The Issue The issue in this case is whether Respondent is guilty of violating the minimum standards of competence, in violation of Section 466.028(1)(y), Florida Statutes; unlawfully delegating certain responsibilities to an unlicensed person, in violation of Section 466.028(1)(aa), Florida Statutes; and failing to maintain adequate records, in violation of Section 466.028(1)(n), Florida Statutes.
Findings Of Fact At all material times, Respondent has been licensed as a dentist. On October 7, 1987, B. K. visited Respondent's office to have her teeth cleaned. She had recently moved to Orlando and had not previously seen a dentist there. She selected Respondent based on the proximity of his office to her home. At her initial visit, B. K., who is 62 years old, presented a natural lower arch, except for the absence of molars that apparently caused her no trouble, and full dentures on the upper arch. In the course of examining B. K., Respondent asked her how old her dentures were. When B. K. replied 12 years, he told her that they should be replaced. She expressed reservations and told Respondent that she had had no problems ordiscomfort with her dentures. Respondent answered that the dentures should at least be relined. B. K. agreed to this suggestion. Respondent's office notes incorrectly recite that, as of the original visit, the dentures did not fit correctly. There is no evidence of a poor fit. Further, there is no reason to replace or reline dentures once they reach a certain age. Changes in fit or comfort may dictate the replacement or relining of dentures; age alone is irrelevant. The remainder of the initial visit was devoted to cleaning B. K.'s teeth and taking an impression of her arch for the purpose of relining the dentures. Respondent took the impression. At the conclusion of the visit, Respondent retained B. K.'s dentures and advised her to schedule a visit for about a week later, at which time she could pick up her relined dentures. When B. K. returned for her second appointment, Respondent installed the relined dentures. B. K. immediately complained that they were much too big. She did not believe that they were even the same dentures that she had left the week before. Respondent assured her that they were her dentures, and they would take additional impressions. An employee of Respondent named Stacy or Terry took the second impression, which took place during the second visit. After taking it, he told B. K. that something went wrong and asked her if he could taken another impression. B. K. agreed and another impression was taken. The employee told B. K. that her dentures could be ready in three of four days. When she returned, the dentures still were too large. At this point, B. K. embarked on a process that involved more impressions, more office visits, and more ill-fitting dentures. During this period, Respondent's employee routinely blamed the laboratory doing the relining work and finally said that they would change labs. On the only occasion that Respondent saw B. K. following her initial visit, he also said that they would be changing labs. However, he never took another impression after the first. In the process, the dentures seemed to be getting larger each time. At some point, B. K. learned from Respondent's employee that he was not a licensed dental assistant or hygienist and lacked any special training. Unable to obtain from Respondent a properly fitting set of dentures, B. K. finally contacted the local dental society and obtained the name of another dentist. She retrieved her dentures from Respondent's office, which refunded the portion of the payment that she had made for the dentures. (She had paid $125, and her insurance company paid $300.) B. K. visited the other dentist and soon obtained a new set of upper dentures that fit properly. Petitioner retained an independent dentist to examine the relined dentures prepared by Respondent and his employee. Without regard to B. K.'s complaints, the relineddentures were objectively unsatisfactory with regard to the adaptation of the denture to the gum. Respondent's dentures were grossly inadequate in terms of retention. When the independent dentist examined Respondent's dentures installed in B. K., he found a defective occlusion that left B. K. unable to bring her upper and lower arches together without distorting her jaw. Even if she could so distort her jaw, the resulting pressure on the dentures caused them to pop out. Poorly taken impressions led Respondent to cause the preparation of dentures of grossly excessive vertical dimension. Compared to properly fitting dentures, Respondent's dentures measured another 10 millimeters in the vertical dimension, substantiating B. K.'s recurring complaints about the size of the relined dentures. The fit of the dentures was also improper where it contacted the roof of the mouth. Contacting not more than 50% of the surface area of the roof of the mouth, the relined dentures allowed air continually to break the seal caused by the sheeting action of saliva, which is vital for the retention of upper dentures. It is improper for a dentist to delegate to an unlicensed person the duties of taking an impression for the purpose of preparing a prosthetic device, such as dentures. Respondent also failed to maintain adequate dental records. The records contain no medical history on B. K., norecord of Respondent's findings, and no treatment plan. In fact, the record do not even bear the name of B. K. The most material item in the records, which is that B. K. complained about her dentures during the initial visit, is incorrect and reflects either extreme carelessness or deceit. Based on the above-described facts, Respondent was guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Dentistry enter a final order finding Respondent guilty of violating Section 466.028(1)(m), (y), and (aa), suspending Respondent's license for a period of six months, imposing an administrative fine of $9000, and issuing a reprimand. RECOMMENDED this 12th day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, FL 32399-0792 Albert Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Michael J. Hammonds, D.D.S. 4901 Palm Beach Blvd. Ft. Myers, FL 33905
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 15th day of August, 2001.
The Issue The issues in this case are whether the Agency for Health Care Administration ("AHCA") is entitled to repayment of Medicaid reimbursements that it made to Respondent, pursuant to section 409.913(11), Florida Statues; if so, the amount of the repayment; the amount of any sanctions that should be imposed pursuant to subsections 409.913(15) through (17); and the amount of any investigative, legal, and expert witness costs that AHCA is entitled to recoup pursuant to section 409.913(23).
Findings Of Fact The Parties AHCA is the agency responsible for administering the Medicaid Program in the State of Florida, pursuant to section 403.902, Florida Statutes. During all times relevant to this proceeding, Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid recipients. AHCA's Agency Action Pursuant to its statutory authority to oversee the integrity of the Medicaid program in Florida, AHCA conducted an audit of Respondent's claims for Medicaid reimbursement for the period from February 1, 2010, to March 1, 2011, to verify that claims paid by AHCA to Respondent under the Medicaid program did not exceed the amount authorized by Medicaid law and applicable rules. As a result of the audit, AHCA determined it was entitled to reimbursement from Respondent for $102,444.33 that it paid to him for services not covered under the Medicaid program. AHCA also sought to impose sanctions consisting of a $20,488.86 administrative fine and investigative, legal, and expert witness costs. Respondent requested an administrative hearing under sections 120.569 and 120.57(1) to challenge the overpayment determination and imposition of sanctions. Evidence Adduced at Final Hearing At the final hearing, AHCA presented the testimony of Robi Olmstead, an administrator with AHCA's Bureau of Medicaid Program Integrity ("MPI"). Olmstead's responsibilities include supervising AHCA's staff performance of MPI audits. As a result of her employment with AHCA in this position for several years, Olmstead is very familiar with, and knowledgeable about, conducting MPI audits. No evidence was presented to show that Olmstead is a licensed physician, has any substantive medical or dental knowledge, or is a medical or dental services expert. Olmstead did not serve as a peer reviewer for AHCA in determining or describing the nature or determining medical necessity of the specific procedures at issue in this proceeding, and she was neither proffered nor accepted as a peer reviewer or expert witness for these purposes at the final hearing. Description of the Audit and Overpayment Determination Olmstead described the audit of Respondent's claims at issue in this case. For reasons unspecified in the record, AHCA initiated an audit of the Medicaid claims for which Respondent had been paid.1/ Using AHCA's data support system, investigator Theresa Mock2/ accessed the complete universe of Medicaid claims paid to Respondent.3/ Mock selected the period from February 1, 2010, to March 1, 2011, as the Audit Period ("Audit Period")4/ and selected a statistically-based claim sampling program——in this case, cluster5/ sampling——to perform the audit. A computer-generated representative sample, consisting of 30 Medicaid recipients for whom Respondent had billed claims during the Audit Period and been paid, was identified. AHCA contacted Respondent by demand letter, requesting that he submit documents to substantiate the claims. In response, Respondent provided documents consisting of his records of service