The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent provided dental treatment which was below minimum acceptable standards of performance. At the hearing, the Petitioner called Charlene Willoughby and Richard J. Chichetti, D.D.S., as witnesses. The Respondent called Victoria Osborn and Stewart Dropkin, D.D.S., as witnesses and also testified on his own behalf. Both parties also offered documentary exhibits and transcripts of deposition testimony. A transcript of the hearing was filed on June 16, 1987, and the parties were allowed until July 31, 1987, (subsequently extended) within which to file their proposed recommended orders. Both parties filed proposed recommended orders on August 3, 1987, and the despondent filed an amended proposed recommended order on August 4, 1987. On August 3 and 4, 1987, the Respondent also filed separate documents specifically addressed to the issues raised by the Respondent's motion to dismiss. The parties' proposed recommended orders have been carefully considered during the formulation of this recommended order. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact The Respondent, Bruce Larrick, D. D.S., whose license number is DN0007282, was licensed to practice dentistry in the State of Florida on August 26, 1977, and has been so licensed from that date until the present time. Respondent provided dental, services to a Mr. Quinton G. Anglin during the time period of February to April of 1985. The Respondent first saw and examined Mr. Anglin on February 20, 1985. Prior to the examination, all of Mr. Anglin's teeth were cleaned. The Respondent's examination of Mr. Anglin included radiographs, visual, and tactile techniques. The Respondent's treatment of Mr. Anglin consisted of bonding the facial surfaces of Mr. Anglin's six upper front teeth, also known as teeth numbers 6, 7, 8, 9, 10, and 11. Bonding is a type of restorative dentistry which consists of mechanically bonding a coat of plastic to the tooth surface and then chemically bonding a composite material to that coat of plastic. Bonding is a part of the general practice of dentistry and is not recognized as a specialty in dentistry. As a result of problems he was experiencing with the bonding and because of an inability to get in touch with the Respondent, Mr. Anglin filed a complaint against the Respondent. The ultimate facts alleged in Mr. Anglin's uniform complaint form included the following: Dr. Larrick bonded several teeth for me during March and April. The last tooth he bonded was not bonded well and the bonding came off. Dr. Larrick rebonded the tooth. Bonding came off once again. The problem I now have is: (1) I have an upper right canine tooth that has been ground down and the bond has come off. Prior to this I only had a small cavity. (2) I have a right upper incisor on which the bond material was ground down so thin that when something touches the front surface it is quite painful On January 15, 1986, Richard Chichetti, D.D.S., examined Mr. Anglin to evaluate the six restorations performed by the Respondent. The examination lasted approximately thirty minutes. Dr. Chichetti did not examine tooth number 9, because that tooth had been further restored by another dentist subsequent to the restoration work done by the Respondent. Dr. Chichetti's examination of Mr. Anglin's upper front teeth consisted of taking x-rays, a physical examination and inspection using a mouth mirror and explorer, photographs of the teeth, and study models of the teeth. Dr. Chichetti looked at each tooth and observed whether any areas on each tooth indicated the presence of decay. He then used the explorer to tactilely examine the surfaces of the teeth where he suspected decay to be and to confirm the presence of decay. Decay is readily distinguishable from stain when the tip of the explorer comes into contact with the tooth surface. Dr. Chichetti found only a small amount of plaque and materia alba and found no calculus on Mr. Anglin's teeth. Therefore, it was not necessary to clean Mr. Anglin's six upper front teeth in order to determine if decay was present. At the time of Dr. Chichetti's examination of Mr. Anglin, teeth numbers 6, 7, S, and 10, each had bonding on the facial side and recurrent decay on the lingual side. Tooth number 8 had a ledge present at the margin of the veneer closest to the gum line. A ledge exists when the veneer is not smooth and confluent with the tooth surface. At the time of Dr. Chichetti's examination of Mr. Anglin, tooth number 11 no longer had the bonding restoration performed by the Respondent. A large carious lesion was present on the visible portion of the tooth and extended into the enamel and dentin. There are two broad categories of decay known as acute decay and chronic decay. Chronic decay is decay that has progressed at a very slow rate as compared to acute decay. Chronic decay may take place over a period of several years. A chronic carious lesion is darker in color than acute decay and has a firm and leathery texture as compared to the softer texture of acute decay. It is not possible to determine the exact date on which a chronic carious lesion began, nor is it possible to determine the exact rate of decay of such a lesion. Nevertheless, by observation of a chronic carious lesion it is possible to determine that the lesion has been present and detectable for at least a specific period of time. The carious lesion on Mr. Anglin's tooth number 11 had a relatively hard texture and a dark brown color, both of which are consistent with chronic decay. Sclerotic dentin was also present on tooth number 11, which is indicative of the presence of a long-term carious lesion. The decay present on Mr. Anglin's tooth number 11 at the time of Dr. Chichetti's examination was chronic in nature. That decay was present and detectable at the time of the Respondent's treatment of Mr. Anglin. The Respondent used Dycal in connection with the bonding performed on Mr. Anglin's tooth number 11. Dycal is a product used in areas of deep decay to provide insulation between the bonding material and the pulp of the tooth. The use of Dycal by Respondent corroborates the conclusion that decay was present when the Respondent bonded Mr. Anglin's tooth number 11. The fact that the bonding came off of Mr. Anglin's tooth number 11 shortly after the Respondent's treatment of that tooth also corroborates the conclusion that decay was present when the bonding was performed on that tooth, because a tooth surface of a carious nature precludes long-term retention of the bonding material. By bonding over a carious lesion present on Mr. Anglin's tooth number 11, the Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The recurrent decay observed by Dr. Chichetti on Mr. Anglin's teeth numbers 6, 7, 8, and 10, also constituted chronic decay. The chronic carious lesions on the lingual sides of those teeth were similar in color and texture to the lesion on Mr. Anglin's tooth number 11. The chronic carious lesions on the lingual surfaces of Mr. Anglin's teeth numbers 6, 7, 8, and 10 were