive periodontal examination of Patient R.J., including but not limited to periodontal pocket depth probing, teeth charting and tooth mobility testing, prior to initiating dental treatment following a comprehensive exam done on October 24, 2006;

       
       

    3. By failing to record and/or present written treatment options with explanation of risks/benefits associated with each in order to document adequate informed consent for the treatment provided to the patient;

       
       

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

       
       

    5. By failing to record/maintain any details of the original August 31, 2007, appointment re: placing of eight composite filling restorations;

       
       

    6. By failing to record/maintain any details of when the final permanent crowns at Patient R.J.'s teeth numbers 8 and 9 were seated, with details re: fit, marginal integrity, and/or patient satisfaction;

       
       

    7. By failing to record adequate diagnosis or exam results to justify the root canal treatment provided on Patient R.J.'s tooth number 8 at any time prior to or during the course of treatment in April 2008;

       
       

    8. By failing to record in the treatment notes that post·op instructions or discussions for Patient R.J. were provided appropriately following procedures performed April 14, 2008;

       
       

    9. By failing to maintain anywhere in his original treatment notes, treatment details and/or interpretation

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       in the treatment notes of adequate diagnostic (preferably periapical and one other) radiographs of Patient R.J.'s tooth number 8 prior to initiating and during root canal treatment of the tooth on or about April 14, 2008;

       
       

    10. By failing to record the results of any thermal, pulp, and/or bite percussion tests performed on Patient R.J. prior to initiating root canal treatment of tooth number 8 on or about April 14, 2008;

        
        

    11. By failing to record that a rubber dam was used in the April 14, 2008, root canal procedure on Patient R.J.'s tooth number 8, and if it was not, why it was not employed; and/or

        
        

        1. By failing to record an adequate diagnosis, symptoms, and accompanying treatment plan for Patient R.l prior to initiating root canal treatment of tooth number 8 on or about April 14, 2008-- Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.J.

           
           

25. Based on the foregoing, Respondent has violated Section

, , 466.028(1)(m), Florida Statutes (2006-2008) by 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.

WHEREFORE, Petitioner respectfully requests that the Board of

Dentistry enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of

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practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees

1.,

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

Board deems appropriate.

SIGNED this ...Id,.!/._, day of _h_r::_6 --- · 2010.

Ana M. Viamonte Ros, R.J., M.P.H.

f' LED

DEPARTMENT OF HEALTl-i

DEPUTVCLER - ..Ji      

State Surgeo

CLERK: '--                                

W*ell

DATE :;L/ I ,    ¾ 1-0

PCP: ..z/r J..,/ Io

Assistant General Counsel DOH Prosecution Services Unit

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

Phone: (850) 245-4640

Fax: (850) 245-4683

PCP Members: C/4/ 61<, I( ,,0

DOH v Ben Mac-Ryan Spivey, DMD; Case # 2009-04610

J:\PSU\Medical\wayne mltchell\1-l0f..AC's\Spivey (X)(m)09•04610.endocrwn.doc

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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 subpoena and subpoena duces tecum issued on his or her behalf if a hearing is 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 and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed.

DOH v Ben Mac-Ryan Spivex DMD; Case # 2009-0461O

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Docket for Case No: 11-002188PL