and billing for each claim for each of the 30 recipients. Mock forwarded the records to AHCA's peer review coordinators, who, in turn, forwarded them to Dr. Mark Kuhl, AHCA's peer reviewer for this audit.6/ Kuhl reviewed the records and prepared worksheets reflecting his determination regarding the nature of the service rendered for each claim and whether such claim was eligible for payment under the Medicaid program. Respondent's records and Kuhl's worksheets were sent to Mock, who, based on Kuhl's determination regarding the nature and eligibility of each claim, calculated that Respondent had been overpaid by a total of $85,582.02, or $355.11211618 per claim, for the sampled claims. To extrapolate the total probable overpayment to Respondent for all claims, Mock applied the statistical formula for cluster sampling7/ to the calculated overpayment amount of $85,582.02 for the representative sample. This yielded a total extrapolated overpayment amount of $102,444.33, within a 95 percent probability that the actual overpayment amount was equal to or greater than that amount. In a Preliminary Audit Report ("PAR") dated December 12, 2011, AHCA notified Respondent that it had determined that he had been overpaid by $102,444.33 and gave him the options of paying that amount or submitting further documentation to support the claims identified as overpayments in the PAR. Respondent provided additional information in an effort to support these claims; however, AHCA apparently found the information insufficient to support changes to its previous determination that Respondent had been overpaid by $102,444.33. On March 22, 2013, AHCA issued a Final Audit Report ("FAR") stating its determination that Respondent had been overpaid by $102,444.33. The following explanation in the FAR was provided as the basis for AHCA's overpayment determination: REVIEW DETERMINATIONS A review of your dental records revealed that some services rendered were erroneously coded on the submitted claim. The procedure code that would accurately reflect the service provided is not covered by Medicaid. The payment for those claims is considered an overpayment. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented sufficiently. Therefore, the payment for those claims is considered an overpayment. A review of your records indicated that some procedure codes were double billed in error. In those instances, the amount paid for the second (duplicate) procedure is considered an overpayment. The FAR also notified Respondent that AHCA had assessed an administrative fine of $20,488.86 and audit costs of $576.83. In sum, the FAR notified Respondent that he was required to remit a total of $123,510.02. The FAR also notified Respondent that AHCA was entitled to recover all investigative, legal, and expert witness costs. Following issuance of the FAR, Respondent provided additional records to support claims that AHCA asserted were ineligible for payment. After considering these records, AHCA determined that some of these claims had not been overpaid, and on June 17, 2014, performed another calculation of the alleged overpayment for the entire universe of Respondent's claims using the cluster sampling formula. AHCA ultimately determined that Respondent had been overpaid by a total of $102,410.79, the alleged overpayment amount at issue in this proceeding. Requirements for Payment of Claims by Medicaid To be eligible for coverage by Medicaid, a procedure must be "medically necessary," which is defined as follows: “Medical necessity” or “medically necessary” means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. § 403.913(1)(d), Fla. Stat. (2010).8/ AHCA is the final arbiter of medical necessity for purposes of determining Medicaid reimbursement. Id. The statute expressly requires that determinations of medical necessity be made by a licensed physician employed by or under contract with the agency——i.e., a peer reviewer——based on information available at the time the goods or services are provided. Id. To ensure that services rendered by a provider are correctly billed to and paid by Medicaid, the provider must identify the services by referring to specific codes corresponding to the specific procedure or service rendered. If services rendered are incorrectly coded on a provider's billing submittals, they may be determined ineligible for payment by Medicaid. Applicable Medicaid Handbooks, Codes, and Fee Schedules To guide and inform providers regarding the types of services that are covered by the Medicaid program and how to correctly bill Medicaid for those services, AHCA has adopted several documents by rule through incorporation by reference. The documents incorporated by reference that are applicable to this case are the Florida Medicaid Provider General Handbook (July 2008)9/; the Florida Medicaid Dental Services Coverages and Limitations Handbook (January 2006)10/; the Florida Medicaid Provider Reimbursement Handbook, CMS-1500 (July 2008)11/; the Dental Oral/Maxillofacial Surgery Fee Schedule (effective January 1, 2010)12/; and the Dental General Fee Schedule (effective January 1, 2010)13/. Additionally, AHCA rule14/ refers to "CPT" codes, which are the Current Procedural Terminology® codes developed and kept up-to-date by the American Medical Association. These codes, which are published, are used by AHCA to identify the specific services rendered by providers for purposes of determining whether the service is covered by Medicaid. In this proceeding, AHCA provided, for admission into evidence, excerpts from the 2010 CPT codes, which were in effect during the Audit Period. AHCA rules adopted in the Florida Administrative Code do not expressly define, incorporate, or otherwise refer to "CDT" codes, which are the Current Dental Terminology© codes published by the American Dental Association. The Florida Medicaid Dental Services Coverages and Limitations Handbook (January 2006) was in effect during the Audit Period. This handbook refers to the Current Dental Terminology© codes, but does not specify the version of the CDT codes by year that were applicable to that version of the handbook.15/ AHCA provided, as exhibits, portions of the 2011/2012 CDT codes.16/ The Specific Claims at Issue Respondent's records and other documentation regarding the services for which he submitted claims for payment under Medicaid were admitted into evidence at the final hearing. The claims at issue in this proceeding are identified on worksheets prepared by Kuhl, who reviewed Respondent's records and documents provided in response to AHCA's demand letter. Kuhl's worksheets were admitted into evidence. These worksheets document, for each claim reviewed, Kuhl's determination regarding the nature of the service rendered by Respondent and whether the claim was eligible for payment under the Medicaid program. As noted above, Kuhl did not testify at the final hearing. Accordingly, the sole evidence in the record regarding Kuhl's determinations consists of the notations on his worksheets and Ms. Olmstead's testimony regarding his conclusions. As discerned from Kuhl's worksheets, Kuhl determined that Respondent had been overpaid for three reasons: (1) for some claims, Respondent did not provide records, such as x-rays or other documents, to support or verify that he had, in fact, rendered the service; (2) for some claims, Respondent billed twice (i.e., duplicate-billed) and was paid twice for the same service rendered to a recipient; and (3) for some claims, Respondent performed, and billed for, procedures that were not medically necessary so were not payable by Medicaid. Each of these bases is addressed below. Lack of Documentation to Support Claims Based on his review of Respondent's records, Kuhl determined that Respondent did not provide adequate documentation to support some claims for which he was paid. For each such claim, Kuhl wrote on the applicable worksheet next to the applicable claim: "not in the record" or "not in record." As noted above, Respondent subsequently submitted additional documentation for some claims. Based on Kuhl's worksheets and this additional documentation, AHCA determined that Respondent had been overpaid a total of $3,091.91 for the sampled claims as a result of his failure to provide supporting information. The table below summarizes AHCA's overpayment determinations for the sampled claims on this basis. Undocumented Claims Recipient No. No. of Claims Overpaid Amount of Overpayment 1 2 $8.00 17 2 $3.00 21 3 $1,120.75 26 1 $4.00 28 3 $1,956.16 Total Amount of Overpayment $3,091.91 Double-billed Claims Kuhl determined that for some claims, Respondent duplicate-billed and was paid twice for the same service. For each such claim, Kuhl wrote on the applicable worksheet next to the applicable claim, what appears to be a notation stating "duplicate charge amt" or "duplicate charge out."17/ Either way, it is clear from the worksheets that Kuhl determined that Respondent had duplicate-billed for certain services rendered to certain recipients. Based on Kuhl's worksheets and Respondent's billing records, AHCA determined that due to duplicate billing, Respondent had been overpaid a total of $30.00 for the sampled claims. The table below summarizes AHCA's overpayment determinations for the sampled claims on this basis. Duplicate-Billed Claims Recipient No. No. of Claims Double-Billed Amount of Overpayment 8 1 $27.00 9 1 $3.00 Total Amount of Overpayment $30.00 Claims for Face Bone Graft and Lower Jaw Graft Three Medicaid billing codes are implicated in this proceeding: CPT codes 21210 and 21215, and CDT code D7953. The 2010 version of CPT code 21210 is defined as "graft, bone; nasal, maxillary, or malar areas (includes obtaining graft)." The notations on AHCA's spreadsheet summarizing its overpayments