The Issue Whether Respondent Richard S. Bach, D.D.S., license #5512, has violated Section 466.38, Florida Statutes, by permitting a dental hygienist under his supervision and control to perform acts constituting the practice of dentistry and not permitted by law to be performed by a dental hygienist. Whether Respondent Carol Ann Bach, R.H.D., license #2371, has violated Section 466.38, Florida Statutes, by performing acts constituting the practice of dentistry and not permitted by law to be performed by a dental hygienist.
Findings Of Fact The Respondent, Dr. Richard S. Bach, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, and engages in the practice of dentistry in his office, located at 999 North Krome Avenue in Homestead, Florida. Dr. Bach was practicing dentistry during the month of September, 1978. The Respondent, Carol Ann Bach, is a dental hygienist licensed to practice dental hygiene under the laws of the State of Florida, Chapter 466, Florida Statutes. She is employed by Dr. Richard S. Bach at his office, located at 999 North Krome Avenue in Homestead, Florida, and was so employed during the month of September, 1978. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Dr. Bach and Respondent Carol Bach which was sworn to and subscribed on October 24, 1978. The accusation alleged that Dr. Bach had permitted a dental hygienist under his supervision and control to perform acts constituting the practice of dentistry in violation of Section 466.38, Florida Statutes. The administrative accusation also alleged that Carol Bach had administered an anesthetic by oral injection into the gums of a patient, Dorothy Moore, and that such was an act constituting the practice of dentistry prohibited by Section 466.38, Florida Statutes. Both Respondents requested an administrative hearing. Ms. Dorothy Moore sought the dental services of Respondent Dr. Bach in September of 1977. After treating Ms. Moore, Dr. Bach told her that she was developing a severe pyorrhea gum infection and suggested that she make an appointment with his dental hygienist. An appointment was made and x-rays taken, and thereafter, on September 19, 1977, Respondent Carol Bach cleaned Ms. Moore's teeth. Respondent Carol Bach injected into the upper portion of Ms. Moore's mouth approximately fifteen (15) injections of a local anesthesia before performing a curettage procedure. Subsequently, on September 26, 1977, Carol Bach injected a local anesthesia into the lower portion of Ms. Moore's mouth prior to performing the curettage procedure. Respondents Richard S. Bach and Carol Ann Bach are husband and wife, and were married at the time of the incident involved in this hearing. Carol Bach was employed in the office of Richard Bach as the only dental hygienist employed in the office. During the time of the cleaning of Ms. Moore's teeth, and during the time in which anesthesia was injected into her gums, the door of the room in which these incidents occurred remained open, both on September 19, and on September 26, 1977. There is no evidence that Respondent Carol Bach hid or intended to hide the fact that she administered an anesthesia by way of injection to the patient. The door was open, and the activity therein was easily visible. Respondent Carol Bach had told Ms. Moore that she was going to anesthetize Ms. Moore's mouth in order that the work would be less painful. It was undisputed that Respondent Carol Bach gave injections of anesthesia to Ms. Moore. Respondent Dr. Bach did not deny or attempt to justify the acts of his hygienist, and there was no showing that her activities were unknown to Dr. Bach or that he had instructed her to not perform such operations. He knew, or should have known, of her acts. When Ms. Moore was informed that she needed additional fillings, she became concerned about costs and sought the services of another dentist. Thereafter, she wrote a letter to the Petitioner giving details of her appointments with the Respondents. Both parties submitted proposed findings of fact and memoranda of law, and both made response to the proposals submitted. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted or are inconsistent with factual findings in this Order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Suspend the license of Respondent Carol Ann Bach for a period not exceeding one year. Suspend the license of Respondent Richard S. Bach for a period not exceeding one year. DONE and ORDERED this 22nd day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302
The Issue The issue in this case is whether Colette Michele Gatward (Petitioner) should receive a passing score on the Florida Dental Hygiene Clinical Examination.
