Findings Of Fact The Respondent, James A. Ford, D.D.S., is the holder of license No. 5715, which is held with the State of Florida, State Board of Dentistry. A copy of this license may be found as Petitioner's Exhibit No. 1 admitted into evidence. At all times pertinent to the charges in this cause, Dr. Ford was the holder of the aforementioned license. On April 18, 1977, the administrative accusation which is the basis of this case was brought against Dr. Ford. Dr. Ford was duly apprised of that accusation and requested a formal hearing to challenge the administrative accusation. The administrative accusation may be found as a part of Petitioner's Composite Exhibit No. 2. The initial count in the administrative accusation pertains to the care and treatment of Mrs. Henry Good. Mrs. Good was also identified in the hearing as Gladys Good. Mrs. Good went to Dr. Ford's office for the purpose of being treated by a Dr. Foley who had semi-retired at the time she went for treatment. The purpose of going to the office was to have a maxillary full denture constructed. Dr. Foley was not working in the office at that time and the patient was seen by Dr. Ford. When she came to the office she had been a denture wearer for a period of 20 years and the last set of dentures had been fabricated 15 years prior to her office visit with Dr. Ford. The Respondent took impressions and asked Mrs. Good to return for a try-in of the actual dentures. The new dentures were painful to Mrs. Good and were difficult to retain, in that they kept falling down in her mouth. Dr. Ford advised her to keep trying to make the dentures work and to wear them day and night. At some point an argument ensued between Dr. Ford and the patient, Mrs. Good, at which point Dr. Ford explained to the patient that if she could not rely on his instructions and what he told her about the problem, then he would no longer treat her. The patient then demanded that her money be reimbursed and Dr. Ford refused and the patient did not return. Petitioner's Exhibits 14 and 15 are receipts given to Mrs. Good for the payment that she gave to Dr. Ford for the treatment. The dentures in question may be found as Petitioner's Exhibit 16, admitted into evidence. Mrs. Good tried to wear the dentures after leaving the care of Dr. Ford, but the dentures kept falling down. Finally, Mrs. Good made a complaint to the Broward County Dental Association and was eventually referred to the Petitioner for purposes of investigating her complaint. One of the aspects of the investigation of the complaint was to have other dentists review the history of the complaint, together with an inspection of the dentures and an examination of the patient. One of the doctors involved in the examination of Mrs. Good, for the benefit of Petitioner, was Dr. Mervyn J. Dixon, D.D.S. Dr. Dixon is a dentist licensed with the State of Florida and is a member of the Broward County Dental Association, the Atlantic Coast Dental Society, the Florida State Dental Society, the American Dental Association, the Academy of General Practitioners, and the Broward Research Clinic. He is also Secretary-Treasurer of the Broward County Dental Association. His knowledge and experience in the field of prosthetics began with four months practice while in the armed services. He is a member of the Prosthetics Section of the Research Group in Palm Beach County, Florida, which meets once a month and does only prosthetics. Dr. Dixon has also been involved in the administration of the Petitioner's State Board Exams, specifically, checking the setups in the portion of the examination dealing with prosthetics. This function was preformed in the summer of 1977. After his initial practice in the armed services he has continued to work in the field of prosthetics. His total experience in the construction of prosthetic appliances would number at least 1,000. Finally, Dr. Dixon is also an assistant Secretary- Treasurer for the Florida State Board of Dental Examiners of the State Board of Dentistry. Dr. Dixon saw Mrs. Good on March 16, 1977. Her complaint to him was that the upper denture would not stay up and that the denture was too big. Dr. Dixon reviewed the condition of the maxillary denture, which is Petitioner's Exhibit 16. One of the aspects of the examination, was to have the patient try the dentures in her mouth. When he observed the dentures in her mouth he found that they would not stay up, except when the patient bit down and held the dentures in position against the lower partial and lower natural dentition. When she opened the mandibular portion of her mouth the upper denture would fall down. The peripheral or outer border of the denture which had been fabricated by Dr. Ford was over extended in the canine area, to the extent that when you pushed up there was resistence or the denture would drop back down. The over extension was approximately 5 millimeters beyond where the roll of the sulcus is found. This caused an elastic reaction when he tried to push the tissue up. (This reaction is similar to the elasticity found in a rubber band.) A contraction then takes place and the dentures come down. The post-dam was not adequate the post-dam being an excessive acrylic in the posterior part of the denture. This caused a problem with retention. Dr. Dixon felt that the denture did not meet minimum acceptable standards of the community for prosthetic devices. In view of the observations by Dr. Dixon and the complaints by Mrs. Good, the Petitioner charged the Respondent with a number of violations which were reflected in the Issues section of this recommended order. Several of those provisions are set forth in Section 466.24(3)(a), (c) and (d), F.S. The language of those sections states the following: "Suspension or revocation of license certi- ficate for cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it establishes to its satisfaction that he: * * * (3) has been guilty of: (a) misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession; * * * malpractice; willful negligence in the practice of dentistry or dental hygiene" An examination of the facts in the case of Mrs. Good establishes misconduct in Dr. Ford's business that would bring discredit upon the dental profession. The facts spoken of include the fabrication of the highly unacceptable maxillary dentures and the insistance that the patient be required to accept them, and the further insistance that the patient be dismissed because of her unwillingness to accept the dentures. The same facts of Mrs. Good's case are so flagrant, that it would constitute malpractice within the meaning of Chapter 466, F.S. The act of constructing an inferior maxillary denture and causing the patient to wear that denture, in opposition to constructing a serviceable denture, constitutes willful neglect in the practice of dentistry as described in Section 466.24(3)(d), F.S. In count number eight of the accusation, the Respondent is charged with being grossly incompetent in violation of Section 466.24(2), F.S. This provision states: "Suspension or revocation of license certi- ficate of cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he: * * * (2) is grossly ignorant or incompetent" The treatment that Dr. Ford gave Mrs. Good constitutes gross incompetence, by the nature of the construction of the dentures themselves, and the insistance that those dentures be utilized by the patient. Count two of the administrative accusation pertains to the same statutory allegations as set forth in the case of Mrs. Good. This count deals with Yolande Breckley, for whom Dr. Ford constructed a prosthetic appliance: A maxillary full denture. Mrs. Breckley was a patient who had insisted that she needed to have her natural dentition removed and a prosthetic appliance substituted. To effect this end, she requested a Dr. King to remove the teeth and Dr. Ford was to make the denture. Her natural teeth were removed and Dr. Ford made a maxillary denture. Dr. Ford had questioned her decision to remove her natural teeth and had also indicated that the initial maxillary denture, i.e., prosthetic appliance might not function properly. Mrs. Breckley picked up the Ford dentures in an envelope and had those fitted by Dr. King. She was to return to Dr. Ford for further fittings. These dentures that Dr. Ford had made hurt her in the anterior area and in her lip. The latter area was discolored, "black and blue." She told Dr. Ford that the denture was painful. This conversation was held about a week after Dr. King had fitted the denture. She described the pain as being like a toothache. She could not eat with the dentures. The dentures did not match up well with her lower teeth. It was necessary that she remain on a soft diet. Two or three weeks after this, Dr. Ford relined the dentures and she then asked Dr. Ford for a new set of dentures. Where ensued a series of office visits in which every several weeks she would try to have Dr. Ford make an adjustment. The total time was approximately six months. Mrs. Breckley had paid Dr. Ford for the dentures as evidenced by Petitioner's Exhibit 8, admitted into evidence. Subsequent to that six month period, a second set of dentures were made by a Dr. Foley, who is in Dr. Ford's office, but who is not responsible to Dr. Ford. There was no charge for these dentures. They were made while Dr. Ford was on vacation. These dentures were unacceptable and a third set was made by Dr. Ford for which he charged the price of $100.00 and an additional $31.00 for two relines. This is reflected in Petitioner's Exhibit 9, admitted into evidence. This third set of dentures also gave the patient pain and she complained about the pain to Dr. Ford. Dr. Ford tried to persuade the patient that something was wrong with her, not the teeth, suggesting that the condition was perhaps psychosomatic. There were many visits to try to adjust the third set of dentures, and paste was placed on the dentures and they were ground. During the course of this treatment for the latter set of dentures, Mrs. Breckley went to Canada and was seen by a dentist who worked with the dentures. Eventually there was some falling out between Dr. Ford and Mrs. Breckley and Dr. Ford told her he did not wish to see her face again. In result of her confrontation with Dr. Ford, she wrote a letter of complaint which brought about the current accusation. The patient has seen three dentists after seeing Dr. Ford. The patient is still experiencing difficulty with the new set of dentures she now has, and has to have those dentures relined. In investigating the complaint Dr. Dixon saw Yolande Breckley. He saw the patient on December 13, 1976. She related the history that Dr. Ford had constructed two sets of dentures. The first of the two was delivered in July, 1975. When Dr. Dixon saw the patient she was wearing a new upper denture that was constructed by Dr. Burch. She also had the two sets of dentures that Dr. Ford had prepared and Dr. Dixon attempted to try these dentures in her mouth. The patient placed the dentures in her mouth, but when she opened her mouth the dentures fell down. This refers to the maxillary dentures that had been constructed by Dr. Ford. He also observed a very sharp boney ridge with much pendulous tissue in the maxila. This is felt to have occurred because of abnormal bone resorption, which occurred after the extractions of the upper teeth, leaving boney ridges leading to the ensuing pendulous tissue. This made it extremely difficult to get the denture stable because it would shake like "jello." This would cause the dentures to slip and slide. Dr. Dixon feels that he would not have attempted to make dentures until such time the patient had been referred to an oral surgeon to have some of the tissue trimed and the boney ridges smoothed down. This type of difficulty was easily observable by the treating dentist. In addition the lower rehabilitation work had been done in such a way that the cuspation of the teeth and of the crowns and bridges was about 20 percent and therefore similar to the remaining natural dentition in the mandibular area. The upper appliance was flatplane; therefore, the inner digitation of the cusp was deficient, causing problems with chewing. In summary, Dr. Dixon felt that the condition of the patient was one which it would be difficult to treat and oral surgery seemed indicated before trying to make the dentures. The dentures that Dr. Ford had made were felt to be below minimum standards because they could not be retained. Measured against the allegations, Dr. Ford's treatment of Mrs. Breckley shows gross incompetence within the meaning of Section 466.24(2), F.S., due to his failure to recommend surgical intervention. This would also constitute misconduct in his business, which would bring discredit upon the dental profession. In addition, the poor construction of the dentures would tend to discredit the dental profession. Furthermore, this conduct constitutes malpractice and willful negligence in the practice of dentistry. The subsequent findings establish violations of Section 466.24(a), (c) and (d), F.S. The third count of the accusation pertains to the same statutory allegations found in the first and second counts. The treatment involved Jacob Klapper who received a prosthetic appliance, namely full maxillary and mandibular dentures. Mr. Klapper did not give testimony in the hearing and the description of his case was given by the Respondent and Dr. Dixon. Mr. Klapper was a man of considerable age, who was terminally ill at the time that Dr. Ford saw him in August, 1976. Mr. Klapper had been wearing a full upper denture for 22 years prior to that time. His principal complaint to Dr. Dixon was that Dr. Ford had relined the upper dentures, but he still had looseness and that Dr. Ford had instructed the patient to wear those dentures until they welt in the patient's mouth. Dr. Dixon noted that Mr. Klapper had an extremely poor lower ridge and the centric relation was not correct, in that the mandible or the condyle of the mandible was not in the most superior position in the fossa. This means the position in which all teeth touch simultaneously. After achieving the centric position with the patient, the teeth did not make very acceptable contact. The molars did not contact at all. These dentures prepared by Dr. Ford had over extensions in the set, particularly in the retromolar pad and the mylohyoid ridge. There was a reverse curve of spee. The patient also complained to Dr. Dixon that Dr. Ford had a lack of compassion and that Dr. Ford had instructed him to insert the dentures in the restroom and leave before seeing how the dentures looked. Dr. Dixon did not feel that the dentures met the minimum standards of the community, in fact the dentures would not stay in the patient's mouth and there were some very sore areas in the patient's mouth evidenced by the redness in the tissue when the dentures were inserted. Furthermore, the over extensions of the lower and retromolar pad and mylohyoid area contributed to the fact that the dentures could not be retained. Every time the patient opened his mouth the lower denture jumped up. Dr. Ford claimed that the patient got angry in his office which led to their disagreement and the patient's not coming back. Dr. Ford stated that the patient wrote a threating letter which is Respondent's Exhibit 2. This letter had been addressed to Dr. Foley, the other dentist in the office. Dr. Ford also stated that he had prepared two sets of dentures for Mr. Klapper and questioned which dentures Dr. Dixon's testimony referred to. The dentures which Dr. Dixon had examined from Mr. Klapper were not presented in the hearing. There is therefore, some conflict on the question of which dentures that had been fabricated by Dr. Ford were at issue. In view of Mr. Klapper's non-attendance at the hearing it is hard to tell what really transpired between the Respondent and he, concerning any misunderstanding about the trying of the dentures. No matter which dentures Dr. Dixon looked at, those dentures which had been fabricated for Mr. Klapper demonstrated gross incompetence on the part of Dr. Ford, within the meaning of Section 466.24(2), F.S. There has been insufficient showing to demonstrate that Dr. Ford was guilty of misconduct in his business, such to bring discredit upon the dental profession or guilty of malpractice or guilty of willful negligence in the practice of dentistry while involved with the patient Mr. Klapper, all within the meaning of Section 466.24(3), F.S. The fourth count in this cause concerns the treatment and care of Robert R. Whittaker. Again this count has the same violations alleged for the other patients in this case. The dispute arose over the preparation of full maxillary and mandibular dentures. Robert Whittaker was first seen by Dr. Ford on November 9, 1976. He went there to have a full upper and lower set of dentures constructed. He had been wearing full upper and lower dentures for 20 years. When Dr. Ford looked at the patient's mouth he stated that the dentures that Whittaker was wearing needed replacing. Whittaker requested that the dentures be made in the same style and color as the old dentures. The fee for this work was $220.00. Impressions were taken and try-ins were made on November 15, 17 and 19, 1976. The actual dentures were received on November 23, 1976. The dentures, according to Whittaker, did not fit in that the rails were too high. At first the dentures would not fit his gums and Ford told his assistant to have them altered. They were altered and the dentures were returned to the patient, but they still did not feel right and were sore in the upper quadrant. Dr. Ford made no further attempt at that time to correct the dentures and told Mr. Whittaker to take them home and try to eat and get used to them. Mr. Whittaker went home and wore the dentures but still experienced a great deal of pain and could not eat with the dentures, because they slid around in his mouth both in the upper and lower, but mostly in the upper. The patient went back to Dr. Ford approximately November 29, 1976 because of the continued discomfort. Dr. Ford's assistant got mad at the patient when she saw that he wasn't wearing the dentures. Dr. Ford came in and the patient complained to him that the dentures hurt, were the wrong style, and protruded. In that regard, Petitioner's Exhibit 19, admitted into evidence, is a depiction of the prior dentures and those that were prepared by Dr. Ford, and the photograph clearly shows that the dentures prepared by Dr. Ford did protrude. In addition, the prior dentures had not given the patient any problem and did not protrude. Dr. Ford then tried the dentures he made in the patient's mouth and told the patient he would have to pay another $220.00 if he wanted additional dentures made. The patient told Dr. Ford that he would have to consider