The Issue At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," as well as an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes (1995), now codified at Section 120.569(1)(c), Florida Statutes (1997), as alleged in the amended petition for attorney's fees and costs.
Findings Of Fact Findings related to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes (1997). At all times pertinent to this proceeding, Robert J. Fish, D.D.S. (Dr. Fish) was licensed to practice dentistry in the State of Florida, having been issued license number DN 000 5694. On or about August 22, 1989, D. E. (the "Patient") filed a written complaint with the Department regarding the care and treatment that she had received from Dr. Fish. The complaint provided: On June 27, 1989 I came to see Dr. Garrison complaining about my lower partial made by Dr. Fish in 1988. Dr. Garrison examined [my] Lower Right #27, 28, 29 and found Buccal margins to be opened. Also, the Lower Partial is the kind his office uses as a temporary. Considering the amount of money paid, Dr. Garrison recommended that I consult with the Broward County Dental Assoc. They in turn told me that . . . they do not handle this type of problem and advised me to get in touch with the Fl Dept of Professional Regulation. As per my conversation with Mr. Hunter of your dept I filled these forms out and am enclosing zerox copies of my cancelled checks relating to payment and statements and other papers with pictures of my teeth. Should I have overlooked anything that I should have sent you kindly let me know. To the lay eye, the Patient's complaint would seem to relate to one matter, that being a lower partial, whose construction was more consistent with a temporary or transient appliance, as opposed to one intended for permanent use, and whereon the Buccal margins of teeth number 27, 28, and 29 were found to be open. In fact, as the investigatory record discloses, there are actually two separate items in the Patient's complaint. First is the complaint associated with open margins noted on teeth 27, 28, and 29. Those teeth are part of a fixed bridge installed by Dr. Fish, and distinguishable from the Patient's lower partial (denture), which was a removable appliance.3 Following receipt of the complaint, the Department began its investigation in accordance with Section 455.225(1), Florida Statutes. The matter was assigned DPR Case No. 89-09812. By letter of October 9, 1989, the Department advised Dr. Fish of the Patient's complaint, as follows: THE PATIENT STATES that you provided lower partial for teeth #27, #28 and #29 in 1988. Complainant alleges subsequent dentist advised her that buccal margins are open. She further has been advised that the partial denture that you indicated was a permanent- denture is the type that is normally used as a temporary denture. Apparently, at this stage, the Department did not appreciate the nature of the Patient's complaint or, as observed in Endnote 3, the significance of the language it used to convey the Patient's complaint to Dr. Fish. In response to the Department's letter, Dr. Fish forwarded to the Department copies of the Patient's records, including x-rays. Additionally, Dr. Fish provided the following written response regarding the lower partial (denture): This patient is high strung and often incoherent, she often appears to be suffering from memory loss, i.e. Alzheimer's disease. The lower partial was made as a provisional partial due (sic) the extraction of several teeth. The patient was informed that upon sufficient stabilization of the boney ridge she could obtain a cast frame & acrylic partial. She refused to have any relining procedures which are necessary as bone resorbtion takes place. This option is still available to her. Dr. Fish's response did not address the open Buccal margins noted on teeth 27, 28, and 29; however, as heretofore noted, that question was unrelated to any complaint the Patient might have voiced regarding the lower partial. Pertinent to an understanding of the Patient's complaint, the Patient's records reveal the following two treatments. First, in October and November 1987, Dr. Fish undertook preventive and reconstructive work on the lower (mandibular) right side of the Patient's mouth. That work consisted of the replacement of the existent crowns on teeth 27, 28, and 29, with a ceramic three unit lower right bridge (also referred to as a three unit lower right splint), consisting of three individual crowns on teeth 27, 28, and 29, tied together (splinted) to strengthen the periodontally involved teeth. Contemporaneously, Dr. Fish replaced the lower right molar (tooth 30) with a removable wrought wire and acrylic partial (removable denture). Second, in September 1988, Dr. Fish undertook preventive and reconstructive work on the lower left side of the Patient's mouth. At that time, an existing five unit bridge (teeth 18 through 22) was severed, the bridge for teeth 18 through 20 was removed, and teeth 18 and 19 were surgically extracted. Thereafter, the lower partial which had replaced the molar on the lower right side was modified to include the replacement of teeth 18, 19, and 20 on the lower left side. This lower wrought wire and acrylic partial (removable denture), which replaced the molar on the lower right and the teeth 18, 19, and 20 on the lower left, was the lower partial the Patient complained of to the Department. As part of its investigation, the Department also contacted H. B. Garrison, D.D.S. (Dr. Garrison), who succeeded Dr. Fish as the Patient's treating dentist. Dr. Garrison provided the Department with the Patient's records, including x-rays, and by letter of November 6, 1989, advised the Department that: [D. E.] . . . 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.4 I examined the lower bridgework 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. If I can be of further assistance to you, please do not hesitate to contact me. Thank you. Given the Patient's records provided by Dr. Fish and Dr. Garrison, as well as Dr. Garrison's response, it is evident that there were two concerns raised by the Patient. First, the buccal margins observed on teeth 27, 28, and 29 of the lower right bridge, and second the adequacy of the lower partial. The Department presented its investigative report, together with the supporting documentation heretofore discussed, to the Probable Cause Panel of the Board of Dentistry (the Panel) for its consideration. Contemporaneously, the Department's counsel presented a draft closing order, which proposed a finding of probable cause with regard to the inadequacy of the lower partial and closure with a letter of guidance. No mention was made of the concerns related to the lower right bridge. The proposed order read as follows: CLOSING ORDER THE COMPLAINT: The Subject's treatment failed to meet the minimum standard of care. THE FACTS: The Subject provided patient D.E. with a lower denture which was allegedly unsatisfactory and has allegedly refused to correct the problem. Patient D.E. presented to a subsequent treating dentist who stated that the denture prepared by the Subject was inadequately fabricated. When contacted, the Subject stated that the denture provided to patient D.E. was made as a provisional partial due to the extractions of several teeth. The patient was informed by the Subject that upon stabilization of the lower ridge, she could obtain a cast frame and acrylic partial. The patient refused to have any relining procedures, which are necessary as bone resorption takes place. THE LAW: Based on the foregoing, probable cause does exist to establish a violation of Section 466.028(1)(y), Florida Statutes, however, this case will be closed with a letter of guidance. IT IS, therefore, ORDERED that this matter be, and the same is hereby, CLOSED. DONE and ORDERED this day of , 1990. CHAIRMAN, PROBABLE CAUSE PANEL BOARD OF DENTISTRY On April 27, 1990, the Panel met to resolve whether probable cause should be found and, if so, the appropriate disposition of the complaint. Initially, the Panel voted to find probable cause and to close the case with a letter of guidance, as recommended by the proposed closure order submitted by the Department's counsel; however, upon realizing that Dr. Fish had one prior disciplinary matter and two more cases pending on "below standard of care issues," the Panel elected to withdraw its decision to close with a letter of guidance and directed the Department to file an administrative complaint "based on a single charge of inadequate lower denture," a perceived violation of Section 466.028(1)(y), Florida Statutes. With regard to the separate matter relating to perceived deficiencies (open margins on teeth 27, 28, and 29) in the Patient's lower right bridge, the panel took no action. In May 1990, following the Panel's finding of probable cause, the Department employed Mervyn Dixon, D.D.S., as an expert to evaluate the Patient's compliant, and, by letter of May 25, 1990, the Department's counsel advised Dr. Dixon of the following matters: Thank you for consenting to review the enclosed case. . . . The Probable Cause Panel reviewed the merits of this claim on or about April 27, 1990. They determined that an expert review was necessary to properly evaluate the veracity of the complaint.5 A clinical examination of the patient may be necessary in order to make an evaluation. Please do not hesitate to accomplish a patient examination if it is deemed necessary. This