STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF DENTISTRY,

Petitioner,

vs.

RICHARD MOFFETT, DMD,

Respondent.

)

)

)

)

)

) Case No. 11-4506PL

)

)

)

)

)

RECOMMENDED ORDER

On November 21, 2011, a duly-noticed hearing was held by video conference with sites in Gainesville and Tallahassee, Florida, before Lisa Shearer Nelson, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey F. Rice, Esquire

Wayne Mitchell, Esquire Department of Health

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

For Respondent: William M. Furlow, Esquire

Grossman, Furlow and Bayo, LLC 2022 Raymond Diehl Road, Suite 2

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent committed a violation of section 466.028(1)(x), Florida Statutes

(2002-2004)1/, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On November 7, 2008, the Department of Health (Petitioner or the Department) filed an Administrative Complaint against Respondent, Richard Moffett, D.M.D. (Respondent or Dr. Moffett), alleging that he violated section 466.028(1)(x), Florida Statutes (2002-2004), with respect to his care and treatment of patient C.D. Specifically, the Administrative Complaint alleges that Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance by failing to treat C.D.'s periodontal problems prior to fabricating the fixed bridge for teeth numbers 18-20, and failed to treat carious areas in C.D.'s mouth prior to preparing the patient's teeth for a bridge.

Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On September 6, 2011, the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge.

A Notice of Hearing was issued September 20, 2011, scheduling the hearing to commence on November 21, 2011. On October 19, 2011, Petitioner moved to amend the Administrative Complaint, and pursuant to an Order dated November 3, 2011, an

Amended Administrative Complaint was filed with the Division. The Amended Administrative Complaint corrected minor errors but did not change or add to the statutory allegations charged in the original Administrative Complaint.

Prior to the hearing, the parties filed a Joint Prehearing Stipulation containing several stipulated facts for which no evidence at hearing was required. To the extent relevant, those facts have been incorporated into the findings of fact below.

The hearing proceeded as noticed. At hearing, Joint Exhibits 1-3 were admitted into evidence. Petitioner presented the testimony of Respondent and James Jackson, D.M.D., and Petitioner's Exhibits 1-7 and 9 were admitted into evidence.

Respondent presented the testimony of James Haddix, D.D.S., and Respondent's Exhibits 1-4 were admitted.

The Transcript of the proceedings was filed with the Division on December 12, 2011. Both parties timely filed Proposed Recommended Orders, which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the regulation of the practice of dentistry pursuant to section

   20.43 and chapters 456 and 466, Florida Statutes.

   
   

2. Respondent, Richard Moffett, D.M.D., is a licensed dentist in the state of Florida, having been issued license DN 10580. His current address of record is 1776 Tamiami Trail, Venice, Florida 34293.

3. Respondent provided dental care and treatment to Patient C.D. beginning on or about March 12, 2003.

4. On or about March 12, 2003, C.D. presented to Respondent as a new patient. Although there is some indication that Respondent saw C.D. around 1990, there are no records regarding any treatment rendered at that time, and any treatment given in or around 1990 is not relevant to this proceeding.

5. The last time C.D. received actual treatment from Respondent was September 15, 2003, although he provided her a consultation on March 23, 2005.

6. C.D. presented to Respondent on March 12, 2003, complaining of swelling and pain in the lower left side of her mouth. C.D. signed a consent form indicating that she understood that she was having an emergency examination pertaining to an isolated problem, and she needed to return for a full mouth examination. Respondent diagnosed an abscess on tooth number 29 and recommended either extraction or root canal treatment. He began root canal treatment, for which C.D. signed a consent form. The root canal was completed on March 20, 2003.

   
   

7. On March 20, 2003, C.D. returned to Respondent's office, and Respondent conducted a comprehensive evaluation and took x-rays of C.D.'s mouth. As part of his evaluation Respondent performed periodontal pocket depth probing and charted the results. C.D. had a probing depth range from 3mm to 7mm. Readings over 3mm are an indication of periodontal disease.

8. C.D. did not present as an average patient. The problems existing in her mouth at the time of the comprehensive exam included missing teeth, widespread decay, a TMJ problem, and periodontal disease. Specifically, C.D. had moderate to advanced periodontal disease, and caries (areas of decay) at teeth numbers 2, 3, 11, 14, 18, 20, 21 and 22 and perhaps others.

9. At the March 20, 2003 visit, Respondent finished the root canal for tooth number 29 and focused on the problems identified in the lower left quadrant of her mouth, because that was the area that was bothering her. Tooth number 19 was missing, and tooth number 14, positioned over tooth number 19, had moved down into the space where tooth number 19 should have been. Tooth 18 was tipped forward into the space that should have housed tooth 19, and tooth 20 had broken off at the gum line from the constant impact from tooth 14, above it. C.D. had

   
   

   TMJ issues on the left side of her mouth, and teeth 20 and 21 had cavities as well.

