Findings Of Fact The Respondent, Prince Edward Denton, D.D.S., is now, and has been at all times material to this proceeding, a licensed dentist in the State of Florida, having previously been issued license number DN 0006762. Carol Hepp has been a dental assistant for twenty-seven years. She received her initial training as a dental assistant after graduation from high school when she went to work for Dr. Seth Rhodes in North Miami Beach. Since that time she has attended many training courses in her career as a dental assistant, including expanded duties courses at Emory University and the University of Florida. Ms. Hepp was employed by the Respondent as a dental assistant for a total of approximately four and one-half years. Ms. Hepp was so employed on February 2, 1988. On February 2, 1988, patient C.H. went to the Respondent's office to obtain treatment for a cracked tooth. The cracked tooth was tooth number 18, which was the last tooth in the patient's left lower jaw. During that visit, the patient C.H. was examined by the Respondent and by his dental assistant, Carol Hepp. Ms. Hepp explained the tooth crowning procedure to the patient. Ms. Hepp took a preliminary impression of the lower jaw by placing a two-part putty-like substance called "citrocon" in a tray, placing a plastic sheet over the top, and placing the tray into the patient's mouth. She held the tray in place for approximately six minutes and then removed it. This procedure yielded an approximate image of the patient's lower teeth. The Respondent took the final impression by applying a viscous substance around tooth number 18, and then inserting the preliminary impression into the patient's mouth. The Respondent held the impression in place until it was set or non-moveable, at which time Ms. Hepp took over the task of holding the impression in place for the balance of the approximately four-minute period during which the final impression material completely set up. After the impression was finished, Ms. Hepp took it to the Respondent who examined it and approved the finished final impression. After the final impression had been taken, Ms. Hepp made a wax form for purposes of fabricating a temporary crown for C.H.`s tooth number 18. This was done prior to the "preparation" of the tooth. The "preparation" of a tooth for crowning is the actual grinding down of the tooth that is to be crowned. The Respondent, and not Ms. Hepp, ground down the patient C.H.`s tooth number 18 in preparation for crowning. Following the Respondent's "preparation" of the subject tooth, Ms. Hepp packed a cord around the tooth. 1/ The grinding down, or "preparation," of a tooth for crowning is an irremediable task, which under no circumstances should be delegated to a dental assistant. Following the Respondent's "preparation" of the tooth, Ms. Hepp then fabricated and installed a temporary crown on the patient's tooth number 18. This was done by utilizing the wax form she had previously made, filling the form with a self-curing jet material, adding tooth color, and then placing the temporary crown over the prepared tooth. At all times during the treatment of the patient C.H., the Respondent was aware of, and had authorized, each step performed by Ms. Hepp, and was available to assistt Ms. Hepp had she requested his assistance. Accordingly, Ms. Hepp was working under the direct supervision of the Respondent at all times material to this proceeding.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st day of July, 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978. In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam. A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following: Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression Pin amalgam preparation Pin amalgam final restoration Endodontic anterior Endodontic posterior Cast gold preparation Cast gold restoration Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered. Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following: 0 = complete failure 1 = unacceptable dental procedure 2 = below minimal acceptable dental procedure 3 = minimal acceptable dental procedure 4 = better than minimally acceptable dental procedure 5 = outstanding dental procedure Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure. Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets. Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services. PROCEDURE NUMBER 5 Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure. Petitioner received the grades of 3, 2 and 2, for an overall score of 2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little. Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing. Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively. Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous." PROCEDURE NUMBER 6 Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability. The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous." PROCEDURE NUMBER 8 Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation. Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth. Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively. Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed. PROCEDURE NUMBER 9 Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish. Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6. The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry. PROCEDURE NUMBER 10 Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners. According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure. A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head. As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it. PROCEDURE NUMBER 11 Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld. Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Robert Dyer, Esquire Duckworth, Allen, Dyer and Pettis, P.A. 400 West Colonial Post Office Box 3791 Orlando, Florida 32802 Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent's license to practice dentistry in the State of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At all times material to this proceeding, the Respondent was a licensed dentist in the State of Florida, having been issued license number DN 0005429. The patient, R.M., first presented herself to the American Dental Center (Center), a dental business owned and operated by Respondent, around July 7, 1987, and was seen by a dentist, other than the Respondent, employed by the Center. This dentist examined R.M. and recommended a new upper denture and lower partial. R.M. was seen again on December 7, 1987, by a dentist, other than the Respondent, at the Center who repaired tooth number 7 on her upper denture. This dentist also advised R.M. that she needed a new upper denture and a lower partial. On June 13, 1989, R.M. was seen by the Respondent at the Center, and the Respondent refused to reline R.M.'s upper denture. Respondent advised R.M. that she needed a new upper denture and a lower partial. On July 12, 1989, R.M. saw another dentist, other than Respondent, at the Center who replaced tooth number 7 in her upper denture, and this dentist advised R.M. that she needed a new upper denture and a full lower denture. On September 8, 1989, R.M. visited the Center and was seen by the Respondent. R.M. agreed to Respondent's treatment proposal of June 13, 1989, for a new full upper denture and a new lower partial. During this visit, the Respondent drilled two holes in the back of two of the lower teeth, numbers 22 and 27, in preparation for a cingulum rest. This procedure was not discussed with R.M. at that time. R.M. did not complain to the Respondent that there was sensitivity as a result of these holes. Also, on this same visit, the Respondent made lower partial impressions and full upper denture impressions. The Respondent properly performed a periodontal probing which was properly recorded in the records, notwithstanding the conflict in the testimony regarding R.M.'s records as to which dentist performed the periodontal probing. Likewise, the Respondent properly performed a soft tissue examination which was properly recorded in the records. On September 25, 1989, the Respondent checked the vertical dimensions of occlusion (VDO) with the full upper dentures and lower partial in place, and found both the vertical dimensions and the occlusion (bite) to be within reasonable bounds. Dr. Marshall performed the vertical dimensions and found them to be outside reasonable bounds. However, when Dr. Marshall performed this test, R.M. did not have the lower partial in place because the holes in teeth numbers 22 and 27 had been bonded by Dr. Odegaard. Because the lower partial could not be in place, the occlusion could not be checked. Also, not having the lower partial in place could have accounted for the difference in the vertical dimensions observed by Dr. Marshall and the Respondent. R.M. was apparently satisfied at this time with Respondent's work since she voiced no complaint. Respondent also selected shade of teeth at this appointment. At R.M.'s next visit, sometime between September 25, 1989, and October 6, 1989 (possibly October 1, 1989), the Respondent made a full upper denture impression in rubber base. R.M. was allowed a look at the full upper denture and the lower partial in place. When in place, the upper denture and lower partial did not interfere with Respondent's enunciation of certain words or certain numbers which would indicate that the upper denture and lower partial fit properly. R.M. initialed her chart indicating that she approved the shape, shade, color, size and arrangement of teeth. There is insufficient evidence to show that the patient knew what she was initialing, and at this point had no complaints, or if she had, she did not voice them. R.M.'s next visit was October 6, 1989, and at this visit the full upper denture and lower partial were delivered to her, placed in her mouth and she was allowed to look at them with a mirror. R.M. voiced no complaints, other than a minor sore spot which Respondent corrected, and she paid the balance of her bill and left. At this same visit, both Respondent and R.M. realized that after a period of time certain adjustment would be needed. On October 16, 1989, R.M. called Respondent's office complaining that her dentures and lower partial were hurting. R.M. was advised that her chart would be pulled for the Respondent to review and that the office would call back. Upon being called back, R.M. was advised by Respondent's staff that Respondent wanted her to come in to the office for adjustments. However, R.M. refused to come back in for any adjustments and advised Respondent's staff that she wanted her money back or she was going to the Better Business Bureau or get a lawyer. Around November 24, 1989, R.M. visited Dr. Odegaard's office complaining of sensitivity on lower teeth numbers 22 and 27. Upon examination, Dr. Odegaard determined that the hole drilled in those teeth by Respondent had gone through the enamel into the dentin which was the apparent cause of the sensitivity. Dr. Odegaard bonded the holes in teeth numbers 22 and 27 which relieved the sensitivity. At that visit, Dr. Odegaard was aware of Petitioner's involvement in this case. Based on the testimony of the experts, it is apparent that drilling through the enamel of a tooth into the dentin is not an uncommon occurrence, and that, in itself, would not necessarily be practice below the standard of care. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including Dr. Reichgott's testimony, to establish facts to show that the placing of the lingual rest on teeth numbers 22 and 27 was a treatment of choice and not any riskier than other procedures performed by dentists. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including the testimony of Dr. Reichgott, to establish facts to show that: (a) a soft tissue and periodontal examination was performed and recorded in the patient's records; (b) the preparation of the lower lingual surface of the lower canine for the lingual rests was not practice below the standard of care, or (c) the failure to record in the patient's chart the possible sequela of sensitivity from lingual rests and alternate methods of treatment was not practice below the standard of care. While the Respondent's plan of treatment was brief, it was not inadequate record keeping or practice below the standard of care. On each visit where R.M. saw the Respondent in a professional capacity, the Respondent made certain notations in the record concerning what he had accomplished during each visit, and while these notations are brief they do adequately describe what Respondent had accomplished. There is competent substantial evidence to establish facts to show that Respondent's dental records and medical history records justified the course of treatment for R.M. There is competent substantial evidence to establish facts to show that Respondent's treatment of R.M. met the minimum standards of performance in diagnosis and treatment when measured against the generally prevailing peer performance.