Findings Of Fact The Petitioner was a candidate for licensure as a dental hygienist by the State of Florida. All candidates for Florida licensure as dental hygienists are required to pass the Florida Dental Hygiene Clinical Examination. The Petitioner took the exam on November 5, 2010. Information and instructions related to the exam were provided to candidates through a "Candidate Information Booklet" (CIB) that was posted on the Respondent's Internet website approximately 60 days prior to the date of the exam. Candidates were expected to review the information contained in the CIB. The Petitioner was aware of the information in the CIB. Part of the exam required that each candidate perform certain clinical procedures to the teeth of a human patient. The CIB stated that each candidate was responsible for providing their own human patient upon whom the clinical procedures could be performed. A panel of three examiners reviewed and scored each candidate's performance of the clinical procedures. In relevant part, the CIB stated that each candidate must submit a patient with 12 surfaces of explorer-detectable moderate subgingival calculus. An explorer is a piece of equipment used in dental practice. The CIB stated that 6.5 points would be awarded for each of the 12 surfaces of subgingival calculus detected and removed by the candidate during the exam. The CIB also stated that failure to detect and remove a minimum of nine surfaces of moderate subgingival calculus would result in a candidate receiving less than a passing score on the exam. The CIB specifically stated that "[p]oor patient selection and management is a common reason for examination failure." The Petitioner brought her sister-in-law to the exam to serve as her patient. After the applicable portion of the exam was completed, the panel of three examiners evaluated the Petitioner's clinical performance. Two of the three examiners determined that the Petitioner had detected and removed subgingival calculus from only eight surfaces of her patient's teeth. There was no evidence presented to indicate that the Petitioner neglected to remove subgingival calculus from her patient's teeth. The Petitioner was aware at the time of the exam that her sister-in-law did not have sufficient subgingival calculus to meet the patient requirements for the clinical demonstration. The insufficient degree of subgingival calculus present in the Petitioner's patient prior to the clinical exam precluded the Petitioner from passing the exam. The Petitioner received a total deduction of 26 points (6.5 points deducted for each of the four surfaces upon which no subgingival calculus was detected) and failed the exam with a score of 74. The Petitioner offered no credible evidence that the panel of examiners improperly reviewed her performance on the exam or that the score she received on the November 5, 2010, administration of the exam was in any manner incorrect. At the hearing, the Petitioner testified that she is licensed as a dental hygienist in another state, that the examinations in both states were conducted by the same regional testing agency, and that the scores from the other state should be accepted by the Respondent for licensure of dental hygienists in Florida. Florida law does not provide for dental hygienist license reciprocity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petitioner's challenge to the scoring of the exam referenced herein. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: Morris Shelkofsky, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Colette Michele Gatward 2212 Margarita Court Kissimmee, Florida 34741 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 H. Frank Farmer, M.D., Ph.D., Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact On February 21, 1992, Peggy Angle wrote a letter to Respondent stating that Petitioner allowed his six-month old son "to roam" (presumably, crawl) through patient treatment areas in Petitioner's dental office, which Ms. Angle described as unclean on "several occasions." Ms. Angle raised additional complaints in her letter and requested an investigation. Upon receiving the complaint, one of Respondent's investigators performed an unannounced inspection of Petitioner's office on June 4, 1992. The investigator found the office to be "messy and cluttered." Based on the investigator's findings, Respondent retained an expert to make an unannounced inspection with one of Respondent's investigators. The inspection took place on June 18, 1992. At the time of the unannounced inspection, Petitioner, his wife, and their child were on vacation. They had purchased the trip at the last moment at a reduced rate, so they had not been able to plan extensively for their departure. The record is unclear as to how long Petitioner had been gone when the inspection took place. He had been gone for at least several days. In any event, at the time of the June 18 inspection, the office smelled musty and the carpeting was discolored. There was also debris on the floor, although this was due to the presence of the woman (and her child) whom Petitioner had asked to stay at the office and answer the phone. At the time of the inspection, the expert and investigator found several handpieces and metal-tipped syringes out on the counter, rather than sanitized and bagged. Likewise, they found x-ray rings unsanitized. Surplus scalers were in drawers, also unbagged, but they were not used on patients. The expert and investigator noticed several other relatively insignificant items. Petitioner intended to sanitize the above-described equipment upon his return. Likewise, he intended to repair other equipment at the office before reopening it. Based upon his inspection, the expert advised Respondent's counsel by letter dated June 22, 1992, of the above- described conditions and concluded that "I can state the office in general has a dirty, unsanitary appearance and is in violation of 466.028(1)(v), Failure to provide and maintain reasonable sanitary facilities and conditions . . .." He noted other violations, including breaches of various rules requiring sterilization of instruments. On September 17, 1992, the probable cause panel met and determined that probable cause existed to charge Petitioner with a violation of Section 466.028(1)(bb)(v), Florida Statutes, which involves the failure to maintain proper sterilization and disinfection procedures. On October 