The Issue Whether or not on or before January 7, 1978, the Respondent, James P. Haas, was offering to practice dentistry, and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center, in violation of Sections 466.24(3)(n) and 466.36, Florida Statutes. Whether or not on or before January 7, 1978, the Respondent, James P. Haas, maintained a telephone listing whereby he offered to practice dentistry as D.A.D. Denture Center at 101 Palm Springs Drive, Longwood, Florida, and whether or not he continues to maintain said listing, in violation of Sections 466.24(3)(g) and 466.27(5), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, one Bernie Morlock has been employed by the Respondent, James P. Haas, to perform dental services at a time when the said Bernie Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida. Further, whether or not Bernie Morlock, while employed by the Respondent, practiced dentistry as defined in Section 466.04, Florida Statutes, to the extent of: Taking impressions of the human teeth and jaws. Placing dentures and dental appliances in patients' mouths and adjusting or attempting to adjust same. Diagnosing or professing to diagnose the physical condition of the teeth and jaws of patients. Finally, whether or not the Respondent knowingly allowed the practice of dentistry by Bernie Morlock in violation of Section 466.02, Florida Statutes, and in further violation of Section 466.24(3)(d) and (e), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, the Respondent, James P. Haas, has employed unlicensed personnel to perform dental services for patients, to-wit: orthodontic treatment, which services constitute the practice of dentistry under Section 466.04, Florida Statutes. Further, whether or not if these services were performed by unlicensed persons, were they performed with the full knowledge and consent of the Respondent, thereby constituting a violation on the part of the Respondent of Sections 466.24(3)(d) and (e), Florida Statutes. (The Amended Accusation which charges the Respondent contained a certain Count III; however, no testimony was offered in support of that allegation and at the conclusion of the formal hearing, the Petitioner, through its counsel, voluntarily withdrew that count from consideration. This voluntary dismissal was unopposed by the Respondent.)
Findings Of Fact The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Division of Professions, Board of Dentistry, is an agency of the state created for the purposes of protecting the public health, safety and welfare of the citizens of the State of Florida, to the extent that practice of dentistry in the state and dental hygiene are subject to the regulation and control of the Petitioner in the public interest. The authority for such regulation is set forth in Chapter 466, Florida Statutes, and those rules of the Florida Administrative Code related thereto. The Respondent, James P. Haas, is licensed by the Florida State Board of Dentistry to practice dentistry in the State of Florida. The Petitioner, by an Amended Accusation, has charged the Respondent, James P. Haas, with various violations of provisions of Chapter 466, Florida Statutes, and the Respondent has requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, which request has been granted and a hearing held on February 15 and 16, 1979. The first of the allegations states that on or before January 7, 1978, the Respondent was offering to practice dentistry and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center. The facts reveal that Dr. Haas made an arrangement with an organization known as Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky, wherein he agreed to coordinate the placement of advertisements for the benefit of that corporation and in turn the corporation agreed to refer patients to Dr. Haas for his treatment. The advertising spoken of consisted of an ad in the Winter Park, Florida, telephone directory yellow pages and certain newspaper advertising through the Orlando Sentinel of Orlando, Florida. The advertising in the telephone directory was placed in the fall of 1977 and a copy of that yellow page advertising may be found as Petitioner's Exhibit No. 2 admitted into evidence. The Petitioner's Exhibit No. 1 admitted into evidence contains a copy of the format for the telephone yellow page advertising, as contemplated by Dr. Haas through his agreement with Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky. The listing of the telephone number was of the number in Harredsberg, Kentucky, and those individuals at that number in turn made the referrals to Dr. Haas's office located at 101 Palm Springs Drive, Longwood, Florida. An example of the newspaper advertising may be found in the Petitioner's Exhibit No. 3 admitted into evidence at page 161-I, a copy of the Sentinal Star Progress Edition of December 18, 1977. In that advertising the same number is given as indicated in the aforementioned telephone telephone ad, with the difference being that Delivering Affordable Dentistry, Inc., is given as the trade name as opposed to D.A.D. Denture Center, which was found in the telephone advertisement. Dr. Haas maintained a separate checking account for D.A.D. Denture Center, the name of his affiliation with Delivering