refer to this procedure, in lay terms, as a "face bone graft." The 2010 version of CPT code 21215 is defined as "mandible (includes obtaining graft)." The notations on AHCA's spreadsheet summarizing its overpayments refer to this procedure, in lay terms, as a "lower jaw bone graft." Respondent billed and was paid for 44 claims under CPT code 21210 for face bone grafts and 25 claims under CPT code 21215 for lower jaw bone grafts. For each claim identified on Kuhl's worksheets as either "21210 ## ## Face Bone Graft" or "21215 ## ## Lower Jaw Bone Graft," Kuhl made the notation "correct code = D7953 = bone graft place in ext site at time of ext" or a similar notation to that effect. For each such claim, Kuhl checked the "deny" option on the worksheet. Below the "deny" option, Kuhl made the following or a similar notation: "as it was stated by Robi Olmstead it is a non-covered procedure" or "if a non-covered procedure." CDT code D7953 is defined in the 2011-201218/ version of the CDT codes as: bone replacement graft for ridge preservation – per site Osseous autograft, allograft, or non-osseous graft is placed in an extraction or implant removal site at the time of the extraction or removal to preserve ridge integrity (e.g., clinically indicated in preparation for implant reconstruction or where alveolar contour is critical to planned prosthetic reconstruction). Membrane, if used, should be reported separately. Olmstead testified that the D7953 procedure is not medically necessary so is not covered by Medicaid. According to Olmstead, the D7953 procedure is not considered medically necessary because "most often sufficient bone will be regenerated or, you know, you won't really need it unless you [are] getting implants are (sic) [or] dentures, and it's just not always——infrequently medically necessary to do this according to some of the literature, and so Medicaid, you know, as they're allowed to do, has decided not to cover this procedure, and it's clearly not covered except for the oral surgeon19/ under these two codes, but again, it still has to be medically necessary." Olmstead testified that the absence of D7953 as a listed procedure on the Dental General Fee Schedule (January 2010) and the Dental Oral/Maxillofacial Surgery Fee Schedule (January 2010) further evidences that D7953 is not covered by Medicaid. Kuhl did not make any express finding on his worksheets that the D7953 procedure is not medically necessary. Indeed, Olmstead acknowledged that Kuhl's worksheets did not state that the D7953 procedure is not medically necessary. Kuhl also did not make any express finding on his worksheets that the CPT code 21210 and CPT code 21215 procedures were not medically necessary. Based on Kuhl's worksheets, AHCA determined that for each claim Respondent billed under CPT codes 21210 or 21215, the claim was not covered by Medicaid, so should not have been paid. The table below summarizes AHCA's determinations of overpayment, on the basis of lack of medical necessity, for the sampled claims for CPT Code 21210 for face bone grafts performed by Respondent. CPT Code 21210 - Face Bone Graft Recipient No. No. of Claims for CPT Code 21210 Total Amount of Overpayment for Recipient 1 1 $1,089.75 2 1 $ 544.88 4 4 $3,814.13 5 2 $1,634.63 6 1 $1,089.75 7 1 $1,089.75 9 3 $2,724.38 10 1 $1,089.75 11 6 $4,903.89 12 1 $1,089.75 17 2 $1,634.63 19 2 $1,634.63 20 1 $1,089.75 21 2 $1,634.6320/ 22 1 $ 544.88 23 3 $1,847.07 24 1 $1,089.75 25 6 $5,448.76 26 3 $3,269.25 29 1 $1,089.75 30 1 $1,089.75 The table below summarizes AHCA's determinations of overpayment, on the basis of lack of medical necessity, for the sampled claims for CPT Code 21215 for lower jaw bone grafts performed by Respondent. CPT Code 21215 - Lower Jaw Bone Graft Recipient No. No. of Claims for CPT Code 21215 Total Amount of Overpayment for Recipient 1 5 $8,591.22 2 1 $1,909.16 4 1 $1,909.16 5 1 $1,909.16 8 3 $4,772.90 11 2 $3,818.32 14 1 $1,909.16 15 1 $1,909.16 16 2 $3,818.32 17 1 $1,909.16 18 2 $3,817.82 22 1 $1,909.16 27 2 $2,863.74 28 2 $1,909.16 Findings Regarding Alleged Overpayment The undersigned determines that the record evidence supports AHCA's determinations that Respondent was overpaid in the amount of $3,091.91 for claims for which he did not provide required documentation. The undersigned determines that the record evidence supports AHCA's determinations that Respondent was overpaid in the amount of $30.00 for claims for which he duplicate-billed Medicaid. As previously noted, the Florida Medicaid Dental Services Coverages and Limitations Handbook (January 2006) was in effect during the Audit Period. However, AHCA did not provide, as part of its evidence, pertinent excerpts of this version of the handbook referencing the CDT codes in effect during the Audit Period. AHCA also failed to provide the version of the CDT codes in effect during the Audit Period. Thus, the undersigned is left without any evidence regarding the nature or description of procedure D7953 as it was defined under the version of the CDT codes in effect during the Audit Period. Accordingly, the undersigned is unable to verify the correctness of Kuhl's notations stating that CDT code D7953, rather than CPT codes 21210 or 21215, was the correct notation for the procedures Respondent performed. As discussed above, AHCA's audit supervisor, Robi Olmstead, testified regarding the nature of the procedure identified in D7953 and distinguished that procedure from the procedures to which CPT codes 21210 and 21215 apply. However, there is no evidence establishing that she was competent to testify about the medical nature of the D7953 procedure, how it substantively differs from the other procedures at issue as defined in CPT codes 21210 or 21215, whether or not the procedures Respondent performed were medically necessary, or whether the D7953 procedure is medically necessary. As such, the undersigned finds her testimony unpersuasive to show that the procedures Respondent performed and billed under CPT codes 21210 and 21215 were not medically necessary and therefore not billable to Medicaid, that D7953 was the correct billing code for the procedures Respondent performed, and that the procedure corresponding with code D7953 is not medically necessary.21/ AHCA chose not to present testimony by its peer reviewer, Dr. Mark Kuhl, at the final hearing.22/ Although Kuhl's worksheets were admitted into evidence, they do not provide a credible, independently verifiable explanation for his conclusion that Respondent incorrectly billed a particular procedure by using either CPT code 21210 or 21215 instead of CDT code D7953. Moreover, the worksheets contain notations, discussed above, which indicate or appear to indicate that Kuhl relied on Olmstead's direction that the bone graft procedures for which Respondent billed were not medically necessary. Olmstead is not competent to determine medical necessity, and Kuhl's apparent reliance on her direction regarding medical necessity is directly contrary to section 409.913(1)(d), which expressly requires that "[d]eterminations of medical necessity must be made by a licensed physician employed by or under contract with the agency." As such, the undersigned finds Kuhl's worksheets unpersuasive to show that the procedures Respondent performed and billed under CPT codes 21210 and 21215 were not medically necessary and therefore not billable to Medicaid, that D7953 was the correct billing code for the procedures Respondent performed, and that the procedure corresponding with code D7953 is not medically necessary. For these reasons, it is determined that AHCA has not proven, by a preponderance of the competent substantial evidence in the record, that Respondent was overpaid for the claims he billed for bone grafts using CPT codes 21210 and 21215. Based on the foregoing, it is determined that AHCA overpaid Respondent in the total amount of $3,121.91. Determination of Administrative Fine As found above, Respondent was overpaid in the amount of $3,091.91 for undocumented claims. Pursuant to Florida Administrative Code Rule 59G- 9.070(7), sanctions are required to be imposed for failure to furnish all Medicaid-related records to be used by AHCA in determining whether Medicaid payments are or were due. Under rule 59G-9.070(7)(d), a $2,500 fine is to be imposed for the first offense23/ of failing to furnish all Medicaid-related records. AHCA proved that Respondent was paid for undocumented claims, and Respondent does not appear to challenge that. Accordingly, it is determined that sanctions consisting of a $2,500 administrative fine should be imposed for this violation. Duplicate-billed Claims As found above, Respondent was overpaid in the amount of $30.00 for duplicate-billing of services. AHCA did not present any evidence that Respondent engaged in a "pattern of erroneous claims." Rather, the evidence indicates that Respondent inadvertently duplicate- billed for services rendered to two recipients for a total of $30.00. Moreover, in its Proposed Recommended Order, AHCA did not cite and otherwise discuss any basis for the imposition of an administrative fine for Respondent's duplicate-billing. Therefore, it is determined that no administrative fine should be imposed for Respondent's violations consisting of two incidents of duplicate billing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order finding that Respondent was overpaid, and therefore is liable for reimbursement to AHCA, the total amount of $3,121.91; imposing an administrative fine of $2,500; and remanding the matter to the Division of Administrative Hearings for an evidentiary hearing on the recovery of AHCA's costs, if necessary. DONE AND ENTERED this 29th day of May, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 29th day of May, 2015.