legal action and that was the last time he saw Dr. Ford. The dentures themselves may be found as Petitioner's Exhibit 5, admitted into evidence. The checks for payment are Petitioner's Exhibits 6 and 7, admitted into evidence. Dr. Dixon saw Mr. Whittaker on December 8, 1976. At that time Mr. Whittaker was wearing the old dentures which had been constructed 12 years prior to that time. He complained of Dr. Ford's dentures and said that the dentures hurt especially in the upper right quadrant, and that he could not eat and that the dentures were loose. Dr. Dixon's clinical observations were that the vertical dimension of the new dentures was increased by 5 millimeters, which is too much of an increase for a single increment of change in the dentures. When the patient was placed in centric he was a half tooth forward. The periphery of the dentures constructed by Dr. Ford is over extended. In the retromolar pad area, there was a tendency for the teeth to pop up when the teeth were opened. These teeth were also over extended in the maxillary area and the mylohyoid. There was a poor retention of both the upper and lower dentures. The upper and lower dentures were mismatched in terms of their dimensions. This caused an inefficiency in the utilization of the teeth. In Dr. Dixon's mind this construction violated the minimum acceptable standards of the profession. In review of the testimony concerning Dr. Ford's care and treatment of Mr. Whittaker, that testimony demonstrates that the construction of the dentures indicated gross incompetence on the part of Dr. Ford within the meaning of Section 466.24(2), F.S. The act of the poor construction and the attempt to charge further for a second set of dentures is misconduct in his business, by Dr. Ford, which would bring discredit upon the dental profession and constitutes malpractice, all within the meaning of Section 466.24(3)(a) and (c), F.S. The facts do not demonstrate any willful negligence in Dr. Ford's care and treatment of Mr. Whittaker, as defined in Section 466.24(3)(d), F.S. Count number five of the accusation, involves the patient Violet B. Arnst and contains the same allegations found in prior counts. Mrs. Arnst had Dr. Ford prepare a prosthetic appliance, a full maxillary and mandibular denture. Mrs. Arnst had been seen by Dr. Foley, the working associate of Dr. Ford, a number of years before her visit to Dr. Ford. She called to make an appointment with Dr. Foley but was told that he only came in when Dr. Ford was out. Therefore she was seen by Dr. Ford in July or August, 1975. Dr. Ford told the patient that her lower teeth were receding and that she needed a lower set of dentures for that reason and that the more appropriate approach was to make an upper and lower set of dentures. She paid Dr. Ford $200.00 for the services of fabricating prosthetic appliances; maxillary and mandibular. This is verified by Petitioner's Exhibits 10 and 11 which are the cancelled checks for the services. When she went to pick up the teeth and try them on she told Dr. Ford that the teeth did not look right or feel right and that she could not see her teeth when she smiled. This is borne out by Petitioner's Exhibit 18, which was admitted into evidence and is a series of photographs showing the dentures that were prepared by Dr. Foley prior to the dentures prepared by Dr. Ford, as compared to the Ford dentures. It can be seen in the photographs that the Foley dentures allow a smile line, in that the maxillary dentures are showing, whereas in the Ford dentures the maxillary dentures are completely covered by her upper lip. Mrs. Arnst had another initial complaint that the teeth hurt her in the gum area and the gums felt sore when she tried to bite. The dentures were also loose and she could not eat with them. She continued to see Dr. Ford after the initial try-ins and Dr. Ford advised that she was impatient and would have to become accustomed to wearing the dentures. She saw Dr. Ford for five or six times and returned two weeks after the dentures were prepared and said that the dentures still hurt and didn't look right. The last time Mrs. Arnst saw Dr. Ford, Dr. Ford told her to make an appointment for a reline of the dentures and then became angry with the patient and told his office personnel that he did not want to see Mrs. Arnst again. Mrs. Arnst then wrote a letter to Dr. Foley complaining of the situation with Dr. Ford and also wrote a complaint letter to the authorities who regulate Dr. Ford's practice of dentistry. Petitioner's Exhibit 3, admitted into evidence are the dentures made by Dr. Ford which are the subject of discussion. At present the patient is using the dentures prepared by Dr. Foley, which are those prepared immediately before Dr. Ford's. This patient was also seen by Dr. Dixon in the investigative phases of the accusation. Dr. Dixon found that the patient was a person approximately 65 years old who had been wearing full dentures since the age of 16. Dr. Dixon found that the patient had a moderate lower ridge, and still had bone left and for that reason he found her to be an ideal denture patient. Dr. Dixon also noted that there were no second molars on the dentures that were fabricated by Dr. Ford, although there were second molars fabricated by Dr. Foley. From Dr. Dixon's point of view he felt that there was sufficient room to have accommodated the second molars especially on the right side, when Dr. Ford prepared the new set of dentures. Because of the missing second molars this cut down on the efficiency of the utilization of the dentures because there was a lesser number of posterior teeth. These teeth are used for purposes of grinding. He found that the lower molars were not over the crest of the ridge, meaning the highest point of the lower boney ridge. This caused unnecessary tipping and upsetting of the denture when going through the occlusal pattern of chewing. Dr. Dixon also observed a three millimeter buckle to buckle difference in the width of the original upper denture prepared by Dr. Foley and that prepared by Dr. Ford. The buckle to buckle dimension is the outside dimension, that is to say cheek to cheek cuspation of the molars. The retention of the upper dentures prepared by Dr. Foley was fair, but there was no retention of the lower denture in the patient Mrs. Arnst. Dr. Dixon found that the post-dam was fair to poor. He also noted that there was a reverse curve of spee, meaning that gentle slopping curve in the second molar down to the cuspid, that conforms to the curvature of the fossa in the temporal-mandibular joint. This reverse curve caused a lack of continuous contact or occlusion of the teeth. Dr. Dixon also noted that the "smile line" was extremely poor. He, in fact, prepared the photographs which have been referred to before. In Dr. Dixon's opinion the maxillary dentures were set too far up toward the nose or maxila to show. Dr. Dixon felt that Dr. Ford should have seen the problem of the "smile line" at the time the teeth were tried in. In summary, Dr. Dixon felt that both the maxillary and mandibular dentures in the patient Violet Arnst would not meet minimum acceptable standards of the dental profession, due to the lack of retention and due to the fact that the lower teeth are not over the crest of the ridge. In Dr. Dixon's opinion this caused an inability in the patient to chew her food. The patient Violet Arnst was also seen by Dr. Richard A. Saul, D.D.S. Dr. Saul is licensed to practice dentistry in the State of Florida and has been so licensed since 1956. He is a member of the American Dental Association, Florida Dental Association, and the Broward County Dental Association. He has practiced dentistry continuously since his graduation in 1956. Dr. Saul sees approximately 50 to 60 appointments a week. Dr. Saul has continued to take courses in prosthetics since his graduation and in his practice Dr. Saul repairs full or partial dentures. In examining Violet Arnst, he agreed with Dr. Dixon that the chief complaint of the patient was one of aesthetics. He found that the upper anteriors did not show in her mouth, because the lip covered them. This is referring to the teeth that were prepared by Dr. Ford. He found that the borders of the full upper and lower dentures were over extended. He noted that the lower anterior region had a knife like ridge and when he palpated the patient, this caused a great deal of pain to her. In his opinion the patient's situation could have been better treated had the lower ridge been flattened out, removing the knife like appearance of the bone. The over extension of the dentures into the musculature was believed to cause ultimate dislodgement of the dentures. Dr. Saul noted that only two of four teeth on one side were in centric. He felt that this was inadequate and would cause the dentures to skid, and cause movement of the denture in the patient's mouth. He observed that the patient at his interview was experiencing some pain. Saul did not feel that the dentures constructed by Dr. Ford for the patient Violet Arnst met the minimum standards of the community for acceptable dental practice. This examination of Mrs. Arnst took place on July 22, 1977. Based upon the quality of the construction of the dentures for Mrs. Arnst, and the abrupt dismissal of the patient, Dr. Ford has been guilty of misconduct in his business which would bring discredit upon the dental profession, in violation of Section 466.24(3)(a), F.S. This conduct on the part of Dr. Ford also shows malpractice and willful negligence in the treatment of Mrs. Arnst, as defined in Section 466.24(3)(c) and (d), F.S. Finally, this quality of treatment of Mrs. Arnst constitutes gross incompetence as set forth in Section 466.24(2), F.S. Count number six of the administrative accusation pertains to the patient Joseph Jenkins. This patient was seen by Dr. Ford in August of 1975, based upon the patient's referral by persons who had been treated by the Respondent. It was necessary to make extractions of the natural teeth prior to the preparation of full maxillary and mandibular dentures. These extractions began in August, 1975 and the patient received the teeth in November, 1975. (The extractions were not done by Dr. Ford.) The format of the treatment of the patient by Dr. Ford was to make impressions, then to try-in the teeth; then the actual dentures were given to the patient. The patient observed that the teeth appeared too large and the upper dentures kept falling out. When the patient would take a bite the teeth would "jump up". Dr. Ford told the patient to keep the dentures in his mouth and to line the dentures with denture powder. Additionally, he indicated to the patient that once the gums had "shrunk", and the teeth were relined, they would fit. The patient was not experiencing trouble with the mandibular teeth, his main problem was with the maxillary teeth. The maxillary dentures rubbed against the top of his mouth and caused him to gag. The patient saw Dr. Ford three or four times in December, 1975 and again in January 1976 at which point the dentures were relined. In February, 1976, the lower dentures were relined. During February and after February, 1976 the patient saw Dr. Ford five or six times. In the course of these visits, Dr. Ford would correct the problem of the rubbing dentures. In the course of treatment prescribed by Dr. Ford he told the patient Joseph Jenkins to use sandpaper to relieve the discomfort, but the dentures still did not fit, meaning the maxillary dentures. In March, 1976, the patient's wife tried to get an understanding of the problem from Dr. Ford and Dr. Ford hung the phone up and did not talk to her. At that point the patient ceased to see Dr. Ford and the patient is not wearing any dentures at this point. The dentures in question may be found as the Petitioner's Exhibit 17, admitted into evidence. For the total services the patient paid Dr. Ford $560.00. In accordance with the investigation of the accusation the patient was seen by Dr. Dixon on December 8, 1976. At that time the patient was complaining of the poor fit of the maxillary dentures. He did not have a complaint about the mandibular dentures. Dr. Dixon observed that the patient gagged excessively when the dentures were placed in his mouth, to the extent of having to use a local topical anesthetic on the palate to allow the patient to keep the dentures in for a sufficient period of time to be observed. Dr. Dixon observed a poor retention of the maxillary denture, in that it kept falling out while the doctor was trying to examine it. There was no post-dam whatsoever. The maxillary dentures were grossly over extended in the area of the soft palate, about five or six millimeters beyond the vibrating line. This is why the gaging occurred. Dr. Dixon felt that in view of the number of visits that the patient had with Dr. Ford, the problem with the post-dam and the gaging should have been observable by Dr. Ford, and been corrected. In view of the lack of retention, Dr. Dixon did not feel that the dentures met minimum acceptable standards of the community. In addition, Dr. Dixon felt that there was no necessity to have to use denture powder, in view of the fact that the dentures had just been fabricated for the patient, as opposed to having been utilized for a period of five or six years. The use of denture powder was not a good technique in Dr. Dixon's mind because the gum could not receive proper circulation causing a destruction of the tissue and bone. Dr. Dixon also felt that it would be improper for Dr. Ford to prescribe the use of sandpaper to relieve soreness. Dr. Saul examined Joseph Jenkins in July or August, 1976. At that point Mr. Jenkins' complaint to Dr. Saul was that the denture was ill fitting. Dr. Saul observed that the borders of the dentures were grossly over extended, especially in the areas of the soft palate and the patient was found to be complaining and gaging. Dr. Saul noted that the maxillary tended to drop when being used. In Dr. Saul's mind, this extension into the soft palate, made by the maxillary dentures, made it difficult for the patient to speak and eat. In Dr. Saul's opinion the over extension of the dentures caused them to fail to meet the minimum acceptable standards of the dental community. In view of the testimony offered by the investigating dentists, it is clear that Dr. Ford has been guilty of misconduct in his business, such that it would bring discredit to the dental profession, as set out in Section 466.24(3)(a), F.S. This is based upon the poor preparation of the maxillary dentures and the failure to correct that prosthetics over a long period of time of innumberable visits. These facts also establish that Dr. Ford is guilty of malpractice and willful negligence in the treatment of Mr. Jenkins, as prohibited by Section 466.24(3)(c) and (d), F.S. Dr. Ford was also grossly incompetent in the preparation of the Jenkins maxillary dentures, as defined by Section 466.24(2), F.S. Count seven of the administrative accusation pertains to the care and treatment given by Dr. Ford to the patient Edith Wenke. In January, 1976 Mrs. Wenke went to Dr. Ford for the purpose of having him prepare a prosthetic appliance, in this instance, full maxillary and mandibular dentures. The patient had worn dentures for 25 years prior to being seen by Dr. Ford. The initial set of dentures by Dr. Ford were prepared before February 3, 1976. These dentures gave the patient a great deal of pain in the gum area and the teeth were not straight and were somewhat misaligned. Another problem that the patient had with Dr. Ford's dentures was the inability to eat because of pain. She made another appointment with Dr. Ford and complained about the first set of teeth. Dr. Ford told her that she had some problem with a "trick" jaw which caused a difficulty in making the dentures. In fact, the patient did not have the problem with a "trick" jaw. Subsequently, a second set of dentures were prepared by Dr. Ford, these too were uncomfortable, and the patient continued to go back as much as twice a week, to try to rectify the problem. Mrs. Wenke is not certain but there may have been a third set of dentures made and the offering by Dr. Ford to make a fourth set or to give the money back. Whether or not Dr. Ford offered to give the money back after completing two or three sets of teeth is uncertain, but it is established that he did offer to refund the money. The patient thought about the offer of a refund over the course of a weekend and elected to have the money refunded. At that point Dr. Ford said that he had changed his mind and would refund only a portion of the money, namely $100.00. The patient later went to another dentist who told her to put in the dentures she had been wearing prior to seeing Dr. Ford. After that date she has had a new set of dentures prepared by a dentist other than Dr. Ford and has experienced no pain or poor quality prosthesis that was found in the dentures that had been prepared by Dr. Ford. Upon consideration of the testimony of Mrs. Wenke, in view of the general opinions stated by Dr. Saul and Dr. Dixon, it is clear that the dentures prepared for Mrs. Wenke were below community standards as to their construction. The dentures were so substandard as to indicate gross incompetence on the part of Dr. Ford as set forth in Section 466.24(2), F.S. Dr. Ford was also guilty of misconduct in his business which would bring discredit upon the dental profession, by his poor construction of the dentures for Mrs. Wenke and his agreement to make a refund to her, which was unreasonably rescinded. This misconduct was a violation of Section 466.24(3)(a), F.S. Dr. Ford's treatment of Mrs. Wenke also demonstrated malpractice, within the meaning of Section 466.24(3)(c), F.S. There is no indication that this conduct with Mrs. Wenke constituted willful negligence in the practice of dentistry as defined in Section 466.24(3)(b), F.S.
Recommendation Having fully considered the testimony offered by the Petitioner and the Respondent, and being duly apprised of the aggravating and mitigating circumstances, it is the recommendation of the undersigned that the Respondent, James A. Ford, D.D.S., have his license to practice dentistry in the State of Florida revoked. DONE AND ENTERED this 20th day of January, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 James A. Ford, D.D.S. 1201 Sample Road Pompano Beach, Florida 33064
The Issue The issues in this case are whether the Board of Dentistry (Board) should discipline the Respondent on charges that she violated section 466.028(1)(z), (ff), and (gg), Florida Statutes (2009-2012),1/ by: improperly delegating professional responsibilities to persons not qualified to perform them; operating her dental office below minimum acceptable standards; and allowing the administration of anesthesia, in violation of Board rules.
