STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, Ve CASE NO. 2007-15091 Alan Kelman, D.D.S., 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, Alan Kelman, D.D.S., 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 17054. 3. Respondent's address of record is 6439 N.W. 43rd Terrace, Boca Raton, Florida 33496 Filed November 7, 2011 4:59 PM Division of Administrative Hearings 4, Respondent provided treatment to Patient K.B. from on or about September 14, 2005, through on or about December 14, 2005. 5. On or about September 14, 2005, Patient K.B. presented to Respondent and indicated a desire to establish a reguiar dentist/patient relationship with the Respondent. 6 On or about September 14, 2005, Respondent performed a radiographic examination and billed for a comprehensive clinical examination; however, there are no dental treatment records indicating what specific examinations were performed as part of the comprehensive clinical examination and the results thereof, to include the presence or lack thereof of any oral hard or soft tissue pathology or disease. Respondent's treatment records contain an anatomical dental tooth charting form and periodontal form which are completely blank. Respondent failed to chart the condition of Patient K.B.’s dentition, including but not limited to the patient’s missing and existing teeth, the patient's presence of caries or fractured teeth; the patient's existing restorations or conditions of existing restorations pathology or lack thereof; results of a periodontal examination, including but not limited to periodontal pocket depth probing, the condition of the patient's gingiva and tooth mobility; or endodontically involved teeth which would justify any diagnosis and treatment plan and/or the billing for a comprehensive dental examination. In addition, Respondent failed to record the results and his J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 2 interpretation of the dental radiographic examination; therefore, it is unknown what diagnosis Respondent formulated from the entire clinical comprehensive examination and/or the radiographic examination. 7. Respondent's billing for a comprehensive oral examination with the current dental terminology (CDT) code i150 requires that Respondent perform a “thorough evaluation and recording of tl hard and soft tissues.” Respondent failed to meet this standard of examination and/or documenting in the patient treatment records if such a clinical evaluation was actually performed. @ QO © = oO 3 8. On or about September 14, 2005, Respondent did r limited treatment plan in the patient treatment records for restorations to be completed on teeth numbers 2, 3, and 4. Respondent failed to record a diagnosis for the limited treatment plan to justify the restorations of Patient K.B/s teeth numbers 2, 3, and/or 4. Respondent failed to formulate a comprehensive diagnosis and a comprehensive treatment plan. 9. - On or about September 21, 2005, Patient K.B. presented back to Respondent. Respondent preformed composite tooth restorations on teeth numbers 2, 3, and 4. Respondent failed to properly record in the patient treatment records the type of and the amount of local anesthetic that was used; and Respondent failed to chart the specific surfaces of the teeth that were needed to be restored or were restored in order to maintain an accurate 3:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 3 charting of Patient K.B’s dentition and to accurately reflect the actual clinical 10. On or about September 30, 2005, Patient K.B. presented back to Respondent exhibiting pain associated with tooth number 2. Respondent's patient treatment records indicate that there was pain and percussion sensitivity on tooth number 2, 11. On or about September 30, 2005, Respondent performed root canal treatment to tooth number 2. Respondent's treatment records reflect in part, “ RCT. Pt. told of instrument in B canal. B&P 19mm? 2 Buccal canais?” Respondent broke a file during the instrumentation of the mesial-buccal canal; Respondent was unable to by-pass the file and completely obturate the mesial-buccal canal. 12. Radiographs taken by Respondent on or about September 30, 2005, reveal that Patient K.B.'s tooth number 2 had three roots: a palatal root; a mesial-buccal root; and a distal-buccal root. The mesial-buccal and the distal-buccal roots are not jointed at the apex of the roots and are completely separate roots with completely separate root canals. The radiographs reveal that the Respondent failed to completely and appropriately obturate the root canal of the mesial-buccal root. The obturation of the mesial-buccal canal is approximately 4 mm — 6 mm short of the radiographic apex of the root. 3:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Keiman DDS (x)(m)(final).doc Page 4 13. Radiographs taken by a subsequent treater on or about February 6, 2006, of the root canal performed by Respondent on tooth number 2 reveal that there is a fine fractured file at the apex of the mesial-buccal canal and that the coronal portion of the mesial-buccal canal is filled. The radiographs also show there was a slight radiolucency between the fractured instrument and the obturated portion. The radiograph reveals an incompletely obtu mesial-buccal canal in that the file does not appear to have been by-passed by Respondent to have a complete root canal obturation that was appropriately ‘close to the radiographic apex of the tooth. 