present and detectable at the time of the Respondent's treatment of Mr. Anglin. By leaving carious lesions untreated on the lingual surfaces of Mr. Anglin's teeth numbers 6, 7, 8, and 10, while placing bonding restorations on the facial surfaces of those teeth, the Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. This failure to treat the lesions on the lingual surfaces of Mr. Anglin's teeth numbers 6, 7, 8, and 10 would be consistent with acceptable practice, if the patient refused treatment after full disclosure, and if the diagnosis, disclosure, and refusal of treatment were all documented in the patient's record. There was no such disclosure and refusal, nor is any such disclosure and refusal contained in the Respondent's records of his treatment of Mr. Anglin. Dr. Chichetti detected a ledge on Mr. Anglin's tooth number 8 by using the tip of an explorer. Due to its location, the ledge was not readily visible and it did not appear on the x-rays or on the study model. The ledge was the result of a failure to properly feather or smooth the edge of the bonding material so as to cause it to meet the existing tooth structure in a smooth and confluent manner. The ledge on Mr. Anglin's tooth number 8 resulted from the application of bonding material by the Respondent. The ledge on Mr. Anglin's tooth number 8 was not causing any significant problem at the time of Dr. Chichetti's examination. Specifically, there was no plaque or inflammation in the area of the ledge at the time of Dr. Chichetti's examination. Nevertheless, it had the potential of becoming a significant problem with the passage of time. The presence of a ledge can lead to an accumulation of plaque which can invoke an inflammatory response in the gingival tissue and lead to periodontal disease. By leaving the ledge on Mr. Anglin's tooth number 8, the Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Recommendation Based on all of the foregoing, it is recommended that the Board of Dentistry enter a final order finding the Respondent to be in violation of Section 466.028(1)(y), Florida Statutes (1985), as charged in the Administrative Complaint. It is also recommended that the following penalties be imposed on the Respondent: That the Respondent's license to practice dentistry be reprimanded; That an administrative fine of $1,000.00 be imposed; and, That the Respondent's license to practice dentistry be placed on probation for a period of 12 months under such conditions as the Board may specify DONE AND ENTERED this 21st day of January 1988, at Tallahassee, Florida. Michael M. Parrish, Hearing Office Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3538 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The references to paragraph numbers are to the numbers of the paragraphs in the parties' proposed findings of fact. Findings submitted by Petitioner: Paragraphs 1, 2, and 3: Accepted. Paragraph 4: First two sentences accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 5: Accepted. Paragraph 6: First sentence rejected as constituting a comment on the evidence rather than a proposed finding of fact. The remainder of this paragraph is accepted. Paragraphs 7, 8, 9, and 10: Accepted. Paragraph 11: First sentence. is accepted. The remainder of this paragraph is rejected as constituting argument about the evidence rather than proposed findings of fact. (This rejection does not purport to pass upon the merits of the argument; it merely excludes the text of the argument from the findings of fact.) Paragraphs 12 and 13: Accepted. Paragraph 14: Rejected as constituting a subordinate and unnecessary conclusion that does not necessary follow from the facts. Paragraph 15: Rejected as constituting commentary and argument about the evidence, rather than a proposed finding of fact. (This rejection does not purport to pass upon the merits of the argument.) Paragraphs 16, 17, 18, 19, and 20: Accepted. Findings submitted by Respondent: Paragraph 1: Rejected as constituting unnecessary and subordinate details. Paragraph 2: Rejected as irrelevant observation about the state of the record. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Paragraphs 4, 5, 6, and 7: Accepted. Paragraphs 8 and 9: Rejected as irrelevant. Paragraph 10: Rejected as subordinate and irrelevant details. Paragraph 11: Rejected. Depending on how the paragraph is interpreted, it is either irrelevant or contrary to the greater weight of the evidence. Paragraph 12: First sentence rejected as irrelevant. Second sentence rejected as constituting an inference not warranted by the greater weight of the evidence. Paragraph 13: First two sentences rejected as irrelevant. Last sentence rejected as constituting an inference not warranted by the greater weight of the evidence. Paragraph 14: Rejected as subordinate and unnecessary details. Paragraph 15: Rejected as irrelevant and/or as constituting subordinate details. Paragraph 16: Rejected as constituting argument about the state of the record, rather than a proposed finding about the condition of the teeth. Paragraphs 17, 18, and 19: Rejected as irrelevant. Paragraphs 20 and 21: Rejected as argument about the state of the record and, in any event, as constituting irrelevant details. Portions of paragraph 20 are also contrary to the greater weight of the evidence. Paragraph 22: Rejected as subordinate and irrelevant details. Paragraph 23: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 24: Accepted in substance. Paragraph 25: Rejected as contrary to the greater weight of the evidence. Paragraph 26: First sentence rejected as unnecessary reiteration of a portion of the Administrative Complaint. The remainder of this paragraph is accepted in substance, with unnecessary subordinate details deleted. Paragraph 27: Rejected as subordinate and unnecessary details and as consisting of an inference contrary to the greater weight of the evidence. Paragraphs 28, 29, 30, and 31: Rejected as irrelevant. Paragraph 32: Rejected as contrary to the greater weight of the evidence. Paragraph 33: Accepted. Paragraphs 34 and 35: Rejected as subordinate and unnecessary details. Paragraphs 36 and 37: Accepted. Paragraph 38: Rejected as irrelevant. Paragraph 39: First sentence is accepted. Second sentence is rejected as contrary to the greater weight of the evidence. Paragraphs 40, 41, 42, 43, 44, and 45: Rejected as irrelevant. Paragraph 46: First sentence is rejected as a summary of testimony rather than a proposed finding. Second and third sentences are rejected as contrary to the greater weight of the evidence. The fourth sentence is rejected as irrelevant. Paragraph 47: Rejected as irrelevant. Paragraph 48: The first sentence is rejected as incomplete and, therefore, unintelligible. Second sentence is rejected as irrelevant. Paragraph 49: Rejected as irrelevant. Paragraph 50: Rejected as contrary to the greater weight of the evidence. Paragraph 51: Rejected as irrelevant in light of other evidence. Paragraph 52: Rejected as irrelevant because there is no persuasive evidence that the patient did as suggested