Findings Of Fact The Respondent, Miranda Whylly Smith, D.D.S., holds license DN15873, which authorizes her to practice dentistry in the State of Florida. She has held this license since January 2002. No discipline has been imposed against her license to date. Since July 2009, the Respondent has owned and operated a dental practice called "Smiles and Giggles" in Spring Hill, Florida. Prior to May 2011, Smiles and Giggles was located on Mariner Boulevard; in May 2011, it moved to County Line Road. The Respondent is the only dentist practicing at Smiles and Giggles. She employs dental assistants, not dental hygienists. Count I--Improper Delegation Count I charges the Respondent with improperly delegating professional responsibilities to her dental assistants. Expanded-function dental assistants employed by the Respondent have included: Lillian Torres, who worked at Smiles and Giggles from late 2009 to March 2012 and functioned as the "head dental assistant" with responsibility for overseeing the work of other dental assistants working in the office; Kristina Plumadore, who has worked there since 2009; and William Hemme, who has worked there since late 2011 and now serves as head dental assistant. Priscilla Davila worked there as a dental assistant without an expanded-function certificate from May 2011 to August 2011. Incorporated in that charge are specific factual allegations regarding Ms. Torres and an unnamed male expanded- function dental assistant (who, the evidence revealed, was Mr. Hemme). (The Administrative Complaint includes other specific allegations based on statements from other dental assistants who did not testify, and those allegations are omitted here, since there was no evidence to support them.) Also incorporated in the charge are general factual allegations that all dental assistants improperly performed many of the same tasks at the direction of Ms. Torres and Mr. Hemme, with the Respondent's knowledge and approval, including taking impressions and bite registrations2/ for dentures, delivering dentures, adjusting dentures with grinding devices, using drills on cavities, filling cavities, and other tasks for which they were not qualified. Count I charges that the Respondent delegated to dental assistants the taking of final impressions for dentures and the making of adjustments to dentures, including the use of high- and/or low-speed drills, which made unalterable changes to the teeth.3/ As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres took the final impressions for dentures for a patient, L.C.; that Mr. Hemme adjusted dentures for the patient L.C. by "grinding [them] down"; and that both Mr. Hemme and Ms. Torres did "[a]ll denture fabrication and adjustment procedures" for L.C. In some respects, L.C.'s testimony on this allegation was inconsistent with the dental records introduced by the Respondent, which are more accurate in those respects. L.C. presented to the Respondent in late 2009. Initially, it was planned that a partial upper denture would be made, and an immediate complete lower denture would be made for use after her remaining lower teeth were extracted. In mid- January 2010, the plan changed, and an immediate complete upper denture was made for use after her remaining upper teeth were extracted. The upper teeth were extracted in mid-January 2010, and the immediate upper denture was fitted. In July 2010, attempts were made to adjust the denture because it was uncomfortable and also loose. In October 2011, L.C. returned to Smiles and Giggles with more complaints that the upper denture did not fit correctly and was loose. In late October and early November 2011, the upper denture was relined in an attempt to address the patient's complaints, but her complaints persisted. Later in November 2011, impressions were done for the patient's immediate complete lower denture. In January 2012, the patient's remaining lower teeth were extracted, and her immediate lower denture was fitted and adjusted. L.C. continued to complain about the fit of both dentures, and several attempts were made in the spring of 2012 to adjust them, to no avail. The patient then complained to Medicaid, and she returned to the Respondent to have both dentures redone in January 2013. L.C. testified that the Respondent took no impressions for dentures and did not fit or adjust her dentures until after the spring of 2012. She testified, prior to that all the work was done by Ms. Torres and Mr. Hemme. Ms. Torres and Mr. Hemme testified that they took impressions, but not final impressions or bite registrations, which were done by the Respondent. The dental records reflect that the provider of all these services was the Respondent. However, in this instance, the patient's testimony is credited, and the contrary testimony of Ms. Torres and Mr. Hemme (as well as the possible contrary inference from the dental records) is rejected. On questioning by counsel for the Respondent, Mr. Hemme appeared to take the position that the impressions were not final because they were for immediate dentures, which sometimes are replaced by permanent ones. However, it is clear from the evidence that L.C.'s immediate dentures were intended to be permanent. It was not until after her complaints to Medicaid that the Respondent agreed to make permanent dentures for her. Most, if not all, dental assistants working at Smiles and Giggles took impressions for dentures. It is not clear from the evidence whether these were all final impressions, except in the case of the patient L.C. Another patient, V.C.,4/ testified that Ms. Torres also took final impressions for her dentures. The testimony was elicited, in part, as proof of what paragraph 72 of the Administrative Complaint alleges Ms. Davila5/ witnessed. Ms. Davila's testimony gave no indication that she witnessed dental care being provided to V.C., and it seems unlikely from the evidence that Ms. Davila's short tenure working for Smiles and Giggles included the time when the care in question was provided to V.C. No dental records were introduced regarding the patient V.C. that could have helped answer that question. The testimony of the patient V.C. also could have been elicited as proof of a general allegation in paragraph 70 of the Administrative Complaint that all Smiles and Giggles dental assistants supervised by Ms. Torres performed various unauthorized tasks, including making dentures.6/ According to Mr. Hemme, he adjusts patients' dentures by using a handpiece to polish or smooth down rough spots where they come in contact with the gums to try to make them fit more comfortably. This is what he says he attempted to do to L.C.'s dentures. According to Ms. Torres, she uses an acrylic burr to "bring down high spots" that are identified by the Respondent and to make "minute adjustments" to dentures. These adjustments can be remedied only by making a new set of dentures. Although evidence was presented regarding the taking of bite registrations, the Administrative Complaint does not allege that the Respondent delegated this task to dental assistants. In any event, the evidence was not clear and convincing that dental assistants at Smiles and Giggles took bite registrations for dentures for patients other than L.C. To the contrary, there was no evidence that they did, and several denied it. Count I charges that the Respondent delegated to dental assistants the placement of filling materials and the use of dental instruments, including high- and/or low-speed drills, which made unalterable changes to the teeth. As the factual basis for that charge, the Administrative Complaint alleges: that Ms. Torres has admitted to placing amalgam and composite fillings, using low- and high- speed drills, and using a spoon excavator to take out the upper part of a cavity during the time she worked at Smiles and Giggles; and that all assistants working at Smiles and Giggles, while Ms. Torres worked there, used low-speed drills, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Davila saw dental assistants use high-speed drills and complete fillings on patients during the time she worked at Smiles and Giggles, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Torres "placed fillings" for a patient, T.F., when she had dental work done at Smiles and Giggles in the summer of 2011.7/ The evidence was clear that dental assistants at Smiles and Giggles were using flowable resin to fill cavities. This is a composite material that hardens when cured and can only be removed by being drilled out by the dentist using a high-speed handpiece. Dental assistants at Smiles and Giggles also were packing amalgam filling material to fill cavities. The Respondent would then review the restoration. If adjustments were needed, the Respondent or, sometimes, a dental assistant would use a slow-speed handpiece to try to bring down rough or high spots. After the patient T.F. was diagnosed with cavities in the summer of 2011, she returned to have those teeth restored. The Respondent used a drill to prepare the cavities for filling, and Ms. Torres placed composite material. The Respondent then left the room, and Ms. Torres used a slow-speed handpiece, with a burr attached, to grind down the filling to correct the bite. The Respondent did not return to re-examine T.F. before she left the office that day. The Respondent seems to take the position that fillings done by dental assistants were temporary fillings, to be followed by permanent restorations at a later date. But sometimes they were intended to be permanent. Even if intended initially to be temporary, if the patient did not return to have the temporary filling replaced by a permanent restoration, the temporary filling became de facto permanent. In either case, once placed, the filling material could be removed only by being drilled out with a high-speed drill. At some point in 2013, the dental assistants at Smiles and Giggles were told not to place filling material or bring down high spots any more. The source of this directive was not clear from the evidence, but it can be inferred that it came from the Respondent. By mid-October 2013, those tasks were being performed by dental assistants only "every once in a while" and are not being performed by them any longer, according to Ms. Plumadore. Count I charges that the Respondent delegated to dental assistants the performance of full-mouth debridement. As the factual basis for that charge, the Administrative Complaint alleges generally that the Respondent delegated to dental assistants at Smiles and Giggles the task of performing full-mouth debridement. No specifics are alleged. A cavitron is a device that uses ultrasound and water to remove plaque. It is used in the subgingival area, i.e., on the parts of teeth at the gum line and under the gums, as part of a full-mouth debridement. At the hearing, the patient T.F. testified that Ms. Torres used a cavitron to clean plaque from her teeth, including in the subgingival area. Ms. Torres admitted using the cavitron, but denied using it in the subgingival area. The patient was numbed by a local anesthetic, which would have made it difficult for the patient to sense precisely where the cavitron was being used. The evidence was not clear and convincing that Ms. Torres used the cavitron in the subgingival area. Ms. Davila testified that she saw Ms. Torres and other dental assistants use the cavitron for deep cleaning, which would include in the subgingival area. However, it is not clear how she would have been in a position to ascertain where a cavitron was being used in a patient's mouth. During the relatively short time she worked at Smiles and Giggles, she usually was not in the part of the office where patients' teeth were being cleaned. Even if she was in that area of the office, the patient's chair would have been facing away from where Ms. Davila probably would have been standing, so that she would not have been able to observe exactly where the cavitron was being used in the patient's mouth. There was no evidence that the Respondent knew of, or condoned the use of, the cavitron by her dental assistants for full-mouth debridement, including in the subgingival area. Count I charges that the Respondent delegated to dental assistants the initiation of a nitrous oxide mask and the administration of nitrous oxide without direct supervision. As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres placed a nitrous oxide mask on a minor patient, O.S., and administered nitrous oxide to the patient in August 2010. At the hearing, DOH presented the testimony of the child's mother, who was in the examination room when Ms. Torres placed the mask on her child's face and left. Neither she nor any other staff returned for about 20 minutes, during which the child began to act very calm, relaxed, and groggy, slump in the chair, wave his arms up and down, and act silly. The child was autistic, but this was unusual behavior for him. The mother became concerned and called for help. Ms. Torres returned, took the mask off, and dental work was performed on the patient. Ms. Torres denies that she did anything but put the mask on the patient's face and claims that no nitrous oxide was initiated. This testimony is rejected. It is found that Ms. Torres initiated the flow of nitrous oxide on the child before she left the examination room. The dental records indicate that nitrous oxide was administered, which is consistent with the patient's behavior. There was no clear and convincing evidence that it was normal procedure for the dental assistants to initiate nitrous oxide without the Respondent being present. All the dental assistants who testified indicated that they only monitor the flow of nitrous oxide or, at most, adjust the flow at the Respondent's explicit direction during a procedure. Although there were no specific factual allegations about it in the Administrative Complaint, the patient L.C. testified that a dental assistant placed a gas mask on her face when her teeth were being extracted. There was no evidence as to how the flow of nitrous oxide was initiated or administered to L.C. Count III--Dental Office Standards Count III charges the Respondent with operating an inadequately staffed dental office for the number and types of treatments performed for her patients and scheduling too many patients, so that unrealistic time limitations had to be placed on her and her staff, resulting in the office being operated below minimum acceptable standards of performance for the community. At most, the evidence showed that the Respondent operated a dental office that was very busy at times; that full schedules sometimes were exacerbated by emergencies that had to be worked around; that this sometimes resulted in office hours having to be extended into the evening; that the office's function would have benefited from an additional dentist; and that dental assistants at times voiced that the patient load was too high. There also was evidence that the office would have benefited from an experienced office manager/appointment scheduler; that the office eventually did benefit when one was hired; and that the office suffered from the lack of dedication and hard work from some of the dental assistants on staff. Some of them not only slacked off, but also even tried to sabotage the office out of personal animosity towards the Respondent and some of her staff. One of these former dental assistant was fired after she stole drugs from the office. There was no clear and convincing evidence that the Respondent had so many patients that she placed unrealistic time limitations on herself and her staff, or that the result was an office being operated below minimum acceptable standards of performance for the community. Count VI--Sedation Count VI charges the Respondent with administering anesthesia in a manner that violated the rules of the Board. The factual basis for this charge included allegations that the Respondent did not have a sedation permit from the Board; that the Respondent provided nitrous oxide sedation; that the Respondent had an unsupervised assistant provide nitrous oxide; that the Respondent had dental assistants start nitrous oxide; that children would be placed on nitrous oxide before she was present; that the Respondent had a licensed anesthesiologist provide I.V. sedation with propofol; and that the Respondent's dental office was not equipped, and her staff was not properly trained, as required by statute and Board rules for the administration of I.V. sedation with propofol. The factual basis regarding nitrous oxide refers to the administration of nitrous oxide in the presence of a licensed anesthesiologist. For approximately one year, between 2010 and 2011, the Respondent contracted with Anesthesiology Associates to provide an anesthesiologist to administer anesthesiology to patients who would benefit from it, since the Respondent herself was not authorized to do so. Sometimes, before the Respondent's arrival in the room to perform dental work, the anesthesiologist would direct one of the Respondent's dental assistants to place a gas mask on the patient and initiate nitrous oxide to relax the patient prior to sedation. These allegations are distinct from the previously discussed allegations that the Respondent herself delegated this task to her dental assistants without her direct supervision. In addition to nitrous oxide, which typically was administered by the anesthesiologist to relax a patient before the administration of other sedatives, the anesthesiologist used propofol, versed, and ketamine. Ketamine is an analgesic and sedative that typically was administered by injection to an uncooperative patient, usually a child, prior to the initiation of other sedation. Versed and propofol were administered intravenously. Propofol provided conscious sedation. Patients would be sedated for as long as necessary to complete the procedure, according to the Respondent's estimate. If the procedure was long enough to require too much propofol, versed would be started to complete the procedure. Versed reduces anxiety and relaxes the patient, but does not provide conscious sedation. During this time period, the anesthesiologist typically would go to the Respondent's office two days a week and provide services for six to ten patients a day. He would bring the required drugs and I.V. and other equipment. Later, the equipment was left in a closet at the Respondent's office and any unused drugs sometimes were left in a locked storage closet in the Respondent's office for use the next time. The next time the anesthesiologist came to the Respondent's office, he would get a key from the Respondent or her staff to access the locked storage closet and would inventory and inspect the drugs and equipment to be sure he had what was needed before beginning the day's work. The Respondent or the anesthesiologist provided a crash cart with a heart monitor and oxygen, which was needed to support the breathing of a sedated patient. There was a defibrillator in the Respondent's office, and the anesthesiologist was certified to provide cardiopulmonary resuscitation, if needed. The anesthesiologist testified that he met all the requirements of his license to provide anesthesiology services at the Respondent's office and had everything he needed to provide those services safely. At some point, the Respondent became aware that the Board required her to have a sedation permit to do what she was doing through Anesthesiology Associates. She applied for the permit. For some time after applying, she continued to contract with Anesthesiology Associates to provide these services, but later terminated the contract because she became aware that her sedation permit had not been issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order: finding the Respondent guilty of violations under Counts I and VI of the Administrative Complaint; imposing a $10,000 fine; suspending her license for six months; placing her on probation with appropriate conditions for six months after the suspension is lifted. DONE AND ENTERED this 5th day of March, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2014.
The Issue Whether respondent committed the acts alleged in the Administrative Complaint and, if so, whether respondent's license should be revoked or suspended, or whether some other penalty should be imposed.
