Findings Of Fact Dade Dental Laboratories was opened in 1973-74 by a nonprofit corporation which leased dental facilities contiguous and internally connected thereto to dentists. One of the original organizers of the laboratory, Samuel Kushner, was a laboratory technician who had so worked in New York for many years. Respondent was employed on a salary (hourly) basis in 1978 to work as a dentist at the dental facility located at 1225 Washington Avenue, Miami Beach, Florida and known as Dade Dental Associates (hereinafter referred to as Dade Dental). At this time, Dade Dental Laboratories was owned by the wives of Samuel Kushner and Frank Schiller. Schiller was employed as office administrator. Dade Dental Laboratories owned the lease of the premises and equipment located therein. In 1978, the dental office spaces were leased to Frederick Stang, D.D.S., who employed Respondent and other dentists on a salary basis. Effective 1 July 1979, Respondent's wife purchased the fifty percent interest in the laboratory previously owned by Mrs. Kushner and the sub1ease of the dental offices was given to Respondent. Stang continued as an employee of Respondent until September 1979. Frank Schiller spoke Yiddish and was often used as a translator for some of the older Jewish clients who came to Dade Dental. After the sublease was given to Respondent, Schiller continued as administrator until September 1979. The ownership of the fifty percent interest in the laboratory owned by Mrs. Schiller, if not still held by Mrs. Schiller, was not shown. Inspections of the premises at 1225 Washington Avenue were conducted in August, September and October 1979 and again in January 1980. The inspection conducted by the Department of Health and Rehabilitative Services on September 24, 1979 revealed X-ray equipment that was defective by reason of not being properly shielded and having a timer operating erratically (Exhibits 4 and 5); the inspections conducted September 6 and 13 revealed old equipment, improper sterilization of instruments, a very dirty laboratory, dirty impression trays, bite blocks with teeth marks indicating prior use, rusted instruments where chrome had chipped off the underlying steel, no sterile sutures, and a cold dry-heat sterilizer. Following these inspections, Respondent ordered a new X-ray machine and new instruments. No evidence was presented that the rusty instruments found in the dental operatories were ever used on a patient. Respondent's testimony, which was not rebutted, was that he didn't like the instruments located in the operatories when he started working there and he brought his own instruments which he used. The charges of allowing unauthorized persons to perform acts constituting the practice of dentistry, malpractice, misconduct in business or personal affairs of a nature to bring the dental profession into disrepute, and failing to exercise proper care in the treatment of patients involved Joseph Cedar and Hilda Hirschman. After receiving a high estimate of the cost for needed dental work from his dentist, Joseph Cedar, at the recommendation of a friend, went to Dade Dental for a second estimate. He first saw Frank Schiller, who took Cedar to Seymour Rickles, D.D.S., one of the dentists employed at the facility. Cedar described Schiller as the "boss" who gave orders and who looked into his mouth. No evidence was presented that Schiller ever put his hands or any instrument in Cedar's mouth while Cedar was being treated by Respondent or any other dentist at Dade Dental. After examination and impression, Rickles prepared crowns and a partial denture. Although Cedar testified that Rickles performed all the work done on him, the dental record (Exhibit 14) shows 5 dentists worked on Cedar at this office. However, most of the work appears to have been done by Rickles and Stang. After the work on Cedar had been completed, he complained of pain from the partial dentures which had been prepared for him and was referred to Respondent, who first saw Cedar on June 28, 1979 when he adjusted the partial plates. Exhibit 14 indicates Respondent again saw Cedar on July 3, 19, 24, 25 and August 7 for adjustments. Cedar testified he told Respondent about a sore spot near the partial denture on the upper left side of his mouth but Respondent only told him it was not caused by the dentures. Respondent's version was that he X-rayed the lower right side of Cedars' mouth where the partial had been fitted and found an abscess which could cause the pain described by Cedar, and that Cedar never complained of soreness in the upper left area of his mouth. On August 15 or 16, 1979 Cedar went to the dental clinic at Mount Sinai Medical Center complaining of a soreness in the upper left area of his mouth. He was examined by several dentists because the affected area looked suspicious, and a biopsy was done. This showed the lesion to be squalus cell carcinoma, which was subsequently excised. The lesion removed from Cedar's mouth was well-differentiated in mid- August when he was seen at Mt. Sinai. It is unlikely that a well-differentiated lesion will develop in a week to ten days, but could develop in a period of two or more weeks. A competent dentist should recognize a well-differentiated lesion and refer the patient to an oral surgeon. Failure to do so constitutes practice below minimum accepted community standards. Respondent has referred other patients to oral surgeons when suspicious conditions were observed in patients' mouths. (Exhibit 18). Hilda Hirschman first visited Dade Dental in December 1978 and was referred to Respondent. She had several teeth extracted by Respondent, partial dentures made and two crowns installed. Mrs. Hirschman testified that Schiller escorted her into Respondent's office on her first visit and wrote down and quoted to her prices for work as he and Grebin talked. She thought Schiller was the head dentist. She also testified that one time Schiller ground down one of her teeth. When told periodontal treatment was indicated, Mrs. Hirschman told Respondent she did not want root canals done. After her teeth had been extracted and partials made, the partials were inserted by Respondent, but neither of the partials fit. The upper was adjusted to fit and a second impression was taken for the lower. Mrs. Hirschman was later examined by Dr. Leonard Sakris at the request of the Dental Board. From his study of the X-rays taken in November 1978 and August 1979 and his examination of the patient, Dr. Sakris opined that the teeth extracted by Respondent could have been saved if root canal therapy had been used and crowns installed. This examination also revealed the condition of Mrs. Hirschman's mouth to be bad, with two ill-fitting partial dentures and restoration placed over decay. The conclusion this decay existed when Respondent treated Mrs. Hirschman was reached from the X-rays. On cross- examination, Dr. Sakris acknowledged that decay was not always discernible on X- rays and could be misdiagnosed absent a visual examination and probe by