14. On or about September 30, 2005, Respondent performed a root canal of Patient K.B’s tooth number 2 and did not properly obturate the mesial-buccal canal and had an instrument failure and/or fracture in the canal, and Respondent failed to properly treat the canal by retrieving the file or by- passing the file to ensure a properly obturated canal. Respondent failed to properly retreat the poorly obturated canal and/or failed to refer Patient K.B. to an endodontist specialist for evaluation and re-treatment of the poorly obturated canal. Further, Respondent did not record in the patient treatment records that he had attempted to retrieve the broken endodontic file or by- pass the broken file, or that he offered any referral to an endodontist specialist to justify his course of treatment, although Respondent was aware of the broken endodontic file and/or poorly obturated canal. J: \PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 5 15. On or about October 5, 2005, Patient K.B. presented back to Respondent with pain in the lower right area. Respondent's records reflect that tooth number 2 was asymptomatic and that teeth numbers 3 and 4 were “ok.” The treatment records reflect teeth numbers 30 and 31 were sensitive to cold and that Respondent treated tooth number 30 with a buccal filling and tooth number 31 with an occlusal amalgam restoration. Respondent treatment records reveal Respondent scheduled Patient K.B.'s next visit to continue with the root canal on tooth number 2. 16. On or about October 14, 2005, Patient K.B. presented back to Respondent. Respondent noted that teeth numbers 30 and 31 were “ok.” Respondent's patient treatment records further reflect that Respondent by-passed the file in the mesial-buccal canal of tooth number 2. Respondent further recorded that the mesial-buccal canal joined the distal-buccal canal at the apex of the tooth and that he informed the patient of such. Respondent's treatment records are not accurate in that Respondent did not properly by-pass the broken endodontic file in the mesial-buccal canal and further, the mesial-buccal canal and the distal-buccal canal were not joined at their apices as the two buccal roots are not joined, and there are two separate buccal roots with separate canals as evidenced by a review of the dental radiographs that were taken. Respondent also failed to document the type of and the amount of local anesthetic that was used during the course of J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS 0d(m)(Final).doc Page 6 this treatment. Simply stated, Respondent's patient treatment records are inaccurate and contradictory to Respondent’s own radiographs and the subsequent treater’s radiographs and findings. The obturation of the mesial- buccal canal was incomplete and was short of the radiographic apex by 4mm -6mm and Respondent failed to properly retreat the mesial-buccal canal anc failed to refer Patient K.B. to an endodontist specialist for evaluation and re- treatment of tooth number 2. 17. On or about November 2, 2005, Patient K.B. presented back to the Respondent due to pain associated with tooth number 2, Respondent recorded in the patient treatment notes that the bite on tooth number 2 was adjusted and that Patient K.B. was made aware of the “short fill” of the mesial-buccal canal. Respondent’s own treatment records clearly indicate that he was aware of the poorly obturated mesial-buccal canal, yet Respondent still failed to properly re-treat the canal or refer Patient K.B. to an endodontist specialist for evaluation and possible re-treatment. 18. On or about December 12, 2005, Patient K.B. presented back to Respondent due to pain in the upper right and lower left quadrants. Respondent's treatment records reflect “# 2 asymptomatic # 3 cold sens.” The patient treatment records reflect that Respondent then began root canal treatment (pulpotomy) on tooth number 3, a tooth that was adjacent to tooth number 2 with the poorly obturated mesial-buccal canal. Respondent's 3:\PSU\Medical\Dentistry\David Flynn\Admin Compiaints\2009\March\Kelman DDS (x)(m)(final).doc Page 7 patient treatment records do not record any tooth vitality, percussion tests or other clinical testing in order to isolate where Patient K.B.'s pain was coming from. It would not be uncommon for tooth number 2 to be the source of the pain due to the recent root canal treatment that was poorly obturated. Respondent's patient records indicate that tooth number 2 was asymptomatic erformed which were necessary since tooth number 2 would not have been expected to be symptomatic to cold water or air due to the recent root canal having been completed. However, to isolate the source of the pain and to justify the course of treatment to tooth number 3, it would be critical to perform and to record clinical and diagnostic test results that rule out whether tooth number 2 was the source of Patient K.B.s pain and/or discomfort such as sensitivity to percussions, lateral palpation of the adjacent tissues, or tooth mobility. 