The Issue Should discipline be imposed against Respondent's license to practice dentistry for violation of Section 466.028(1)(x), Florida Statutes (2004)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with the regulation of the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 466, Florida Statutes. Respondent is Jenny Davenport, D.D.S. Respondent is a licensed dentist in the state of Florida, having been issued license DN 13321. Respondent's mailing address of record is 7955 Dawsons Creek Drive, Jacksonville, Florida 32222. On or about June 17, 2004, Patient L.E. presented to the Respondent complaining of pain associated with tooth number thirty-one. The Respondent performed a comprehensive examination, took an X-ray, removed existing intermediate restorative material, placed a cavit, prescribed an antibiotic and pain medication, and scheduled Patient L.E. for root canal treatment. The Respondent provided root canal treatment to Patient L.E. on or about June 28, 2004. Patient L.E. returned to the Respondent on or about July 6, 2004, for crown preparation of tooth number thirty-one, which the Respondent performed. On or about July 28, 2004, Patient L.E. presented to Respondent for seating of the final crown; however, the Respondent was dissatisfied with the permanent crown; therefore, she seated the crown with temporary cement and instructed the lab to fabricate a new permanent crown. On or about November 16, 2004, Patient L.E. presented to the Respondent for a prophylaxis and complained of pain in the lower right side of her mouth. Care and Treatment of Patient L.E.: The Patient's Recollection As established by the patient's testimony, when first seen by Respondent, Patient L.E. was not experiencing pain. When the patient returned for a visit it was determined that she needed to have a root canal performed on tooth number thirty- one. The procedure was performed. The patient was left with a temporary crown and an appointment made to have a permanent crown seated. Upon the next visit the permanent crown did not fit well. Respondent left the patient with a temporary solution. The patient returned in November 2004 for a cleaning, and she recalls, that at the time of the appointment, the crown on tooth number thirty-one had been set, as she refers to it, or seated. In November 2004 the patient was of the opinion that tooth number thirty-one had a permanent crown. At the November 2004 appointment the patient was experiencing sensitivity in tooth number thirty-one. However, before going to her November 16, 2004 appointment for cleaning, the patient had not complained of sensitivity in tooth number thirty-one. The nature of the sensitivity was a response to cold. She describes the nature of the discomfort as other than "really pain" [sic]. According to the patient, Respondent decided that tooth number thirty-one needed to be retreated. The patient was not certain why that was necessary. As the patient recounts the conversation, Respondent explained that she was going to retreat tooth number thirty-one because of the sensitivity, in particular that she was going to retreat the root canal. The patient returned on December 13, 2004, and the root canal on tooth number thirty-one was retreated. The patient has no recollection of an appointment being set for a later date. She realized that there was a necessity for a permanent crown to be "set again," referring to the need to seat a new permanent crown. The patient recalls Respondent's taking another permanent crown off before retreatment. When the patient left Respondent's office on that date, the area where treatment was performed felt numb. She left the office with the understanding that the treatment had been concluded, with the exception of the need to replace the crown. The patient assumed that the retreatment had been completed on December 13, 2004, but no one told her that specifically, to her recollection. Over time she began to experience pain that got worse with the passage of time. The pain that the patient was eventually experiencing was described by her as "absolutely unbearable." It was constant in nature, a "throbbing pain." The patient tried to contact Respondent's office several times. She explained to someone within the Respondent's office that the pain killer prescribed, Vicodin, was not working. The patient describes people answering the Respondent's office telephone but without providing an adequate response to her needs. The patient left messages with the front desk. She was advised to take Advil. Around the time that the patient was having problems with pain after the December 13, 2004 retreatment, she recalls having a conversation with Respondent on the telephone but not the specifics of their discussion. Patient L.E. contacted Dr. Reid Hines, a dentist in Pace, Florida, who had treated her before. That dentist saw her and addressed her problem by relieving the pain and redoing the root canal. When the patient saw Dr. Hines on December 16, 2004, he relieved her pain and then she returned to receive further treatment, as she recalls. Patient L.E. picked up a crown from Respondent's office, that she believed was necessary to be carried to her appointment with Dr. Hines. At the time she picked up the crown, she also obtained her patient records from Respondent's office. After that she did not return to Respondent's office. The patient remembers signing a form releasing the Respondent from providing future treatment and reminding the patient, that if the crown that she had picked up were to be destroyed, she would have to pay for another. The form referred to the fact that the treatment had not been completed. Respondent Explains the Treatment The Respondent attended the University of Puerto Rica for her undergraduate education. She attended dental school at Rutgers University and received her D.D.S. in 1992. Respondent is licensed to practice dentistry in New Jersey, as well as Florida. During her practice Respondent has performed as many as five-to-six root canals a week. Respondent recalls seeing Patient L.E. on April 29, 2004, for a consultation. The nature of the complaint was discomfort or sensitivity in the lower right side. The patient wanted a complete examination and X-rays. The patient was seen for prophylaxis (cleaning) on May 13, 2004. The patient returned on June 17, 2004. At that time preexisting intermediate restorative material was removed and temporary material was placed on tooth number thirty-one. The diagnosis was "hot tooth, hyper-sensitivity." This meant that the tooth, even under anesthesia had symptoms of either pain or temperature. The recommendation for future treatment was a root canal. On June 28, 2004, the root canal treatment was provided. The patient was anesthetized. A clamp and a rubber dam were placed prior to the provision of anesthesia. The tooth was opened up to allow access to the pulp. That section of the tooth was removed. Files were used to locate the root canals. An X-ray was taken to ascertain the extent to which the files had reached within the roots. The length(s) of the canal(s) was determined with the use of an apex locater. The tooth was irrigated. Using a series of files from the smallest, to wider files in width, the canals were flared from the top of the tooth to the apex of the tooth. A cone(s) was placed and another X- ray taken to confirm the measurements within the cone. Cones were placed at each canal with cement and laterally condensed by using heat. Then buildup material was used, a resin, to compensate for loss of tooth structure and enamel. In combination, the matter of determining the length of canals was associated with radiographic measurements with a file and by use of an apex locator. The starting point for this process is the coronal part of the tooth, the top portion. Each file has a rubber stopper on it to provide a guideline for measurement. The endpoint of the measurement is the apex. The calibration for measurement is in millimeters. These procedures were utilized by Respondent to treat Patient L.E. The measurements for Patient L.E. were the distal canal 15 millimeters; the mesial buccal canal 16 millimeters and the mesial lingual canal 16 millimeters. In looking at a postoperative X-ray to determine if the root canal treatment was adequate, Respondent looks at the length of the fill in proportion to the length of the root. She also looks at any radiolucency around the root. If found, this is an indication of infection around the tooth. Based upon what a textbook says, Respondent believes that fill material placed in a root canal that is 0.5 millimeters short of the apex would be considered acceptable. Looking at the X-ray depicting the postoperative condition after providing the endodonic treatment on June 28, 2004, Respondent expressed the opinion that the fill material in each root