The Issue The issues to be determined are whether Respondent violated the applicable standards of care in the practice of dentistry in violation of section 466.028(1)(x), Florida Statutes, and the dental record-keeping requirements in violation of section 466.028(1)(m) and (mm), and Florida Administrative Code Rule 64B5-17.002(1), as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Stipulated Facts At all times material hereto Respondent was and is a duly licensed dentist within the State of Florida, having been issued license number DN 18478. Respondent has no disciplinary history or record of any adverse dental incident in the State of Florida apart from the instant pending matter. Respondent’s current address of record is 8750 Perimeter Park Boulevard, Suite 101, Jacksonville, Florida 32216. Previously, Respondent’s address of record was 978 Mineral Creek Drive, Jacksonville, Florida 32225. On or about November 27, 2017, Patient I.D. presented to Respondent for an implant consultation in the area of tooth 19. Patient I.D. had tooth 19 extracted by another provider approximately six months prior to presenting to Respondent for implant consultation. On or about November 27, 2017, Patient I.D. signed a General Dentistry Informed Consent form in the office of Respondent. On or about December 11, 2017, Patient I.D. returned to Respondent for placement of an implant in the area of tooth 19. On or about December 11, 2017, Patient I.D. initialed and signed a four- page form entitled Consent Form: Dental Implant(s) for Tooth #19. On or about December 11, 2017, Respondent placed an implant in the area of tooth 19. On or about December 11, 2017, Respondent’s dental assistant took radiographs prior to, during, and after the implant placement procedure. Additional Evidentiary Findings The Administrative Complaint The Administrative Complaint identified the following as the factual bases for its determination in Count One that Respondent departed from the minimum standards of performance in the diagnosis and treatment of Patient I.D.: By failing to utilize an appropriately sized implant by placing an implant which was too small for Patient I.D.’s ridge; By failing to place the implant in the correct location by placing the implant in the distal root socket in the area of tooth 19, and therefore too far from adjacent tooth 20; By failing to place the implant at an angle that would allow the implant to be restored and/or limit stress on the implant by placing the implant at a high angle; and/or, By failing to obtain a post-operative radiograph to assess the final position of the placed implant. The Administrative Complaint identified the following as the factual basis for its determination in Count Two that Respondent failed to keep written dental records and medical history records justifying the course of treatment of Patient I.D.: Respondent has failed to maintain records ... by failing to document the measurements of Patient I.D.’s edentulous site in the area of tooth 19 prior to placing an implant in that area. Implants Implants are used to anchor dentures in bone to replace a tooth or teeth. The implant consists of three parts: the implant, which is essentially a device that screws into bone at the location of the missing tooth; the abutment, which is attached to the implant with a hexed screw and locked into place, and which provides a post for the final restoration; and the final restoration, or crown. Implant sizing is a recommendation based on the amount of bone available at the location of the missing tooth. The bone is below the gum, and not directly visible. To determine the amount of bone, a dentist typically uses a periapical radiograph and a clinical exam on the patient. The clinical exam may include palpation of the jaw in the area of the proposed implant, and a measurement using a calibrated probe to measure across and between the teeth. The radiograph also provides information as to the location of any nerve structures below the tooth. Those measurements establish the “box to work in.” Standards applicable to dental implant placement call for there to be a minimum of two millimeters of bone surrounding the implant. In addition, there should be a minimum of two millimeters of space between the end of the implant and any nerves running through the jaw. Those measurements establish the maximum size of the implant that can be safely placed. The human jaw is akin to a hinged nutcracker, with the greatest force being exerted close to the temporal mandibular joint at the back of the mouth (the “hinge”), with molars exerting as much as 200 pounds of force, and less force being exerted by the incisors, with the pre-molars being somewhere in between. Tooth 19 is a molar. In general, smaller diameter implants are suitable for replacement of incisors, where the ridge of bone is thinner and the stress exerted on the implant is less, and larger diameter implants are suitable for replacement of molars, where the ridge of bone is thicker and the stress exerted on the implant is greater. Osseointegration is the process by which bone biologically bonds to the titanium implant, anchoring it into place. Larger diameter implants not only provide greater mechanical stability from the threads screwing into the bone, but provide more surface area for osseointegration of the implant. The greater weight of the evidence established that, although larger implants are preferable, implants of four millimeters or greater are considered to be “wide body” implants and are suitable for the replacement of molars. Selection of the Implant When Patient I.D. presented at Respondent’s office on November 27, 2017, Respondent took Patient I.D.’s medical history. The documentation was complete, but for an identification of whether Patient I.D. was taking prescription medications and, if so, the identification of those medications. When Patient I.D. was ready for her consultation, Respondent began by palpating the ridge of Patient I.D.’s lower jaw in the area of tooth 19 to measure the width of bone. There were no obvious cavitations in the bone. Respondent also used a calibrated periodontal probe to determine the mesiodistal distance, i.e., the space between tooth 18 and tooth 20; the buccal/lingual width, i.e., the width of the bone from the buccal (cheek) side to the lingual (tongue) side; and the height of the ridge. She determined that Patient I.D. had nine millimeters of bone width. Those measurements provided sufficient information to guide Respondent in her decision on the size of the implant. However, the measurements were not recorded in Patient I.D.’s chart. Respondent had several periapical radiographs of Patient I.D.’s teeth, including the area around tooth 19, taken prior to I.D.’s consultation. The radiographs were sufficient to show the bone, the mesiodistal width, and the location of the inferior alveolar nerve (“IAN”) underneath tooth 18. The trajectory of the IAN in that area of the jaw is known, so there was no need to take additional radiographs to determine its location at tooth 19. Respondent did not believe that, after her physical measurements, she needed additional imaging. Her belief was substantiated by the testimony of Dr. Matranga, which is credited. The evidence was not sufficient to demonstrate that her decision to forego additional imaging was a violation of the dental standard of performance or care. The IAN ran along Patient I.D.’s posterior mandible about 15 to 16 millimeters from the top of the ridge. Thus, the longest implant suitable while maintaining two millimeters of bone between the implant and the IAN would have been 13 millimeters in length. To maintain a minimum of two millimeters of bone surrounding the implant, the largest diameter implant suitable for Patient I.D. would have been five millimeters in diameter, i.e., nine millimeters minus two millimeters on each side. Respondent originally intended to install a five-millimeter by 11.5-millimeter implant in Patient I.D.’s mouth. Because of difficulty in accessing Patient I.D.’s mouth, and the obstacle to inserting a longer drill into the limited space, she modified her plan to the placement of a 4.2-millimeter by eight-millimeter implant. During the course of placing the implant, a 4.2-millimeter by 10-millimeter implant was substituted for the 4.2-millimeter by eight-millimeter implant. The implant diameter was smaller than the maximum allowable 5 millimeters but, at 4.2 millimeters, not dramatically so. There is little difference in survivability between a 4.2-millimeter implant and a five-millimeter implant. An implant of 5.7 millimeters in diameter, as recommended by Dr. Kinzler, could not have been accommodated in the nine millimeters of bone width while maintaining two millimeters of bone on each side. In implant dentistry, the width of the implant is more important than its length. The evidence established that an implant length of between 9 and 14 millimeters is suitable for replacement of a molar in the