19. On or about December 14, 2005, Patient K.B. presented back to Respondent in pain. Respondent originally recorded in the patient treatment records that tooth number 14 had swollen gums in the mesial-buccal area, that tooth number 14 was drilled upon, that the pulp chamber was clinically opened without anesthetic, and that tooth number 15 was asymptomatic. Later, Respondent amended the treatment notes to reflect that reference to teeth numbers 14 and 15 were in fact in relation to teeth numbers 2 and 3. It is confirmed by radiographs that tooth number 14 still had a vital pulp and 3:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x\(m)(final).doc Page 8 would not tolerate being opened up without having local anesthesia. Consequently, it is likely Respondent actually meant that the patient presented with pain in the upper right and not the upper left and that he actually was referring to teeth numbers 2 and 3 and not teeth numbers 14 and i5. @m 20. On about December 14, 2005, Respondent recorded that h again reminded Patient K.B. of the blocked canal in tooth number 2. Respondent, aware of the poorly obturated mesial-buccal canal in tooth number 2, failed to properly re-treat the canal and failed to properly refer Patient K.B. to an endodontist specialist for evaluation and/or re-treatment. 21. By on or about December 14, 2005, Respondent had finished the root canal therapy on tooth number 2. | 22. On or about December 14, 2005, Patient K.B. presented to Respondent with swelling and pain in the upper right area and Respondent simply recorded that he opened up tooth number 14, likely meaning tooth number 3. Respondent simply recorded swelling and then simply recorded that he opened tooth number 3. There are no records to justify opening the tooth or the treatment that Respondent actually performed. Respondent failed to document that any exudate were coming from tooth number 3 after opening it, and there was no justification for not referring Patient K.B. to a specialist or not instrumenting a potentially blocked root canal to attempt J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Keiman DDS (x)(m)¢final).doc Page 9 drainage of an acute or chronic infection. The failure of Respondent to act resulted in Patient K.B/s infection getting significantly and acutely worse which ultimately led to Patient K.B’s hospitalization as evidenced by Patient K.B/s subsequent treatment and clinical evaluations. 23. On or about December 15, 2005, Patient K.B. had lost trust in and pain in the upper right quadrant. The subsequent treater immediately referred Patient K.B. to an oral and maxillofacial surgeon that was on-call in the hospital Emergency Room due to the extreme swelling around tooth number 3. Patient K.B. was then referred to another treating dentist on or about December 16, 2005, who diagnosed Patient K.B. with maxillary right facial cellulitus and admitted Patient K.B. to the West Palm Beach Medical Center where surgical drainage was performed for the treatment of the cellulitus. Patient K.B. was discharged from the hospital on or about December 19, 2005. 24. The prevailing standard of care in diagnosis and treatment when measured against generally prevailing peer performance requires that a dentist, when presented with a patient who has indicated a desire to establish a regular dentist/patient relationship, 1) properly perform an adequate and comprehensive intra-oral and extra-oral clinical examination of the patient to J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 10 include, but not be limited to an oral cancer screening, oral pathology and mprehensive evaluation of the patient's dentition including tooth charting, a comprehensive periodontal examination and periodontal pocket depth probing; 2) properly performing an adequate intra- oral and/or extra-oral radiographic examination by the taking of the appropriate type and number of dental radiographs; 3) properly formulating 4 diagnosis based on the complete examination of the patient; 4) properly developing a written comprehensive treatment plan to include, but not necessarily be limited to, preventative care for all patients from the time of the initial presentation of the patient to the dentist