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 0004795. At all times material hereto, Respondent maintained two offices for the practice of dentistry, one where he practices privately in Bay Harbor Islands and one in North Miami Beach which is also known as R & E Dental Offices or as North Dade Dental Office. Case Number 83-3976 Beatrice Gershenson On April 19, 1980, Beatrice Gershenson, in response to a newspaper advertisement, came to R & E Dental Offices complaining that her lower denture made years earlier was uncomfortable and in need of replacement. Respondent examined Gershenson on that visit and advised her that she would need to have both her upper and lower dentures replaced. During that consultation, Respondent and Gershenson agreed upon a fee of $410 for a full set of dentures. Respondent did not provide any treatment to Gershenson during her first visit. Gershenson returned to R & E Dental Offices several times during April and May 1980, during which visits she received a full set of dentures and several subsequent adjustments to those dentures. Although Gershenson's checks were made payable to Respondent, Respondent provided no treatment to her; rather, all dental services were provided to Gershenson by other employees of R & E Dental Offices. Gershenson did not see Respondent following the initial consultation until her last visit to R & E Dental Offices. At that time, Gershenson complained to him about her dentures. She advised Respondent that her dentures were flopping and that she was biting the back of her jaw. Respondent did not examine her at that time. Based upon her complaints, however, he suggested that she be provided a reline and that she use a denture cream. Gershenson refused to have a reline, became upset about having to use a denture cream, and left. On July 16, 1981, Gershenson and her dentures were examined by Dr. Leonard M. Sakrais, a dental expert retained by Petitioner. Between her last visit to R & E Dental Offices and her examination by Dr. Sakrais, Gershenson's dentures were not altered. The three deficiencies in Gershenson's dentures noted by Sakrais became the specific allegations in the Administrative Complaint filed against Respondent. Sakrais noted that the dentures exhibited open occlusion on the right side, the lower anterior teeth were set forward of the ridge making the lower denture unstable, and the upper denture was short in the tuberosity region and therefore had no retention. However, Sakrais recognized that lower dentures are typically unstable, that Gershenson's small knife-edged lower ridge made her a difficult patient to fit, and that the dentures could have very easily been made serviceable. One of the ways in which the defects could be remedied, accordingly to Sakrais, was for the denture to be relined. If a patient refuses to have a denture relined, however, there is nothing a dentist can do further. Gershenson continued to wear the dentures obtained at R & E Dental Offices without adjustment after the examination by Sakrais until she commenced treatment in June 1983 with Dr. Alan B. Friedel. She made no complaints to Friedel regarding the upper denture and only complained about the looseness of the lower denture. Friedel adjusted her lower denture and recommended that it be relined and that she use a denture cream. Friedel noted no problems with the upper denture and attributed the problems with Gershenson's lower denture to the shape and deterioration of her lower ridge. When Dr. Neil Scott Meyers examined Gershenson on August 3, 1984, after Friedel's treatment had been completed, Gershenson complained to him that her upper denture fit so well that she had trouble removing it. Meyers found no defects in Gershenson's dentures, as modified by Dr. Friedel, and also noted the difficulty in fitting a lower denture for a patient with a small sharp lower ridge like Gershenson's. Gershenson voluntarily terminated treatment with R & E Dental Offices without requesting a refund and without requesting that the dental work be redone. Rather, she refused Respondent's offer to reline her dentures. Case Number 84-0349 Barbara Schmidt On November 4, 1980, Barbara Schmidt came to R & E Dental Offices in response to an advertisement. Schmidt complained that an improper bite was causing loss of her natural teeth and advised Respondent that her previous dentists had recommended that she have her teeth capped and bite opened. Schmidt brought with her to that consultation X rays and study models, a lot of advice from previous dentists who had treated her, and her attorney-husband who drilled Respondent on his plan for treatment of Schmidt. During Respondent's examination of Schmidt, he noted that she suffered from an extreme loss of vertical dimension. Her teeth were very worn, and there was little enamel left on her anterior teeth. The agreed upon treatment plan for Schmidt involved a full mouth reconstruction, consisting of 15 lower crowns and 8 upper crowns. On November 4 and 11, 1980, Respondent prepared Schmidt's lower right side and lower left side and provided her with temporaries. Respondent made no attempt to increase her vertical dimension with the first set of temporaries. On November 25, 1980, Respondent took a second bite impression and made a second set of temporaries which increased Schmidt's bite by 2 millimeters. He noted that he was having trouble getting Schmidt's jaws into centric position for taking a second impression because her jaw muscles were too tense. During Schmidt's appointments on December 16 and 23, 1980, Respondent tried-in the lower metal framework, checked the margins, looked for blanching of the tissue, determined that the lower frame was acceptable and ready to be finished, and took a third bite impression due to the difficulty in getting the same registration each time that Schmidt's bite was registered. During Schmidt's January 13, 1981, appointment, Respondent began work on her upper teeth. Schmidt was placed in temporaries. When the upper metal work was tried-in on February 3, 1981, Respondent determined that the fit was correct. On February 10, 1981, Respondent inserted Schmidt's upper crowns using temporary bond and made a notation in Schmidt's records that her bridges should be removed every six months. On February 17, 1981, Respondent removed one of Schmidt's bridges, made new temporaries, and returned Schmidt's crowns and bridgework to the laboratory for rearticulation in order that the bite, with which Respondent was not satisfied, could be corrected. On this date Schmidt was in her third set of temporaries and was clearly in an unfinished stage. On February 18 and 24, 1981, Schmidt was seen by Dr. Wayne Dubin, another dentist in the same office. Schmidt's dental records indicate that on the former date Dubin re-cemented Schmidt's temporary crowns, and on the latter date he cemented with temporary bond the permanent crowns that Respondent had returned to the laboratory on February 17. On March 3, 1981, Respondent repaired Schmidt's lower right bridge, and on March 10 he cemented that bridge back into Schmidt's mouth with temporary bond. On March 17, 1981, Respondent removed one of Schmidt's bridges and returned it to the laboratory so that porcelain could be added. This was the last occasion on which he rendered treatment to Schmidt. On March 24, Schmidt was seen by Dr. Dubin at the request of Respondent. In the presence of Schmidt, Respondent requested Dubin to take over the case because Respondent was still unable to correct Schmidt's bite. Respondent told Dubin to do whatever he thought was necessary. On March 24, 1981, Dubin removed Schmidt's crowns and bridges and took a bite impression without the crowns and bridges in place in order to correct the bite problem in a different way than Respondent had previously tried. On April 7, 1981, Dubin placed Schmidt's bridges in her mouth using temporary cement. He advised her that on her next visit he would take a new set of X rays, presumably to start over again if necessary. Although Dubin was at that time Schmidt's treating dentist, she sought advice from the lady employed as the office manager at R & E Dental Offices. The two women decided that rather than having Schmidt continue with Dubin, she should see Dr. Lawrence Engel the "E" of R & E Dental Offices. On the following day Engel saw Schmidt for an occlusal adjustment. During the examination, Schmidt's jaw muscles went into spasm, and she was unable to make the appropriate movements so that Engel could make the appropriate adjustments. Engel suggested to Schmidt that she go home, practice moving her jaw in front of a mirror in the privacy of her home, and then return so that he could complete her adjustment. Schmidt returned to Engel approximately one week later and brought her husband with her. While Mr. Schmidt engaged in a tirade and Dr. Engel engaged in adjusting Mrs. Schmidt's bite, there was a power failure in North Miami Beach. The Schmidts were given their choice of waiting until electrical power resumed or leaving and coming back at another time. After advising the office manager that they would return and that would also complete paying the agreed upon fee for dental services, the Schmidts left. They did not, however, return, and they did not, however, complete paying their bill. Instead, on May 18, 1981, Mrs. Schmidt picked up her records, X rays, and study models. She did not speak with Respondent about her voluntary termination of treatment, about a refund of the monies paid for treatment, or about her dental work being completed or redone. Schmidt was not released from treatment by any dentist at R & E Dental Offices. When Schmidt released herself from treatment, none of the three dentists who had treated her had indicated that her case was completed or close to completion. Rather, more temporaries were being made, her crowns and bridgework were being returned to the laboratory, new X rays were being ordered, and one dentist was in the middle of an adjustment when the electrical power failed. Moreover, the dental work made for her had been cemented with temporary bond, and no one had indicated that permanent cementing was likely at any time soon. The only discussion which had occurred regarding the use of permanent cement occurred with Respondent when he explained to her that sometimes sensitive areas are alleviated when permanent cementing takes place. That discussion took place prior to the time that Respondent referred Schmidt to Dr. Dubin with instructions to do whatever Dubin thought necessary. During the time that Respondent was treating Barbara Schmidt, she was seeing other dentists for the purpose of having them monitor Respondent's work. Since neither Schmidt nor her monitoring dentists advised Respondent that he was being monitored, the only information available to those dentists was that provided to them by Barbara Schmidt. They, therefore, did not have the benefit of Respondent's input into their opinions, and Respondent likewise was not given the benefit of their input into his decisions. In addition to seeing a Dr. Coulton and a Dr. Souviron, Schmidt consulted twice with Dr. Alvin Lawrence Philipson, a dentist having some business dealings with Mr. Schmidt. Schmidt saw Dr. Philipson for Use first time on February 11, the day after her permanent lowers were inserted with temporary cement. Six days later Respondent removed Schmidt's lower left bridge and sent it back to the lab to be remade in order to correct the bite and alleviate an area causing sensitivity. When Philipson next saw her in March of 1981 he was of the opinion that Respondent had provided treatment which failed to meet minimum standards. That opinion, however, was based upon the information given to him by the Schmidts that Respondent was finished with the case and ready to permanently cement all bridgework. At the time that he rendered his opinion, Philipson did not know that Schmidt was about to be referred by Respondent to another