extended all the way to the radiographic apex. When referring to the apex of the root, she means by that the end of the root. In this context Respondent mentioned the overlap of two roots, in tooth number thirty-one. In reference to the June 28, 2004 postoperative X-ray, Respondent acknowledges that she can visualize where the roots end but the apex cannot be seen. The patient returned on July 6, 2004. Tooth number thirty-one was prepared for fabrication of a permanent crown. The impression was taken. A shade was selected and the impression then sent to the laboratory. The patient was left with a temporary crown. On July 28, 2004, the patient returned. Respondent was not satisfied with the fit of the permanent crown that had been fabricated. An impression was made to prepare a new permanent crown. In the interim this first permanent crown was used as a temporary. It was not permanently cemented. On November 16, 2004, Respondent saw the patient again. Prophylaxis, (cleaning) was done and two periapical X- rays were taken. Respondent reviewed the X-rays. The X-rays revealed the crown that was placed July 28, 2004 cemented with temporary cement and the root canal treatment that had been provided earlier on tooth number thirty-one were normal, according to Respondent. Based upon the patient's complaint Respondent had ordered the X-rays. Although the X-rays appeared normal, the patient was not satisfied, as Respondent recalls. Respondent gave the patient the option to retreat the root canal at no cost. This offer to retreat the root canal when the X-ray appeared normal was not a common practice by Respondent. On this date, explaining the patient's condition, the Respondent told her that the tooth was going to be sensitive for a time and she would have to await the outcome. The patient was not satisfied with that explanation and wanted something done about it, as Respondent contends. The only other choice was retreatment. The patient returned on December 13, 2004. At that time the crown was removed, one of the canals was opened and a retrieval of the material in the roots commenced. The work was not completed. What was left to be done, according to the patient record, was referred to as RCTIII, which Respondent explains means that the canals would be filled and sealed at another time. The reason for putting off the treatment was that Respondent was concerned with "the patient's state of mind, as far as she felt at the moment. She was not comfortable." This refers to the lack of comfort on the part of the patient. Respondent goes on to say "her body language indicated to me that she would not want me to proceed with what I was doing." There is no recollection by Respondent that the patient was asked if the patient preferred Respondent to proceed or not. Instead Respondent recalls "the anxiety" by appearance and lack of comfort by the patient. Respondent told the patient that she was not going to retrieve the root canal and that the next time (next visit), the goal would be to complete everything. Respondent is not clear on when the patient was to return for the balance of the treatment. Respondent did not anticipate that the patient would be relieved of symptoms following the December 13, 2004 appointment. More specifically, during the December 13, 2004 visit, after removing the crown, Respondent opened up the pulp area and started removing the gutta-percha from the mesial buccal and mesial lingual canals. After December 13, 2004, the intention was that at the next appointment, all the remaining gutta-percha would be retrieved and then the canals refilled. Respondent remembers speaking to the patient on the telephone at a time before the retrieval process began on December 13, 2004. What was said is not provided. Respondent prepared what she describes as a letter, to be signed by Patient L.E., that identified the status of care. That correspondence said: I L.E., have decided not to continue my current treatment with Dr. Jenny Davenport. I have declined to see Dr. Davenport regarding my treatment although she has advised me that my treatment has not been completed and she would like to complete the treatment. I hereby agree that any costs incurred in the completion of this treatment are my sole responsibility and I will not make Dr. Davenport responsible for these costs. I have agreed to complete the payment of the treatment with Dr. Davenport and take possession of my crown to complete treatment with the dentist of my choice. This disclaimer, which refers to the second permanent crown, was signed by Patient L.E. on January 20, 2005, when she retrieved the second crown and her patient records from Respondent's office. Office Staff Sonya Mikki Bates worked in Respondent's office while Patient L.E. was being treated. She remembers receiving a call from the patient saying that the patient was in excruciating pain. The witness does not recall what she did in response. Dr. Hines Dr. Hines, who took over Patient L.E.'s care, earned a bachelor's degree from the University of Mississippi in 1990. He later attended the University of Mississippi dental school earning a doctor's degree. He has been licensed to practice dentistry in Florida since 1994. He performs root canals on a daily basis. As mentioned, Dr. Hines had treated Patient L.E. prior to December 16, 2004. She had become his patient in June of 1998. For that reason, in his care and treatment of the patient, he was familiar with tooth number thirty-one before the patient was seen on December 16, 2004. When Dr. Hines saw Patient L.E. on December 16, 2004, it was on an emergency basis. The patient had pain and swelling and tooth number thirty-one was very mobile. The purpose of the care provided on that date was to try to address the patient's pain and allow the condition to heal to some extent. The patient had trismus in the jaw which prohibited her from being able to open her mouth completely. X-rays taken on that date revealed traces of gutta-percha or filling material inside tooth number thirty-one. There were limited areas that had been cleaned out in the tooth and others in which gutta-percha remained. Dr. Hines' impression was that retreatment of the tooth had been commenced. In the treatment provided that date, Dr. Hines removed a temporary crown that had been placed on the tooth. To address the pain, he gave the patient a dexamethasone injection, an anti-inflammatory steroid. He reduced the tooth out of occlusion. When Dr. Hines saw Patient L.E. on December 16, 2004, he did not observe anything in her condition related to tooth number thirty-one which he believed reflected a departure from the standard of care by Respondent in providing treatment before that date. In describing the patient's condition on December 16, 2004, Dr. Hines indicates that the patient more than likely had recurring infection in the tooth that would push the tooth out of the socket and make it occlude. Dr. Hines proceeded on the assumption that Respondent was trying to allow infection to be removed out of the tooth. But he did not have certain knowledge concerning Respondent's intensions. Dr. Hines had no discussion with Respondent concerning Patient L.E.'s care and treatment. Dr. Hines did not find it appropriate to fill tooth number thirty-one and replace the restoration on December 16, 2004. He did this later. In observing the X-rays he took on December 16, 2004, the remaining material in the root canals that he observed was found in the mesial buccal canal and possibly the mesial lingual canal. Dr. Hines proceeded with the patient on December 16, 2004, with the belief that the Respondent had begun the retreatment for tooth number thirty-one but did not finish because the patient was on Christmas break. By comparison to Respondent, when Dr. Hines does a root canal, to determine if the obturation is the right length, he looks for indications with a pulp tester, basically allowing him to establish the length of the canal internally. Verification is achieved by use of a radiograph. Once the root canal obturation is finished, the (postoperative) X-ray allows the determination of the length and density of the fill material. It would not be within the standard of care in Dr. Hines' opinion if the dentist failed to completely obturate and fill the canals of the tooth to the radiographic ends. Expert Opinion Harold John Haering, Jr., is licensed to practice dentistry in Florida, Kentucky and Tennessee. He received his training in dentistry at the University of Kentucky. He has practiced since 1982. He is a general dentist who provides endodontic treatment. He performs root canals. He has also had experience reviewing endodontic treatment performed by other dentists, by examining a patient's X-ray following a patient who has had a root canal. He was received as an expert in general dentistry with an emphasis, as a