STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2007-13053 ANTONIO OTERO, DDS, RESPONDENT. / 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, Antonio Otero, DDS, 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 number DN 10814. 3. Respondent's address of record is 780 Northwest 42 Avenue Suite 524, Miami, Florida 33126. Filed August 12, 2011 4:57 PM Division of Administrative Hearings 8002 20 AVW 4. Respondent provided dental treatment to Patient Y.H., an 80- year old female, from on or about May 15, 2006, through on or about February 14, 2007. 5. On or about May 15, 2006, Patient Y.H. presented to Respondent for a consultation related to replacing her existing, nearly 20 year old dentures, consisting of a maxillary complete denture, and a lower removable partial denture. Respondent performed an oral examination, took a health history, took panoramic x-rays and developed a treatment plan to extract tooth number 28, and then to fabricate a new upper complete denture and a lower removable partial denture. 6. Respondent failed to record the diagnosis and findings resulting from the exam performed on Patient Y.H. or about May 15, 2006, including notations re: pathology or lack thereof, and/or interpretation of the x-rays taken. Respondent did not document any diagnostic findings in his treatment notes for Patient Y.H. to support extraction of tooth number 28. 7. On or about August 23, 2006, as noted by Patient Y.H. and affirmed in a letter of response submitted by Respondent's counsel, Patient Y.H. returned to Respondent. Respondent extracted tooth number 28, but failed to note any findings or diagnosis regarding why and/or to note outcome of the procedure. JAPSU\Medical\wayne mitchell\1 -08fDntlAC's\Otero (x) (m)dntrs.07.13053.doe -2- 8. In fact, Respondent's treatment notes for Patient Y.H., erroneously list September 12, 2006, as the treatment date when tooth number 28 was extracted, and tersely read as follows: “9/12/06 Exam 1 Carp lidocaine, (illegible) extract #28, (illegible)”. 9. Patient Y.H. presented back to the Respondent on or about September 27, 2006, and Respondent began the denture fabrication process by taking impressions for the complete upper denture and lower removable partial dentures. 10. Patient Y.H. presented back to the Respondent.on or about October 18, 2006, and Respondent performed a try in of the upper full complete denture and lower removable partial dentures. On or about October 21, 2006, Respondent delivered and seated the final fu upper complete and lower removable partial dentures, noting only in Patient wits treatment notes “great fit” Denture Complaint Visits Not in Treatment Records 11. Patient Y.H. wore the new dentures for several days but _ presented back to the Respondent on or about November 1, 2006, complaining that the new dentures caused. pain/discomfort along with bleeding, blistering and swelling of the gums due to improper fit. Patient Y.H. also complained the lower partial came loose when she attempted to JAPSU\Medicalwayne mitchell\l-08fDntlAC's\Otero (x) (m)dntrs,07.13053 doe -3- eat, Patient Y.H. also presented with these complaints during a scheduled noted visit on November 29, 2006 (see below). 12. Respondent failed to document this complaint visit in the treatment notes for Patient Y.H., but noted it on a handwritten medication prescription form typically used to write a prescription for the patient to take to a pharmacy. Respondent noted on the prescription pad dated November 1, 2006, that he adjusted the upper complete and lower partial denture, gave oral hygiene instructions, while noting simply that “Patient having trouble adjusting to new prosthesis. Reassured she'll be okay”. Respondent failed to note in Patient Y.H.’s treatment notes the extent of the problem with the fit and retention of the new dentures, and/or the outcome of his attempted adjustments. 13. Patient Y.H. presented again to the Respondent on or about December 6, 2006, complaining again that the new dentures caused pain/discomfort along with bleeding, blistering and swelling of the gums due to improper fit. Patient Y.H. also complained the lower removable partial came loose when she attempted to eat. 14. Respondent failed to document this complaint visit in the treatment notes for Patient Y.H., but noted on a handwritten prescription pad dated December 6, 2006, that he adjusted the upper complete denture JAPSU\Medical\wayne mitchell\! -08fDntl AC's\Otero (x) (m)dntrs.07.13053.doc -4- and lower removable partial denture, advised Patient Y.H. to gargle with warm water/salt, gave her oral hygiene instructions, and noted “will follow up”. Respondent failed to note in Patient Y.H’s treatment notes the extent of the problem with the fit and retention of the new dentures, and/or the outcome of his attempted adjustments. 