Findings Of Fact Respondents Respondent, John A. Rowe, D.D.S., received his license to practice dentistry in the State of Florida on or about July 30, 1982 and has been so licensed continuing to the present under license #DN 009364. Since 1977, Dr. Rowe has been board-certified in oral and maxillofacial surgery and he practices in that specialty. Dr. Rowe's license to practice dentistry in the State of Tennessee was suspended on or about October 3, 1983, and was reinstated on or about September 28, 1984. He neglected to inform the State of Florida Board of Dentistry of that disciplinary action, although he did provide to the Board a copy of the civil complaint when he applied for licensure in Florida. In early 1985, Dr. Rowe moved his practice from Tennessee to central Florida and began working with Dr. Frank Murray. During the time that he treated the patients at issue in this proceeding, Dr. Rowe was a salaried employee and part owner of a clinic, Central Florida Dental Association, in Kissimmee, Florida. He now has his own practice in Kissimmee. Ralph E. Toombs, D.D.S., has at all times relevant to this proceeding been licensed to practice dentistry in the State of Florida under license #DN 007026. During the period in question, 1988, Dr. Toombs was an associate at Central Florida Dental Association. The Clinic and its Procedures During the relevant period, 1988-89, Central Florida Dental Association, P.A., was owned by a group of dentists who actively practiced at the clinic. Dr. Frank Murray was the majority shareholder and President. Dr. Rowe was a shareholder; Dr. Toombs owned no interest and was an associate. The dentist/owners were under employment contracts and received salaries. By all accounts, Dr. Murray made the operational decisions affecting the clinic and its patients. He admitted that shareholders' votes were based on percentage of ownership. (Tr.-p.114) Dr. Murray set the fees for billing and reviewed patients' files. The procedures for billing were computerized. Clerical staff in the insurance department filled out claim forms that were signed in blank by the dentists, or they signed the dentists' names to the forms. Around 1987 or 1988, Dr. Murray acquired computerized diagnostic equipment for the clinic. At first Dr. Toombs, who was trained and familiar with the equipment, performed the testing. Later, Dr. Murray hired Maggie Collins to operate the equipment. Maggie Collins administered the diagnostic tests to the patients at issue in this proceeding. By the time Dr. Rowe left Central Florida Dental Association in 1989, his relationship with Dr. Murray had deteriorated, giving rise to acrimonious litigation. Patient Records After Dr. Rowe left, he had no further access to, or control over the dental records for the eight patients at issue in this proceeding. These Central Florida Dental Association records were at all times maintained under the case, custody and control of Dr. Murray and his employees. When the records were subpoenaed by the Department of Professional Regulation, copies of the records were provided and the clinic employees certified that the records provided were complete. They were, in fact, not complete, as approximately 426 additional pages were included in the originals subpoenaed by counsel for Dr. Rowe, which pages had not been provided to DPR. Many of the documents not copied for DPR related to billings. In some instances Dr. Rowe's daily reports or consultations were missing from the original records and from the copies. And, in at least one case the original record contains an entirely different version of a specific radiology consultation conducted by Dr. Rowe on 5/3/89. (Compare Rowe Exhibit #2 with Pet. Exh. #5-1). No evidence was provided to conclusively explain the discrepancies, and the records themselves are an unreliable source of evidence with regard to the allegations that Dr. Toombs failed to maintain adequate records for patient J.T. Her file contains only one X-ray from Central Florida Dental Association, and no explanation of tests, diagnoses or the continuing contacts she remembers with Dr. Toombs. The patient specifically remembers more than one X-ray being done at the clinic. The Patients At various times during 1987, 1988 and 1989, Dr. Rowe was consulted by these patients: H.W., E.M., M.Z., R.P.V., H.D., R.M. and S.R. Each had been involved in an automobile accident or other traumatic injury and each complained of headaches, pain, dizziness, and other symptoms. After examination and throughout a course of testing and treatment, these various diagnoses of TMJ disorders by Dr. Rowe were commonly found in the above patients: trismus, closed lock, and mandibular atrophy. While other diagnoses were made in the individual cases, the evidence at hearing and Petitioner's proposed recommended order address only these. Patient J.T. first consulted Dr. Toombs in August 1988, after suffering headaches which she understood from her regular dentist and her physician might be caused by dental overbite. She had a friend who had some work done by Dr. Toombs, so she looked him up in the yellow pages under "orthodontics" and made an appointment. After testing and X-rays and a brief consultation with Dr. Rowe, J.T. understood that Drs. Toombs and Rowe were suggesting jaw joint replacement, removal of some teeth and braces. She was advised to get another opinion and she returned to a prior treating physician. She did not follow up with treatment from Dr. Toombs or Rowe. Testing In addition to being administered X-rays, the above patients were tested on myotronics equipment at Central Florida Dental Association by Maggie Collins, a trained diagnostic testing operator hired by Dr. Frank Murray. Myotronics is electronic equipment developed by a Seattle, Washington company over the last twenty years. The equipment is used in diagnosis and sometimes treatment of TMJ functions, and includes sonography, which records the vibration of sound; electromyography (EMG), which measures the electrical activities of the muscles of the face; and computerized mandibular