Affordable Dentistry, Inc. The payments for services made by those patients referred through the D.A.D. Denture Center process, were placed into the D.A.D. Denture Center operating account of Dr. Haas. Those persons authorized to make withdrawals from that account were Dr. Haas and his employee, Bernie Morlock, and checks were drawn from that account under the authority of Dr. Haas. The overall income and expanses of D.A.D. Denture Center, operated by Dr. Haas, and of his general practice in the name of James P. Haas-sole proprietor, were combined and were under the control and authority of Dr. Haas. The dental office located in Longwood, Florida, was identified as the office of James P. Haas, D.D.S., and also by a placard indicating the office to be a D.A.D. Denture Center. Finally, those patients who called for service under D.A.D. Denture Center were charged by different fee structure and were listed in a separate appointment book, than that appointment hook for the Respondent through his general practice, James P. Haas, D.D.S. The Respondent was knowledgeable of the arrangement to treat patients under the assumed name of D.A.D. Denture Center at the address in Longwood, Florida, and in fact practiced dentistry under that assumed name and at that location as alleged in Count I of the Amended Accusation. This constituted a violation of Section 466.36, Florida Statutes, which states: "Practicing dentistry under assumed name; penalties.-- On and after the passage of this chapter, it shall be unlawful for any person or persons to practice or offer to practice dentistry under any name except his or her own proper name, which shall be the name used in his or her license certificate granted to him or her as a dentist as provided in this chapter, and unlawful to use the name of any company, association, corporation, clinic, trade name, or business name in connection with the practice of dentistry as defined in this chapter, provided, nothing herein contained shall be so construed as to prevent two or more licensed dentists from associating to- gether for the practice of dentistry, each in his or her own proper name. The violation of any of the provisions of this section by any dentist shall subject such dentist to suspen- sion or revocation of his or her license." The advertisement placed in the Winter Park, Florida, telephone directory, which is sham as Petitioner's Exhibit No. 2 admitted into evidence, was placed with the knowledge of the Respondent and with the intention by the Respondent that the advertisement be made. This advertisement pertained to the 1978 telephone directory for Winter Park, Florida. Under these facts, the Petitioner has charged the Respondent with a violation of Section 466.27(5), Florida Statutes. That provision reads: "466.27(5) Telephone listings shall be con- fined to the local telephone directories. Such listings shall be limited to the den- tist's name, dental degree, 'D.D.S.' or 'D.M.D.,' using the abbreviation only, the word 'dentist,' 'dentistry,' or 'general dentistry,' any specialty as approved by the board to which the dentist confines his practice exclusively, office location, resi- dence and office telephone numbers, and residence address and may include his member- ship in a local dental society if in accord with local customs." A review of the language of this section, in view of the fact that the advertising in the telephone directory inured to the benefit of the Respondent by the process of the referral system spoken of above, demonstrates that the telephone listing was for the benefit of Dr. Haas and was not in keeping with the requirements of this subsection. This constituted advertising professional services and the practice of dentistry in a manner not expressly authorized by Chapter 466, Florida Statutes, and was therefore in violation of Section 466.24(3)(g), Florida Statutes. One of the employees of the Respondent who worked in the office at 101 Palm Springs Drive, Longwood, Florida, was Bernie Morlock. Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida at any time relevant to the allegations in the Amended Accusation. Nonetheless, Morlock practiced dentistry as defined by Section 466.04, Florida Statutes, and did so in the office of the Respondent in Longwood, Florida, with the knowledge and consent of the Respondent. The arrangement which was condoned by the Respondent allowed for Morlock to have patients scheduled for him for the purpose of the preparation of dentures through the referral system, D.A.D. Denture Center, which was part of Dr. Haas's Longwood, Florida, office. (An example of the written schedules may be found in the Petitioner's Exhibit No. 5 admitted into evidence.) Dr. Haas had instructed that these patients be scheduled to be seen by Bernie Morlock. Some of these patients were being seen by Dr. Haas's office for the first time and were attended by Bernie Morlock from this initial visit to the conclusion of the case, at which time the patients were given their dentures. Morlock's involvement with patients included diagnosis of the physical condition of the teeth and jaws of the patients; taking impressions of patients' teeth, both algenate and working model impressions; the placement of dentures and other dental