15. Patient Y.H. presented again to the Respondent on or about December 13, 2006, complaining again that the new dentures caused pain/discomfort and became loose during use due to improper fit. Patient Y.H. also complained the lower removable partial came loose when she attempted to eat. 16. Respondent failed to document this complaint visit in the treatment notes for Patient Y.H., but noted on a handwritten prescription pad_.dated_December.13, 2006, that he adjusted the upper complete denture and Jower removable partial denture, and advised Patient Y.H. to keep wearing the new dentures. Respondent failed to note in Patient Y.H.'s treatment notes the extent of the problem with fit and retention of the new _ dentures, and/or the outcome of his attempted adjustments, or whether he planned to refabricate the ill-fitting dentures. 17. Patient Y.H. presented again to the Respondent on or about January 17, 2007, complaining again that the new dentures caused J:APSU\Medical\wayne mitchell\] -08fDntlAC's\Otero (x) (m)dntrs.07,13053.doc -5- pain/discomfort and became loose due to improper fit. Patient Y.H. also complained the lower removable partial “popped out” when she attempted to eat. 18. Respondent failed to document this complaint visit in the treatment notes for Patient Y.H., but noted on a handwritten prescription pad dated January 17, 2007, that “Lower partial was bent out of place, adjustment. Fitted well, polish upper denture”. Respondent failed to note in Patient Y.H.’s treatment notes the extent of the problem with fit and retention of the new dentures, and/or the outcome of his attempted adjustments which consisted of taking the lower removable partial denture and pressing the metal retaining structure against the wall to try and “adjust it” for fit. Respondent failed to note whether he planned to refabricate the dentures. 19. Patient Y.H. presented again to the Respondent on or about February 14, 2007. During this visit, Respondent re-delivered the dentures to Patient Y.HY., after he took the new dentures to try and refit them during a scheduled January 31, 2007, office visit. Because of Patient Y.H.’s ongoing complaints re: fit, comfort, and retention of the new dentures, Patient Y.H. inquired if original impressions were faulty and if Respondent J:\PSU\Medical\wayne mitchell\i -O8fDntlAC's\Otero (x) (m)dntrs.07.13053.doc -6- would be willing to refabricate the defective upper complete denture and the lower removable partial dentures. Respondent refused. 20. Respondent failed to document this complainant's visit in the treatment notes for Patient Y.H., but noted on a handwritten prescription pad dated February 14, 2007, that he adjusted both dentures, and that “Patient tissues extremely fragile. Insisted she wear prosthesis, warm water rinses”. Respondent failed to note in Patient Y.H/s treatment notes the extent of the problem with fit and retention of the new dentures, and/or the outcome of his attempted-adjustment. Respondent failed to. note that he refused to refabricate the dentures, but told Patient Y.H. to wear the dentures a while longer and the problems with them would go away. Denture Complaint Visits Recorded in Treatment Records 21. Patient Y.H. continued to wear the new dentures after they were delivered on or about October 21, 2006, but presented back to the Respondent for a scheduled visit on or about November 29, 2006, complaining that the new dentures could enly-be worn for-2-3.-hours..at. a time because of pain/discomfort due to improper fit of the dentures which was also- causing blistering and swelling of the gums.-Patient-¥%H.—also complained the lower partial came loose when she attempted to eat. Respondent attempted to adjust the dentures by smoothing the sides, but J:\PSU\Medical\wayne mitchell\1-08fDntlAC's\Otero {x) (m)dntrs.07,13053.doc -7- failed to note in Patient Y.H.’s treatment notes the extent of the problem with fit and retention of the new dentures, and/or the outcome of his attempted adjustments. 22, After four of the unscheduled non-notated visits set forth above (recorded on prescription pad forms only) Patient Y.H. presented to the Respondent during a scheduled January 31, 2007, office visit. Respondent took and kept the new dentures to try and refit them by unspecified adjustments he planned to attempt. Because of Patient Y.H.’s ongoing complaints re: fit, comfort, and retention of the new dentures, Patient Y.H. inquired if original impressions were faulty and if Respondent would be willing to refabricate the defective upper and lower dentures. Respondent refused the idea saying it would be a waste of time. 23. Respondent failed to note in Patient Y.H.’s treatment notes for the January 31, 2007 