scanning (CMS), which measures a range and velocity of mandibular movement, i.e., the opening and closing of the jaw. Myotronics can also include a device like a TENS unit used for pulsating. The machines produce printouts which are available for interpretation later by the appropriate professional. On each occasion of administering the myotronics tests to the patients at issue, Maggie Collins was alone, undirected by Dr. Toombs, Dr. Rowe or other clinic staff. She utilized testing procedures she had been taught and had used in her prior dental clinic experience and which she continues to use in the clinic where she now works. In some cases, Ms. Collins administered the same tests twice on a single visit. In those cases, after the first series, the patient was pulsated with a TENS before the series was administered again to measure the effectiveness of the pulsating. This is a standard practice. The full testing takes two and a half to three hours. Diagnoses The TMJ, or temporomandibular joint of the jaw, is between the temporo bone and the mandible. A disc is between the condyle (bone) and the fossa (socket). As the mouth is opened, the bone moves and the disc moves slightly at first, until the mouth is opened wider and the disc rotates around the axis of the condyle. According to Respondent Rowe's TMJ expert witness, John Biggs, D.D.S., and as evidenced by the testimony of all of the experts in this proceeding, terminology in TMJ is open to interpretation and there is not a complete union of agreement on every single thing in the field of TMJ. (tr.-p.790) "Closed lock" can legitimately mean that the disc is out of place and is not recaptured as the mouth is closed. The term, "closed lock", can also be applied to the mandible, meaning the jaw does not open normally because it meets resistance from muscle spasm or tissue impediment from the disc. An acute closed lock would impede the opening more than a chronic condition, as the mandible may, over time, stretch the ligaments. An acute closed lock could limit the mandibular opening to 21, 25 or even 27 mm; whereas a chronic closed lock might allow an opening of up to 40 mm, and sometimes more, according to Petitioner's expert, Dr. Abdel-Fattah (rebuttal deposition, 12/2/92, p.71). The patients' files in evidence reveal findings of limited mandibular openings from a variety of sources, including manual and electronic measurement. Those openings are well within the ranges described above for closed lock and most are within the "acute closed lock" range. Another term for "closed lock" is "anterior displacement of the disc without reduction". This means the disc is not recaptured on the condyle. When a sonogram reflects sounds or clicking in the joint, analysis of those sounds is helpful in diagnosing TMJ disorders. Literature appended by Petitioner to the rebuttal deposition of its expert supports Dr. Moretti's opinion that the presence of clicks can still mean that a closed lock exists. (Pet. #3 to deposition of Reba A.Abdel-Fattah, pp. 1 and 3, figure 5 Rowe Ex. #10, p.18) Trismus is more appropriately designated a symptom rather than a diagnosis. It means spasm of the muscles of mastication. The pain of the symptom often interferes with the opening of the mandible, and for that reason, trismus is sometimes used to also denote "limited opening". It is apparent from the patient records that Dr. Rowe used the term interchangeably, and for that reason, findings of trismus where a patient is able to open to 40 mm are not inconsistent. Moreover, trismus as a symptom may be more or less pronounced under a variety of circumstances on different occasions with the same patient. For example, the patient may experience severe trismus upon rising in the morning and find that it subsides later. Mandibular atrophy is indicated by bone loss. Reviewing the same X- rays for patient E.M., Petitioner's and Respondent Rowe's experts came to opposite conclusive opinions as to whether Dr. Rowe's diagnosis of this condition in E.M. was proper. Mandibular atrophy was also diagnosed in patient S.R., but Dr. Fattah did not find a problem with that diagnosis. Treatment Dr. Rowe's treatment of the patients in issue included closed manipulation and the insertion of orthodic splints. Both are noninvasive, conservative procedures. Petitioner alleges that closed manipulation was unnecessary in the absence of closed lock, and that the method of insertion of the splints by Dr. Rowe was improper. Closed manipulation of the mandible, sometimes called "closed reduction", is manual manipulation to attempt to recapture the disc. The procedure can be done several ways, one of which is to approach the patient from the back, place the hands on the mandible and relax the mandible to where it can be opened, moving the disc into place. The patient is in a supine, or reclined, position in the dental chair. Once the disc is manually repositioned, it is important to keep the patient from closing back on his posterior teeth and losing the disc again. To avoid this, an orthodic splint is inserted and fitted in the patient's mouth. Even when manipulation does not unlock the mandible, the practitioner might want to place the splint for support. The splint can be placed with the patient sitting erect or reclined. Dr. Rowe generally places the splint while the patient is reclined in the dental chair. Adjustments may be made after the splint is initially placed and the patient is sometimes seen twice on the same day or on a weekly basis. Because it is important for the patient to be relaxed, the supine or reclining position is preferred. Insurance Claims Insurance claims at Central Florida Dental Association were handled by clerical staff in a separate department. Claim forms were commonly signed by those staff for the treating dentist, but there is no evidence that the signatures were authorized for any specific claim. Another wholly inappropriate practice at the clinic was to have the dentists sign blank forms to be filled out later. Dr. Rowe testified that Dr. Murray required that they do this, and