general dentist, on endodontics. In Dr. Haering's opinion the distinction between a tooth that can be treated without a root canal and one where a root canal is indicated, is a tooth that is exposed in the dentin where a filling will suffice, as contrasted with a tooth involving the pulp, as to the depth of decay or a fracture in apical tissues around the roots. In the latter circumstances a root canal is appropriate. In providing root canal treatment Dr. Haering places a rubber dam to isolate the tooth following the provision of anesthesia. Generally, a preoperative X-ray will be performed. That X-ray is to gain a measurement of the tooth as to its length. The coronal portion of the tooth is accessed with a burr down into the pulp to gain access to the canal. Patency with the apex of the tooth, the end of the root, must be established. This is done with a small file. A radiograph is used in that process or the dentist my use an apex locator or a combination of both. Once the apex has been identified, instrumentation proceeds to the apical foramen. This process involves the removal of pulp, bacteria, and decay while creating access to obturate the canal. To place the obturating material, a cone of material, gutta-percha is seated to a predetermined length. After this is accomplished a postoperative radiograph is used to evaluate the obturation. In trying to establish the correct length in the procedure, it is a matter of clinical judgment and for some clinicians the use of X-rays assists in determining the proper length. Observation of the obturation postoperatively reveals the density of fill. The standard that is acceptable, according to Dr. Haering, is to approximate 0.5 millimeters from the apex radiographically when considering the fill in the canal. Dr. Haering's opinion concerning the proper root canal obturation and the proximity to the apical foramen is one in which some U.S. schools accredited by the American Dental Association teach the measurement at approximately 1 millimeter as acceptable but most schools say that obturation should approximate 0.5 millimeters in relation to the apex. To confirm the outcome a postoperative X-ray is needed in Dr. Haering's opinion. The proper placement cannot be determined by tactile means, given the nature of the material that constitutes the fill and other material in the canal that are forms of constriction. In treating the tooth, separate and apart from the root canal work, is the need for restoration. The restoration is necessary but is a different procedure. According to Dr. Haering the proper standard for performing a root canal is that the fill is radiopaque, that is that it is without voids, that it follows the anatomy of the tooth and the root canal and that the obturation approximates the apical foramen, within 0.5 millimeters. A root canal that is poorly obturated can cause pain in the patient, in Dr. Haering's opinion. In the apex area there is no vascularization. If there is a void beneath the fill, above the apex, it is susceptible to a buildup in bacteria, pulp and debris. In this anaerobic condition, problems can occur. Depending on the patient's health status it can occur slowly or quickly, resulting in pain. In preparing himself to comment on Respondent's care and treatment provided Patient L.E., Dr. Haering looked at the patient's charts, Dr. Hines' records and other materials provided to the parties on the subject. Dr. Haering expressed the opinion that the Respondent violated the standard of care in the root canal performed on Patient L.E. on June 28, 2004, by not readdressing the root canal before proceeding with other work done on the patient that commenced July 6, 2004. Dr. Haering expressed the opinion that Respondent failed to completely obturate the canals on June 28, 2004. When a short fill occurs the obligation by the dentist is to take out that filling and refill it to the proper length, in Dr. Haering's opinion. In Dr. Haering's review of the X-ray taken by Respondent on June 28, 2004, when she performed the root canal on Patient L.E., he measured the fill with an instrument designed to address the length and by that process determined that it was 5 millimeters short of the apex. The calibration of the length of fill was done with use of a micro-ruler. This short fill created a void leading to necrotic breakdown byproducts in the canal that could affect the apical bone eventually. Based upon his review of the patient records, Dr. Haering was persuaded that a permanent crown was seated on the patient's tooth number thirty-one. In this belief he is wrong. When the patient returned on November 16, 2004, and the decision was made by Respondent to retreat tooth number thirty-one, that was not a decision criticized by Dr. Haering. In Dr. Haering's opinion, on December 13, 2004, when Respondent saw the patient, the treatment records and X-ray taken confirmed his expectation of an endodontic fill that was left short. When Dr. Hines saw the patient with a swollen condition and a mobile tooth on December 16, 2004, this indicated to Dr. Haering that the patient was getting infection from a canal that was not completely reinstrumented. Dr. Haering does not believe that Respondent met the standard of care on December 13, 2004. The patient had complained a month earlier about pain. To address the tooth, it must be taken out of occlusion. With a short fill in the root canal, the area will be susceptible to a buildup of bacteria and other noxious materials that needs to be reinstrumented. The reinstrumentation would be insufficient without reaching the apex and cleaning it out. It was not appropriate to obturate the canals on December 13, 2004, because they were not ready for that procedure. It would violate the standard of care to obturate the canals at that time, according to Dr. Haering. On December 13, 2004, Respondent failed to conclude reinstrumentation of the canals visible on the radiograph, leaving two of them with debris, according to Dr. Haering. In would be a violation of the standard of care in the treatment on December 13, 2004, if Respondent did not instrument the canals to the apex, to include areas where the canals had not been obturated, unless the patient was made aware that she might have a lot of problems and was provided Respondent's contact telephone number. If the canals were not fully reinstrumented that would not have gotten the patient out of pain in the treatment of December 13, 2004. In relation to the December 13, 2004 treatment, Respondent was obligated to remove the fill to offer any therapeutic value to the patient. In Dr. Haering's opinion the determination of the appropriateness of fill by length and density is the only proper method. Patient comfort at the moment, leaving the prospect of infection over time would not suffice. J. Geoffrey Weihe, D.D.S., has practiced general dentistry since 1968. He graduated from Emory University in that year. He is licensed in Florida. He was accepted as an expert in general dentistry, in the analysis of root canals and the performance of root canals. He performed root canals on a consistent basis between 1970 and 2002. At present he regularly reviews radiographs of endodontically treated teeth. He views the root canals and the radiographic evidence after the referral of the patients for endodontic treatment and their return for restorative work which he performs. In relation to the standard of care for providing root canal treatment, Dr. Weihe expressed the opinion that the tooth should be treated in a way that the organic material or the majority of the organic material down to the apical third of the tooth and including the proximity to the apex is removed. The canals are shaped and sterilized, an inert material is introduced that is not affordable to growth of bacteria. This process is to be done to the dentist's ability and to allow healing of the surrounding tissue, if necessary. The concept of "best of the dentist's ability" would vary from dentist to dentist, according to Dr. Weihe. Concerning the filling of the canals to the point of the apex, there would be variation in the judgment based upon the clinician. Dr. Weihe is aware of some literature suggesting fill to the apex, some within a half- millimeter of the apex, and some within two millimeters of the apex. In his opinion the fill could be several millimeters short of the apex and still be a successful fill. In determining the optimal apex fill and its attainment, Dr. Weihe stated that the optimal clinical success occurs with the lack of infection, lack of pain, and long-term use of the tooth, comfort to the patient over a long term, and the prospect of the availability of the tooth to use as an abutment for a crown, a bridge abutment or whatever is needed in restorative dentistry. Dr. Weihe believes that a radiograph is not the