in this paragraph. Paragraph 53: Rejected as irrelevant due to insufficient evidence regarding Dr. Morton's charting and treatment. Paragraph 54: Accepted. Paragraphs 55, 56, and 57: Rejected as irrelevant. Paragraph 58: Accepted in substance with additional clarifying details. Paragraph 59: Rejected as irrelevant. Paragraph 60: Accepted in substance with additional clarifying details. Paragraph 61: Rejected as unnecessary and subordinate details; also rejected as suggesting inferences not warranted by the greater weight of the evidence. Paragraph 62: Rejected because the opinion contained in this paragraph is contrary to the greater weight of the evidence. Paragraph 63: Rejected as irrelevant in light of the totality of the evidence, especially the witness's other statements on this subject. Paragraphs 64 and 65: Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Phillip B. Miller, Esquire Robert D. Newell, Jr., P.A. 102 South Monroe Street Tallahassee, Florida 32301 Bill Salmon, Esquire Attorney at Law Post Office Box 1095 Gainesville, Florida 32602 William O'Neil, Esquire General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Respondent is a licensed dentist practicing in Holiday, Florida. He has practiced dentistry for approximately 30 years and has limited his practice to prosthetics (dentures) since 1974. Doctors Christian, Bliss and Venable are likewise dentists licensed and practicing in Florida. On the basis of education and experience, each was qualified as an expert witness in the filed of dental prosthetics. In determining whether a denture meets or falls below the minimum standard of acceptability, several technical factors are considered. The denture is placed in the patient's mouth to check area of coverage or the adaptation of the denture to the ridges of the mouth; the extension of the flanges or borders of the dentures; the occlusion of the teeth and bite; the extension of the dentures into the soft palate; esthetics and finally, speech. The expert testimony of Dr. Christian in the evaluation of the dentures is accorded greater weight than that of Doctors Venable and Bliss since Dr. Christina conducted his examinations in May and June 1979, while Doctors Bliss and Venable performed their examinations some two years later. Changes in the patients mouth as well as the dentures over time make such later evaluations less meaningful. Dr. London's testimony is entitled to greater weight than that of his complaining patients with respect to precise financial agreements and dates on which various services were performed. This determination is based on the fact that Dr. London maintained contemporaneous records on each patient (office charts) and was able to refer to these documents during the course of his testimony. However, the testimony of his former patients with respect to the difficulties they encountered with their dentures was not lacking in credibility. On April 13, 1979, Rose Edwards went to Dr. London for treatment, and she agreed to pay $265.00 for a full set of porcelain dentures. On that same date impressions were taken for the construction of upper and lower dentures. On May 4, 1979, Respondent delivered the upper and lower dentures to Ms. Edwards. On May 8, 1979, she returned to Respondent's office complaining that the two front teeth were crooked and too far apart. Respondent found that the two front teeth needed reversing and he did so. On May 11, 1979, Ms. Edwards returned to Respondent's office complaining that she could not chew with the dentures, that the lower denture would not stay in her mouth, that food particles would get under the lower dentures and that she had blisters in her mouth from the loose dentures. Respondent adjusted the dentures. On July 24, 1979, Ms. Edwards returned to Respondent and stated that she was still having a great deal of difficulty with the dentures delivered by Respondent. Respondent advised Ms. Edwards that he would make no further adjustments and dismissed her as his patient. Dr. Christian conducted an examination of Ms. Edwards and the dentures prepared by Dr. London. He found that the borders of the lower denture were overextended into the cheek area. Dr. Bliss later examined Ms. Edwards and the same dentures and found the border areas to be greatly overextended into the soft tissue and muscle. The fact that the lower denture was overextended into the border areas caused it to lift up on movement of Ms. Edwards' mouth making it impossible for her to chew with the denture. Dr. Venable also conducted an examination of Ms. Edwards and the dentures delivered by Respondent. He found that the upper denture was overextended in the posterior or postdam area, and the lower denture underextended in the posterior area. The dentists generally agreed that Ms. Edwards was difficult to fit as she had poor ridges (required to support the denture) from having worn false teeth for many years. However, Ms. Edwards was relatively satisfied with her old dentures and returned to wearing them after being dismissed as a patient by Dr. London. The testimony taken as a whole established that the dentures Dr. London prepared for Ms. Edwards were deficient in several respects and did not meet the overall standards of quality required as a licensed dentist. Dr. Bliss and Dr. Christian stated that their fee for fitting Mrs. Edwards with dentures would have been $800 and $1,000 respectively. However, none of the dentists who testified, including Dr. London, regarded his substantially lower fee of $265 as any excuse for less than satisfactory work. On February 20, 1978, Lila Andrews went to Dr. London for treatment and agreed to pay Dr. London $290 for a full set of dentures, including adjustments and a relining, if required. On that same date impressions were made for the upper and lower dentures. On March 27, 1978, Dr. London delivered upper and lower dentures to Ms. Andrews for insertion by her oral surgeon. On April 7, 1978, Ms. Andrews returned to Dr. London complaining of severe pain on her lower gum. An adjustment was made to the lower denture by Dr. London. On May 18, 1978, Ms. Andrews returned to Dr. London complaining that she still could not put any pressure on her lower gums without a great deal of pain. In addition, she had developed sores in her mouth. At that time, Dr. London told her that he would remake the lower denture if Ms. Andrews agreed to pay Dr. London $45.00 to reline the upper dentures. Ms. Andrews agreed to pay him $45.00 since she wanted a usable denture, although she believed this charge was contrary to their agreement. On June 12, 1978, Dr. London delivered a second lower denture to Ms. Andrews and on June 14, 1978, she returned for an adjustment and told Dr. London that her dentures would not stay in her mouth and that her mouth continued to be extremely sore. Dr. London relined the lower denture. On December 14, 1978, Ms. Andrews returned to Dr. London's office and informed him that her dentures still would not stay in her mouth and that the soreness had continued. Dr. London advised