appliances in the patients' mouths and the adjustment to those dentures and dental appliances, and the discussion of the case with the patient. Most of the work that Morlock did was done at a time when Dr. Haas was not in attendance in the aforementioned office and was done without supervision from any licensed dentist. This process undertaxen by Bernie Morlock happened on numerous occasions. The patients were considered to be Morlock's patients and the patients only saw licensed dentists for the purpose of extracting teeth or other dental procedures unconnected with the fabrication and try-in and adjustment to the dentures. These actions on the part of Bernie Morlock took place during the time period alleged in Count IV of the Amended Accusation. By allowing Bernie Morlock to attend patients in the fashion that Morlock did, the Respondent was willfully negligent in the practice of dentistry within the moaning of Section 466.24(3)(d), Florida Statutes, and in addition was guilty of a violation of Section 466.24(e), Florida Statutes, which states: "Employing or permitting any unlicensed per- son or persons to perform any work in his office which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter." During the period of time alleged in Count V of the Amended Accusation, the Respondent employed dental hygienists Vic Simmons and Mary Simmons at his office in Longwood, Florida. Although they wore dental hygienists, these individuals were not licensed to practice dentistry or dental hygiene within the State of Florida. Notwithstanding this absence of a license, the Simmonses practiced dentistry in the Longwood office within the meaning of Section 466.04, Florida Statutes. This included having certain schedules set for them as indicated by Petitioner's Exhibit No. 5 admitted into evidence. This is an example of the schedule for the Simmonses under the title, "Ortho". This scheduling was with the knowledge of Dr. Haas, who had arranged for the Simmonses to come and treat orthodontic patients in his office. The Simmonses came to the location of the Respondent's office two days a month, of which Dr. Haas was in the Longwood office one of those days. These orthodontic patients would be seen initially by Dr. Haas and then treated for their condition by the Simmonses. Some of the patients first seen by the Simmonses arrived at the office without any form of braces in the mouth of the patient. The procedures that the Simmonses then performed were done without supervision by a licensed dentist. By that it is meant that the Simmonses were performing the dental services without the licensed dentist being in the room. The Simmonses, in the pursuit of orthodontic dental practice, placed bands and changed beads, cemented hands and placed arch wires; all with the knowledge and consent of the Respondent. Under the circumstances involved in the employment of the Simmonses, it has been demonstrated that the Respondent is guilty of willful negligence in the practice of dentistry as prescribed in Section 466.24(3)(d), Florida Statutes. The Respondent is also guilty of a violation of Section 466.24(3)(e), Florida Statutes, in that he employed and permitted unlicensed persons to perform work in his office which would constitute the practice of dentistry. The proposed findings of fact, conclusions of law and recommendation offered by the parties have been revied prior to the rendition of this Recommended Order. To the extent that the proposals conform to the findings herein, they have been utilized in developing the Recommended Order. To the extent that the proposals are inconsistent with the findings herein, they are rejected.
The Issue The issue to be determined concerns whether the Board of Dentistry was justified in cancelling the Petitioner'S dental hygienist license for failure to timely renew it. This necessitates resolution of the question of whether the Petitioner received the required notification of impending license expiration and whether such notification was actually sent to the last known address.
Findings Of Fact The Petitioner, Alice Kay Wynne has been licensed as a dental hygienist by the Board of Dentistry of the State of Florida. She was licensed in Florida in 1974 and practiced in Georgia and in Montana since that time. In 1975 she moved to Montana to establish a rural, dental public health preventive program. She resided from that time until approximately 1985 in Glendive, Montana. Between December 1984 and January 1988, her license was in inactive status. Pursuant to Section 466.015(1), Florida Statutes, this inactive status can be of up to four years duration. When the Petitioner renewed her license with the Board she presumably thereby notified the Board of her Glendive, Montana address. This address was maintained in the Board's records, apparently until sometime in May of 1987. In the meantime, in 1985, the Petitioner moved from Montana to Albany, Georgia. She never actually submitted a change of address notification to the Board of Dentistry, however. No statutory provision nor rule of that agency requires that such be done (although it would seem a wise course of action). The Petitioner began working as a clinical hygienist in the Navy Branch Dental Clinic of the Marine Corps Logistics