and during the duration of all continued treatments; 5) properly discussing the written treatment plan with the patient and discussing the alternative treatment plans with the patient, so the patient can make an informed and educated decision regarding the potential treatments; and/or 6) properly provide the appropriate selected treatments to the patient. Enumerations one (1) through six (6) must be met before beginning any clinical treatments, other than possibly attending to a patient's chief complaint. The Respondent failed to meet this standard of care in diagnosis, treatment planning and treatment when presented with Patient K.B. and/or during Patient K.B.’s continued care. J:\PSU\Medical\Dentistry\David Flynn\Admin Campiaints\2009\March\Kelman DDS (x)(m)(final).doc Page 11 25. The prevailing minimum standard of care in diagnosis and treatment for performing root canal therapy requires a dentist to properly instrument each canal of each root and then appropriately obturate each canal fully to approximately 1 - 2 mm of the radiographic apex of the tooth root. Moreover, if the dentist experiences an instrument failure inside of @ root canal, the dentist must treat the canal by attempting to retrieve the file or by attempting to by-pass the file to ensure the root canal’s proper obturation. If the dentist cannot properly obturate the canal, for any reason, the dentist must expeditiously refer and direct the patient to an endodontist specialist for further evaluation and possible re-treatment of a poorly obturated canal. The dentist must not leave a poorly obturated root canal untreated or fail to refer the patient for further evaluation and possible re- treatment. Respondent failed to meet this standard of care when treating Patient K.B’s tooth number 2. 26. The prevailing minimum standard of care in diagnosis and treatment requires that when a patient presents with pain localized to a specific tooth quadrant, the dentist must perform sufficient clinical diagnostic testing to isolate the source of the patient's pain before performing any further treatments. This is particularly critical when the pain is located in an area where recent root canal therapy has been performed due to the 3:\PSU\Medical\Dentistry\David Flynn\Admin Compiaints\2009\March\Kelman DDS (x)(m){(final).doc Page 12 possibility that the pain may be associated with the recently endodontically treated tooth that may be radiating pain to other dentition in the oral cavity. Respondent failed to meet this standard of care when attempting to isolate the source of the pain associated with Patient K.B/s teeth numbers 2 and 3. 27. The prevailing minimum standard of care in diagnosis and treatment requires that a dentist immediately refer a patient to an endocontist specialist for continued treatment if the patient presents to the dentist with continued swelling and/or acute infection in, on, or around a tooth that is being treating endodontically if the dentist is unable to achieve proper root canal instrumentation or if the dentist cannot get adequate drainage and resolution of the patient’s pain or discomfort. Respondent failed to meet this standard of care in diagnosis and treatment of tooth number 2 and/or tooth number 3. COUNT I: DEFICIENT RECORDKEEPING 28. Petitioner re-alleges the allegations contained in paragraphs one (1) through twenty-seven (27) as if fully incorporated herein. 29. Section 466.028(1)(m), Florida Statutes (2005), provides that “{flailing 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 J:\PSU\Medical\Dentistry\David Elynn\Admin Complaints\2009\March\Kelman DDS (x\(m)(final).doc Page 13 taken[,]” constitutes grounds for disciplinary action by the Board of Dentistry. Rule 64B5-17.002, Florida Administrative Code, further provides that 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 nistory; (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. 30. Respondent failed to keep written dental records and medical history records justifying the course of treatment of Patient K.B. in one or more of the following ways: (a) By failing on or about September 14, 2005, to record a comprehensive written treatment plan; (b) By falling on or about September 14, 2005, to record and properly document the clinical examinations that were performed and the results thereof to include the presence or lack thereof of any oral pathology or oral disease to include, but not limited to a clinical evaluation and charting of the patient’s entire dentition; documenting missing and existing teeth; documenting the presence of caries or fractured teeth; documenting existing J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 14 restorations; documenting pathology or lack thereof; documenting the results of a periodontal examination including but not limited to periodontal pocket depth probing and the condition of the patient’s gingival; and/or documenting the