Ms. Andrews that he would reline the dentures but that he would charge her for this service. She refused to pay and received no further treatment from Dr. London. Ms. Andrews currently uses the denture prepared by Dr. London but does so only with the aid of commercial fastening products. She also suffers a "lisp" which she did not previously have. On May 9, 1979, Dr. Deuel Christian examined Ms. Andrews and the dentures delivered by Dr. London. His examination revealed the following: The borders on the upper denture were grossly underextended into the soft tissue. The upper denture was not extended far enough into the postdam area, that area of soft tissue along the junction of the hard and soft palate of the roof of the mouth. The aesthetics of the upper denture were poor and the phonetics were such that the denture caused lisping. The borders of the lower denture were underextended into the soft tissue and the tooth placement in relation to the gum was poor. The bite relation between the upper and lower jaw was such that when the jaw was closed only four teeth made contact. The grossly underextended borders, the underextension in the postdam area, the poor tooth placement in relation to the gum and the poor bite relationship resulted in a lack of stability (especially when chewing), lack of retention and soreness in the mouth. Dr. Venable's examination revealed some deficiencies, but to a much lesser degree. His findings indicated that the flange on the lower denture was too short and the front section of the upper denture was too far forward. The testimony taken as a whole established was too far forward. The testimony taken as a whole established that the dentures Respondent prepared for Ms. Andrews failed to meet the minimum standards of quality required of a licensed dentist. On November 1, 1978, Grace McMichael visited Dr. London to have an upper denture made. A primary impression was taken of Ms. McMichael's upper jaw on November 1, and the upper denture was delivered to her on November 13, 1978. On November 17, Ms. McMichael returned to Dr. London's office complaining that the upper denture would not stay in her mouth, and the denture pressed into her nose when she bit down. Dr. London adjusted the denture. Mr. McMichael returned to Dr. London's office on December 13, as she was not satisfied with her denture. Dr. London advised her that he could not do anything further for three months when her gums would be more stable. He recommended that she purpose adhesive to hold her denture in. Dr. London made an appointment for Ms. McMichael on February 2, 1979, but she cancelled and never returned. Dr. Christian's examination of Ms. McMichael and the denture delivered by Dr. London revealed that the borders on the denture were underextended, that there was no postdam area and that the phonetics were poor. The underextended borders and the lack of extension into the postdam area affected the stability and retention of the denture. The phonetics problems observed by Dr. Christian resulted in Ms. McMichael lisping. It should be noted that any changes that might have occurred in Ms. McMichael's mouth between December 13, 1978, and February 2, 1979, would have had no affect on the underextension of the denture or the phonetics and could not have been corrected by adjustment. The examination by Dr. Venable revealed that the posterior border of the denture (throat area) and the planges (cheek area) were overextended. Although Dr. Venable did not consider these to be major deficiencies, the testimony as a whole established that the denture failed to meet the minimum standards of quality required of a licensed dentist.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Respondent be found guilty of incompetence in the practice of dentistry. It is further
The Issue Whether Respondent committed various violations of Chapter 466, Florida Statutes, as alleged in the Administrative Complaints.
Findings Of Fact That on or about July 18 1984, patient P.F. presented herself to Respondent's dental center for dental services. At all times material to the allegations contained in the Administrative Complaint, the Respondent was the dentist of record for the patient, P.F. On or about Jul ,8, 1984, Joan Chen, D.D.S., at the direction or request of Respondent, began crown preparation on patient P.F.'s teeth number 18, number 19, number 30 and number 1, during the initial visit. The treatment rendered by Respondent consisted of root canal therapy on teeth number 19 and number 30, and placement of crowns on teeth number 18, number 19, number 30 and number 31. Treatment provided P.F. by Respondent as the dentist of record failed to meet the minimum standards of diagnosis and treatment by failure to complete endodontic treatment on patient's teeth number 19 and number 30. The patient indicated that at the time of her initial visit she was told she would need two root canals, one on each side. Dr. Delk had told the patient of this need and gave the patient an estimate for services. A person with a "certificate" started the drilling for the root canal, and Dr. Delk completed it. After the teeth were drilled, Dr. Delk offered to extract the teeth for the stated reason that her mouth was too small to accommodate them. The endodontic treatment on teeth number 19 and number 30 were never completed. The failure to complete endodontic treatment was beneath the standard of care in the community. It enhanced the possibility of tooth loss due to the involvement of the bifurcation. A permanent crown was placed over tooth number 19, which was fractured. Tooth number 19 had a violation of the bifurcation which showed "absolutely no dental skill at all". There was junk "piled" down to the bifurcation and a permanent crown placed over it. Tooth number 30 was also perforated. According to the pre-operative x-ray, this was a good healthy tooth. No treatment called for a permanent crown to be placed, and the tooth was left in that condition. The chart did not reflect the patient was ever informed of the perforation and that the minimal acceptable practice would be to inform the patient. The capping of the tooth after perforation was beneath the minimal standard of care. The patient first learned of the perforation of the tooth from Dr. Buljevic, a subsequent treating dentist in Chile. There was a level of awareness by both the Respondent and his staff of the perforation of at least one of the teeth according to the testimony of Jacqueline Hansen on July 18, 1984. Dr. Delk was aware of the perforations which were done in this case. Dr. Delk did not note in his chart the perforations or any attempt to notify the patient of the perforations.