26, 1992, Respondent filed an Administrative Complaint against Petitioner, alleging that the above-described conditions constituted violations of various statutes and rules requiring the provision and maintenance of sanitary conditions. By Order entered September 10, 1993, the hearing officer allowed Respondent to amend the Administrative Complaint to make a minor addition to the charging allegations. Following the hearing, the hearing officer entered a recommended order finding that, despite the above-described conditions, Respondent had failed to prove by clear and convincing evidence the grounds on which Respondent had proposed to discipline Petitioner. The recommended order concluded that the amended administrative complaint should be dismissed against Petitioner. The Board of Dentistry subsequently entered a final order adopting the recommended order and dismissing all charges against Petitioner. At the meeting to consider the recommended order, one member of the Board of Dentistry questioned the wisdom of a prosecution based on a closed office without patients and expressed his opinion that the probable cause panel should not have directed the filing of an administrative complaint in the case. Understandably, Petitioner argues in his proposed final order that an inspection of a closed office--without a dentist or patients--cannot support a finding of probable cause. This is untrue. The unspoken assumption in Respondent's disciplinary case was that one could reasonably infer that Petitioner failed to follow sanitary practices, given the condition of the closed office while Petitioner was gone. The inference sought by Respondent in the disciplinary case was strengthened somewhat by the conditions noted two weeks earlier by the first investigator while the office was open. The inference was weakened by Respondent's failure to address much else besides what the second investigator found during his visit to the closed office. Facts evidently left unaddressed in the investigation include how long Petitioner had been gone at the time of the second inspection and the condition of the office when he left. On balance, though, Respondent had a reasonable basis in fact and law to proceed against Petitioner. Respondent legitimately proceeded in the hope of prevailing based on the inference. The above-described facts justified the prosecution, especially in view of the importance of the alleged violations, which involved provisions intended to ensure that infectious diseases not be transmitted between patients or between a dentist and his patients.
Findings Of Fact In the November 27, 1985 edition of The Florida Administrative Weekly, Volume 11, Number 48, the Board noticed Proposed Rules 21G-14.001(7) and 21G-14.005(1), Florida Administrative Code, which were timely challenged by petitioner and which provide as follows: 21G-14.001 Definitions. * * * (7) Office team approach - A methodology employed by a dentist in the administration of general anesthesia and parenteral conscious sedation whereby the dentist may use one or more qualified anesthetic auxiliaries who, working under the direct supervision of the dentists assist the dentist, and assist in emergency care of the patient. 21G-14.005 Application for Permit. (1) No dentist shall administer or super- vise the administration of general anesthesia, or parenteral conscious sedation in a dental office for dental patients, unless such dentist possesses a permit issued by the Board. The dentist holding such a permit shall be subject to review and such permit must be renewed biennially. The cited statutory authority for these proposed rules includes Sections 466.004(3) and 466.017(3), Florida Statutes. Parenteral conscious sedation is defined by proposed Rule 210-14.001(6), which is not challenged in this case, as 21G-14.001 Definitions. * * * (6) Parenteral conscious sedation - A depressed level of consciousness produced by the parenteral administration of pharma- cologic substances, that retains the patient's ability to independently and continuously maintain an airway and respond appropriately to physical stimulation or verbal command. This modality includes administration of medications via all parenteral routes, that is: intravenous, intramuscular, subcutaneous, submucosal, or inhalation. A patient who is receiving parenteral conscious sedation will frequently slip in and out of consciousness, or a state of general anesthesia. General dentists do not receive adequate training in undergraduate dental school in the administration of general anesthesia and the treatment of medical emergencies which may result there from, and are not qualified to administer general anesthesia or treat resulting medical emergencies. The evidence is undisputed that a dentist who lacks the additional training in general anethesia and parenteral conscious sedation, which would be required under these rules, is not capable of competently and safely administering anesthesia or sedation himself, and does not possess the ability to competently assess all risks attendant to the administration of general anesthesia or parenteral conscious sedation. Additionally, such a dentist is not able to competently assess whether a patient is an acceptable risk for anesthesia or sedation, or to react to medical complications that may arise, such as respiratory obstruction and arrest, allergic or idiosyncratic reaction to drugs, cardiac arrest, miocardial infarction, seizures, and hypertensive crises. Since general dentists without further training in anesthesia are not qualified to administer general anesthesia in their dental office, or treat resulting medical emergencies, they are also not qualified to supervise the administration of general anesthesia in their office. The educational training received by undergraduate dentists in accredited dental schools in the United States and Canada offers only a brief didactic exposure to general anesthesia and parenteral conscious sedation of about 48 classroom hours. Clinical training is not offered. It is only at the graduate level of training, internship or residency programs that dental schools are required to offer training in dealing with medical emergencies. The general dentist does not maintain the equipment necessary to deal with medical emergencies and life threatening occurrences. Life threatening medical emergencies can develop while a patient is under general anesthesia, and