that he did sign blank forms. Those forms include this printed statement over the signature line: NOTICE: Under penalty of perjury, I declare that I have read the foregoing, that the facts alleged are true, to the best of my knowledge and belief, and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. (Pet. Ex. 12) There is no evidence that Dr. Rowe or Dr. Toombs filled out the claim forms in issue, or were involved in the ultimate decisions as to how much and when to bill an insurance company. In several instances, the forms reflect that tests were billed twice on the same day. As found above, tests were commonly administered twice in one day, for valid reasons. Whether the billing for such was proper was simply not addressed by any competent testimony in this proceeding. Patients' insurance companies were also billed for TENS units. H.W. was given this equipment at the clinic and he testified that he still has it. There is no evidence that any billing for TENS units was fraudulent or improper. Advertising In 1988, the Osceola County telephone directory Yellow Pages listed Dr. Toombs under "Dentists-Orthodontics". There is no evidence that anyone other than Dr. Murray was involved with the placement of that listing. Dr. Toombs is a general dentist who practices orthodontics. He is a member of various orthodontic societies. Petitioner's expert witness, Dr. Lilly, confirmed that a general practitioner of dentistry may practice some orthodontics. There is no evidence that Dr. Toombs has held himself out or limited his practice to being an orthodontist. Weighing the Evidence and Summary of Findings Competent reasonable experts testified on behalf of both Petitioner and Respondent Rowe. It is clear that, as Dr. Biggs observed, terminology in the field of TMJ is not as precise and uniform as Dr. Fattah would suggest. Some of the differences in opinion are attributed to that imprecision, and perhaps to quirks in Dr. Rowe's narratives which portray a surgical setting for a nonsurgical procedure, for example, "draping the patient" or "surgical splint". Dr. Rowe, as an oral surgeon, nonetheless, proceeded reasonably in his sequence of diagnosis and treatment; that is, he attempted conservative, noninvasive modalities before going to more invasive procedures such as arthoscopy and surgery. Other differences in opinion and in the way the computerized test results are interpreted are more difficult to resolve. Dr. Rowe contends that Dr. Fattah misread the printed data, confusing vertical with horizontal readings. Dr. Fattah uses myotronic equipment, but not the older model that was used for the tests at issue. The greater weight of evidence supports Respondent Rowe's diagnoses of the patients at issue. Since the allegations of inappropriate and unnecessary treatment are based on allegations of misdiagnosis, Petitioner's proof fails here as well. The further testing, the closed manipulation and insertion of the splints were appropriate follow up for the findings of TMJ disorders by Dr. Rowe. With one exception, it was the insurance companies and not the patients who complained. The records from Central Florida Dental Association reflect substantial billings and insurance form submittals for Dr. Rowe's and Dr. Toombs' patients, but no evidence of these Respondents' responsibility or involvement in the process. The clinic functions were performed in discrete departments under the overall management and control of Dr. Murray. There was no evidence that either Dr. Rowe or Dr. Toombs exercised influence over any patient so as to exploit the patient for personal financial gain.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Respondent Rowe be found guilty of violating Section 466.028(1)(b), (1983), and a fine of $250.00 be imposed; and that the remaining charges as to Respondents Rowe and Toombs be dismissed. DONE AND RECOMMENDED this 2nd day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 2nd day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-3213, 91-6022 AND 91-5362 The following constitute specific rulings on the findings of fact proposed by the parties. Adopted in paragraph 1. 2.-3. Adopted in paragraph 2. 4. Rejected as unnecessary. The statute is addressed in the Conclusions of Law. 5.-6. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 9.-13. Rejected as contrary to the weight of evidence. 14.-15. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 18.-23. Rejected as contrary to the weight of evidence. 24.-25. Adopted in summary in paragraph 13. 26. Adopted in summary in paragraphs 16 and 26. 27.-30. Rejected as contrary to the weight of evidence. 31. Adopted in paragraph 27. The referenced exhibit #33 is Dr. Lilly's resume and does not support the proposed finding. 32.-34. Rejected as contrary to the weight of evidence. 35.-36. Adopted in summary in paragraph 13. 37. Adopted in summary in paragraphs 16 and 26. 38.-42. Rejected as contrary to the weight of evidence. 43.-44. Adopted in summary in paragraph 13. 45. Adopted in summary in paragraphs 16 and 26. 46.-49. Rejected as contrary to the weight of evidence. 50.-51. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 54.-58. Rejected as contrary to the weight of evidence. The reference to exhibit #33 is incorrect. 59.-60. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 63.-67. Rejected as contrary to the weight of evidence. 68. Adopted in paragraph 4. 69.-70. Adopted in paragraph 14. Adopted in part in paragraph 34, otherwise rejected as to Respondent's involvement in the advertisement. Adopted in paragraph 35. 73.-74. Rejected as unnecessary. 75.-77. Rejected as unnecessary or unsupported by competent evidence as the absence of these records does not support the finding of a violation under the circumstances. Findings Proposed by Respondent Rowe Adopted in paragraph 1. Adopted in paragraph 3. 3.-4. Adopted in paragraph 9. 5.-7. Adopted in paragraph 10. 8.-9. Adopted in paragraph 11. Adopted in paragraph 10. Rejected. The testimony of J.T. is inconclusive in this regard. Adopted in paragraph 8. Rejected as unnecessary. Rejected as overbroad. The records received were reliable for a limited purpose. 