Base in Albany, Georgia. During her professional tenure in Albany, Georgia, in October 1986, a notice regarding the necessity for her to renew her license and place it on active status once again before the expiration of the four year period mentioned above was sent to her then-record address in Glendive, Montana. The Petitioner never received this notice. The above statutory subsection requires that the Department of Professional Regulation give notice to an inactive licensee one year prior to the expiration of that inactive license, that is, the notice must be sent at the end of three years of inactive status. This notice is required to be sent to the licensee's last address of record. One year prior to the expiration of Petitioner's license would have been on or about December 31 or January 1 of 1986-1987. Rule 21G- 10.009, Florida Administrative Code, regarding reactivation of inactive licenses took effect December 31, 1986, containing a requirement that the above-mentioned, one year advance notice of expiration of licensure be sent by Certified United States Mail. The notice that was apparently sent to the Petitioner, however, was sent more than one year prior to the impending expiration of her license and therefore prior to the enactment of this rule requiring that notice be sent by certified mail. The notice was not sent by certified mail. There is no direct proof that it was sent by the Department or received by Petitioner. The only proof that it was sent, which the Hearing Officer accepts, is the record notation, in evidence, that it was sent to the Glendive, Montana address. It was never received by the Petitioner, however. In any event, in early 1988, knowing that she had an employment position in the Orlando, Florida area as a dental hygienist, the Petitioner inquired of the Board regarding the manner in which she should restore her license to active status. By phone call to the Board on March 28, 1988, she learned that her license had been rendered "null and void" as of January 1, 1988. She was greatly distressed by this turn of events and the following day wrote the Executive Director of the Board of Dentistry, Mr. Buckhalt, to request that her license be renewed. She informed him that she had never received notice of the impending nullification of her license, although she had filed a change of address with the post office when she moved from Montana to Georgia. Thereafter, by letter of May 11, 1988, Mr. Buckhalt informed Ms. Wynne that, at a regularly scheduled meeting of the Board, her licensure status had been considered and that the Board determined that the notice had been mailed to her last known address and that the Board concurred with the Department that Ms. Wynne's license was null and void. This letter also informed her of an opportunity to request a formal hearing concerning the issue pursuant to Chapter 120, Florida Statutes. She, of course, availed herself of that right. The above-cited statutory provision also contains a requirement that a certain minimum number of hours of continuing education shall be imposed by the Board as a condition for re- activating a license. The Petitioner received the appropriate number of continuing education credits for the years 1986, 1987 and 1988 and supplied that information to the Board. She did not formally provide the Board or the Department with a change of address notification, however. On May 6, 1987 there is an entry on the computer record of her licensure with the Board which shows that the address was then 810 Johnson Road, #6, Albany, Georgia 31705-3432. This record, Petitioner'S Exhibit 4 in evidence, appears to show that that change occurred on May 6, 1987, possibly as a result of the receipt by the Board of CLE credits mailed in, reflecting the Georgia address, although the record does not reflect this definitely. In any event, in its letter of May 11, 1988, the Board took the position that Petitioner's license was null and void and provided that notification to the Petitioner. That notification was sent by certified mail, return receipt requested.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a Final Order be entered by the Department of Professional Regulation, Board of Dentistry, according the Petitioner, Alice Kay Wynne, the opportunity to reactivate her Florida Dental Hygienist license upon demonstration of compliance with pertinent continuing education requirements and payment of all appropriate fees. DONE and ORDERED this 31st day of May, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 5th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4012 Petitioner's Proposed Findings of Fact: Accepted. Rejected as contrary to Hearing Officer's findings on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings. Rejected as irrelevant. Respondent's Proposed Findings of Fact: Respondent did not submit proposed findings of fact. COPIES FURNISHED: Alice Kay Wynne Post Office Box 50921 Albany, Georgia 31705 Reynolds Sampson, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 William Buckhalt, Executive Director Florida Board of Dentistry 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 =================================================================