particular patient does not have access to transportation. It will be necessary to coordinate with the Bureau of Investigative Services in order to provide transportation. As always, your prompt attention to this case and the receipt of your report within thirty (30) days will be greatly appreciated. . . . Dr. Dixon examined the Patient on June 16, 1990, and, by letter of June 21, 1990, reported the results of that examination to the Department, as follows: On June 16, 1990, I performed a dental clinical exam for patient D.E. in my office. Since the complaint was limited to the mandibular arch, I merely noted that the patient presented with a full maxillary denture. The following findings were observed in the mandibular arch: 1.) the patient was wearing a wrought wire and acrylic lower partial 2.) a ceramic 3 unit bridge was present on teeth #'s 27, 28, 29 3.) a gold and acrylic 2 unit bridge was present on teeth #'s 21 and 22 4.) the four mandibular incisors were natural teeth and free from marked periodontal disease. The right three unit ceramic bridge exhibited the following: 1.) #27 has an open facial margin that would admit an explorer 2.) #28 has an open margin that would admit an explorer 3.) #29 exhibited a grossly open margin both facial and distal 4.) the only occlusion (partial out) was provided by tooth #28 - see enclosed bite registration 5.) also please see enclosed x-ray The mandibular wire and acrylic partial exhibited extremely tight clasps and the lingual adaptation around the teeth and crowns was very poor. Please see enclosed study model. It is my conclusion that neither the mandibular ceramic 3 unit bridge or the mandibular wire and acrylic partial meet community standards. I have provided the x-ray, photo, bite registration and study model as evidence since it is necessary for the patient to have these items replaced.6 In the process of replacement, they will be destroyed. On September 6, 1990, the Department issued an administrative complaint against Dr. Fish (DPR Case No. 89-009812) and on October 9, 1991, an amended administrative complaint.7 The amended complaint was served on Dr. Fish on October 15, 1991, and contained the following allegations upon which the Department proposed to take disciplinary action against Dr. Fish's license to practice dentistry: On or about October 1, 1987, patient D.E. presented to the Respondent [Dr. Fish] for bridgework on teeth #27, #28, and #29. On or about September 15, 1998, D.E. presented to the Respondent for a lower partial. On or about May 8, 1989, D.E. presented to a subsequent treating dentist complaining about discomfort with his (sic) lower partial. The subsequent treating dentist examined patient D.E.'s bridgework and observed the buccal margins of teeth #27, #28, and #29, were inadequately sealed. He also noted that the lower partial was the type usually used as a temporary partial. On or about June 16, 1990, patient D.E. presented to a departmental expert for examination. The consultant observed the teeth #27, #28, and #29 contained open margins. Failure to adequately provide a lower denture that was absent any open margins is failure to practice dentistry within the minimum standard of care as recognized by the prevailing peer community. Based on the foregoing, the Respondent is guilty of violating the following statutory provisions: Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of card (sic) in diagnosis and treatment when measured against generally prevailing peer performance. The administrative complaint filed by the Department is at material variance with the directions of the probable cause panel. Notably, while the complaint perceives the distinction between the two treatments (bridgework and lower partial) which formed the basis for the Patient's complaint, it bases the perceived violation of section 466.028(1)(y) on problems associated with the bridgework. The Panel did not find probable cause, nor direct the filing of a complaint, regarding the bridgework but, rather, the lower partial (denture). Dr. Fish filed an election of rights whereby he disputed the allegations contained in the amended administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Consequently, the case was referred to the Division of Administrative Hearings (DOAH) to conduct the formal hearing Dr. Fish had requested. The case was docketed as DOAH Case No. 92-0687. A formal hearing on the administrative complaint was held on June 1, 1993, where proof was offered and received regarding perceived deficiencies in both treatments (the bridgework and lower partial) provided by Dr. Fish. Subsequently, on January 24, 1994, a Recommended Order was rendered which concluded, inter alia, that the Department had failed to establish, by the requisite degree of proof, that, with regard to either the bridgework or the lower partial denture, Dr. Fish had failed to meet the minimum standard of care in diagnosis and treatment, and recommended that a final order be entered dismissing the amended administrative complaint. On April 16, 1994, the Board of Dentistry (Board) met to consider the Recommended Order. At the time, no exceptions had been filed by any party, and the Department recommended that the Board adopt the findings and recommended dismissal contained in that order. Notwithstanding, following discussion, the Board resolved to remand the case to the Division of Administrative Hearings. The Order of Remand was issued May 13, 1994. Following consideration of the parties' responses to the Order of Remand, the presiding officer entered an order (Order on Remand) on December 7, 1994, declining remand. That order, while amplifying upon the basis for certain factual findings and conclusions reached related to credibility, concluded that the Board had not presented any compelling reason to reconsider the findings of fact, conclusions of law, or recommended disposition contained in the Recommended Order. On January 6, 1995, the Board met to consider the Recommended Order and Order on Remand, and on February 25, 1995, entered a Final Order. The Final Order, with nominal modification, adopted the findings of fact and conclusions of law set forth in the Recommended Order, as well as the recommended disposition, and dismissed the amended administrative complaint filed against Dr. Fish. Findings related to the claim for attorney's fees and costs Pertinent to the claim for attorney's fees and costs, it is observed that the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Fish prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs is appropriate provided Dr. Fish can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust. Addressing first Dr. Fish's status, the proof demonstrates that at the time the underlying proceeding was initiated Dr. Fish was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes. Supportive of such conclusion is the proof of record which demonstrated that, at all times material: (1) Dr. Fish was the sole owner of, and operated his dental practice as, an unincorporated business; (2) that the principal place of business for his dental practice was Broward County, Florida; (3) that Dr. Fish resided in Broward County, Florida, and had been domiciled in the State of Florida since 1973; and, (4) that Dr. Fish's business did not employ more than 25 full time employees and his net worth, including both personal and business investments, was less than two million dollars. Next, it must be concluded that the Department failed to demonstrate that its actions were substantially justified or that special circumstances existed which would make an award unjust. Dispositive of this issue is the proof which demonstrated that the Panel did not find probable cause to conclude that the bridge work provided by Dr. Fish fell below community standards and did not direct the Department to file an administrative complaint on such issue. Therefore, the Department was without any factual or legal basis to file a complaint challenging the adequacy of the bridgework installed by Dr. Fish.8 Consequently, Dr. Fish is entitled to an award of reasonable attorney's fees and costs under Section 57.111, Florida Statutes.9 Here, Petitioner's counsel claims $25,511.50 (based on 184.5 hours) as attorney's fees, and $1,699.06 as costs, reasonably and necessarily incurred in the underlying proceeding. The Department, as heretofore noted, did not oppose the request for attorney's fees and costs by affidavit, but responded that it "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Thereafter, the Department never filed an affidavit, as required by law, opposing the request for fees and costs, did not question or oppose any portion of the request during hearing, and has not objected to any of the requests post- hearing. Section 57.111(4)(c), Florida Statutes, and Rule 60Q- 2.035(4), Florida Administrative Code. Indeed, the only proof of record regarding the reasonableness and necessity of the attorney's fees and costs sought was offered by Dr. Fish. With regard to attorney's fees, that proof suggested that the hours dedicated to the case (184.5) were reasonably and necessarily incurred, and that the hourly rate sought (an average of slightly over $138.00 per hour) was reasonable and less than the community standard of $175.00 per hour. Consequently, the attorney's fees sought in the sum of $25,511.50 were reasonable. With regard to costs, the proof observed that the $1,699.06 claimed was "reasonable." (Petitioner's Exhibit 2). Given the provisions of section 57.111(4), and the record, Petitioner's claim of attorney's fees in the sum of $25,511.50, and costs in the sum of $1,699.06 are, without further discussion, found reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Cosmetology enter a final order that petitioner Forchion receive a failing grade of 74 on the practical examination and that her application for licensure accordingly be denied at this time. RECOMMENDED this 2 day of July, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2 day of July, 1984.