10. At this visit, Respondent proposed a treatment plan to

    
    

    C.D. that included a bridge spanning teeth numbers 18-20 and a bridge spanning teeth numbers 29-31. He advised C.D. regarding what was needed; and that crowns alone on teeth 20 and 21 would not suffice, and that temporary crowns would break down. He also, however, recommended gross debridement, root planing and curettage, which are methods of cleaning the teeth and providing periodontal treatment.

11. As is discussed more fully below, C.D. did not follow Dr. Moffett's recommendations regarding any sort of periodontal treatment or even basic dental hygiene. C.D. had not had her teeth cleaned since at least 1989. She claimed that prior to 1990, the dentist she saw, as opposed to staff within the dentist's office, had cleaned her teeth twice a year; that her routine of brushing, using a Sonicare and Water-Pic was sufficient; and that she saw little problem with her dental hygiene. She admitted to shaving ten years off of her age in her medical records, but did not consider recording her birth date at 1947 (as opposed to 1937) to be a lie. C.D.'s testimony, provided by deposition, was less then credible.

    
    

12. On April 2, 2003, Respondent examined tooth number 29, prepared it for a crown and reviewed the treatment plan with

C.D.

1. On May 27, 2003, C.D. returned to Respondent's office

   
   

   for a previously scheduled visit. At that time, C.D.'s chief complaint was that teeth 20 and 21 were bothering her.

   Respondent noted that C.D.'s bite was slightly sensitive at tooth number 29. Respondent indicated that teeth numbers 20 and

   21 were scheduled for restorations at C.D.'s next visit, and that Respondent would re-evaluate tooth number 29 for possible fracture in three months. Respondent's treatment notes for this day state: "wants to start with #20, 6/9 @10am, Just Lower Left right now." C.D.'s patient records for this date also indicate the need for gross debridement and oral hygiene instruction.

2. On June 9, 2003, C.D. presented to Respondent for treatment, and Respondent prepared teeth numbers 20 and 21 for crowns, which included addressing the caries for those teeth. Respondent placed a temporary crown on tooth number 20 and/or

1. For the next visit, Respondent noted the need for "prophy OHI (oral hygiene instruction) ASAP." Although scheduled for July 8, 2003, C.D. did not present for teeth cleaning, gross debridement, or root planning, all procedures recommended by Dr. Moffett, at any time during his treatment of her.

   
   

   1. On July 8, 2003, Respondent reviewed C.D.'s treatment plan regarding the bridge for teeth 18-20. He again noted the need for oral hygiene instruction as soon as possible. Notes regarding plans for the next visit state the following:

      1. Adjust occlusal length of 14

         - Prep/buildup 18

         -impress 18/20 bridge, 21 crown

         -bond 23, 26

         -redo 24/25 crowns?

         -review treatment needs per treatment plan 3,2,4, 5?

      2. -- prophy/ASAP/OHI

         
         

   2. On August 14, 2003, C.D. presented for treatment, and Respondent reduced the occlusion for tooth 14, addressed the deep caries on tooth 18 and performed the buildup and preparation for that tooth. He also took alginate impressions for a temporary bridge.

   3. On September 3, 2003, it appears that Respondent seated the temporary bridge for teeth numbers 18-20. Respondent also took impressions for fabricating a permanent bridge. Although Respondent sent the mold to the laboratory to create the dental models for a permanent bridge, no permanent bridge was ever seated.

   4. Respondent's office charged C.D. and her insurance company for a permanent bridge. C.D. brought the charge to his attention several years later, and he refunded the insurance company the difference between the cost of a permanent bridge and a temporary bridge, adjusted charges for permanent crowns to

      
      

      temporary crowns, and deleted existing interest charges on her account.2/

   5. On September 15, 2003, C.D. presented to Respondent for treatment. At this visit, C.D. told Respondent that she wanted to conserve treatment within insurance coverage limits, and wanted fillings as opposed to crowns, or temporary crowns only. Respondent reviewed her treatment needs with C.D., and advised that he did not think teeth numbered 4 and 5, which were scheduled for restoration, were structurally sound enough to support fillings. At the patient's request, Respondent placed new fillings in teeth numbers 4 and 5 instead of crowning them.

   6. The patient note for the September 15, 2003, visit, consistent with prior notes, indicated the need for gross debridement and root planing. There is also a note for a referral for periodontal surgery.