posterior mandible. The evidence further established that an implant of 10 millimeters in length was suitable for the replacement of Patient I.D.’s tooth 19. The evidence, taken as a whole and given its appropriate weight, does not support a finding that Respondent departed from the minimum standards of performance in the diagnosis and treatment of Patient I.D. by selecting a 4.2 millimeter by 10-millimeter implant for placement at Patient I.D.’s tooth 19. Placement of the Implant When Patient I.D. presented on December 11, 2017, for placement of the implant, she completed a comprehensive informed consent form for the implant. Dental procedures are not a perfect science, and a procedure can “fail” without a violation of any standard of care. The consent form fully disclosed that placement of an implant came with risks of failure. Though an informed consent does not create a defense to a violation of the standard of care, it establishes both a recognition and acceptance of the risks, and authorization for a provider to proceed in light of the risk. Patient I.D. consented to the procedure and executed consent forms supplied and maintained by Respondent. The furcation bone is the area of mature bone between the roots of a molar. When a molar is extracted, it leaves a void where the roots were removed. Bone will eventually grow into the voids left by the roots, but that bone is, for a substantial period, softer “immature” bone. The length of time for the replacement bone to mature was not defined, but is longer than six months. The furcation bone at Patient I.D.’s tooth 19 was about 4.4 millimeters wide. The selection of the 4.2 millimeter in diameter implant allowed for it to be placed in the furcation bone with some bone around it, though it was a narrow window. Use of a 5.7 millimeter in diameter implant, though having more surface area, would have obliterated the furcation bone. Patient I.D. had difficulty in opening her mouth wide, or for any appreciable length of time. A typical person can open their mouth to 35 millimeters. Patient I.D. could open her mouth to a maximum of 25 millimeters. Thus, there was little space to work in Patient I.D.’s mouth. Patient I.D. could not tolerate keeping her mouth open for much more than a minute or two. In typical dental procedures, a patient is provided with a “bite block,” which allows the patient to keep their mouth open while relaxing the jaw. Bite blocks come in three sizes -- adult, small, and pediatric. Patient I.D. could not even tolerate a pediatric bite block. During Patient I.D.’s implant procedure, Respondent would often get staged and ready to work, only to be stopped by Patient I.D.’s complaint and need to close her mouth. As stated by Dr. Kinzler, “Respondent had a tough time with this patient.” Respondent drilled a “pilot” hole into Patient I.D.’s furcation bone, followed by an eight-millimeter hole to the depth required for the planned implant. She was hampered in her drilling by the teeth above tooth 19 due to Patient I.D.’s inability to open her mouth wide. Respondent then attempted to place a 4.2 millimeter by eight-millimeter implant. That implant proved to be insufficient to fully engage with the furcation bone. It was, in the words of Dr. Kinzler, a “spinner.” Respondent then decided to move up to a 4.2 millimeter by 10-millimeter implant. The evidence established that, under the circumstances, the use of a 4.2 millimeter by 10-millimeter implant was appropriate at the tooth 19 location. But for the overtightening of the implant as discussed herein, there was no evidence that the implant could not have been successfully placed in its intended position. Thus, the Department failed to prove, by clear and convincing evidence, that Respondent failed to utilize an appropriately sized implant by placing an implant which was too small for Patient I.D.’s ridge in violation of the established dental standard of care. Respondent drilled to accommodate the additional two millimeters of length, but Patient I.D. was tiring quickly. However, Patient I.D. was goal oriented, and wanted to proceed. Respondent then placed the implant with a hand wrench. The implant went into the drilled space in the furcation bone, and appeared to be holding in a generally vertical position along the axial line. An x-ray taken during the procedure showed the implant and the attached driver to be in a perfect position in the furcation zone. As Respondent was placing the implant, it was her intent to provide as secure a placement of the implant into the furcation bone as possible. The implant was advancing vertically into the tooth 19 furcation bone as planned. Respondent then tried to screw the implant one turn too many. Bone can crack, shift, or change as a device is being tightened. As a result of the final turn of the screw, the distal wall of the furcation bone cracked, and the implant moved off center. The immature bone in the tooth 19 distal root provided a path of least resistance for the over-torqued implant, and the implant slid into that space. As the implant moved into the distal root opening, it tipped on an angle, as the top remained fixed in the mature furcation bone, and the bottom tipped towards the immature root bone. Angulation of an implant is related to the force that is placed on the implant in the future. The greater the angle, the greater the stress on the implant. Nonetheless, an implant is restorable even if it is at an angle, provided the angle is not too great. When an implant is angled, an angled abutment (analogous to a pipe elbow) is screwed into the angled implant, and forms the “core” or platform for the crown, allowing tooth surface of the crown to align properly between the adjoining teeth and the opposing teeth. An angled implant is not ideal, because the stress forces (e.g. from chewing) exerted on the implant increase with the angle. However, angled implants are not uncommon, and angled abutments are well accepted in dentistry. Their use is not, by itself, a violation of the standard of care. By use of an angled abutment, the crown for Patient I.D. would have fit evenly between tooth 18 and tooth 20. Those teeth would have provided support for the implant, and helped offset the stress from the angle. The evidence established that the tooth 19 implant was not intentionally placed in the distal root socket. The accidental overtightening of the implant which caused the furcation bone to crack was neither pled nor proven to be a violation of a dental standard of care. The Department failed to establish, by clear and convincing evidence, that Respondent failed to place the implant in the correct location by placing the implant in the distal root socket in the area of tooth 19 and, therefore, too far from adjacent tooth 20. The greater weight of the evidence established that an implant at an angle of 30 degrees or less is capable of being restored by use of an angled abutment without resulting in a failure of the implant. The calculation of the angle of the tooth 19 implant varied from 33 degrees (Dr. Kinzler), to 22 degrees (Dr. Matranga), to 25 degrees (though possibly as little as 17 to 23 degrees) (Dr. Isbell), to 15 to 24 degrees (Respondent). Each of the witnesses established their calculation by use of a protractor, either a physical protractor on a paper copy of the post-placement radiograph, or a computerized protractor on a digital image. Each had indicia of reliability, with differences seemingly based on the point of the measurement. The evidence was not clear and convincing that the angle of the implant was greater than 30 degrees. The Department did not establish, by clear and convincing evidence, that Respondent failed to place the implant at an angle that would allow the implant to be restored and/or limit stress on the implant in violation of the established dental standard of care. The implant was, in its final position, partially below the crestal ridge of Patient I.D.’s mandible. Since the implant was at an angle, the top of the implant at the distal edge was at the crest of the bone, and the top of the implant at the mesial edge was slightly below the crest. Though not an ideal situation, the evidence was not clear and convincing that the subcrestal location at which the implant ended up was a violation of the dental standard of performance or care. Respondent’s records for Patient I.D. include several radiographic images of the implant as it was being screwed into the furcation bone, and in its final, angled position. The evidence was persuasive that the operative and post-operative radiographs were sufficient to assess the final position of the placed implant. The evidence was not clear and convincing that Respondent failed to obtain a post-operative radiograph to assess the final position of the placed implant. After the implant was placed, Patient I.D. was advised that the implant had gone in at an angle, but that the implant was restorable. Patient I.D. was given the option of having the implant