Findings Of Fact At all times pertinent to the allegations in the Administrative Complaint, the Respondent was licensed as a dentist in Florida and the Petitioner was the state agency charged with regulating the practice of dentistry in this state. In June, 1984, Morris W. Kemmerer went to the Respondent, Peter M. Kurachek's, dental office because he needed dental work done and Respondent's office was handy. He was examined on this first visit by the Respondent and told Respondent what he wanted. Respondent went to work right away and within a few minutes of the patient's sitting in the chair, pulled a tooth which had broken and had to come out. Though Mr. Kemmerer had asked Respondent to put him to sleep for the extraction, Respondent did not do so. Respondent told Mr. Kemmerer what he planned to do as a course of treatment, and advised him of the expected cost and how it could be paid. Mr. Kemmerer claims he did not take a dental history nor did he, at any time, either before or after the work was done, discuss the patient's oral hygiene which was, supposedly, poor. The chart prepared by Respondent on Mr. Kemmerer contains, aside from notations as to work done, only the most basic information, such as allergies and prior medical condition, as well as current status of the mouth. Though minimal, it can be considered a dental history. After the initial procedure done the first day, Mr. Kemmerer returned to Respondent's office every day for awhile. On his second visit, the Respondent told him he needed a bridge and, though Mr. Kemmerer's memory on the matter is poor, probably told him of the remainder of the course of treatment. The bridge in question was necessary because the tooth Respondent pulled on the first visit was the one to which Mr. Kemmerer's existing bridge was anchored, and extraction of that anchor tooth required Respondent to make another bridge to be affixed to the next sound natural tooth. However, Mr. Kemmerer recalls that the bridge made for him by the Respondent did not fit correctly from the beginning and Respondent had to make several for him before a reasonably comfortable fit was finally achieved. This was done by grinding down Mr. Kemmerer's opposing natural teeth. Even with that measure, however, the fit was never completely correct. Respondent also made an additional partial denture for Mr. Kemmerer which could never be worn because it didn't fit. When Mr. Kemmerer told Respondent about this, he tried to fix it but was not able to do so satisfactorily and Mr. Kemmerer suffered an extended period of pain as a result. Mr. Kemmerer paid Respondent approximately $1,700.00 for the work done and did not see him again after August 9, 1984. Even though the work done was not to his satisfaction, Mr. Kemmerer did not see another dentist because he could not afford to do so. However, at the suggestion of his coworkers, he agreed to see Dr. Philip M. Davis, II, another dentist in Sarasota who, after an examination, told him the work Respondent had done had to be done over. Mr. Kemmerer ultimately contacted the Department of Professional Regulation about the treatment he received from the Respondent and filed a civil suit against Respondent, settling without trial for $3,000.00. The fact that the suit was settled in Mr. Kemmerer's favor has no bearing on the issue of care involved in this hearing and is not considered. Dr. Davis first saw Mr. Kemmerer as a patient on June 11, 1986 when Mr. Kemmerer presented himself complaining of swelling and pain in a right upper molar, (tooth 4). Upon examination, Dr. Davis found the patient had a partial bridge with crown and observed that the crown margins did not touch the prepared edge of the supporting tooth as they should. His x-rays taken at the time showed Mr. Kemmerer had an infection in the tooth and when he opened it through the crown, he found a space filled with cement, food, and waste, and that the tooth tissue was leathery. All that indicated to him that decay had gotten up under the crown and the base of the tooth had rotted because, in his opinion, the crown edge, (margin), did not properly fit to the tooth base. Dr. Davis noted that the margins of several crowns prepared by the Respondent several years earlier, were not good fits. Photographs of Mr. Kemmerer's mouth made in August, 1987 and October, 1988, as much as 3 and 4 years after completion of Respondent's work, reveal that at that time the margins on several teeth were substantially open. When Dr. Davis saw Mr. Kemmerer in 1986, he noted that the bridge constructed by the Respondent had been cemented to the abutment teeth which also had open margins. Regarding the specific teeth in question, photos of tooth 4 show a failure of the margin of the crown to touch the tooth and the preparation thereof. This indicates the crown was not properly fitted to the prepared tooth. It had never fully seated on the tooth and appeared to have been cemented in a suspended position above the tooth instead of being seated down on it. Insertion of a crown such as this one is a routing procedure and is not particularly complex. By not properly seating the crown, the installer, (Respondent), left an open space for saliva to enter and wash out the cement. Acceptable tolerance for a margin of this nature is 40 microns, (40/10,000 in.). On tooth 4, the margin was 2 mm short on the cheek side and 3 mm short on the tongue side. This led to the cement being washed out and to the entry of food and bacteria resulting in decay and infection of the bone. Had the crown been seated properly, it should have lasted for 10 - 20 years or more, absent trauma. As to tooth 11, examined by Dr. Davis on July 21, 1986, again, the crown margin was found to be well shy of the preparation margin on the tooth. On the tongue side, the crown was 1 mm short of full seating and was pulled away from the tissue. On the cheek side, the crown was too bulky for the preparation and did not match with a smooth, continuing surface. When Dr. Davis examined tooth 6 that same day, he found that here, too, the crown was too bulky and the margin did not fit. On the tongue side, it was 1/2 mm short and allowed food and bacteria to get up into an area of the tooth where the patient could not get it out. Dr. Davis did not measure the degree of separation, if any, on the cheek side. He did, however, find that on tooth 10, the margin was at one point 1/2 mm off and allowed food and bacteria retention. With regard to tooth 7, Dr. Davis found the margin on the lip side to be excessively heavy, (overbuilt), and on the tongue side, to be 1/2 mm short. In none of these cases were the margins acceptable as they far exceeded the 40 micron tolerance. These observations were confirmed by an examination of Mr. Kemmerer conducted at the request of the Board of Dentistry on May 13, 1987 by Dr. Davis R. Smith, an expert in general dentistry and the Board's consultant. Dr. Smith found the bridge built by Respondent to be poorly fitted around the preparation line of the teeth to which it related. Decay was present in every tooth to which Respondent had fitted a crown. The bridge had come loose, the crowns were not fitted properly, and the margin lines were short, open, and/or overcontoured. On each tooth involved, there was some combination of all those defects. When describing the margin shortage on some of Respondent's work on Mr. Kemmerer, Dr. Smith characterized it as, "ridiculously far off minimum standards." Dr. Smith's measurements were made visually and consisted of his running a probe over the margin seam which, in each case, he found to be excessive. A space of 50 microns can barely be felt with a probe and a space of 30 to 40 microns can barely be seen with the naked eye. Here, the margins were so poor that the space could be visually seen and entered with a probe. Both the experts opinioned that Respondent's seating of the crowns in question, so as to leave extensive gaps at the margins, was below standards. Respondent contends that at the time of installation, the crowns fit properly, and his expert, Dr. Carter, urges that a 1987 review of work done in 1984 cannot determine whether the margins at the time of installation were correct. This is because: Many things could have transpired in the patient's mouth in the interim such as changes in bone and tissue structure or a natural alteration of the appliance; Chemical changes in the mouth can erode tooth structure from beneath the margin, and tooth structure can be removed by cleaning. Respondent also contends that if the margins had been as poor from the beginning as indicated, the patient would have suffered pain and sensitivity associated with them. The evidence clearly demonstrates he did. Both Drs. Davis and Smith were of the opinion that, aliunde the margins, Respondent's office practice and record keeping were poor. In Dr. Davis' opinion, when a patient such as Mr. Kemmerer, of advanced age and