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ADMINISTRATIVE COMPLA..!NT
COMES NOW, the Petitioner, Department of Health, by and through its
. undersigned counsel, and files this Administrative Complaint before the Board of Dentistry against the Respondent, MARVIN ROSENBERG, D.D.S., and in support thereof alleges:
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.
Respondent is, and has been at ail times material hereto, a
licensed dentist in the State of Florida, having been issued license number DN 2599.
Respondent's address of record is 1515 N. Flagler Dr. Suite
301, W. Palm Beach, FL 33401.
Filed July 22, 2011 8:00 AM Division of Administrative Hearings
From on or about October 5, 2004, through on or about January 4, 2005, the Respondent provided dental care and treatment to Patient H.A.
On or about October 5, 2004, Patient H.A. presented to the Respondent as a new patient.
At the October 5, 2004 visit, the Respondent took a full mouth radiograph series and a panoramic radiograph. Respondent prescribed amoxicillin as a pre-medication, but failed to document the amount or
dosage in Patient H.Jt's dental RP pnnrlent rlirl not propose a
treatment plan at this visit.
On or about October 12, 2004, the Respondent evaluated Patient
H.A. for placement of dental impiants. Respondent's records do not indicate a comprehensive examination of Patient H.A.'s overall oral health conditions including, but not limited to, teeth charting and/or periodontal pocket depth probing. Patient H.A. had at this time a documented injury to the right inferior aiveoiar nerve resulting from the removal of a third moiar in 1952. Respondent did not record any discussion of this condition or examination of this nerve injury, and it is Patient H.A.'s contention that the previous nerve injury had largely resolved, with no lingering pain and only slight paraesthesia. Respondent apparently was proceeding with an
unwritten, unpresented treatment plan to surgically place implants at tooth sites 13, 30, and 31 to replace missing teeth. Respondent's records for Patient H.A. do not report any presentation of alternatives to the implant process including the comparative risks and benefits.
On or about October 26, 2004, a stent was fabricated and a computer tomography (CT) scan was obtained. Although not explained in Respondent's notes on Patient H.A., Respondent would use this CT scan for
Patient H.A. presented to the Respondent on or about November 9, 2004, at which time the Respondent described the implant procedure, along with the risks to the patient. Respondent's notes on Patient H..A.. do not indicate that the patient was informed of treatment alternatives or risks and benefits, but primarily consist of a note that Patient H.A. was "aware of fee of $2500 per implant." A plan was developed which included the use of four implants, three lower implants and one upper implant. A pre-operative plan that included planned ·,mplant placement was not included in the patient records.
On or about November 23, 2004, Patient H.A. was presented
with, and signed, a consent form for the procedure, following which, two implants were placed in the right posterior mandible in teeth sites 30 and 31.
These implants were subsequently found, by three subsequent treaters and a Department of Health retained expert, to have impinged and/or violated the inferior alveolar canal. There was adequate bone height for slightly shorter implant lengths to have been used. There is no indication of the type, amount, or delivery type of anesthesia used in this procedure. There is no notation of incision design, flap reflection, implant site preparation, bone quality, implant stability, suturing or complications. There is no indication of bone fill used, either in amount or type. Respondent used a navigation system, but there is no mention of the equipment or technique. There is no indication of postoperative instructions or postoperative medications, other than the description "standard."
The minimal standard of care in dental diagnosis and treatment
when placing implants requires a dentist to place implants in the optimal position for the success of the implant, and to avoid injury to adjacent nerves.
On or about November 30, 2004, Patient H.A. returned to Respondent for a postoperative visit. At this visit, Patient H.A. complained of pain on the right side. Respondent made a note which appeared to relate the pain to temporomandibular joint disorder (TMJ). There is no record of a TMJ examination. The patient was prescribed Ambien (zolpidem) and
referred to an endodontist. There is no mention of numbness in Respondent's treatment notes for Patient H.A. on this day, though in the endodontist's notes two days later, it is mentioned that Patient H.A. has been "numb since implant placement." There is no record of a physical exam of the nerve dysfunction, assessment or mapping of the nerve injury, or a diagnosis.