visit, the extent of the problem with fit and retention of the new dentures, and/or the outcome of his many adjustments. Respondent failed to note that he refused to refabricate the dentures, but took and kept them to try some unspecified adjustments in the hope he would make them fit better upon re-delivery to Patient Y.H. 24. The defective dentures were re-delivered to Patient Y.H. during the final visit (unscheduled, noted only on prescription pad) on February JAPSU\Medical\wayne mitchell\1-08fDntlAC's\Otero (x) (m)dntrs.07,13053.doc -8- 14, 2007 (set forth above). The dentures were still defective, and Patient Y.H. subsequently presented to a subsequent treater who examined and advised her the dentures made by Respondent were defective and needed to be remade. Patient Y.H. subsequently filed this complaint on or about May 7, 2007. | 25. Following the multiple complaint visits of Patient Y.H., Respondent was fully aware the dentures he fabricated were painful, non- functional and non-retentive for Patient Y.H. At no time during or following the multiple complaint visits of Patient Y.H. regarding the poor fit and/or lack of retention of the new dentures that Respondent fabricated, did he present a treatment option to refabricate a more optimal upper complete denture and lower removable partial dentures for Patient-Y.H. Department Expert Reviews 26. In January 2008, a department expert was retained to review _the_case. file,..including..Respondent’s treatment records, along with the Patient’s complaint documentation. On or about January 19, 2008, the Department--expert-opined. -that-Respondent—-had_multiple_record-keeping deficiencies in the treatment records for Patient Y.H., as described above. The expert at that time was unable to render a definitive opinion on JAPSU\Medical\wayne thitehell\I -O8fDntlAC's\Otero (x) (m)dntrs.07.13053.doc -9- whether the lower removable partial denture fabricated by Respondent was defective and below the prevailing standard of care. 27. Onor about January 21, 2008, Patient Y.H. presented additional information to the Department, including treatment notes from the subsequent treater who examined her, along with the offer to present for a clinical exam~of the defective dentures. that. the-Respondent. fabricated. This supplemental documentation was forwarded to the Department expert, and on January 31, 2008, the expert conducted a clinical exam of Patient Y.H. to examine and determine whether the dentures fabricated by the Respondent were acceptable, or whether the dentures were defective. 28. Based on the January 31, 2008 clinical exam of Patient Y.H., the department expert was able to conclusively determine that patient Y.H. had excellent anatomy to support and retain a complete maxillary denture. The maxillary complete denture fabricated by Respondent had no retention and was ill filling. The patient’s old maxillary complete denture was over 20 years old (with severely abraded anterior teeth) but still had excellent —=retention,—In-sum;-the-department-expert.concluded that: —__...___ The denture created by Dr. Otero had no will to resist gravity. This denture did not meet minimum standards in that it was not retentive, and was extremely painful to the patient when seated and manipulated. The patient had excellent anatomy to support IAPSU\Medical\wayne mitchell\1-O8fDntlAC's\Otero (x) (m)dntrs.07.13053.doc -i0- a denture, a prosthodontist's (or a 4" year dental student's) dream. There is no excuse for a maxillary denture not being retentive with this patient’s anatomy. Dr. Otero should have recognized that there was something wrong with the maxillary denture he created when the patient presented initially with an existing maxillary denture that did have excellent retention. The patient’s complaint was that the teeth were worn out in her old denture. Dr Otero should have recognized that the patient had excellent anatomy and that something went wrong in one of his steps in creating the denture: from his initial impressions to somewhere in the lab. The denture created by Dr. Otero is not an acceptable prosthesis: it does not function as it should considering the patient's anatomy and conditions. 29. The clinical examination was performed on January 31, 2008, approximately one-year after the lower removable partial denture had been completed and inserted by the Respondent. The Respondent had re- inserted the lower removable partial denture on February 14, 2007, but Patient Y.H. had stopped wearing it due to pain and ill-fit. Because it had been approximately one-year post-insertion of the lower removable partial denture when the Department expert tried to examine it’s clinical fit and function, one or more teeth may have moved which may have prevented a conclusive evaluation at that time, yet it is clear from the Patient's complaints that the lower removable partial denture was deficient in fit, JAPSU\Medical\wayne mitchell\1 -O8fDntlAC's\Otero (x) (m)dntrs.07.13053 doe -11- function and retention such that it could not be worn and used by Patient Y.H. by the time the clinical exam was performed. 