The Issue The issue in this case is whether Petitioner should receive a passing score on the December 2001 dental license examination.
Findings Of Fact In December 2001, Petitioner took the dental licensure examination and failed to pass the clinical portion of the exam. The examination is a three-day process involving two days of clinical examination. Those two days of clinical examination consist of nine procedures. Four of the nine procedures were challenged by Petitioner. The clinical portion is where the candidate is required to perform certain patient procedures. The work product of the student, or candidate, is evaluated following the performance of those procedures by three examiners. Each examiner grades the candidate independently of whatever score the other examiners may award on a particular procedure. Then the average grade for each procedure is weighted in accordance with requirements of Rule 64B5-2.013, Florida Administrative Code. This produces the overall score for the entire clinical exam. The Department uses three examiners' scores because this provides a more reliable indication of the candidate's competency and true score. Further, each examiner must be a licensed dentist for a minimum of five years and have no complaints or disciplinary actions against their license. Examiners have no contact with the candidate taking the examination and, accordingly, have no idea of who they are grading. To further ensure fairness, each examiner must attend and successfully complete a standardization session. The purpose of these sessions is to ensure that each examiner is trained to use the same internal grading criteria. In standardization, each examiner is thoroughly taught specific grading criteria with the result that examiners are instructed on how to evaluate the work of the candidates. The examiners who graded Petitioner’s examination had successfully completed the foregoing standardization session. Also, the Department’s post-exam check found these examiners’ grading to be reliable. Petitioner contested the score he received on Procedure 4, the Endodontic procedure, a root canal. The Endodontic procedure required removal of infected nerve tissue and blood vessels pulp from the tooth. Petitioner was required to access the canal and pulp tissue from the outside. Then, Petitioner was required to remove the bad nerve and cleanse the canal. Finally, Petitioner was required to seal the canal to prevent recurring bacteria. Petitioner failed to observe a fracture in the tooth. He claimed that a fracture to the root of the tooth was caused by the Department after he reviewed his examination and that no one advised him the root was fractured. Petitioner requested a score of 3.00 for this procedure. However, the Department's witness, Dr. William F. Robinson, a licensed dentist for 32 years who examined the tooth and X-ray prepared by Petitioner, testified that the fracture to the root was noticed in both the X-ray and on the tooth when he examined the same. Additionally, two of the three re-graders also noted the fracture of the root. With regard to Petitioner's preparation of the X-ray at the conclusion of the examination, Dr. Robinson opined that Petitioner caused the fracture to the root during the examination and not the Department, as alleged by Petitioner. Dr. Robinson further opined that even without a fracture to the root of the tooth, Petitioner failed the procedure and the failing grade he received was fair. Dr. Robinson would not recommend that Petitioner receive a passing score of 3.00 on the procedure. The examiners' comments and grades and the testimony of Dr. William F. Robinson establish that Petitioner failed to properly perform this procedure. The grade Petitioner received was fair. Petitioner challenged the grade he received on Procedure 5, the Class IV Composite Restoration of the front tooth, but did not offer any testimony at the hearing as to why the score was not correct for the procedure. Petitioner requested that the score of 1.00 given by one of the examiners be thrown out, thus giving him a passing grade on this procedure. Procedure 5 of the dental licensure examination is a procedure that involves the candidate’s ability to replace the edge of the front tooth with a composite resin material, which is a tooth-colored filling. As established by the examiners’ comments and grades and the testimony of Dr. William F. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Specifically, the examiners found that the tooth was abraded and the re-grader noted, as did the examiners, the excessive “flash” on the tooth. Dr. Robinson also noted both deficiencies in the procedure. Petitioner contested the score he received on Procedure 6, the Class II Composite Restoration procedure in his original petition, but offered no testimony at the hearing concerning this procedure. Dr. Robinson reviewed the examiners' grades and the tooth prepared by Petitioner and opined that Petitioner’s grade of 2.66 for this procedure is fair. Based on the examiners’ comments and grades and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Petitioner contested the score he received on Procedure 7, the preparation for a 3-unit Fixed Partial Denture, claiming that on the re-grade one of the examiners reviewed the wrong procedure. The Preparation for a 3-unit Fixed Partial Denture procedure of the dental licensure examination is a procedure that involves the candidate’s ability to provide preparations of two (2) teeth in order to replace a missing tooth with a fixed bridge. Dr. Robinson established that Petitioner’s work on this procedure resulted in one tooth, No. 29, being grossly over reduced and tooth No. 31 was insufficiently reduced. The result of such work is that it is impossible to place a bridge on such an improper preparation. As established by testimony of Dr. Robinson, Petitioner's problem with this procedure resulted from Petitioner’s undercut. This undercut indicated that Petitioner’s preparations were not properly aligned to accept a bridge. Based on the examiners’ comments and grades, and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. The Department's “re-grade” process was utilized in this case. Used to give all candidates who timely request a hearing another chance at passing, the re-grade process allows the Department to go back and determine whether any grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade process. The Department maintains post-standardization statistics of the examiners’ performance. In this case, those statistics indicated that Petitioner’s examiners graded reliably. In addition, the Department calculates post- examination statistics for the examiners, which are as follows for the examiners who graded Petitioner’s challenged procedures: Examiner Accuracy Index & Rating #206 95.8-Excellent #375 98.8-Excellent #380 92.1-Good #334 97.8-Excellent #298 95.9-Excellent #375 98.8-Excellent-was an original and a re-grader. All of Petitioner's examiners exhibited a reliability significantly above the minimum acceptable accuracy index of 85.0.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the December 2001 dental licensure examination. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 9th day of October, 2002. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Jason S. Baker, D.M.D. Westchester Medical Center 95 Grasslands Road, Box 572 Valhalla, New York 10595 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact After having considered all of the evidence presented, and particularly after observing the demeanor of the witnesses, I have resolved the myriad of conflict in making the following findings of fact. Where I have based a finding, or a portion of a finding, upon a stipulation between the parties contained either in the Prehearing Stipulation, or upon a fact stated in the Petitioner's Request for Admissions, I have so indicated. At all times material to this cause, the Respondent has been a dentist licensed by the State of Florida (Stipulation) and maintaining two separate offices for the practice of dentistry. Mrs. Esther Kropman appeared at Respondent's Boynton Beach office as a patient for the first time on July 18, 1978 (Stipulation). Since Mrs. Kropman was elderly and hard of hearing, she was accompanied through the entirety of each visit by her daughter-in-law, Mrs. Elaine S. Kropman. Esther Kropman's son, Ralph, accompanied his wife and his mother on their visits to Dr. Scott's office, but remained in the waiting room while his wife accompanied his mother whenever she was inside the operatory and inner office. On her first visit, the older Mrs. Kropman complained that her lower denture was causing irritation to her mouth, and Respondent made an adjustment to that denture. Since Esther continued to complain about mouth irritation, the Kropmans returned to Respondent's office on July 25, 1978. On that date, Respondent recommended that Esther Kropman have her lower denture relined, a service for which he received an advertised fee of fifty dollars (Stipulation). It was agreed that Esther's denture be retained by the Respondent overnight in order that the relining could be accomplished. On July 26, 1978, the Kropmans returned to the Respondent's office to pick up Esther's denture (Stipulation). Respondent affirmed that the denture had been relined, and Elaine Kropman paid the fifty-dollar fee on behalf of her mother-in-law. On July 31, 1978, September 1, 1978, and September 14, 1978, the Kropmans returned to Respondent's office (Stipulation) since Esther continued to complain of irritation in her mouth caused by her lower denture. On October 3, 1978, Elaine and Ralph Kropman took Esther to their dentist, Dr. Charles J. Simon, and remained present during his examination of Esther's mouth and lower denture. Dr. Simon indicated at that time, and subsequently by letter dated October 19, 1978, that he found no evidence to indicate that Esther's lower denture had been relined. On October 10, 1978, the Kropmans returned to the