Recommendation Having considered the foregoing Findings Of Fact and Conclusions Of Law, it is, accordingly, Recommended that the Board enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and ORDERED this 27th day of May, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of May, 1992. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings Of Fact submitted by the Parties in this case. Specific Rulings On Proposed Findings Of Fact Submitted By The Petitioner 1. Adopted in Finding of Fact 1. 2-4. Adopted in Finding of Fact 2, except for the date June 7, 1987, which is rejected in that it was July 7, 1987. Adopted in Finding of Fact 4. Rejected as not being supported by competent substantial evidence in the record. 7(a)(b). Adopted in Finding of Fact 6. 7(c). Adopted in substance in Finding of Fact 13, as modified, except for being "performed in a non-traditional area" which is rejected as not being supported by competent substantial evidence in the record. 7(d). Other than being asked to sign chart signifying approval which is adopted in Finding of Fact 9, this proposed finding of fact is rejected as not being supported by competent substantial evidence in the record. 7(e). Adopted in Finding of Fact 10. 7(f)-(i). Rejected as not being supported by competent substantial evidence in the record. 7(j)-(k). Adopted in Finding of Fact 13. 7(l). Neither material or relevant to the conclusion reached in the Recommended Order. 8-9. Rejected as making a conclusion without making a finding of fact that there was in fact a failure on the part of the Respondent, but in any case these are not supported by competent substantial evidence in the record. 10-11. Rejected as not being supported by competent substantial evidence in the record. Specific Rulings On Proposed Findings Of Fact Submitted By The Respondent The Respondent's "Findings Of Fact" are in part argument and part restatement of testimony rather than proposed findings of fact. However, for those that are truly findings of fact, I have adopted in Findings Of Fact 1-19. Copies furnished to: Albert Peacock, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Peter Kurachek, D.D.S. 395 Sugar Mill Drive Osprey, FL 34229 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact At all times material hereto, Respondent has been licensed as a dentist in the State of Florida, having been issued license number DN 0009938. On August 14, 1989, patient L. F. was seen by the Respondent for dental treatment for the first time. She exercised an informed refusal of x-rays and requested only visual examination and cleaning. Respondent examined L. F., diagnosed her oral condition, and cleaned her teeth with a cavitron ultra-sonic cleaner which emits a continuous flow of water while in use. Some of this water sprayed onto L. F.'s face and clothing during treatment. Respondent then turned L. F. over to the care of his dental assistant Cheryl Toro, who polished L. F.'s teeth with a slow-speed hand-piece with a rubber cup and polishing material. Respondent informed patient L. F. that she would need a second dental cleaning for optimal dental health and noted the procedures performed that day on L. F.'s chart in his own handwriting. L. F. did not return for a second cleaning and did not keep the appointment which she had on October 9, 1989, to repair a broken filling. On October 10, 1989, L. F. was seen by Respondent complaining of hyperplasia between her upper two middle teeth. She demanded that Respondent refer her to a periodontist and that Respondent pay for her periodontal treatment. He refused. On December 14, 1989, L. F. contacted Respondent's office to find out the name of Respondent's dental assistant, advising that she was going to file a complaint against Respondent. She did file that complaint with Petitioner on December 27, 1989. Respondent has been practicing dentistry for 20 years, the last 7 of which have been in Florida. There have been no prior complaints filed against him.