removed, but she declined and left with the implant in place. A surgical follow-up was scheduled for December 18, 2017. However, Patient I.D.’s husband was upset at the outcome, and appeared at Respondent’s practice the next day, December 12, 2017, to obtain Patient I.D.’s file, including radiographs. Patient I.D. returned to Respondent’s practice on December 18, 2017. Due to disagreements arising at that time that are unrelated to allegations in the Administrative Complaint, no further work was performed on Patient I.D.’s implant. Patient I.D. subsequently had the implant removed by Dr. Obeid. Dr. Obeid did not testify, and his records were insufficient to establish that Respondent’s placement of the implant to replace in Patient I.D.’s tooth 19 violated any dental standard of care. Records The records created and maintained by Respondent for Patient I.D. were complete but for two items. First, Respondent’s medical history for Patient I.D. did not include the prescription medications being taken by Patient I.D. However, the medical history form was filled out by Patient I.D., not Respondent. Though Respondent could have asked Patient I.D. whether she meant to leave the prescription medication question blank, or whether it was an oversight, the question was not asked. Nonetheless, Petitioner did not allege Respondent’s medication history as a violation of any applicable standard in the Administrative Complaint. Therefore, it cannot form the basis for a violation of the statutes or rules cited in Count Two. The second deficiency in the records, and the only deficiency pled as a violation, was Respondent’s failure to record the edentulous bone measurements derived from her palpation of Patient I.D.’s posterior mandible, and the measurements derived from a calibrated dental probe. Although the evidence established that Respondent had sufficient information of the edentulous site in the area of tooth 19 to ascertain that Patient I.D. was a candidate for an implant before she placed the implant in that area, including both physical measurements and radiographic images, she did not record those physical measurements in Patient I.D.’s dental records. The purpose of dental records is to provide successor dentists with the information necessary to recreate the conditions. In general, one should put in as much detail as one can to facilitate that need. Each of the witnesses acknowledged that it would be impossible to write down everything that happens during a patient’s appointment. However, each acknowledged the importance and usefulness of the transference of information. The evidence was persuasive that information as fundamental and critical to the decision- making process as examination results, including the measurement of the implant placement site, is information necessary to recreate the pre-operative conditions of a patient, and should have been included in the dental records for Patient I.D. The Department proved by clear and convincing evidence that Respondent failed to meet the applicable dental standard of care by failing to document the measurements of Patient I.D.’s edentulous site in the area of tooth 19, although such measurements were taken prior to placing an implant in that area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing Count I of the Administrative Complaint; Determining that Respondent failed to document the physical measurements of Patient I.D.’s edentulous site in the area of tooth 19; and Imposing an administrative fine of $750. DONE AND ENTERED this 22nd day of December, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2020. COPIES FURNISHED: Linda A. McCullough, Esquire McCullough Law, PLLC Post Office Box 1222 Tavares, Florida 32778 (eServed) Ellen LeGendre Carlos, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) Gabriel Girado, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Zachary Bell, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Michael Germaine should be granted additional credit for Procedure 03-Amalgam preparation on the December 1988, dentistry examination or should be permitted to retake that portion of the examination at no additional cost.
Findings Of Fact Dr. Michael Germaine is a licensed dentist in the State of New York and has sought to be licensed as a dentist in the State of Florida. He has taken the Florida examination three times and has not passed the clinical examination. The last time Dr. Germaine took the Florida dental examination was in December 1988. The clinical portion involves the actual performance of various dental procedures on mannequin teeth and on live patients. On the December 1988, clinical examination, Germaine received an overall score of 2.97. The minimum passing score is 3.00. On Procedure 03- Amalgam preparation, Germaine received a score of 2.66. This score is the result of averaging the grades of 3, 2, and 3 given by three different examiners. During the clinical portion of the examination, a procedure is available to candidates for writing a "monitor's note." This procedure is the sole means by which a candidate may communicate with the examiners who will grade the procedures. The candidate could use this vehicle to advise the examiners about any problems or special circumstances encountered in the procedure in order to give the examiners all the information necessary to fairly and accurately grade the procedure. The process calls for the candidate to have a proctor summon a monitor who will oversee the preparation of the note and will deliver the note to the examiners. Procedure 03-Amalgam restoration involved filling a tooth with an amalgam filling after removal of a cavity. The procedure was timed. Within the allotted time, the candidate was to take an x-ray of the completed restoration. The x-ray was reviewed by the examiners. When Germaine looked at the x-ray for Procedure 03, he noticed what appeared to be excess loose amalgam lodged next to the tooth. He wanted to write a monitor's note to let the examiners know that he was aware of the excess amalgam that would be removed in the ordinary office setting. He was also concerned that the amalgam looked attached to the tooth, which would be a defect known as a gingival overhang. Dr. Germaine asked the proctor to send a monitor and then waited for the few minutes that remained of the time allotted for the procedure. When the monitor finally arrived, the time for the procedure had elapsed and for that reason the monitor did not allow Germaine to write a note. Procedure 03 was graded by three examiners. Examiner 195 gave a grade of 3, but noted on the grade sheet that there "may be loose [amalgam] at gingival margin (obvious on x-ray)." There is a place on the grader's sheet for certain "comments" to be marked if applicable to the procedure. Examiner 195 marked comments for Functional Anatomy and for Gingival Overhang. Examiner 131 awarded 2 points for the procedure and marked comments for Contact and for Gingival Overhang. Examiner 133 awarded 3 points and marked comments for Functional Anatomy and Margin. Dr. Theodore Simkin, accepted as an expert in dentistry, is an experienced examiner and has served DPR as a consultant doing grade reviews. Dr. Simkin acknowledges that Germaine should have been able to write a monitor's note, but such a note should not have changed the grading. Procedure 03 is a patient procedure and as such, examiners are only permitted to grade on what they see in the patient's mouth. The x-rays would only have served to alert the examiners to check the interproximal to see if the amalgam shown on the x-ray was gingival overhang or excess, loose amalgam. If the x-rays had been relied on for grading purposes, the grade would have been zero (0) because the x-rays show excess gingival overhang. Any gingival overhang which was as excessive as appeared on the x-ray would have mandated a grade of zero (0) as explained on the grading sheets of each examiner. Since a grade of zero was not given, it is apparent that the examiners thought the excessive amalgam shown on the x-ray was neither gross nor attached. That Examiner 195 was aware of the loose amalgam between the teeth is obvious from the grade sheet and from an Examiner to Monitor Instruction which went back to Germaine after grading. The instruction was to have the candidate remove the amalgam interproximal (between the teeth). Gross gingival overhang cannot be simply removed like loose amalgam can be removed. Even being aware of the loose amalgam, Examiner 195 still gave Germaine a passing grade of 3. Dr. Germaine maintains that the examiners were biased because they looked at the x-ray without having the benefit of the monitor's note which he was not allowed to write. The assertion is not supported by the competent, substantial evidence, but is instead based on speculation and assumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Professional Regulation enter a Final Order dismissing the petition filed by Michael Germaine and denying him licensure as a dentist