Respondent's office to demand a refund, which refund was refused. On November 1, 1978, the Kropmans went to the Broward County Dental Association, where Esther and her lower denture were examined by five members of the Prosthetics Professional Relations Committee, while Elaine and Ralph Kropman were present. Dr. W. G. Schaller, Chairman of that Committee, was one of the examiners. On November 6, 1978, Dr. Schaller notified Esther Kropman in writing that the Committee had the unanimous opinion that there was no evidence of any relining material present on her lower denture and that Respondent should refund the fee for relining. At the time of the final hearing in this cause, Esther Kropman was a resident of Maryland and was prohibited by her health from traveling to Fort Lauderdale to testify. However, she had lived with her son and daughter-in-law for some time prior to her first visit with Dr. Scott, during which time her bedroom and bathroom were cleaned by Elaine. Neither Elaine nor Ralph had ever seen a second lower denture, nor had either of them ever heard of Esther Kropman owning more than one set of dentures. Moreover, during the investigatory examination conducted by the Broward County Dental Association, Esther Kropman affirmatively stated to Dr. Schaller that the denture being examined by that Committee was the same denture which had been worked on by Dr. Scott. Both Dr. Schaller and Dr. Scott agreed that after the relining process, both a demarcation line and a difference in coloration on the denture would be obvious. Dr. Schaller further opined that had the relining material been removed, there would be evidence that the material had been scraped off the denture. When Dr. Schaller examined the denture in question, he found neither evidence that the denture had ever been relined, nor evidence that relining material had ever been scraped off the denture. When Respondent was notified by Dr. Schaller of the conclusions of the Prosthetics Professional Relations Committee, he did nothing to attempt to resolve the problem or to reexamine Esther Kropman or her lower denture; rather, he telephoned Dr., Schaller with a verbal explanation that the denture examined by the Committee must have been a different one than he had relined. When asked by Dr. Schaller to reduce such explanation to writing to participate in resolving the dispute, Respondent did nothing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A final order be entered suspending the dental license of John Scott, Jr., D.D.S., for three months, but that suspension be withheld if Dr. Scott pays the sum of $2,000 to the Department of Professional Regulation as reimbursement of the costs of investigating and prosecuting this action and in addition pays to Elaine Kropman the sum of fifty dollars as a refund of the money paid to him, all by a date certain. RECOMMENDED this 17th day of July, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1980. COPIES FURNISHED: Patrick L. Bailey, Esquire Post Office Box 549 Pompano Beach, Florida 33062 Bert J. Harris, III, Esquire Boyd, Harris and Smith, P. A. Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0004795. At all times material hereto, Respondent maintained two offices for the practice of dentistry, one where he practices privately in Bay Harbor Islands and one in North Miami Beach which is also known as R & E Dental Offices or as North Dade Dental Office. Case Number 83-3976 Beatrice Gershenson On April 19, 1980, Beatrice Gershenson, in response to a newspaper advertisement, came to R & E Dental Offices complaining that her lower denture made years earlier was uncomfortable and in need of replacement. Respondent examined Gershenson on that visit and advised her that she would need to have both her upper and lower dentures replaced. During that consultation, Respondent and Gershenson agreed upon a fee of $410 for a full set of dentures. Respondent did not provide any treatment to Gershenson during her first visit. Gershenson returned to R & E Dental Offices several times during April and May 1980, during which visits she received a full set of dentures and several subsequent adjustments to those dentures. Although Gershenson's checks were made payable to Respondent, Respondent provided no treatment to her; rather, all dental services were provided to Gershenson by other employees of R & E Dental Offices. Gershenson did not see Respondent following the initial consultation until her last visit to R & E Dental Offices. At that time, Gershenson complained to him about her dentures. She advised Respondent that her dentures were flopping and that she was biting the back of her jaw. Respondent did not examine her at that time. Based upon her complaints, however, he suggested that she be provided a reline and that she use a denture cream. Gershenson refused to have a reline, became upset about having to use a denture cream, and left. On July 16, 1981, Gershenson and her dentures were examined by Dr. Leonard M. Sakrais, a dental expert retained by Petitioner. Between her last visit to R & E Dental Offices and her examination by Dr. Sakrais, Gershenson's dentures were not altered. The three deficiencies in Gershenson's dentures noted by Sakrais became the specific allegations in the Administrative Complaint filed against Respondent. Sakrais noted that the dentures exhibited open occlusion on the right side, the lower anterior teeth were set forward of the ridge making the lower denture unstable, and the upper denture was short in the tuberosity region and therefore had no retention. However, Sakrais recognized that lower dentures are typically unstable, that Gershenson's small knife-edged lower ridge made her a difficult patient to fit, and that the dentures could have very easily been made serviceable. One of the ways in which the defects could be remedied, accordingly to Sakrais, was for the denture to be relined. If a patient refuses to have a denture relined, however, there is nothing a dentist can do further. Gershenson continued to wear the dentures obtained at R & E Dental Offices without adjustment after the examination by Sakrais until she commenced treatment in June 1983 with Dr. Alan B. Friedel. She made no complaints to Friedel regarding the upper denture and only complained about the looseness of the lower denture. Friedel adjusted her lower denture and recommended that it be relined and that she use a denture cream. Friedel noted no problems with the upper denture and attributed the problems with Gershenson's lower denture to the shape and deterioration of her lower ridge. When Dr. Neil Scott Meyers examined Gershenson on August 3, 1984, after Friedel's treatment had been completed, Gershenson complained to him that her upper denture fit so well that she had trouble removing it. Meyers found no defects in Gershenson's dentures, as modified by Dr. Friedel, and also noted the difficulty in fitting a lower denture for a patient with a small sharp lower ridge like Gershenson's. Gershenson voluntarily terminated treatment with R & E Dental Offices without requesting a refund and without requesting that the dental work be redone. Rather, she refused Respondent's offer to reline her dentures. Case Number 84-0349 Barbara Schmidt On November 4, 1980, Barbara Schmidt came to R & E Dental Offices in response to an advertisement. Schmidt complained that an improper bite was causing loss of her natural teeth and advised Respondent that her previous dentists had recommended that she have her teeth capped and bite opened. Schmidt brought with her to that consultation X rays and study models, a lot of advice from previous dentists who had treated her, and her attorney-husband who drilled Respondent on his plan for treatment of Schmidt. During Respondent's examination of Schmidt, he noted that she suffered from an extreme loss of vertical dimension. Her teeth were very worn, and there was little enamel left on her anterior teeth. The agreed upon treatment plan for Schmidt involved a full mouth reconstruction, consisting of 15 lower crowns and 8 upper crowns. On November 4 and 11, 1980, Respondent prepared Schmidt's lower right side and lower left side and provided her with temporaries. Respondent made no attempt to increase her vertical dimension with the first set of temporaries. On November 25, 1980, Respondent took a second bite impression and made a second set of temporaries which increased Schmidt's bite by 2 millimeters. He noted that he was having trouble getting Schmidt's jaws into centric position for taking a second impression because her jaw muscles were too tense. During Schmidt's appointments on December 16 and 23, 1980, Respondent tried-in the lower metal framework, checked the margins, looked for blanching of the tissue, determined that the lower frame was acceptable and ready to be finished, and took a third bite impression due to the difficulty in getting the same registration each time that Schmidt's bite was registered. During Schmidt's January 13, 1981, appointment, Respondent began work on her upper teeth. Schmidt was placed in temporaries. When the upper metal work was tried-in on February 3, 1981, Respondent determined that the fit was correct. On February 10, 1981, Respondent inserted Schmidt's upper crowns using temporary bond and made a notation in Schmidt's records that her bridges should be removed every six months. On February 17, 1981, Respondent removed one of Schmidt's bridges, made new temporaries, and returned Schmidt's crowns and bridgework to the laboratory for rearticulation in order that the bite, with which Respondent was not satisfied, could be corrected. On this date Schmidt was in her third set of temporaries and was clearly in an unfinished stage. On February 18 and 24, 1981, Schmidt was seen by Dr. Wayne Dubin, another dentist in the same office. Schmidt's dental records indicate that on the former date Dubin re-cemented Schmidt's temporary crowns, and on the latter date he cemented with temporary bond the permanent crowns that Respondent had