30. In addition, the Department expert noted that Patient Y.H. had given up trying to wear “it” (the lower removable partial denture) because it was too uncomfortable and painful. The expert noted he could not seat the mandibular removable partial denture because-the metal framework would not fit over the patient’s teeth and was extremely uncomfortable. This finding verifies Patient Y.H.'s original complaint(s) proximate to the time the lower removable partial was fabricated by the Respondent; i.e., that the lower partial was defective, ill-fitting, failed to achieve retention and was painful to wear. 31. The prevailing standard of dental care in performing extractions in preparation for placement of dentures requires a dentist to perform adequate diagnosis. to conclusively determine the necessity of performing.-an..extraction,..to.properly. note that diagnosis, and then to discuss any proposed procedure and denture placement options with the ~=patient.- The-patient-should-be-provided-with-explanation of any alternate treatment plans including risks/benefits of each, and be given a choice for the preferred plan. JA\PSU\Medical\wayne mitchell\l -O8fDntlAC's\Otero (x) (m)dntrs.07.13053.doc -12- 32. The prevailing standard of dental care requires a dentist who proceeds with fabricating dentures, to properly fabricate and seat optimally made dentures to achieve proper fit, function and retention in a patient’s mouth. Dentures which are properly made and seated should not cause ongoing pain and discomfort to a patient. A dentist who becomes aware that dentures fabricated by that dentist are defective when the dentures fail to ever achieve proper fit, function and retention for a patient is in violation of the standard of care if he/she fails or refuses to correct or refabricate the dentures upon patient request. 33. Respondent’s dental records for Patient Y.H. failed to justify the course of Patient Y.H.'s treatment in that the Respondent did not record an overall comprehensive written diagnosis with periodontal pocket depth charting, including a lack of findings and interpretation of x-rays made during the initial exam of Patient Y.H. Respondent provided no diagnostic clinical exam results to justify extraction of Patient Y.H.’s tooth number 28. The ~Respondent—also—failed--to—properly document. numerous “unscheduled” treatment visits when Patient Y.H. was seen re: complaints and problems withthe -dentures~fabricated--by-Respondent.--—-Respondent-failed-to.record during any of Patient Y.H.’s “complaint” visits, the extent of the problem with fit and retention of the new dentures he fabricated, and/or the outcome of I:APSU\Medical\wayne mitchell\l -O8fDntlAC's\Otero (x) (m)dnirs.07.13053.doc -13- his many adjustment attempts. Respondent failed to note that he refused to refabricate the dentures despite Patient Y.H.’s request or suggestion in that regard. COUNT I-Standard of Care 34. Petitioner realleges and incorporates paragraphs one (1) through thirty-two (32) as if fully set forth herein. 35. Section 466.028(1)(x), Florida Statutes (2005-2006), 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 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. 36. 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: a. Respondent failed to perform an overall comprehensive written diagnosis including a comprehensive periodontal examination and periodontal pocket depth charting, including a lack of findings and interpretation of x-rays made during the initial exam of Patient Y.H.; b. Respondent did not perform adequate diagnosis and treatment planning to conclusively determine the necessity of extracting Patient Y.H.’s tooth number 28, TAPSU\Medical\wayne mitchell\1-O8fDntlAC's\Otero (x) (m)dntrs.07.1 3053.doc -14- and failed to properly note that diagnosis, and then to discuss the proposed procedure and denture placement options with the patient. Patient Y.H. should have been provided with explanation of any alternate treatment plans including risks/benefits of each, and been given a choice for the preferred plan; Respondent fabricated a defective upper complete denture, which failed to ever achieve proper fit, function and retention in Patient Y.H.’s mouth, and instead caused ongoing pain and discomfort to the patient such that Patient Y.H. gave up trying to wear it and sought subsequent treatment elsewhere to replace it; Respondent fabricated a defective lower removable partial