Findings Of Fact John R. Parry is and was at all times material to the complaint a licensed dentist in the State of Florida having been issued License No. 0005282. At all times material to the complaint, respondent's address was 255 Wymore Road, Winter Park, Florida, and 315 Wymore Road, Winter Park, Florida. Respondent's address has subsequently changed. At all times material to the complaint, respondent - operated his practice of dentistry under the fictitious name of Florence Dental Clinic. Dr. Parry's practice was limited to the practice of prosthetics, the replacement of missing teeth. In other words, Dr. Parry confined his practice to the provision of partial and full dentures and related services. Wayne Giddens worked for Florence Dental Clinic for about five years, from 1980 through 1985. Wayne Giddens was not licensed to engage in the professions of dentistry or dental hygiene in the State of Florida, and he had not been issued a certificate of expanded duties by the Board of Dentistry. Retha Holt, now Retha Tucker, also worked at Florence Denture Clinic. She was neither a licensed dentist nor a dental hygienist, and she had not been issued a certificate for expanded duties by the Board of Dentistry. LASSETTER CASE On January 15, 1982, Sylvia Lassetter went to the Florence Denture Clinic (FDC) to have all of her remaining upper teeth removed and a full upper denture made. Ms. Lassetter had only six remaining upper teeth. Ms. Lassetter had not seen a dentist for at least five years prior to seeing respondent. At that time, she was advised that she had gum disease and would eventually lose all of her teeth. When she went to FDC, she was having problems with the teeth on the right side of her mouth and, since she had been told that she would eventually lose all of her teeth, Ms. Lassetter decided to have all of the remaining upper teeth extracted and a full upper denture made. Ms. Lassetter went to FDC because she heard that FDC would provide her with a denture she could wear immediately. Respondent was the dentist of record and performed dental services for Ms. Lassetter. On the day Ms. Lassetter went to FDC, general medical information was obtained and x-rays were taken. Later that same day, respondent extracted all of the remaining top teeth, which were teeth number 5, 6, 7, 8, 9, and Dr. Parry also provided her with a full immediate maxillary (upper) denture. The upper denture initially had a full complement of teeth. However, when the denture was first placed into Ms. Lassetter's mouth, it was discovered that there was insufficient room for the posterior denture teeth. Ms. Lassetter had natural teeth on both sides of her lower jaw that were extremely extruded, causing premature contact with the denture teeth. With the denture in place, Ms. Lassetter could not close her mouth, she could not swallow, and she could not talk. In an attempt to alleviate the problem, the posterior teeth on the maxillary denture were ground off, leaving ten teeth on the maxillary denture. Ms. Lassetter was able to keep the denture in her mouth until about 10:00 that evening. At that point, her gums were swollen and she was in such pain that she could not tolerate wearing the denture any longer. The next day the problem had gotten worse. Ms. Lassetter noticed drainage coming from a hole located at the top left front area of her gum where teeth had been pulled. She also observed what appeared to be a portion of bone which was protruding through the gum adjacent to the hole. She called the emergency number which had been provided to her by FDC, since Dr. Parry was going out of town, and talked to Dr. Marini. Although Dr. Marini asked her to come to his office, Ms. Lassetter was unable to do so, and Dr. Marini prescribed some medication. As soon as possible, Ms. Lassetter returned to FDC. Respondent flushed out the area where the drainage was occurring and replaced the denture. Although Ms. Lassetter had been told to keep the denture in place, she was unable to do so. By the time she was halfway home she was "foaming at the mouth" because she could not swallow. She removed the dentures. She returned to FDC and saw Dr. Parry again. She explained the problems she was having with the dentures. No adjustments to the dentures were made, and the only treatment she received was to have the area where the drainage was occurring flushed out. Although Ms. Lassetter continued to experience difficulty with the denture and with the extraction area in the front of her mouth, returning to FDC on several occasions to have the problems corrected, the only treatment she received was flushing out the socket. She was also advised to wear the denture; however, apparently no adjustments to the denture were made, and Ms. Lassetter continued to be unable to wear it. Finally, Ms. Lassetter called the clinic and explained to the woman who answered the phone that she wanted the protruding bone removed and that if Dr. Parry could not do it ski' would find someone who could. However, when Ms. Lassetter went to the clinic for her appointment, Dr. Parry told her that the bone had to stay in her mouth and that she would not be able to wear the denture if the bone were removed. Ms. Lassetter did not return again to FDC for treatment. Her last appointment was apparently on February 10, 1982. On February 24, 1982, Dr. Lewis Earle, a dentist, examined Ms. Lassetter. He took a single periapical x-ray and a single panoramic scan. During the course of his examination he observed a lesion or fibroma in the area of teeth numbers 24 and 25; he noted a large defect in the maxillary left central and lateral incisor region where a "dry socket" osteitis had developed; he noted what appeared to be an exposed necrotic, alveolar bone; and he observed that there was severe periodontal disease in the remaining mandibular teeth, with a hopeless prognosis on the second and third molars. Dr. Earle also noted maxillary exostoses, or tori, in the palatal aspect of the endentulous second and third molar regions, with corresponding prominent undercuts. There was also alveolar prominence in the left canine area. Dr. Earle observed that Ms. Lassetter's mandibular second and third molars had erupted above the normal plane of occlusion, which occurred due to the lack of opposing occlusion and the mobility of the molars resulting from the periodontal disease. When the mandible was closed, approximating normal verticle dimension, the molars appeared to actually touch the soft tissue of the maxillary tuberosity (2nd and 3rd molar) area, indicating a lack of space for a maxillary denture base. Dr. Earle also examined Ms. Lassetter with the maxillary denture in place. He noted that there was extremely poor contact when the mandible was closed in centric relation. On the left side, there was some contact between the mandibular teeth and the denture base in the molar area, and the natural lower canine tooth touched the upper denture tooth in the first bicuspid area. Everything on the right side was totally out of occlusion. In the anterior teeth, the "open bite" was 6 to 8 millimeters. Ms. Lassetter was able to slide out of centric relation, to the right and forward, to get slightly better contact, but it was still very poor and was imbalanced. Dr. Earle referred Ms. Lassetter to Dr. Robinson, an oral and maxillofacial surgeon, for an evaluation and a treatment plan. Dr. Robinson saw Ms. Lassetter on March 2, 1982. He examined her and reviewed the x-rays received from Dr. Earle. The panoramic x-ray revealed severe periodontial disease. The six mandibular molars, as well as the other remaining teeth, had less than half of their roots supported by bone. The periapical x-ray of the maxillary left anterior alveolar process revealed ragged and irregular alveolar bone and one fragment which could have been a segment of bone working loose or a part of a tooth root. Dr. Robinson's examination confirmed the existence of periodontal disease. Dr. Robinson also observed bilateral palatal exostoses, a posterior buccal undercut in the right maxilla and a mild prominence in the maxillary right bicuspid region. He saw the exposed bone or tooth fragment, and noted that the maxillary left cuspid area was prominent and irregular with surface inflammation and tenderness. He also saw a lesion in the endentulous area of the mandibular central incisors. Dr. Robinson recommended excising the bilateral exostoses, flapping and reducing the undercuts in the posterior right maxilla and maxillary right bicuspid region, removing the necrotic segment of bone with appropriate alveoloplasty in the left central incisor and cuspid region, removing the mandibular lesion and submitting it for biopsy, and extracting the mandibular first through third molars on the right and left side. On March 5, 1982, Dr. Robinson performed the recommended procedures. After removing the exposed calcified substance from the upper left central incisor area, Dr. Robinson thought it was probably tooth root rather than bone. The size of the fragment was about 2 mm. by 3 mm. by 10 mm. The mandibular lesion removed by Dr. Robinson was benign. Dr. Wayne Bennett saw Ms. Lassetter on June 4, 1982. He examined her dentures, her dental records, Dr. Earle's report, and her x-rays. He noted that the buccal flanges on the denture were over-extended. He felt that there was reasonable adaptation of the denture to the maxillary ridge except in the areas where surgery had been performed. He was unable to reach any conclusions, based on his own observations, concerning the way the denture originally fit; including the occlusion when in centric relation, due to the extensive surgery that had been performed by Dr. Robinson prior to Dr. Bennett's examination. SPECIFIC CHARGES--LASSETTER: WHETHER RESPONDENT FAILED TO RECOGNIZE, TREAT, OR ADVISE MS. LASSETTER OF EXISTING PERIODONTAL DISEASE. Ms. Lassetter did not go to FDC to get periodontal treatment. When she went to FDC she knew she had periodontal problems and had been told that she would eventually loose all her teeth. She went to FDC simply to have all of her remaining upper teeth extracted and an upper denture made. However, there was no evidence that respondent was aware that Ms. Lassetter knew she had periodontal disease. No one at FDC told Ms. Lassetter that she had periodontal disease or whether the disease was treatable. Further, there is nothing in Ms. Lassetter's records to indicate that Ms. Lassetter's severe periodontal disease was recognized. WHETHER RESPONDENT FAILED TO RECOGNIZE OR TREAT A PATHOLOGICAL LESION ON MS. LASSETTER'S MANDIBULAR ANTERIOR ALVEOLAR RIDGE. There was no evidence presented to establish that the pathological lesion which was observed by Dr. Earle and removed by Dr. Robinson was present when the respondent treated Ms. Lassetter. Although a lesion, or fibroma, such as the one Ms. Lassetter had, is-usually slow developing because it is typically caused by some sort of chronic irritation, it is impossible to say with any certainty that the lesion was present when Dr. Parry treated Ms. Lassetter. WHETHER RESPONDENT FAILED TO RECOGNIZE THE LACK OF SPACE IN THE MAXILLARY TURBEROSITY AREAS FOR A DENTURE BASE, AND WHETHER PRELIMINARY SURGICAL PREPARATION OF MS. LASSETTER'S MOUTH WAS NECESSARY. There was no question that Dr. Parry did not recognize the insufficient space in the maxillary tuberosity areas for an upper denture with a full complement of teeth. The mandibular second and third molars were extremely extruded, rising above the occlusal plane. Due to the height of the second and third molars, there was simply no room for opposing teeth to be placed on the upper denture. Nevertheless, there was nothing in Dr. Parry's record to reflect that he recognized this lack of space and, prior to preparing the upper denture, he did not advise Ms. Lassetter of the lack of space for denture teeth. Indeed, the denture originally had a full complement of teeth. It was only after the denture was placed in Ms. Lassetter's mouth that Dr. Parry realized there was insufficient space for the denture teeth, and the molars on the denture were ground off. Although there was clearly no room for opposing denture teeth in the molar area, both Drs. Marini and Savage testified that, based on Dr. Parry's x-ray, there was sufficient room for a denture base. Dr. Earle also testified that Dr. Parry's x-ray revealed a slight space between the upper gum tissue and the lower teeth. Thus, there may have been room for a thin denture base with no denture teeth. However, a denture should have a full complement of teeth. Under normal circumstances, there should be teeth posterior to the bicuspids. Sufficient room for the complete upper denture could have been made either by performing an alveolectomy, or bone reduction, in the maxillary molar area or by removing the extruded mandibular teeth. In this case, the latter solution was clearly the best solution. The extruded molars could not have been salvaged anyway, due to the severe periodontal disease, and it was preferable to have as much maxillary bone as possible to support the denture. Dr. Parry should have recognized that the mandibular molars needed to be extracted to allow room for the upper denture. Respondent asserts that Ms. Lassetter only wanted removal of her upper teeth and insertion of a full upper denture. He asserts that she did not want and could not afford additional surgical preparation of her mouth. However, the evidence does not support this assertion. Ms. Lassetter was never advised that there was a lack of space for upper denture teeth in the molar region. She was not advised to have her lower molar teeth extracted. Respondent asserts that Ms. Lassetter received the services she sought. To the contrary, Ms. Lassetter wanted an upper denture with a full complement of teeth. Ms. Lassetter was never advised that unless she had surgery, she would not have any molars on her upper denture. Finally, because Dr. Parry did not advise Ms. Lassetter of this problem, because Ms. Lassetter's dental records do not indicate that Dr. Parry was aware of the problem, and because the denture was originally made with molar teeth, it is apparent that Dr. Parry simply did not recognize the problem. WHETHER RESPONDENT FAILED TO RECOGNIZE SEVERE UNDERCUTS IN THE MAXILLARY ANATOMY THAT REQUIRED SURGICAL PREPARATION TO PERMIT PROPER DENTURE RETENTION. An exostosis is an abnormal bony growth or protuberance. There is a natural undercut over an exostosis. If the exostosis is not removed, the denture will not fit properly and there will be a loss of retention. However, it is possible to build around an exostosis. When the denture is constructed, the undercut can be blocked out. However, this results in having an area of no contact between the tissue and the denture base. If there is only one exostosis, the denture base can be constructed to conform to the undercut. In that situation, the denture is put in sideways until the undercut is engaged and then the denture is snapped into position. However, in this case, Ms. Lassetter had large palatal exostoses on the right and left side, she had a posterior buccal undercut in the right maxilla, and an undercut in the maxillary right bicuspid region. Ms. Lassetter could not have a comfortable, well-adapted denture without the exostoses being removed. It was poor judgment and inadvisable to build over the exostoses. Further, Ms. Lassetter was not advised of the need for surgery, and her dental records do not indicate that Dr. Parry was aware of the problem. WHETHER RESPONDENT FRACTURED THE LABIAL ALVEOLAR BONE DURING EXTRACTION, CAUSING THE LOSS OF A LARGE SEGMENT OF BONE; WHETHER RESPONDENT PROPERLY CLOSED THE EXTRACTION SITES AFTER SURGERY AND THE ALVEOLAR FRACTURE; AND WHETHER RESPONDENT PROPERLY TREATED THE EXPOSED ALVEOLAR BONE. It is not uncommon, and certainly not incompetent, to cause a bone fracture during the extraction of teeth. A tooth root can also break during the extraction of teeth. In some cases, it is not necessary to remove the broken root tip. However, because there is a liklihood of subsequent infection if a large root segment is not removed, a root fragment that is more than 2 or 3 millimeters long should be removed unless the risk of removing it exceeds the benefit of removal. In some cases, roots that have had root canal treatment done on them are intentionally left in place to help maintain the height of the alveolar bone. However, in this case, it was totally inappropriate to leave the exposed bone or root fragment in place. There was inflammation around it, indicating that the area had become infected. The bone fragment or root tip was exposed at the time Dr. Parry was treating Ms. Lassetter. Indeed, Ms. Lassetter asked that it be removed. It was clearly below minimum standards for Dr. Parry to leave the fragment in place, whether it was a segment of bone or tooth root. Although it is not always necessary to suture an extraction site, when there are multiple extractions the preferred procedure is to suture the extraction sites. However, if a denture is to be worn immediately after extractions, it is not below minimum standards to fail to suture the extraction sites. WHETHER RESPONDENT FAILED TO INSTITUTE PROPER ANTIBIOTIC THERAPY OR OTHER TREATMENT AFTER MS. LASSETTER DEVELOPED AN OSTEITIS. A localized osteitis, or dry socket, is an infection of the bone. After an extraction, a blood clot normally plugs the socket and protects the alveolar bone. If the clot breaks down, or deteriorates, exposing the bone to the oral cavity, bacteria invades the bone causing infection. This infection, or osteitis, is very painful and must be treated to relieve the patient's pain. At the time Dr. Earle saw Ms. Lassetter, she did not have acute osteitis. However, her condition was consistent with a partially healed dry socket, and her symptoms immediately after the extractions were consistent with osteitis. The evidence indicates that Ms. Lassetter developed an osteitis subsequent to the extractions by Dr. Parry. However, respondent treated the condition by flushing the socket. Medication, apparently an antibiotic, was prescribed by Dr. Marini and noted on Ms. Lassetter's dental records. Although Dr. Parry's treatment of Ms. Lassetter's condition may not have been the best, there was no evidence that the treatment provided was below minimum standards. WHETHER THE DENTURE PROVIDED BY DR. PARRY WAS EXTREMELY ILL-FITTING, WAS GROSSLY OVEREXTENDED IN THE BUCCAL FLANGE AREA, LACKED A SEAL IN THE POST-DAM AREA, HAD NO REASONABLE ADAPTATION TO THE MAXILLARY RIDGE, AND HAD NO TEETH POSTERIOR TO THE SECOND BICUSPIDS. When Dr. Earle examined Ms. Lassetter, the denture had very poor retention; it did not have any natural adhesion. However, Dr. Earle saw Ms. Lassetter two weeks after her last appointment with Dr. Parry, and approximately a month after her teeth had been extracted. Ms. Lassetter had not worn her upper denture during this time. After extractions, there is a substantial amount of bone resorption and tissue change in the area of the extractions. The denture acts as a mold or splint for the tissue. If the denture is not worn, there is nothing for the tissue to conform to and, even after a few days, the denture will not fit properly. The teeth that were extracted by Dr. Parry were in the front of Ms. Lassetter's mouth, and there was insufficient evidence to determine whether the denture ever fit in that area. However, the posterior and palatal areas would not have changed very much at the time Dr. Earle saw Ms. Lassetter, and the denture fit very poorly in the area of the palatal exostoses at that time. In essence, the poor fit of the denture was simply a corollary of the denture being improperly built over the exostoses. The denture did not appear to have a post-dam seal. The post-dam area is where the soft and hard palate meet. A post-dam seal is a raised area on the denture which creates a seal, keeping the denture from dislodging when the soft palate moves. Some seals, such as a "butterfly" seal, are not as noticable as other types of post-dam seals. However, Ms. Lassetter's denture did not appear to have any type of post-dam seal. Although it is not always necessary to have a post-dam seal, it does enhance the suction which keeps the denture in place. Since a post-dam seal aids in retention, a post-dam seal would be especially helpful where large undercuts are blocked out, as in this case, and the retention is poor. The buccal flanges, the areas of the denture on the side of the gums next to the check, were overextended. The side of the denture, or buccal flange, should not extend so far up that movement of the muscles or soft tissue cause the denture to dislodge. Although the buccal flange will often be overextended when the denture is received from the lab, it should be trimmed back before the patient leaves the office with the denture in place. Although there will be some tissue changes with time, there will not be major changes that would affect a well-adjusted flange. In this case, the height of the buccal flanges in the posterior areas would not have changed with time. There was insufficient evidence to establish that the denture had no reasonable adaptation to the maxillary ridge. As stated previously, Ms. Lassetter was unable to wear the denture. When a denture is not worn after extractions, it would be expected that the denture would not have a reasonable adaptation to the ridge after even a short period of time. Further, Dr. Bennett's testimony, which is accepted, indicated that the adaptation to the ridge was fair, though not exact, except in the areas where there had been corrective surgery. As stated previously, the denture did not have any teeth posterior to the second bicuspids. WHETHER, WHEN THE MANDIBLE WAS CLOSED IN CENTRIC RELATION, NONE OF THE DENTURE TEETH OCCLUDED WITH THE MANDIBULAR TEETH LEADING TO A SEVERE "OPEN BITE" RELATIONSHIP. "Centric relation" refers to an arch-to-arch or to jaw- to-jaw relationship. It is the relationship of the mandible the maxilla when both condyles are in their terminal hinge axis location irrespective of tooth contacts. "Centric occlusion" refers to the maximum occlusal contact irrespective of condylar position. Centric relation is very important to the comfort of the teeth, joints and muscles of the jaw. If centric occlusion is not in harmony with centric relation, the condyles must be pulled out of their terminal hinge position in order to make the teeth fit. The end result of the disharmony between centric relation and centric occlusion is stress on the teeth, joints and muscles. Therefore, it is very important for centric occlusion to be in harmony with centric relation. When Dr. Earle saw Ms. Lassetter he manipulated the mandible into the centric relation position. In centric relation there was exceedingly poor contact between the denture teeth and the mandibular teeth. Indeed, the only tooth-to-tooth contact was on the left side where the lower canine tooth touched the upper denture tooth in the first bicuspid area. There was also contact between the left lower molars, which were subsequently removed, and the denture base. The right side was totally out of occlusion, and the "open bite" in the anterior teeth was six to eight millimeters. When the mandible deviated from the first tooth contact to the maximum occlusal contact, a process commonly called a "slide in centric" which is really a slide out of centric relation the occlusal contact was still quite poor. In his proposed findings of fact respondent suggests that Dr. Earle's testimony regarding the occlusion in centric relation should be rejected because it conflicted with his written report, which stated that none of the denture teeth occluded with the mandibular teeth, and because there appeared to be differences in the position of the mandible in the slides taken by Dr. Earle which were admitted into evidence. Respondent points out that the slides were taken with check retractors in place, which could affect the position of the denture, and that one cannot make a determination of the occlusion in centric relation from merely looking at the slides. Nevertheless, Dr. Earle's testimony is accepted. Although there may have been slight shifts in position while the slides were taken, the slides were only meant to illustrate what Dr. Earle observed. Dr. Earle did not have to take check bites because he was not treating Ms. Lassetter and was not going to modify the denture. Occlusal discrepancies can be observed when the patient closes in centric relation and the initial tooth-to-tooth contact is made. WHETHER RESPONDENT WAS GUILTY OF INCOMPETENCE BY FAILING TO MEET THE MINIMUM STANDARDS OF PERFORMANCE IN DIAGNOSIS AND TREATMENT. For the reasons stated in the above paragraphs it is apparent that respondent's diagnosis and treatment of Ms. Lassetter was below minimal accepted standards. Although petitioner was unable to prove all of the specific allegations set forth in the Administrative Complaint, the evidence presented clearly established respondent's incompetency. THE JEAN BLANCHARD CASE On August 14, 1984, Jean Blanchard went to FDC to get her upper denture relined or, if that could not be done, to get a new upper denture and lower partial. Dr. Parry examined Ms. Blanchard and then an impression was taken. Although Ms. Blanchard testified that a girl named "Ria," apparently Retha Holt Tucker, placed the tray in her mouth, Mrs. Tucker testified that she never took an impression while at FDC, although she stated that she did place empty trays in patients' mouths to determine the size of the tray to be used. Mrs. Tucker also explained that she would hold the tray in place while the impression set. Mrs. Blanchard testified that the first attempt at taking an impression failed. When the tray was inserted in Mrs. Blanchard's mouth, the material in the tray came out and started going down her throat. She began to choke and had to jerk Mrs. Tucker's hand away. Mrs. Tucker was holding the tray in place. The impression was no good and another impression had to be taken. Mrs. Blanchard remembered Dr. Parry taking the second impression. He stayed in the room with her while it set. Although Mrs. Tucker admitted that she took impressions for another dentist after leaving Dr. Parry, she testified decisively that she never took an impression while working at FDC. She stated that Dr. Parry told her that her job was only to hold the tray in place. She was not permitted to put the tray in the patient's mouth or take it out. Mrs. Tucker's testimony is accepted. It is, therefore, concluded that Dr. Parry placed the tray in Mrs. Blanchard's mouth on both occasion and that Mrs. Tucker merely held the tray in place. Holding the