dentist, i.e., Dr. Dubin for that doctor to do whatever he thought was necessary in order to help Mrs. Schmidt. After Schmidt discharged herself from the care of the dentists at R & E Dental Offices, she continued to wear the crowns and bridgework in their temporized state without treatment from April 8, 1981 (the day of the power failure) until July 7, 1982 when she sought dental treatment from Dr. Donald Lintzenich. By this time she had also developed periodontal problems, most likely as a result of neglect. Schmidt began treating with Tintzenich in July of 1982, and Lintzenich also referred her to other specialists for necessary treatment such as root canals and periodontal treatment. Although many changes were made to the crowns and bridgework Schmidt received from R & E Dental Offices by Lintzenich and the other dentists to whom he referred her, during the first four months that he treated Schmidt Lintzenich left the crowns and bridgework from R & E Dental Offices in Schmidt's mouth. Although Lintzenich began treatment of Schmidt in July 1982, he was still treating her at the time of the Final Hearing in the cause and was, at that point, considering redoing work he had placed in her mouth. The numerous experts in dentistry presented by both Petitioner and Respondent agree that Barbara Schmidt's is an extremely difficult reconstruction case and that a quite extended period of time is necessary for the correction of her dental problems. Further the experts agree on nothing. Each of Petitioner's experts disagrees with almost everything stated by the remainder of Petitioner's experts. For example, Philipson recommends increasing Schmidt's bite; Glatstein believes that Schmidt's bite needs to be reduced; and Lintzenich opines that any attempt to change the vertical dimension would constitute treatment below the minimum acceptable standard. Some of Petitioner's experts believe that Schmidt's periodontal problems existed before she sought treatment by Respondent, and some of them believe that her periodontal problems commenced after she had terminated treatment with Respondent. Although most of Petitioner's experts agreed that Respondent's work fell below minimum standards, they also admit their opinions would be different if they had known that Respondent had not completed his work on Schmidt and had not discharged her but rather had referred her to another dentist with instructions to do whatever was necessary. Only Dr. Glatstein maintained that Respondent's work was substandard at any rate, an opinion he confers on Lintzenich's work, too. The Administrative Complaint filed herein charges that Respondent's treatment of Schmidt failed in the following "specifics": the work has no centric occlusion; the bite is totally unacceptable and if not corrected will cause irreversible damage to the temperomandibular joint; and the contour of the teeth and embrasure space for the soft tissues were unacceptable and ultimately will result in periodontal breakdown. All of the experts who testified agree that Barbara Schmidt's bite is/was not correct. She initially sought treatment because her bite was not correct and is still undergoing treatment because her bite is not correct. There is no consensus on any of the other charges in the Administrative Complaint; in fact, there is no consensus as to the meaning of some of the words' used. For example, some dentists believe that the term "contour of the teeth" encompasses open margins while others believe that an open margin is the space between the tooth and the crown. Few dentists, however, believe that an Administrative Complaint which states that the contour of teeth is unacceptable advises a licensee that he is charged with defective work because of open margins. Even if open margins were part of the term "contour of the teeth," the Administrative Complaint fails to notify anyone that the open margins are the part of the contour that is alleged to be defective or even which teeth are involved. There is no basis for choosing the opinion of one expert in this case over the other experts who testified herein. Further, many of the opinions are based upon information that was either erroneous or false, such as the information that Respondent had completed treatment and discharged Schmidt.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaints filed herein and dismissing them with prejudice. DONE and RECOMMENDED this 20th day of May, 1985, at Tallahassee, 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 May, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201 Algis Augustine, Esquire 407 South Dearborn Street Suite 1300 Chicago, Illinois 60605 Stephen I. Mechanic, Esquire Allan M. Glaser, Esquire Post Office Box 398479 Miami Beach, Florida 33139 Ronald P. Glantz, Esquire 201 S.E. 14th Street Fort Lauderdale, Florida 33316 Steven Rindley, D.D.S. 251 NE 167th Street North Miami Beach, Florida 33162 Steven Rindley, D.D.S. 1160 Kane Concourse Bay Harbor Islands, Florida 33154 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
Findings Of Fact Respondent is a licensed dentist practicing in Holiday, Florida. He has practiced dentistry for approximately 30 years and has limited his practice to prosthetics (dentures) since 1974. Doctors Christian, Bliss and Venable are likewise dentists licensed and practicing in Florida. On the basis of education and experience, each was qualified as an expert witness in the filed of dental prosthetics. In determining whether a denture meets or falls below the minimum standard of acceptability, several technical factors are considered. The denture is placed in the patient's mouth to check area of coverage or the adaptation of the denture to the ridges of the mouth; the extension of the flanges or borders of the dentures; the occlusion of the teeth and bite; the extension of the dentures into the soft palate; esthetics and finally, speech. The expert testimony of Dr. Christian in the evaluation of the dentures is accorded greater weight than that of Doctors Venable and Bliss since Dr. Christina conducted his examinations in May and June 1979, while Doctors Bliss and Venable performed their examinations some two years later. Changes in the patients mouth as well as the dentures over time make such later evaluations less meaningful. Dr. London's testimony is entitled to greater weight than that of his complaining patients with respect to precise financial agreements and dates on which various services were performed. This determination is based on the fact that Dr. London maintained contemporaneous records on each patient (office charts) and was able to refer to these documents during the course of his testimony. However, the testimony of his former patients with respect to the difficulties they encountered with their dentures was not lacking in credibility. On April 13, 1979, Rose Edwards went to Dr. London for treatment, and she agreed to pay $265.00 for a full set of porcelain dentures. On that same date impressions were taken for the construction of upper and lower dentures. On May 4, 1979, Respondent delivered the upper and lower dentures to Ms. Edwards. On May 8, 1979, she returned to Respondent's office complaining that the two front teeth were crooked and too far apart. Respondent found that the two front teeth needed reversing and he did so. On May 11, 1979, Ms. Edwards returned to Respondent's office complaining that she could not chew with the dentures, that the lower denture would not stay in her mouth, that food particles would get under the lower dentures and that she had blisters in her mouth from the loose dentures. Respondent adjusted the dentures. On July 24, 1979, Ms. Edwards returned to Respondent and stated that she was still having a great deal of difficulty with the dentures delivered by Respondent. Respondent advised Ms. Edwards that he would make no further adjustments and dismissed her as his patient. Dr. Christian conducted an examination of Ms. Edwards and the dentures prepared by Dr. London. He found that the borders of the lower denture were overextended into the cheek area. Dr. Bliss later examined Ms. Edwards and the same dentures and found the border areas to be greatly overextended into the soft tissue and muscle. The fact that the lower denture was overextended into the border areas caused it to lift up on movement of Ms. Edwards' mouth making it impossible for her to chew with the denture. Dr. Venable also conducted an examination of Ms. Edwards and the dentures delivered by Respondent. He found that the upper denture was overextended in the posterior or postdam area, and the lower denture underextended in the posterior area. The dentists generally agreed that Ms. Edwards was difficult to fit as she had poor ridges (required to support the denture) from having worn false teeth for many years. However, Ms. Edwards was relatively satisfied with her old dentures and returned to wearing them after being dismissed as a patient by Dr. London. The testimony taken as a whole established that the dentures Dr. London prepared for Ms. Edwards were deficient in several respects and did not meet the overall standards of quality required as a licensed dentist. Dr. Bliss and Dr. Christian stated that their fee for fitting Mrs. Edwards with dentures would have been $800 and $1,000 respectively. However, none of the dentists who testified, including Dr. London, regarded his substantially lower fee of $265 as any excuse for less than satisfactory work. On February 20, 1978, Lila Andrews went to Dr. London for treatment and agreed to pay Dr. London $290 for a full set of dentures, including adjustments and a relining, if required. On that same date impressions were made for the upper and lower dentures. On March 27, 1978, Dr. London delivered upper and lower dentures to Ms. Andrews for insertion by her oral surgeon. On April 7, 1978, Ms. Andrews returned to Dr. London complaining of severe pain on her lower gum. An adjustment was made to the lower denture by Dr. London. On May 18, 1978, Ms. Andrews returned to Dr. London complaining that she still could not put any pressure on her lower gums without a great deal of pain. In addition, she had developed sores in her mouth. At that time, Dr. London told her that he would remake the lower denture if Ms. Andrews agreed to pay Dr. London $45.00 to reline the upper dentures. Ms. Andrews agreed to pay him $45.00 since she wanted a usable denture, although she believed this charge was contrary to their agreement. On June 12, 1978, Dr. London delivered a second lower denture to Ms. Andrews and on June 14, 1978, she returned for an adjustment and told Dr. London that her dentures would not stay in her mouth and that her mouth continued to be extremely sore. Dr. London relined the lower denture. On December 14, 1978, Ms. Andrews returned to Dr. London's office and informed him that her dentures still would not stay in her mouth and that the soreness had continued. Dr. London advised Ms. Andrews that he would reline the dentures but that he would charge her for this service. She refused to pay and received no further treatment from Dr. London. Ms. Andrews currently uses the denture prepared by Dr. London but does so only with the aid of commercial fastening products. She also suffers a "lisp" which she did not previously have. On May 9, 1979, Dr. Deuel Christian examined Ms. Andrews and the dentures delivered by Dr. London. His examination revealed the following: The borders on the upper denture were grossly underextended into the soft tissue. The upper denture was not extended far enough into the postdam area, that area of soft tissue along the junction of the hard and soft palate of the roof of the mouth. The aesthetics of the upper denture were poor and the phonetics were such that the denture caused lisping. The borders of the lower denture were underextended into the soft tissue and the tooth placement in relation to the gum was poor. The bite relation between the upper and lower jaw was such that when