STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2008-04786 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, Ben Mac-Ryan Spivey, 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 16489. Filed January 24, 2012 4:04 PM Division of Administrative Hearings 3. Respondent’s address of record is 1815 SW 29" Street, Ocala, Florida 34471. 4. On or about October 5, 2007, Patient D.P. presented to Respondent for a limited oral examination. According to the treatment notes, Patient D.P’s chief complaint was a toothache in the upper left quadrant of her mouth. Respondent noted in the treatment record that his clinical examination of Patient D.P. revealed fractured amalgam restorations on the upper left side of the patient’s mouth and abfractions on the patient’s upper anterior dentition. Respondent's clinical findings, as written in the patient's treatment record, failed to identify any specific teeth numbers. 5. | Respondent’s radiographic examination of Patient D.P, on or about October 5, 2007 consisted of a single panoramic radiograph. No diagnostic findings were recorded for this radiograph in the patient's treatment record. By failing to take an appropriate number and type of dental radiographs, Respondent therefore failed to record a complete and appropriately comprehensive radiographic examination of Patient D.P’s dentition prior to recommending and/or performing multiple tooth extractions and initiating significant prosthodontic and restorative treatment. -~-2- DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 6. Despite radiographic indications of periodontal pathology in several areas of Patient D.P’s mouth, as evidenced by the panoramic radiograph taken on or about October 5, 2007, Respondent failed to record the results of a comprehensive periodontal examination of Patient D.P, including but not limited to periodontal pocket depth probing and tooth mobility testing, during the patient's initial visit or at any other time during Patient D.P’s course of treatment. Respondent therefore failed to develop a comprehensive diagnosis and treatment plan that adequately addressed Patient D.P’s periodontal condition prior to initiating significant restorative work. 7. On or about October 5, 2007, Respondent developed a treatment plan that recommended the replacement of restorations on tooth numbers 9 and 10, extraction of tooth number 14, placement of a three- unit bridge from tooth numbers 13 to 15, the fabrication of a new maxillary removable partial denture, and the performing of an initial oral hygiene evaluation. Respondent's comprehensive treatment plan was based solely on a limited oral examination of Patient D.P. and a single panoramic x-ray of the patient’s dentition. -3- DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 8. Respondent ultimately failed to record an adequate diagnosis resulting from a comprehensive clinical examination and a sufficient number and type of diagnostic dental radiographs prior to recommending and/or performing multiple tooth extractions and initiating significant prosthodontic and restorative treatments. oe 9. On or about October 10, 2007, Patient D.P presented to Respondent for the extraction of tooth number 14. Respondent aiso extracted tooth number 13, when removal of the existing crown on tooth number 13 revealed that the substantial decay contraindicated proceeding with restorative treatment on tooth number 13. Respondent then modified the patient’s treatment plan to include the fabrication of a four-unit bridge from tooth numbers 12 to 15. 10. On or about October 10, 2007, Respondent took a single periapical radiograph that showed Patient D.P’s tooth numbers 12 to 15. The radiograph was not sufficiently diagnostic because it failed to show the entirety of tooth numbers 14 and 15, most notably the apices of tooth numbers 14 and 15. 11. On or about November 5, 2007, Patient D.P. presented to Respondent for final impression of the bridge from tooth numbers 12 to 15. -4- DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 According to the treatment notes, Patient D.P. was to receive an initial oral hygiene evaluation and delivery of the #12-15 bridge at her next visit. Patient D.P. did not receive an initial oral hygiene evaluation on any of her subsequent visits to the Respondent's office. Ae. On or about November ai, 2007, Patient D.P. presented to Dr. J., an associate dentist employed by the Respondent, for final delivery of the bridge from tooth numbers 12 to 15. According to the treatment notes, the bridge did not fit properly and a new final impression was taken. During the November 21, 2007 visit, Dr. J. discovered a bony spicule around the patient’s tooth number 13 extraction site area and removed the bony fragment. Dr. J. permanently cemented Patient D.P’s #12-15 bridge on or about December 3, 2007. 13. Section 466.028(1)(m), Florida Statutes (2007), provides that failing to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test results, and x-rays, if taken, constitutes grounds for discipline by the Board of Dentistry. 14. Rule 64B5-17.002, Florida Administrative Code requires that a dentist shall maintain written records on each patient which shall contain, - 5 - DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 at a minimum, appropriate medical history; results of clinical examination and tests conducted including the identification, or lack thereof, of any oral pathology or diseases; any radiographs used for the diagnosis or treatment of the patient; treatment plan proposed by the dentist; and treatment rendered to the patient. A dentist shall maintain the written dental record of a patient for a period of at least four (4) years from the date the patient was last examined or treated by the dentist. 15. Respondent failed to keep written dental records and medical history records justifying the course of treatment in one or more of the following ways: a. By failing to record the results of a complete radiographic examination of Patient D.P’s dentition and periodontium prior to initiating comprehensive dental treatment; b. By failing to record the results of a comprehensive periodontal examination of Patient D.P, including but not limited to periodontal pocket depth probing and tooth mobility testing, prior to initiating dental treatment; and/or c. By failing to record an adequate diagnosis in Patient D.P’s treatment record to justify Respondent's course of treatment. 16. Based on the foregoing, Respondent has violated Section 466.028(1)(m), Florida Statutes (2007) by failing to keep written dental records and medical history records justifying the course of treatment of - 6 . DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 the patient including, but not limited to, patient histories, examination results, test results, and x-rays, if taken. WHEREFORE, Petitioner respectfully requests that the Board of Dentistry enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement ot Respondent or probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the SIGNED this _ 2 in of CA , 2009. Ana M. Viamonte Ros, D.P., M.P.H. State Surgeon General Aap. DEMME Wayne Mitchell Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Board deems appropriate. came Cm F Chiao Florida Bar # 869414 we 2-04 Phone: (850) 245-4640 Fax: (850) 245-4683 pcp: [30/09 PCP Members: C44, 7 77 we. DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 J:\PSU\Medical\Dentistry\Jacob Crosby\Dentistry Cases\Spivey, Ben (x)(m) (crown, bridge) 08-04786 AC\Spivey (m) 08-04786 AC FINAL.doc -7- DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted im accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786 -8- DOH v Ben Mac-Ryan Spivey, DDS; Case #2008-04786

Docket for Case No: 12-000402PL