tray in place does not constitute the taking of an impression. On October 22, 1984, Mrs. Blanchard executed an Authorization for Release of Medical Information for Merry Paige of the Department of Professional Regulation (Department). On January 23, 1985 and on February 2, 1985, Investigator Paige presented respondent with Mrs. Blanchard's authorization in an attempt to obtain Mrs. Blanchard's patient records. Respondent failed to release Mrs. Blanchard's patient records. The records were ultimately provided to the Department by respondent's counsel in October of 1985. JAMES BLANCHARD CASE James Blanchard went to FDC on August 14, 1984, along with his wife. Mr. Blanchard was having trouble with his teeth and wanted a full set of dentures. He filled out and signed forms provided by FDC. One of the forms contained certain statements regarding the type of work the patient wanted. Mr. Blanchard placed his initials by some of the statements, including the statement, "I do not wish periodontal (gum) treatment to save my teeth." Mr. Blanchard was aware that he had periodontal disease. Mr. Blanchard told Dr. Parry that he wanted a full set of upper and lower dentures. However, Dr. Parry advised Mr. Blanchard that three teeth on each side of the mandible could be saved. Dr. Parry also told Mr. Blanchard that he had periodontal disease, although he did not tell Mr. Blanchard whether the periodontal disease was treatable. Upper and lower impressions were made. Although Mr. Blanchard believed that the impressions were taken by a lady by the name of "Ria," apparently Retha Tucker, Mrs. Tucker merely held the tray in place while the impressions were setting. Retha Tucker did not actually take the impressions. Dr. Parry referred Mr. Blanchard to Dr. Philip Lightbody, an oral and maxillofacial surgeon, for the extractions. On the same day, August 14, 1984, Dr. Lightbody removed eighteen teeth, ten from the upper jaw and eight from the lower jaw. Dr. Parry determined the number of extractions to be made since he was the referring dentist; Dr. Lightbody did not make any decisions regarding the teeth to be extracted. However, as part of the surgery, he also performed a bilateral lingual tuberosity reduction to facilitate the denture fit. Lingual tuberosity refers to a projection of bone on the inside or tongue side of the lower jaw. Mr. Blanchard returned to FDC after the extractions and received his dentures, a full upper and a lower partial, the same day. No one at FDC specifically informed Mr. Blanchard that his dentures were treatment or temporary dentures, and he assumed that the dentures were permanent. However, on the forms Mr. Blanchard completed he initialed the following statement: "I realize that this is just a temporary denture or partial and it may need to be relined or remade due to bone changes during the process of healing, and this will be done at my expense." Mr. Blanchard returned to FDC the following day to have the dentures adjusted because the full upper denture was gagging him and the lower partial denture made his tongue sore and was cutting into his jaws on the inside. Dr. Parry made an adjustment to the upper denture which consisted of grinding down the back of the denture. Mr. Blanchard returned one more time to FDC. His upper dentures were still gagging him. This time, he saw Wayne Giddens who removed the denture and took it out of the room, apparently to have adjustments made. Mr. Blanchard did not know what was done to the denture. Whatever adjustment was made did not help the problem; however, Mr. Blanchard never returned to FDC. He lived 90 miles away and felt that another visit would not solve anything since neither of his earlier visits had helped. On September 5, 1984, Mr. Blanchard saw Dr. David Sweeney, a general dentist located in Brandon. He complained that he could not wear the dentures he had because of discomfort and difficulty in chewing. Because of Mr. Blanchard's complaints, Dr. Sweeney suggested a new upper full denture and a new lower partial. He also advised Mr. Blanchard that he had periodontal disease and that if he wanted to save his six remaining teeth he would need to undergo some periodontal therapy. At the time of the initial visit Dr. Sweeney did a soft reline of the upper denture and lower partial. Dr. Sweeney did a permanent reline of the upper on October 10, 1984. Dr. Sweeney subsequently provided Mr. Blanchard with a new lower partial and, as soon as he could afford it, Mr. Blanchard had another upper denture made. On December 3, 1984, Mr. Blanchard executed an Authorization for Release of Medical Information for Investigator Merry Paige of the Department. On January 23, 1985 and on February 2, 1985, Investigator Paige presented the authorization to respondent to obtain Mr. Blanchard's patient records. On both occasions respondent failed to release the records. On October 28, 1985, Respondent through his counsel, mailed the Department a copy of Mr. Blanchard's patient records. Dr. Lewis Earle examined Mr. Blanchard on February 21, 1985, approximately six months after Mr. Blanchard had received his dentures from Dr. Parry and after the upper denture had been relined twice and the lower partial relined once. At the time of Dr. Earle's examination, Mr. Blanchard had been wearing the new lower partial constructed by Dr. Sweeney. Dr. Earle examined Mr. Blanchard with Dr. Parry's dentures in place. The dentures did not properly occlude when the mandible was closed in centric relation. There was no contact on the posterior teeth' and there was an open bite in several regions which caused instability in the maxillary denture when biting pressure was applied. WHETHER THE DENTURES PROVIDED BY DR. PARRY DID NOT PROPERLY OCCLUDE; DISPLAYED AN OPEN BITE IN SEVERAL REGIONS, CAUSING INSTABILITY OF THE UPPER FULL DENTURE WHEN PRESSURE WAS APPLIED AND A LOSS OF RETENTION, AND WERE DEFECTIVE IN DESIGN, FIT AND FUNCTION IN THAT THEY LACKED THE PROPER CENTRIC RELATION NECESSARY TO A BALANCED OCCLUSAL FUNCTION. Dr. Earle examined Mr. Blanchard six months after Dr. Parry provided the dentures for Mr. Blanchard. Dr. Earle observed that the dentures did not occlude properly when the mandible was closed in centric relation. Because there was not balanced occlusion, when pressure was applied the upper denture dislodged. Dr. Sweeney saw Mr. Blanchard a few weeks after he had obtained the dentures from Dr. Parry. Dr. Sweeney testified that there was no open bite areas and that the occlusion was fair. He testified that the dentures were adequate as treatment or temporary dentures. Based on Dr. Sweeney's testimony, which was credible and is accepted, it is concluded that the dentures provided by Dr. Parry were not below minimum acceptable standards relating to occlusal function and design. WHETHER THE LOWER PARTIAL DENTURE LACKED NECESSARY OCCLUSAL RESTS AND RETENTIVE CLASPS AND WAS INSERTED UPON PERIODONTALLY INVOLVED TISSUE. Respondent's lower partial was an acrylic tissue- bearing partial. This type of partial is approved by the American Dental Association. This type of partial would also be the treatment of choice for periodontally involved tissue, as it is less likely to cause an extraction of the adjacent remaining natural teeth. A clasp placed on a periodontally involved tooth will destroy it. The clasp will act as a pair of forceps as it works, eventually pulling out the periodontally involved tooth. Therefore, although the denture provided to Mr. Blanchard did not have rests and retentive clasps, it was not below minimum acceptable standards. Although the denture was placed on periodontally involved tissue, it is acceptable to provide a functional immediate or treatment partial to a patient without first providing periodontal treatment when the patient has refused such treatment. Under the circumstances of this case, placing the acrylic tissue-being partial upon periodontally involved tissue was not below minimum standards. Based on the foregoing specific findings, it is apparent that respondent's treatment of Mr. Blanchard was not below the minimal acceptable standards when measured against prevailing peer performance. THE McPECK CASE On February 13, 1985, Ms. Dorothy McPeck went to FDC to have two full maxillary dentures and a partial mandibular denture made. She wanted one upper denture for a spare in case anything happened to the other one. Prior to going to FDC, Ms. McPeck had been wearing a full upper denture and a partial lower denture for over thirty years. The teeth on both dentures were worn down--she had not had her upper denture replaced since around 1971 and had been wearing the same lower partial for over thirty years. When she went to FDC, Ms. McPeck completed no paper work and no x-rays were taken. Respondent failed to obtain her medical history, failed to chart her then-present dental condition, failed to take any diagnostic information and failed to prepare a treatment plan for her. The impressions for Ms. McPeck's dentures were taken, and she returned that afternoon to get her dentures. Wayne Giddens, one of Dr. Parry's assistants, brought the dentures into the room. Ms. McPeck thought they were very nice looking but too white. Ms. McPeck wore the dentures all afternoon. However, that evening she was unable to eat dinner because the dentures hurt when she tried to eat. She tried the other upper denture, but that was no better, and she had to put in her old upper denture in order to eat. When Ms. McPeck returned to FDC on February 15, 1985, she was seen by Wayne Giddens. Mr. Giddens-removed the denture and apparently some adjustment to the denture was made. However, when Ms. McPeck tried to eat that afternoon, the denture rocked and she couldn't eat with it in. The denture didn't hurt, but it didn't fit. Ms. McPeck returned to FDC again and initially saw Mr. Giddens. He was unable to help Ms. McPeck and went to get Dr. Parry. Dr. Parry looked in her mouth, indicated that everything looked good, and left. He did not make any adjustments. Ms. McPeck was not happy with the treatment she received at FDC, and not satisfied with her dentures. She never wore the dentures again, and finally, obtained a refund from FDC. Respondent was the treating dentist and dentist of record during the treatment of Ms. McPeck at FDC. Dr. Lewis Earle examined Ms. McPeck on May 8, 1985, along with the dentures fabricated by Dr. Parry. Dr. Earle examined both maxillary dentures. Pressure indicator paste revealed that there were large portions of the palatal area of the dentures that were not in contact with the tissue. Although the two maxillary dentures were not duplicates, both had large areas of no contact. Both uppers lacked proper retention and had poor adaptation. The lower partial had a clasp system, which gave it some retention, but the partial denture base had very poor adaptation to the lower ridge. There was only one small area on the buccal flanges that had any contact. The two upper dentures were very similar as far as the bite. When the mandible was closed in centric relation there was an open bite of approximately three millimeters in the front. Ms. McPeck was able to slide in centric to a position where the teeth occluded quite well. However, this shift forward was very unbalancing to the upper denture, and since it had little retention to start with, chewing in this position caused the denture to become dislodged. The partial denture was partially tooth-borne and partially tissue-borne. It had poorly designed clasps. They were not custom made to fit the teeth to which they were clasped. A partial denture depends on close adaptation of wire or cast metal clasps to slight undercuts. The clasp should be designed so that it does not put a strain on the tooth. The partial denture had no occlusal rests on either of the abutment teeth to keep the partial from sinking into the soft tissue when biting down. It lacked reciprocal clasps or arms on the inside to provide adequate retention. SPECIFIC CHARGES WHETHER THE DENTURES, AS A SET, CONTAINED A THREE MILLIMETER DISCREPANCY BETWEEN CENTRIC RELATION AND OCCLUSION. With respondent's dentures in place, centric relation was not in harmony with centric occlusion. When the mandible was closed in centric, there was a three millimeter open bite. The mandible had to move out of centric relation for maximum occlusal contact, or centric occlusion, to be reached. Dr. Earle estimated that the mandible had to deviate approximately three millimeters from the centric relation position in order to achieve centric occlusion. Dr. Earle's testimony, that centric occlusion and centric relation were not in harmony, is accepted. The problems that Ms. McPeck was having with her dentures were consistent with centric occlusion and centric relation being out of harmony. WHETHER THE COMPLETE MAXILLARY DENTURE AND DUPLICATE MAXILLARY DENTURE CONTAINED LARGE AREAS OF NO CONTACT; WHETHER THE DENTURES LACKED PROPER RETENTION. There were large areas where the dentures fabricated by Dr. Parry were not in contact with tissue. Especially crucial were the areas on the upper dentures at the peripheral border or post-dam area. Due to the poor adaptation of the dentures to the tissues, the upper dentures also had poor retention, although one was better than the other. Dr. Earle tested the dentures for retention simply by putting pressure on one side and then the other. WHETHER THE PARTIAL MANDIBULAR DENTURE LACKED PROPERLY ADAPTED, INDIVIDUALLY-CAST CLASPS FITTED TO A SURVEYED MODEL, LACKED LINGUAL RECIPROCAL CLASPS FITTED TO THE FACIAL RETENTION CLASPS, LACKED CAST METAL LINGUAL RESTS, AND CONTAINED LARGE AREAS OF NO TISSUE CONTACT. The lower partial denture provided to Ms. McPeck was a tissue-borne acrylic partial denture wire clasps. It did not have individually-cast clasps, it lacked lingual reciprocal clasps, and it lacked cast metal lingual rests. Although it can be acceptable dental treatment to provide a partial without these rests and clasps, and to provide a tissue bearing partial, there was no evidence to explain why Ms. McPeck was not provided with a denture that had these rests and clasps. Dr. Marini, respondent's expert witness, testified that a partial mandibular denture that did not have individually-cast clasps, labial reciprocal clasps, and cast metal labial rests was not necessarily below minimum standards. However, he indicated that such a denture should be provided only when the patient's economic situation required it. He stated, "when they are able to afford something better, you can make another type of partial." There was no evidence presented that the partial was constructed the way it was based on Ms. McPeck's economic condition. There was no evidence that Ms. McPeck could not, at the time the denture was made, "afford something better." This was also not the same situation as that of Mr. Blanchard, who required a tissue bearing partial due to his periodontal condition. Further, Mr. Blanchard's partial was intended to be a temporary denture. Ms. McPeck's denture was meant to be a permanent denture. Under these circumstances, it was below minimum standards to provide Ms. McPeck with a denture that lacked individually-cast clasps, lacked lingual reciprocal clasps, and lacked metal lingual rests. WHETHER RESPONDENT FAILED TO MEET MINIMUM STANDARDS IN HIS TREATMENT OF MS. MCPECK. Based on the foregoing findings, it is apparent that respondent did not-provide competent treatment to Ms. McPeck. The dentures provided to her had poor adaptation and retention. The dentures were not constructed so that centric relation would be in harmony with centric occlusion which caused Ms. McPeck to have problems when trying to eat. Further, the partial provided by Dr. Parry was not an adequate partial denture under the circumstances presented. WHETHER RESPONDENT DELEGATED PROFESSIONAL RESPONSIBILITIES TO A PERSON NOT QUALIFIED BY TRAINING, EXPERIENCE OR LICENSURE TO PERFORM THEM. Although Ms. McPeck testified that Wayne Giddens, respondent's dental assistant, took her impressions, worked on her dentures, and placed the dentures in her mouth on several occasions, I did not find that Ms. McPeck's testimony was credible insofar as it related to the procedures followed as FDC, including who took her impressions and adjusted her dentures. There were too many inconsistencies in her testimony and at times she seemed somewhat confused. Therefore, there was simply no competent substantial evidence to establish that respondent delegated professional responsibilities to a person not qualified to perform them. WHETHER RESPONDENT FAILED TO SIGN A WRITTEN DENTAL WORK ORDER. A dentist who does his own laboratory adjustments does not need to prepare a work order authorization. If the laboratory work is performed by an unlicensed person, a work order authorization must be used. In this case, a laboratory procedure authorization form was filled out indicating two upper dentures and a lower partial should be fabricated. The authorization indicated it was from Dr. Parry and for Ms. McPeck. PREVIOUS DISCIPLINARY ACTION On January 18, 1984, a final order was rendered in the Board of Dentistry and Department of Professional Regulation vs. John R. Parry, D.D.S., DPR Case Nos. 0012886 and 0017095, DOAH Case No. 83-1085. In that case, respondent was found guilty by the Board of Dentistry of violating Section 466.028(1)(g) and (y), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a final order finding the respondent guilty of the following acts: Being guilty of incompetence in his treatment of Ms. Lassetter; as alleged in Case No. 85-3840; Being guilty of incompetence in his treatment of Ms. McPeck, as alleged in Count III of Case No. 86-0141; Failing to make Mrs. Blanchard's records available to her, through the Department's investigator, as alleged in Count I of Case No. 86-0141; Failing to make Mr. Blanchard's records available to him, through the Department's investigator, as alleged in Count II of Case No. 86-0141; Failing to keep-written dental records and medical history records justifying the course of treatment of Ms. McPeck, including a patient history and examination results; Failing to perform the statutory or legal obligation imposed by Section 466.021, Florida Statutes, by failing to sign Ms. McPeck's work order; and The repeated violation of Chapter 466. It is further recommended that Counts IV and V of the Administrative Complaint filed in Case No. 86-0141 be dismissed; that the charges of violating Section 466.028(1)(aa), Florida Statutes, as set forth in Counts I, II and III of Case No. 86- 0141 be dismissed; and that the charge of violating Section 466.028(1)(y), Florida Statutes, set forth in Count II of Case No. 86-0141 be dismissed. It is further recommended that the following penalties be imposed: A total administrative fine of $3,400 to be assessed as follows: Incompetence (Lassetter) $1,000 Incompetence (McPeck) $750 Failure to provide records $300 (Mrs. Blanchard) Failure to provide records $300 (Mr. Blanchard) Failure to keep proper Records $300 (McPeck) Failure to sign work order $250 (McPeck) Repeated violation of $500 Chapter 466 Suspension of respondent's license for a period of eighteen months, with the condition that respondent may have his license reinstated after a period of no less than six months upon satisfactory completion of a program of study or training approved by the Board. DONE and ENTERED this 2nd day of December, 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX Petitioner's Proposed Findings of Fact 1-3. Accepted. Accepted generally. Accepted. Accepted, except last sentence. 7-8. Accepted generally though unnecessary as separate findings. 9. Accepted. 10-15. Accepted generally. 16. Unnecessary. 17-20. Accepted. 21. Unnecessary. 22-27. Accepted generally. 28. Unnecessary. 29-39. Accepted generally. 40. Unnecessary. 41-42. Accepted generally. 43-44. Rejected by contrary finding. 45-49. Accepted generally, except first sentence of paragraph 45 which is rejected by contrary finding. Rejected as not clearly established by the evidence. Accepted as to treatment of bone or tooth root. 52-53. Accepted generally. Accepted. Accepted as to area of exostoses. 56-62. Accepted generally. Accepted, except as to beginning of first sentence. Accepted in part, rejected in part. Accepted. First sentence rejected by contrary finding second sentence accepted. Unnecessary. 68-70. Accepted. Accepted generally. Rejected by contrary finding. Accepted. Accepted to the degree stated in paragraph 47. 75-80. Accepted generally, except reject that Giddens made adjustments. 81. Irrelevant; the patient refused treatment. 82-86. Rejected by contrary findings, except paragraph 83 which is unnecessary finding as to Mr. Blanchard. Accepted generally, except third sentence which is rejected by contrary finding. Rejected by contrary finding. 89-91. Accepted. First sentence rejected for lack of competent evidence; remainder accepted generally. Rejected as irrelevant. Second part of sentence accepted, first part rejected as there was no evidence presented as to where denture fabricated. Rejected, generally, for lack of competent evidence. Accepted. 97-98. Accepted except as to Mr. Giddens role. 99-100. Accepted. 101-102. Accepted generally that centric occlusion was not in harmony with centric relation with the Parry dentures in place resulting in 3mm open bite. 103. First sentence rejected - it is not clear what it means. Second sentence accepted. 104-112. Accepted generally. 113-114. Unnecessary. 115-116. Accepted generally. Respondent's Proposed Findings of Fact 1-6. Accepted. Reject statement that evidence did not support charge. Remainder generally accepted. Accepted generally. Accepted as to minimal space for denture base, remainder rejected generally by contrary findings in paragraphs 22-24. Rejected generally by contrary findings. Accepted generally. First part generally rejected; last sentence accepted. First five sentences accepted generally. Remainder rejected. Rejected in general as stated in paragraph 26. Rejected in part, accepted in part (see paragraph 30). Rejected as stated in paragraphs 35-37. Rejected generally (see paragraph 32). Rejected generally. There was no evidence that the denture had a seal, butterfly or otherwise. Second sentence accepted. Accepted generally. 20-25. Accepted generally. 26. Accepted as to facts stated, not legal conclusion. 27-28. Accepted generally. Accepted as to facts stated, not legal conclusion. Accepted. Rejected by contrary findings in paragraph 73 and for same reasons argument as to Lassetter was rejected. Dr. Earle's testimony was accepted as to McPeck. 32-33. Rejected by contrary findings. Rejected by contrary finding (see paragraph 75). Accepted generally. 36-37. Rejected generally by contrary findings and conclusions of law. COPIES FURNISHED: Errol H. Powell, Esquire Senior Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Kenneth M. Meer, Esquire 180 South Knowles Avenue Winter Park, FL 32789 Tom Gallagher Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Pat Guilford Executive Director Board of Dentistry 130 N. Monroe Street Tallahassee, FL 32399-0750
The Issue The issue in this case is whether Respondent is guilty of violating the minimum standards of competence, in violation of Section 466.028(1)(y), Florida Statutes; unlawfully delegating certain responsibilities to an unlicensed person, in violation of Section 466.028(1)(aa), Florida Statutes; and failing to maintain adequate records, in violation of Section 466.028(1)(n), Florida Statutes.