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.94, so he failed the clinical part of the examination. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, the score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. For both procedures, Petitioner challenges only the scores of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The two sections that are the subject of this case require the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For each section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communication between examiners and candidates is exclusively through monitor notes. For each section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner 394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate 0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3. The Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners 207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.
Recommendation It is RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License Examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact Respondents Respondent, John A. Rowe, D.D.S., received his license to practice dentistry in the State of Florida on or about July 30, 1982 and has been so licensed continuing to the present under license #DN 009364. Since 1977, Dr. Rowe has been board-certified in oral and maxillofacial surgery and he practices in that specialty. Dr. Rowe's license to practice dentistry in the State of Tennessee was suspended on or about October 3, 1983, and was reinstated on or about September 28, 1984. He neglected to inform the State of Florida Board of Dentistry of that disciplinary action, although he did provide to the Board a copy of the civil complaint when he applied for licensure in Florida. In early 1985, Dr. Rowe moved his practice from Tennessee to central Florida and began working with Dr. Frank Murray. During the time that he treated the patients at issue in this proceeding, Dr. Rowe was a salaried employee and part owner of a clinic, Central Florida Dental Association, in Kissimmee, Florida. He now has his own practice in Kissimmee. Ralph E. Toombs, D.D.S., has at all times relevant to this proceeding been licensed to practice dentistry in the State of Florida under license #DN 007026. During the period in question, 1988, Dr. Toombs was an associate at Central Florida Dental Association. The Clinic and its Procedures During the relevant period, 1988-89, Central Florida Dental Association, P.A., was owned by a group of dentists who actively practiced at the clinic. Dr. Frank Murray was the majority shareholder and President. Dr. Rowe was a shareholder; Dr. Toombs owned no interest and was an associate. The dentist/owners were under employment contracts and received salaries. By all accounts, Dr. Murray made the operational decisions affecting the clinic and its patients. He admitted that shareholders' votes were based on percentage of ownership. (Tr.-p.114) Dr. Murray set the fees for billing and reviewed patients' files. The procedures for billing were computerized. Clerical staff in the insurance department filled out claim forms that were signed in blank by the dentists, or they signed the dentists' names to the forms. Around 1987 or 1988, Dr. Murray acquired computerized diagnostic equipment for the clinic. At first Dr. Toombs, who was trained and familiar with the equipment, performed the testing. Later, Dr. Murray hired Maggie Collins to operate the equipment. Maggie Collins administered the diagnostic tests to the patients at issue in this proceeding. By the time Dr. Rowe left Central Florida Dental Association in 1989, his relationship with Dr. Murray had deteriorated, giving rise to acrimonious litigation. Patient Records After Dr. Rowe left, he had no further access to, or control over the dental records for the eight patients at issue in this proceeding. These Central Florida Dental Association records were at all times maintained under the case, custody and control of Dr. Murray and his employees. When the records were subpoenaed by the Department of Professional Regulation, copies of the records were provided and the clinic employees certified that the records provided were complete. They were, in fact, not complete, as approximately 426 additional pages were included in the originals subpoenaed by counsel for Dr. Rowe, which pages had not been provided to DPR. Many of the documents not copied for DPR related to billings. In some instances Dr. Rowe's daily reports or consultations were missing from the original records and from the copies. And, in at least one case the original record contains an entirely different version of a specific radiology consultation conducted by Dr. Rowe on 5/3/89. (Compare Rowe Exhibit #2 with Pet. Exh. #5-1). No evidence was provided to conclusively explain the discrepancies, and the records themselves are an unreliable source of evidence with regard to the allegations that Dr. Toombs failed to maintain adequate records for patient J.T. Her file contains only one X-ray from Central Florida Dental Association, and no explanation of tests, diagnoses or the continuing contacts she remembers with Dr. Toombs. The patient specifically remembers more than one X-ray being done at the clinic. The Patients At various times during 1987, 1988 and 1989, Dr. Rowe