15.-16. Rejected as unnecessary. Rejected as immaterial. Respondent admitted the violation. Adopted in part in paragraph 2, otherwise rejected as immaterial (see paragraph 17, above) Adopted in paragraph 32, in substance. Adopted in substance in paragraph 6. Rejected as unnecessary. Rejected in part as unsubstantiated by the record (as to whether Rowe received any benefit other than salary), otherwise adopted in paragraph 6. 23.-24. Adopted in paragraph 6. 25. Adopted in paragraph 41. 26.-27. Adopted in paragraph 37. Adopted in paragraph 41. Adopted in paragraph 29. Adopted in substance in paragraph 21. Adopted in paragraph 23. Adopted in paragraph 20. Adopted in paragraph 24. 34.-37. Rejected as unsupported by conclusive evidence. The witness was at times confused in his haste. He does not know this particular equipment but it is not clear from the record that he was reading the data wrong. Adopted in paragraph 24. Adopted in paragraph 23. Adopted in paragraphs 37 and 38. Adopted in paragraph 33. Rejected in part, adopted in part (see conclusions of law). Finding of Fact Recommended by Respondent Toombs Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 14. 4.-5. Rejected as unnecessary. Adopted in paragraph 36. Adopted in paragraph 34. Adopted in paragraph 35. 9.-11. Rejected as unnecessary. 12. Adopted in paragraph 5. 13.-18. Rejected as unnecessary. 19. Adopted in paragraph 12. 20.-26. Rejected as unnecessary. 27. Adopted in paragraph 41. COPIES FURNISHED: William Buckhalt, Executive Director Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Albert Peacock, Sr. Atty. Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Kenneth Brooten, Jr. 660 W. Fairbanks Avenue Winter Park, FL 32789 Ronald Hand 241 E. Ruby Ave., Ste. A Kissimmee, FL 34741
Findings Of Fact At all times relevant, Respondent, John W. Delk, held a license to practice dentistry, number DN 0005106, issued by the State of Florida, Department of Professional Regulation's Board of Dentistry. James Whisman was a patient at the Delk Dental Center from July 14, 1981 until May 22, 1984. Dr. John W. Delk was the dentist of record for James Whisman. On July 14, 1981, Dr. John W. Delk prepared teeth #6, 7, and 8 for crown and bridgework which included the placement of a post in tooth #8. On July 29, 1981, James Whisman returned to the Delk Dental Center to have the crowns on #6, 7, and 8 seated. On July 29, 1981, Don Berman seated permanent crowns on teeth #6, 7, and 8 for James Whisman using a permanent cement. Don Berman was a technician (dental assistant) for the Delk Dental Center and was not a licensed dentist or dental hygienist. He did not have an expanded duties certificate. On August 11, 1981, Respondent diagnosed a need, and had Berman prepare a treatment plan, for future dental work for James Whisman. During the establishment of Mr. Whisman's August 11, 1981 treatment plan, there was no documentation or oral advisement that an abnormality, such as a retained root tip or abscess, existed at tooth #10. Later, the bridge work on teeth #6, 7, 8 became loose, and Whisman called for an appointment with the Delk Dental Center. On September 21, 1981, the crowns on teeth #6, 7, and 8 were re-cemented with a permanent cement, zinc phosphate, by technician Don Berman. Dr. John W. Delk did not supervise Don Berman when he used the permanent cement to seat the crowns on teeth #6, 7, and 8 for a second time. From February 8, 1982 through February 25, 1982, Dr. James Costello provided dental services to James Whisman, specifically preparing teeth #9-15 and teeth #1-5 for crowns and bridgework and seating the crowns and bridgework. Dr. Costello did not advise James Whisman that an abnormality, specifically a retained root tip or abscess, was present at tooth #10. The patient chart for James Whisman failed to document that tooth #10 had a retained root tip and abscess present. The failure to chart a retained root tip and abscess at tooth #10 is critical to diagnosis and treatment. Fourteen months later, James Whisman returned to the Delk Dental Center for continued dental work. Respondent on March 6, 1984, diagnosed the need, and had Berman prepare a treatment plan, for fixed bridge-splints on teeth #19-22 and #27- 30. On March 7, 1984, Dr. John W. Delk prepared teeth #19- 22 and #27-30 for crown and bridgework. On March 9, 1984, Don Berman cemented temporary crowns on teeth #27-30 without supervision from Dr. John W. Delk. On March 12, 1984, Don Berman re-cemented temporary crowns on teeth #27-30, using a permanent cement called Durelon, without supervision from Dr. John W. Delk. On April 19, 1984, Don Berman used a permanent cement, Durelon, to seat the crown and bridgework on teeth #19-22 and #27-30 without supervision from Dr. John W. Delk. On May 15, 1984, James Whisman returned to the Delk Dental Center complaining of loose teeth in the area of #7 and 8. On May 22, 1984, James Whisman returned to the Delk Dental Center continuing in his complaint that teeth #7 and 8 were loose. On May 22, 1984, Don Berman did an oral inspection of teeth #7 and 8 and with the aid of a dental instrument removed said teeth. Teeth #7 and 8 fractured off inside the crowns. On May 22, 1984, based on what Don Berman had reported to him, Respondent diagnosed the need, and had Berman prepare a treatment plan, for Mr. Whisman which encompassed an estimate for two crowns, one root canal filling and two pin and core build-ups for a total fee of $708.00. On May 22, 1984, Dr. John W. Delk did not examine Mr. Whisman nor did Dr. Delk supervise the actions of Don Berman. Don Berman re-cemented the crowns for teeth #7 and 8 using a permanent cement, Durelon, with no supervision from Dr. John W. Delk. James Whisman suffered from areas of sensitivity around the bridgework, poor dental work and an unnoticed abscess and retained root tip. James Whisman discontinued the dental work with the Delk Dental Center and sought a second opinion from Dr. Albert P. Hodges on June 7, 1984. After the services