Findings Of Fact At all material times, Respondent has been licensed as a dentist. On October 7, 1987, B. K. visited Respondent's office to have her teeth cleaned. She had recently moved to Orlando and had not previously seen a dentist there. She selected Respondent based on the proximity of his office to her home. At her initial visit, B. K., who is 62 years old, presented a natural lower arch, except for the absence of molars that apparently caused her no trouble, and full dentures on the upper arch. In the course of examining B. K., Respondent asked her how old her dentures were. When B. K. replied 12 years, he told her that they should be replaced. She expressed reservations and told Respondent that she had had no problems ordiscomfort with her dentures. Respondent answered that the dentures should at least be relined. B. K. agreed to this suggestion. Respondent's office notes incorrectly recite that, as of the original visit, the dentures did not fit correctly. There is no evidence of a poor fit. Further, there is no reason to replace or reline dentures once they reach a certain age. Changes in fit or comfort may dictate the replacement or relining of dentures; age alone is irrelevant. The remainder of the initial visit was devoted to cleaning B. K.'s teeth and taking an impression of her arch for the purpose of relining the dentures. Respondent took the impression. At the conclusion of the visit, Respondent retained B. K.'s dentures and advised her to schedule a visit for about a week later, at which time she could pick up her relined dentures. When B. K. returned for her second appointment, Respondent installed the relined dentures. B. K. immediately complained that they were much too big. She did not believe that they were even the same dentures that she had left the week before. Respondent assured her that they were her dentures, and they would take additional impressions. An employee of Respondent named Stacy or Terry took the second impression, which took place during the second visit. After taking it, he told B. K. that something went wrong and asked her if he could taken another impression. B. K. agreed and another impression was taken. The employee told B. K. that her dentures could be ready in three of four days. When she returned, the dentures still were too large. At this point, B. K. embarked on a process that involved more impressions, more office visits, and more ill-fitting dentures. During this period, Respondent's employee routinely blamed the laboratory doing the relining work and finally said that they would change labs. On the only occasion that Respondent saw B. K. following her initial visit, he also said that they would be changing labs. However, he never took another impression after the first. In the process, the dentures seemed to be getting larger each time. At some point, B. K. learned from Respondent's employee that he was not a licensed dental assistant or hygienist and lacked any special training. Unable to obtain from Respondent a properly fitting set of dentures, B. K. finally contacted the local dental society and obtained the name of another dentist. She retrieved her dentures from Respondent's office, which refunded the portion of the payment that she had made for the dentures. (She had paid $125, and her insurance company paid $300.) B. K. visited the other dentist and soon obtained a new set of upper dentures that fit properly. Petitioner retained an independent dentist to examine the relined dentures prepared by Respondent and his employee. Without regard to B. K.'s complaints, the relineddentures were objectively unsatisfactory with regard to the adaptation of the denture to the gum. Respondent's dentures were grossly inadequate in terms of retention. When the independent dentist examined Respondent's dentures installed in B. K., he found a defective occlusion that left B. K. unable to bring her upper and lower arches together without distorting her jaw. Even if she could so distort her jaw, the resulting pressure on the dentures caused them to pop out. Poorly taken impressions led Respondent to cause the preparation of dentures of grossly excessive vertical dimension. Compared to properly fitting dentures, Respondent's dentures measured another 10 millimeters in the vertical dimension, substantiating B. K.'s recurring complaints about the size of the relined dentures. The fit of the dentures was also improper where it contacted the roof of the mouth. Contacting not more than 50% of the surface area of the roof of the mouth, the relined dentures allowed air continually to break the seal caused by the sheeting action of saliva, which is vital for the retention of upper dentures. It is improper for a dentist to delegate to an unlicensed person the duties of taking an impression for the purpose of preparing a prosthetic device, such as dentures. Respondent also failed to maintain adequate dental records. The records contain no medical history on B. K., norecord of Respondent's findings, and no treatment plan. In fact, the record do not even bear the name of B. K. The most material item in the records, which is that B. K. complained about her dentures during the initial visit, is incorrect and reflects either extreme carelessness or deceit. Based on the above-described facts, Respondent was guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Dentistry enter a final order finding Respondent guilty of violating Section 466.028(1)(m), (y), and (aa), suspending Respondent's license for a period of six months, imposing an administrative fine of $9000, and issuing a reprimand. RECOMMENDED this 12th day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, FL 32399-0792 Albert Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Michael J. Hammonds, D.D.S. 4901 Palm Beach Blvd. Ft. Myers, FL 33905
The Issue At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," as well as an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes (1995), now codified at Section 120.569(1)(c), Florida Statutes (1997), as alleged in the amended petition for attorney's fees and costs.
Findings Of Fact Findings related to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes (1997). At all times pertinent to this proceeding, Robert J. Fish, D.D.S. (Dr. Fish) was licensed to practice dentistry in the State of Florida, having been issued license number DN 000 5694. On or about August 22, 1989, D. E. (the "Patient") filed a written complaint with the Department regarding the care and treatment that she had received from Dr. Fish. The complaint provided: On June 27, 1989 I came to see Dr. Garrison complaining about my lower partial made by Dr. Fish in 1988. Dr. Garrison examined [my] Lower Right #27, 28, 29 and found Buccal margins to be opened. Also, the Lower Partial is the kind his office uses as a temporary. Considering the amount of money paid, Dr. Garrison recommended that I consult with the Broward County Dental Assoc. They in turn told me that . . . they do not handle this type of problem and advised me to get in touch with the Fl Dept of Professional Regulation. As per my conversation with Mr. Hunter of your dept I filled these forms out and am enclosing zerox copies of my cancelled checks relating to payment and statements and other papers with pictures of my teeth. Should I have overlooked anything that I should have sent you kindly let me know. To the lay eye, the Patient's complaint would seem to relate to one matter, that being a lower partial, whose construction was more consistent with a temporary or transient appliance, as opposed to one intended for permanent use, and whereon the Buccal margins of teeth number 27, 28, and 29 were found to be open. In fact, as the investigatory record discloses, there are actually two separate items in the Patient's complaint. First is the complaint associated with open margins noted on teeth 27, 28, and 29. Those teeth are part of a fixed bridge installed by Dr. Fish, and distinguishable from the Patient's lower partial (denture), which was a removable appliance.3 Following receipt of the complaint, the Department began its investigation in accordance with Section 455.225(1), Florida Statutes. The matter was assigned DPR Case No. 89-09812. By letter of October 9, 1989, the Department advised Dr. Fish of the Patient's complaint, as follows: THE PATIENT STATES that you provided lower partial for teeth #27, #28 and #29 in 1988. Complainant alleges subsequent dentist advised her that buccal margins are open. She further has been advised that the partial denture that you indicated was a permanent- denture is the type that is normally used as a temporary denture. Apparently, at this stage, the Department did not appreciate the nature of the Patient's complaint or, as observed in Endnote 3, the significance of the language it used to convey the Patient's complaint to Dr. Fish. In response to the Department's letter, Dr. Fish forwarded to the Department copies of the Patient's records, including x-rays. Additionally, Dr. Fish provided the following written response regarding the lower partial (denture): This patient is high strung and often incoherent, she often appears to be suffering from memory loss, i.e. Alzheimer's disease. The lower partial was made as a provisional partial due (sic) the extraction of several teeth. The patient was informed that upon sufficient stabilization of the boney ridge she could obtain a cast frame & acrylic partial. She refused to have any relining procedures which are necessary as bone resorbtion takes place. This option is still available to her. Dr. Fish's response did not address the open Buccal margins noted on teeth 27, 28, and 29; however, as heretofore noted, that question was unrelated to any complaint the Patient might have voiced regarding the lower partial. Pertinent to an understanding of the Patient's complaint, the Patient's records reveal the following two treatments. First, in October and November 1987, Dr. Fish undertook preventive and reconstructive work on the lower (mandibular) right side of the Patient's mouth. That work consisted of the replacement of the existent crowns on teeth 27, 28, and 29, with a ceramic three unit lower right bridge (also referred to as a three unit lower right splint), consisting of three individual crowns on teeth 27, 28, and 29, tied together (splinted) to strengthen the periodontally involved teeth. Contemporaneously, Dr. Fish replaced the lower right molar (tooth 30) with a removable wrought wire and acrylic partial (removable denture). Second, in September 1988, Dr. Fish undertook preventive and reconstructive work on the lower left side of the Patient's mouth. At that time, an existing five unit bridge (teeth 18 through 22) was severed, the bridge for teeth 18 through 20 was removed, and teeth 18 and 19 were surgically extracted. Thereafter, the lower partial which had replaced the molar on the lower right side was modified to include the replacement of teeth 18, 19, and 20 on the lower left side. This lower wrought wire and acrylic partial (removable denture), which replaced the molar on the lower right and the teeth 18, 19, and 20 on the lower left, was the lower partial the Patient complained of to the Department. As part of its investigation, the Department also contacted H. B. Garrison, D.D.S. (Dr. Garrison), who succeeded Dr. Fish as the Patient's treating dentist. Dr. Garrison provided the Department with the Patient's records, including x-rays, and by letter of November 6, 1989, advised the Department that: [D. E.] . . . came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort.4 I examined the lower bridgework and found the buccal margins of teeth #27, 28, 29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. If I can be of further assistance to you, please do not hesitate to contact me. Thank you. Given the Patient's records provided by Dr. Fish and Dr. Garrison, as well as Dr. Garrison's response, it is evident that there were two concerns raised by the Patient. First, the buccal margins observed on teeth 27, 28, and 29 of the lower right bridge, and second the adequacy of the lower partial. The Department presented its investigative report, together with the supporting documentation heretofore discussed, to the Probable Cause Panel of the Board of Dentistry (the Panel) for its consideration. Contemporaneously, the Department's counsel presented a draft closing order, which proposed a finding of probable cause with regard to the inadequacy of the lower partial and closure with a letter of guidance. No mention was made of the concerns related to the lower right bridge. The proposed order read as follows: CLOSING ORDER THE COMPLAINT: The Subject's treatment failed to meet the minimum standard of care. THE FACTS: The Subject provided patient D.E. with a lower denture which was allegedly unsatisfactory and has allegedly refused to correct the problem. Patient D.E. presented to a subsequent treating dentist who stated that the denture prepared by the Subject was inadequately fabricated. When contacted, the Subject stated that the denture provided to patient D.E. was made as a provisional partial due to the extractions of several teeth. The patient was informed by the Subject that upon stabilization of the lower ridge, she could obtain a cast frame and acrylic partial. The patient refused to have any relining procedures, which are necessary as bone resorption takes place. THE LAW: Based on the foregoing, probable cause does exist to establish a violation of Section 466.028(1)(y), Florida Statutes, however, this case will be closed with a letter of guidance. IT IS, therefore, ORDERED that this matter be, and the same is hereby, CLOSED. DONE and ORDERED this day of , 1990. CHAIRMAN, PROBABLE CAUSE PANEL BOARD OF DENTISTRY On April 27, 1990, the Panel met to resolve whether probable cause should be found and, if so, the appropriate disposition of the complaint. Initially, the Panel voted to find probable cause and to close the case with a letter of guidance, as recommended by the proposed closure order submitted by the Department's counsel; however, upon realizing that Dr. Fish had one prior disciplinary matter and two more cases pending on "below standard of care issues," the Panel elected to withdraw its decision to close with a letter of guidance and directed the Department to file an administrative complaint "based on a single charge of inadequate lower denture," a perceived violation of Section 466.028(1)(y), Florida Statutes. With regard to the separate matter relating to perceived deficiencies (open margins on teeth 27, 28, and 29) in the Patient's lower right bridge, the panel took no action. In May 1990, following the Panel's finding of probable cause, the Department employed Mervyn Dixon, D.D.S., as an expert to evaluate the Patient's compliant, and, by letter of May 25, 1990, the Department's counsel advised Dr. Dixon of the following matters: Thank you for consenting to review the enclosed case. . . . The Probable Cause Panel reviewed the merits of this claim on or about April 27, 1990. They determined that an expert review was necessary to properly evaluate the veracity of the complaint.5 A clinical examination of the patient may be necessary in order to make an evaluation. Please do not hesitate to accomplish a patient examination if it is deemed necessary. This particular patient does not have access to transportation. It will be necessary to coordinate with the Bureau of Investigative Services in order to provide transportation. As always, your prompt attention to this case and the receipt of your report within thirty (30) days will be greatly appreciated. . . . Dr. Dixon examined the Patient on June 16, 1990, and, by letter of June 21, 1990, reported the results of that examination to the Department, as follows: On June 16, 1990, I performed a dental clinical exam for patient D.E. in my office. Since the complaint was limited to the mandibular arch, I merely noted that the patient presented with a full maxillary denture. The following findings were observed in the mandibular arch: 1.) the patient was wearing a wrought wire and acrylic lower partial 2.) a ceramic 3 unit bridge was present on teeth #'s 27, 28, 29 3.) a gold and acrylic 2 unit bridge was present on teeth #'s 21 and 22 4.) the four mandibular incisors were natural teeth and free from marked periodontal disease. The right three unit ceramic bridge exhibited the following: 1.) #27 has an open facial margin that would admit an explorer 2.) #28 has an open margin that would admit an explorer 3.) #29 exhibited a grossly open margin both facial and distal 4.) the only occlusion (partial out) was provided by tooth #28 - see enclosed bite registration 5.) also please see enclosed x-ray The mandibular wire and acrylic partial exhibited extremely tight clasps and the lingual adaptation around the teeth and crowns was very poor. Please see enclosed study model. It is my conclusion that neither the mandibular ceramic 3 unit bridge or the mandibular wire and acrylic partial meet community standards. I have provided the x-ray, photo, bite registration and study model as evidence since it is necessary for the patient to have these items replaced.6 In the process of replacement, they will be destroyed. On September 6, 1990, the Department issued an administrative complaint against Dr. Fish (DPR Case No. 89-009812) and on October 9, 1991, an amended administrative complaint.7 The amended complaint was served on Dr. Fish on October 15, 1991, and contained the following allegations upon which the Department proposed to take disciplinary action against Dr. Fish's license to practice dentistry: On or about October 1, 1987, patient D.E. presented to the Respondent [Dr. Fish] for bridgework on teeth #27, #28, and #29. On or about September 15, 1998, D.E. presented to the Respondent for a lower partial. On or about May 8, 1989, D.E. presented to a subsequent treating dentist complaining about discomfort with his (sic) lower partial. The subsequent treating dentist examined patient D.E.'s bridgework and observed the buccal margins of teeth #27, #28, and #29, were inadequately sealed. He also noted that the lower partial was the type usually used as a temporary partial. On or about June 16, 1990, patient D.E. presented to a departmental expert for examination. The consultant observed the teeth #27, #28, and #29 contained open margins. Failure to adequately provide a lower denture that was absent any open margins is failure to practice dentistry within the minimum standard of care as recognized by the prevailing peer community. Based on the foregoing, the Respondent is guilty of violating the following statutory provisions: Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of card (sic) in diagnosis and treatment when measured against generally prevailing peer performance. The administrative complaint filed by the Department is at material variance with the directions of the probable cause panel. Notably, while the complaint perceives the distinction between the two treatments (bridgework and lower partial) which formed the basis for the Patient's complaint, it bases the perceived violation of section 466.028(1)(y) on problems associated with the bridgework. The Panel did not find probable cause, nor direct the filing of a complaint, regarding the bridgework but, rather, the lower partial (denture). Dr. Fish filed an election of rights whereby he disputed the allegations contained in the amended administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Consequently, the case was referred to the Division of Administrative Hearings (DOAH) to conduct the formal hearing Dr. Fish had requested. The case was docketed as DOAH Case No. 92-0687. A formal hearing on the administrative complaint was held on June 1, 1993, where proof was offered and received regarding perceived deficiencies in both treatments (the bridgework and lower partial) provided by Dr. Fish. Subsequently, on January 24, 1994, a Recommended Order was rendered which concluded, inter alia, that the Department had failed to establish, by the requisite degree of proof, that, with regard to either the bridgework or the lower partial denture, Dr. Fish had failed to meet the minimum standard of care in diagnosis and treatment, and