Conclusions Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.208(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance by: Failing to complete endodontic treatment on patient's tooth number 19. Failing to complete endodontic treatment on patient's tooth number 30. Placement of a permanent crown over fractured tooth number 19. Perforation of tooth number 30. By failing to inform the patient of the condition or to note it in his chart. It is further found that the Respondent cannot avoid responsibility for his actions in light of Section 466.018, Florida Statutes, which provides that each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patient regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary rendering such treatment at the direction or request of or under the supervision of such dentist of record. Dr. John W. Delk was the dentist of record for patient P.F. when the treatment was rendered. Any attempt to disclaim responsibility based on the performance of services by another dentist is unsupported by the record, but even if, assuming arguendo, it was supported by the record, it does not excuse Dr. Delk's actions based upon Section 466.018, Florida Statutes, which places responsibility on the dentist of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the, Department of Professional Regulation, Board of Dentistry, enter its final order finding Respondent guilty of Count I and not guilty of Count II as to Case Nos. 89-0646; guilty of the allegations contained in Case Nos. 89-0647 and 89-3313; imposing a fine of $500 each for Case Nos. 89- 0646 and 0647 and a fine of $1000 for Case No. 89-3313; suspending the Respondent's license for two years; and placing Respondent on probation for 24 months subsequent to the expiration of the suspension period, conditioning reinstatement of Respondent's license to practice dentistry to such reasonable conditions as the Board may require. The suspension period reflects the consideration of Rule 21G-13.005, Florida Administrative Code, which provides the following be considered: (a) the severity of the offense, (b) the danger to the public, (c) the number of repetitions of offenses or number of patients involved, (d) the length of time since the violation, (e) the number of times the licensee has been previously disciplined by the Board, (f) the length of time the licensee has practiced, (g) the actual damage, physical or otherwise caused by the violation and the irreversibility of the damage, (h) the deterrent effect of the penalty imposed, (i) the effect of the penalty upon the licensee's livelihood, (j) any efforts of any rehabilitation by the licensee, (k) the actual knowledge of the licensee pertaining to the violation, (l) the attempts by the licensee to stop or correct the violation or refusal by the licensee to correct or stop the violation, (m) related violations against licensee in another state, including findings of guilty or innocence penalties imposed and penalties served, (n) penalties imposed for related offenses under Sections 2 and 3 above, and (o) any other relevant mitigating or aggravating factor under the circumstances. The offenses are severe since they have harmed three different patients, and Dr. Delk has previously been disciplined for improper delegation. The record does not indicate any efforts of rehabilitation by the Respondent, and he denied actual knowledge of the damage caused to P.F. in spite of, the fact that it was apparent. DONE AND ENTERED this 26th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact As to Case No. 89-0646 Accepted: Paragraphs 1,2,3,4,5 (in substance), 6 (in substance), 8, 9 (in substance), 10, 15 (in substance),17, 18, 19, 20, 21(1) (in part), 21(2)(in substance), 22 (in substance) ,23 (in substance), 24 (in substance), 26 (in substance), 27 (in substance), 28, 29 (in part) Rejected as not proven by clear and convincing evidence: paragraphs 7, 11, 12, 13, 14, 16 (argument), 21(1) (in part), 25 (in part) As to Case No. 89-0647 Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 9, 14, 15 (in substance) Rejected as not proven by clear and convincing evidence: paragraphs 8, 10, 11, 12, 13, 16 and 17, 18, 19, 20 and 21 (duplication) As to Case No. 89-3313 Accepted: 1, 2, 3, 4, 5, 6 (in substance), 7 (in substance), 8, 9, 10, 11, 12, 13, 14, 15, 16-34 (incorporated in substance), 35 (in substance), 36, 37, 38, 39, 40, 41, 42 (in substance), 43, 44, 45, 46, 47 Respondent's Proposed Findings of Fact As to Case No. 89-0646 Respondent's recommended findings contained in 169 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation of the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-0647 Respondent's recommended findings contained in 129 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-3313 Respondent's recommended findings contained in 248 numbered paragraphs (followed by a summary of the facts numbered A through Y) have been carefully reviewed and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. COPIES FURNISHED: John Namey, Esquire 1520 Livingston Street Orlando, FL 32803 Thomas Gordon, Esquire 320 North Magnolia Avenue Suite 5-B Orlando, FL 32801 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
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 issues presented herein are: (1) whether or not the Respondent, Kenneth T. Risco, D.D.S., permitted an unlicensed dental employee (Wilbert E. Bolyea) to examine and diagnose the mouth of Dr. Erwin Ochs for treatment or treatment planning in violation of Chapters 466.024(4)(b) and 455.026(1)(c), Florida Statutes (1979); whether Respondent, thereby aided, assisted, procured or advised an unlicensed person to practice dentistry or dental hygiene contrary to Chapter 466.028(1)(g), Florida Statutes (1979); whether Respondent knowingly permitted Bolyea to take an impression for the purpose of fabricating an intra- oral restoration, to wit: upper and lower dentures, in violation Chapter 466.024(1)(a) and (c), Florida Statutes (1979); whether Respondent thereby delegated professional responsibilities to a person with knowledge or reason to know that such person did not qualify by licensure to perform such tasks in violation of Section 466.028(1)(aa), Florida Statutes (1979); whether Respondent permitted Bolyea to engage in the examination, diagnosis and treatment planning of conditions within the human oral cavity audits adjacent tissues in conjunction with the supplying of dentures to patients in Respondent's office in violation of Chapter 466.026(1)(c), Florida Statutes (1979), and thereby knowingly employed a person to perform duties outside the scope allowed such persons in violation of Chapter 466.024(4)(b), Florida Statutes (1979).