was consulted by these patients: H.W., E.M., M.Z., R.P.V., H.D., R.M. and S.R. Each had been involved in an automobile accident or other traumatic injury and each complained of headaches, pain, dizziness, and other symptoms. After examination and throughout a course of testing and treatment, these various diagnoses of TMJ disorders by Dr. Rowe were commonly found in the above patients: trismus, closed lock, and mandibular atrophy. While other diagnoses were made in the individual cases, the evidence at hearing and Petitioner's proposed recommended order address only these. Patient J.T. first consulted Dr. Toombs in August 1988, after suffering headaches which she understood from her regular dentist and her physician might be caused by dental overbite. She had a friend who had some work done by Dr. Toombs, so she looked him up in the yellow pages under "orthodontics" and made an appointment. After testing and X-rays and a brief consultation with Dr. Rowe, J.T. understood that Drs. Toombs and Rowe were suggesting jaw joint replacement, removal of some teeth and braces. She was advised to get another opinion and she returned to a prior treating physician. She did not follow up with treatment from Dr. Toombs or Rowe. Testing In addition to being administered X-rays, the above patients were tested on myotronics equipment at Central Florida Dental Association by Maggie Collins, a trained diagnostic testing operator hired by Dr. Frank Murray. Myotronics is electronic equipment developed by a Seattle, Washington company over the last twenty years. The equipment is used in diagnosis and sometimes treatment of TMJ functions, and includes sonography, which records the vibration of sound; electromyography (EMG), which measures the electrical activities of the muscles of the face; and computerized mandibular scanning (CMS), which measures a range and velocity of mandibular movement, i.e., the opening and closing of the jaw. Myotronics can also include a device like a TENS unit used for pulsating. The machines produce printouts which are available for interpretation later by the appropriate professional. On each occasion of administering the myotronics tests to the patients at issue, Maggie Collins was alone, undirected by Dr. Toombs, Dr. Rowe or other clinic staff. She utilized testing procedures she had been taught and had used in her prior dental clinic experience and which she continues to use in the clinic where she now works. In some cases, Ms. Collins administered the same tests twice on a single visit. In those cases, after the first series, the patient was pulsated with a TENS before the series was administered again to measure the effectiveness of the pulsating. This is a standard practice. The full testing takes two and a half to three hours. Diagnoses The TMJ, or temporomandibular joint of the jaw, is between the temporo bone and the mandible. A disc is between the condyle (bone) and the fossa (socket). As the mouth is opened, the bone moves and the disc moves slightly at first, until the mouth is opened wider and the disc rotates around the axis of the condyle. According to Respondent Rowe's TMJ expert witness, John Biggs, D.D.S., and as evidenced by the testimony of all of the experts in this proceeding, terminology in TMJ is open to interpretation and there is not a complete union of agreement on every single thing in the field of TMJ. (tr.-p.790) "Closed lock" can legitimately mean that the disc is out of place and is not recaptured as the mouth is closed. The term, "closed lock", can also be applied to the mandible, meaning the jaw does not open normally because it meets resistance from muscle spasm or tissue impediment from the disc. An acute closed lock would impede the opening more than a chronic condition, as the mandible may, over time, stretch the ligaments. An acute closed lock could limit the mandibular opening to 21, 25 or even 27 mm; whereas a chronic closed lock might allow an opening of up to 40 mm, and sometimes more, according to Petitioner's expert, Dr. Abdel-Fattah (rebuttal deposition, 12/2/92, p.71). The patients' files in evidence reveal findings of limited mandibular openings from a variety of sources, including manual and electronic measurement. Those openings are well within the ranges described above for closed lock and most are within the "acute closed lock" range. Another term for "closed lock" is "anterior displacement of the disc without reduction". This means the disc is not recaptured on the condyle. When a sonogram reflects sounds or clicking in the joint, analysis of those sounds is helpful in diagnosing TMJ disorders. Literature appended by Petitioner to the rebuttal deposition of its expert supports Dr. Moretti's opinion that the presence of clicks can still mean that a closed lock exists. (Pet. #3 to deposition of Reba A.Abdel-Fattah, pp. 1 and 3, figure 5 Rowe Ex. #10, p.18) Trismus is more appropriately designated a symptom rather than a diagnosis. It means spasm of the muscles of mastication. The pain of the symptom often interferes with the opening of the mandible, and for that reason, trismus is sometimes used to also denote "limited opening". It is apparent from the patient records that Dr. Rowe used the term interchangeably, and for