recommended that a final order be entered dismissing the amended administrative complaint. On April 16, 1994, the Board of Dentistry (Board) met to consider the Recommended Order. At the time, no exceptions had been filed by any party, and the Department recommended that the Board adopt the findings and recommended dismissal contained in that order. Notwithstanding, following discussion, the Board resolved to remand the case to the Division of Administrative Hearings. The Order of Remand was issued May 13, 1994. Following consideration of the parties' responses to the Order of Remand, the presiding officer entered an order (Order on Remand) on December 7, 1994, declining remand. That order, while amplifying upon the basis for certain factual findings and conclusions reached related to credibility, concluded that the Board had not presented any compelling reason to reconsider the findings of fact, conclusions of law, or recommended disposition contained in the Recommended Order. On January 6, 1995, the Board met to consider the Recommended Order and Order on Remand, and on February 25, 1995, entered a Final Order. The Final Order, with nominal modification, adopted the findings of fact and conclusions of law set forth in the Recommended Order, as well as the recommended disposition, and dismissed the amended administrative complaint filed against Dr. Fish. Findings related to the claim for attorney's fees and costs Pertinent to the claim for attorney's fees and costs, it is observed that the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Fish prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs is appropriate provided Dr. Fish can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust. Addressing first Dr. Fish's status, the proof demonstrates that at the time the underlying proceeding was initiated Dr. Fish was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes. Supportive of such conclusion is the proof of record which demonstrated that, at all times material: (1) Dr. Fish was the sole owner of, and operated his dental practice as, an unincorporated business; (2) that the principal place of business for his dental practice was Broward County, Florida; (3) that Dr. Fish resided in Broward County, Florida, and had been domiciled in the State of Florida since 1973; and, (4) that Dr. Fish's business did not employ more than 25 full time employees and his net worth, including both personal and business investments, was less than two million dollars. Next, it must be concluded that the Department failed to demonstrate that its actions were substantially justified or that special circumstances existed which would make an award unjust. Dispositive of this issue is the proof which demonstrated that the Panel did not find probable cause to conclude that the bridge work provided by Dr. Fish fell below community standards and did not direct the Department to file an administrative complaint on such issue. Therefore, the Department was without any factual or legal basis to file a complaint challenging the adequacy of the bridgework installed by Dr. Fish.8 Consequently, Dr. Fish is entitled to an award of reasonable attorney's fees and costs under Section 57.111, Florida Statutes.9 Here, Petitioner's counsel claims $25,511.50 (based on 184.5 hours) as attorney's fees, and $1,699.06 as costs, reasonably and necessarily incurred in the underlying proceeding. The Department, as heretofore noted, did not oppose the request for attorney's fees and costs by affidavit, but responded that it "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Thereafter, the Department never filed an affidavit, as required by law, opposing the request for fees and costs, did not question or oppose any portion of the request during hearing, and has not objected to any of the requests post- hearing. Section 57.111(4)(c), Florida Statutes, and Rule 60Q- 2.035(4), Florida Administrative Code. Indeed, the only proof of record regarding the reasonableness and necessity of the attorney's fees and costs sought was offered by Dr. Fish. With regard to attorney's fees, that proof suggested that the hours dedicated to the case (184.5) were reasonably and necessarily incurred, and that the hourly rate sought (an average of slightly over $138.00 per hour) was reasonable and less than the community standard of $175.00 per hour. Consequently, the attorney's fees sought in the sum of $25,511.50 were reasonable. With regard to costs, the proof observed that the $1,699.06 claimed was "reasonable." (Petitioner's Exhibit 2). Given the provisions of section 57.111(4), and the record, Petitioner's claim of attorney's fees in the sum of $25,511.50, and costs in the sum of $1,699.06 are, without further discussion, found reasonable.
The Issue Whether or not from January, 1975 until December, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Victoria Lynn Bandosz, who during said time routinely and customarily performed certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits form the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S. , as set forth in Count 1 of the Accusation. Count 1 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from January, 1975, until August, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Janet Amato, who, did during said time routinely and customarily perform certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S., as set forth in Count 2 of the Accusation. Count 2 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not on or about December 23, 1974, Dr. Richard Blustein did carelessly and mistakenly remove several teeth from Shawn McAfee, a minor, when in fact, said teeth should have been removed from Kerry McAfee, sister of Shawn McAfee, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) and 466.24(3)(c)(d), F.S., as set forth in Count 3 of the Accusation. Count 3 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not prior to December 2, 1974, Dr. Richard Blustein treated Helen Rosen and during said treatment failed to diagnose and/or properly treat advanced periodontal disease and further improperly designed, constructed and installed a six-unit splint in the mouth of said Helen Rosen, said acts allegedly being in violation of Chapter 466, F.S., and in particular s. 466.24(2) or 466.24 (3)(c)(d), F.S., as set forth in Count 4 of the Accusation. Count 4 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from June, 1974, until December, 1975 Dr. Richard Blustein failed to provide and maintain reasonably sanitary facilities and conditions in and about his office and person, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(1), F.S., as set forth in Count 5 of the Accusation. Count 5 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, in 1974 and 1975, Dr. Richard Blustein treated Milton Lane and did construct and install in the mouth of said Milton Lane a set of upper and lower dentures, which set of upper and lower dentures never fit properly and were never adjusted to fit properly, despite repeated attempts by Dr. Richard Blustein to correct or adjust said dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 6 of the Accusation. Count 6 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, prior to March 17, 1975, Dr. Richard Blustein treated professionally Sarah Rees and while treating or attempting to treat said Sarah Rees, failed to diagnose and/or properly treat periodontal disease, prepared and installed crowns which were inadequate in design, construction, retention and installation, and placed several inadequate restorations, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(c)(d), as set forth in Count 7 of the Accusation. Count 7 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 8 in the Accusation charging violations of Chapter 466, F.S. and in particular, s. 466.24(2), 466.24 (3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing. Whether or not, during 1975, Dr. Richard Blustein treated Bill Soforenko, and during the treatment of said Bill Soforenko, prepared, constructed and installed a porcelain to gold full arch splint, which was entirely inadequate and unacceptable in preparation, design, construction and installation, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 9 of the Accusation. Count 9 had originally charged the violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 10 concerning certain children referred to him by the Academy of Dentistry, charging violations of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing.
Findings Of Fact Dr. Richard Blustein, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, F.S., under a license issued August 7, 1964, bearing No. 3716, and was at the time of the acts described in the Accusation engaged in the practice of dentistry at 417 St. James Building, Jacksonville, Florida. In November, 1974, Janet Amato started to work for the Respondent as a dental assistant. She was hired to take X-rays and impressions, clean up operatories set up operatories and assist the dentist in various capacities. She had attended the Florida College of Medical and Dental Assistants at Jacksonville, Florida and graduated as a dental assistant in 1969. After her employment began, she commenced to do those things indicated in her job function. In January, 1975, she attended a polishing course designed to instruct on the polishing of clinical crowns which was held at the Florida Junior College. This course was designed to teach the students to polish with a prophy angle and polishing cup with pumice. After completing the course, Janet Amato began polishing the teeth of patients who had been scaled by the dental hygienist or dentist in the office. Dr. Blustein was aware of this activity. Sometime in the month of February, 1975, Janet Amato began to do the scaling of patients. Janet Amato was not a dental hygienist at any time material to the accusations. Janet Amato learned the scaling procedure by watching Dr. Blustein for a period of three or four months on the basis of once or twice a week. When she began to do this scaling, Dr. Blustein would say, "Honey, go in, and clean this one's teeth, you know", and at times mentioned the word "scale". Janet Amato did this procedure using a hand scaler, as much as ten times a week from February, 1975 through July, 1975. In July or August, 1975, she was placed as a receptionist in Dr. Blustein's office and only did scaling once or twice a week when the hygienist would get behind. This procedure continued until January, 1976. After January, 1976, Janet Amato did not do further scaling and resigned her job with Dr. Blustein in March, 1976. The aforementioned scaling done by Janet Amato was subgingival only on those occasions when she would try to retrieve some debris that had fallen below the gum line. This scaling spoken of was done with the knowledge of Dr. Blustein and under protest of Janet Amato, as evidenced by her remarks to the Respondent that she did not feel qualified to do that procedure, to which Dr. Blustein responded that she would do it anyway. While employed by Dr. Blustein, Janet Amato was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Janet Amato how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with the laboratory burr. This process was done by Janet Amato as much as ten times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Janet Amato was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber bands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. The application of these brackets was made four or five times between February, 1975 and July, 1975, by Janet Amato. Victoria Lynn Bandosz started to work for Dr. Blustein in his dental office, in February, 1974, while Ms. Bandosz was an eleventh grade student at Wolfson High School. This work was done on Saturday and the duties included calling patients in, setting up operatories, taking X-rays, cleaning instruments and putting them away. The schedule of work gradually changed from Saturday to Saturday and after school, and finally a full-time employment in the summer of 1975. Ms. Bandosz performed those functions, as indicated before, until January, 1975, at which time she took a polishing course at Florida Jr. College designed to teach her how to handle instruments and to polish teeth. This course was the same course attended by Janet Amato. She began to do this polishing and was gradually worked into scaling. According to Ms. Bandosz, the Respondent would introduce her to a patient and say that she was to clean the teeth because the office was busy. She began to do scaling over a period of time and protested doing this type activity, but received no response to her complaint about having to do scaling. Ms. Bandosz indicated that Dr. Blustein appeared too busy to respond. The scaling that Victoria Lynn Bandosz did included work by hand scaler and by use of a Cavatron and commenced a few weeks after the polishing course was completed. The scaling done included the removal of calculus on the surface of the tooth and subgingival scaling. She learned this scaling, according to the witness, by watching the office dental hygienist. A schedule of doing the scaling would include as many as three or four times a week during the summer months and fall of 1975. In December, 1975, Victoria Lynn Bandosz left the employ of Dr. Blustein to attend school. While employed by Dr. Blustein, Victoria Lynn Bandosz was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Victoria Bandosz how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with, the laboratory burr. This process was done by Victoria Bandosz as much as five or six times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Victoria Lynn Bandosz was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber brands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. Among the patients being treated by Dr. Blustein in 1974, were Carol Diana (Kerry) McAfee, who was 10 years old at the date of the hearing and Sean McAfee, who was 8 years old at the time of hearing; sister and brother respectively. According to the questionnaire and chart on Sean McAfee and further testimony given in the course of the hearing, Sean McAfee had been seen by Dr. Blustein in April, 1974, on two occasions, one occasion being April 27, 1974, at which time an extraction was made of the right upper deciduous central and for X-rays in a second visit on April 29, 1974. Dr. Blustein recalls the extraction being in March, 1974. Some of this information is shown in Petitioner's Composite Exhibit #9, admitted into evidence. The Petitioner's Composite Exhibit #9 also shows the questionnaire and chart of Carol Diana (Kerry) McAfee, showing visits on November 30, 1974, and December 7, 1974. In the month of December, 1974, the young girl Kerry McAfee was taller than her brother Sean, with long blond hair, while Sean McAfee was stockey and had hair which did not go below the level of the ears. The two children do not resemble each other in other matters of appearance. Prior to December 12, 1974, Carol Diana (Kerry) McAfee had been seen by Dr. Harry L. Geiger, who specializes in orthodontics and then referred to Dr. Blustein through the person of Dr. Geiger for purposes of extraction of the maxillary and mandibuar primary canines. This referral was by correspondence of December 12, 1974, which is Petitioner's Exhibit #1, admitted into evidence. On that same date Dr. Geiger prepared a form which indicated the location of the teeth. to be extracted. This form is a part of Petitioner's Composite Exhibit #9. An appointment was made with Dr. Blustein's office to have the extraction made from Kerry McAfee on December 23, 1974. Due to the proximity of the Christmas holiday, employees within Dr. Blustein's office were contacted and an arrangement made to substitute the appointment of Kerry McAfee for one of Sean McAfee who was to have his teeth cleaned around that time period. This substitution of appointment was made one week prior to the scheduled appointment. When the patient, Sean McAfee, arrived at the Respondent's office he was taken to an operatory to be seen by the Respondent. Dr. Blustein had with him in the operatory the letter which is Petitioner's Exhibit #1 and a set of X-rays pertaining to Carol Diana (Kerry) McAfee. There is some question about whether or not the form which is part of Petitioner's Composite Exhibit #9 was in the operatory. The letter of December 12, 1974 from Dr. Geiger in its reference lines references Carol Diana (Kerry) McAfee - Age: 8 years, and Dr. Blustein indicated that he read this letter and observed the X-rays on Carol Diana McAfee prior to his work. He indicated that the X-rays on Carol Diana (Kerry) McAfee appeared to be similar to what he found in terms of the actual condition in the mouth of Sean McAfee. He then proceeded to extract two of the teeth that were indicated to be removed but he made the extraction on Sean McAfee, as opposed to Carol Diana McAfee. One of Dr. Blustein's patients, beginning August 6, 1974, was Mrs. Helen Rosen. Mrs. Rosen had last seen a dentist about a year prior to that and had had upper dentures made two or three years prior to August, 1974. The radiographic examination made by the Respondent showed that the patient was missing all of her upper teeth and was missing all but seven other teeth, which teeth showed severe periodontal involvement. The patient was a diabetic and clinical evaluation showed bone resorption. The patient on that date was wearing an upper denture which was causing problems due to the lack of a ridge and due to impediment in the muscle attachments. The lower natural teeth were mobile, to a high degree and the lower partial was contributing to that mobility. Further observation showed poor patient hygiene. The X-rays that were taken at that time are Respondent's Exhibit #9 admitted into evidence. The patient was told that she needed much dental work, specifically that she needed surgery on the upper jaw to relieve the muscle attachment, a mucobuccal full procedure to eliminate the frenum to allow her to wear her dentures. The patient by explanation was told that the dentures were irritating the upper ridge severely. The patient was also told that there was bone destruction in the upper jaw and that in addition to the upper jaw, surgery on the lower jaw was needed, which Dr. Blustein felt that he could do. After that surgery, Dr. Blustein indicated that a splinting procedure would be needed on the remaining natural teeth and as a part of that process that a new partial would be made. The prognosis for saving the natural teeth was poor due to the condition of the teeth, but the patient wanted to attempt to save those teeth. Subsequent to that date the Respondent performed a mucoperiosteal flap (an apical repositioning flap). This procedure was performed on August 20, 1974. Photographs of this procedure are shown in Respondent's Exhibit #6, admitted into evidence. Those photos also show the placement of the splint on the natural teeth. Other treatment which was performed on Mrs. Rosen by Dr. Blustein included a visit of August 14, 1974, in which preparation was made on the lower interior plastic temporaries, the temporary splint on the remaining natural teeth, to prepare for periodontal surgery. An adjustment was made on this splint on August 15, 1974. As mentioned, the surgery, on the lower apical repositioning flap was done on August 20, 1974 and involved curettage in between the teeth, root cleaning in between the teeth, suturing in between the teeth and the surgical procedure itself. On August 27, 1974, the dressings and sutures were removed. On September 15, 1974 a bite impression was taken in preparation to construct a permanent splint device. On September 20, 1974, a shade was taken. On October 12, 1974, the casting on the splint was tried and on October 14, 1974 the lower teeth were cemented. This was followed on October 16, 1974, with a bite impression and on October 21, 1974 width an adjustment. A final impression was taken on October 25, 1974, this time of the upper dentures. In the beginning of November 1974 the dentures were remade and adjusted on two occasions. In November a discussion was entered into about the problem with the upper arch and Dr. Blustein indicated to the patient that she might