performed by Dr. Delk and/or his employees, an examination of James Whisman's teeth revealed dental work that fell below the standard of care as recognized by the prevailing peer community. The standard of care for crown and bridgework recognized by the prevailing dental peer community is as follows: No open or shy margins around the crowns; no active decay present; proper retention in multiple-unit splints; proper dowel lengths in crowns that are needed to support multiple unit bridges; proper occlusal contact and recognition; and treatment of any pathological condition prior to crown and bridge placement. Specifically, tooth #7 had margins that were open and shy, active decay was present and there was a distinct lack of retention to support the two-unit splint. The dental treatment provided on tooth #7 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #8 had margins that were open, active decay was present and the dowel length was totally inadequate for useful retentive support. The dental treatment provided on tooth #8 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically with tooth #10, Dr. Delk failed to diagnose and treat a retained root tip and a pathological condition which was visible and discoverable. The retained root tip and abscess were clearly visible radiographically as early as the July 14, 1981 visit to Dr. Delk's facility. James Whisman was not advised during the course of his treatment that a retained root tip existed and that the pathological condition should be treated prior to the placement of a crown over tooth #10. James Whisman's records, made at Dr. Delk's facility, failed to reflect the existence of the retained root tip and abscess at tooth #10. Failing to chart or notify the patient of the existence of a retained root tip and the accompanying cyst falls below the standard of care as recognized in the prevailing dental community. The dental treatment provided on tooth #10 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #20 had margins that were open and shy, it was sensitive to probing, and it was out of occlusion because it had no contact with the opposing tooth when the mouth was in the closed position. The dental treatment provided on tooth #20 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #21 had margins that were open and shy. The dental treatment provided on tooth #21 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #22 had margins that were shy. The dental treatment provided on tooth #22 fell below the minimum, acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #27 had margins that were shy and the crown was over-contoured causing potential gum irritation and food impaction. The dental treatment provided on tooth #27 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #29 had margins that were open and shy. The dental treatment provided on tooth #29 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Cementing crowns with permanent cement is an irremediable procedure. Cementing temporary crowns with permanent cement is justified on a short-term basis but only if the procedure is done by a licensed dentist. To be within acceptable dental standards, a dentist must do a physical oral examination of a patient before developing a treatment plan. Failure to do a physical oral examination in the development of a treatment plan falls below the minimum standards as recognized in the prevailing peer community. An assistant with an expanded duties certificate may use temporary cement only to seat temporary crowns provided a licensed dentist provides direct supervision.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Board of Dentistry enter a final order: (1) holding the Respondent guilty on both counts of the Administrative Complaint; (2) fining Respondent $1000 for each count, said amount to be paid within 30 days from the signing of the final order or Respondent's license automatically to be suspended until the fine is paid; (3) suspending Respondent's license to practice dentistry for 6 months for each count of the Administrative Complaint, to run consecutively; (4) placing Respondent on probation for 12 months subsequent to the expiration of the suspension period; and (5) conditioning reinstatement of Respondent's license to practice dentistry on successful completion of 100 hours of university credit course work in crown and bridge restorations by the end of the probation period and on an appearance by Respondent before the Board to provide evidence of compliance with the final order. RECOMMENDED this 3rd day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1987. COPIES FURNISHED: Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Michael T. Hand, Esq. 230 East Marks Street Orlando, F1 32803 John W. Delk, D.D.S. 2918 North Pine Hills Drive Orlando, F1 32808 Pat Guilford Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Wings T. Benton, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 APPENDIX To comply with Section 120.59(2), Florida Statutes (1985), the following rulings are made on Petitioner's proposed findings of fact (Respondent did not submit proposed findings of fact): 1.-3. Accepted and incorporated. 4. Accepted but unnecessary. 5.-8. Accepted and incorporated. Accepted but unnecessary. Rejected as not proved. The evidence suggested that Respondent examined the patient and instructed Berman how to prepare the plan. 11.-15. Accepted and incorporated. 16. Rejected as not proved. Dr. Costello testified he seated the crowns and bridgework, and the office notes do not reflect that Berman was involved at all. Whisman's memory probably was in error on this point. 17.-20. Accepted and incorporated. 21. Rejected. See 10 above. 22.-29. Accepted and incorporated except the correct date in 24 is March 12, 1984, and the correct teeth in 25 are #19-22, not #19-20. 30. Rejected. See 10 above. 31.-56. Accepted and incorporated. Accepted but cumulative. Accepted and incorporated. Rejected as conclusion of law. 60.-61. Accepted but unnecessary. Accepted and incorporated. Accepted but cumulative. 64.-65. Accepted and incorporated.