in the State of Florida. DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 28th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3899 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 Petitioner, Michael Germaine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3(2); 4-6(4-6); 7 first sentence (7); and 9(8). Proposed findings of fact 2 and 11 are unnecessary. Proposed findings of fact 7 second sentence, 12, 16, 17, and 20 are unsupported by the competent, substantial evidence. Proposed findings of fact 8, 13, and 14 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 10, 15, 18, and 19 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3). Proposed finding of fact 2 is unnecessary. Proposed finding of fact 3 is a mere summary of testimony and is not a proposed finding of fact. Copies furnished: Michael J. Cherniga Attorney at Law Post Office Drawer 1838 Tallahassee, FL 32301 Vytas J. Urba Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent filed Exceptions to the Hearing Officer's Recommended Findings of Fact. These exceptions were numbered 6 through 30 with numerous subparts. The numbered exceptions do not deal with individual findings and for the most part merely assert that various recommended facts are inconsistent with other evidence and testimony in the record, but not cited by the Hearing Officer. Although the Board discussed and considered each exception, because of the format in which the exceptions were filed, it was impossible for the Board to vote on each numbered exception individually. However, the Board did find that the Hearing Officer's Recommended Findings of Fact are supported by competent substantial evidence and Respondent's assertions regarding internal inconsistency and conflict with other evidence and testimony in the record do not meet the requirements of Section 120.57(1)(b)10., Florida Statutes, for rejecting the Hearing Officer's Recommended Findings of Fact. Therefore, Respondent's exceptions to the Recommended Findings of Fact are rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of Counts II, III and VI of the Administrative Complaint and not guilty of Counts IV and V of the Administrative Complaint. It is further recommended that such final order imposes an administrative fine of $6,000.00 against respondent, and suspend his license for a term of two (2) years, followed by a term of probation of eight (8) years, subject to such terms and conditions as the board may specify, including the requirement that respondent be personally attended by a third person at all times he is treating female patients. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of January 1992. WILLIAM J. KENDRICK 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 January 1992.
The Issue Whether Petitioner's proposed treatment, fluoroscopic radiofrequency thermoneurolysis, is experimental.
Findings Of Fact Petitioner, Douglas J. Phillips, Jr., D.D.S. (Dr. Phillips), is a licensed dentist in the State of Florida. Sometime in January, 1993, Dr. Phillips proposed using the procedure, fluoroscopic radiofrequency thermoneurolysis to treat a patient. This procedure involves destruction of tissue by the application of high heat, at approximately two hundred degrees Fahrenheit. A probe or cannula (insulated needle) is placed through skin, subcutaneous tissue and muscle to reach into where the tendon or ligament inserts to the bone or to where there is a small nerve root. An electrode goes through the insulated needle. Heat is then applied at approximately two hundred degrees. The treatment causes a small scar on the bone or destroys the nerve. The purpose of the procedure is to treat head and facial pain. The patient has been diagnosed with the degeneration of the temporomandibular joint on the left side, advanced degenerative osteoarthritis, and fibrous ankylosis with osteroarthritis of the left temporomandibular joint. She experiences head and facial pain. Dr. Phillips had performed fluoroscopic radiofrequency thermoneurolysis on the patient in September, 1991. CIGNA approved and paid for the procedure. The patient experienced relief from the pain for almost two years after the procedure was done. The patient is now experiencing pain again, and Dr. Phillips proposes to treat her again with fluoroscopic radiofrequency thermoneurolysis. By letter dated January 29, 1993, Intervenor CIGNA, informed Dr. Phillips that his request to perform the proposed treatment was not authorized. CIGNA'S basis for denial of approval was that the procedure was experimental and was not recognized by the American Dental Association. On or about August 27, 1993, Dr. Phillips requested that Respondent, the Department of Labor and Employment Security, Division of Workers' Compensation (Division), review the procedure pursuant to Section 440.13(1)(d), Florida Statutes (1993) and Rule 38F-7.0201, Florida Administrative Code. On November 22, 1993, the Division issued a determination that fluoroscopic radiofrequency thermoneurolysis was experimental. Dr. Phillips was taught the proposed procedure eight years ago by Dr. Ernst, a dental practitioner in Alabama. Dr. Phillips spent four days observing Dr. Ernst in Dr. Ernst's office and one week of training in a hospital under the direction of Dr. Ernst. The first procedure performed by Dr. Phillips was two years after his training with Dr. Ernst. Prior to performing the procedure, Dr. Phillips also attended a one hour lecture on the procedure given by another dentist. No other dentist in Florida practices this procedure. The American Dental Association has not endorsed the procedure. Radiofrequency thermoneurolysis is not on the American Dental Association's list of approved dental therapeutic modalities. It is not taught in any dental school or school of oral surgery. Dr. Phillips is not aware of any mention of the proposed procedure in any dental or oral surgical textbooks. Only four other dentists in the United States practice this procedure. There is no published written protocol regarding this procedure except for an article written by Dr. Wilk, which consists of a two paragraph treatment of the subject. Fluoroscopic radiofrequency thermoneurolysis is not listed in the American Dental Association's Current Dental Terminology, nor does the proposed treatment have a code assigned to it. Donna M. Reynolds is a supervisor of the policy section in the Rehabilitation and Medical Services Unit of the Division. When she received the request from Dr. Phillips to review the proposed procedure, she contacted three consultants for the Division: Dr. Richard Joseph, Dr. Martin Lebowitz and Dr. Davis. She received responses from Drs. Joseph and Lebowitz indicating that they considered the procedure to be experimental. Dr. Davis did not respond to her request. Dr. Joseph is a board certified oral and maxillofacial surgeon. When asked by the Division to review the proposed treatment, he reviewed all the documentation submitted by the Division, which included the documentation that Dr. Phillips had submitted in support of his request. Dr. Joseph also did a medline search. Medline is a computerized medical library search that is commonly performed by physicians to research or review all of the current medical literature. The medline search of 301,000 articles revealed only two or three articles relating to the use of radiofrequency thermoneurolysis. Dr. Joseph also consulted with Dr. Gremillion, the chairman of the Department of Facial Pain at the University of Florida, College of Dentistry. Based on his research, Dr. Joseph opined that the proposed procedure was experimental. It was Dr. Joseph's opinion that radiofrequency thermoneurolysis was outside the practice parameters in the general practice of dentistry. Dr. Lebowitz, an oral and maxillofacial surgeon and former co-director of the Facial Pain Clinic at the University of Florida, reviewed the documentation sent by the Division with its request to review the proposed treatment. The documentation included articles which had been supplied by Dr. Phillips to the Division. It was Dr. Lebowitz's opinion that none of the articles submitted by Dr. Phillips were scientifically acceptable based on the lack of blind studies, the quantity of patients being studied, and the lack of studies performed in different locations. In researching the issue, Dr. Lebowitz contacted Dr. Jim Ruskin, the head of the residency program in the Oral Maxillofacial Surgery Department at the College of Dentistry, University of Florida. Dr. Ruskin is considered a world authority on the management of facial pain. Dr. Lebowitz also spoke with Dr. John Gregg, a Virginia dental practitioner who previously ran the facial pain clinic at Chapel Hill at the University of North Carolina. Additionally, Dr. Lebowitz spoke with Dr. Castellano, an oral and maxillofacial surgeon in Tampa, Florida. Based on his research, Dr. Lebowitz concluded that radiofrequency thermoneurolysis was experimental. Dr. John Roland Westine is board certified in oral maxillofacial surgery and is a licensed dentist. He has studied the use of electrical energy in destroying tissue and has used electro-surgical equipment for thirty years. Dr. Westine is familiar with radiofrequency thermoneurolysis. Prior to the final hearing, he had reviewed the records of forty patients who had been treated with radiofrequency thermoneurolysis. It was his opinion that the proposed procedure was not safe and could cause the following problems: irreparable damage to vision, stroke, motor deficiencies, damage to facial nerves, nerve deficits, sensory deficits, abscess formations and parotid fistulas. Based on the preponderance of the evidence, Dr. Phillips has not demonstrated that the fluoroscopic radiofrequency thermoneurolysis is widely accepted by the practicing peer group, that the procedure is based on scientific criteria, or that the procedure is reasonably safe. Radiofrequency thermoneurolysis, including fluoroscopic radiofrequency thermoneurolysis, is an experimental procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that fluoroscopic radiofrequency thermoneurolysis is experimental and denying approval for the procedure. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-762 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Petitioner did not designate which portion of his proposed recommended order contained the proposed findings of fact and which portion contained the proposed conclusions of law; thus, I am unable to address the paragraphs which Petitioner may contend are his proposed findings of fact. Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraphs 6-7: Accepted that that is what the statutes and rule say. Paragraph 8: The first sentence is accepted in substance. The second sentence is accepted to the extent that the Division does submit the documentation to consultants. The evidence established that the proposed treatment is not for use in the aid or confirmation of a diagnosis; therefore, the Division would not be required to submit the documentation to four consultants based on Rule 38F-7.0201, F.A.C. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as constituting argument. Intervenors Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as unnecessary detail. Paragraphs 4: Accepted. Paragraph 5: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary detail. Paragraphs 8-9: Accepted to the extent that Dr. Phillips desires to use the proposed treatment. The remainder is rejected as unnecessary. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as unnecessary. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 18: Accepted in substance. Paragraph 19: The first four sentences are accepted in substance. The remaining is rejected as unnecessary. Paragraphs 20-21: Accepted in substance. Paragraphs 22-31: Rejected as unnecessary. Paragraphs 32-35: Accepted in substance. Paragraph 36: Rejected as unnecessary. Paragraphs 37-39: Accepted in substance. Paragraphs 40-41: Rejected as unnecessary. COPIES FURNISHED: Robert R. Johnson, Esquire Post Office Box 3466 West Palm Beach, Florida 33402 Michael Moore, Esquire Office of the General Counsel Department of Labor & Employment Security 2012 Capitol Circle Southeast, Suite S-307 Tallahassee, Florida 32399-2189 Nancy Lehman, Esquire Neil J. Hayes, P.A. 224 Datura Street, Suite 601 West Palm Beach, Florida 33401 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion Department of Labor and Employment Security General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (1998); Subsections 466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and Subsections 456.072(1)(bb), 466.028(1)(i), 466.028(1)(l), 466.028(1)(m), 466.028(1)(t), and 466.028(1)(x), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact At all material times to this proceeding, Dr. D'Amico was a licensed dentist within the State of Florida, having been issued license number DN 7121. From 1999 to 2000, Dr. D'Amico was practicing dentistry at Florida Dental, located at 1535 Prosperity Farms Road, Lake Park, Florida. Florida Dental was a clinical-type practice, with several general dentists and Dr. D'Amico, who was the oral surgeon. In January 2001, Dr. D'Amico and Dr. Charles McNamara entered into an agreement by which Dr. D'Amico agreed to purchase Dr. McNamara's office equipment and supplies and to sublet Dr. McNamara's office space located on Lakemont Avenue in Winter Park, Florida. Because of an extended illness, Dr. McNamara was no longer going to practice at the Lakemont Avenue office, but was going to work for another dentist. When Dr. McNamara vacated his office space, he took his patient records with him. Dr. D'Amico was not an independent contractor of Dr. McNamara's, and they did not share a practice. Dr. D'Amico did not leave any of his patients' records with Dr. McNamara. There was not an agreement between Dr. D'Amico and Dr. McNamara that Dr. McNamara would cover for any of Dr. D'Amico's patients. Dr. McNamara had difficulty with Dr. D'Amico paying the rent for the office space and with payments received by Dr. D'Amico from patients of Dr. McNamara. By September 2001, Dr. McNamara was ready to evict Dr. D'Amico from the premises. Dr. McNamara went to the Lakemont Avenue office to give Dr. D'Amico eviction papers, and Dr. D'Amico was not there. A woman was sitting at the reception desk, and it appeared that the practice was being moved. Dr. McNamara later returned to the office, and it was obvious that Dr. D'Amico was no longer practicing at the Lakemont Avenue address. In the fall of 2001, Dr. John M. Altomare was in the process of leaving his office located at 7145 East Colonial Drive, Orlando, Florida, and moving into a new office which was under construction. During the days and hours that Dr. Altomare was not in his East Colonial Drive office, he agreed to let Dr. D'Amico use the office space. Dr. D'Amico had a separate telephone line at the East Colonial Drive office. Dr. D'Amico did not see any of Dr. Altomare's patients at the East Colonial Drive office. Dr. Altomare did not agree to cover for Dr. D'Amico. The relationship between Dr. D'Amico and Dr. Altomare lasted approximately two to three months during the fall of 2001. In the early part of 2002, Dr. D'Amico associated himself with a dental group in Tampa, Florida. Dr. D'Amico failed to publish a notice in the newspaper of greatest circulation in the county where he practiced, advising his patients of the relocation of his practice, when he left Florida Dental and the East Colonial Drive office. The evidence did not establish that the East Colonial Drive office was outside the local telephone directory service of the Lakemont Avenue office. Vicki Bruno was Dr. D'Amico's office manager beginning on August 1, 2001. She filed the patient records and other information in the patients' files. The files were kept in a filing cabinet at the Lakemont Avenue office. When Dr. D'Amico left the Lakemont Avenue office, the files were removed from the office. When Dr. D'Amico starting working out of Dr. Altomare's office, Ms. Bruno was assigned a closet in which to store the files. The closet space was not adequate to store the files, and, at one time, Ms. Bruno placed the patient files in the trunk of her car. Dr. Edward Allen Rumberger testified as an expert witness for the Department. Dr. Rumberger has been licensed to practice dentistry in Florida since 1975 and is board-certified in oral surgery. He reviewed materials related to the four cases at issue, consisting of patient statements, interviews with other individuals, including a former employee, some of the medical records of the patients, and some of the x-rays related to the cases. Patient C.O. On June 20, 1999, C.O. needed to have some repair work done on his Hader bar and went to Florida Dental, where he had been treated in the past. C.O. normally dealt with another dentist, but on this particular visit, he was seen by Dr. D'Amico. C.O. had four implants in his upper mouth. Dr. D'Amico advised C.O. that he did not have enough support for the implants and that he needed to have two pins inserted, at a cost of $1,000 per pin. As Dr. D'Amico began working on C.O., he advised C.O. that the other implants were infected. C.O. was the last patient to leave Florida Dental on June 20, 1999. After Dr. D'Amico finished his work on C.O., he asked C.O. for a check for $5,300 for the work he had done. C.O., groggy from the anesthesia, wrote a check to Florida Dental and gave it to Dr. D'Amico. C.O. returned to Florida Dental for several more visits after his initial treatment by Dr. D'Amico. Dr. D'Amico removed all of C.O.'s original implants and put in new implants. The new implants became infected and had to be removed. The site of the implants had to be débrided. Several weeks after the débridment procedure, Dr. D'Amico did a tibial harvest and grafting to the maxilla in an attempt to provide bone which would support an implant. After C.O.'s last visit with Dr. D'Amico, C.O. experienced