only available tool to evaluate the adequacy of a root canal. He indicated that the success of a root canal will tell with the passage of time. Circumstances that develop after the procedure, these considerations, in addition to the X-ray findings, enter into the determination of the adequacy of the root canal performed. Dr. Weihe agreed that the best way to determine where the optimal fill has been achieved in a root canal treatment is with a radiograph. Optimal length of the fill relates to the position of the apex of the canal that cannot be seen on an X- ray. An apex locator can be used as well. Files or reamers can be used to make these determinations on optimal fill while the patient is undergoing treatment. In his opinion an experienced operator, clinician, can sense the apex with his or her fingers with the file in hand. To arrive at his opinion concerning Respondent's care of Patient L.E., Dr. Weihe reviewed the charts and X-rays provided from Respondent, the charts and X-rays from Dr. Hines, the deposition of Dr. Haering, the deposition of Patient L.E., a deposition of Respondent and the in-hearing testimony of the Patient L.E. Based upon this information, Dr. Weihe believes that Respondent met the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance. This opinion applies to the treatment and care rendered by Respondent on June 28, 2004, and December 13, 2004, and any records and radiographs maintained by Respondent in treating Patient L.E. Based upon the postoperative radiograph from June 28, 2004, and the radiograph obtained on November 16, 2004, Dr. Weihe believes that the canals were appropriately filled in compliance with minimum standards of performance and diagnosis and treatment, when measured against generally prevailing peer performance in the treatment Respondent provided Patient L.E. Dr. Weihe believes it was appropriate for Respondent to retreat tooth number thirty-one in Patient L.E. Dr. Weihe's examination of the X-ray taken on December 16, 2004, by Dr. Hines, does not lead him to the conclusion that Respondent failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. Dr. Weihe does not believe that it was inappropriate to begin the instrumentation of the canals in treatment of Patient L.E. on December 13, 2004, and continuing that instrumentation at a later time. To do so would not violate performance standards in diagnosis and treatment measured against generally prevailing peer performance. In Dr. Weihe's opinion a poorly obturated canal can eventually result in pain. Having considered the expert opinion testimony by Drs. Haering and Weihe, in relation to the allegations in the Administrative Complaint, Dr. Haering's opinion is more compelling. It is accepted to the extent that he expressed the belief that Respondent had not met the minimum standards in performance and diagnosis and treatment measured against generally prevailing peer performance. In particular, his opinion that Respondent failed to completely obturate the canals in tooth number thirty-one on June 28, 2004, is persuasive, as is his opinion concerning the failures in the treatment provided on December 13, 2004. In addition, Dr. Haering's opinion that Respondent proceeded with the treatment of tooth number thirty- one on July 6, 2004, without retreating the inadequately filled root canal(s) is accepted. This determination is made in deference to the opinion that the fill in the root canal in length compared to the apex in tooth number thirty-one missed the acceptable approximation by a significant margin. A range of 0.5 millimeters to 1 millimeter would have been acceptable. A difference of 5 millimeters is not acceptable in the view of any witness. By contrast, Dr. Weihe's equivocal description of what would be acceptable, awaiting the outcome where the patient experienced difficulties, is unpersuasive. Finally, the remarks by Dr. Hines that he found nothing about the treatment performed by the Respondent that concerned him when he treated Patient L.E. on December 16, 2004, was premised upon certain assumptions about the arrangements between the patient and Respondent concerning additional treatment by the Respondent that were not established in the facts. Moreover, the emphasis placed by Dr. Hines was the more immediate concern for relieving the patient's symptoms, something Respondent had not done. Dr. Haering's viewpoint was based upon a more detailed assessment of Respondent's performance before the patient was seen by Dr. Hines on December 16, 2004. Records Keeping The Administrative Complaint accuses Respondent of failing to record that she had cemented the final crown or the date that it was cemented pertaining to tooth number thirty-one after the June 28, 2004 root canal had been performed and/or that Respondent failed to record what instrumentation took place, how much longer the canals were instrumented or what was removed when therapy was provided on December 13, 2004. It has not been found that the crown was cemented on tooth number thirty-one after the June 28, 2004 procedure. Records on that subject and the use of instrumentation, and how much longer the canals were instrumented, taken to mean, in relation to the length of the canals and what was removed during the therapy on December 13, 2004, is not meaningful.1/
Recommendation Based upon the findings of facts and the conclusions, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 466.028(1)(x), Florida Statutes (2004), issuing a letter of reprimand, imposing an administrative fine of $5,000.00, and requiring Respondent to undergo additional training pertaining to endodontic treatment of patients, to be completed within one year and restricting Respondent from providing endodontic treatment until that training has been completed. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2007.
Findings Of Fact At all times material hereto, Respondent has been licensed as a dentist in the State of Florida, having been issued license number DN 0009938. On August 14, 1989, patient L. F. was seen by the Respondent for dental treatment for the first time. She exercised an informed refusal of x-rays and requested only visual examination and cleaning. Respondent examined L. F., diagnosed her oral condition, and cleaned her teeth with a cavitron ultra-sonic cleaner which emits a continuous flow of water while in use. Some of this water sprayed onto L. F.'s face and clothing during treatment. Respondent then turned L. F. over to the care of his dental assistant Cheryl Toro, who polished L. F.'s teeth with a slow-speed hand-piece with a rubber cup and polishing material. Respondent informed patient L. F. that she would need a second dental cleaning for optimal dental health and noted the procedures performed that day on L. F.'s chart in his own handwriting. L. F. did not return for a second cleaning and did not keep the appointment which she had on October 9, 1989, to repair a broken filling. On October 10, 1989, L. F. was seen by Respondent complaining of hyperplasia between her upper two middle teeth. She demanded that Respondent refer her to a periodontist and that Respondent pay for her periodontal treatment. He refused. On December 14, 1989, L. F. contacted Respondent's office to find out the name of Respondent's dental assistant, advising that she was going to file a complaint against Respondent. She did file that complaint with Petitioner on December 27, 1989. Respondent has been practicing dentistry for 20 years, the last 7 of which have been in Florida. There have been no prior complaints filed against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him in this cause. RECOMMENDED this 25th day of July, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7811 Petitioner's proposed findings of fact numbered 1 and 2 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3, 5, and 6 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 4 and 7-9 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1, 9, and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed findings of fact numbered 2-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Max R. Price, Esquire Joel M. Berger, D.D.S., J.D. 1550 Madruga Avenue Suite 230 Coral Gables, Florida 33146 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is the appropriate penalty to be imposed upon Dr. Carroll for two admitted violations of the Dental Practice Act: (1) performing root canal treatment which was below acceptable standards, and (2) practicing beyond the scope of dentistry.