Findings Of Fact The Board had charged the Petitioner, Dr. Jules Klein, with violations of Sections 466.27(2) and 466.24(3)(g)(k) and (m), Florida Statutes. Dr. Alvin H. Savage was called by the Board to testify that he had seen Dr. Klein in the early spring of 1974. At that time Dr. Savage mentioned to Dr. Klein a sign on the side of the building in which Dr. Klein maintained his professional office. Dr. Savage identified Exhibits 1, 2, and 3 as photographs of said building and the signs at the building as they existed at the time. Dr. Savage testified that the sign bearing Dr. Klein's name was not objectionable and that he had received no complaints regarding said sign. Dr. Savage testified that he had received complaints about the sign as it existed on Dr. Klein's building at that time. The wording of that sign was "Longwood Dental Arts Center". Dr. Savage, on cross-examination, testified that Dr. Klein had invited him to his office to discuss Dr. Klein's status in the local professional association. During their discussion Dr. Savage testified that he had suggested to Dr. Klein that as Jews the community probably held them to a higher standard than other members of their profession, and that Dr. Klein should attempt to avoid even the appearance of anything questionable. Although it was suggested that Dr. Savage's comment was evidence of antisemitic discrimination, in the context of discussion as revealed by both Dr. Savage's and Dr. Klein's testimony, it would appear general advice from an older professional man who had practiced in the community for some time to a younger colleague. During this visit Dr. Savage raised the question of the sign on Dr. Klein's building and was advised by Dr. Klein that he would see the landlord of the building about altering the sign. Thereafter, Dr. Savage testified that the sign was changed, and identified Exhibit 5 and 6 as photographs of the building in which Dr. Klein's professional office was located and the amended sign which read, "Longwood Dental Bldg." Dr. Savage testified that he had received only two complaints regarding the amended sign during the preceding year and that one of the two complaints had been received shortly before the date of final hearing. On cross-examination, Dr. Savage opined that Dr. Klein's sign violated the statute by calling attention to the practice of dentistry by an individual, indicating further that if more than one dentist were practicing at Dr. Klein's office that it would not, in his opinion, be in violation of the statute. Dr. Savage based his opinion upon the Code of Ethics of the Florida Dental Association, Bearing Officer's Exhibit 10. Mr. John F. Plumb testified that he had taken the photographs introduced as Exhibits 5 and 6 on the morning of the hearing. He further testified that he visited Dr. Klein's office on March 12, 1975, April 29, 1975, and July 28, 1975. On both the March and April visits he had spoken with Dr. Klein and had found him very cooperative, although quite concerned about why his sign was an apparent violation while some of the signs in the locality, one of which was immediately across the street from his office, were not in violation. Mr. Plumb testified that he had discussed with Dr. Klein the provisions of Section 466.27(2), Florida Statutes, and the sign's apparent violation of its provisions. Mr. Plumb testified that during the March 12, 1975 visit with Dr. Klein that Dr. Klein indicated that he would modify the sign; however, during the April 29, 1975 visit, Dr. Klein indicated that he would not alter the sign on the advice of his attorney. Dr. Klein then testified in his own behalf. Dr. Klein testified that the sign, "Longwood Dental Arts Center" had been chosen originally because patients had indicated that they could not find his office. Dr. Klein testified that he had become truly concerned about the ability of persons to find his offices when dental supply salesmen reported difficulty in finding his offices. At that time Dr. Klein was practicing with his brother-in-law, Dr. Guy. Dr. Klein testified that having determined the need for a sign on the building, that he looked at the building signs on other buildings in the vicinity. Together with Dr. Guy, he determined that the building be named "Longwood Dental Arts Center" because he and Dr. Guy eventually intended to have am orthodontist in association with then. On cross- examination Dr. Klein testified that "medical arts" was not used because they had had no intention of having doctors of medicine practice there. Dr. Klein testified that he then contacted a sign maker who had dome other similar signs, who suggested the layout and size of the sign used on the building. Dr. Klein testified that after Dr. Savage's visit that he had received a visit from Dr. Franklin. Dr. Klein testified that he had the impression that the removal of the words "Arts Center" would eliminate the objection to the sign, and the sign was so modified. After the sign was changed, Dr. Klein testified that he was again contacted but that he had been unable to determine what was acceptable wording for the sign. He testified that in am effort to obtain guidance as to what was "professionally" acceptable he had contacted the American Dental Association and received a copy of their ethic advisory opinions. See Exhibit 16. This exhibit provides: "1. A building may be identified as the '...Dental Building,' except that the full name of the building cannot include the name of a participating dentist. The mane selected should not imply the practice of superior or more artful dentistry, imply any connection with any institutional or governmental unit or organization, or imply or specify the practice of any special area of dentistry. The full name selected shall be limited to the function of helping the patient locate the building. 2. A component society may determine community custom to prohibit dentists from using floodlights to draw attention to their nameplates on the outside of their private practice facilities. Component societies should be aware, futhermore, that the state dental practice acts ordinarily establish regulations on the use of office door lettering and signs." The Florida Dental Association rules would also allow the use of "Dental Building", but only where two or more dentists practice within the professional building. The basis for this distinction was explained by Dr. Savage, who stated that the provisions of Subsection k of Section 466.24(3) relating to".. calling the attention of the public to any person engaged in the practice of dentistry..." were not violated if two or more persons practiced in a building identified as a "Dental Building."
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
The Issue The issue in this case is whether the Florida Insurance Commissioner should discipline the Respondent, Brian Craig Parker, for alleged violations of the Insurance Code.