presence of any endodontically involved teeth; (c) By failing on or about September 14, 2005, to record the specific clinical examinations that were performed and the results thereof to justify billing for a comprehensive examination under CDT D150; (d) By failing on or about September 14, 2005, to record a comprehensive diagnosis and/or a comprehensive written treatment plan; (e) By failing on or about September 14, 2005, to record the specific details of the diagnostic results or findings of the radiographs that were taken; (f} By failing on or about September 14, 2005, to document in the patient treatment records the clinical examinations that were performed and the clinical results thereof or to document a radiographic diagnosis to justify the restoration of tooth numbers 2, 3, and 4; (g) By performing on or about September 21, 2005, restorations on teeth numbers 2, 3, and 4 without documenting a clinical or radiographic justification for the treatment and/or failing to document the treatments performed (location of the restorations) in order to document and maintain accurate charting of Patient’s K.B.’s dentition and/or failing to document the type of and the amount of local anesthetic that used on this date; (h) By failing to document on or about September 30, 2005, the treatment performed to tooth number 2, to include attempting to by-pass the broken file or to retrieve the broken file in the mesial-buccal canal and/or by failing to document a referral to an endodontist specialist to evaluate and re-treat the poorly obturated canal and/or to J:\PSU\Medical\Dentistry\David Flynn\Admin Compiaints\2009\March\Kelman DDS (x)(m)(final).doc . Page 15 document a justification for failing to re-treat the poorly obturated canal or by failing to refer Patient K.B. to an endodontist specialist on that date to justify the course of treatment by leaving the root canal poorly obturated 4 mm — 6 mm short of the radiographic apex of the mesial-buccal root: (i) By failing on or about October 14, 2005, to document the type of and the amount of local anesthetic used and/or by failing to properly document the treatments performed to Patient K.B,’s tooth number 2 on or about October 14, 2605, by documenting that the broken file was by-passed, indicating that the mesial-buccal canal was properly obturated and/or by failing to properly document the appropriate tooth morphology of Patient K.B.'s tooth number 2 by documenting that the mesial-buccal and distal-buccal canals were joined at the apex of tooth number 2; G) By failing on or about October 14, 2005, to document a referral to an endodontist specialist to evaluate and re-treat the poorly obturated mesial- buccal root canal and/or to document a justification for failing to re-treat the poorly obturated root canal or failing to refer Patient K.B. to an endodontist specialist on that date to justify the course of treatment of leaving the canal poorly obturated 4 mm — 6 mm short of the radiographic apex of the mesial-buccal root of tooth number 2; (k) By failing on or about November 2, 2005, to document the treatments performed on tooth number 2, to include attempting to by-pass the broken endodontic file or to retrieve the broken file in the mesial-buccal canal of the tooth root and/or by failing to document a referral to an endocontist Specialist to evaluate and re-treat the poorly obturated canal and/or to document a justification for failing to re-treat the poorly obturated canal or failing to refer Patient K.B. to an endodontist specialist on that date to justify the course of treatment of leaving the canal poorly obturated 4 J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 16 mm — 6 mm short of the radiographic apex of the mesial-buccal root of tooth number 2; () By failing on or about December 12, 2005, to document that sufficient — clinical tests were performed to isolate the source of the pain in Patient K.B’s upper right quadrant between teeth numbers 2 and 3, to include but not limited to pulp vitality testing, percussion sensitivity testing, _ lateral palpation, or mobility checks before proceeding with a pulpotomy treatment on tooth number 3; (m) By failing, on or about December 14, 2005, to accurately document the treatments and iests performed by indicating all tests and treatments were performed in the upper left quadrant due to pain and discomfort when the treatment and tests performed were in the upper right quadrant; (n) By failing on or about December 14, 2005, to document the clinical tests performed and the results there of to justify proceeding with treatment on tooth number 3 to include opening the tooth; (0) By failing on or about December 14, 2005, to document the extent of the treatments performed on tooth number 3 that was “opened,” to include, but not limited to, whether Respondent instrumented the root canals or whether there was exudate present coming from tooth