the jaw was closed only four teeth made contact. The grossly underextended borders, the underextension in the postdam area, the poor tooth placement in relation to the gum and the poor bite relationship resulted in a lack of stability (especially when chewing), lack of retention and soreness in the mouth. Dr. Venable's examination revealed some deficiencies, but to a much lesser degree. His findings indicated that the flange on the lower denture was too short and the front section of the upper denture was too far forward. The testimony taken as a whole established was too far forward. The testimony taken as a whole established that the dentures Respondent prepared for Ms. Andrews failed to meet the minimum standards of quality required of a licensed dentist. On November 1, 1978, Grace McMichael visited Dr. London to have an upper denture made. A primary impression was taken of Ms. McMichael's upper jaw on November 1, and the upper denture was delivered to her on November 13, 1978. On November 17, Ms. McMichael returned to Dr. London's office complaining that the upper denture would not stay in her mouth, and the denture pressed into her nose when she bit down. Dr. London adjusted the denture. Mr. McMichael returned to Dr. London's office on December 13, as she was not satisfied with her denture. Dr. London advised her that he could not do anything further for three months when her gums would be more stable. He recommended that she purpose adhesive to hold her denture in. Dr. London made an appointment for Ms. McMichael on February 2, 1979, but she cancelled and never returned. Dr. Christian's examination of Ms. McMichael and the denture delivered by Dr. London revealed that the borders on the denture were underextended, that there was no postdam area and that the phonetics were poor. The underextended borders and the lack of extension into the postdam area affected the stability and retention of the denture. The phonetics problems observed by Dr. Christian resulted in Ms. McMichael lisping. It should be noted that any changes that might have occurred in Ms. McMichael's mouth between December 13, 1978, and February 2, 1979, would have had no affect on the underextension of the denture or the phonetics and could not have been corrected by adjustment. The examination by Dr. Venable revealed that the posterior border of the denture (throat area) and the planges (cheek area) were overextended. Although Dr. Venable did not consider these to be major deficiencies, the testimony as a whole established that the denture failed to meet the minimum standards of quality required of a licensed dentist.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Respondent be found guilty of incompetence in the practice of dentistry. It is further
The Issue The issues presented herein are: (1) whether or not the Respondent, Kenneth T. Risco, D.D.S., permitted an unlicensed dental employee (Wilbert E. Bolyea) to examine and diagnose the mouth of Dr. Erwin Ochs for treatment or treatment planning in violation of Chapters 466.024(4)(b) and 455.026(1)(c), Florida Statutes (1979); whether Respondent, thereby aided, assisted, procured or advised an unlicensed person to practice dentistry or dental hygiene contrary to Chapter 466.028(1)(g), Florida Statutes (1979); whether Respondent knowingly permitted Bolyea to take an impression for the purpose of fabricating an intra- oral restoration, to wit: upper and lower dentures, in violation Chapter 466.024(1)(a) and (c), Florida Statutes (1979); whether Respondent thereby delegated professional responsibilities to a person with knowledge or reason to know that such person did not qualify by licensure to perform such tasks in violation of Section 466.028(1)(aa), Florida Statutes (1979); whether Respondent permitted Bolyea to engage in the examination, diagnosis and treatment planning of conditions within the human oral cavity audits adjacent tissues in conjunction with the supplying of dentures to patients in Respondent's office in violation of Chapter 466.026(1)(c), Florida Statutes (1979), and thereby knowingly employed a person to perform duties outside the scope allowed such persons in violation of Chapter 466.024(4)(b), Florida Statutes (1979).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By its eight (8) count Administrative Complaint filed herein on November 6, 1980, the Petitioner seeks to revoke, suspend or take disciplinary action against Respondent as a licensee and his license as a dentist under the laws of Florida. Respondent, Kenneth T. Risco, is a licensed dentist having been issued license No. DN6971, since approximately August of 1975. On approximately January 7, 1980, Respondent because professional associated with Wilbert Bolyea (Bolyea) whom he employed as an expanded duty assistant. In summary fashion, the complaint allegations are that Respondent, during the period January 7 through 18, 1980, permitted Bolyea, his expanded duty assistant, to engage in the examination, diagnosis, treatment planning and the taking of impressions for the purpose of fabricating prosthetic dentures and the adjusting of such dentures in violation of Chapter 466, Florida Statutes (1979). Petitioner's proof herein consists of testimony adduced from a deposition of Respondent taken on January 18, 1980, in Collier County Circuit Court, Case No.79-1029 captioned Bolyea v. Wittenberg; Dr. Erwin Ochs, who is now deceased, testimony was received as an unavailable declarant pursuant to Chapter 90-803(18), Florida Statutes; and testimony taken during the hearing herein on February 24, 1981, in Naples, Florida. Ruppert Bliss, a licensed dentist and a member of Petitioner's Board, has been practicing dentistry since approximately 1956. Dr. Bliss is a member of several professional associations and expressed familiarity with the terms of art peculiar to the dental profession. Dr. Bliss was received as an expert in prosthetic dentistry in this proceeding. According to Dr. Bliss, the treatment and diagnosis of a patient with dental problems should proceed as follows. First, the patient is examined by a visual inspection of the patient's pathological signs. A working relationship is then developed with the patient and a study model is made to follow and coordinate subsequent diagnostic procedures. This includes a study of a patient's tissue contours which aids in making a model to trace registrations and to effect proper adjustments which affect a patient's ability to bite. Throughout the procedure, the patient is constantly examined and a final adjustment is made to ensure that the dentures, as constructed and fitted, enable the patient to bite properly and that the bone and tissue conditions are not adversely affected. Dr. Bliss described the difference between the terms of art in the dental profession known as a "remediable" versus nd "irremediable" task. A "remediable" task is one that can be reversed whereas an "irremediable' task can not be reversed. Dr. Bliss included in the list of irremediable tasks, the adjustment of prosthetic appliances since they affect a patient's bite; may worsen bone or tissue conditions and also impacts on a patient's mannerisms. The diagnosis of a denture problem and its adjustment is an irremediable task. (Tr. 41) Respondent's Defense Dr. Riso is a 1975 graduate of the University of Pennsylvania. Upon graduation, he became licensed to practice in the states of Florida, New Jersey and Pennsylvania. Respondent's spouse, Dr. Rebecca Weber, is also a dentist licensed to practice in Florida and practices jointly with Respondent. Respondent, during the instant hearing on February 24, 1981, denied permitting Bolyea or any unlicensed person employed by him to practice dentistry or to examine patients without any supervision by him. Respondent became professionally associated with Bolyea on January 7, 1980, as an expanded duty assistant. In keeping with this employment relationship, Respondent and Bolyea entered into an employment agreement which delineated the procedures under which Bolyea was authorized to carry out his employment functions. (See Respondent's Exhibit No. 1) According to Respondent, he first learned of the services performed for Dr. Ochs by Bolyea, at the contempt hearing on January 21, 1980. Pursuant to the employment agreement, Bolyea was authorized to greet patients; take patients' dental history; determine the need for dentures and report back to Respondent. (Tr. pp. 53 and 67) Respondent therefore claims that he was unaware of any dental adjustments by Bolyea during times material to the allegations herein. (Se Respondent's Exhibit No. 1 and Tr. p 69) When Dr. Ochs visited Respondent's office for treatment on January 11, 1980, the employment relationship in effect between Respondent and Bolyea had been effective approximately two days. Dr. Ochs was not seen or examined by Respondent. On January 11, 1980, Dr. Ochs, a former dentist for approximately 35 years, visited Respondent's denture clinic in Naples for an examination and, if necessary, to have dentures made. After being greeted by an office assistant, Bolyea began talking to Ochs about the price and quality or dentures. At the outset of the examination by Bolyea, Ochs explained that he only needed an upper denture made since his lower denture was all right. Bolyea donned a pair of rubber gloves; removed Ochs' upper denture and placed it on a try. Bolyea then examined Ochs' mouth; massaged his lower gum with his finger; remarked that his ridge was very flat and had been pounded to almost nothing. (Petitioner's Exhibit 7, pp 3 and 4) After a mirrored view of Ochs' oral cavity while in the protruding position, Bolyea remarked that "there is contact anteriorly and posteriorly, but in the space between there, you have quite a space. That is why you are pounding your ridge to pieces, because your bite is not right." Bolyea advised Ochs that he could not help him with only a lower denture and that his only solution was to construct a complete set of dentures to correct his bite. Thereafter, Bolyea took a wax bite of Ochs' mouth. According to Respondent, the study model is made by Bolyea after a patient is initially screened. Thereafter, examines the model and a custom tray is made from which a final impression is made by Respondent. Respondent physically delivers the appliance after the third appointment. At some point during the course of fabricating the dentures, Respondent examines the patient. This occurred, in the usual case, during the second or third visit. Respondent's testimony during the contempt hearing held on January 21, 1980, is as follows. Patients desiring dentures were required to make three visits and at some point during the diagnostic procedures of the patient (by Bolyea), Respondent diagnosed and examined the patient. Respondent considered that Bolyea's actions in feeling dr. Ochs' gums and advising him as to the condition of the ridges included the corrective measures he would employ to correct his bite were "physical observations" rather than an examination and diagnosis. Respondent authorized Bolyea to make those determinations. (Petitioner's Exhibit 6 at p 48) Respondent did not check to determine the corrections of Bolyea's judgment as to the necessity for a new set of dentures. (Petitioner's Exhibit 6 at p 48) Respondent also stated that a patient was free to, and in fact would, return to his office if he was dissatisfied with the dentures (as fitted or adjusted by Bolyea). However, Respondent agreed that an improperly adjusted denture could result in irreversible harm to the muscles and soft tissues of the mouth. In this regard, Respondent's and Ms. Chesser's testimony during the hearing, to the effect that he (Respondent) was unaware of Respondent making adjustments to patients' dentures is contrary to Respondent's testimony on January 21, 1980. Respondent's sworn statements, when he was not under the pressure of disciplinary sanction by the Petitioner is considered more credible than the subsequent testimony herein when the threat of disciplinary action existed. To the extent that his testimony herein differs from the version offered by him during the prior proceedings, the more recent testimony is rejected. Likewise, Ms. Chesser's testimony to the effect that Respondent was unaware of Bolyea's actions relative to the adjustments of dentures is contrary to Respondent's testimony on January 21, 1980, and is also rejected. Joyce Chesser was employed by Messr. Dolyea from approximately July 1979, through March of 1980. She was hired as an assistant and officer manager. Based on Bolyea's procedures, dentures were completed during a span of not less than four weeks subsequent to a patient's first visit. Bolyea made adjustments to patients' dentures without Respondent's knowledge, permission or authorization (Tr. 76 thru 82). Bolyea also examined patients and went behind Respondent's back to adjust dentures which were already prepared prior to any employment relationship with Respondent. 2/ Respondent's wife, Dr. Rebecca Weber, was also familiar with the employment relationship between Respondent and Bolyea. Dr. Weber denied that Respondent permitted Bolyea to examine or otherwise diagnose patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Petitioner, Board of dentistry, enter a final order herein finding the Respondent guilty of the allegations set forth in Counts 1 through 8 of the Administrative Complaint filed herein and suspending the Respondent's license to practice dentistry in the State of Florida for a period of six (6) months. RECOMMENDED this 1st day of May 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May 1981.