that reason, findings of trismus where a patient is able to open to 40 mm are not inconsistent. Moreover, trismus as a symptom may be more or less pronounced under a variety of circumstances on different occasions with the same patient. For example, the patient may experience severe trismus upon rising in the morning and find that it subsides later. Mandibular atrophy is indicated by bone loss. Reviewing the same X- rays for patient E.M., Petitioner's and Respondent Rowe's experts came to opposite conclusive opinions as to whether Dr. Rowe's diagnosis of this condition in E.M. was proper. Mandibular atrophy was also diagnosed in patient S.R., but Dr. Fattah did not find a problem with that diagnosis. Treatment Dr. Rowe's treatment of the patients in issue included closed manipulation and the insertion of orthodic splints. Both are noninvasive, conservative procedures. Petitioner alleges that closed manipulation was unnecessary in the absence of closed lock, and that the method of insertion of the splints by Dr. Rowe was improper. Closed manipulation of the mandible, sometimes called "closed reduction", is manual manipulation to attempt to recapture the disc. The procedure can be done several ways, one of which is to approach the patient from the back, place the hands on the mandible and relax the mandible to where it can be opened, moving the disc into place. The patient is in a supine, or reclined, position in the dental chair. Once the disc is manually repositioned, it is important to keep the patient from closing back on his posterior teeth and losing the disc again. To avoid this, an orthodic splint is inserted and fitted in the patient's mouth. Even when manipulation does not unlock the mandible, the practitioner might want to place the splint for support. The splint can be placed with the patient sitting erect or reclined. Dr. Rowe generally places the splint while the patient is reclined in the dental chair. Adjustments may be made after the splint is initially placed and the patient is sometimes seen twice on the same day or on a weekly basis. Because it is important for the patient to be relaxed, the supine or reclining position is preferred. Insurance Claims Insurance claims at Central Florida Dental Association were handled by clerical staff in a separate department. Claim forms were commonly signed by those staff for the treating dentist, but there is no evidence that the signatures were authorized for any specific claim. Another wholly inappropriate practice at the clinic was to have the dentists sign blank forms to be filled out later. Dr. Rowe testified that Dr. Murray required that they do this, and that he did sign blank forms. Those forms include this printed statement over the signature line: NOTICE: Under penalty of perjury, I declare that I have read the foregoing, that the facts alleged are true, to the best of my knowledge and belief, and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. (Pet. Ex. 12) There is no evidence that Dr. Rowe or Dr. Toombs filled out the claim forms in issue, or were involved in the ultimate decisions as to how much and when to bill an insurance company. In several instances, the forms reflect that tests were billed twice on the same day. As found above, tests were commonly administered twice in one day, for valid reasons. Whether the billing for such was proper was simply not addressed by any competent testimony in this proceeding. Patients' insurance companies were also billed for TENS units. H.W. was given this equipment at the clinic and he testified that he still has it. There is no evidence that any billing for TENS units was fraudulent or improper. Advertising In 1988, the Osceola County telephone directory Yellow Pages listed Dr. Toombs under "Dentists-Orthodontics". There is no evidence that anyone other than Dr. Murray was involved with the placement of that listing. Dr. Toombs is a general dentist who practices orthodontics. He is a member of various orthodontic societies. Petitioner's expert witness, Dr. Lilly, confirmed that a general practitioner of dentistry may practice some orthodontics. There is no evidence that Dr. Toombs has held himself out or limited his practice to being an orthodontist. Weighing the Evidence and Summary of Findings Competent reasonable experts testified on behalf of both Petitioner and Respondent Rowe. It is clear that, as Dr. Biggs observed, terminology in the field of TMJ is not as precise and uniform as Dr. Fattah would suggest. Some of the differences in opinion are attributed to that imprecision, and perhaps to quirks in Dr. Rowe's narratives which portray a surgical setting for a nonsurgical procedure, for example, "draping the patient" or "surgical splint". Dr. Rowe, as an oral surgeon, nonetheless, proceeded reasonably in his sequence of diagnosis and treatment; that is, he attempted conservative, noninvasive modalities before going to more invasive procedures such as arthoscopy and surgery. Other differences in opinion and in the way the computerized test results are interpreted are more difficult to resolve. Dr. Rowe contends that Dr. Fattah misread the printed data, confusing vertical with horizontal readings. Dr. Fattah uses myotronic equipment, but not the older model that was