a dentist administering or supervising the administration of general anesthesia must be able to deal with such emergencies. Undergraduate dental schools devote less than twenty-one hours in their entire program to the handling and treatment of medical emergencies and the evaluation of patients, and this does not prepare a general dentist without further training to deal with such emergencies. Certified registered nurse anesthetists (CRNA) are licensed by the Board of Nursing as advanced registered nurse practitioners. According to Nursing Board Rule 210-11.22, Florida Administrative Code, amended June 18, 1985: 210-11.22 Functions of the Advanced Registered Nurse. All categories of Advanced Registered Nurse Practitioner may perform functions listed in Section 464.012(3), F.S. The scope of practice for all categories of ARNPs shall include those functions which the ARNP has been educated to perform including the monitoring and altering of drug therapies, according to the established protocol and consistent with the practice setting. Specific activities which a CRNA may perform are enumerated in Section 464.012(4)(a), Florida Statutes (1984 Supplement). However, Section 464.012(3) specifies that these activities must be within the framework of an established protocol and that a licensed medical doctor, osteopathic physician or dentist shall maintain supervision for directing the specific course of medical treatment on any patient. Thus, a CPNA is not authorized to work independently on patients, but must operate within established protocols and under supervision. In order to become a CRNA, a registered nurse with at least one year's clinical experience in critical care nursing has to graduate from a two year accredited nurse anesthetist program comprised of approximately 425 contact hours, and also conduct 450 administrations of anesthesia consisting of 800 hours of actual anesthesia time. Thus, a CRNA has more training and experience in the administration of anesthesia than a general dentist receives in undergraduate dental school. The proposed rules in question were adopted to preclude a general dentist from employing a CRNA to administer anesthesia in his office unless he has received training beyond undergraduate dental school in anesthesia and has obtained a permit from the Board. As expressed in the Purpose and Effect portion of the notice for these proposed rules: The effect of the proposed amendment will be further assurance that those dentists who are using anesthesia, and related forms of sedation, have met minimal standards designed to protect the public's health, safety and welfare . . . * * * The purpose of the proposed rules is to implement the provisions of Section 466.017 (3)(e), F.S., as enacted by the 1985 Florida Legislature. The rules are designed to insure that those dentists who utilize general anesthesia or parenteral conscious sedation in a dental office for dental patients on an outpatient basis meet certain minimum qualifications. It is the opinion of the Board that dentists who administer or supervise the administration of general anesthesia or parenteral conscious sedation on an outpatient basis must satisfy certain training, equipment, and staffing requirements prior to engaging in such activity. The effect of the proposed rules is the establishment of a permitting procedure, as well as the requirement that adverse occurrences resulting from the use of nitrous- oxide inhalation analgesia, parenteral conscious sedation, general anesthesia be reported. These new procedures and require- ments should enhance the protection of the public from-licensees who are otherwise not competent to use general anesthesia, parenteral conscious sedation, or nitrous- oxide inhalation analgesia. The Economic Impact Statement (EIS) accompanying these proposed rules states, in pertinent part that: The proposed amendment will have some economic impact upon those licensees who are currently authorized to use general anesthesia and parenteral sedation. Upon the effective date of these rules, these individuals will be required to pay a permit application fee as well as expend those funds necessary to bring their training, equipment, and staffing level up to the requirements of the proposed rules. The precise number of dentists to be affected by the proposals and the precise impact upon them, other than the permit application fee, is not known at this time. * * * The proposed rules should have an economic impact upon those dentists who currently admin- ister or supervise the administration of general anesthesia and parenteral conscious sedation. Although the proposed rules do not in any way affect a dentist's ability to utilize general anesthesia or parenteral conscious sedation in a hospital or other medical facility, the rules will require the dentist to obtain a permit and to maintain his office at certain equipment and staffing level. Aside from the permit appli- cation feed the precise economic impact upon those dentists who currently utilize general anesthesia or parenteral sedation is not known at this time. It is anticipated that any additional costs to the practitioner will be passed on to the consumer. The fact that patient costs might increase as a result of these proposed rules was supported by Petitioner's witnesses Ira Gunn and Barbara Quick, but neither witness offered any more detailed information about the economic impact of these proposed rules than is contained in the Economic Impact Statement. Further, Petitioner offered no evidence to show that the proposed rules would affect persons other than those referenced in the Economic Impact Statement. It has not been demonstrated that the Economic Impact Statement is either inadequate, misleading or inaccurate. The evidence in the record is insufficient to support a finding that Petitioner is a non-profit corporation registered in Florida and is composed of a majority of the licensed nurse anesthetists in Florida, that it is the only Florida association of general membership representing nurse anesthetists, or that many of its members will be substantially affected by these rules. There is no evidence of Petitioner's legal status, its purposes as reflected in any by-laws, its membership, or the number of members who will be substantially affected by the rules. Thus, Petitioner has not proven the allegations in its petition regarding its standing in this matter.