Findings Of Fact The Respondent is a dentist licensed in the State of Florida, having been issued license number 0001575. The Petitioner is an agency of the State of Florida charged with regulating the standards for licensure and for practice of dentists in the State of Florida and with enforcing compliance with those licensure and practice standards contained in Chapter 466, Florida Statutes (1981). Jewel Taub is an elderly dental patient who first saw Dr. Seth Rhodes on January 28, 1980. On February 14, 1980, the Respondent took impressions of Mrs. Taub's mouth to construct a partial denture for her. On February 26, 1980, the denture was tried in the patient's mouth by Dr. Tyrone Cheeping, an associate of the Respondent. On March 4, 1980, the denture was delivered to Mrs. Taub by the Respondent and an initial adjustment performed by him, Mrs. Taub complaining that the denture palate was too thick. On April 28, 1980, the Respondent again adjusted the denture in response to Mrs. Taub's complaint that the denture or its palatal portion, was still too thick. In approximately March of 1980, the patient had stopped putting the partial denture in a container of liquid as she had been instructed by the Respondent. She began at that time to keep the partial denture in a dry envelope in her medicine chest. The patient had worn lower dentures and had been advised many times that if she did not properly care for and maintain this upper denture it could be damaged. She stopped caring for and maintaining the partial denture because she had no intention of ever wearing it again because of her dissatisfaction with its fit. Dr. Marshall Brothers, a contract dentist for the Department of Professional Regulation/Board of Dentistry, was accepted as an expert witness. He examined Jewel Taub in his office on November 25, 1981, and examined the upper partial denture in question. The theory of the design of the upper partial denture was correct because the Respondent planned that appliance to have full palatal coverage because the patient needed the additional support from the roof of her mouth and that type of denture would aid her in making a transition eventually to a full upper denture. Dr. Brothers opined that the thickness of the plate, the impingement, the openness of the bite and a lateral rock rendered the execution of the partial denture to be below community standards for manufacture and fit of such dentures. Dr. Brothers did not, in formulating this opinion, consider the passage of time during which the denture was not used by the patient and not properly cared for and was not aware whether there had been any movement in the teeth, change in size of the gums or adjacent tissue, during more than one and one-half years since the attempted adjustments. It is quite unusual that a denture should fit the first time it is tried in a patient's mouth. Thickness alone, even if a denture is too thick, does not alone render the execution of that denture below the standard of care. If a substantial period of time elapses (here in excess of one and one-half years) between the time when the denture was made and the time expert opinions are rendered regarding the fit of the denture in this patient, there can be movement in the teeth and changes in the dimensions of gums or tissue which can alter the fit of the denture. This is particularly true in the case of an 80- year-old patient. The fit of the denture can be altered for the additional reason that the patient failed to maintain the denture properly during that intervening one and one-half years between the time she quit wearing it, in approximately April of 1980, and the time expert examination and opinions regarding its fit were rendered, shortly prior to this hearing. The manufacture of the denture with a palatal portion of a thickness in excess of one and a half millimeters is not necessarily too thick and the fact that that thickness exceeds one and a half millimeters does not render the manufacture and fit of that denture a departure from the proper standards of care of the dentist who manufactures and fits it. Indeed, proper palatal thickness varies considerably from one patient to another and the prescribing of a proper palatal thickness in such a denture is not an exact science since patients' mouths and their dimensions are all different. Indeed, the Respondent prescribed and fitted dentures for a substantial number of his patients who required a palatal thickness of between 3 and 6.2 millimeters and those patients all reported satisfaction with the fit of their dentures. The material used in the denture in question is an acrylic material containing a metal reinforcing mesh. That material is manufactured and supplied to dentists such as the Respondent with a thickness slightly in excess of one and a half millimeters. That then is the minimum dimension of the palatal material which then must be built-up by the dentist in constructing an accurate fit in the palatal portion of the denture to conform to a particular patient's mouth. The slightly more than one and a half millimeter palatal material is therefore a minimum or starting point for the dentist in constructing the denture and it is practically impossible for the material to be thinner than that dimension. Indeed most of the similar dentures satisfactorily fitted by the Respondent were of a palatal thickness of between 3 and 6.2 millimeters. Thus, a palatal thickness in excess of one and a half millimeters cannot be per se excessive. The Respondent's expert witness, Dr. Gary Golden, is also a contract dentist with the Department of Professional Regulation/Board of Dentistry. He conducts a limited clinical specialty practice in prosthodontics and in maxillofacial prosthetics. He is assistant professor of orthodontics and oral surgery at the University of Miami and has conducted extensive study in his specialty area. He is the author of numerous papers and articles on the subject. One article in particular, admitted into evidence as Respondent's Exhibit 3, deals specifically with the issue of palatal size in dental prosthetics. It is not possible to merely observe a denture and determine if one and a half millimeters, the so-called "old standard" is too thick or too thin for a given patient. The partial denture in this case was outside of the patient's mouth for over one and a half years and that fact alone makes it difficult for the patient to reinsert it comfortably. This is true because of shrinkage of areas of her mouth or gums not containing teeth and the resultant movement of her remaining teeth. In an 80-year-old lady such as the complaining witness, particularly, teeth tend to "drift" because of previous extraction of teeth which the denture was designed to replace. It is quite likely that with this patient movement of her teeth occurred during the one and a half years when she did not use the denture, causing the poor fit. A patient's cooperation is quite necessary in obtaining the proper fit for such a partial denture and it is not unusual for numerous adjustments to have to be made. Here the patient quit coming to the Respondent's office for adjustments after the fourth adjustment during a short period of time after the initial fitting. After that the patient ceased cooperating with the Respondent and did not care for the denture properly by not maintaining it in a liquid environment. The lack of care by the patient, coupled with the fact that only a one-half millimeter movement of the teeth in any direction can render the fit of such a denture improper was more likely the cause of the improper fit than the initial design and manufacture of the denture and the adjustments made during the four opportunities the Respondent had to adjust the denture. When the patient complained of excessive palate thickness, the Respondent made adjustments and trimmed the thickness and the coverage of the palatal portion of the denture. After that, the patient failed to appear in his office again (for any further adjustment). Finally, the Respondent established that the interior metal mesh in the material from which the palate was construction is itself one and a half millimeters thick and thus it was impossible for the palate, including the acrylic material surrounding the mesh, to be only one and a half millimeters thick and although one and a half millimeters could possibly be too thick for some patients, it was not the case with this patient. The patient's complaint was really a generalized one regarding "all that stuff in the roof of my mouth" and in reality it was not established that the denture in question could be made successfully in any other way. In summary, Dr. Brothers could not determine whether or not there had been any movement in the teeth or change in size of the gums or adjacent tissue in the patient's mouth. The patient had not maintained the denture properly during the substantial period of time when she did not wear the denture. It is not possible to accurately determine the appropriate original fit and function of the partial denture in question at the time Dr. Brothers examined it and the patient, since it was outside the mouth of the patient for a period of one and a half years and because of possible shrinkage of edentulous areas which do not contain teeth; the extrusion and drifting of the remaining teeth (since the denture is precisely cast to the teeth and gum tissue in a certain position at a certain time); and any movement or change in the teeth or gums would make it impossible to seat the denture satisfactorily. It is to be expected that in a patient 80 years of age who had not worn a partial denture for a period of one and a half years, that at least some movement of the teeth would have occurred, altering the fit of the partial denture. Thus, it was established that the fit of the denture to the patient's mouth more than one and a half years after the Respondent initially manufactured and fitted the denture was not the same. It is quite rare that a prosthetic dental device can be manufactured and simply inserted and not require a number of adjustments. It was not established that the denture was improperly made or that it should have been remanufactured.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED: That the Respondent be found not guilty of a violation of Section 466.028(1)(y) and that the Administrative Complaint be dismissed in its entirety. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 30th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard A. Hamar, Esquire 155 South Miami Avenue Suite 111 Miami, Florida 33130 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of violating the minimum standards of competence, in violation of Section 466.028(1)(y), Florida Statutes; unlawfully delegating certain responsibilities to an unlicensed person, in violation of Section 466.028(1)(aa), Florida Statutes; and failing to maintain adequate records, in violation of Section 466.028(1)(n), Florida Statutes.