Findings Of Fact The Respondent, Brian Craig Parker, is a licensed health and life insurance agent. He had a contract with Denticare appointing him to act as Denticare's agent in selling prepaid dental insurance. On or about March 19, 1992, the Respondent, acting as an insurance agent, met with Christine Gamse and accepted her application for Denticare coverage and her check in the amount of $75, representing a $60 premium, plus a $15 "policy fee." The Respondent never submitted Gamse's Denticare application or premium to the insurer. In May, 1992, Gamse complained to Denticare that she still was not covered. Denticare confirmed that Gamse was not covered and offered to telephone the Respondent. When contacted by Denticare, the Respondent stated that he thought he had sent the application and premium to Denticare but that he had been very busy and that his recall was sketchy. Denticare had Gamse reapply directly to Denticare. On or about April 3, 1992, the Respondent, acting as an insurance agent, met with Donald Naegele for the purpose of presenting two dental insurance policies. Naegele decided to apply for Denticare dental insurance. The Respondent advised Naegele to write the Respondent a check in the amount of $104 to accompany Naegele's insurance application, representing a $89 premium, plus a $15 "policy fee." The Respondent told Naegele that he would submit the application by April 20 and that Naegele's coverage would be effective on May 1, 1992. The Respondent negotiated Naegele's check on or about April 7, 1992, but he never submitted Naegele's Denticare application or premium to the insurer. On or about May 1, 1992, Naegele attempted to use Denticare to pay for dental services and was informed that he was not covered by Denticare. He telephoned the Respondent several times and left messages on an answering machine but none were returned. He then telephoned Denticare, and it was confirmed that Naegele was not covered. Denticare offered to telephone the Respondent to resolve the matter. Soon after telephoning Denticare, Naegele got a telephone call from the Respondent, who offered to refund Naegele's $104. Within a few days, Naegele received the Respondent's check for the refund. Under the Respondent's agency contract with Denticare, the Respondent was not authorized to charge a policy fee. The Respondent's commission for Denticare policies was to be paid by Denticare out of the initial premium. Although the contract allowed the agent to ask for additional compensation, the Respondent did not do so, and Denticare would not have allowed him to charge a $15 policy fee. Under the Respondent's contract with Denticare, the Respondent was to promptly submit applications and premiums received from insureds. If Denticare received an application and premium by the 20th of the month, coverage would be effective on the 1st of the following month. If the Respondent had timely submitted their applications and premiums, both Gamse and Naegele would have had coverage by May 1, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order revoking the license of the Respondent, Brian Craig Parker, to act as a health or life insurance agent in the State of Florida. RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 23rd day of February, 1994. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Brian Craig Parker 4004 Bainwood Court Tampa, Florida 33614 Brian Craig Parker 15713 Woodcock Place Tampa, Florida 33624 Tom Gallagher State Treasurer & Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 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 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether Respondent's dental laboratory license should be suspended, revoked or otherwise disciplined.
Findings Of Fact Respondent, W.P. Dental Lab, is a licensed dental laboratory in the State of Florida, holding license number DL 000936. Wendell Cook is co-owner of and operates W.P. Dental Lab. The lab is located in the backyard of Mr. Cook's residence, at 457 Cain Street, Crestview, Florida. On November 8, 1989, and February 8, 1990, the lab was inspected by DPR Investigator, Charles Wheelahan. Joan Ziel, Petitioner's expert on laboratory sanitation, accompanied Mr. Wheelahan on the February 8th inspection. The laboratory was also inspected by Doug Sims of HRS, Okaloosa County Health Unit, on November 14, 1989, and November 27, 1990. Doug Sims is also an expert in laboratory sanitation. The inspections of November 8 and 14, 1989, and February 8, 1990, revealed the following: The dental lab is operated out of a small dilapidated travel trailer. Window panes located on the front of the trailer were broken and all the window screens needed replacement. Insects and dust have ready access to the interior of the trailer. The linoleum flooring inside the trailer was not secured firmly to the floor and there were some holes in the floor. Adjacent to the trailer is Mr. Cook's aviary containing several exotic birds. The aviary is within 5 to 10 feet of the laboratory's entrance. Additionally, a large dog was allowed to run freely in the backyard where the laboratory is located. The presence of these animals adds to the already dusty conditions of the backyard. Water is supplied to the laboratory by an ordinary garden hose. There is no potable water connection and no backflow preventor. There was no running hot water in the facility. The trailer has only one sink. The sink is used for everything including sanitation and waste disposal. Waste water emptied onto the ground and was not connected to a sewer. There are no bathroom facilities in the trailer. There are bathroom facilities located in Mr. Cook's house. There was a large accumulation of trash and rubbish around the outside of the lab. Many insect and rodent harborages were present. There is no exhaust mechanism for the volume of dust particles generated by the dental lab work. The counter, chair, and floor surfaces in the facility were covered with a thick coating of bacteria harboring dust. Sterilization, sanitation, and disinfectant procedures appeared to be impossible within the trailer's environment, and Dental lab equipment was outdated, dirty, and rusty. The lack of a bathroom facility and the existence of only one sink create a condition in which contaminated items cannot be disposed of separate from uncontaminated items. Additionally, the lack of a bathroom facility and the existence of only one sink makes it impossible for an operator to cleanse either himself or his equipment after touching contaminated items and before handling uncontaminated items. Contamination control is important in the dental laboratory setting because the technician handles impressions form dental patients which have residue from the patient's saliva on them. The potential for transmission of disease is apparent. The inadequate exhaust mechanism allows bacteria-harboring dust to coat everything in the facility. Therefore, appropriate sterilization, sanitation and disinfectant procedures are almost impossible without an exhaust system that will handle the dust particles generated by the dental equipment. Additionally, the proximity of the bird aviary and dog creates a condition where bird and dog dander, mites, and bird droppings can easily access the trailer environment when adequate screening is not present. The possibility that airborne contaminants and contaminants in the dust can ultimately come in contact with a patient if proper sterile procedures or sanitary or disinfectant procedures are not followed exists and poses a real danger to the public. The only methods of sterilization used by Mr. Cook in his lab work consists of boiling the dental product in a pressure cooker and then placing the product in a plastic bag with an amount of listerine. Such sterilization procedures are not considered adequate infection control methods. The failure to use proper disinfectants and sterilization procedures constitutes a health hazard since such disinfectants are the only method which eliminates bacteria