Findings Of Fact Findings Concerning Liability The following findings of fact are based upon the paragraphs or subparagraphs of the Administrative Complaint which Dr. Carroll admits: Inadequate Root Canal Therapy Dr. Carroll treated Sylvia Lankheim. He performed root canal therapy on Ms. Lankheim's lower left second bicuspid (tooth #20) and provided a post and crown for the tooth. Dr. Carroll's endodontic treatment and post and crown restoration of tooth #20 were inadequate, and subsequently failed. Practicing Beyond the Scope of Dentistry Dr. Carroll neither admits nor denies the following allegations found in the Administrative Complaint, but agrees that they make out a prima facie case for the charge of practicing beyond the scope of dentistry: On or about October 31, 1983, Dr. Carroll made a presentation at a local condominium association concerning the purported hazards of mercury poisoning resulting from amalgam restorations in teeth. His presentation included films, testimonies by two former patients, and paraphernalia used to test for mercury toxicity. As the result of this presentation, Ms. Sylvia Lankheim scheduled an appointment with him on about November 3, 1983. When Dr. Carroll saw Ms. Lankheim on November 3, he took full mouth x-rays and made an impression of her teeth for study models. On or about November 8, 1983, Dr. Carroll's dental assistant conducted a Mercury Patch Test on Ms. Lankheim to determine her sensitivity to mercury. The test involves placing a solution of mercury chloride on a band- aid, placing the band-aid on the forearm, removing the band-aid 24 hours later and interpreting the patient's dermatological response to the test. Use of a patch test to determine an allergic response or sensitivity to mercury is not within the scope of the practice of dentistry as defined in Section 466.003, Florida Statutes (1985). The patch test used by Dr. Carroll to determine an allergic response or sensitivity to mercury is not reliable and its use is unproven. Based upon these facts, Dr. Carroll has agreed he is guilty of the charge of practicing beyond the scope of dentistry, in violation of Section 466.028(1)(z), Florida Statutes (1985), as alleged in paragraph 13(d) of the Administrative Complaint. Findings Pertaining to Penalty Penalty guidelines have been adopted by the Board of Dentistry in Rule 21G-13.005, Florida Administrative Code. The penalty for incompetence in the practice of dentistry is prescribed under Rule 21G-13.005(2)(bb) as follows: Being guilty of incompetence. The usual action of the Board shall be to impose a period of probation, restriction of practice, suspension and/or revocation. The usual penalty for practicing beyond the scope of dentistry is stated in Rule 21G-13.005(2)(dd) as follows: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform. The usual action of the Board is to impose a period of probation, restriction of practice, and/or suspension. The Board may deviate from these penalties in an individual case based upon the following aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses or number of patients involved; The length of time since the violation; The number of times the licensee has been previously disciplined by the Board; The length of time the licensee has practiced; The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage; The deterrent effect of the penalty imposed; The effect of the penalty upon the licensee's livelihood; Any efforts of rehabilitation by the licensee; The actual knowledge of the licensee pertaining to the violation; Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation; Related violations against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served; Penalties imposed for related offenses... Rule 21G-13.005(4)(a)-(n), Florida Administrative Code. Dr. Carroll relies on a number of recent cases decided by the Board of Dentistry to argue that the appropriate penalty in this case is a fine of no more than $1,000, and a requirement that he attend 20 to 25 hours of additional training in endodontics in addition to the continuing education required of dentists to maintain their licensure. He maintains that no probation is necessary, as rehabilitation or as punishment. In the case of Board of Dentistry v. Norman A. Fenichel, reported at 10 FALR 6745 (Board of Dentistry, 1988) the Board imposed an administrative fine of $1,500 and placed the dentist on probation for two years, with a requirement that he attend 36 hours of continuing education in crown and bridge work, 36 hours in endodontics and 12 hours in the laws and rules relating to the practice of dentistry or ethics. The penalty was based upon findings made after a formal hearing that the dentist had performed inadequate root canal therapy, and that after the patient had stopped payment on the check for that dental work due to pain and the improper seating of the crown. Fenichel had failed to forward her file to a subsequent treating dentist. Dr. Carroll also relies on other discipline cases of the Board of Dentistry to support the penalty he advocates, where there were stipulated dispositions in somewhat similar circumstances. The case of Board of Dentistry v. Daniel B. Baldridge, DPR Case 0066648 (Board of Dentistry 1987) involved a charge of a feeble attempt to perform endodontic therapy on tooth #3. The stipulated disposition was a fine of $1,000, a reprimand, and probation far one year during which Dr. Baldridge was required to complete 20 hours of continuing education in endodontics. No portion of the Baldridge stipulation included an agreement that Baldridge was guilty of any violation, which is a significant difference from the present case. In the case of Board of Dentistry v. Vance Bishop, Case 0068343 (Board of Dentistry 1988), Dr. Bishop neither admitted nor denied the allegations of an Administrative Complaint which charged that he had provided incomplete endodontic filling of a tooth on which he placed a crown and that two other crowns were poorly done. A fine of $1,500 was imposed, Dr. Bishop was reprimanded, placed on probation for a year and required to complete 15 hours of continuing education in endodontics and another 15 hours in the area of crown and bridge work, endodontics and another 15 hours in the area of crown and bridge work. In the case of Board of Dentistry v. David Murrin, Board of Dentistry Case 0066593 (Board of Dentistry 1988), Dr. Murrin entered into a stipulation without admitting any of the facts in the Administrative Complaint. According toe the complaint, Murrin had performed a root canal and installed a crown on a mandibular left first molar (tooth #19), but subsequent examination showed that the root canal procedure had never been concluded because there was only partial removal of pulp tissue from the tooth, and no filling material had been used. His records failed to show any therapy had been attempted. Murrin was charged with making untrue representations in the practice of dentistry in violation of 466.028(1)(l), Florida Statutes; malpractice, in violation of 466.028(1)(y), Florida Statutes; exploiting a patient for financial gain in violation of 466.028(1)(m), Florida Statutes; and fraud and deceit in the practice of dentistry, in violation of Section 466.028(1)(u), Florida Statutes. According to the stipulation he paid administrative costs of $1,000, and received a reprimand but no period of probation. In the case of Board of Dentistry v. Frederick Newton, Board of Dentistry Case 0070984 (Board of Dentistry 1988), Dr. Newton entered into a settlement stipulation in which he admitted the allegations of fact contained in the Administrative Complaint (with a small correction of those facts). According to the admitted facts, Dr. Newton provided root canal therapy on tooth #3 and amalgam restorations on teeth #3, 14, 19 and 30. The root canal therapy on tooth #3 was inadequately filled and sealed, Johnson did not record on the patient's chart the use of a rubber dam, did not record the canal length of tooth #3, chart the measurements for the endodontic files he used, or take a post-operative x-ray showing the completed root canal therapy. He was therefore charged with malpractice in violation of Section 466.028(1)(y), Florida Statutes, and failing to keep records justifying the course of treatment in violation of section 466.028(1)(m), Florida Statutes. The Board's final order imposed an administrative fine of $1,500, reprimanded him and placed him on probation for a period of twelve months, in which time he was required to complete 20 hours of endodontic continuing education and one course in recordkeeping.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final order be entered by the Board of Dentistry finding Dr. Carroll guilty of violation of Sections 466.028(1)(y), Florida Statutes (1985) and 466.028(1)(z), Florida Statutes (1985), that an administrative fine in the amount of $1,500 be imposed, that he be reprimanded, and that his license be placed on probation for a period of one year, during which he shall complete 25 hours of continuing education in endodontics in addition to any other education required to keep his licensure current. DONE and ORDERED this 9th day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William Buckhalt, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399 =================================================================