Findings Of Fact William Cecil Graham is licensed by the Florida State Board of Dentistry and at all times herein involved was so licensed. Dr. Graham began treating Mrs. Dover Stokes in August 1977, and during the time Mrs. Stokes was a patient, Respondent performed oral surgery, extractions and prepared upper and lower partial plates. All this work was done in Respondent's office located at 16580 Northwest 10th Avenue, Miami. For this work Mrs. Stokes paid Respondent approximately $500. Mrs. Stokes suffers from glaucoma and is nearly blind. She began going to Respondent for treatment upon the recommendation of one of Mrs. Stokes' roomers who is a cousin of Respondent. This roomer generally provided Mrs. Stokes transportation to and from Respondent's office for treatment. After the impressions for the plates had been taken and close to the time these plates were delivered to Respondent, he suddenly had to leave the Northwest Miami office. He advised Mrs. Stokes, and presumably his other patients, of his imminent departure and that he would contact her when relocated. Since he had by then received the partial dentures, Mrs. Stokes asked him to bring them to her. Respondent had been to Mrs. Stokes home on previous occasions to collect payments and he agreed to bring the plates to her. When Respondent took these plates to Mrs. Stokes, he brought along a portable hand grinder to adjust the plates. During this visit, Respondent tried the plates in Mrs. Stokes' mouth and she found them tight. After making some adjustments, Respondent left with the plates for additional adjustment. No instrument was used in Mrs. Stokes' mouth while the plates were being fitted at her home. Respondent returned to Mrs. Stokes' home in early November 1977, inserted the plates and made additional adjustments. Mrs. Stokes was happy with the plates at this time. Upon leaving, Respondent advised Mrs. Stokes that he would contact her as soon as he was relocated in an office. After not hearing from Respondent and experiencing discomfort with her plates, Mrs. Stokes began searching for Respondent. Mrs. Stokes testified that she called Graham's home and his wife couldn't tell her how to contact Graham. Respondent testified that Mrs. Stokes called his home, spoke to his wife who relayed Mrs. Stokes message to him, and that he called Mrs. Stokes in early January 1978. At this time, Graham was still without an office. During this conversation, Mrs. Stokes expressed her dissatisfaction with Respondent. When he offered to send her to another dentist, Mrs. Stokes said she didn't want another black dentist. At this point Respondent realized further communication with Mrs. Stokes was impossible and he suggested that she select a dentist and he, Graham, would pay for the treatment she needed. Mrs. Stokes doesn't recall this conversation; however, Respondent's testimony in this regard is accepted as the true version of what happened. Mrs. Stokes next contacted the State Dental Board with her complaint about Respondent. The matter was referred to a Board member in Miami, Marshall A. Brothers, who telephoned the number of the office in Northwest Miami where Stokes had previously worked and was advised the whereabouts of Graham was unknown. Dr. Brothers did not speak directly to one of the dentists in the Northwest Miami office when the call was made to locate Graham. No correspondence was sent to the office previously used by Respondent. When Brothers was unable to contact Graham, he did nothing further to investigate the treatment that had been provided Mrs. Stokes by Respondent. In July 1978, Respondent opened an office on Northwest 54th Street in Miami. Mrs. Stokes telephoned the office and Respondent returned her call. He offered to examine her teeth, but Mrs. Stokes said she didn't want him to work on her. Respondent then renewed his offer to Mrs. Stokes to select a dentist of her choice, have him do the necessary work, and he, Graham, would pay for it. Mrs. Stokes then visited a dentist close to her home and advised him that Respondent would pay for the treatment. This dentist, Dr. Efrom, called Respondent who confirmed that he would pay for the treatment Mrs. Stokes required. Dr. Efrom found some rough places on the plates which he polished, corrected some sore spots in Mrs. Stokes' mouth, filled a cavity, and his technician cleaned Mrs. Stokes' teeth. Respondent paid for this treatment, although he had not contracted to fill a tooth for Mrs. Stokes or to do the cleaning.