returned to the laboratory on February 17. On March 3, 1981, Respondent repaired Schmidt's lower right bridge, and on March 10 he cemented that bridge back into Schmidt's mouth with temporary bond. On March 17, 1981, Respondent removed one of Schmidt's bridges and returned it to the laboratory so that porcelain could be added. This was the last occasion on which he rendered treatment to Schmidt. On March 24, Schmidt was seen by Dr. Dubin at the request of Respondent. In the presence of Schmidt, Respondent requested Dubin to take over the case because Respondent was still unable to correct Schmidt's bite. Respondent told Dubin to do whatever he thought was necessary. On March 24, 1981, Dubin removed Schmidt's crowns and bridges and took a bite impression without the crowns and bridges in place in order to correct the bite problem in a different way than Respondent had previously tried. On April 7, 1981, Dubin placed Schmidt's bridges in her mouth using temporary cement. He advised her that on her next visit he would take a new set of X rays, presumably to start over again if necessary. Although Dubin was at that time Schmidt's treating dentist, she sought advice from the lady employed as the office manager at R & E Dental Offices. The two women decided that rather than having Schmidt continue with Dubin, she should see Dr. Lawrence Engel the "E" of R & E Dental Offices. On the following day Engel saw Schmidt for an occlusal adjustment. During the examination, Schmidt's jaw muscles went into spasm, and she was unable to make the appropriate movements so that Engel could make the appropriate adjustments. Engel suggested to Schmidt that she go home, practice moving her jaw in front of a mirror in the privacy of her home, and then return so that he could complete her adjustment. Schmidt returned to Engel approximately one week later and brought her husband with her. While Mr. Schmidt engaged in a tirade and Dr. Engel engaged in adjusting Mrs. Schmidt's bite, there was a power failure in North Miami Beach. The Schmidts were given their choice of waiting until electrical power resumed or leaving and coming back at another time. After advising the office manager that they would return and that would also complete paying the agreed upon fee for dental services, the Schmidts left. They did not, however, return, and they did not, however, complete paying their bill. Instead, on May 18, 1981, Mrs. Schmidt picked up her records, X rays, and study models. She did not speak with Respondent about her voluntary termination of treatment, about a refund of the monies paid for treatment, or about her dental work being completed or redone. Schmidt was not released from treatment by any dentist at R & E Dental Offices. When Schmidt released herself from treatment, none of the three dentists who had treated her had indicated that her case was completed or close to completion. Rather, more temporaries were being made, her crowns and bridgework were being returned to the laboratory, new X rays were being ordered, and one dentist was in the middle of an adjustment when the electrical power failed. Moreover, the dental work made for her had been cemented with temporary bond, and no one had indicated that permanent cementing was likely at any time soon. The only discussion which had occurred regarding the use of permanent cement occurred with Respondent when he explained to her that sometimes sensitive areas are alleviated when permanent cementing takes place. That discussion took place prior to the time that Respondent referred Schmidt to Dr. Dubin with instructions to do whatever Dubin thought necessary. During the time that Respondent was treating Barbara Schmidt, she was seeing other dentists for the purpose of having them monitor Respondent's work. Since neither Schmidt nor her monitoring dentists advised Respondent that he was being monitored, the only information available to those dentists was that provided to them by Barbara Schmidt. They, therefore, did not have the benefit of Respondent's input into their opinions, and Respondent likewise was not given the benefit of their input into his decisions. In addition to seeing a Dr. Coulton and a Dr. Souviron, Schmidt consulted twice with Dr. Alvin Lawrence Philipson, a dentist having some business dealings with Mr. Schmidt. Schmidt saw Dr. Philipson for Use first time on February 11, the day after her permanent lowers were inserted with temporary cement. Six days later Respondent removed Schmidt's lower left bridge and sent it back to the lab to be remade in order to correct the bite and alleviate an area causing sensitivity. When Philipson next saw her in March of 1981 he was of the opinion that Respondent had provided treatment which failed to meet minimum standards. That opinion, however, was based upon the information given to him by the Schmidts that Respondent was finished with the case and ready to permanently cement all bridgework. At the time that he rendered his opinion, Philipson did not know that Schmidt was about to be referred by Respondent to another dentist, i.e., Dr. Dubin for that doctor to do whatever he thought was necessary in order to help Mrs. Schmidt. After Schmidt discharged herself from the care of the dentists at R & E Dental Offices, she continued to wear the crowns and bridgework in their temporized state without treatment from April 8, 1981 (the day of the power failure) until July 7, 1982 when she sought dental treatment from Dr. Donald Lintzenich. By this time she had also developed periodontal problems, most likely as a result of neglect. Schmidt began treating with Tintzenich in July of 1982, and Lintzenich also referred her to other specialists for necessary treatment such as root canals and periodontal treatment. Although many changes were made to the crowns and bridgework Schmidt received from R & E Dental Offices by Lintzenich and the other dentists to whom he referred her, during the first four months that he treated Schmidt Lintzenich left the crowns and bridgework from R & E Dental Offices in Schmidt's mouth. Although Lintzenich began treatment of Schmidt in July 1982, he was still treating her at the time of the Final Hearing in the cause and was, at that point, considering redoing work he had placed in her mouth. The numerous experts in dentistry presented by both Petitioner and Respondent agree that Barbara Schmidt's is an extremely difficult reconstruction case and that a quite extended period of time is necessary for the correction of her dental problems. Further the experts agree on nothing. Each of Petitioner's experts disagrees with almost everything stated by the remainder of Petitioner's experts. For example, Philipson recommends increasing Schmidt's bite; Glatstein believes that Schmidt's bite needs to be reduced; and Lintzenich opines that any attempt to change the vertical dimension would constitute treatment below the minimum acceptable standard. Some of Petitioner's experts believe that Schmidt's periodontal problems existed before she sought treatment by Respondent, and some of them believe that her periodontal problems commenced after she had terminated treatment with Respondent. Although most of Petitioner's experts agreed that Respondent's work fell below minimum standards, they also admit their opinions would be different if they had known that Respondent had not completed his work on Schmidt and had not discharged her but rather had referred her to another dentist with instructions to do whatever was necessary. Only Dr. Glatstein maintained that Respondent's work was substandard at any rate, an opinion he confers on Lintzenich's work, too. The Administrative Complaint filed herein charges that Respondent's treatment of Schmidt failed in the following "specifics": the work has no centric occlusion; the bite is totally unacceptable and if not corrected will cause irreversible damage to the temperomandibular joint; and the contour of the teeth and embrasure space for the soft tissues were unacceptable and ultimately will result in periodontal breakdown. All of the experts who testified agree that Barbara Schmidt's bite is/was not correct. She initially sought treatment because her bite was not correct and is still undergoing treatment because her bite is not correct. There is no consensus on any of the other charges in the Administrative Complaint; in fact, there is no consensus as to the meaning of some of the words' used. For example, some dentists believe that the term "contour of the teeth" encompasses open margins while others believe that an open margin is the space between the tooth and the crown. Few dentists, however, believe that an Administrative Complaint which states that the contour of teeth is unacceptable advises a licensee that he is charged with defective work because of open margins. Even if open margins were part of the term "contour of the teeth," the Administrative Complaint fails to notify anyone that the open margins are the part of the contour that is alleged to be defective or even which teeth are involved. There is no basis for choosing the opinion of one expert in this case over the other experts who testified herein. Further, many of the opinions are based upon information that was either erroneous or false, such as the information that Respondent had completed treatment and discharged Schmidt.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaints filed herein and dismissing them with prejudice. DONE and RECOMMENDED this 20th day of May, 1985, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201 Algis Augustine, Esquire 407 South Dearborn Street Suite 1300 Chicago, Illinois 60605 Stephen I. Mechanic, Esquire Allan M. Glaser, Esquire Post Office Box 398479 Miami Beach, Florida 33139 Ronald P. Glantz, Esquire 201 S.E. 14th Street Fort Lauderdale, Florida 33316 Steven Rindley, D.D.S. 251 NE 167th Street North Miami Beach, Florida 33162 Steven Rindley, D.D.S. 1160 Kane Concourse Bay Harbor Islands, Florida 33154 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1984.