The Issue The issues to be resolved in this proceedings concern whether the Petitioner is entitled to receive a passing score on the December 1999 dental licensure examination.
Findings Of Fact The Petitioner, Carlo Coiana, was an unsuccessful candidate for the December 1999 dental licensure examination. He failed to pass several procedures of that licensure examination, according to the Department's graders and grading method. The December 1999 dental licensure examination consisted of two parts: (1) The clinical, and (2) The laws and rules section. The clinical portion consists of nine different procedures of which the Petitioner challenged six. The Department, in is scoring method, selects three examiners to grade each candidate's performance. The average of the three scores from each examiner, produces the overall grade for that procedure. Rather than having only one examiner score, the Department allows for three examiner scores because this provides a more fair, reliable indication of the candidate's competency and true score. Each examiner must be a licensed dentist for a minimum of five years and have no complaints or negative actions on his or her licensure record. Each examiner must also attend and successfully complete a standardization session which trains each examiner to use the same internal grading criteria. The examiners who graded the Petitioner's examination successfully completed the standardization session and training. During the administration of the dental examination the Department requires the use of monitors who are also licensed dentists. The monitor's role is to preserve and secure the integrity of the examination. The monitor also gives instructions to each candidate as to what to expect. The monitor has no part in the grading of the candidate's performance on the examination but acts as a messenger between the candidate and the examiner since there is a "double-blind" grading of the examination. The Petitioner contested the score he received on the Class II Composite Restoration on a model. The Class II Composite Restoration Portion of the examination is a procedure involving restoring a cavity (Class II) preparation with a tooth-colored filling. The procedure was done by the Petitioner with a comment by the examiners that there was a discrepancy in the resulting shape of the tooth and proper contact to the adjacent tooth. There was also a marginal discrepancy and a "gingival overhang." The margin is where the tooth and filling meet and there was a discrepancy felt there, a bump or a catch when the junction of the two surfaces should be smooth. A gingival overhang is in the area between the tooth where a non- smooth transition between the filling and the tooth is detected. This can be a damning area which will collect plaque and lead to re-current decay. The Respondent's expert, Dr. John Joffre, concurred with the overall findings of the examiners and felt that this procedure should not be accorded a passing score but rather the score accorded by the examiners. The Petitioner also contested the score for procedure number four of the examination, the Endodontic procedure. The Endodontic procedure of the examination is referred to as a "root canal." This procedure involves removal of the nerve and blood vessels inside a tooth in order to clean out that area. It then requires the shaping of the canal and, finally, filling it with an inert material to rid the body of the infected area in question. This procedure is performed on an extracted tooth. The minimum of the working length the Department required in order to receive a passing score for the filled material in the tooth in question was two millimeters. The Petitioner's expert had the working length of the filled area in the root canal or Endodontic procedure done by the Petitioner measured. It measured closer to three millimeters which is totally unacceptable according to Dr. Joffre. Even in accordance with the literature that the Petitioner relied upon in this case it is not provided that three millimeters short of the working length is an accepted working length, which is why the Petitioner received less than a passing score. All three examiners and the expert witness Dr. John Joffre were in agreement about this scoring. Three millimeters short of the required working length will cause the procedure to definitely fail sometime in the future and renders the procedure useless. An Endodontically treated tooth that is three millimeters short will fail clinically, and that justifies a failing grade on this procedure. The next procedure contested by the Petitioner as to score was the Amalgam Restoration done with a model. This procedure is similar to the Class II Composite Restoration. However, the difference between the two procedures is that the Amalgam is referred to as a silver filling containing mercury, silver, etc., as opposed to the Composite material in the above- referenced procedure which is a "tooth-colored" restoration. Although the Composite and the Amalgam serve the same function, they require different tasks and different procedures on how they are to be handled in their installation in the mouth. The major problem found with the Petitioner's performance on this procedure concerned an overhang. As referenced above, a gingival overhang at the margin of where the filling and the tooth meet results in a less than smooth transition and can be an area where food accumulates and decay can start anew. All three examiners also noted a problem with the proximal contour of the Amalgam restoration which has to do with the shape of the filling in terms of how it meets the tooth next to it. The testimony of Dr. Joffre, which is accepted, shows that the examiners comments and grades and Dr. Joffre's opinion itself justifies the scoring on this procedure. Dr. Joffre agrees with the examiners' scoring. The last procedures in question are called the "Patient Amalgam." These procedures, two and three, involve cutting of the tooth before the filling is actually placed into it ("cutting the box"). Procedure three is the actual filling, involving scoring what the filling is like after the filling procedure is completed. The criticism found by both examiner 304 and 346, as to the first part of the procedure, the cutting part, was ". . .did not break the gingival contact, subject to recurrent decay." The gingival contact down in the box cut for the filling must be cut deep enough to reach the point where there is a separation between the edge of the box and the adjacent tooth. Halfway down the tooth, towards the gum, the teeth are still touching. As one progresses further down toward the gum, the teeth separate because they naturally get narrower toward the gum line. A dentist needs to cut the box that the filling should be placed in down far enough toward the gum line so that he gets to the point where the teeth are no longer touching. Both dentists 306 and 346, examiners, found that he did not cut the box low enough so that he "didn't break gingival floor contact with the molar" (meaning the adjacent tooth). Thus, these examiners gave the Petitioner the lowest grade of "one" on that part of the procedure. The filling or restoration portion of the procedure failed. The filling was not adequately carved or shaped so that it was protruding too high above the adjacent tooth surfaces. This caused the patient to break the filling very shortly after it was finished and he was biting downward and putting pressure on it. Indeed it broke while the third examiner was examining the procedure. The reason why the fracture in the filling occurred was because it protruded too high. The Petitioner did not adequately reduce the size or height of the filling, so when the teeth came together the tooth below it or above it was hitting too hard against that one spot and caused the metal to break before the patient, on whom the procedure was done, ever left the building. The Respondent's expert, Dr. Joffre, who agreed with examiners comments and score, found that the Petitioner had failed to properly perform these procedures and that his score had been appropriately arrived at by the examiners. The Petitioner contested the score he received on the Fixed Partial Denture Procedure. The Department ultimately conceded that he should be awarded additional points on that procedure, however, even with the additional points awarded the Petitioner still failed to score adequately on the overall examination for passage, although he came close, with a score of 2.92 out of a minimal score of 3.00 required for passage of the examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition challenging to the grades assigned the Petitioner for the December 1999 Dental Licensure Examination and finding that the Petitioner failed to pass that examination. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Carlo Coiana N1 Via Delle Coccinelle Cagliari, Italy 09134 Cherry A. Shaw, Esquire Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Petitioner earned a passing grade on the clinical portion of the June, 1986 dental examination?