pain, infection, and swelling. Dr. D'Amico had given C.O. several telephone numbers at which C.O. could reach him. C.O. called the telephone numbers that Dr. D'Amico had given him, but he could not reach Dr. D'Amico at any of the numbers called. Dr. D'Amico did not give C.O. the name of another dentist to call in case of an emergency. C.O. returned to Florida Dental and advised the person in charge that he needed to have something done for him. Another dentist, Dr. Castillo, was called in to attend C.O. C.O. continued to see Dr. Castillo, who was eventually able to insert three implants in C.O.'s mouth. After C.O. began treatment with Dr. Castillo, Dr. D'Amico contacted C.O. in an attempt to get C.O. to return to him for treatment. C.O. declined further treatment by Dr. D'Amico. Dr. Rumberger reviewed the medical records relating to C.O.'s treatment by Dr. D'Amico. The medical notes consisted of a brief note that five implants were placed and another note stating "Left Tibial Harvest Global Maxillary Cellular Graft." There was no mention of the type of anesthesia that was used. The records did not contain a treatment plan, which should have been done for both the implants and the tibial harvest. There is no documentation that the procedures were thoroughly discussed with C.O. or that C.O. gave informed consent for the procedures. The records do not contain a diagnosis. The x-rays in C.O.'s file were of poor quality and were unsuitable for use in forming an opinion. The records do not justify the course of treatment used by Dr. D'Amico based on the clinical examinations and x-rays of C.O. Patient J.H. On June 12, 2001, J.H. visited Dr. D'Amico at the Winter Park office, to have four lower teeth extracted. Some of the four teeth were broken and infected, causing J.H. pain. J.H. wanted to be fitted with a partial denture after the lower teeth were extracted. Dr. D'Amico extracted the four teeth on June 12, 2001, while J.H. was under sedation. An assistant was present during at least part of the procedure. On July 11, 2001, J.H. returned to see Dr. D'Amico for examination of the extraction sites and to have an impression made for a partial denture. Dr. D'Amico asked J.H. to remove his upper denture plate. Upon examination, Dr. D'Amico found some redundant soft tissue in the posterior of J.H.'s mouth. Dr. D'Amico told J.H. that the lesions may be precancerous. Dr. D'Amico excised some tissue from both sides of D.H.'s mouth. One sample was sent to a laboratory for testing, and the laboratory results indicated that the lesion was benign. Although Ms. Bruno testified that laboratory work was not being done because Dr. D'Amico was delinquent in paying for laboratory work, the tissue sample that was sent to the laboratory in July was prior to Ms. Bruno's employment with Dr. D'Amico. On July 31, 2001, J.H. returned to Dr. D'Amico's office, where Dr. D'Amico removed tissue from the anterior maxillar vestibule. The lesion in the upper area was probably an epulis fissura, which would not require a biopsy, but would require justification for removal. The tissue was removed to make the area more structurally amenable to wearing a new denture. A sample was not sent to a laboratory for testing. Ten days later, J.H. returned for a post-operative visit, complaining of pain in an area where Dr. D'Amico had excised tissue. J.H. was placed under sedation, and Dr. D'Amico reopened the incision. Dr. D'Amico removed a suture needle from the site. Tiffany Callicott, who was Dr. D'Amico's assistant, was present during the procedure and witnessed the removal of the suture needle. Dr. D'Amico did not tell J.H. that a suture needle had been left in his gum. When J.H. awoke from the anesthesia, Dr. D'Amico told J.H. that he had removed a stone. Later Ms. Callicott told J.H. that Dr. D'Amico had removed a suture needle and not a stone. J.H. had difficulty in getting Dr. D'Amico to fill out and submit insurance claims for J.H.'s dental work. He went to Dr. D'Amico's office to see about the insurance. One of Dr. D'Amico's staff gave J.H. three vials containing tissue samples which Dr. D'Amico had removed from J.H.'s mouth. J.H. took the vials to his family physician so that the samples could be sent to a laboratory. J.H. was billed for laboratory analyses for the two tissue samples that Dr. D'Amico did not send to the laboratory. He was also billed for the work that Dr. D'Amico did in removing the suture needle. Lija Scherer is a medical malpractice investigator with the Department. Part of her responsibilities, include obtaining medical records for cases which are being investigated. Ms. Scherer obtained an authorization for release of patient information from J.H. and served Dr. D'Amico with a subpoena to produce the medical records for J.H. Dr. D'Amico failed to produce the medical records. The evidence is not clear how the Department obtained the dental records for J.H., but some records were furnished by the Department to Dr. Rumberger. The medical records furnished to Dr. Rumberger consisted of two anesthesia records and a few progress notes, which were in different handwritings and were not signed or identified. Patient A.P. Dr. D'Amico provided dental treatment to A.P. in September 2001. A.P. had been advised by his regular dentist that his wisdom teeth were impacted and needed to be removed. A.P. went to the office of Dr. McNamara in Winter Park, Florida, to arrange to have the teeth extracted. When A.P. arrived at the office, he was met by Dr. D'Amico, who advised A.P. that Dr. McNamara had retired and that he was taking over the practice. A.P. agreed to allow Dr. D'Amico to treat him. On the first visit, A.P. brought a panoramic x-ray which had been taken by his general dentist. Dr. D'Amico went over the x-ray with A.P., told A.P. the procedure that he would use to extract the teeth, advised A.P. that he would have anesthesia for the procedure, and advised A.P. of the number of days needed for recovery. A.P. made an appointment with Dr. D'Amico to have his wisdom teeth removed on the Friday of the following week, September 13, 1991. S.P., A.P.'s mother, accompanied A.P. to Dr. D'Amico's office for the surgical procedure. A.P. filled out a medical history form and indicated that he was allergic to codeine. A.P. was taken to a room, which contained only a chair in which A.P. sat, a stool on which Dr. D'Amico sat, and a device by which the anesthesia was to be administered. Dr. D'Amico was accompanied by an assistant. A.P. was given anesthesia through an I.V. and went completely to sleep. Dr. D'Amico extracted the four wisdom teeth. After the surgical procedure, Dr. D'Amico's assistant gave S.P. three prescriptions for A.P. and no oral post- operative instructions.1 One of the prescriptions was a pain reliever, one was an antibiotic, and one was for inflammation. Neither A.P. nor his mother was advised that the anti-inflammation medication should be started immediately following surgery. A.P. did not have the prescriptions filled until the day after the surgery. A.P. felt that one of the medications contained codeine, and he did not take that medication. The evidence does not establish that codeine or a medication containing codeine was actually prescribed. After the surgery, A.P. experienced discoloration on the arm in which the I.V. had been given. The arm turned a dark purple from his elbow to his wrist. A.P. was also experiencing pain in his jaw. On the Monday following the procedure, A.P. attempted to contact Dr. D'Amico by telephone. A.P.'s telephone calls were put through to an answering service. A.P. received no answer from Dr. D'Amico on Monday. The next day A.P. again called Dr. D'Amico and spoke with a woman with the answering service. He told the lady that it was an emergency and that he needed to speak to Dr. D'Amico. About ten minutes later, Dr. D'Amico returned A.P.'s telephone call. Dr. D'Amico advised A.P. to apply warm compresses to his arm and that it was normal to have pain after impacted wisdom teeth were removed. A.P. was told to call Dr. D'Amico's office and set up an appointment to see Dr. D'Amico in a week. A.P. was still in a lot of pain and tried to telephone Dr. D'Amico again on Wednesday and Thursday. He was unsuccessful in reaching the doctor. A.P. left messages with the answering service, but Dr. D'Amico did not respond. On Friday, September 20, 2001, A.P. again tried to telephone Dr. D'Amico. This time he was unable to reach either Dr. D'Amico or the answering service. By September 20, 2001, S.P. became frustrated with the lack of response from Dr. D'Amico to A.P.'s attempts to contact him. S.P. went back to the office where the surgery had been performed, and the office was closed. Dr. D'Amico had advised her that he would be moving his office, so she also went to the location where the office was to be moved, but that office was also closed. She left a letter marked "urgent" at both offices. The letter stated that she and her son had been unable to contact Dr. D'Amico and that