used for the tests at issue. The greater weight of evidence supports Respondent Rowe's diagnoses of the patients at issue. Since the allegations of inappropriate and unnecessary treatment are based on allegations of misdiagnosis, Petitioner's proof fails here as well. The further testing, the closed manipulation and insertion of the splints were appropriate follow up for the findings of TMJ disorders by Dr. Rowe. With one exception, it was the insurance companies and not the patients who complained. The records from Central Florida Dental Association reflect substantial billings and insurance form submittals for Dr. Rowe's and Dr. Toombs' patients, but no evidence of these Respondents' responsibility or involvement in the process. The clinic functions were performed in discrete departments under the overall management and control of Dr. Murray. There was no evidence that either Dr. Rowe or Dr. Toombs exercised influence over any patient so as to exploit the patient for personal financial gain.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Respondent Rowe be found guilty of violating Section 466.028(1)(b), (1983), and a fine of $250.00 be imposed; and that the remaining charges as to Respondents Rowe and Toombs be dismissed. DONE AND RECOMMENDED this 2nd day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-3213, 91-6022 AND 91-5362 The following constitute specific rulings on the findings of fact proposed by the parties. Adopted in paragraph 1. 2.-3. Adopted in paragraph 2. 4. Rejected as unnecessary. The statute is addressed in the Conclusions of Law. 5.-6. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 9.-13. Rejected as contrary to the weight of evidence. 14.-15. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 18.-23. Rejected as contrary to the weight of evidence. 24.-25. Adopted in summary in paragraph 13. 26. Adopted in summary in paragraphs 16 and 26. 27.-30. Rejected as contrary to the weight of evidence. 31. Adopted in paragraph 27. The referenced exhibit #33 is Dr. Lilly's resume and does not support the proposed finding. 32.-34. Rejected as contrary to the weight of evidence. 35.-36. Adopted in summary in paragraph 13. 37. Adopted in summary in paragraphs 16 and 26. 38.-42. Rejected as contrary to the weight of evidence. 43.-44. Adopted in summary in paragraph 13. 45. Adopted in summary in paragraphs 16 and 26. 46.-49. Rejected as contrary to the weight of evidence. 50.-51. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 54.-58. Rejected as contrary to the weight of evidence. The reference to exhibit #33 is incorrect. 59.-60. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 63.-67. Rejected as contrary to the weight of evidence. 68. Adopted in paragraph 4. 69.-70. Adopted in paragraph 14. Adopted in part in paragraph 34, otherwise rejected as to Respondent's involvement in the advertisement. Adopted in paragraph 35. 73.-74. Rejected as unnecessary. 75.-77. Rejected as unnecessary or unsupported by competent evidence as the absence of these records does not support the finding of a violation under the circumstances. Findings Proposed by Respondent Rowe Adopted in paragraph 1. Adopted in paragraph 3. 3.-4. Adopted in paragraph 9. 5.-7. Adopted in paragraph 10. 8.-9. Adopted in paragraph 11. Adopted in paragraph 10. Rejected. The testimony of J.T. is inconclusive in this regard. Adopted in paragraph 8. Rejected as unnecessary. Rejected as overbroad. The records received were reliable for a limited purpose. 15.-16. Rejected as unnecessary. Rejected as immaterial. Respondent admitted the violation. Adopted in part in paragraph 2, otherwise rejected as immaterial (see paragraph 17, above) Adopted in paragraph 32, in substance. Adopted in substance in paragraph 6. Rejected as unnecessary. Rejected in part as unsubstantiated by the record (as to whether Rowe received any benefit other than salary), otherwise adopted in paragraph 6. 23.-24. Adopted in paragraph 6. 25. Adopted in paragraph 41. 26.-27. Adopted in paragraph 37. Adopted in paragraph 41. Adopted in paragraph 29. Adopted in substance in paragraph 21. Adopted in paragraph 23. Adopted in paragraph 20. Adopted in paragraph 24. 34.-37. Rejected as unsupported by conclusive evidence. The witness was at times confused in his haste. He does not know this particular equipment but it is not clear from the record that he was reading the data wrong. Adopted in paragraph 24. Adopted in paragraph 23. Adopted in paragraphs 37 and 38. Adopted in paragraph 33. Rejected in part, adopted in part (see conclusions of law). Finding of Fact Recommended by Respondent Toombs Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 14. 4.-5. Rejected as unnecessary. Adopted in paragraph 36. Adopted in paragraph 34. Adopted in paragraph 35. 9.-11. Rejected as unnecessary. 12. Adopted in paragraph 5. 13.-18. Rejected as unnecessary. 19. Adopted in paragraph 12. 20.-26. Rejected as unnecessary. 27. Adopted in paragraph 41. COPIES FURNISHED: William Buckhalt, Executive Director Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Albert Peacock, Sr. Atty. Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Kenneth Brooten, Jr. 660 W. Fairbanks Avenue Winter Park, FL 32789 Ronald Hand 241 E. Ruby Ave., Ste. A Kissimmee, FL 34741