Findings Of Fact The Petitioner is a licensed dentist in the State of Louisiana. Her business address is 1006 Surrey Street, Lafayette, LA. The Petitioner attended Boston University and received a Bachelor of Arts degree in 1973. The Petitioner attended MaHerry Medical College and received a dental degree in 1978. The Petitioner received post-graduate training in dentistry during a residency at Sidham Hospital and received a Post-Graduate Certificate from Sidham Hospital in 1979. The Petitioner has taken approximately 200 hours of post-graduate courses in endodontics. From 1979 until 1982, the Petitioner practiced dentistry in the Bronx, New York. In 1982 the Petitioner relocated her practice to Louisiana. The Petitioner has passed the Northeast Regional Boards and the Louisiana State Board Exam. She is licensed to practice in approximately 20 states in the northeast United States and in Louisiana. The Petitioner has been an applicant for licensure in dentistry in the State of Florida. The Petitioner took the June, 1986 Dental Examination. The Petitioner was notified that she had been awarded an overall score for the clinical portion of the examination of 2.88. A score of 3.00 is the minimum passing score for the clinical portion of the examination. The Petitioner timely requested a review of her grade, filed objections and timely requested a formal administrative hearing. The procedures tested during the examination and the Petitioner's scores for the procedures are as follows: Amalgam Cavity Prep 2.33 Amalgam Final Restoration 2.66 Denture 2.87 Periodontal 3.66 Posterior Endodontics 2.66 Anterior Endodontics 2.00 Cast Class II Only Prep 3.00 Cast Class II Wax-Up 3.33 Pin Amalgam Prep 3.00 Pin Amalgam Final 2.00 Each procedure was graded by 3 different examiners. Each examiner graded a procedure independently. One of the following grades was assigned to each procedure by each examiner: - Complete failure; - Unacceptable Dental Procedure; - Below Minimal Acceptable Dental Procedure; - Minimally Acceptable Dental Procedure; - Better than Minimally Acceptable Dental Procedure; - Outstanding Dental Procedure. The procedures were graded in a holistic manner. A failing grade must include a "comment" justifying the grade of the examiner's grade sheets. The three examiners' grades for a procedure were averaged to determine the score for the procedure. The procedure scores were then individually weighted and the weighted scores were added to provide an overall clinical grade. This overall clinical grade must be at least 3.00 to constitute a passing grade. Examiners are experienced Florida dentists selected by the Board of Dentistry. They must have at least 5 years of experience as a dentist. Potential examiners attended a standardization course. The standardization course consisted of 8 to 12 hours of training, including a review of the criteria by which each procedure is required by rule to be judged. Some of the dentists who took part in the standardization exercise were designated as examiners and some were designated as monitors. Monitors were present during the examination with the candidates. They were instructed not to assist candidates during the examination. Subsequent to receiving notice that she had not received a passing grade on the June, 1986 examination, the Petitioner challenged the correctness of the scores she received on procedures 1, 2, 5, 6, 9 and 10. After receiving notice that her license application was being denied because the Petitioner did not receive a passing grade on the clinical portion of the June, 1986 dental examination, the Petitioner attended a review session with Dr. Simkin on September 10, 1986. The session was scheduled to last for 30 minutes. The session actually lasted longer than that. The session was recorded with a tape recorder. At the conclusion of the session the tape recorder was turned off. The discussion continued after the tape recorder was turned off, however. In total, the session and the continued discussion lasted for approximately 45 to 50 minutes. Procedure 1 Procedure 1 is an "Amalgam Cavity Preparation." It involves preparation of a tooth for a filling. This procedure is performed on an actual patient as opposed to a model tooth. The three examiners who graded the Petitioner's performance on procedure 1 awarded the Petitioner the following scores and made the following comments: Examiner 136 3 Outline form & unsupported enamel Examiner 129 2 Unsupported enamel Examiner 83 2 Outline form & depth prep. The primary problem with the tooth the Petitioner performed procedure 1 on and the reason for the failing grades of two of the graders was the failure of the Petitioner to insure that the amalgam base or floor was in dentin and not enamel. Whether the base or floor of the preparation is dentin can be determined by the color, dullness or feel of the dentin. It cannot be determined by x-rays. If an amalgam filling rests on enamel instead of dentin, the filling may be more sensitive to the patient, the enamel can crack and/or the filling may also crack. When the cracking of the enamel or filling may occur cannot be predicted. The Petitioner testified that the depth of the preparation was sufficient and has argued that such a finding is supported by notes which were exchanged between a monitor and the examiners. Petitioner's reliance on the notes which were passed between the monitor and examiners is misplaced. The first note was a note from the Petitioner to the examiners noting conditions she wanted the examiners to be aware of which were unrelated to whether the preparation was into the dentin. The monitor did not "approve" what the Petitioner wrote in her note; the monitor merely noted that the Petitioner had written the note. The other note was a note from one of the examiners to the Petitioner. That note indicated that the Petitioner needed to "lower pulpal floor into dentin." This note is consistent with the examiners' findings. If the note had been followed by the Petitioner and the pulpal floor had been lowered, the patient would have been protected from a potential hazard consistent with the Board's duty to protect patients being used in examinations. When the monitor instructed the Petitioner to "proceed" the monitor was not actually telling the Petitioner what steps she should take or showing any agreement or disagreement with the examiner's note. No regrade of procedure 1 is possible because the procedure was performed on a patient. If the grades the Petitioner received for this procedure had been improper, the Petitioner would have to take this portion of the test over. There is not justification for allowing the Petitioner to take procedure 1 over. The grades the Petitioner received were justified by the comments of the examiners and the difference in the grades of the 3 examiners is insignificant. Procedure 2 Procedure 2 is an "Amalgam Final Restoration." This procedure involves the filling of the tooth prepared in procedure 1 and the shaping of the surface of the filling to the natural surface of the tooth. The three examiners who graded the Petitioner's performance on procedure 2 awarded the following scores and made the following comments: Examiner 138 2 Functional anatomy, proximal contour & gingival overhang Examiner 150 3 Functional anatomy Examiner 48 3 Functional anatomy & margin Although gingival overhang can often be detected with x-rays, it is not always possible to detect with x-rays. In light of the score of 2 given by the examiner which noted "gingival overhang" as one of the examiner's comments, the overhang was probably very slight. It is therefore not unusual that the other two examiners did not note the existence of an overhang. Additionally, a slight gingival overhang could also be noted as "margin." Therefore, it is possible that examiner 48 noted the same problem with the tooth when the comment "margin" was marked that examiner 138 noted when examiner 138 marked the comment "gingival overhang." This procedure was performed on a patient and therefore could not be reviewed. The comments given by the examiners, however, are sufficient to justify the grades given, especially the failing grade. The grades the Petitioner received on procedure 2 were justified by the comments of the examiners and there was no discrepancy in the grades awarded sufficient to order a re-examination of this procedure. No regrade is possible or