number 3; (p) By failing on or about December 14, 2005, to document a sufficient justification for not instrumenting a potentially blocked canal to attempt drainage of acute infection and/or for not referring Patient K.B. to an endodontist specialist for immediate and expeditious re-treatment to ensure proper drainage of the tooth to prevent additional clinical problems; and/or (q) By failing on or about December 14, 2005, to document a referral to an endodontist specialist to clinically evaluate and retreat the poorly obturated mesial-buccal canal of tooth number 2 and/or to J:\PSU\Medical\ Dentistry\David Flynn\Admin Complaints\2009\March\Keiman DDS ()(m)(final).doc Page 17 document a justification for failing to re-treat the poorly obturated canal or failing to refer Patient K.B, to an endodontist specialist on that date to justify the course of treatments of leaving the mesial-bucca! canal poorly obturated 4 mm - 6 mm short of the radiographic apex of mesial-buccal root canal of tooth number 2. 31, Based on the foregoing, Respondent has violated Section records and medical history records justifying the course of treatment of Patient K.B. COUNT IT: STANDARD OF CARE 32. The Petitioner re-alleges the allegations contained in paragraphs one (1) through twenty-seven (27) as if fully incorporated herein. 33. Section 466.028(1)(x), Florida Statutes (2005), states that “IbJeing 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[,]” shall constitute grounds for disciplinary action by the Board of Dentistry. 3:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final) .doc Page 18 34. The Respondent was negligent and failed to meet minimum standards of dental performance in diagnosing and treating Patient K.B in one or more of the following ways: a) On or about September 14, 2005, Respondent failed to formulate a comprehensive diagnosis anc/or to failed to formulate a comprehensive treatment plan; b) On or about September 21, 2005, Respondent began restorative treatments on Patient K.B.’s tooth numbers 2, 3, and 4, without formulating a adequate diagnosis and/or an adequate treatment plan before beginning treatment; fa) Vs By failing from on or about September 30, 2005, through on or about December 14, 2005, to properly instrument and/or obturate the mesial-buccal canal of Patient K.B.’s tooth number 2 by failing to obturate the canal within one to two millimeters of the radiographic apex of the mesial-buccal root of tooth number 2 leaving a short obturation of the mesial-buccal root by approximately 4 mm — 6 mm; d) By failing from on or about September 30, 2005, through on or about December 14, 2005, to properly retreat or properly refer Patient K.B to an endodontist specialist for clinical evaluation and re- treatment of the mesial-buccal canal once Respondent recognized the deficient obturation and was unable to by-pass the broken file or retrieve the file in order to properly obturate the mesial- buccal canal of tooth number 2; e) By failing on or about December 12, 2005, to perform an adequate clinical examination on the teeth in the upper right quadrant, especially in light 3:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 19 of the recent poorly obturated mesial-buccal canal of tooth number two to properly isolate the pain exhibited in Patient K.B’s upper right quadrant Peed PaQeil RO. ULE Phe before beginning a pulpotomy on Patient K.B.'s tooth number 3; and/or f) By failing on or about December i4, 2005, to immediately and expeditiously refer Patient K.B. for evaluation and retreatment for proper drainage of tooth number 3 once Patient K.B. presented with swelling and/or infection in, on, or around tooth number 3 and Respondent was unable to achieve proper canal instrumentation of the tooth and/or proper drainage. 35. Based on the foregoing, the Respondent has violated Section 466.028(1)(x), Florida Statutes (2005), 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 Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Keiman DDS (x)(m)(final).doc Page 20 placement of Respondent on probation, corrective action, refund of fees remedial! education and/or any other relief that the Board deems appropriate, SIGNED this 20th ___ day of March , 2008. Ana M. Viamonte Ros, M.D., M.P.H. State Surgeon General David D. Flynn a Assistant General Counsel DOH Prosecution Services Unit ep 4052 Bald Cypress Way, Bin C-65 FLOR HEALTH == Tallahassee, FL 32399-3265 MEN DEPART pUTY our Florida Bar No. 759511 CLERK poche KOA 850.245.4640 pate 850.245.4683 FAX pcp:3/2e/°7 PCP Members: CM, TM.EG DOH v Alan Kelman, D.D.S., Case No. 2007-15091 J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final) doc Page 21 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 Alan Kelman, D.D.S., Case No. 2007-15091 J:\PSU\Medical\Dentistry\David Flynn\Admin Complaints\2009\March\Kelman DDS (x)(m)(final).doc Page 22

Docket for Case No: 11-005721PL