obviously poor dental hygiene, comes in, the dentist must do a complete examination and charting to look for gum disease, cavities, occlusion and malocclusion, and evidence of cancer, and the examination should include full mouth x-rays. He must also talk with the patient and see what the patient perceives as his needs. If these are not great, the preliminaries need not be extensive, but in his opinion, to start work immediately, as Respondent did here, was improper since there was no emergency to justify disregard of a full work-up. Under the circumstances, he feels Respondent should have done a complete examination, determined what the patient needed, explained it all to the patient, and lectured on proper oral hygiene instead of jumping right in to do the crown and bridge work. It is found that would be the appropriate course for him to have followed. It must be noted that Mr. Kemmerer came in to Respondent's office indicating he was in pain. Respondent examined him and identified the cause of the pain. He corrected that problem and, in addition, began additional crown and bridge work which, while profitable, was not shown to be unnecessary. The procedures described by Drs. Smith and Davis are unquestionably the clinically appropriate things to do. While Respondent did not do all the things described as appropriate, he did identify his patient's immediate problem and correct it. Either he or his assistant advised the patient to practice better dental hygiene. He also incorporated his findings into his records on this patient. In that regard, the charting practices taught in school are appropriate for a school environment, but what is considered acceptable in private practice is not necessarily as detailed as in school. Respondent's expert is of the opinion that a dentist should advise his patient thoroughly on home care but that advice need not be noted in the records. He has found that records have become verbose, time consuming, and generally a pain in the neck, and, more importantly, record keeping such as is suggested, takes time away from caring for the patient. Legal action requires the dentist to protect himself, but in Dr. Carter's opinion, one cannot put everything on a chart; only those things which support patient care. While perhaps not conforming to optimum standards of practice, Respondent's actions in regard to record keeping and procedure choice cannot be said to be materially below standards. The formulation of the treatment plan is the primary responsibility of the dentist. During their examinations, both Drs. Davis and Smith noted that Mr. Kemmerer had lost a lot of enamel from the teeth occluding with the bridge. It appeared this was caused by Respondent's extensive grinding of the natural tooth material down to the dent in in order to get a proper occlusion with the bridgework he had installed, instead of removing the bridge and adjusting it to properly meet the natural teeth, or making another which did fit. Neither expert considered the worn condition of Mr. Kemmerer's teeth to be the result of natural grinding or bruxism. In any case, Respondent could have polished the rough enamel so as to reduce the resultant abrasion and he failed to do so. Respondent's actions here were, in the opinion of the Board's experts, below practice standards, and it is so found, notwithstanding Dr. Carter's testimony tending to exculpate Respondent's actions. Dr. Carter claims that Respondent's use of porcelain in the bridge, which, since it is harder that normal tooth tissue, will wear it down, was appropriate. He also asserts that if the patient did not wear his tooth 2 - 4 partial, he would still have had the abrasion problem because all chewing force being applied on the front teeth would wear them down. On balance, however, the evidence supports more clearly a finding that Respondent knowingly ground Mr. Kemmerer's natural teeth down to achieve the fit rather than taking appropriate corrective action when he found the bridge did not fit properly and he admits to this. The bridge in issue was made of metal and porcelain. When Respondent inserted the upper bridge, it was necessary for him to adjust the occlusions and to do so, he ground down the opposing lower natural teeth so the uppers and lowers would fit harmoniously. He denies that his placing of the upper teeth caused excessive wear on the lower teeth. The reduction in mass of the lower teeth was the direct result of Respondent's grinding down the natural teeth to fit to the false teeth on the bridge. Respondent presented the testimony by deposition of Dr. Hemerick, accepted as an expert in general dentistry. Dr. Hemerick was also offered as an expert in the field of prosthodontics. Petitioner accepted the witness as an expert in general dentistry but objected to him being classified as an expert in the field of prosthodontics. The objection is well taken. Though the witness is retained as an expert to evaluate dental performance for an insurance company which provides malpractice insurance to many dentists, his stated educational background and experience in the specialized field do not qualify him as "expert" in that specialty. He can, however, appropriately state his opinion as to the Respondent's treatment of Mr. Kemmerer in its totality and concluded that Respondent's treatment met accepted standards. Specifically, he stated that margins, as here, which fit acceptably when installed, can spread and open due to mouth activity over a period of years. What this witness, as well as Dr. Carter overlooks, however, is the excessive thickness of the device at the margin where it abuts the actual tooth. While the margin may open with time, construction material cannot grow on the appliance to make it thicker than when installed, and this, according to Petitioner's experts, was a basis for claiming Respondent's work was below standard in addition to the open margins. However, it is found that the likelihood of the margins opening as much as appears here, by normal mouth activity, is remote. Respondent has been a practicing dentist since 1966 when he got his degree in Kentucky. Over two separate periods, he has practiced in Florida for approximately 14 years. Mr. Kemmerer came to him initially for repair or replacement of a very old, (1943), denture which replaced front teeth 8 and 9 and which was not reparable. Respondent and Mr. Kemmerer discussed possible alternative treatments but both agreed treatment could not be postponed for this demanding cosmetic problem. It seems Mr. Kemmerer was in the real estate profession and needed teeth, and according to Respondent, wanted to leave Respondent's office that day with replacement teeth in his mouth. Respondent agreed to provide them. However, before starting treatment, Respondent determined from his examination of Mr. Kemmerer that due to long neglect of his dental hygiene, major treatment was necessary. Mr. Kemmerer wanted a patch job, Respondent alleges, and he refused to do that. Before work was started, however, Respondent left the room, leaving to his dental assistant the task of advising Mr. Kemmerer of the proposed treatment plan. Respondent had charted Mr. Kemmerer's mouth and instructed his assistant to go over the proposed work with him and give him a price for the work to be done. The assistant was to answer any questions Mr. Kemmerer might have. When Respondent returned to the treatment room, Mr. Kemmerer had a lot of questions to ask. His main concern was whether a new bridge would last. Respondent went over the proposed procedures with him and told him that with good home care, the appliance should last for the rest of Mr. Kemmerer's life. After Mr. Kemmerer met with Respondent's assistant, he elected to have the bridge made. Thereafter, Respondent had his assistant take impressions of Mr. Kemmerer's upper and lower jaw. Respondent anesthetized the upper area to be worked on and began the crown preparation on teeth 4, 6, 7, 10, and 11. He also adjusted the incisal edges on the abutting lower teeth, poured the upper and lower models, made a plastic temporary device for the upper area, and inserted it. There appears to be some dispute over whether Respondent made and utilized study models in the preparation of Mr. Kemmerer's appliance. He claims he did and there is little evidence to the contrary. Certainly, models were made and whether these constitute the required models has not been defined. It was obvious to Respondent early on that Mr. Kemmerer did not practice good dental hygiene. When Mr. Kemmerer returned to the office with stains on the temporary after only a short period of insertion, Respondent became concerned over his dental practices. However, it was not so bad a situation as to cause the needed repairs to be deferred and in Respondent's opinion, it was safe to begin the restorative treatment regardless of the fact that Mr. Kemmerer required periodontal treatment as well. It also appeared to Respondent that Mr. Kemmerer was an individual who was very susceptible to pain. It is because of this he believes that if all the margins had been open from the beginning, as alleged in the Complaint, Mr. Kemmerer would have sustained a lot of pain right away. At no time, however, during treatment, and after insertion of the permanent appliance did Mr. Kemmerer complain to him of pain. Respondent also contends that according to the records kept by Dr. Davis, when Mr. Kemmerer went to him in 1986, he complained of suffering pain