The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
The Issue Whether Respondent is guilty of misconduct in the practice of dentistry and/or operating a dental office in such a manner that dental treatment provided is below minimum acceptable standards for the community.
Findings Of Fact At all times relevant hereto, Peter Kurachek, Respondent, was licensed as a dentist in Florida and was the owner of American Dental Center, a dental clinic located in Venice, Florida. Commencing in August 1987, Thomas A. Saitta D.D.S., licensed to practice dentistry in Florida, was employed at the American Dental Center as an independent contractor and was so employed at all times relevant hereto. On Friday, April 15, 1988, patient Kim Pierce a/k/a Kim Hendrick entered the American Dental Center complaining of a toothache and was seen by Dr. Saitta. Examination revealed an abscessed tooth for which Dr. Saitta believed root canal therapy was needed. The patient revealed she had no insurance and no money to pay. Nevertheless, Dr. Saitta commenced the root canal, prescribed penicillin for the inflammation, told the patient if the swelling did not subside quickly a serious medical problem would arise and she should then go to the emergency room at the Venice Hospital. The patient Kim Hendrick returned to the dental clinic Saturday, April 16, 1988 and was again seen by Dr. Saitta who gave her a prescription for Keflex for the infection, told her that if the swelling and pain did not subside by evening she should go to the hospital for medical intervention. He also gave her his professional card with his home telephone number she could call for emergency assistance. On the evening of April 16, 1988 at 11:10 p.m. Kim Pierce presented herself at the emergency room at Venice Hospital with a slight temperature, right eye swollen shot and a marked facial cellulitis. The duty emergency room dentist, Dr. John J. Yurosko, an oral and maxillofacial surgeon was called to treat the patient. Dr. Yurosko incised the gum, drained the infected area, advised the patient to continue the Keflex prescribed by Dr. Saitta and to present at his office Monday. After treating the patient Dr. Yurosko telephoned the number for the dental clinic and received no answer. He then, around midnight, from his home called the residence of Respondent whose wife was up and visiting with a neighbor and who answered the telephone. Yurosko asked to speak to Respondent and was told he was in bed asleep. Yurosko asked that Respondent be called to the telephone. When Respondent got on the line Yurosko complained about the patient (Kim) not being able to contact anyone by calling Respondent's office number, as well as Yurosko's failures to get an answer when he called that number. Following his inability to contact the Dental Center and his conversation with the Respondent, Dr. Yurosko, on April 29, 1988, submitted a complaint to the Department of Professional Regulation (Exhibit 4) in which he advised the Department of his involvement with patient Kim Pierce and his inability to contact her treating dentist. During the investigation which followed this complaint the investigator placed several long distance calls from Fort Myers to the number listed for the American Dental Center during the evening hours and received no answer from an answering service or machine. Respondent's witnesses testified that, except for the short period in April when telephone work was being done in the office clinic, the answering machine was operable. Respondent was able to offer no satisfactory explanation for the investigator's failure to receive an answer when the Dental Center's number was dialed during evening hours. During the period around April 15, 1988, work was being performed rerouting telephone lines at American Dental Center and the telephone answering machine was not working. This fact was known to Respondent and other staff members at the dental center. Respondent had directed the other dentists, including Saitta, to be sure they provided the patients treated during this period with the dentist's home telephone number in case emergency treatment was needed. Additional cards were provided the receptionist to give the telephone number of their treating dentist to the patients when they checked out of the dental center.