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 in the Administrative Complaint and dismissing the Administrative Complaint filed against him in this cause. RECOMMENDED this 25th day of July, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7811 Petitioner's proposed findings of fact numbered 1 and 2 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3, 5, and 6 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 4 and 7-9 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1, 9, and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed findings of fact numbered 2-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Max R. Price, Esquire Joel M. Berger, D.D.S., J.D. 1550 Madruga Avenue Suite 230 Coral Gables, Florida 33146 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0003535. At all times material hereto, Respondent and another dentist are and have been equal owners of North Dade Dental Offices, which they operate through a professional association bearing their names. Sol and Roza white saw an advertisement for North Dade Dental Offices in the Sunday newspaper. As a result, they went to North Dade Dental Offices and consulted with Respondent on September 16, 1981. Mrs. White agreed to allow Respondent to fabricate new upper and lower dentures for her; and Respondent signed the Laboratory Procedure Authorization and completed that "prescription" and a North Dade Laboratory Instructions sheet, thereby authorizing and commencing the fabrication of those dentures. A set of dentures was made for Mrs. White at the North Dade Dental Offices by Respondent and some of his personnel, both identified and unidentified. On October 3, 1981, a full set of dentures was delivered to Mrs. White. Thereafter, she complained to Respondent and others at his office that the dentures were causing pain, that they were unsatisfactory, that they did not fit correctly, that they interfered with her ability to eat, that they had worn or rubbed a raw spot on her gums, and that they caused her face to swell below her eye. She returned to Respondent's office for adjustments on a number of occasions, the exact number of which cannot be determined since the evidence is conflicting and Respondent admits that his records are not accurate. After Mrs. White had returned to North Dade Dental Offices on a number of occasions for adjustments in the hope that the dentures A could be made satisfactory, Respondent suggested to her that she attempt to relieve the pain the dentures were causing her by using whiskey or saltwater. Mrs. White considered that suggestion to be, minimally, unprofessional and refused to thereafter return to North Dade Dental Offices to have Respondent continue working on her dentures. Instead, Mrs. White went to her doctor of osteopathy and showed him the abrasions caused by her new dentures. She then sought the services of Dr. Charles M. Friedman, a dentist in the same building as her osteopath. When Friedman examined Mrs. White and the dentures from North Dade Dental Offices, he found that: the lower denture was overextended in relation to the labial frenum and the buccal frenum and shy of proper placement in relation to the lingual frenum; the lower denture had no primary retention or stability; the dentures had no border seal or border molding approximating the muscle extensions; the dentures did not adapt to ridges and moved and unseated during function and when pressure was applied against the ridges; maximum intercuspation of teeth was considerably anterior to the point of first tooth contact; the overall quality of workmanship of the dentures was poor; and the dentures appeared to have been relined without a proper finishing and polishing procedure thereafter. Additionally, the dentures Respondent had agreed to fabricate for Mrs. White could not be adjusted or redone in a way to make them satisfactory because the vertical dimension was incorrect. The dentures provided by Respondent to Mrs. White therefore failed to meet minimum standards of performance, since they caused tissue ulceration in her mouth, since they fell out of her mouth when she talked, and since they did not enable her to chew food. After Mrs. White refused to return to Respondent's office due to his comments to her, her husband went to North Dade Dental Offices and personally requested Respondent to refund their money or make a new set of dentures that worked. Respondent refused both requests. Not only are the office records on Roza White incomplete and incorrect, two facts admitted by Respondent, they also fail to identify the dentist of record. On February 14, 1981, Lydia Sudick went to the North Dade Dental Offices, where she discussed with Respondent the extraction of a tooth and construction of a new lower denture. Respondent performed the extraction; and, after agreeing to fabricate new upper and lower dentures for Mrs. Sudick, Respondent signed the laboratory authorization forms and issued instructions for the construction of those dentures. On March 21, 1981, Mrs. Sudick received the new dentures the Respondent agreed to make for her. She immediately encountered problems with those dentures in that a hook on the end stuck her in the inside of her mouth, the dentures caused sores, and they fell out of her mouth. Mrs. Sudick complained to Respondent and other personnel at his office regarding the problems with her dentures. Respondent declined to refund her money when she made that request; however, Respondent offered to remake her dentures if she would continue to come to the clinic. The dentures delivered to Mrs. Sudick by Respondent on her last visit to the North Dade Dental Offices were unsatisfactory to her in that they caused her pain and kept falling out of her mouth. Mrs. Sudick and her dentures were examined by Dr. Leonard M. Sakrais in June of 1981. Sakrais found the following deficiencies: the upper denture had no primary retention or