for only 2 days. Respondent claims to have constructed in excess of 1,000 partial bridges in his 20 year career. He agrees that the margins as they now exist in Mr. Kemmerer's mouth are not acceptable and are excessive. However, he contends, these conditions did not exist when he placed the bridge and there were no open margins. It is his practice, he alleges, to return for reconstruction any bridge which does not fit properly and if at insertion this bridge had had the margins it now has, he would have done it over at no charge. He claims he saw Mr. Kemmerer's bridge on five separate occasions after it was inserted and claims never to have seen any open margins. However, Mr. Kemmerer's record shows that he only came back twice after the bridge was inserted and Respondent, commenting on the alleged lack of "follow-up" stated that after the bridge was completed and inserted, Mr. Kemmerer didn't come back. It would appear Respondent's memory is somewhat less than complete. Respondent also sees no problem in his ability to complete Mr. Kemmerer's work within 4 weeks from initial visit. When comparing that with the other expert's estimate of 6 to 9 months for completion of a proper treatment for this patient, Respondent claims the longer period is for rehabilitation of the entire mouth which, he asserts, he did not propose or agree to do. It is found that Respondent's operation is one of direct response to a particular problem, and he is not a provider of broad scale dental care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice dentistry in Florida be suspended for a period of six months and he be fined $3,000.00, and that when reinstated, he be placed on probation, under such terms and conditions as the Board may prescribe, for a period of three additional years, these actions to run concurrently with the penalty, if any , imposed by the Board in its action, when taken, in its allied cases involving Respondent, heard under DOAH case numbers 89-1240 and 89-1241. RECOMMENDED this 21st day of November, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5544 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by Petitioner in this case. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. COPIES FURNISHED: David Bryant, Esquire 13015 North Dale Mabry Highway Suite 315 Tampa, Florida 33618 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Blvd. Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The ultimate issues to be decided in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the practice of dentistry and, if so, whether his license should be revoked or suspended for a specified period, or whether other disciplinary action should be invoked. Petitioner contends that Respondent violated the provisions of Section 466.028(1)(y), Florida Statutes, in connection with his construction and adjustments of a set of upper and lower dentures for Sally Cohen, a former patient. Respondent disputes the allegation and contends that his diagnosis and treatment of Sally Cohen was proper.
Findings Of Fact Petitioner holds license No. 1808 issued by Petitioner and has been licensed to practice dentistry in the State of Florida since 1953. Prior to his being licensed in Florida, the Respondent practiced dentistry in other locations beginning in 1940. Since approximately 1963, the Respondent's practice has been solely in the area of fabricating, constructing, fitting, and adjusting complete and partial dentures. Sally Cohen was formerly a patient of the Respondent. The Respondent first saw her during October, 1978, with a broken lower denture. The Respondent repaired it and refit it in her mouth. The Respondent saw Ms. Cohen in October, 1980. She was complaining of her old dentures. The Respondent observed her dentures and noted that they were slipping. He recommended that she get new dentures, and he told her that he would be able to make the dentures for her. He saw her again in April, 1981, observed the same conditions, and made the same recommendations. Ms. Cohen requested that he fit her for a new set of dentures. The Respondent took impressions, developed models, and sent the models to his laboratory for processing into dentures. When the laboratory completed the manufacture of the new dentures, Ms. Cohen returned to the Respondent's office to have the dentures fitted. The Respondent placed the dentures in her mouth, checked for "occlusion," and observed the fit of the dentures. The term "occlusion" pertains to the manner in which the upper and lower dentures touch. With dentures, it is important that the occlusion is as uniform as possible so as to assure a proper fit and prevent slippage of the denture plates within a patient's mouth. The occlusion and fit of Ms. Cohen's dentures appeared appropriate. The Respondent explained to Ms. Cohen at the fitting that there would be an adjustment period, and he explained good oral hygiene procedures to her. Ms. Cohen's upper ridge was anatomically good, but her lower ridge was in poor shape; and it was difficult to accomplish a fit of the lower plate without "overextending" the denture borders so as to make the lower denture as stable as possible in the patient's mouth. The Respondent ordinarily likes to wait for approximately one week after dentures are fitted to make an adjustment. Ms. Cohen, however, returned to his office on the first day after the fitting, complaining of pain. It appears that Ms. Cohen has a low pain threshold. Respondent again explained proper oral treatment to her. He observed no sore spots of significance in her mouth. He again checked the occlusion and fit of the dentures and observed no problems. Several times thereafter, Ms. Cohen returned to the Respondent's office complaining of pain from the new dentures. Each time, the Respondent checked the occlusion and fit of the dentures. He made minor adjustments. He properly observed the occlusion and observed no problems. The Respondent last observed Ms. Cohen on June 12, 1981. He felt at that time that she was in good condition. The Respondent was going on vacation, and he informed Ms. Cohen that Michael Overleese, the dentist who shared office space with the Respondent, would be handling any adjustments while the Respondent was away. While the Respondent was on vacation from his practice, Ms. Cohen made several appointments to see Dr. Overleese. She continued to complain that the dentures hurt her mouth. She complained of generalized discomfort, but was generally unable to pinpoint a specific area of pain. Dr. Overleese made four adjustments of the patient's dentures during June and July, 1981. He properly observed the occlusion and fit of the dentures. He observed no problems. He felt that Ms. Cohen was not keeping the dentures in her mouth long enough to adjust to them. He did not observe any ulceration or irritation in places where Ms. Cohen indicated she was experiencing pain. Dr. Overleese did grind some spots on the patient's dentures in order to improve occlusion, but this is not an unusual occurrence. Occlusion of dentures can typically always be improved at least slightly. Dr. Overleese was somewhat frustrated with the situation. On her last visit, Ms. Cohen felt that Dr. Overleese told her that she would not be able to return for further adjustments. Dr. Overleese did not give instructions of that sort, but was misunderstood by Ms. Cohen. After the last visit, Ms. Cohen visited a lawyer. The attorney assisted her in filing a complaint with the Petitioner. The Petitioner conducted an investigation and retained Richard A. Saal, D.D.S., to examine Ms. Cohen. Dr. Saal examined her in October, 1981, and observed that there was a premature occlusion. He observed that the first bicuspid on the upper and lower right dentures met prematurely. The premature occlusion was obvious to Dr. Saal. Such an occlusion would result in movement of the denture plates, resulting in pain. Dr. Saal concluded that the most logical explanation for the premature occlusion was improper manufacture and fitting of the dentures or an improper adjustment of the occlusion. While this may be the most common explanation, it is not the only one. Such a prematurity could result from structural problems in the patient's mouth and from changes in the structure. Tooth grinding on the part of the patient or any action that changes the contour of the lower ridge of a patient's mouth could result in such a prematurity. It is not uncommon for such prematurities to develop with dentures that displayed a proper occlusion and fit when first placed in the patient's mouth. Given the fact that the Respondent and Dr. Overleese properly observed the occlusion of Sally Cohen's dentures and observed no abnormalities of the sort observed by Dr. Saal, it is concluded that events which occurred after Ms. Cohen's last visit to Respondent's office resulted in the premature occlusion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Board of Dentistry, dismissing the Administrative Complaint that has been filed against the Respondent, Leonard Foley, D.D.S. RECOMMENDED this 1st day of November, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 1st day of November, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Mr. Samuel R. Shorstein Department of Professional Secretary, Department of Regulation Professional Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Patrick L. Bailey, Esquire Mr. Fred Varn Sullivan, Ranaghan, Bailey Executive Director & Gleason, P.A. Board of Dentistry 2335 East Atlantic Boulevard Department of Professional Post Office Box 549 Regulation Pompano Beach, Florida 33061 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue to be determined in this proceeding is whether Respondent violated section 466.028(1)(x), Florida Statutes (2011), and if so, what penalty should be imposed for the violation.