Recommendation It is RECOMMENDED: that all charges preferred against Peter Kurachek D.D.S. in the administrative complaint filed July 28, 1989 be dismissed. ENTERED this 8th day of May, 1990, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-0187 Petitioner proposed findings are accepted except the following: 15 Rejected as uncorroborated hearsay. 19-21 Dr. Yurosko was accepted as an expert in dentistry and oral surgery--not in dental office procedures or what constitutes adequate emergency services as that phrase is used in Rule 21G- 17.004 Florida Administrative Code. Accordingly, his interpretation of the rule constitutes a legal opinion rather than a dental opinion and, as much, is entitled to little weight. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Janine Bamping, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Peter Kurachek 3920 Bee Ridge Road Sarasota, FL 34233
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0003535. At all times material hereto, Respondent and another dentist are and have been equal owners of North Dade Dental Offices, which they operate through a professional association bearing their names. Sol and Roza white saw an advertisement for North Dade Dental Offices in the Sunday newspaper. As a result, they went to North Dade Dental Offices and consulted with Respondent on September 16, 1981. Mrs. White agreed to allow Respondent to fabricate new upper and lower dentures for her; and Respondent signed the Laboratory Procedure Authorization and completed that "prescription" and a North Dade Laboratory Instructions sheet, thereby authorizing and commencing the fabrication of those dentures. A set of dentures was made for Mrs. White at the North Dade Dental Offices by Respondent and some of his personnel, both identified and unidentified. On October 3, 1981, a full set of dentures was delivered to Mrs. White. Thereafter, she complained to Respondent and others at his office that the dentures were causing pain, that they were unsatisfactory, that they did not fit correctly, that they interfered with her ability to eat, that they had worn or rubbed a raw spot on her gums, and that they caused her face to swell below her eye. She returned to Respondent's office for adjustments on a number of occasions, the exact number of which cannot be determined since the evidence is conflicting and Respondent admits that his records are not accurate. After Mrs. White had returned to North Dade Dental Offices on a number of occasions for adjustments in the hope that the dentures A could be made satisfactory, Respondent suggested to her that she attempt to relieve the pain the dentures were causing her by using whiskey or saltwater. Mrs. White considered that suggestion to be, minimally, unprofessional and refused to thereafter return to North Dade Dental Offices to have Respondent continue working on her dentures. Instead, Mrs. White went to her doctor of osteopathy and showed him the abrasions caused by her new dentures. She then sought the services of Dr. Charles M. Friedman, a dentist in the same building as her osteopath. When Friedman examined Mrs. White and the dentures from North Dade Dental Offices, he found that: the lower denture was overextended in relation to the labial frenum and the buccal frenum and shy of proper placement in relation to the lingual frenum; the lower denture had no primary retention or stability; the dentures had no border seal or border molding approximating the muscle extensions; the dentures did not adapt to ridges and moved and unseated during function and when pressure was applied against the ridges; maximum intercuspation of teeth was considerably anterior to the point of first tooth contact; the overall quality of workmanship of the dentures was poor; and the dentures appeared to have been relined without a proper finishing and polishing procedure thereafter. Additionally, the dentures Respondent had agreed to fabricate for Mrs. White could not be adjusted or redone in a way to make them satisfactory because the vertical dimension was incorrect. The dentures provided by Respondent to Mrs. White therefore failed to meet minimum standards of performance, since they caused tissue ulceration in her mouth, since they fell out of her mouth when she talked, and since they did not enable her to chew food. After Mrs. White refused to return to Respondent's office due to his comments to her, her husband went to North Dade Dental Offices and personally requested Respondent to refund their money or make a new set of dentures that worked. Respondent refused both requests. Not only are the office records on Roza White incomplete and incorrect, two facts admitted by Respondent, they also fail to identify the dentist of record. On February 14, 1981, Lydia Sudick went to the North Dade Dental Offices, where she discussed with Respondent the extraction of a tooth and construction of a new lower denture. Respondent performed the extraction; and, after agreeing to fabricate new upper and lower dentures for Mrs. Sudick, Respondent signed the laboratory authorization forms and issued instructions for the construction of those dentures. On March 21, 1981, Mrs. Sudick received the new dentures the Respondent agreed to make for her. She immediately encountered problems with those dentures in that a hook on the end stuck her in the inside of her mouth, the dentures caused sores, and they fell out of her mouth. Mrs. Sudick complained to Respondent and other personnel at his office regarding the problems with her dentures. Respondent declined to refund her money when she made that request; however, Respondent offered to remake her dentures if she would continue to come to the clinic. The dentures delivered to Mrs. Sudick by Respondent on her last visit to the North Dade Dental