Findings Of Fact At all material times, Respondent has been licensed as a dentist. On October 7, 1987, B. K. visited Respondent's office to have her teeth cleaned. She had recently moved to Orlando and had not previously seen a dentist there. She selected Respondent based on the proximity of his office to her home. At her initial visit, B. K., who is 62 years old, presented a natural lower arch, except for the absence of molars that apparently caused her no trouble, and full dentures on the upper arch. In the course of examining B. K., Respondent asked her how old her dentures were. When B. K. replied 12 years, he told her that they should be replaced. She expressed reservations and told Respondent that she had had no problems ordiscomfort with her dentures. Respondent answered that the dentures should at least be relined. B. K. agreed to this suggestion. Respondent's office notes incorrectly recite that, as of the original visit, the dentures did not fit correctly. There is no evidence of a poor fit. Further, there is no reason to replace or reline dentures once they reach a certain age. Changes in fit or comfort may dictate the replacement or relining of dentures; age alone is irrelevant. The remainder of the initial visit was devoted to cleaning B. K.'s teeth and taking an impression of her arch for the purpose of relining the dentures. Respondent took the impression. At the conclusion of the visit, Respondent retained B. K.'s dentures and advised her to schedule a visit for about a week later, at which time she could pick up her relined dentures. When B. K. returned for her second appointment, Respondent installed the relined dentures. B. K. immediately complained that they were much too big. She did not believe that they were even the same dentures that she had left the week before. Respondent assured her that they were her dentures, and they would take additional impressions. An employee of Respondent named Stacy or Terry took the second impression, which took place during the second visit. After taking it, he told B. K. that something went wrong and asked her if he could taken another impression. B. K. agreed and another impression was taken. The employee told B. K. that her dentures could be ready in three of four days. When she returned, the dentures still were too large. At this point, B. K. embarked on a process that involved more impressions, more office visits, and more ill-fitting dentures. During this period, Respondent's employee routinely blamed the laboratory doing the relining work and finally said that they would change labs. On the only occasion that Respondent saw B. K. following her initial visit, he also said that they would be changing labs. However, he never took another impression after the first. In the process, the dentures seemed to be getting larger each time. At some point, B. K. learned from Respondent's employee that he was not a licensed dental assistant or hygienist and lacked any special training. Unable to obtain from Respondent a properly fitting set of dentures, B. K. finally contacted the local dental society and obtained the name of another dentist. She retrieved her dentures from Respondent's office, which refunded the portion of the payment that she had made for the dentures. (She had paid $125, and her insurance company paid $300.) B. K. visited the other dentist and soon obtained a new set of upper dentures that fit properly. Petitioner retained an independent dentist to examine the relined dentures prepared by Respondent and his employee. Without regard to B. K.'s complaints, the relineddentures were objectively unsatisfactory with regard to the adaptation of the denture to the gum. Respondent's dentures were grossly inadequate in terms of retention. When the independent dentist examined Respondent's dentures installed in B. K., he found a defective occlusion that left B. K. unable to bring her upper and lower arches together without distorting her jaw. Even if she could so distort her jaw, the resulting pressure on the dentures caused them to pop out. Poorly taken impressions led Respondent to cause the preparation of dentures of grossly excessive vertical dimension. Compared to properly fitting dentures, Respondent's dentures measured another 10 millimeters in the vertical dimension, substantiating B. K.'s recurring complaints about the size of the relined dentures. The fit of the dentures was also improper where it contacted the roof of the mouth. Contacting not more than 50% of the surface area of the roof of the mouth, the relined dentures allowed air continually to break the seal caused by the sheeting action of saliva, which is vital for the retention of upper dentures. It is improper for a dentist to delegate to an unlicensed person the duties of taking an impression for the purpose of preparing a prosthetic device, such as dentures. Respondent also failed to maintain adequate dental records. The records contain no medical history on B. K., norecord of Respondent's findings, and no treatment plan. In fact, the record do not even bear the name of B. K. The most material item in the records, which is that B. K. complained about her dentures during the initial visit, is incorrect and reflects either extreme carelessness or deceit. Based on the above-described facts, Respondent was guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Dentistry enter a final order finding Respondent guilty of violating Section 466.028(1)(m), (y), and (aa), suspending Respondent's license for a period of six months, imposing an administrative fine of $9000, and issuing a reprimand. RECOMMENDED this 12th day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 12th day of March, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, FL 32399-0792 Albert Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Michael J. Hammonds, D.D.S. 4901 Palm Beach Blvd. Ft. Myers, FL 33905
Findings Of Fact At all times pertinent to the allegations in the Administrative Complaint, the Respondent was licensed as a dentist in Florida and the Petitioner was the state agency charged with regulating the practice of dentistry in this state. In June, 1984, Morris W. Kemmerer went to the Respondent, Peter M. Kurachek's, dental office because he needed dental work done and Respondent's office was handy. He was examined on this first visit by the Respondent and told Respondent what he wanted. Respondent went to work right away and within a few minutes of the patient's sitting in the chair, pulled a tooth which had broken and had to come out. Though Mr. Kemmerer had asked Respondent to put him to sleep for the extraction, Respondent did not do so. Respondent told Mr. Kemmerer what he planned to do as a course of treatment, and advised him of the expected cost and how it could be paid. Mr. Kemmerer claims he did not take a dental history nor did he, at any time, either before or after the work was done, discuss the patient's oral hygiene which was, supposedly, poor. The chart prepared by Respondent on Mr. Kemmerer contains, aside from notations as to work done, only the most basic information, such as allergies and prior medical condition, as well as current status of the mouth. Though minimal, it can be considered a dental history. After the initial procedure done the first day, Mr. Kemmerer returned to Respondent's office every day for awhile. On his second visit, the Respondent told him he needed a bridge and, though Mr. Kemmerer's memory on the matter is poor, probably told him of the remainder of the course of treatment. The bridge in question was necessary because the tooth Respondent pulled on the first visit was the one to which Mr. Kemmerer's existing bridge was anchored, and extraction of that anchor tooth required Respondent to make another bridge to be affixed to the next sound natural tooth. However, Mr. Kemmerer recalls that the bridge made for him by the Respondent did not fit correctly from the beginning and Respondent had to make several for him before a reasonably comfortable fit was finally achieved. This was done by grinding down Mr. Kemmerer's opposing natural teeth. Even with that measure, however, the fit was never completely correct. Respondent also made an additional partial denture for Mr. Kemmerer which could never be worn because it didn't fit. When Mr. Kemmerer told Respondent about this, he tried to fix it but was not able to do so satisfactorily and Mr. Kemmerer suffered an extended period of pain as a result. Mr. Kemmerer paid Respondent approximately $1,700.00 for the work done and did not see him again after August 9, 1984. Even though the work done was not to his satisfaction, Mr. Kemmerer did not see another dentist because he could not afford to do so. However, at the suggestion of his coworkers, he agreed to see Dr. Philip M. Davis, II, another dentist in Sarasota who, after an examination, told him the work Respondent had done had to be done over. Mr. Kemmerer ultimately contacted the Department of Professional Regulation about the treatment he received from the Respondent and filed a civil suit against Respondent, settling without trial for $3,000.00. The fact that the suit was settled in Mr. Kemmerer's favor has no bearing on the issue of care involved in this hearing and is not considered. Dr. Davis first saw Mr. Kemmerer as a patient on June 11, 1986 when Mr. Kemmerer presented himself complaining of swelling and pain in a right upper molar, (tooth 4). Upon examination, Dr. Davis found the patient had a partial bridge with crown and observed that the crown margins did not touch the prepared edge of the supporting tooth as they should. His x-rays taken at the time showed Mr. Kemmerer had an infection in the tooth and when he opened it through the crown, he found a space filled with cement, food, and waste, and that the tooth tissue was leathery. All that indicated to him that decay had gotten up under the crown and the base of the tooth had rotted because, in his opinion, the crown edge, (margin), did not properly fit to the tooth base. Dr. Davis noted that the margins of several crowns prepared by the Respondent several years earlier, were not good fits. Photographs of Mr. Kemmerer's mouth made in August, 1987 and October, 1988, as much as 3 and 4 years after completion of Respondent's work, reveal that at that time the margins on several teeth were substantially open. When Dr. Davis saw Mr. Kemmerer in 1986, he noted that the bridge constructed by the Respondent had been cemented to the abutment teeth which also had open margins. Regarding the specific teeth in question, photos of tooth 4 show a failure of the margin of the crown to touch the tooth and the preparation thereof. This indicates the crown was not properly fitted to the prepared tooth. It had never fully seated on the tooth and appeared to have been cemented in a suspended position above the tooth instead of being seated down on it. Insertion of a crown such as this one is a routing procedure and is not particularly complex. By not properly seating the crown, the installer, (Respondent), left an open space for saliva to enter and wash out the cement. Acceptable tolerance for a margin of this nature is 40 microns, (40/10,000 in.). On tooth 4, the margin was 2 mm short on the cheek side and 3 mm short on the tongue side. This led to the cement being washed out and to the entry of