Findings Of Fact At all times relevant to the allegations in the Administrative Complaint, Respondent was a licensed dentist in the State of Florida, having been issued license number DN 15873. Respondent’s address of record is 17020 County Line Road, Spring Hill, Florida 34610. At all times relevant to these proceedings, Respondent operated a dental practice known as “Smiles and Giggles Dentistry” in Spring Hill, Florida. This case involves Respondent’s diagnosis and treatment of a minor male, M.P., on or about April 26, 2010. In order to understand the care and treatment given to M.P., some definitions relative to the practice of dentistry are in order. Dentists use different terms than laypersons to describe the sides and top of a tooth when recording issues on a patient’s chart (charting) regarding the patient’s teeth. For example, the occlusal surface of the tooth is the biting surface, and its abbreviation is “O.” The lingual surface is the side of the tooth closest to the tongue, and is charted with an “L.” The facial side of the tooth is the side next to the cheek, and is charted as “F,” or as “B,” for buccal. The distal part of the tooth is the part of the tooth facing the back of the mouth and is abbreviated “D,” and the mesial side is the front side of the tooth, and is abbreviated “M.” This case involves the diagnosis of caries, or what are referred to by laymen as cavities. A caries is an area of the tooth that has mineral loss from the production of bacteria. The term “caries” can refer to a single cavity or multiple cavities. An incipient caries is another term for an early lesion, usually confined to the outer layer of the tooth, or the enamel. Depending on the surface of the tooth, an incipient caries can be seen upon visual inspection. If it is on the distal or mesial surface, however, it is not always possible to see incipient caries because the decay is usually blocked by other structures. Gross caries are large cavities that have taken away a large amount of tooth structure, and can also usually be seen on visual inspection. A “pit and fissure” caries is usually confined to the occlusal, facial, or lingual sides of the tooth, and consists of a groove, or pit, in the tooth. Interproximal caries are cavities between the teeth where the teeth touch. They are the most difficult to see upon visual inspection, but are relatively easy to detect on X ray. Diagnosing caries is a multi-step process. First, a dentist conducts a visual examination of the patient, which may include a tactile examination of the teeth. The visual examination is then compared to X rays of the teeth. Experts for both Petitioner and Respondent agree with the American Dental Association (ADA) and the Food and Drug Administration (FDA) statement that an individualized radiographic examination should consist of posterior bitewings with panoramic examination, or posterior bitewings and selected periapical images, and that a full mouth intraoral examination is preferred when the patient has clinical evidence of generalized oral disease or a history of dental treatment. Both agreed that this statement represents the minimum standard of care when diagnosing and treating interproximal cavities. Bitewing X rays are X rays taken in the posterior of the mouth, and can be molar bite-wings or pre-molar bitewings. The film or sensor is placed inside the mouth, and the X ray machine is placed next to the head, on the cheek next to the teeth where the film was placed. These X rays would be considered intraoral X rays. Some panoramic machines are also equipped to take bitewing X rays. Panoramic X rays are considered to be extra- oral images because nothing is placed in the mouth. Here, the patient steps into the machine, bites on something in order to hold his or her head in position, and then the X ray beam and the sensor rotate around the patient’s head in a complete 360-degree circle to obtain an image. Because intraoral X rays are placed right next to the teeth inside the patient’s mouth, the image only passes through the cheek, gums, and bone. With a panoramic X ray, the receptor is outside the mouth, and the X ray emitter has to go completely through the opposite side of the skull and then come through to the outside of the mouth to receive the image. As a result, the panoramic X ray can have a lot of superimposition of structures in the mouth. According to Respondent’s patient records for M.P., when she examined him on April 26, 2010, she performed a comprehensive oral evaluation and took a panoramic X ray, two extraoral films, and four bitewing X rays. Respondent diagnosed M.P. with caries on the distal and occlusal surfaces of tooth number 20; caries on the distal and occlusal surfaces of tooth number 28; caries on the mesial, occlusal, and distal surfaces of tooth number 29; caries on the occlusal and lingual surfaces of tooth number 14; and caries on the occlusal and lingual surfaces of tooth number 15. Teeth numbers 20, 28, and 29 were diagnosed with interproximal decay. Dr. Smith’s records did not indicate what diagnostic methods she used to diagnose the caries. The account history reflects that comprehensive oral evaluation was conducted but no note history was provided. Respondent’s proposed treatment plan for M.P. listed amalgam restorations for two surfaces for teeth 20 and 28; amalgam restoration of three surfaces for tooth 29; resin-based composite restoration for teeth 14 and 15; sealant for teeth 2, 3, 18, 19, 30, and 31; and resin-based restoration of one surface for tooth 9. G.P., M.P.’s guardian,1/ was apparently displeased with the amount of restorative work Respondent proposed. He did not return to Respondent’s office for his next scheduled appointment. Instead, G.P. took M.P. back to W. Scott Wagner, D.D.S., in Jacksonville Beach, who had treated M.P. for approximately eight years before he saw Respondent. Dr. Wagner examined M.P. on May 17, 2010. He took X rays of M.P.’s teeth, which included four bitewing X rays, and performed a clinical examination. In his view, there was one suspicious area on the distal of tooth number 20, but it was not all the way through the dentin. Dr. Wagner decided that, in light of M.P.’s history, he recommended monitoring the tooth and having M.P. engage in better flossing and brushing with the goal of remineralizing the tooth. He did not see any evidence of interproximal caries other than tooth 20, and did not believe that the area on the distal of tooth 20 was worth treating. Dr. Wagner also recommended and applied preventative resin restorations for several teeth, using a flowable composite. Use of a flowable composite is considered a filling because only a dentist, as opposed to a dental assistant, can perform the procedure, but is in the nature of a sealant. Dr. Wagner prefers a flowable composite over a traditional sealant because he believes that the material in a sealant is not strong enough. M.P. did not return to Dr. Wagner’s office after May 17, 2010. The Department presented the expert testimony of Edward R. Zapert, D.M.D., to give his opinion as to whether Respondent deviated from the minimum standards of performance in diagnosis and treatment of M.P. Dr. Zapert is a dentist licensed in Florida since 1983, having been issued license number DN 9761. He is employed by the Department of Health in Leon County and his practice focuses primarily on Medicaid-eligible children. He treats all types of dental problems, from children with near- perfect teeth to those with complex and advanced problems. Dr. Zapert is a faculty member for the University of Florida and is a member of the Florida Dental Association, the American Dental Association, and the Leon County Dental Association. He received his dental education at the University of Connecticut. Dr. Zapert reviewed Dr. Smith’s dental records as well as the X rays obtained by her. He also reviewed the X rays and the deposition of the subsequent treating dentist, Dr. Wagner. The records reviewed are the type of records upon which he would customarily rely for forming an opinion regarding the standard of care and were sufficient for him to form such an opinion. Dr. Zapert did not believe that the X rays of teeth numbers 20, 28, and 29 indicated any interproximal decay, and Respondent’s records did not have any written notations on the X rays. While the number of X rays taken was adequate, the X rays were, in Dr. Zapert’s view, not of high quality. Dr. Zapert opined that Dr. Smith’s diagnosis and recommended treatment of interproximal caries was below minimum standards because the X rays did not indicate the existence of interproximal decay for these three teeth. Dr. Zapert recognized that Dr. Smith did not actually fill the teeth identified in the treatment plan because M.P. never returned for his follow-up appointment. He also acknowledged that in theory, it was possible that Dr. Smith could change her treatment plan before executing it. However, these factors did not change his view that a dentist should be absolutely certain that there is decay before filling a tooth, and that the X rays for teeth 20, 28, and 29 showed