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violations of Section 466.028(1)(y), Florida Statutes, as set forth in the Amended Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Robert J. Fish, was licensed by the Department of Professional Regulation (the "Department"), Board of Dentistry (the "Board",) as a dentist in the State of Florida having been issued license number DN0005694. At all times pertinent to this proceeding, Respondent was engaged in the practice of dentistry in Tamarac, Florida. At the time of the hearing in this matter, the Patient whose treatment is the subject of the allegations in the Amended Administrative Complaint was 83 years old. At the hearing, D.E. admitted that, because of certain health problems, she had experienced some loss of memory. The Patient first presented to Respondent's office for oral examination on June 27, 1983. For some time prior to this visit, she had been treated by a periodontist in Broward County. The nature and extent of that prior treatment is not clear. During her visit to Respondent's office on June 27, 1983, the Patient completed a dental and medical history form. According to those forms, the Patient had a history of cancer and high blood pressure. Respondent also confirmed that the Patient had not received any hormone replacement therapy for post-menopausal osteoporosis. Based upon her medical history, Respondent recognized that the Patient's immune system was possibly compromised and she was a likely candidate to suffer loss of the bone supporting her teeth. During her first visit, Respondent performed a complete periodontal examination, charting all of the Patient's visible defects. The Patient was diagnosed as having "chronic gingivitis [and] furcation involvement." Respondent noted bone loss of between three to five millimeters around teeth 23, 24, 25, 26 and 27. On July 19, 1983, the Patient returned to Respondent's office at which time his hygienist performed a prophylaxis. The Patient was advised that she should anticipate the need to address other aspects of her periodontal condition. The Patient visited Respondent's office four times in 1984, six times in 1985, and two times in 1986 for routine dental procedures. On August 12, 1986, Respondent informed the Patient of certain undesirable changes in the health of the bones of her jaws and the condition of her teeth. Respondent advised the Patient that she was losing the support for some of her teeth and bone was disappearing around some of the roots. The Patient was told that she should seek treatment for these matters or she would risk more serious problems down the line. The Patient indicated that she would let Respondent know when she desired any additional treatment. On January 29, 1987, Respondent performed a full-mouth series of x- rays to evaluate the Patient's worsening periodontal status. The Patient returned in August of 1987, at which time she had to have the two fractured roots of tooth number 30 extracted. It is not clear why the Patient did not return until August of 1987. On September 3, 1987, the Patient returned for the removal of the sutures and the area seemed to be healing well. The Patient's next visit to the Respondent's office was on October 1, 1987. During that visit, Respondent examined and charted the Patient's mouth and developed a treatment plan with multiple stages and options. Respondent's treatment plan included the making of a bridge for teeth 27, 28 and 29 and the fabrication of a partial denture, either an acrylic wrought clasp type or a chrome frame marked with acrylic saddles. The plan was discussed with the Patient who selected a course of treatment and signed the plan. The Patient was advised by Respondent in October, 1987 of problems on her lower left side that would need attention in the future. Respondent proposed to use a "temporary provisional" partial in order to avoid the cost of making it twice. From October through December, 1987, the Patient returned to Respondent's office approximately twelve times. During this period, Respondent constructed a three-tooth (#'s 27, 28 and 29) porcelain-fused-to-metal splint and a "transitional" acrylic-based partial lower denture. From October 1987 through August 1988, the Patient experienced some discomfort with the acrylic-based partial lower denture. She returned to Respondent's office approximately seventeen times for adjustments, repairs and/or realigns. These visits were necessitated, at least in part, by the ongoing physiological changes in the Patient's lower jaw during the first year after the extraction of her lower right molar. In August of 1988, the Patient experienced some discomfort on her lower left side. On August 11, 1988, she consulted with the Respondent who confirmed the loss of bone in that area. On August 16, 1988, Respondent performed another complete periodontal examination. Respondent found that the Patient had pockets of approximately 6 to 7 millimeters around teeth 23, 24, 25 and 26. In other words, the Patient's periodontal health was not good and there were great stresses on her teeth which were significantly out of bone. With the aid of x-rays, Respondent generated a diagnosis and treatment plan which was accepted and signed by the Patient. Respondent's plan was to further explore the condition of the Patient's lower left side, extract non-salvageable teeth and modify her recently made partial lower denture to accommodate the teeth that had to be removed on the lower left side. On October 16, 1988, Respondent began this treatment plan and determined that the roots of two of the teeth were so badly infected and diseased that they were non-salvageable. The existing bridge was severed and the four roots from teeth 18 and 19 were removed. A new bridge was made and the teeth that had been removed were added to the removable partial. At this point, the Patient's right side had still not completely healed. During the remainder of 1988, Respondent continued to make adjustments to the Patient's partial lower denture. Many of the adjustments were necessitated by bone recontouring and healing. In December of 1988, Respondent advised the Patient that she needed to have her partial lower denture relined and repaired. The Patient had the denture adjusted on January 24, 1989, but did not have it relined. On February 14, 1989, the Patient telephoned Respondent's office and complained of discomfort. There is conflicting evidence as to whether or not Respondent was in the office on that date. It is not necessary to resolve that issue for purposes of disposing of this case. In any event, the Patient appeared at Respondent's office without an appointment and demanded to see him. After a dispute with the office staff, the Patient left and subsequently refused to return for any further treatment. On May 8, 1989, the Patient went to see another dentist, Dr. Harvey Garrison. On the medical history form that she filled out for that visit, she denied experiencing any pain or discomfort. Dr. Garrison examined the Patient on May 8, 1989 and noted her need for fillings, endontics, prophylaxis and crowns. He did not make any notation that she was experiencing pain or discomfort. The Patient returned to Dr. Garrison's office on June 5 and 8, 1989. Again, there is no notation that the Patient was experiencing any pain or discomfort. Dr. Garrison's records include a notation dated June 27, 1989 which states "27, 28, 29 buccal margins are open plus the patient was made a lower temporary partial. I'm recommending that she contact Broward County Dental Society. The treatment was completed in 1988 by Dr. Fish." In his deposition offered into evidence during this proceeding, Dr. Garrison could not provide any more specific information regarding the open margins he allegedly found and he was unable to provide any further explanation of the Patient's condition on June 26. The Patient was treated by Dr. Garrison on July 26, 1989. The notes from that treatment indicate that the Patient had complained about her "L Part" on June 27, 1989. Dr. Garrison's notes of his examination of the patient on July 26, 1989 indicate that he found open margins around the end of the crowns of teeth #s 27, 28 and 29. There is no chart notation and Dr. Garrison does not recall the location or extent of the margins. His notes do not reflect any clinical significance or treatment necessary. On July 26, 1989, Dr. Garrison began to treat the Patient's upper arch. On November 21, 1989, he provisionally inserted ten crowns and a partial upper removable denture that he had fabricated. Dr. Garrison's notes do not reflect any further complaint of pain or treatment regarding the lower denture until November 20, 1989 when the Patient's lower partial denture was sent to a dental laboratory for repair. Dr. Garrison does not know the extent of the repair. The Patient testified that Dr. Garrison did not do any work on her lower denture. Dr. Dixon, Petitioner's expert, assumed that no work was done on the Patient's lower denture after she left Respondent's care. However, Dr. Garrison's records clearly reflect that the lower partial was sent to the laboratory for repair on November 20, 1989 and Dr. Garrison adjusted the lower partial on November 20 and November 22, 1989. There is no evidence as to the extent of the repairs or adjustments conducted on the lower partial in November of 1989. On November 6, 1989, Dr. Garrison sent a letter to DPR addressed "To Whom It May Concern." The letter states that [DE] came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort. I examined the lower bridge work and found the buccal margins of teeth #27,28,29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. . . . In his testimony for this case, Dr. Garrison could give no further explanation of his findings. When asked to explain why the lower partial was "inadequately fabricated," Dr. Garrison simply said that his office did not like using acrylic for lower partials and he only used acrylic for temporary devices. He admitted that he did not know what the general practice was in other offices. He also admitted that he had not reviewed Respondent's records and did not know what Respondent's treatment plan was for the Patient. From December 19, 1989 through June 5, 1990, Dr. Garrison performed various adjustments and modifications to the fixed bridge he inserted in the Patient's upper arch. It is clear that from November 1989 through June 1990, Dr. Garrison performed many dental procedures which may have significantly altered the Patient's dentition. The extent and impact of the alteration is not clear. On June 16, 1990, approximately a year and a half