denture, which failed to ever achieve proper fit, function and retention in Patient Y.H.’s mouth, and instead caused ongoing pain and. discomfort to the patient such that Patient Y.H. gave up trying to wear it and sought subsequent treatment elsewhere to replace it, and/or; Respondent failed to properly correct or refabricate the defective upper complete denture and/or lower removable partial dentures he fabricated after he became aware of the problems and Patient Y.H. requested that, following his attempted numerous adjustments. Based on the foregoing, Respondent has violated Section 466.028(1)(x), Florida Statutes (2005-2006), 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 JAPSU\Medicaltwayne mitchell\1-68fDntlAC’s\Otero (x) (m)dntrs.07,13053.doc 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. -15- Count II--Recordkeeping 38. Petitioner realleges and incorporates paragraphs one (1) through thirty-two (32) as if fully set forth herein. 39. Section 466.028(1)(m), Florida Statutes (2005-2006), 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. 40. Rule 64B5-17.002(1), Florida Administrative Code requires that: for the purpose of implementing the provisions of subsection 466.028(1)(m), Florida Statutes, a dentist shall maintain written records on each patient which written records shall contain, at a minimum, the following information about the patient: a. Appropriate medical history; b. Results of clinical examination and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases; c. Any radiographs used for the diagnosis or treatment of the patient; d. Treatment plan proposed by the dentist; and e, Treatment rendered to the patient. J:APSU\Medical\wayne mitchell\I -08fDntlAC's\Otero (x) (m)dntrs.07,13053.doc -16- 41. Respondent failed to keep written dental records and medical history records justifying the course of treatment of the patient in one or more of the following ways: a. Respondent did not document any findings in his treatment notes for Patient Y.H. which would support his recommendation to extract tooth number 28, nor did he record any notes re: outcome of the procedure; b. Respondent failed to document and/or chart an overall comprehensive written diagnosis including a periodontal examination and periodontal pocket depth — charting, including a lack of findings and interpretation of x-rays made during the initial exam of Patient Y.H. on May 15, 2006, to support his diagnosis, treatment plan and course of treatment; c. Respondent failed to properly document numerous “unscheduled” treatment visits when Patient Y.H. was seen re: complaints and problems with the dentures fabricated by Respondent. Treatment notes are missing for November 1, 2006, December 6, 2006, December 13, 2006, January 17, 2007 and February 14, 2007. Respondent submitted inadequate “summary” notes for ___these five treatment dates that are written on prescription pad forms; d. Respondent failed to properly record treatment notes for Patient Y.H., by erroneously listing September 12, 2006, as the treatment date when tooth number 28 was extracted, when Patient Y.H. and Respondent’s-attorney -affirmed subsequently that the extraction date was August 23, 2006; e. Respondent failed to record during any of Patient Y.H.’s ‘complaint” visits, the extent of the problem with fit and retention of the new dentures he fabricated, and/or the outcome of his many adjustment attempts, and/or; f. Respondent failed to note that he refused to refabricate the dentures despite Patient Y.H.’s request or suggestion to the effect that perhaps the dentures were not JAPSU\Medical\wayne mitchell\] -08fDntlAC’s\Otero (x) (m)dntrs.07. 13053 doc -17- properly fabricated from the time of impressions, and could or should be redone. 42. Based on the foregoing, Respondent has violated Section 466.028(1)(m), Florida Statutes (2005-2006), by failing to keep written dental records and medical history records justifying the course of treatment of patient Y.H. 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 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, stenep this _//” day of My 2008. Ana M. Viamonte Ros, M.D., M.P.H. State syrgeon General ; YA, fod fi SV ods OOP ft ILED Way AMTAZ L, DEPARTMENT OF HEALTH H. Wayné Mitchell ouenk: 1 rae ERK Assistant General Counsel OATE,, ors Of DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar No. 13553 cP gfe /s £ (850) 245-4640, Fax 245-4682 PCP Members: CA), 77, AG DOH v Antonio Otero, DDS; Case # 2007-13053 JAPSU\Medical\wayne mitchell\}-O8fDntlAC's\Otero (x) (m)dntrs.07.13053.doc -18- 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 Antonio Otero, DDS; Case # 2007-13053 JAPSU\Medical\wayne mitchell\1-08fDntl AC's\Otero (x) (m)dnirs.07.13053.doc -19-

Docket for Case No: 11-004069PL