no evidence of interproximal decay. Dr. Zapert also reviewed the X rays taken by Dr. Wagner, and concluded that they also showed no evidence of interproximal decay. Respondent presented the testimony of Frank Grimaldi, D.D.S. Dr. Grimaldi is a dentist licensed in the state of California who has practiced dentistry since 1981. He graduated first in his class from the dental school at University of California, San Francisco, where he served on the faculty since 1983. Dr. Grimaldi was the director of the general practice residency program, was a full clinical professor in addition to having a private dental practice, and retired after 31 years at the university last year. He continues to practice dentistry in private practice, and still teaches at the university on a limited basis. Dr. Grimaldi reviewed the complete patient records of M.P. from both Dr. Smith and Dr. Wagner, and has formed an opinion as to whether Dr. Smith deviated from the standard of care. In Dr. Grimaldi’s opinion, she did not. Dr. Grimaldi opined that Dr. Smith met the standard of care in the methods she used in her evaluation, in that it was appropriate to collect a patient history, take bitewing X rays, make a clinical examination, and form a treatment plan. Dr. Grimaldi believes that an X ray exam alone does not provide a full picture of what is going on in a patient’s mouth. He charts everything that is suspicious that he sees when examining a patient, and ultimately does not always treat everything that is observed or charted. Accordingly, to Dr. Grimaldi, a treatment plan may be modified right up to the point of time the dentist executes the treatment. Based upon his review of the X rays of both Dr. Smith and Dr. Wagner, which he believed to be of “adequate” quality, Dr. Grimaldi testified that there was incipient interproximal decay on teeth 20, 28, and 29, and believes a diagnosis of interproximal decay for all three teeth would have been appropriate and within the standard of care. With respect to the individual teeth, Dr. Grimaldi stated that he saw “clear darkness in the area toward what we call the distal of number 29,” with respect to tooth 20, “at the distal of number 20 . . . it shows clearly darkness, although not as clear as 29, on its distal surface,” and with respect to tooth 28, “it has a hint of some darkness at the distal surface but not as much as the other two.” (Transcript at 120-122). Dr. Grimaldi was consistent in his characterization of the condition of the three teeth, although he referred at least once to the X rays as showing a “strong hint of demineralization on the distal of 29, and the distal of 20, less so on the distal of 28.” He acknowledged the difference in his opinion and Dr. Zapert’s saying there is going to be variability among practitioners caused by factors such as training and experience, access at the time, lighting, the fatigue level of the practitioner, and communication with staff while charting. He emphasized that the X rays are only part of the diagnostic process, and clinical examination of the patient is also important. In short, the patient in this case was seen by two dentists and his X rays reviewed by four. With respect to tooth 20, Dr. Zapert found no evidence of interproximal decay, Dr. Wagner saw one suspicious area on the distal surface of tooth 20 that should be monitored but not treated; Dr. Grimaldi saw a “strong hint” of demineralization where tooth 20 touches tooth 19, and Dr. Smith diagnosed interproximal decay and recommended an amalgam filling. With respect to tooth 28, Drs. Zapert and Wagner saw no evidence of interproximal decay, Dr. Grimaldi felt that there was a suggestion of interproximal decay, although not as clear as the other teeth at issue, and Dr. Smith diagnosed interproximal decay and recommended amalgam fillings. With respect to tooth 29, Drs. Zapert and Wagner saw no evidence of interproximal decay, Dr. Grimaldi felt that was clear evidence of interproximal decay (it being, in his opinion, the worst of the three), and Dr. Smith diagnosed interproximal decay and recommended amalgam fillings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of October, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 21st day of October, 2013.
The Issue The issue in this case is whether Petitioner, Jennifer Lee Brown, D.M.D., should receive a passing grade on the December 1997 Florida dental licensure examination.
Findings Of Fact Petitioner, Jennifer Lee Brown, D.M.D., is a graduate from the University of Florida College of Dentistry. Respondent, the Department of Health (hereinafter referred to as the "Department"), is responsible for the licensure of dentists in the State of Florida. In December 1997 the Florida Department of Business and Professional Regulation, on behalf of the Department, administered the Florida dental licensure examination which persons wishing to practice dentistry in the State were required to pass. Dr. Brown took the December 1997 dental examination (hereinafter referred to as the "Examination"). The Examination consisted of clinical, Florida laws and rules, and oral diagnosis parts. The clinical portion of the Examination consisted of 8 procedures: procedures 1-3 and 5-9. Each procedure was graded by three separate examiners. The scores awarded by the three examiners on each procedure were averaged, resulting in a truer score. Each procedure had standardized "comments" concerning a candidate's performance on the procedure which examiners could note. Examiners were selected from individuals recommended by existing examiners or members of the Board of Dentistry (hereinafter referred to as the "Board"). Prospective examiners could not have any complaints against their license and they were required to have actively practiced dentistry and to be licensed as a dentist in Florida for a minimum of five years. Prospective examiners were required to file an application with the Board's examination committee. Prior to the Examination, a "standardization" session was conducted for the examiners selected. During the session, examiners were trained how to grade the Examination using the same internal criteria. The standardization session was conducted by assistant examiner supervisors appointed by the Board. After completion of the standardization session, and before the Examination, examiners were required to grade five mannequin models in order to evaluate the examiners' understanding of the grading criteria. Each examiner's performance was evaluated to determine whether the examiner should be used during the Examination. The examiners who graded Dr. Brown's clinical part of the Examination were designated as Examiners 168, 176, 195, 207, 264, 290, 298, and 299. All of these examiners completed the standardization session and the post-standardization evaluation. During the clinical part of the Examination, the examiners were required to grade each procedure independently, without conferring with each other. The clinical part of the Examination was "double blind" graded. Examiners did not see the candidates they were grading or watch their work. The test procedures were performed in a clinic in the presence of a licensed dentist. After the procedure was completed, the patient or tooth was taken to another clinic where the examiners reviewed the work performed on the patient and graded the procedure. The examiners had no direct contact with any candidate. Candidates were permitted to use "monitor-to-examiner" notes to convey information to the examiners that a candidate wanted the examiners to take into consideration when grading a procedure. Any such notes were read by the examiners and initialed "SMN" (saw monitor note) before they actually looked at the patient or tooth. For the clinical part of the Examination the following grading system was used: Zero: complete failure; One: unacceptable; Two: below minimally acceptable. Three: minimally acceptable. Four: better than minimally acceptable. Five: outstanding. After the Examination was graded, all examiners underwent a post-examination evaluation. Grades awarded by each examiner were compared to other examiners for consistency. All of the examiners who graded Dr. Brown's clinical part of the Examination were found to have performed acceptably. Dr. Brown was subsequently informed that she had failed to obtain the minimum passing grade of 3.00 for the clinical part of the Examination. Dr. Brown was informed that she had been awarded a score of 2.67. Dr. Brown was also informed that she passed the other two parts of the Examination. Dr. Brown challenged the scores she had been awarded on the clinical part of the Examination for procedures 2, 5, 6, 7, 8, and 9. The procedures challenged were graded by examiners 176 (graded all the challenged procedures), 195 (graded procedures 5- 9), 207 (graded procedure 2), 298 (graded procedure 2), and 299 (graded procedures 5-9). The Department conceded that the scores awarded Dr. Brown on procedures 7 and 8 were incorrect. As a result, the Department agreed that Dr. Brown's overall score for the clinical part of the Examination should be raised to 2.82. The evidence failed to prove that Dr. Brown should have received a higher score on procedures 7 and 8. Procedure 2 consisted of an amalgam (filling)n preparation on a human patient. Dr. Brown was required to select a tooth and, after the selected tooth was checked by an examiner, complete preparation for the amalgam. Dr. Brown wrote three monitor-to-examiner notes during procedure 2. All three examiners wrote "SMN" on all three notes. Dr. Brown received an average score on procedure 2 of 3.66. Dr. Brown was awarded the following individual scores for her performance on procedure 2: Examiner Score 176 4 207 4 298 3 Examiners 176 and 298 noted the following comment concerning Dr. Brown's performance on procedure 2: "Depth Prep." Examiner 298 also noted the following comment: "Marginal Finish." Examiner 207 noted the following comment: "Retention Form." Dr. Brown admitted that her performance on procedure 2 was not ideal, but expressed concern that she was graded down for matters dealt with in the monitor-to-examiner notes. Dr. Shields opined that it was possible for the examiners to have reduced the score awarded to Dr. Brown on procedure for depth preparation, marginal finish, and retention form and not have graded her down for the monitor-to-examiner notes. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 2 of the clinical part of the Examination. Dr. Brown received a fairly consistent score from all three graders. Procedure 5 was a "class IV composite restoration." This procedure involved the selection of a tooth by Dr. Brown which she was then required to make a slice cut on to replicate a fracture. Dr. Brown was then required to restore the simulated fractured tooth to its normal contour and function. The procedure was performed on a mannequin. Dr. Brown received an average score of 1.66 on procedure 5. Dr. Brown was awarded the following individual scores for her performance on procedure 5: Examiner Score 176 3 195 0 299 2 Examiners 176 and 195 noted the following comment concerning Dr. Brown's performance on procedure 5: "Proximal Contour." Examiners 176 and 299 noted the following comment concerning Dr. Brown's performance on procedure 5: "Margin." Finally, the following additional comments were noted by the examiners: Examiner Comment: 195 Functional Anatomy Mutilation of Adjacent Teeth 289 Gingival Overhang Dr. Brown's challenge to her score for procedure 5 was essentially that Examiner 199 had given her such a low score on this procedure and procedures 7 through 9 when compared to the scores awarded by Examiners 176 and 298. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 5. Dr. Shields' opinion was based generally upon his 21 years of experience as a dentist. More specifically, Dr. Shields based his opinion upon his examination of the actual tooth that Dr. Brown performed procedure 5 on. Dr. Shields found excess material left at the gingival or gum portion of the tooth. Dr. Shields also found that Dr. Brown attempted to polish the material off and had flattened some of the surface of the tooth. Apparently, based upon Examiner 195's comment notes, Examiner 195 was the only examiner to catch these deficiencies in Dr. Brown's performance on procedure 5. Dr. Shields also found slight damage on the mesial, the approximating surface of the lateral incisor, the tooth next to the tooth that was restored. The evidence failed to prove that Dr. Shields' opinions concerning Dr. Brown's performance on procedure 5 were not reasonable and accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 5 of the clinical part of the Examination. Procedure 6 required that Dr. Brown perform an Endodontic Evaluation of the Maxillary First Premolar. Dr. Brown was required to select an extracted tooth, a maxillary tricuspid, examine x-rays of the tooth, and then perform a root canal on the tooth. The tooth had two roots. The root canal involved creating an opening in the tooth and removing the pulpal tissue from the two nerve canals of the tooth (a debridement). The canals were to be shaped for an obturation or the filling of the canal. A final x-ray of the tooth was taken after the procedure was completed. Dr. Brown received an average score on procedure 6 of 1.00. Dr. Brown was awarded the following individual scores for her performance on procedure 6: Examiner Score 176 3 195 0 299 0 All three examiners noted the following comment for Dr. Brown's performance on procedure 6: "Proper Filling of Canal Spaces with Gutta Percha." Gutta Percha is the material that was used by Dr. Brown to fill the canal of the roots after she completed the debridement. Examiner 195 noted the following additional comment for Dr. Brown's performance on procedure 6: "Access Preparation." Examiner 299 noted the following additional comment: "Shaping of Canals." Dr. Brown's challenge to her score for procedure 6 was based in part on her concern that Examiners 199 and 299 had given her a score of 0 on this procedure while Examiner 176 had given her a score of 3. Dr. Brown admitted that she had caused the gutta percha to extrude through the apex of the canals. She argued, however, that gutta percha is reabsorbed by the patient. Therefore, Dr. Brown suggested that her performance was "clinically acceptable." Dr. Brown questioned how one examiner, Examiner 176, could conclude that her performance was in fact clinically acceptable, while the other two examiners concluded it was not. The difficulty with Dr. Brown's position with regard to procedure 6 is that she assumes that the only deficiency with her performance was the extrusion of gutta percha and that it was not a significant deficiency. The evidence failed to support this position. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 6. His opinion was based upon the fact that the extrusion of gutta percha was very significant on one of the canals: it extended a millimeter and a half. On the other canal it was a half of a millimeter. Filling the canal one half millimeter to a millimeter is considered ideal. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. During the standardization session, examiners were told that extrusion of gutta percha more than a half millimeter through the apex was to be considered an error of major consequence. Candidates who extruded guttal percha more than a half millimeter were not to receive a grade higher than one. In light of the instructions during the standardization session, it was more likely that Examiner 176 gave Dr. Brown too high of a score on procedure 6. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 6 of the clinical part of the Examination. Procedure 9 was a pin amalgam final restoration. Although this procedure involved, in a lay person's terms, a filling, what exactly was involved in this procedure was not explained during the formal hearing. Dr. Brown received an average score on procedure 9 of 1.66. Dr. Brown was awarded the following individual scores for her performance on procedure 9: Examiner Score 176 4 195 0 299 1 All three examiners noted the following comment concerning Dr. Brown's performance on procedure 9: "Functional Anatomy." Examiners 195 and 299, who both graded Dr. Brown below minimal acceptability, also noted the following comments: "Proximal Contour," "Contract," and "Margin." Dr. Brown failed to present any evidence to support her claim that she should have received a higher score for procedure Dr. Brown simply questioned the fact that Examiner 195 had graded her low on all the clinical procedures. Dr. Shields opined that Dr. Brown should not receive a higher score on procedure 9. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 9 of the clinical part of the Examination. Dr. Brown's challenge in this case was based largely on the fact that Examiner 195 had graded her performance on procedures 5, 6, and 9 as a zero, procedure 7 as a one, and procedure 8 as a two. Other than the fact that Examiner 195's scores were consistently low, the evidence failed to prove that Examiner 195 improperly graded Dr. Brown except as conceded by the Department on procedures 7 and 8. Comparing the scores awarded by Examiner 195 to Examiner 176 does raise some question as to why there was such a discrepancy in the two examiners' scores. When the scores on procedures 5, 6, and 9 of all three examiners are compared, however, Examiners 195 and 298 generally were consistently below acceptable, while Examiner 176's scores were generally higher on these three procedures: Examiner Procedure 5 Score Procedure 6 Score Procedure 9 Score 176 3 3 4 195 0 0 0 299 2 0 1 This simple mathematical comparison, however, is not sufficient to conclude that Examiner 195 scored too low or that Examiner 176 scored too high. Other than a simple comparison of the scores of the three examiners, the only evidence concerning whether Examiner 195 graded too low based upon the scores alone was presented by Ms. Carnes, an expert in psychometrics. Ms. Carnes opined that Examiner 195's performance was acceptable, except with regard to procedures 7 and 8. The evidence failed to refute Ms. Canres' opinion. Based upon the weight of the evidence, Dr. Brown's score for the clinical portion of the Examination, as adjusted by the Department during the final hearing of this case, was reasonable and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health, Board of Dentistry, dismissing Dr. Brown's challenge to the amended grade awarded for the clinical part of the December 1997 Dental Examination. DONE AND ENTERED this 14th day of September, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1998. COPIES FURNISHED: Jennifer Brown Post Office Box 39 Starke, Florida 32091-0039 Anna Marie Williamson, Esquire Office of the General Counsel Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 William Buckhalt, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