stability; the teeth in the upper denture were set lateral to the ridges; the lower partial denture had no stability or seat; the lower partial denture was inadequate in design for retention; the lower partial denture had a nonfitting buccal wire clasp with no reciprocity for retention; the interarch relationship of the dentures was totally inadequate, with absolutely no centric or intercuspation; and the two dentures were inadequately designed and constructed for function together as a set. Not only did Sakrais find that the dentures Respondent constructed for Mrs. Sudick failed to meet minimum standards of performance, he also found that the dentures she was wearing when she went to Respondent for the extraction of one tooth were still servicable and would have required only the addition of one tooth to the dentures (to replace the natural one extracted) without any necessity for constructing new dentures at all. During Mrs. Sudick's visits to North Dade Dental Offices, services were performed on her by a number of unidenti- fied persons. Although no female dentists were employed by or associated with North Dade Dental Offices during the time that Mrs. Sudick was a patient there, impressions were taken inside her mouth by two different women. Respondent knew at the time that those two unidentified women were taking impressions inside Mrs. Sudicks mouth, since he entered the room while that was being done. Not only were the office records of Lydia Sudick incomplete and inaccurate, two facts admitted by Respondent, they also fail to identify the dentist of record. On or about June 1, 1981, Charles Calaman, an investigator with the Department of Professional Regulation, visited the North Dade Dental Offices. No state licenses or permits were observed to be posted, although Calaman looked for them specifically. When he inquired as to why no licenses were displayed, one of Respondent's employees advised that the licenses were somewhere being laminated or plagued but was unable to recall where that work was being performed. On a subsequent occasion, Calaman saw Respondent's license as well as that of the Respondent's partner, and those licenses were neither plagued nor laminated. Newspaper advertisements for North Dade Dental Offices appeared in the "Neighbors" section of The Miami Herald every Sunday. Both Respondent and his partner at the North Dade Dental Offices instructed the employee handling their account at The Miami Herald that each ad must be presented to them for approval prior to publication. The account executive, who therefor was personally at the North Dade Dental Offices at least once a week, dealt with Respondent or with his partner on an approximately equal basis. Once an ad was approved for publication, that particular ad was run for several Sundays in a row before Respon- dent and his partner would require a different layout. Ads for North Dade Dental Offices covering the time period from January 18, 1981, through December 6, 1981, which were admitted in evidence, were paid for by the professional association comprised of Respondent and his partner, who together owned equally North Dade Dental Offices. The advertisements in question fail to contain the names, addresses, and telephone numbers of all the dentists with whom Respondent was associated at the North Dade Dental Offices on the dates of the advertisements. The advertisements in question contain information about fees for services other than defined routine dental services. Fillings or crowns are not defined as routine dental services. The advertisements in question contain information about fees but do not contain, in lettering no less prominent than the general text of the advertisement, a statement that the fee advertised is a minimum fee to be charged for such service and that the actual fee might vary depending upon the complexity involved in a given case. The advertisements in question contain laudatory statements about the dentists at North Dade Dental Offices and further contain statements relating to the quality of dental services provided, such as the following: Our Lower Fees & Superior Personalized Dentistry have Established Us as the Leading Full Dental Service in South Florida! Highest Quality Dental Service; Lowest Possible Fees Our low fees and quality care is [sic], in our opinion the most realistic good dentistry available in the South today. Continuing Our Policy of Highest Quality, Full Dental Service at the Lowest Possible Fees. We do make high quality dentures & crowns and We don't charge high fees for quality dentistry!
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice Counts One, Two, Three, Four, and Eight of the Administrative Complaint; finding Respondent guilty of the allegations contained in Counts Five, Six, Seven, Nine, Ten, and Eleven of the Administrative Complaint; suspending Respondent's license to practice dentistry for a period of 30 days; assessing an administrative fine against Respondent in the amount of $3,000 to be paid by a date certain; and placing Respondent's license on probation for a period of one year after his suspension with the terms and conditions of that probation to be set by the Board of Dentistry. DONE and RECOMMENDED this 20th day of June, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1984. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Douglas L. Williams, Esquire Martin Nathan, Esquire Rivergate Plaza, Suite 700 444 Brickell Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners 207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her reliance upon visual caries-detection preclude a finding of caries in this patient. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.
Recommendation It is RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License Examination and determining that he has passed this part of the dental examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