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By its eight (8) count Administrative Complaint filed herein on November 6, 1980, the Petitioner seeks to revoke, suspend or take disciplinary action against Respondent as a licensee and his license as a dentist under the laws of Florida. Respondent, Kenneth T. Risco, is a licensed dentist having been issued license No. DN6971, since approximately August of 1975. On approximately January 7, 1980, Respondent because professional associated with Wilbert Bolyea (Bolyea) whom he employed as an expanded duty assistant. In summary fashion, the complaint allegations are that Respondent, during the period January 7 through 18, 1980, permitted Bolyea, his expanded duty assistant, to engage in the examination, diagnosis, treatment planning and the taking of impressions for the purpose of fabricating prosthetic dentures and the adjusting of such dentures in violation of Chapter 466, Florida Statutes (1979). Petitioner's proof herein consists of testimony adduced from a deposition of Respondent taken on January 18, 1980, in Collier County Circuit Court, Case No.79-1029 captioned Bolyea v. Wittenberg; Dr. Erwin Ochs, who is now deceased, testimony was received as an unavailable declarant pursuant to Chapter 90-803(18), Florida Statutes; and testimony taken during the hearing herein on February 24, 1981, in Naples, Florida. Ruppert Bliss, a licensed dentist and a member of Petitioner's Board, has been practicing dentistry since approximately 1956. Dr. Bliss is a member of several professional associations and expressed familiarity with the terms of art peculiar to the dental profession. Dr. Bliss was received as an expert in prosthetic dentistry in this proceeding. According to Dr. Bliss, the treatment and diagnosis of a patient with dental problems should proceed as follows. First, the patient is examined by a visual inspection of the patient's pathological signs. A working relationship is then developed with the patient and a study model is made to follow and coordinate subsequent diagnostic procedures. This includes a study of a patient's tissue contours which aids in making a model to trace registrations and to effect proper adjustments which affect a patient's ability to bite. Throughout the procedure, the patient is constantly examined and a final adjustment is made to ensure that the dentures, as constructed and fitted, enable the patient to bite properly and that the bone and tissue conditions are not adversely affected. Dr. Bliss described the difference between the terms of art in the dental profession known as a "remediable" versus nd "irremediable" task. A "remediable" task is one that can be reversed whereas an "irremediable' task can not be reversed. Dr. Bliss included in the list of irremediable tasks, the adjustment of prosthetic appliances since they affect a patient's bite; may worsen bone or tissue conditions and also impacts on a patient's mannerisms. The diagnosis of a denture problem and its adjustment is an irremediable task. (Tr. 41) Respondent's Defense Dr. Riso is a 1975 graduate of the University of Pennsylvania. Upon graduation, he became licensed to practice in the states of Florida, New Jersey and Pennsylvania. Respondent's spouse, Dr. Rebecca Weber, is also a dentist licensed to practice in Florida and practices jointly with Respondent. Respondent, during the instant hearing on February 24, 1981, denied permitting Bolyea or any unlicensed person employed by him to practice dentistry or to examine patients without any supervision by him. Respondent became professionally associated with Bolyea on January 7, 1980, as an expanded duty assistant. In keeping with this employment relationship, Respondent and Bolyea entered into an employment agreement which delineated the procedures under which Bolyea was authorized to carry out his employment functions. (See Respondent's Exhibit No. 1) According to Respondent, he first learned of the services performed for Dr. Ochs by Bolyea, at the contempt hearing on January 21, 1980. Pursuant to the employment agreement, Bolyea was authorized to greet patients; take patients' dental history; determine the need for dentures and report back to Respondent. (Tr. pp. 53 and 67) Respondent therefore claims that he was unaware of any dental adjustments by Bolyea during times material to the allegations herein. (Se Respondent's Exhibit No. 1 and Tr. p 69) When Dr. Ochs visited Respondent's office for treatment on January 11, 1980, the employment relationship in effect between Respondent and Bolyea had been effective approximately two days. Dr. Ochs was not seen or examined by Respondent. On January 11, 1980, Dr. Ochs, a former dentist for approximately 35 years, visited Respondent's denture clinic in Naples for an examination and, if necessary, to have dentures made. After being greeted by an office assistant, Bolyea began talking to Ochs about the price and quality or dentures. At the outset of the examination by Bolyea, Ochs explained that he only needed an upper denture made since his lower denture was all right. Bolyea donned a pair of rubber gloves; removed Ochs' upper denture and placed it on a try. Bolyea then examined Ochs' mouth; massaged his lower gum with his finger; remarked that his ridge was very flat and had been pounded to almost nothing. (Petitioner's Exhibit 7, pp 3 and 4) After a mirrored view of Ochs' oral cavity while in the protruding position, Bolyea remarked that "there is contact anteriorly and posteriorly, but in the space between there, you have quite a space. That is why you are pounding your ridge to pieces, because your bite is not right." Bolyea advised Ochs that he could not help him with only a lower denture and that his only solution was to construct a complete set of dentures to correct his bite. Thereafter, Bolyea took a wax bite of Ochs' mouth. According to Respondent, the study model is made by Bolyea after a patient is initially screened. Thereafter, examines the model and a custom tray is made from which a final impression is made by Respondent. Respondent physically delivers the appliance after the third appointment. At some point during the course of fabricating the dentures, Respondent examines the patient. This occurred, in the usual case, during the second or third visit. Respondent's testimony during the contempt hearing held on January 21, 1980, is as follows. Patients desiring dentures were required to make three visits and at some point during the diagnostic procedures of the patient (by Bolyea), Respondent diagnosed and examined the patient. Respondent considered that Bolyea's actions in feeling dr. Ochs' gums and advising him as to the condition of the ridges included the corrective measures he would employ to correct his bite were "physical observations" rather than an examination and diagnosis. Respondent authorized Bolyea to make those determinations. (Petitioner's Exhibit 6 at p 48) Respondent did not check to determine the corrections of Bolyea's judgment as to the necessity for a new set of dentures. (Petitioner's Exhibit 6 at p 48) Respondent also stated that a patient was free to, and in fact would, return to his office if he was dissatisfied with the dentures (as fitted or adjusted by Bolyea). However, Respondent agreed that an improperly adjusted denture could result in irreversible harm to the muscles and soft tissues of the mouth. In this regard, Respondent's and Ms. Chesser's testimony during the hearing, to the effect that he (Respondent) was unaware of Respondent making adjustments to patients' dentures is contrary to Respondent's testimony on January 21, 1980. Respondent's sworn statements, when he was not under the pressure of disciplinary sanction by the Petitioner is considered more credible than the subsequent testimony herein when the threat of disciplinary action existed. To the extent that his testimony herein differs from the version offered by him during the prior proceedings, the more recent testimony is rejected. Likewise, Ms. Chesser's testimony to the effect that Respondent was unaware of Bolyea's actions relative to the adjustments of dentures is contrary to Respondent's testimony on January 21, 1980, and is also rejected. Joyce Chesser was employed by Messr. Dolyea from approximately July 1979, through March of 1980. She was hired as an assistant and officer manager. Based on Bolyea's procedures, dentures were completed during a span of not less than four weeks subsequent to a patient's first visit. Bolyea made adjustments to patients' dentures without Respondent's knowledge, permission or authorization (Tr. 76 thru 82). Bolyea also examined patients and went behind Respondent's back to adjust dentures which were already prepared prior to any employment relationship with Respondent. 