the dentist. Dr. Sakris' examination did not confirm Mrs. Hirschman's testimony that Schiller had ground down her tooth. He found no evidence of grinding, except possibly on Lower Left Canine 3. This is also the tooth with decay found on Sakris' examination. The crown on Lower Right 5 placed by Respondent had a bad margin and decay when Mrs. Hirschman was examined by Sakris. Unless margin of crown makes solid contact with tooth, decay can occur. It is below acceptable minimum standards to leave open margins between crown and tooth. Respondent's testimony that he suggested Mrs. Hirschman go to a periodontist for root canal treatment and she refused is corroborated by Mrs. Hirschman's testimony that she didn't want the expense of root canals. Without periodontal treatment for Mrs. Hirschman's dental condition, extraction is the standard practice. Respondent's testimony that both he and Stang worked on Mrs. Hirschman is supported by Exhibit 13 and lends credence to his testimony that he did not prepare the crowns he installed on this patient. Further, Exhibit 13 contains the notation that Mrs. Hirschman "refuses pero" (presumably periodontal treatment) and confirms Respondent's testimony that the patient's refusal to have root canals left him no choice but extraction. The parties stipulated that the advertising which forms the basis for Counts XVI II through XXI was ordered and paid for by Stang, although it continued for some two months after Respondent took over the operation of the dental clinic before it was stopped. Respondent's testimony that he neither ordered nor paid for the advertising which appeared after July 1, 1979 was not disputed. No evidence was presented regarding the character of this advertising, other than the examples thereof shown in Exhibit 8.
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001.
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.94, so he failed the clinical part of the examination. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, the score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. For both procedures, Petitioner challenges only the scores of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The two sections that are the subject of this case require the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For each section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communication between examiners and candidates is exclusively through monitor notes. For each section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner 394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate 0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3. The Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners 207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.
Recommendation It is RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License Examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact At all times relevant hereto, Respondent, Harold I. Odle, held dental license number DN 0004379 issued by Petitioner, Department of Professional Regulation, Board of Dentistry. Respondent is engaged in the practice of dentistry at 3900 South Broadway, Fort Myers, Florida. On or about August 13, 1980, Wilfred H. Bauer went to Respondent's dental office where Respondent extracted Bauer's tooth number 17. On or about August 21, 1980, Bauer returned to Odle's office for removal of sutures placed in his mouth in connection with the extraction performed on August 13. The removal procedure was performed by Julia Hover, an employee in Respondent's office. It was not disclosed whether Hover was licensed as a dentist or dental hygienist in the State of Florida. The complainant in this case (Bauer) died in August, 1982 and accordingly did not appear and testify at the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion for directed verdict be GRANTED and the administrative complaint against Respondent be DISMISSED. DONE and ENTERED this 29th day of September, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1982.
Findings Of Fact A. C. Porterfield currently holds Dental Laboratory Registration Certificate No. 698 for the Edgewater Dental Laboratory, said certificate having been issued on December 5, 1974 by the Florida State Board of Dentistry. A. C. Porterfield is the owner of the Edgewater Dental Laboratory. A. C. Porter field obtained registration of Edgewater Dental Laboratory in accordance with an application for dental laboratory registration which was filed with the Florida State Board of Dentistry. In his application A. C. Porterfield gave the answer "no" to the following question: "Has any owner, partner, officer, director, stockholder, or employee ever been a party to any civil, criminal, or administrative proceeding involving any violation of any statute, rule, or regulation governing the practice of any profession, or of any violation involving the regulation of narcotics or other drugs?" In his application A. C. Porterfield gave the answer no to the following question: "Has any owner, partner, officer, director, stockholder, or employee ever been convicted of any offense involving moral turpitude?" On June 16, 1966, A. C. Porterfield pleaded guilty to an information charging him with the crime of illegal practice of dentistry. Porterfield was adjudged guilty of that offense, and was sentenced to serve one year in prison. On September 11, 1968, A. C. Porterfield was granted a full and complete pardon, and his full and complete civil rights were restored to him. Applications for dental laboratory registration are initially processed by the Executive Director of the Board of Dentistry. If no irregularities appear on an application, the Executive Director processes the application and issues a registration certificate. If irregularities do appear on the application, the Executive Director forwards the application to the members of the Board for further action. The application for registration filed by A. C. Porterfield was processed in this manner. No irregularities appeared on the face of the application, and the registration certificate was therefore issued by the Executive Director. If either of the questions set out above had been answered in the affirmative, the Executive Director would have forwarded the application to the members of the Board for further action. If the application had been forwarded to members of the Board it would have received careful consideration by them, and at least some members of the Board would have voted not to issue the registration certificate. There was not sufficient evidence adduced at the hearing to substantiate a finding that A. C. Porterfield intentionally misled the Board by answering the above questions in the negative. Porterfield apparently did not read the questions carefully, and may have been con fused about the effect of his pardon. It is evident that the answers to the questions were erroneous. If the questions had been answered affirmatively, the application would have been processed differently, and may have been denied.