her son needed to be checked because he was still in pain and his arm was swollen at the site of the I.V. injection. In the letter, S.P. listed four telephone numbers by which either she or her son could be reached. Neither A.P. nor S.P. received any response from Dr. D'Amico. S.P. called another dentist, Dr. Andre Buchs, and requested that he see A.P. Dr. Buchs, who is board-certified in oral and maxillofacial surgery, saw A.P. on September 21, 2001. Dr. Buchs diagnosed possible phlebitis of the right arm secondary to the intravenous sedation that A.P. had been given by Dr. D'Amico. Phlebitis is an inflammation of the inside of the vein. Dr. Buchs also examined A.P. for the severe pain that A.P. was having in his upper right jaw. He found that there was a hole or perforation in the sinus membrane so that there was a communication between the mouth and the maxillary sinus. About 85 percent of such openings will spontaneously close over a period of time. The treatment was to prevent the area from getting infected with antibiotic therapy and to observe the opening for two to three months. Dr. Buchs prescribed amoxicillin and told A.P. to apply warm compresses to his arm and to avoid anything that would aggravate the perforation. He also advised A.P. that if he was unsuccessful in locating Dr. D'Amico to come by for a follow-up visit. Dr. Buchs saw A.P. again on September 26, 2001. A.P. was doing better by the time of the follow-up visit. On October 17, 2001, A.P. again saw Dr. Buchs. At this time, the opening in the sinus cavity appeared to be closing. Dr. Buchs did see a raised firm lump on A.P.'s inner right arm, which meant that A.P. had a true phlebitis. Ms. Scherer obtained an authorization for release of patient information from A.P. and served Dr. D'Amico with a subpoena for the medical records of A.P. Dr. D'Amico failed to produce the medical records. Thus, there are no medical records available to document the course of treatment for A.P. Patient M.F. M.F. saw an advertisement in her local newspaper that Dr. D'Amico, a maxillofacial surgeon, was associated with Florida Dental. M.F. had been experiencing discomfort with her set of dentures that was not functioning properly. She felt that implants might be a better solution to her problems and that a maxillofacial surgeon could perform the procedure. In October 1999, she went to see Dr. D'Amico for a consultation. Dr. D'Amico explained that he would place six implants into her upper gum ridge and that it would take approximately four months to complete the process. Dr. D'Amico described the steps in the procedure. A week later M.F. returned to Dr. D'Amico to begin the procedure. After the implants were inserted, M.F. began a waiting period to see if the implants would be rejected. She did have pain with two of the implants, and Dr. D'Amico did further work on those implants, which resolved the pain. During the implant process, M.F. would wait until Dr. D'Amico called her to come in for further work. Frequently he would make an appointment with M.F. and not appear for the appointment. M.F. would go to different locations for her appointments with Dr. D'Amico. Some of the locations appeared to her to be dental offices and some did not. During the healing process, Dr. D'Amico placed healing columns in the implants. Impressions were made for temporary teeth. M.F. wore the temporary teeth until permanent teeth could be made. During one session in which Dr. D'Amico was making an impression for her permanent teeth, he broke one of the front teeth on the temporary set. Dr. D'Amico told M.F. that she could get some Crazy Glue and repair the tooth. M.F. tried to repair the tooth with Crazy Glue, but it would not hold. Thus, M.F. had a missing front tooth for three or four months. After Dr. D'Amico had fitted M.F. with temporary teeth, he told her that he was going to move his dental practice to Boynton Beach. She did not hear from Dr. D'Amico for approximately three or four months. M.F. went to Boynton Beach to look for him, but was unsuccessful in locating him. Dr. D'Amico finally called M.F. and set up an appointment in Winter Park to finish placing the permanent teeth. She went to the appointment. According to M.F., when Dr. D'Amico placed the permanent teeth in her mouth, the teeth did not fit. There was one central incisor in front, and the second incisor was placed to the side. M.F. complained that the upper and lower teeth on both sides did not touch, resulting in difficulty in chewing. The permanent teeth were a different color from her natural lower teeth. Dr. Rumberger opined that the provision of permanent teeth was beyond Dr. D'Amico's expertise and that Dr. D'Amico should have referred M.F. to another dentist for that procedure. In an attempt to get better articulation between the upper and lower teeth, Dr. D'Amico filed a cap on her lower teeth. The cap had been placed by another dentist. In filing the cap, Dr. D'Amico exposed the metal. He did not offer to repair the cap. Dr. Rumberger did not give an opinion on whether the filing of the cap was below the standard of care. His comment was, "That can happen." Dr. D'Amico told M.F. to try wearing the permanent teeth for two weeks. After the two weeks had passed, M.F. called Dr. D'Amico's office. She was told by the person answering the telephone that Dr. D'Amico would return her call, but he did not. Several months passed before Dr. D'Amico contacted M.F. to come in so that the permanent teeth could be cemented in place. At this time, five of the implants had permanent abutments, but one implant still had a temporary abutment. Dr. D'Amico was going to cement the teeth without replacing the temporary abutment with a permanent abutment. M.F. would not allow him to cement the teeth in place without all the permanent abutments inserted. Dr. D'Amico moved his practice again. M.F. could not locate him and wanted to have the work finished. M.F. had paid Dr. D'Amico in full, approximately $20,000, for the work prior to the work being finished. She had the implant work finished by another dentist at a cost of $9,000. M.F. brought a legal action against Dr. D'Amico to recover her money. The medical records of M.F., which were provided to Dr. Rumberger for his review, were minimal and illegible. There was no mention of a study model being used or that there was a pre-op consultation with a dentist who would construct the permanent teeth. The medical records for M.F. were inadequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. D'Amico violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (1998); Subsections 466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and Subsections 466.028(1)(i), 466.028(1)(l), 466.028(1)(m), 466.028(1)(t), 466.028(1)(x), and 456.072(1)(bb), Florida Statutes (2001). It is further recommended that Dr. D'Amico's license be revoked. DONE AND ENTERED this 23rd day of July, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2004.
The Issue The issues for determination are whether Respondent violated the provisions of Section 466.028, F.S. (1981), as alleged, and whether a delay in investigation and processing the administrative complaint resulted in such prejudice as to warrant dismissing the complaint.
Findings Of Fact Based on the evidence of record and Respondent's admissions dated August 29, 1988, the following facts are found: Bert Ong, D.M.D. is licensed as a dentist in the State of Florida, having been issued license #DN 0006246. Dr. Ong graduated in dentistry from the University of the East in Manila, Philippines, in 1964. He immediately left for the United States and between then and 1974, when he was first licensed in Florida, he attended the University of Pittsburgh, and worked as a doorman, a dental assistant, a dental researcher, and medical records clerk. Dr. Ong has an active general dentistry practice at 4435 Curry Ford Road, Orlando, Florida. Margaret Antonette, previously known as Margaret Tyre or Margaret Harp (due to marriage), became a dental patient of Dr. William Branham at a clinic in Longwood, Florida in January 1981. In the course of his examinations, Dr. Branham took some x-rays, prepared study models, and did periodontal probings of Ms. Antonette's teeth. Those probings, for the purpose of determining the depth of pockets between a patient's gums and teeth, are recorded on Dr. Branham's chart. Healthy gums generally have pockets of three millimeters or less. Dr. Branham found pockets in Ms. Antonette's upper teeth ranging from two millimeters to eight millimeters (one eight, several sixes and two sevens). Dr. Branham refers patients to a periodontal specialist when depths exceed five millimeters. He referred Ms. Antonette to periodontist, Robert Ferris, D.D.S. as he wanted to have her periodontal condition evaluate prior to doing restorative work that she needed. Dr. Ferris diagnosed Ms. Antonette as having chronic periodontitis on September 1, 1981. He outlined a treatment plan and gave her an estimate of his fee. She