   7. On October 30, 2003, C.D. received a letter from Sherri Moffett, who served as the bookkeeper for the office, regarding her outstanding balance. The letter stated in part, "we are working with the laboratory to complete your crown and bridge work in the next few weeks." Ms. Moffett, however, did not testify and Dr. Moffett neither wrote nor knew about the letter. The statements contained in the letter provide no persuasive information regarding Dr. Moffett's intentions for C.D.'s course of treatment, or whether he would have placed the

      
      

      permanent bridge before the patient's periodontal condition was addressed.

   8. C.D. did not return to see Respondent again until March 23, 2005. At that time, she wanted a new temporary crown for tooth number 29. Respondent advised her she needed a permanent crown on the tooth, which she did not choose to have.

   9. The Department presented the testimony of James W. Jackson, D.D.S. Dr. Jackson graduated from Northwestern University Dental School and was in private dental practice in Clearwater, Florida, from 1966 to 2009. Since that time,

      Dr. Jackson has volunteered weekly at a local dental clinic. Dr. Jackson's primary concern was that it did not appear to him that Respondent had ever presented to C.D. a treatment plan addressing all of her dental situation, with options of treating those disease processes, and the fees involved for the options presented.3/ He also took issue with Respondent beginning the fabrication of the fixed bridge and the crown on the lower left side before any of the periodontal disease and active decay processes were resolved.

   10. Dr. Jackson opined that the proper sequence of dental treatment is 1) to get to know the patient; 2) if the patient is in pain, to do whatever is necessary to alleviate the pain;

       3) to perform an examination if the patient is to become a patient of record; 4) to make a diagnoses from the examination

       
       

       to determine what difficulties are present for the patient; and

       
       

       5) propose a treatment plan to the patient and decide with the patient how to proceed. In addition to his criticism that Respondent did not present a comprehensive treatment plan, he opined that it was improper to begin a permanent bridge for C.D. without first addressing her periodontal disease and addressing the caries in her mouth.

   11. Respondent presented the expert testimony of Dr. James

       
       

       E. Haddix, D.M.D. Dr. Haddix graduated from the University of Florida College of Dentistry in 1977, and has been licensed in Florida since 1978. He has served on the faculty of the College of Dentistry since 1991, and is currently an associate professor and assistant dean for continuing dental education, and director of the comprehensive dentistry continuing education program.

       Dr. Haddix continues to practice dentistry through the University's Academic Enrichment Fund, which is a faculty practice clinic.

   12. In Dr. Haddix's opinion, Respondent did not fail to meet the appropriate standard of care. He did not believe that stabilizing an area of the mouth with a temporary bridge falls below the standard of care, and in his words, "you have to start somewhere, and he started in the area of the patient's chief complaint." Dr. Haddix also stated that a dentist cannot treat all areas of the mouth simultaneously, and it was permissible

       
       

       for him to treat one quadrant of the mouth at a time.

       
       

       Dr. Haddix's opinion did not change in light of the fact that Dr. Moffett took impressions for a permanent bridge.

   13. Dr. Moffett testified that he agreed that the periodontal disease in C.D.'s mouth needed to be treated before a permanent bridge could be placed. He consistently recommended periodontal treatment in the form of gross debridement, followed by root planing as necessary as a part of his treatment plan, and the patient continued to put if off. He testified that he planned to keep C.D. in the temporary bridge as long as necessary to stabilize her occlusion and her TMJ, and to address to the periodontal issues. If the patient continued to refuse to address the periodontal issues, then he would not have placed the permanent bridge, and ultimately did not do so.

   14. Dr. Moffett acknowledged that there was a good chance that once the periodontal treatment was completed and the TMJ addressed, new impressions would have to be taken for the permanent bridge, but testified that it was his policy not to charge the patient if a new impression was required. He agreed in principle with the sequence of treatment advocated by

       Dr. Jackson, but stated that his treatment was consistent with that sequence in that his stabilization of the lower left quadrant was designed to address her area of pain.

       
       

   15. After careful review of all of the evidence presented, the testimony of Dr. Moffett and Dr. Haddix is credited, and it is found that Dr. Moffett's treatment of patient C.D. did not fail to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2011).

   17. This is a proceeding to take disciplinary action against Respondent's license to practice as a dentist. Because of the penal nature of these proceedings, the Department has the burden of proving the allegations in the Amended Administrative Complaint by clear and convincing evidence. Dep't of Banking

       and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). As stated by the Supreme Court of Florida,

       Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the

       
       

       truth of the allegations sought to be established.

       
       

       In re Henson, 913 So. 2d 579, 590 (Fla. 2005), (quoting

       
       

       Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

       
       

   18. Moreover, in disciplinary proceedings, the statutes and rules for which a violation is alleged must be strictly construed in favor of Respondent. Elmariah v. Dep't of Prof'l Reg., 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of

       Prof'l Reg., 534 So. 2d 782, 784 (Fla. 1st DCA 1988).