The Respondent improperly managed the complication Patient
The minimal standard of care for dental diagnosis and treatment following the placement of implants, which have compromised or affected the nerve, requires a dentist to affirmatively identify the scope and source of the injury and to inform the patient of the nerve injury as well as present the treatment options, including risks. The Respondent failed to affirmatively identify the scope and source of the dysethesia, anesthesia, and/or paraesthesia by failing to order a post-op CT scan to identify whether the implants caused the nerve damage by encroaching upon the nerve when it was being placed. The Respondent did not explain to Patient H.A. the prognosis of the nerve injury if the implant was left in place.
On or about December 1, 2004, Patient H.A. visited the endodontist, who stated that endodontic therapy on the lower right premolar (tooth number 28) was not needed, and that the symptoms were not endodontic. The endodontist's diagnosis was "paraesthesia from implant" and he recommended possible implant removal.
On or about December 7, 2004, Patient H.A. reported to Respondent that he was still in pain and that his lip was still numb.
infection and scheduled a follow up appointment for one month later. There is no indication of an examination of the ears or throat or why an ear infection was suspected. On or about December 8, 2004, a prescription was called in for the narcotic analgesic Vicodin.
On or about January 4, 2005, Respondent's notes in regard to
Patient H.A. indicate a consultation with an oral and maxillofacial surgeon. The consultation report from the surgeon indicates that Patient H.A. was referred by the patient's internist. Respondent's notes indicate Patient H.A. was showing some improvement but still had numbness and pain. The surgeon ordered a CT scan, anticipating that the implants would likely need removal. Patient H.A. indicated to Respondent that he did not wish to
continue treatment with the Respondent and did not wish to be called by the Respondent.
On or about January 5, 2005, the surgeon discussed the results of the CT scan with Patient H.A., and due to the complexity of the condition Patient H.A. was referred to a specialist oral and maxillofacial surgeon for evaluation and possible removal of the implants.
On or about January 13, 2005, the specialist surgeon diagnosed
The implants were removed under intravenous sedation and local anesthesia. Thereafter, the patient continued to see the original surgeon for follow up evaluations and management of the nerve injury.
COUNT I: DEFICIENT RECORDKEEPING
Petitioner re-alleges the allegations contained in paragraphs one
(1) through nineteen (19) as if fully incorporated herein.
Section 466.028(1)(m), Florida Statutes (2004), 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 disciplinary action by the Board of Dentistry.
Rule 64B5-17.002(b), Florida Administrative Code, provides that for the purpose of implementing the provisions of Section 466.028(1)(m), Florida Statutes, a dentist shall maintain written records on each patient which written records shall contain the results of clinical examination of the patient and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases, radiographs used for the diagnosis or treatment of the patient, treatment plan proposed by the dentist, and
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Respondent failed to keep written dental records and medical history records, properly justifying the course of treatment or the results of treatment of Patient H.A. in one or more of the following ways:
During his initial exam, Respondent failed to document a comprehensive examination of Patient H.A.'s oral health conditions along with a recorded diagnosis and interpretation of radiographs to support the restorative treatment regimen he performed including extractions and implant placements;
Respondent failed to record and present to Patient H.A. a
comprehensive treatment plan, including presentation of
treatment alternatives along risks/benefits associated with each;
with explanation of
During his initial exam, Respondent failed to document a comprehensive periodontal examination of Patient H.A.'s mouth along with depth probing/teeth charting prior to restorative treatment being provided including extractions and implant placements;
for and/or used anesthetic on Patient H.A., including antibiotics and controlled substance pain medication, but failed to record the appropriate dosage and/or amount of medication used and/or dispensed;
The Respondent failed to document in any of the patient
treatment records the type of, or the amount of, local anesthetic and/or bone fill that was used for the extraction and/or implantation procedures and/or any medications to be taken after extraction and implantation;
The Respondent failed to document the equipment or techniques used in extraction, or factors that arose, including but not limited
to, use of a navigation system, incision design, flap reflection, implant site preparation, bone quality, implant stability, suturing, and/or complications;
The Respondent proposed that Patient H.A.'s post-op pain was the result of TMJ, but failed to document an examination of the temporomandibular joint;
The Respondent proposed that Patient H.A.'s post-op pain was
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examination of the ears and/or throat; and/or
After the extraction and implantation, the Respondent failed to record a physical exam of the nerve dysfunction, assessment or mapping of the nerve injury, or a diagnosis of the nerve function.