2/ Respondent's wife, Dr. Rebecca Weber, was also familiar with the employment relationship between Respondent and Bolyea. Dr. Weber denied that Respondent permitted Bolyea to examine or otherwise diagnose patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Petitioner, Board of dentistry, enter a final order herein finding the Respondent guilty of the allegations set forth in Counts 1 through 8 of the Administrative Complaint filed herein and suspending the Respondent's license to practice dentistry in the State of Florida for a period of six (6) months. RECOMMENDED this 1st day of May 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 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 May 1981.
Findings Of Fact On November 17, 1981, a one-count Administrative Complaint was filed against the Respondent Schopler which alleged that he placed crowns on teeth numbers 7, 8, 9 and 10 (right lateral incisor, right central incisor, left central incisor and left lateral incisor) of Lorraine Romano in an incompetent and negligent manner which constituted malpractice and which failed to meet minimum standards of performance in treatment when measured against generally prevailing peer performance in violation of Sections 466.24(2), (3)(c) and (3)(d), Florida Statutes, as continued forward as Section 466.028(1)(y), Florida Statutes (1979). At all times material hereto, the Respondent Schopler was a dentist licensed by the State of Florida having been issued license number DN 0005316 and was engaged in the practice of dentistry in Pompano Beach, Florida. During the period from August, 1978 until February 16, 1979, Dr. Gary Ozga was a dentist providing dental services as an independent contractor at Respondent's dental office in Pompano Beach. During the period from October, 1978 until March, 1979, Lorraine Romano went to Respondent's dental office in Pompano Beach and received dental treatment from Dr. Ozga. The dental treatment provided by Ozga to Ms. Romano included the preparation of Romano's teeth numbers 7, 8, 9 and 10 for permanent crowns, the taking of impressions for permanent crowns and the cementing of temporary crowns into Ms. Romano's mouth with temporary cement. The amount of compensation which Dr. Ozga would normally have received for the crown work on Romano was reduced by one-third by the Respondent to reflect the fact that Dr. Ozga did not cement the permanent crowns into Ms. Romano's mouth. On or about March 13, 1979, the Respondent Schopler delivered permanent crowns to Ms. Romano for her teeth numbers 7, 8, 9 and 10, cementing them in with temporary cement. On May 1, 1979, Ms. Romano visited the Respondent Schopler's dental office to complain concerning the size and color of her permanent crowns. In response to these complaints, the Respondent Schopler removed, recontoured and changed the color of the crowns. On May 14, 1979, the Respondent Schopler recemented the permanent crowns into Ms. Romano's mouth. The crowns on Ms. Romano's teeth numbers 7, 8, 9 and 10 had poor gingival marginal adaptation which could in time produce problems in the gums and teeth. The crown on Ms. Romano's left lateral incisor, number 10, had open margins on the lingual and mesial aspects of the tooth. An open margin on a crown creates a pocket under the tooth which could lead to recurrent decay. The crown on Ms. Romano's left central incisor, number 9, had a margin which was short of the gingivival margin and which was open on the mesial aspect of the tooth. When the margin is open as was Ms. Romano's, a metal explorer can be placed between the metal in the crown and the tooth. This results in an unattractive appearance and the possibility of recurrent decay. The crown on Ms. Romano's right lateral incisor, number 7, had a margin which was short of the gingivival margin on the facial aspect of the tooth and which was open on the mesial aspect. The actions of the Respondent Schopler in cementing ill-fitting and discolored crowns into Ms. Romano's mouth failed to meet prevailing standards of peer performance in the Fort Lauderdale/Broward County area. The unrefuted testimony of the state's expert witnesses, Drs. Dixon and Diamond was that the permanent crowns on Ms. Romano's teeth failed to meet minimum standards of dental performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Schopler's license to practice dentistry be suspended for two (2) months. DONE and ORDERED this 24th day of September, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 24th day of September, 1982. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack Weins, Esquire ABRAMS ANTON ROBBINS RESNICK SCHNEIDER & MAGER, P.A. 2021 Tyler Street Post Office Box 650 Hollywood, Florida 33022 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein Secretary Department of Professional Regulation Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto Respondent was licensed as a dentist by Petitioner. During the period between September 1978 and March 1979 Marcia Girouard was a patient of Respondent. Following consultation on September 15, 1978, Respondent and Ms. Girouard agreed that she would have three crowns and upper and lower partial dentures installed. The dentures were priced at $300 for the lower, $500 for the upper precision partial and the crowns were $200 each. Respondent installed two crowns for Ms. Girouard and made her lower and upper partial dentures. The bill for these services was $1200. While the temporary crown was on tooth 11 it came off a few times and was recemented by Respondent. When the precision partial was installed the permanent crown was in place. Ms. Girouard had no posterior teeth aft of the two number 3 teeth on the lower jaw and teeth 6 and 11 and the upper jaw (Exhibit 5). Accordingly, the upper partial plate was anchored to tooth 11. In view of the lack of teeth to which to anchor the upper partial denture, Respondent, after discussing it with Ms. Girouard, made precision partial dentures for the upper jaw. Tooth 11 was ground down and fitted with a crown to which the female part of the precision