       
       

   19. Respondent is charged with violating section 466.028(1)(x), which provides in pertinent part:

       (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       
       

       * * *

       
       

       (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. . . .

       
       

   20. Section 466.003(3) provides the following definition for the practice of dentistry:

       1. "Dentistry" means the healing art which is concerned with the examination, diagnosis, treatment planning, and care of conditions within the human oral cavity and its adjacent tissues and structures. It includes the performance or attempted

          
          

          performance of any dental operation, or oral or oral-maxillofacial surgery and any procedures adjunct thereto, including physical evaluation directly related to such operation or surgery pursuant to hospital rules and regulations. It also includes dental service of any kind gratuitously or for any remuneration paid, or to be paid, directly or indirectly, to any person or agency. The term "dentistry" shall also include the following:

          
          

          1. The taking of an impression of the human tooth, teeth, or jaws directly or indirectly and by any means or method.

             
             

          2. Supplying artificial substitutes for the natural teeth or furnishing, supplying, constructing, reproducing, or repairing any prosthetic denture, bridge, appliance, or any other structure designed to be worn in the human mouth except on the written work order of a duly licensed dentist.

             
             

          3. The placing of an appliance or structure in the human mouth or the adjusting or attempting to adjust the same.

             
             

          4. Delivering the same to any person other than the dentist upon whose work order the work was performed.

             
             

          5. Professing to the public by any method to furnish, supply, construct, reproduce, or repair any prosthetic denture, bridge, appliance, or other structure designed to be worn in the human mouth.

             
             

          6. Diagnosing, prescribing, or treating or professing to diagnose, prescribe, or treat disease, pain, deformity, deficiency, injury, or physical condition of the human teeth or jaws or oral-maxillofacial region.

             
             

          7. Extracting or attempting to extract human teeth.

             
             

          8. Correcting or attempting to correct malformations of teeth or of jaws.

             
             

          9. Repairing or attempting to repair cavities in the human teeth.

       
       

   21. The Amended Administrative Complaint specifically alleged that Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, and therefore violated section 466.028(1)(x), by the following conduct:

       1. The Respondent failed to treat Patient C.D.'s periodontal problems prior to embarking upon the fabrication of a fixed bridge treatment, from teeth numbers 18-20; and/or

          
          

       2. The Respondent failed to adequately treat carious areas in Patient's mouth prior to preparing the patient's teeth for bridge restoration.

       
       

   22. The Department did not prove the allegations in the Amended Administrative Complaint by clear and convincing evidence.

   23. While Dr. Jackson was most concerned with the failure to present an overall treatment plan, the Department did not allege this potential deficiency in the Amended Administrative Complaint. A licensee may only be disciplined for matters alleged in the charging document. Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep't of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep't of

       
       

       Prof. Reg., 563 So. 2d 805 (Fla. 1st DCA 1990).

       
       

   24. It is undisputed that Respondent consistently recommended periodontal treatment and oral hygiene instruction for C.D., and did so before any impressions were made of her mouth. C.D. refused to follow these recommendations, and

       Dr. Moffett's testimony that he would not have placed the bridge until she completed periodontal treatment is persuasive.

   25. The more persuasive evidence also indicates that it is permissible to address one quadrant of the mouth at a time, especially where, as was the case here, there were approximately

       20 teeth with active decay. The Department did not present any evidence to indicate that Respondent left carious teeth in the lower-left quadrant untreated.

   26. While the Department asked questions regarding general standards in dentistry and asked Dr. Jackson his opinion about the appropriateness of Respondent's conduct, it did not ask its expert witness whether he had an opinion within a reasonable degree of dental certainty whether Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, and if so, the substance of his opinion. Without these questions and a stated opinion that Respondent's conduct violated this standard, the undersigned cannot find a violation by clear and convincing evidence. Even assuming the question had been asked, however,

the more persuasive evidence was that Respondent did not violate the appropriate standard of care.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that the Florida Board of Dentistry enter a Final Order dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 31st day of January, 2012, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2012.

ENDNOTES

1/ The relevant provisions of Section 466.028(1)(x) are the same for this period of time.

2/ Respondent was not charged with any purported improprieties with regard to charges related to services provided to C.D.

3/ Respondent was not charged with failing to present an overall treatment plan.

COPIES FURNISHED:

William M. Furlow, III, Esquire

Grossman, Furlow and Bayo, LLC 2022 Raymond Diehl Road, Suite 2

Tallahassee, Florida 32308

Geoffrey Frederick Rice, Esquire Wayne Mitchell, Esquire Department of Health

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

Susan Foster, Executive Director Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258

Nicholas W. Romanello, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 11-004506PL

Orders for Case No: 11-004506PL