after Respondent last saw the Patient, D. E. was examined by Dr. Dixon, an expert retained by DPR to evaluate Respondent's treatment of the Patient. Dr. Dixon's examination included the taking of an x-ray, a photograph, a bite registration and a bite impression or study model. Apparently, all of those items were misplaced, and none of them were ever made available to Respondent to review. None of them were offered into evidence at the hearing. As noted in the Preliminary Statement and in the Conclusions of Law, Respondent's Motion In Limine and objection to Dr. Dixon's testimony based upon the failure to produce these items were denied. Nevertheless, the absence of these items is a factor that has been considered in determining the weight to be afforded Dr. Dixon's testimony. Dr. Dixon testified that the three-tooth bridge (splint) for teeth #27, 28 and 29 did not meet community standards because it had open margins and improper occlusion. Dr. Dixon also testified regarding other deficiencies that he says he found in Respondent's treatment of the Patient, including clasps that were too tight and an improper adaptation (fit) of the denture to the lingual portion of the Patient's teeth. As discussed in the Conclusions of Law below, the Amended Administrative Complaint does not specifically charge Respondent with all of these purported deficiencies. In any event, after considering all of the evidence, Dr. Dixon's conclusions and opinions regarding Respondent's treatment of the Patient are not convincing. Dr. Dixon admitted that he had not read Dr. Garrison's records. At the time of his examination of the Patient and at the hearing, Dr. Dixon did not know that the Patient's lower partial had been adjusted and repaired by Dr. Garrison. He also did not know that Dr. Garrison had treated the Patient's entire upper arch. Dr. Dixon admitted that it was important to know exactly what Dr. Garrison had done for the Patient and/or how it affected the dentistry performed by Dr. Fish. However, the evidence indicates that Dr. Dixon did not have the benefit of this information. Thus, he was unable to comment on the impact that Dr. Garrison's treatment had on the Patient's occlusion. A review of the x-rays taken by Respondent and those taken subsequently by Dr. Garrison indicates there was some movement of the posts and necessarily the crowns away from the teeth (roots) with the passage of time. In addition, because of the extensive surgery conducted on the Patient's mouth and because of her age and medical condition, a lengthy recovery process with tissue shrinkage and bone recontouring could reasonably be expected. In view of all the factors, the evidence was insufficient to show that any negligence or incompetence by Respondent was responsible for the inadequacies that Dr. Dixon observed in the Patient's lower partial denture and/or splint. It should also be noted that Dr. Garrison was unable to testify with any specificity regarding the deficiencies in Respondent's work. At the hearing and in his proposed recommended order, Respondent referred to the lower partial denture that he made for the Patient as "transitional" or "temporary." It is not entirely clear what Respondent meant by these references. The Patient clearly did not understand that Respondent intended to fabricate a "permanent" partial denture in the future. Petitioner has suggested that Respondent's use of acrylic in fabricating the lower partial denture for the Patient was improper. Even assuming that this allegation fits within the scope of the Amended Administrative Complaint filed in this matter, the evidence presented was insufficient to establish that Respondent's use of this material given the facts and circumstances of this case fell below the minimum standards expected of a dentist in this community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a Final Order finding the Respondent, Robert J. Fish, not guilty of the allegations set forth in the Amended Administrative Complaint and dismissing the charges. DONE and ENTERED this 24th day of January 1994, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 24th day of January 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-687 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 21-23. Subordinate to Findings of Fact 21-25. Subordinate to Findings of Fact 30. Adopted in substance in Findings of Fact 32. Subordinate to Findings of Fact 33. Subordinate to Findings of Fact 35. Respondent's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 4. Rejected as unnecessary. The first sentence is adopted in substance in Findings of Fact 4. The second sentence is rejected as unnecessary. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 10-14. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 15. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 17. Adopted in substance in Findings of Fact 17. Subordinate to Findings of Fact 18. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 18. 25.-33. Subordinate to Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 23. Subordinate to Findings of Fact 24 and 25. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 28 and 30. Adopted in substance in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative and subordinate to Findings of Fact 30. Rejected as constituting legal argument rather than a finding of fact. This proposal is an incorrect statement of the ruling made at the hearing. Adopted in substance in Findings of Fact 28. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 31. Adopted in substance in Findings of Fact 32. Adopted in substance in Findings of Fact 32. The first sentence is adopted in substance in Findings of Fact 32. The remainder is rejected as constituting argument. The subject matter is addressed in the Preliminary Statement and the Conclusions of Law. Adopted in substance in Findings of Fact 33. Subordinate to Findings of Fact 34. 57.-58. Subordinate to Findings of Fact 32 and 35. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as unnecessary. Subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 34. Rejected as constituting argument. This subject matter is addressed in Findings of Fact 33. Rejected as unnecessary and subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 28 and 34. Subordinate to Findings of Fact 33 and 35. Rejected as constituting argument. The subject matter is addressed in paragraph the Conclusions of Law. Adopted in substance in Findings of Fact 33 Adopted in substance in Findings of Fact 33 and in the Conclusions of Law. Subordinate to Findings of Fact 33. Rejected as unnecessary. Rejected as vague and ambiguous. Rejected as constituting argument. Rejected as unnecessary. COPIES FURNISHED: Ashley Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Max R. Price, Esquire Solms & Price 6701 Sunset Drive, Suite #104 South Miami, Florida 33143 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent has been a licensed dentist in the State of Florida, having been issued license number DN 0004795. On April 30, 1981, Fay Ackret, an 84-year-old female with arthritis, consulted Respondent seeking both full upper and full lower dentures, since she had broken the set that she had been using for the last twenty years. Because Ackret's lower ridge was almost non-existent, Respondent recommended a lower cushion denture. Ackret advised Respondent she wanted porcelain teeth. On July 16, 1981, Ackret returned. Respondent examined her, and preliminary impressions were taken for the full upper and full lower dentures to be constructed with porcelain anterior teeth, and acrylic posterior teeth. Final impressions were taken on July 23, 1981; additional measurements and a bite block impression were taken on July 30, 1981; a try-in was done on August 5, 1981; and the dentures were delivered on August 12, 1981. Thereafter, Ackret returned for adjustments on August 18, 1981; August 31, 1981; November 12, 1981; November 18, 1981; December 15, 1981; January 6, 1982; January 11, 1982; January 19, 1982; February 2, 1982; February 15, 1982; February 24, 1982; March 2, 1982; March 8, 1982; and March 23, 1982. One of those visits involved, according to Respondent's records, a "major adjustment" and on one visit, her dentures were sent back to the lab for rearticulation. On June 3, 1982, Dr. Marshall A. Brothers examined Ackret on behalf of Petitioner. Ackret complained to him of pain and of not being able to function with her dentures or to retain them in her mouth during functioning. However, Ackret was wearing the dentures when she was seen by Brothers. Based upon his examination of Ackret and her dentures, Brothers concluded that the dentures Ackret got from Respondent failed to meet minimum acceptable standards due to numerous defects. The opinion of Brothers fails to take into account the numerous adjustments made to the dentures in an attempt to make Ackret comfortable with her new dentures. The number and kind of adjustments render the denture seen by Brothers to be substantially different than the denture originally fabricated by Respondent. Additionally, Ackret's lower denture had undergone a hard reline by the time she was seen by Brothers. Although Ackret had complained to Brothers that she could not eat with her new dentures and could not function with them, she in fact was wearing them for her visit to Brothers, and Brothers noted that food had collected on them, indicating that Ackret was in fact using her dentures for eating. On December 7, 1982, Ackret appeared at the dental office of Dr. Harry B. Gaulkin. She advised Gaulkin that her upper denture gave her no problems at all, but that her lower denture was not comfortable. She further advised that she could not chew well with the lower denture, and that it was loose. She then requested that Gaulkin make a new set of dentures for her, both full upper and full lower. Gaulkin initially suggested to Ackret that she simply consider a soft reline on the lower denture since the upper denture was not problematic. After Gaulkin discussed with her her various options and the prices thereof, Ackret left his office to think about what she wanted to have done. She has never returned. Gaulkin is not able to identify Ackret's exact complaints regarding her lower denture and did not note any defects in the set of dentures. A few months prior to the final hearing in this cause, Ackret appeared at Respondent's office complaining that she had broken a tooth off her denture.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed against Respondent herein. DONE and ORDERED this 20th day of January, 1985, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, NJ 07201