food and bacteria resulting in decay and infection of the bone. Had the crown been seated properly, it should have lasted for 10 - 20 years or more, absent trauma. As to tooth 11, examined by Dr. Davis on July 21, 1986, again, the crown margin was found to be well shy of the preparation margin on the tooth. On the tongue side, the crown was 1 mm short of full seating and was pulled away from the tissue. On the cheek side, the crown was too bulky for the preparation and did not match with a smooth, continuing surface. When Dr. Davis examined tooth 6 that same day, he found that here, too, the crown was too bulky and the margin did not fit. On the tongue side, it was 1/2 mm short and allowed food and bacteria to get up into an area of the tooth where the patient could not get it out. Dr. Davis did not measure the degree of separation, if any, on the cheek side. He did, however, find that on tooth 10, the margin was at one point 1/2 mm off and allowed food and bacteria retention. With regard to tooth 7, Dr. Davis found the margin on the lip side to be excessively heavy, (overbuilt), and on the tongue side, to be 1/2 mm short. In none of these cases were the margins acceptable as they far exceeded the 40 micron tolerance. These observations were confirmed by an examination of Mr. Kemmerer conducted at the request of the Board of Dentistry on May 13, 1987 by Dr. Davis R. Smith, an expert in general dentistry and the Board's consultant. Dr. Smith found the bridge built by Respondent to be poorly fitted around the preparation line of the teeth to which it related. Decay was present in every tooth to which Respondent had fitted a crown. The bridge had come loose, the crowns were not fitted properly, and the margin lines were short, open, and/or overcontoured. On each tooth involved, there was some combination of all those defects. When describing the margin shortage on some of Respondent's work on Mr. Kemmerer, Dr. Smith characterized it as, "ridiculously far off minimum standards." Dr. Smith's measurements were made visually and consisted of his running a probe over the margin seam which, in each case, he found to be excessive. A space of 50 microns can barely be felt with a probe and a space of 30 to 40 microns can barely be seen with the naked eye. Here, the margins were so poor that the space could be visually seen and entered with a probe. Both the experts opinioned that Respondent's seating of the crowns in question, so as to leave extensive gaps at the margins, was below standards. Respondent contends that at the time of installation, the crowns fit properly, and his expert, Dr. Carter, urges that a 1987 review of work done in 1984 cannot determine whether the margins at the time of installation were correct. This is because: Many things could have transpired in the patient's mouth in the interim such as changes in bone and tissue structure or a natural alteration of the appliance; Chemical changes in the mouth can erode tooth structure from beneath the margin, and tooth structure can be removed by cleaning. Respondent also contends that if the margins had been as poor from the beginning as indicated, the patient would have suffered pain and sensitivity associated with them. The evidence clearly demonstrates he did. Both Drs. Davis and Smith were of the opinion that, aliunde the margins, Respondent's office practice and record keeping were poor. In Dr. Davis' opinion, when a patient such as Mr. Kemmerer, of advanced age and obviously poor dental hygiene, comes in, the dentist must do a complete examination and charting to look for gum disease, cavities, occlusion and malocclusion, and evidence of cancer, and the examination should include full mouth x-rays. He must also talk with the patient and see what the patient perceives as his needs. If these are not great, the preliminaries need not be extensive, but in his opinion, to start work immediately, as Respondent did here, was improper since there was no emergency to justify disregard of a full work-up. Under the circumstances, he feels Respondent should have done a complete examination, determined what the patient needed, explained it all to the patient, and lectured on proper oral hygiene instead of jumping right in to do the crown and bridge work. It is found that would be the appropriate course for him to have followed. It must be noted that Mr. Kemmerer came in to Respondent's office indicating he was in pain. Respondent examined him and identified the cause of the pain. He corrected that problem and, in addition, began additional crown and bridge work which, while profitable, was not shown to be unnecessary. The procedures described by Drs. Smith and Davis are unquestionably the clinically appropriate things to do. While Respondent did not do all the things described as appropriate, he did identify his patient's immediate problem and correct it. Either he or his assistant advised the patient to practice better dental hygiene. He also incorporated his findings into his records on this patient. In that regard, the charting practices taught in school are appropriate for a school environment, but what is considered acceptable in private practice is not necessarily as detailed as in school. Respondent's expert is of the opinion that a dentist should advise his patient thoroughly on home care but that advice need not be noted in the records. He has found that records have become verbose, time consuming, and generally a pain in the neck, and, more importantly, record keeping such as is suggested, takes time away from caring for the patient. Legal action requires the dentist to protect himself, but in Dr. Carter's opinion, one cannot put everything on a chart; only those things which support patient care. While perhaps not conforming to optimum standards of practice, Respondent's actions in regard to record keeping and procedure choice cannot be said to be materially below standards. The formulation of the treatment plan is the primary responsibility of the dentist. During their examinations, both Drs. Davis and Smith noted that Mr. Kemmerer had lost a lot of enamel from the teeth occluding with the bridge. It appeared this was caused by Respondent's extensive grinding of the natural tooth material down to the dent in in order to get a proper occlusion with the bridgework he had installed, instead of removing the bridge and adjusting it to properly meet the natural teeth, or making another which did fit. Neither expert considered the worn condition of Mr. Kemmerer's teeth to be the result of natural grinding or bruxism. In any case, Respondent could have polished the rough enamel so as to reduce the resultant abrasion and he failed to do so. Respondent's actions here were, in the opinion of the Board's experts, below practice standards, and it is so found, notwithstanding Dr. Carter's testimony tending to exculpate Respondent's actions. Dr. Carter claims that Respondent's use of porcelain in the bridge, which, since it is harder that normal tooth tissue, will wear it down, was appropriate. He also asserts that if the patient did not wear his tooth 2 - 4 partial, he would still have had the abrasion problem because all chewing force being applied on the front teeth would wear them down. On balance, however, the evidence supports more clearly a finding that Respondent knowingly ground Mr. Kemmerer's natural teeth down to achieve the fit rather than taking appropriate corrective action when he found the bridge did not fit properly and he admits to this. The bridge in issue was made of metal and porcelain. When Respondent inserted the upper bridge, it was necessary for him to adjust the occlusions and to do so, he ground down the opposing lower natural teeth so the uppers and lowers would fit harmoniously. He denies that his placing of the upper teeth caused excessive wear on the lower teeth. The reduction in mass of the lower teeth was the direct result of Respondent's grinding down the natural teeth to fit to the false teeth on the bridge. Respondent presented the testimony by deposition of Dr. Hemerick, accepted as an expert in general dentistry. Dr. Hemerick was also offered as an expert in the field of prosthodontics. Petitioner accepted the witness as an expert in general dentistry but objected to him being classified as an expert in the field of prosthodontics. The objection is well taken. Though the witness is retained as an expert to evaluate dental performance for an insurance company which provides malpractice insurance to many dentists, his stated educational background and experience in the specialized field do not qualify him as "expert" in that specialty. He can, however, appropriately state his opinion as to the Respondent's treatment of Mr. Kemmerer in its totality and concluded that Respondent's treatment met accepted standards. Specifically, he stated that margins, as here, which fit acceptably when installed, can spread and open due to mouth activity over a period of years. What this witness, as well as Dr. Carter overlooks, however, is the excessive thickness of the device at the margin where it abuts the actual tooth. While the margin may open with time, construction material cannot grow on the appliance to make it thicker than when installed, and this, according to Petitioner's experts, was a basis for claiming Respondent's work was below standard in addition to the open margins. However, it is found that the likelihood of the margins opening as much as appears here, by normal mouth activity, is remote. Respondent has been a practicing dentist since 1966 when he got his degree in Kentucky. Over two separate periods, he has practiced in Florida for approximately 14 years. Mr. Kemmerer came to him initially for repair or replacement of a very old, (1943), denture which replaced front teeth 8 and 9 and which was not reparable. Respondent and Mr. Kemmerer discussed possible alternative treatments but both agreed treatment could not be postponed for this demanding cosmetic problem. It seems Mr. Kemmerer was in the real estate profession and needed teeth, and according to Respondent, wanted to leave Respondent's office that day with replacement teeth in his mouth. Respondent agreed to provide them. However, before starting treatment, Respondent determined from his examination of Mr. Kemmerer that due to long neglect of his dental hygiene, major treatment was necessary. Mr. Kemmerer wanted a patch job, Respondent alleges, and he refused to do that. Before work was started, however, Respondent left the room, leaving to his dental assistant the task of advising Mr. Kemmerer of the proposed treatment plan. Respondent had charted Mr. Kemmerer's mouth and instructed his assistant to go over the proposed work with him and give him a price for the work to be done. The assistant was to answer any questions Mr. Kemmerer might have. When Respondent returned to the treatment room, Mr. Kemmerer had a lot of questions to ask. His main concern was whether a new bridge would last. Respondent went over the proposed procedures with him and told him that with good home care, the appliance should last for the rest of Mr. Kemmerer's life. After Mr. Kemmerer met with Respondent's assistant, he elected to have the bridge made. Thereafter, Respondent had his assistant take impressions of Mr. Kemmerer's upper and lower jaw. Respondent anesthetized the upper area to be worked on and began the crown preparation on teeth 4, 6, 7, 10, and 11. He also adjusted the incisal edges on the abutting lower teeth, poured the upper and lower models, made a plastic temporary device for the upper area, and inserted it. There appears to be some dispute over whether Respondent made and utilized study models in the preparation of Mr. Kemmerer's appliance. He claims he did and there is little evidence to the contrary. Certainly, models were made and whether these constitute the required models has not been defined. It was obvious to Respondent early on that Mr. Kemmerer did not practice good dental hygiene. When