The Issue The issue in this case is whether Petitioner should have received a passing score on the June 2001 Florida Dental Licensure Examination, notwithstanding Respondent’s determination that he failed the test.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Siegel, who graduated from dental school in 1999, took the June 2001 Florida Dental Licensure Examination (the “Exam”), which was administered by the Department on June 2 through June 5, 2001. The Exam had two parts, a Clinical Part and a Laws and Rules Part. The Clinical Part was further divided into ten sections, each of which consisted of a separate clinical procedure. The minimum passing score on the Laws and Rules Part was 75.00; on the Clinical Part, a minimum score of 3.00 was required to pass. As calculated by The Department, Siegel scored 70.00 and 1.49, respectively, on the two parts. Thus, according to The Department, Siegel failed both parts of the Exam. Each candidate’s performance on the Clinical Part of the Exam was scored independently by three examiners chosen by the Department.1 These examiners were not informed of any candidate’s identity, nor were the candidates told the examiners’ names; they were not permitted to speak directly to one another while the Exam was being administered. The examiners who graded Siegel’s clinical performance had successfully completed standardization training.2 Additionally, the Department determined, as part of a routine post-Exam statistical review of examiner performance, that these particular examiners were reliable in terms of their consistency in applying the proper grading criteria.3 To determine a candidate’s overall score on the Clinical Part of the Exam, the Department first computed the average of the three examiners’ raw scores for each individual procedure. Each average score was then adjusted using the percentages prescribed in Rule 64B5-2.013, Florida Administrative Code, to arrive at a weighted mean score. A candidate’s overall score on the Clinical Part was equal to the sum of his or her weighted mean scores for each section. At hearing, Siegel challenged just one clinical procedure, the Patient Amalgam Restoration.4 An amalgam restoration is a dental procedure that involves filling a cavity so that the affected tooth is restored to proper form and function. After this procedure, the treated tooth should closely resemble its original size and shape. Siegel’s raw scores on this procedure were very low. One of the examiners who testified at the hearing, a dentist with some 40 years’ experience, had awarded Siegel no points for the Patient Amalgam Restoration procedure because, after completion of the work, the restoration was fractured and the patient’s gingival margin was open. Another examiner, a dentist with 35 years of experience, explained at hearing that Siegel's work on the amalgam restoration was a failure; in this examiner’s opinion, the patient's tooth was actually in worse condition after Siegel had finished the procedure. The testimony of these examiners was credible and is accepted as being truthful and accurate. Accordingly, it is found that Siegel failed to perform the amalgam restoration with the minimum degree of skill and competence required for licensure as a dentist in this state. For his part, Siegel contended that one of the examiners (presumably the one who did not testify at hearing) had caused the restoration to fracture. Siegel based this theory on the account of his patient, Scott Graham, who testified that one of the examiners had "picked" at his tooth with a sharp instrument.5 (Mr. Graham is not a dentist.) Mr. Graham, however, had not complained about any alleged examiner misconduct at the time of the examination. Likewise, no examiner ever reported any such irregularity. In the absence of contemporaneous corroborating evidence, created before it became known that Siegel had failed the Exam, Mr. Graham’s testimony is simply not persuasive evidence of examiner misconduct. To be sure, it is theoretically possible that an examiner might damage a candidate’s work and then attempt to cover up his error by blaming the candidate. The evidence in this case, however, is not nearly sufficient to support such a finding. To underscore the point: Siegel’s theory is speculative at best. As for the remaining clinical procedures, while Siegel complained that his scores were not a reliable or accurate measure of his performance, he failed to introduce any persuasive evidence in support of this allegation. At bottom, the trier is not persuaded that the scores Siegel received were arbitrary, capricious, unfair, inconsistent, or otherwise objectionable. To the contrary, the evidence in the record demonstrates convincingly that the scores Siegel received on this Exam were reliable, correct, impartially rendered, and consistent with the grading practices used in scoring other candidates’ work.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department advise the Board Of Dentistry to enter a Final Order (a) holding that Siegel's administrative challenge to the scores he received on the June 2001 Florida Dental Licensure Examination is without factual and legal merit and (b) declaring that Siegel failed said examination. DONE AND ENTERED this 19th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2002.