Offices were unsatisfactory to her in that they caused her pain and kept falling out of her mouth. Mrs. Sudick and her dentures were examined by Dr. Leonard M. Sakrais in June of 1981. Sakrais found the following deficiencies: the upper denture had no primary retention or stability; the teeth in the upper denture were set lateral to the ridges; the lower partial denture had no stability or seat; the lower partial denture was inadequate in design for retention; the lower partial denture had a nonfitting buccal wire clasp with no reciprocity for retention; the interarch relationship of the dentures was totally inadequate, with absolutely no centric or intercuspation; and the two dentures were inadequately designed and constructed for function together as a set. Not only did Sakrais find that the dentures Respondent constructed for Mrs. Sudick failed to meet minimum standards of performance, he also found that the dentures she was wearing when she went to Respondent for the extraction of one tooth were still servicable and would have required only the addition of one tooth to the dentures (to replace the natural one extracted) without any necessity for constructing new dentures at all. During Mrs. Sudick's visits to North Dade Dental Offices, services were performed on her by a number of unidenti- fied persons. Although no female dentists were employed by or associated with North Dade Dental Offices during the time that Mrs. Sudick was a patient there, impressions were taken inside her mouth by two different women. Respondent knew at the time that those two unidentified women were taking impressions inside Mrs. Sudicks mouth, since he entered the room while that was being done. Not only were the office records of Lydia Sudick incomplete and inaccurate, two facts admitted by Respondent, they also fail to identify the dentist of record. On or about June 1, 1981, Charles Calaman, an investigator with the Department of Professional Regulation, visited the North Dade Dental Offices. No state licenses or permits were observed to be posted, although Calaman looked for them specifically. When he inquired as to why no licenses were displayed, one of Respondent's employees advised that the licenses were somewhere being laminated or plagued but was unable to recall where that work was being performed. On a subsequent occasion, Calaman saw Respondent's license as well as that of the Respondent's partner, and those licenses were neither plagued nor laminated. Newspaper advertisements for North Dade Dental Offices appeared in the "Neighbors" section of The Miami Herald every Sunday. Both Respondent and his partner at the North Dade Dental Offices instructed the employee handling their account at The Miami Herald that each ad must be presented to them for approval prior to publication. The account executive, who therefor was personally at the North Dade Dental Offices at least once a week, dealt with Respondent or with his partner on an approximately equal basis. Once an ad was approved for publication, that particular ad was run for several Sundays in a row before Respon- dent and his partner would require a different layout. Ads for North Dade Dental Offices covering the time period from January 18, 1981, through December 6, 1981, which were admitted in evidence, were paid for by the professional association comprised of Respondent and his partner, who together owned equally North Dade Dental Offices. The advertisements in question fail to contain the names, addresses, and telephone numbers of all the dentists with whom Respondent was associated at the North Dade Dental Offices on the dates of the advertisements. The advertisements in question contain information about fees for services other than defined routine dental services. Fillings or crowns are not defined as routine dental services. The advertisements in question contain information about fees but do not contain, in lettering no less prominent than the general text of the advertisement, a statement that the fee advertised is a minimum fee to be charged for such service and that the actual fee might vary depending upon the complexity involved in a given case. The advertisements in question contain laudatory statements about the dentists at North Dade Dental Offices and further contain statements relating to the quality of dental services provided, such as the following: Our Lower Fees & Superior Personalized Dentistry have Established Us as the Leading Full Dental Service in South Florida! Highest Quality Dental Service; Lowest Possible Fees Our low fees and quality care is [sic], in our opinion the most realistic good dentistry available in the South today. Continuing Our Policy of Highest Quality, Full Dental Service at the Lowest Possible Fees. We do make high quality dentures & crowns and We don't charge high fees for quality dentistry!
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice Counts One, Two, Three, Four, and Eight of the Administrative Complaint; finding Respondent guilty of the allegations contained in Counts Five, Six, Seven, Nine, Ten, and Eleven of the Administrative Complaint; suspending Respondent's license to practice dentistry for a period of 30 days; assessing an administrative fine against Respondent in the amount of $3,000 to be paid by a date certain; and placing Respondent's license on probation for a period of one year after his suspension with the terms and conditions of that probation to be set by the Board of Dentistry. DONE and RECOMMENDED this 20th day of June, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 20th day of June, 1984. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Douglas L. Williams, Esquire Martin Nathan, Esquire Rivergate Plaza, Suite 700 444 Brickell Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