Based on the foregoing, Respondent has violated Section 466.028(1)(m), Florida Statutes (2004) 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.
COUNT II: STANDARD OF CARE
The Petitioner re-alleges the allegations contained in
paragraphs one (1) through nineteen (19) as if fully incorporated herein.
Section 466.028(1)(x), Florida Statutes (2004), states that "[b ]eing 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
is not qualified by training or experience or being guilty of dental malpractice[,]" shall constitute grounds for disciplinary action by the Board of Dentistry.
The Respondent was negligent and failed to meet minimum standards of dental performance in diagnosing and treating Patient H.A. in one or more of the following ways:
During his initial exam, Respondent failed to perform a comprehensive examination of Patient H.A.'s condition along with adequate diagnosis and interpretation of radiographs to support the restorative treatment regimen he performed including extractions and implant placements;
Respondent failed to develop and present to Patient H.A. a comprehensive treatment plan, including presentation of treatment alternatives along with explanation of risks/benefits associated with each;
During his initial exam, Respondent failed to perform a comprehensive periodontal examination of Patient H.A.'s mouth along with depth probing/teeth charting prior to restorative treatment being provided including extractions and implant placements;
Respondent improperly placed implants in Patient H.A.'s mouth by performing implant surgery on Patient H.A. which resulted in an injury to the right mandibular branch of the trigeminal nerve resulting in postoperative complications, including, but not limited to, dysethesia, anesthesia, and/or paraesthesia;
Respondent failed to properly manage the post-op complication of numbness and pain in Patient H.A.'s mouth in that Respondent continued to manage the post-op complication of numbness and pain by maintaining status quo to see if
conditions improved without removal of the implants and/or affirmative referral to a specialist;
Respondent failed to explain to Patient H.A. the prognosis of the nerve injury if the implant was left in place or that removal of the implant and placement in another place was the preferred option for nerve recovery; and/or
Respondent failed to affirmatively identify the scope and source of the numbness and pain by failing to order a post-op CT scan to affirmatively identify whether the implants caused the nerve damage by encroaching upon the nerve when they were being placed.
Based on the foregoing, the Respondent has violated Section 466.028(1)(x), Florida Statutes (2004), by 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.
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 practice, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate.
SIGNED this 1+\,,_ day of //4-"-€-'"' b , 2009.
Ana M. Viamonte Ros, M.D., M.P.H. State Surgeon General
FILED
DEPARTMENT OF HEALTh
Qi;:PUTY CLERK
CLERK: Writ:;1-LLP
DATE JQ I 9/07
PCP: /;;_/,//ol
PCP Members: {2/Jf. Wf/.j F&
George Black
Ass.ista' nt General Counsel
DOH Prosecution Services Unit 4052 Bald Cypress \/Jay, Bin C-65 Tallahassee, Florida 32399-3265
Florida Bar# 0061639
850.245.4640 FAX 850.245.4683
Marvin Rosenberg, D.D.S., Case #2009-02206
NOTICE OF RIGHTS
Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Fiorida 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.
OTICE REGARDit G A.SSESSt 1Ei-JT OF COSTS
Marvin Rosenberg, D.D.S., Case #2009-02206