get a second opinion on the need for surgery. At that time Dr. Blustein indicated that he was not through with the splint and it had only been placed to control mobility patterns. . . The partial spoken of at this time was the partial being constructed by the Respondent. Finally on February 27, 1974, upon consultation, the patient was told that she needed ridge adjustments on the upper arch. Dr. Ronald Elinoff D.D.S. saw Helen Rosen on December 2, 1974, as an accommodation to one of his patients, whose mother is Helen Rosen. Dr. Elinoff found a full set of upper dentures with a lower splint and partial with dalbo attachment, the splint being a seven unit device. This splint was on the lower arch and was placed around the only natural teeth in the patient's mouth. The embrassure spaces were closed on the splint, meaning those spaces underneath the solder joints or where the connection ends on the splint. The conture in the bolt that was there was impinging upon the ability of the patient to keep the splint clean, thereby promoting constant irritation. The tissue was grossly inflamed and would easily bleed upon touch and was a bluish redish color, unhealthy in appearance. There was minimal pocket depth, by that, the depth between the gum and the teeth. The minimal amount of bone shown growing beneath these teeth promoted stress on the teeth. The crowns were too long for the bone supporting root structure in that they were approximately three times as long as the root of the teeth, wherein a one to one ratio is desirable. The junction between where the casting ends and the tooth structure begins was very thick and the porcelain on the crowns had been chipped off, leaving an open area. The margins on the crowns were thicker than normal limits of tolerance. By Dr. Elinoff's observation, the mobility of the teeth was 3+. The patient was referred to Dr. Richard Miller, D.D.S., a periodontist. Dr. Richard L. Miller, D.D.S., specializing in periodontics saw Mrs. Rosen on December 5, 1974. By his observation, Mrs. Rosen had periodontal disease about the remaining seven teeth and the lower anterior, plus lower right first bicuspid teeth had been splinted. There was generalized hemorrhaging on probing, synosis and the pocket depth about the teeth indicated mucogingival problems. The splint mobility was 1+. The remaining roots and the bone were not adequate to support the removable partial denture splint. The splint design made it hard to maintain health, in that there were no embrassure spaces and the contact areas were bulky. The margins on the crowns did not fill well and were bulky. The cement which had been used to place the splint could be seen and there was fractured porcelain around margins of the restoration. According to Dr. Miller, these bulky margins contribute to periodontal disease, by causing irritation and attracting plaque. This cement that was observed was felt to be permanent cement. On February 5, 1975, Dr. Seth Weintraub, D.D.S., specializing in periodontics saw Helen Rosen. He examined the remaining seven mandibular teeth and found a periodontal condition which was fairly arrested. The patient lacked gingival tissue in the lower left cuspid and it was his feeling that correction of the muscle pull in that area by free gingival graft to establish an adequate zone of gingival tissue could be done. His impression of the splint or bridge was that it was adequate for present if the oral hygiene improved, but the marrying of the crown was generally poor. On March 18, 1975, Dr. Jack K. Whitman, D.D.S., specializing in periodontics saw Helen Rosen upon the referral of Dr. Weintraub. His observation revealed a gingiva which showed 3 millimeters space, (normal appearance being 2 to 3 millimeters), with slight irritation and some gum irritation. The patient was shown to have seven remaining mandibular teeth. The margins of the prosthetic device (splint) was bulky and was irritating the gingiva. The appearance of the patient's mouth showed bone loss and degeneration occlusion. From June, 1974 until December, 1975, the Respondent would on occasion move from the examination of one patient, in a particular operatory over to a second operatory to see a second patient, and could do so without washing his hands. This examination of the second patient would include touching the mouth of the patient. On occasion Dr. Blustein would also move from the examination of one patient in an operatory to the frontdesk area of the office and look into and touch the patient's mouth at the desk, without washing his hands. During the time period, June, 1974 until December, 1975, roaches were observed in the instrument trays which had been placed in cabinets within the office. These instrument trays contained dental instruments. There was no autoclave bag over these instruments and the roaches could be seen crawling about the instruments and roach eggs could be found in the instruments. The office was found in an older building in Jacksonville, Florida, known as the St. James Building. Within his office complex food was kept by the employees. In addition there were a number of other professional offices in the immediate area. The Respondent had made arrangements for periodic pest control treatment and had a separate cleaning crew within his office, in addition to the janitorial service offered by the building maintenance. The office also contained a number of autoclaves, one for each operatory; steam heat cleaning; sterilization; hot oil sterilization; dry heat sterilization; and hexacholrophy in all operatories. During this period and at all other periods in which testimony was offered, there was no report of any incident of infection within patients. On June 10, 1974, Milton Lane became a patient of Dr. Blustein. Mr. Lane had come to Dr. Blustein to have a complete set of dentures made, to replace the dentures that he already had. On the June 10, 1974 visit Dr. Blustein took upper and lower alginates. The next day, June 11, 1974, Dr. Blustein took a bite impression and made base plates to get the midline. On June 14, 1974, there was a trying of the teeth and a final impression was made. June 19, 1974, the dentures were inserted and on June 24, 1974 another adjustment was made to the dentures and reline impression was made in an attempt to get a tighter fit. The patient returned on June 26, 1974 for further adjustment and on July 6, 1976 the teeth were remade, in that a new set was fitted. On July 15, 20, and 22, 1976, further adjustments were made. During this time period when Mr. Lane would try to eat his food the dentures would flop around in his mouth and after repeated problems Mr. Lane was referred to Dr. Rupert O. Bliss, D.D.S., based upon a complaint that Mr. Lane had made to the Better Business Bureau. At that time, Dr. Bliss was acting as the chairman of the local dental grievence committee. Dr. Bliss saw Mr. Lane in August, 1974 and Dr. Bliss's observations revealed that the dentures were trimmed on the peripheries and that the dentures were thick in the paletal region of the upper denture, with the teeth in the lower dentures being set "buckley to the ridge", thereby lessening the stability of the dentures. On balance, the dentures were found to be ill fitting. After his examination of the patient, Dr. Bliss wrote Dr. Blustein on August 16, 1974 in his capacity as chairman of the local grievence committee. Dr. Blustein offered his reply to this letter through his answer of August 21, 1974. The contents of these letters may be found in pages 488 and 489 of the transcript of record in the hearing. Dr. Bliss had other observations to the effect that the dentures did not fit the tissue of the ridges, although he felt that Lane had adequate ridge tissue. Dr. Blustein felt that one of the problems with the fit of the dentures had to do with the liquidity of the saliva of the patient, Lane. Dr. Blustein observed that the saliva was not sufficiently sticky to allow a smooth insertion of the dentures and felt that the patient would always need to use some form of dental paste to achieve a satisfactory fit. After the contact between Dr. Bliss and Dr. Blustein, Mr. Lane returned to Dr. Blustein's office of September 13, 1974 for purposes of taking impressions for another set of dentures. On October 1, 1974, Dr. DePaul who was working in the office with Dr. Blustein took an impression on the patient, Lane, to see if he could make a more satisfactory adjustment. On October 5, 1974, Mr. Lane made his last visit to the office of Dr. Blustein at which time the new teeth were inserted and the patient was told to come back if he had further difficulty. The patient did not return to the office of Dr. Blustein. When the patient appeared at the hearing as a witness he was still utilizing the last set of dentures that had been prepared by Dr. Blustein. Between November 28, 1973 and June 13, 1974, Dr. Blustein saw the patient Sara Rees. Mrs. Rees came to see Dr. Blustein because her husband had been seen by the Respondent and because his estimate on the cost of doing needed dental work was satisfactory to her. When Mrs. Rees came to Dr. Blustein she had certain radiographs (X-rays) that had been taken by Dr. Charles Weaver, D.D.S. on November 6, 1973. These radiographs are Respondent's Exhibit #4, admitted into evidence. Dr. Blustein's initial examination revealed a high level of caries, soft teeth and problems with fillings that were falling out. Dr. Blustein crowned seven teeth using pins to place the caps, in which gold caps and cast pins were utilized. This work may be seen in Petitioner's Exhibit #8, admitted into evidence, which is a series of radiographs taken by Dr. Roy Clarke, D.D.S. As a part of that exhibit #8 attached is a radiograph showing the date of March 11, 1975 as taken by Dr. David M. Mizrahi, D.D.S., a specialist in endodontics. This crown work involved the upper right second molar, upper right first molar, upper right first bicuspid, upper left second molar, upper left first molar, lower first molar, lower right first molar, teeth. At the time Mrs. Rees was seeing Dr. Blustein, she had also been referred by her former dentist, Dr. Charles Weaver to see Dr. David M. Mizrahi, for purposes of having certain endodontic procedures, root canal work. While seeing Dr. Blustein, Dr. Mizrahi performed root canal work on two teeth, one of which was the upper right first bicuspid. Dr. Mizrahi had told Mrs. Rees that there was a 50 percent chance that she would need a root canal done on that tooth; nonetheless, she wanted the crown tried out first before having to have root canal work done. This tooth presented special problems for Dr. Blustein in that there was very little tooth left for the cast pin to set against. Dr. Blustein installed a crown on the subject tooth, but the root canal was subsequently necessary to be performed. Another root canal was performed on a third tooth of Mrs. Rees; however, this root canal work was done while the patient was seeing a Dr. Robert Williams, D.D.S. During the pendency of Mrs. Rees' treatment by Dr. Blustein she began to have problems with the crowns falling off, the initial occasion being while Dr. Blustein was trying out the temporaries and this temporary was reinserted by Dr. Watkins, D.D.S., a dentist at Jacksonville Beach, Florida. In March of 1974, the crown on the upper right first bicuspid fell off and was recemented by Dr. Blustein. A couple of months later this same crown fell out and was recemented by Dr. Robert Williams. Shortly, before seeing Dr. Robert Clarke in March or April, 1975, this same crown and another crown fell off. At a point in time when Mrs. Rees was seeing Dr. Mizrahi for the root canal work, she determined to see Dr. Roy F. Clarke, Jr. upon the basis of a referral which had been made by Dr. Mizrahi. To Dr. Clarke's recollection, this referral was made for treatment of a maxillary right second bicuspid tooth that was not being retained. Dr. Clarke worked on the upper right first bicuspid tooth spoken of before, by rebuilding the foundation and making a provisional crown. The case was then turned over to Dr. Robert Williams at the request of the patient. While treating Mrs. Rees, Dr. Clarke prepared the radiographs which are Petitioner's Exhibit #8, as mentioned before, and made a clinical examination. The clinical examination revealed advanced periodontal disease in the posterior teeth, in which the level of disease was between 6 and 7 millimeters in probe depth. There was bleeding and puss formation in the gum area with severe occlusion. The upper right first bicuspid tooth had a perforation in the side of the root below the gum line. There was a pin perforation in the outside of the lower left first molar. There was leakage around the crowns and recurrent caries, with generally poor margination. Specifically, there was poor margination in the upper left as shown by the letter B on Petitioner's Exhibit #8, and space left filled with cement closing off the possibility of the healthy gum tissue surviving. On the lower right hand side, as shown by the letter C in Petitioner's Exhibit #8, there were thick margins, irritated gum and bone. On the upper right, as shown by the letter D in Petitioner's Exhibit #8, there were thick margins on the distal of the upper right first molar, with cement closing off the area of that proximal space. The problems with the margins were causing problems of retention of the teeth. The crowns that were in place were felt to be of such quality as to need replacing, based upon Dr. Clarke's testimony. Respondent's Exhibit #5 is a copy of the office records kept by Dr. Roy F. Clarke, Jr., on the patient Sarah Rees. Bill Soforenko came to see Dr. Blustein about his dental problems and Dr. Blustein told Mr. Soforenko that he had periodontal disease. Dr. Blustein then sent Mr. Soforenko to see Dr. A. Robert Romans, D.D.S., specializing in periodontics. Dr. Romans saw Mr. Soforenko on January 11, 1974 and at the time of his examination found that the patient had several missing teeth, inflammatory periodontal disease and the need for extensive periodontal therapy and substantive restorative work. Discussion of these needs was entered into with Dr. Blustein by correspondence of January 28, 1974, from Dr. Romans to Dr. Blustein, a copy of this correspondence being Petitioner's Exhibit #2, admitted into evidence. In addition, Dr. Romans took certain oral radiographs and on February 5, 1974, discussed those teeth to be removed with Dr. Blustein, the preparation for periodontal treatment, the need for the replacement of temporary bridges, and other matters. Dr. Romans determined that the upper left incisor number 9, and the upper left first permanent molar, number 14, should be removed and an upper acrylic provisional splint placed in the entire upper arch to be used as temporary stabilization until the periodontal disease could be controlled and subsequent disease could be broken down, before allowing Dr. Blustein to make a final splint of porcelain to gold. Dr. Blustein installed a provisional splint and on July 10, 1974, Dr. Romans took out the splint and under local anesthesia performed subgingival curettage, after which the splint was replaced. Between July, 1974 and December 6, 1974 the remainder of periodontal treatment was performed including surgery and this was the last time the provisional splint was seen by Dr. Romans. The periodontal disease seen by Dr. Romans was generalized moderate to severe in a chronic state, identified as compound periodontitis which was caused by bacteria and bacteria by-products. The surgery performed by Dr. Romans was a full thickness mucoperiosteal entry, in which the upper arch was done August 6, 1974 and the lower arch was done on September 30, 1974.. The worst teeth of Mr. Soforenko had been removed prior to the surgery. After December 6, 1974, Dr. Romans referred Mr. Soforenko back to Dr. Blustein for the construction of the permanent splint device. When Dr. Blustein saw Mr. Soforenko, the temporary had started to decompose and Dr. Blustein placed the permanent splint device, as soon as possible, to achieve stability within the patient's mouth. At the time this was done, the patient's mouth was red and inflamed and the patient had not been doing home care to the knowledge of Dr. Blustein. Dr. Blustein anticipated that Mr. Soforenko would return to Dr. Romans for whatever attention was necessary to the gums of the patient, and made an appointment for Mr. Soforenko to return for a bite adjustment. On June 9, 1975 Mr. Soforenko was seen by Dr. Romans for evaluation of the restorative work and recall prophlaxis and polishing, together with oral hygiene instructions. At that point the permanent splint had been constructed and installed by Dr. Blustein, this splint being a 14 unit device with eleven crowns and three missing teeth. The teeth found in the splint are as shown in Petitioner's Exhibit #3, admitted into evidence, which is a letter written from Dr. Romans to Dr. Blustein discussing the quality of the splint. On that same date certain photographs were made of some of Mr. Soforenko's teeth in the splint, to include all those teeth in the splint except numbers 10, 11, and 13. These photographs are Petitioner's Exhibits #4 - #7, admitted into evidence. Petitioner's Exhibit #4 shows the upper eight anterior teeth and accompanying gingival unit as it pertains to the permanent porcelain fused-to-gold splint. The photographs depict quite severe marginal irritation and inflammation, the margins are rough, thereby harboring bacterial plaque and promoting an inability to clean the teeth properly. The margins are very thick in all the teeth in the splint and the depth of these margins is shown in Petitioner's Exhibits #5 - #7, which evidence a periodontal probe placed in the gingival sulcus. In Petitioner's Exhibit #5 the probe is placed in the margin of the upper central incisor, number 8, and the margin is approximately one millimeter thick. The probe being utilized in that photograph is a blunt instrument as opposed to a sharp explorer instrument. This probe is a University of Michigan no. 0, with William's markings. Petitioner's Exhibit #6 shows the upper right lateral incisor, number 7, with the periodontal probe in place. Petitioners Exhibit #7, shows the periodontal probe placed in the upper right cuspid, number 6. The margin in Petitioner's Exhibit #6 is between 1 millimeter and 1-1/2 millimeter in thickness, and the margin in Petitioner's Exhibit #7 is between 1/2 millimeter and a millimeter thick. All other teeth within the splint by Dr. Roman's observation had similar problems in margination, as shown in Petitioner's Exhibits #5 - #7. The photographs also show a redish serus fluid, which is an exudate, indicating the inflammation of the gums. Dr. Blustein did not see Mr. Soforenko after the June 9, 1975 visit to Dr. Romans and when Dr. Romans saw Mr. Soforenko on July 9, 1975, the condition of the splint was the same as found on June 9, 1975.
Recommendation It is recommended that license NO. 3716 to practice dentistry held by the Respondent, Richard Blustein D.D.S., with the Florida State Board of Dentistry be revoked for violation of Chapter 466, F.S. however, the said revocation should be withheld pending satisfactory completion of five years probation, during which time the Respondent must satisfactorily comply with all requirements of law pertaining to his profession as a dentist. DONE and ENTERED this 31st day of January, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Thompson Tygart, Jr., Esquire 609 Barnett Regency Tower Regency Square Jacksonville, Florida 32211 Albert Datz, Esquire 320 Southeast First Bank Building 231 East Forsyth Street Jacksonville, Florida 32202 State of Florida Department of Professional and Occupational Regulations Division of Professions Board of Dentistry c/o Mrs. Charlotte Mullens Executive Director 2009 Apalachee Parkway Suite 240 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION DIVISION OF PROFESSIONS, BOARD OF DENTISTRY FLORIDA STATE BOARD OF DENTISTRY, Petitioner, vs. CASE NO. 76-700 RICHARD BLUSTEIN, D.D.S., Respondent. /
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 =================================================================