did not follow up on that treatment, but instead went to Dr. Ong, because a friend told her he could do both her crowns and bridges and the periodontal surgery. Margaret Antonette's first visit to Dr. Ong was on February 16, 1982. She had a badly infected upper tooth and was in misery. She told Dr. Ong that she had recently been told by Dr. Ferris that she needed periodontal surgery and that she wanted bridges and crowns. Dr. Ong assured that he could do everything she needed, that he could give her healthy gums and pretty teeth. Although Dr. Ong claims that he did periodontal probes, these are nowhere indicated on his chart, with the exception of some ambiguous ink shading on the diagram for upper tooth number six. Even for that tooth the probe depth is missing. At the first visit Dr. Ong took X-rays and made study models. On March 11, 1982, he extracted tooth number six, the one that had been infected. At the next visit on March 26, 1982, Dr. Ong did sub-gingival scaling, curettage and root planing on teeth numbers two, three, seven and eight. He also prepared those teeth for a crown by using a burr to remove the enamel and shape them. He put a temporary crown on the teeth. His chart indicates only "crown preparation and temporary", for teeth numbers seven and eight, as he forgot to note numbers two and three and he made no note of the periodontal procedures. On April 9, 1982 he performed the same procedures on teeth numbers nine, ten and eleven; and on April 15, 1982, the same procedures were performed on teeth numbers fourteen and fifteen. The chart notations for those dates list the teeth numbers and note "crown preparation and temporary". No mention is made of the periodontal procedures. Permanent crowns and bridges were cemented on Ms. Antonette's upper teeth on May 7, May 18 and June 10, 1982. June 10, 1982, was Ms. Antonette's final visit to Dr. Ong. She understood the work was finished and she was set up for a recall appointment in February 1983, eight months later. She did not return. The treatment administered to Ms. Antonette by Dr. Ong was extremely painful. At one point he prescribed Darvon and Valium to her. Within a year of her final visit she began suffering with bleeding gums. The gums became more infected and she finally consulted a periodontist in October or November 1984. Appropriate extensive periodontal surgery was completed in December 1984. The result of the subsequent periodontal treatment was a shrinking of Ms. Antonette's gums, leaving unsightly and difficult to clean gaps between her replacement teeth and the maxillary and residual ridge in her upper mouth. The crown and bridgework done by Dr. Ong needs to be replaced. Dr. Ong should have diagnosed Ms. Antonette's periodontal disease on her first visit. He was aware that she had consulted a periodontist prior to visiting him and noted this on her chart. He claims that he can remember what the periodontal probes were, even though they were not written down, because they were mostly normal. In spite of this, he performed the periodontal procedures noted above, consisting of scraping with a sharp instrument, a scaler, removing tartar and calculus buildup from the roots of the teeth and removing diseased tissue from inside the gums. These procedures may be done by a general dentist, but it is essential that the patient be recalled after one or two months in order to evaluate the results on the gums. If the gums have not healed, it is generally accepted that periodontal surgery is required and, the patient is referred to a specialist. In February 1982, Ms. Antonette's gums were not mostly normal. Both Dr. Branham and Dr. Ferris had noted severe problems. She received no treatment for those problems prior to consulting Dr. Ong, and they would not have healed on their own. At best, the gums would have stayed the same, with no further deterioration. Even assuming that Dr. Ong had initially proceeded correctly with the curettage and root planning, he failed to wait to evaluate the results of the treatment prior to commencing the replacement work. Not only was the process more painful for the patient, his failure to wait until the gums had healed caused her to have to seek subsequent periodontal treatment that rendered Dr. Ong's replacement work useless. In addition to the problems caused by Ms. Antonette's subsequent essential periodontal treatment, the crowns placed by Dr. Ong were defective as they contained open margins. This means that spaces were left under the crown, making it impossible to clean the area and accelerating the progression of the periodontal disease. Dr. Ong failed to maintain dental records to justify his course of treatment of Margaret Antonette. No mention whatsoever is made of the condition of her gums. The "periodontal condition" (transcript, p. 238) that, according to Dr. Ong, justified the subgingival scaling and curettage, was not described on the chart or in Dr. Ong's testimony. Moreover, the procedures were not recorded. Dr. Ong's diagnosis and treatment of Margaret Antonette failed to meet minimum standards when measured against generally prevailing peer performance. Petitioner's several credible expert witnesses established this fact. Dr. Ong's own witness, Charles Graham, D.D.S., conceded that Dr. Ong's standard of care was on the "low end of the scale" (Respondent's exhibit #2, p. 34), and that he could use some training. Dr. Ong's motion to dismiss is based, in part, on his claim of prejudice by a delay of approximately 26 months between Ms. Antonette's complaint to the agency and the filing of the administrative complaint. During that time the records of Dr. Ferris, the periodontist whom she had consulted before going to see Dr. Ong, were destroyed in a flood. What remains of those records, as they pertain to Ms. Antonette, is a letter dated February 12, 1985, prior to the flood, addressed to Ms. Antonette, which Dr. Ferris dictated as he reviewed the actual charts. The letter summarizes his findings, outlines the treatment plan and establishes his fee. A finding that Ms. Antonette had periodontal disease at the time that she first visited Dr. Ong is based not only on this letter and Dr. Ferris' testimony, but also the records and testimony of Dr. Branham, Ms. Antonette's testimony, and the expert witnesses presented by the agency. Dr. Ong was not prejudiced by the delay, but rather contributed to it by his failure to honor a subpoena for his records, served on October 9, 1985, until the subpoena was enforced in May 1986.
Recommendation Based on the foregoing it is hereby, RECOMMENDED: That the Board issue its final order finding Bert Ong, D.M.D., guilty of violations of subsections 466.028(1)(m) and (y), F.S. (1981), issuing a reprimand and imposing a $2,000.00 fine, suspending his license to practice dentistry for ninety (90) days, and thereafter placing him on probation for one year with a requirement for the completion of appropriate continuing dental education coursework in an amount and type to be specified by the Board. DONE and RECOMMENDED this 9th day of December, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4172 The following constitutes my specific rulings on the findings of fact submitted by the Petitioner: Adopted in paragraph #1. Adopted in paragraph #2. 3.-6. Adopted in paragraph #3. 7. Adopted in paragraph #4. 8.-11. Adopted in paragraph #5. Adopted in paragraph #7. Adopted in substance in paragraph #13. Rejected as unnecessary. 15.-17. Adopted in paragraph #7. 18.-21. Adopted in paragraph #8. 22.-24. Adopted in paragraph #9. Adopted in paragraph #10. Adopted in paragraph #13. Adopted in paragraph #15. Adopted in paragraph #10. 29.-30. Rejected as cumulative. Adopted in paragraph 16. Rejected as contrary to the evidence. Although the porcelain shading did not match the patient's lower teeth, the uncontroverted testimony was that she selected the color and intended to have the lower teeth replaced later. 33.-35. Adopted in paragraphs #11 and 12. 36.-38. Adopted in paragraph #17. Adopted in substance in paragraph #18. Adopted in paragraphs #19 and #20. Respondent' s Proposed Findings of Fact I.-A. Addressed in conclusions of law. -B. Adopted in paragraphs #1 and 2. -C. Adopted in paragraphs #5 and 10. 2.-A.-D. Rejected as immaterial and unnecessary. "Count I" Adopted in paragraph #3. Adopted in substance in paragraph #4. Adopted in part in paragraph 5, otherwise rejected as unnecessary. Adopted in paragraphs #6-#11. Adopted in paragraph #10, except that the recall was eight, not six, months later. Adopted in substances in paragraphs #3, 4, and 11. G.-H. Adopted in summary paragraph #12. "Count II" A.) B.) C.) Adopted in paragraphs 6. D. Rejected as contrary to the weight of evidence (as to the standard) and immaterial (as to the form). COPIES FURNISHED: Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard I. Wallsh, Esquire 217 East Ivanhoe Boulevard, North Orlando, Florida 32804 William Buckholt, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