and prevents the potential for bacteria to be transmitted to someone else. The inspections of W.P. Dental Lab in November, 1989, and February, 1990, clearly demonstrated that W. P. Dental Lab was not maintained in a sanitary condition. An inspection of W.P. Dental Lab on November 27, 1990, one year after the first inspection, revealed that Mr. Cook had made some minor repairs to the trailer. However, the facility still falls significantly below the common standard for reasonable sanitation. Among other things, there was still no hot water under pressure, the boiler, stove and pressure cooker were all in need of cleaning, there was still no restroom facility, several pieces of the dental equipment were rusty making cleaning difficult and the vinyl flooring had been stapled together making cleaning very difficult. Additionally, the presence of animals in the yard continues to draw flies which are a carrier of bacteria. Also, numerous brushes and other sanding devices used in dental laboratory work were caked with powder. A view of the laboratory at the conclusion of the hearing demonstrated that the surface areas of the lab had been cleaned. Grit could still be felt on the surfaces of the counter tops and there were obvious signs of mildew and a distinct musty odor. In essence, the laboratory was clean, but not sanitary. Of greatest concern in this case, was the obvious lack of knowledge on Mr. Cook's part of current methods of sanitation including the appropriate products, equipment and procedures. Such products and equipment are presently available and in use in the community. Because of this lack of knowledge, the laboratory poses a potentially dangerous health hazard to the public with no assurance that the hazard will be corrected or eliminated. Therefore, Respondent's license should be revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a Final Order finding that W.P. Dental Lab has violated Section 466.028(1)(v), and therefore, because of the severity of the conditions and the unlikelihood of the facility being able to be brought within compliance, revoking the Respondent's license. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of January, 1991. DIANE CLEAVINGER 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 6th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4159 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 3, 5, 6 and 7 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in the first sentence of paragraph 1 of Respondent's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraph 4 of Respondent's Proposed Findings of Fact are immaterial. The facts contained in paragraphs 2, 8 and 9 of Respondent's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 William Buckhalt Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Wendell Cook
Findings Of Fact Background Petitioner, Richard Alan Cohen, sat for the dental licensure examination in December 1992 and received an overall score of 2.98 for the clinical portion of that examination. The minimal passing score for the clinical portion of the examination was 3.0. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 01, 05 and 06. Respondent rejected petitioner's challenge, and petitioner filed a timely request for a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest respondent's grading of those procedures. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05. The examination procedure During the course of the examination at issue, the candidates were called upon to exhibit, with regard to procedure 06, certain manual skills relevant to an endodonic procedure. Specifically, the candidate was required to prepare a tooth, which had been extracted and mounted in a mold, for what is commonly called a "root canal." Preparing for the procedure included the cleaning and shaping of the interior of both root canals from each apex (the tip of the root) up to the access area near the crown (top) of the tooth. Thereafter, sealant was to be sprayed into the canal, and gutta percha condensed (compressed) in the canal until it was completely filled. The goal of the procedure was to get a seal within one half to one millimeter of the apex, and to fill the canal so there were no voids. The quality of a candidate's performance on the procedure was graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, a grade of "4" represented a better than minimally acceptable dental procedure, and a grade of "5" represented an outstanding dental procedure. See, Rule 61F5-2.013, Florida Administrative Code. Petitioner's examination results Petitioner received a grade of 3.66 for procedure 06, based on scores of 3, 3, and 5 from the individual examiners. Although a passing score on procedure 06, petitioner's overall score on the clinical part of the examination was 2.98; a score below the minimum 3.00 required to pass that portion of the examination. According to the grade sheets, the two examiners who assigned petitioner a grade of 3 observed that petitioner failed to properly fill the canal spaces with gutta percha. In the opinion of the one examiner who testified at the hearing, such observation was based on his examination of an x-ray (petitioner's exhibit 1D) which reflected that the canal was filled beyond the apex and there appeared to be some spacing between the wall of the canal and the filling material. A review of the examination results At hearing, the proof demonstrated that the quality of petitioner's performance on that portion of procedure 06 pertinent to this case is aptly reflected on the x-ray marked as petitioner's exhibit 1D. That x-ray reflects, with regard to one of the canals petitioner filled, what is either a void or filling material beyond the apex of the root. Either event evidences a failure to properly fill the canal space, and warrants a grade of less than 5. Here, petitioner contends he should be awarded a grade of 4 for the procedure. The proof fails, however, to support his contention. If the image reflected by the x-ray is gutta percha beyond the apex, petitioner's performance on the procedure would not meet minimally acceptable dental standards and would merit a failing grade. If on the other hand, the material extending beyond the apex is sealant or the image reflected by the x-ray is a void, the procedure was acceptable, but warranted a grade of less than 5. Under such circumstances, it is concluded that the proof fails to demonstrate that the grades of 3 accorded petitioner were baseless, lacking in reason or that in deriving such grades the examiners departed from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1994. Hearings 1550 Hearings 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 22nd day of February
The Issue This is a license discipline case in which the Respondent has been charged in a Corrected Administrative Complaint with a violation of Section 466.028(1)(m), Florida Statutes.
Findings Of Fact At all times material to this proceeding, the Respondent, Dr. Merle N. Jacobs, has been licensed to practice dentistry in the State of Florida. He currently holds license number DN 0005940. During the period from January 22, 1993, through March 27, 1995, T. C. was a patient of the Respondent. During that period of time, the Respondent performed various dental services for T. C., including the making and fitting of a partial denture. The Respondent prepared and kept dental records and medical history records of his care of patient T. C. The Respondent's records of such care are sufficient to comply with all relevant statutory requirements. The Respondent's records of such care do not include any notations specifically identified or captioned as a treatment plan. The records do, however, include marginal notes of the course of treatment the Respondent intended to follow in his care of patient T. C. Those marginal notes describe the treatment the Respondent planned to provide to patient T. C.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this day of May, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1998.