Mr. Kemmerer returned to the office with stains on the temporary after only a short period of insertion, Respondent became concerned over his dental practices. However, it was not so bad a situation as to cause the needed repairs to be deferred and in Respondent's opinion, it was safe to begin the restorative treatment regardless of the fact that Mr. Kemmerer required periodontal treatment as well. It also appeared to Respondent that Mr. Kemmerer was an individual who was very susceptible to pain. It is because of this he believes that if all the margins had been open from the beginning, as alleged in the Complaint, Mr. Kemmerer would have sustained a lot of pain right away. At no time, however, during treatment, and after insertion of the permanent appliance did Mr. Kemmerer complain to him of pain. Respondent also contends that according to the records kept by Dr. Davis, when Mr. Kemmerer went to him in 1986, he complained of suffering pain for only 2 days. Respondent claims to have constructed in excess of 1,000 partial bridges in his 20 year career. He agrees that the margins as they now exist in Mr. Kemmerer's mouth are not acceptable and are excessive. However, he contends, these conditions did not exist when he placed the bridge and there were no open margins. It is his practice, he alleges, to return for reconstruction any bridge which does not fit properly and if at insertion this bridge had had the margins it now has, he would have done it over at no charge. He claims he saw Mr. Kemmerer's bridge on five separate occasions after it was inserted and claims never to have seen any open margins. However, Mr. Kemmerer's record shows that he only came back twice after the bridge was inserted and Respondent, commenting on the alleged lack of "follow-up" stated that after the bridge was completed and inserted, Mr. Kemmerer didn't come back. It would appear Respondent's memory is somewhat less than complete. Respondent also sees no problem in his ability to complete Mr. Kemmerer's work within 4 weeks from initial visit. When comparing that with the other expert's estimate of 6 to 9 months for completion of a proper treatment for this patient, Respondent claims the longer period is for rehabilitation of the entire mouth which, he asserts, he did not propose or agree to do. It is found that Respondent's operation is one of direct response to a particular problem, and he is not a provider of broad scale dental care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice dentistry in Florida be suspended for a period of six months and he be fined $3,000.00, and that when reinstated, he be placed on probation, under such terms and conditions as the Board may prescribe, for a period of three additional years, these actions to run concurrently with the penalty, if any , imposed by the Board in its action, when taken, in its allied cases involving Respondent, heard under DOAH case numbers 89-1240 and 89-1241. RECOMMENDED this 21st day of November, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5544 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by Petitioner in this case. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. COPIES FURNISHED: David Bryant, Esquire 13015 North Dale Mabry Highway Suite 315 Tampa, Florida 33618 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Blvd. Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issues in this case are whether the Board of Dentistry (Board) should discipline the Respondent on charges that she violated section 466.028(1)(z), (ff), and (gg), Florida Statutes (2009-2012),1/ by: improperly delegating professional responsibilities to persons not qualified to perform them; operating her dental office below minimum acceptable standards; and allowing the administration of anesthesia, in violation of Board rules.
Findings Of Fact The Respondent, Miranda Whylly Smith, D.D.S., holds license DN15873, which authorizes her to practice dentistry in the State of Florida. She has held this license since January 2002. No discipline has been imposed against her license to date. Since July 2009, the Respondent has owned and operated a dental practice called "Smiles and Giggles" in Spring Hill, Florida. Prior to May 2011, Smiles and Giggles was located on Mariner Boulevard; in May 2011, it moved to County Line Road. The Respondent is the only dentist practicing at Smiles and Giggles. She employs dental assistants, not dental hygienists. Count I--Improper Delegation Count I charges the Respondent with improperly delegating professional responsibilities to her dental assistants. Expanded-function dental assistants employed by the Respondent have included: Lillian Torres, who worked at Smiles and Giggles from late 2009 to March 2012 and functioned as the "head dental assistant" with responsibility for overseeing the work of other dental assistants working in the office; Kristina Plumadore, who has worked there since 2009; and William Hemme, who has worked there since late 2011 and now serves as head dental assistant. Priscilla Davila worked there as a dental assistant without an expanded-function certificate from May 2011 to August 2011. Incorporated in that charge are specific factual allegations regarding Ms. Torres and an unnamed male expanded- function dental assistant (who, the evidence revealed, was Mr. Hemme). (The Administrative Complaint includes other specific allegations based on statements from other dental assistants who did not testify, and those allegations are omitted here, since there was no evidence to support them.) Also incorporated in the charge are general factual allegations that all dental assistants improperly performed many of the same tasks at the direction of Ms. Torres and Mr. Hemme, with the Respondent's knowledge and approval, including taking impressions and bite registrations2/ for dentures, delivering dentures, adjusting dentures with grinding devices, using drills on cavities, filling cavities, and other tasks for which they were not qualified. Count I charges that the Respondent delegated to dental assistants the taking of final impressions for dentures and the making of adjustments to dentures, including the use of high- and/or low-speed drills, which made unalterable changes to the teeth.3/ As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres took the final impressions for dentures for a patient, L.C.; that Mr. Hemme adjusted dentures for the patient L.C. by "grinding [them] down"; and that both Mr. Hemme and Ms. Torres did "[a]ll denture fabrication and adjustment procedures" for L.C. In some respects, L.C.'s testimony on this allegation was inconsistent with the dental records introduced by the Respondent, which are more accurate in those respects. L.C. presented to the Respondent in late 2009. Initially, it was planned that a partial upper denture would be made, and an immediate complete lower denture would be made for use after her remaining lower teeth were extracted. In mid- January 2010, the plan changed, and an immediate complete upper denture was made for use after her remaining upper teeth were extracted. The upper teeth were extracted in mid-January 2010, and the immediate upper denture was fitted. In July 2010, attempts were made to adjust the denture because it was uncomfortable and also loose. In October 2011, L.C. returned to Smiles and Giggles with more complaints that the upper denture did not fit correctly and was loose. In late October and early November 2011, the upper denture was relined in an attempt to address the patient's complaints, but her complaints persisted. Later in November 2011, impressions were done for the patient's immediate complete lower denture. In January 2012, the patient's remaining lower teeth were extracted, and her immediate lower denture was fitted and adjusted. L.C. continued to complain about the fit of both dentures, and several attempts were made in the spring of 2012 to adjust them, to no avail. The patient then complained to Medicaid, and she returned to the Respondent to have both dentures redone in January 2013. L.C. testified that the Respondent took no impressions for dentures and did not fit or adjust her dentures until after the spring of 2012. She testified, prior to that all the work was done by Ms. Torres and Mr. Hemme. Ms. Torres and Mr. Hemme testified that they took impressions, but not final impressions or bite registrations, which were done by the Respondent. The dental records reflect that the provider of all these services was the Respondent. However, in this instance, the patient's testimony is credited, and the contrary testimony of Ms. Torres and Mr. Hemme (as well as the possible contrary inference from the dental records) is rejected. On questioning by counsel for the Respondent, Mr. Hemme appeared to take the position that the impressions were not final because they were for immediate dentures, which sometimes are replaced by permanent ones. However, it is clear from the evidence that L.C.'s immediate dentures were intended to be permanent. It was not until after her complaints to Medicaid that the Respondent agreed to make permanent dentures for her. Most, if not all, dental assistants working at Smiles and Giggles took impressions for dentures. It is not clear from the evidence whether these were all final impressions, except in the case of the patient L.C. Another patient, V.C.,4/ testified that Ms. Torres also took final impressions for her dentures. The testimony was elicited, in part, as proof of what paragraph 72 of the Administrative Complaint alleges Ms. Davila5/ witnessed. Ms. Davila's testimony gave no indication that she witnessed dental care being provided to V.C., and it seems unlikely from the evidence that Ms. Davila's short tenure working for Smiles and Giggles included the time when the care in question was provided to V.C. No dental records were introduced regarding the patient V.C. that could have helped answer that question. The testimony of the patient V.C. also could have been elicited as proof of a general allegation in paragraph 70 of the Administrative Complaint that all Smiles and Giggles dental assistants supervised by Ms. Torres performed various unauthorized tasks, including making dentures.6/ According to Mr. Hemme, he adjusts patients' dentures by using a handpiece to polish or smooth down rough spots where they come in contact with the gums to try to make them fit more comfortably. This is what he says he attempted to do to L.C.'s dentures. According to Ms. Torres, she uses an acrylic burr to "bring down high spots" that are identified by the Respondent and to make "minute adjustments" to dentures. These adjustments can be remedied only by making a new set of dentures. Although evidence was presented regarding the taking of bite registrations, the Administrative Complaint does not allege that the Respondent delegated this task to dental assistants. In any event, the evidence was not clear and convincing that dental assistants at Smiles and Giggles took bite registrations for dentures for patients other than L.C. To the contrary, there was no evidence that they did, and several denied it. Count I charges that the Respondent delegated to dental assistants the placement of filling materials and the use of dental instruments, including high- and/or low-speed drills, which made unalterable changes to the teeth. As the factual basis for that charge, the Administrative Complaint alleges: that Ms. Torres has admitted to placing amalgam and composite fillings, using low- and high- speed drills, and using a spoon excavator to take out the upper part of a cavity during the time she worked at Smiles and Giggles; and that all assistants working at Smiles and Giggles, while Ms. Torres worked there, used low-speed drills, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Davila saw dental assistants use high-speed drills and complete fillings on patients during the time she worked at Smiles and Giggles, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Torres "placed fillings" for a patient, T.F., when she had dental work done at Smiles and Giggles in the summer of 2011.7/ The evidence was clear that dental assistants at Smiles and Giggles were using flowable resin to fill cavities. This is a composite material that hardens when cured and can only be removed by being drilled out by the dentist using a high-speed handpiece. Dental assistants at Smiles and Giggles also were packing amalgam filling material to fill cavities. The Respondent would then review the restoration. If adjustments were needed, the Respondent or, sometimes, a dental assistant would use a slow-speed handpiece to try to bring down rough or high spots. After the patient T.F. was diagnosed with cavities in the summer of 2011, she returned to have those teeth restored. The Respondent used a drill to prepare the cavities for filling, and Ms. Torres placed composite material. The Respondent then left the room, and Ms. Torres used a slow-speed handpiece, with a burr attached, to grind down the filling to correct the bite. The Respondent did not return to re-examine T.F. before she left the office that day. The Respondent seems to take the position that fillings done by dental assistants were temporary fillings, to be followed by permanent restorations at a later date. But sometimes they were intended to be permanent. Even if intended initially to be temporary, if the patient did not return to have the temporary filling replaced by a permanent restoration, the temporary filling became de facto permanent. In either case, once placed, the filling material could be removed only by being drilled out with a high-speed drill. At some point in 2013, the dental assistants at Smiles and Giggles were told not to place filling material or bring down high spots any more. The source of this directive was not clear from the evidence, but it can be inferred that it came from the Respondent. By mid-October 2013, those tasks were being performed by dental assistants only "every once in a while" and are not being performed by them any longer, according to Ms. Plumadore. Count I charges that the Respondent delegated to dental assistants the performance of full-mouth debridement. As the factual basis for that charge, the Administrative Complaint alleges generally that the Respondent delegated to dental assistants at Smiles and Giggles the task of performing full-mouth debridement. No specifics are alleged. A cavitron is a device that uses ultrasound and water to remove plaque. It is used in the subgingival area, i.e., on the parts of teeth at the gum line and under the gums, as part of a full-mouth debridement. At the hearing, the patient T.F. testified that Ms. Torres used a cavitron to clean plaque from her teeth, including in the subgingival area. Ms. Torres admitted using the cavitron, but denied using it in the subgingival area. The patient was numbed by a local anesthetic, which would have made it difficult for the patient to sense precisely where the cavitron was being used. The evidence was not clear and convincing that Ms. Torres used the cavitron in the subgingival area. Ms. Davila testified that she saw Ms. Torres and other dental assistants use the cavitron for deep cleaning, which would include in the subgingival area. However, it is not clear how she would have been in a position to ascertain where a cavitron was being used in a patient's mouth. During the relatively short time she worked at Smiles and Giggles, she usually was not in the part of the office where patients' teeth were being cleaned. Even if she was in that area of the office, the patient's chair would have been facing away from where Ms. Davila probably would have been standing, so that she would not have been able to observe exactly where the cavitron was being used in the patient's mouth. There was no evidence that the Respondent knew of, or condoned the use of, the cavitron by her dental assistants for full-mouth debridement, including in the subgingival area. Count I charges that the Respondent delegated to dental assistants the initiation of a nitrous oxide mask and the administration of nitrous oxide without direct supervision. As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres placed a nitrous oxide mask on a minor patient, O.S., and administered nitrous oxide to the patient in August 2010. At the hearing, DOH presented the testimony of the child's mother, who was in the examination room when Ms. Torres placed the mask on her child's face and left. Neither she nor any other staff returned for about 20 minutes, during which the child began to act very calm, relaxed, and groggy, slump in the chair, wave his arms up and down, and act silly. The child was autistic, but this was unusual behavior for him. The mother became concerned and called for help. Ms. Torres returned, took the mask off, and dental work was performed on the patient. Ms. Torres denies that she did anything but put the mask on the patient's face and claims that no nitrous oxide was initiated. This testimony is rejected. It is found that Ms. Torres initiated the flow of nitrous oxide on the child before she left the examination room. The dental records indicate that nitrous oxide was administered, which is consistent with the patient's behavior. There was no clear and convincing evidence that it was normal procedure for the dental assistants to initiate nitrous oxide without the Respondent being present. All the dental assistants who testified indicated that they only monitor the flow of nitrous oxide or, at most, adjust the flow at the Respondent's explicit direction during a procedure. Although there were no specific factual allegations about it in the Administrative Complaint, the patient L.C. testified that a dental assistant placed a gas mask on her face when her teeth were being extracted. There was no evidence as to how the flow of nitrous oxide was initiated or administered to L.C. Count III--Dental Office Standards Count III charges the Respondent with operating an inadequately staffed dental office for the number and types of treatments performed for her patients and scheduling too many patients, so that unrealistic time limitations had to be placed on her and her staff, resulting in the office being operated below minimum acceptable standards of performance for the community. At most, the evidence showed that the Respondent operated a dental office that was very busy at times; that full schedules sometimes were exacerbated by emergencies that had to be worked around; that this sometimes resulted in office hours having to be extended into the evening; that the office's function would have benefited from an additional dentist; and that dental assistants at times voiced that the patient load was too high. There also was evidence that the office would have benefited from an experienced office manager/appointment scheduler; that the office eventually did benefit when one was hired; and that the office suffered from the lack of dedication and hard work from some of the dental assistants on staff. Some of them not only slacked off, but also even tried to sabotage the office out of personal animosity towards the Respondent and some of her staff. One of these former dental assistant was fired after she stole drugs from the office. There was no clear and convincing evidence that the Respondent had so many patients that she placed unrealistic time limitations on herself and her staff, or that the result was an office being operated below minimum acceptable standards of performance for the community. Count VI--Sedation Count VI charges the Respondent with administering anesthesia in a manner that violated the rules of the Board. The factual basis for this charge included allegations that the Respondent did not have a sedation permit from the Board; that the Respondent provided nitrous oxide sedation; that the Respondent had an unsupervised assistant provide nitrous oxide; that the Respondent had dental assistants start nitrous oxide; that children would be placed on nitrous oxide before she was present; that the Respondent had a licensed anesthesiologist provide I.V. sedation with propofol; and that the Respondent's dental office was not equipped, and her staff was not properly trained, as required by statute and Board rules for the administration of I.V. sedation with propofol. The factual basis regarding nitrous oxide refers to the administration of nitrous oxide in the presence of a licensed anesthesiologist. For approximately one year, between 2010 and 2011, the Respondent contracted with Anesthesiology Associates to provide an anesthesiologist to administer anesthesiology to patients who would benefit from it, since the Respondent herself was not authorized to do so. Sometimes, before the Respondent's arrival in the room to perform dental work, the anesthesiologist would direct one of the Respondent's dental assistants to place a gas mask on the patient and initiate nitrous oxide to relax the patient prior to sedation. These allegations are distinct from the previously discussed allegations that the Respondent herself delegated this task to her dental assistants without her direct supervision. In addition to nitrous oxide, which typically was administered by the anesthesiologist to relax a patient before the administration of other sedatives, the anesthesiologist used propofol, versed, and ketamine. Ketamine is an analgesic and sedative that typically was administered by injection to an uncooperative patient, usually a child, prior to the initiation of other sedation. Versed and propofol were administered intravenously. Propofol provided conscious sedation. Patients would be sedated for as long as necessary to complete the procedure, according to the Respondent's estimate. If the procedure was long enough to require too much propofol, versed would be started to complete the procedure. Versed reduces anxiety and relaxes the patient, but does not provide conscious sedation. During this time period, the anesthesiologist typically would go to the Respondent's office two days a week and provide services for six to ten patients a day. He would bring the required drugs and I.V. and other equipment. Later, the equipment was left in a closet at the Respondent's office and any unused drugs sometimes were left in a locked storage closet in the Respondent's office for use the next time. The next time the anesthesiologist came to the Respondent's office, he would get a key from the Respondent or her staff to access the locked storage closet and would inventory and inspect the drugs and equipment to be sure he had what was needed before beginning the day's work. The Respondent or the anesthesiologist provided a crash cart with a heart monitor and oxygen, which was needed to support the breathing of a sedated patient. There was a defibrillator in the Respondent's office, and the anesthesiologist was certified to provide cardiopulmonary resuscitation, if needed. The anesthesiologist testified that he met all the requirements of his license to provide anesthesiology services at the Respondent's office and had everything he needed to provide those services safely. At some point, the Respondent became aware that the Board required her to have a sedation permit to do what she was doing through Anesthesiology Associates. She applied for the permit. For some time after applying, she continued to contract with Anesthesiology Associates to provide these services, but later terminated the contract because she became aware that her sedation permit had not been issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order: finding the Respondent guilty of violations under Counts I and VI of the Administrative Complaint; imposing a $10,000 fine; suspending her license for six months; placing her on probation with appropriate conditions for six months after the suspension is lifted. DONE AND ENTERED this 5th day of March, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 5th day of March, 2014.