partial was attached. When the precision partial was completed and the crown installed Respondent put the upper precision partial in place and adjusted it. Shortly after the upper precision partial gas installed Ms. Girouard complained of pain in tooth 11 and Respondent performed root canal therapy on this tooth. As is customary with root canal therapy a temporary closure was made of the cavity drilled and filled where the root had been removed. From the time this root canal work was done on February 1, 1979, until Ms. Girouard's last visit to Respondent's office on March 12, 1979, Ms. Girouard continued to complain about some sensitivity in tooth 11. When the lower and upper partials were seated on December 14 and 27, 1978, Ms. Girouard was instructed in removing and reinstalling these dentures. The lower partial was attached by clasps and never presented any problem to Ms. Girouard. How- ever, the upper precision partial did present serious problems in that while at home Ms. Girouard had great difficulty and little success in removing this upper precision partial. During the period between the initial seating of the upper precision partial on December 27, 1978, Exhibit 5 indicates Ms. Girouard was in Respondent's office on January 24, 1979,to have the crown on tooth 11 reseated; on February 1, 1979, for root canal; on February 8 for reseating partial; on February 9 for recementing crown; and on February 15 for an impression to convert the upper precision partial to conventional clasps. On March 12, 1979, Ms. Girouard made her last visit to Respondent's office and on this occasion she had her teeth cleaned. A subsequent appointment some two weeks later Was cancelled by Ms. Girouard as she was unsatisfied with the dentures she had received from Respondent. When the precision upper partial was converted to clasps Ms. Girouard was able to remove the denture but it did not fit as snugly as had the precision partial. Ms. Girouard's testimony that Respondent had difficulty installing and removing the upper precision partial from Ms. Girouard's mouth and that on several occasions he had to resort to the use of a dental tool to remove the denture was contradicted by Respondent and several assistants who worked in the office during the period Ms. Girouard was a patient. Respondent acknowledged that when the upper precision partial was first installed it did fit tight and he may have resorted to a dental tool to remove it the first time but that after making standard and routine adjustments he had no further difficulty removing this partial. Several witnesses observed Ms. Girouard insert and remove the precision partial in the dental office and confirmed her testimony that she complained about being unable to remove the precision partial at home. Because of her inability to remove this precision partial Respondent replaced the male connectors on the precision partial with clasps so the partial could be removed by Ms. Girouard. The female connection was left on the crown in case Ms. Girouard subsequently went back to the precision connection. At the time of Ms. Girouard's last visit to Respondent's office on March 12, 1979, she was complaining about the looseness of the upper partial and the root canal hole had not been permanently sealed. Respondent intended to permanently seal this tooth after the pain stopped and further treatment of this tooth would be unnecessary. Believing that she had been treated unfairly by Respondent Ms. Girouard in April 1979, contacted an attorney to institute a malpractice action against Respondent. This attorney sent her to Dr. Steve Hager for a dental examination. On April 25, 1979, when examined by Dr. Hager, Ms. Girouard had both upper and lower partials in her mouth. Hager's examination indicated no evidence that the work performed on Ms. Girouard by Respondent was below acceptable community standards or that anything was wrong with the work performed by Respondent (Exhibit 8). By letter of April 30, 1979, (Exhibit 9) Ms. Girouard was advised of Dr. Hager's findings. Nevertheless, by letter dated June 5, 1979, the attorney advised Respondent of Ms. Girouard's dissatisfaction with the work done and suggested a monetary settlement to Ms. Girouard of the money she paid for the partial dentures would deter her from filing a complaint with the Florida Board of Dentistry. In reply thereto Respondent, by letter dated June 8, 1979 (Exhibit 7), advised Ms. Girouard he did not feel the partials were improperly constructed or fitted but he would make further adjustments if it would help her. After Ms. Girouard was examined by Dr. Hager, Mr. Girouard returned the partials to Respondent's office. He does not recall with whom he left the dentures and none of Respondent's employees recall receiving these dentures. The fact that these dentures were returned was not disputed. On March 21, 1979, Mr. Girouard wrote a letter to Governor Graham complaining about the treatment his wife had received from Respondent and requested something be done about it. Girouard was referred to the Department of Professional Regulation and an investigation was initiated. In November 1981, Ms. Girouard was examined by a board-appointed dentist. She had received no dental treatment between her last visit to Respondent on March 12, 1979, and November 1981. At this time the permanent closure had not been placed on the root canal and Ms. Girouard did not have any of her partial dentures. This board-appointed witness testified that the work done by Respondent was below minimally acceptable standards because the root canal hole had not been closed with a permanent seal. Upon cross-examination he acknowledged that the six weeks from the time the root canal was done until Ms. Girouard's last visit to Respondent's office was not necessarily too long to wait for permanently closing the root canal opening and that if the patient refused to cooperate with the dentist the latter could not install the permanent seal. This witness also acknowledged under cross-examination that it was difficult to determine that dentures do not fit properly if the dentures are not seen in the patient's mouth. Expert witnesses called by Respondent testified that it was proper to leave the temporary filling on a root canal until the pain was gone or its cause ascertained and that this period could take upwards of six months. These witnesses further concurred that without seeing the dentures in the patient's mouth it is difficult to determine whether they fit properly. They also concurred that precision partial dentures should easily be removable by patients and that adjusting these precision partials is not a difficult process. The fact that the upper partial had to be attached to an anterior tooth and the lack of natural posterior teeth created greater pressure on the tooth to which this partial was attached. The increased leverage on this tooth due to the length of the partial would also create more torque and could lead to potential problems.
Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1984.