warranted. Procedure 5 Procedure 5 is a "Posterior Endodontics." This procedure involved the preparation of a molar tooth for a root canal. The procedure is performed on a model tooth and not on the tooth of a patient. The three examiners who graded the Petitioner's performance on procedure 5 awarded the following scores and made the following comments: Examiner 133 3 Overextension Examiner 129 3 Outline form & overextension Examiner 153 2 Outline form, underextension & pulp horns removed Over extension and outline form can indicate the same problem. According to Dr. Simkin, "As soon as you have pulp horns, you have underextension and the outline form is improper ..." It is not inconsistent for examiners to determine that a tooth has an overextension and an underextension. Both conditions can occur on the same tooth as a result of the same procedure. The tooth procedure 5 was performed on by the Petitioner did in fact have an overextension, as even Dr. Webber and Dr. Morrison, witnesses of the Petitioner, agreed. The tooth procedure 5 was performed on by the Petitioner also had pulp horns an underextension. The Petitioner's performance on procedure 5 was not graded according to an outdated technique. The Petitioner's testimony that she was looking for a possible fourth canal is rejected the area of over extension was too large and it was in the wrong area to be justified by a search for a fourth canal. The evidence also failed to prove that any of the examiners graded the Petitioner's performance on procedure 5 according to an outdated technique or that they did not take into account the need to search for a fourth canal. The grades the Petitioner received on procedure 5 were justified by the comments of the examiners and there was no significant discrepancy in the grades they awarded. Their comments and grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 6 Procedure 6 is an "Anterior Endodontics. " This procedure involves the preparation of an anterior, or front, tooth for a root canal. It is performed on a model tooth and not on the tooth of the patient. The three examiners who graded the Petitioner's performance on procedure 6 awarded the following scores and made the following comments: Examiner 153 2 Outlining form, underextension, & pulp horns removed Examiner 129 2 Outline form - too far incisally did not remove entire roof of chamber Examiner 133 2 Outline form & gouges The tooth that the Petitioner performed procedure 6 on has pulp horns (underextension), is overextended (bevelling of the entrance too severely) and has gouges. The grades the Petitioner received on procedure 6 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and the grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 9 Procedure 9 is a "Pin Amalgam Prep." This procedure involves preparation of an ivory model tooth for restoration. The tooth includes an area of damage or decay which is so extensive that a large portion of the tooth must be removed and the amalgam filling must be supported with a pin. The examiners who graded the Petitioner's performance on procedure 9 awarded the following scores and made the following comments: Examiner 153 3 Outlining form & pin placement Examiner 109 3 Retention form & unsupported enamel Examiner 133 3 Outline form & pin placement Although the Petitioner received a passing grade from all 3 examiners, she contended that she was entitled to a higher score of 4. The grades the Petitioner received on Procedure 9 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and grades were Supported by review of the model tooth. No regrade or change in score is justified. Procedure 10 Procedure 10 is a "Pin Amalgam Final." This procedure is the final step of the procedure begun in procedure 9. A different model tooth, one already prepared, is used for this procedure. The three examiners who graded the Petitioner's performance on procedure 10 awarded the following scores and made the following comments: Examiner 153 2 Proximal contour & margin Examiner 129 2 Functional anatomy & proximal contour Examiner 133 2 Functional anatomy & proximal contour Proximal contour involves the shape of the amalgam - it should follow the natural contour of the tooth. In this case, the tooth used by the Petitioner had a ledge area, where food can be trapped, and a slight overhang. Margin is where the filling meets the tooth. It should be smooth and it was not on the Petitioner's tooth. Functional anatomy primarily involves the occlusal portion of the tooth. The Petitioner failed to build up the lingual cusp, which was the cusp that had been removed. The grades the Petitioner received on Procedure 9 were justified by the comments of the graders and there was no discrepancy in the grades they awarded or their comments. The comments and grades were supported by review of the model tooth. No regrade or change in score is justified.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the clinical portion of the June, 1986, dental examination was a failing grade. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer 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 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4838 The parties have timely filed proposed recommended orders containing proposed findings of fact. It has been noted below which proposed finding of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioners Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-7. 4 and 7. This proposed finding of fact is generally irrelevant. The issue in this proceeding is whether the Petitioner successfully passed an examination. It is accepted, however, to the extent that it is relevant as to the weight which should be given to the Petitioner's testimony. The first two sentences are accepted in 9, 11 and 12 except to the extent that the proposed findings of fact pertain to the December, 1985 examination. The last sentence is rejected as irrelevant. The time for challenging the results of the December, 1985 examination had passed at the time of this proceeding and the Petitioner did not attempt to amend its Petition until the formal hearing had commenced. 5 12 and 14. 6 13-15. 7 10. 8-9 These proposed "findings of fact" are statements of issues or argument and not findings of fact. To the extent that any finding of fact is suggested, it is not Supported by the weight of the evidence. 10 12 and 19. This proposed finding of fact is irrelevant. See the discussion of proposed finding of fact 3, supra. 20. The Petitioner's score of 2.88 was not an "alleged" score and more than 30 minutes of the review session was recorded. 13-15 Irrelevant, unnecessary or not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant or not supported by the weight of the evidence. 18-20 Not supported by the weight of the evidence. Irrelevant. The first 3 sentences are accepted in 21 and 22. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant. 25. The monitor did not indicate agreement with the Petitioner's note. The monitor did take the note and the patient to where an examiner looked at the patient and an examiner did give a note to the monitor. See 25. The rest of the proposed fact is not supported by the weight of the evidence. 26 22. Not supported by the weight of the evidence. The first sentence is accepted in 25. The rest of the proposed fact is not supported by the weight of the evidence. Not supported by the weight of the evidence. 30 27. Not supported by the weight of the evidence. The first 3 sentences are hereby accepted. The rest of the proposed fact is not supported by the weight of the evidence. 29 and 30. The last sentence is irrelevant. 34-35 Not supported by the weight of the evidence. The first sentence is accepted in 33. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant and too broad. The first sentence is accepted in 34. The fourth and fifth sentences are accepted in 35. The rest of the proposed facts are not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. The first two sentences are accepted in 40 and 41. The rest of the proposed fact is not supported by the weight of the evidence. 42 44. 43 The first sentence is accepted in 45. The rest of the proposed fact is not supported by the weight of the evidence. 44 48. 45 The first sentence is accepted in 49. The rest of the proposed fact is not supported by the weight of the evidence. 46-47 Not supported by the weight of the evidence or irrelevant. Respondent's Proposed Findings of Fact 1 8-11. 2 12. 3 13 and 16-17. 4 18. 5-8 Hereby accepted. 9 13-14. 10 15. 11 19. 12-14 Unnecessary. Irrelevant. Argument. 15 21. 16 22. 17-19 Summary Of testimony. See 23-28. 20 29. 21 30. 22-25 Summary of testimony. See 31-33. 26 34. 27 35-36. 28-29 35. 30 Summary of testimony. See 36-39. 31 40. 32 41. 33-34 Summary of testimony. See 42-43. 35 44. 36 45. 37 Summary Of testimony. See 46-47. 38 48. 39 49. 40 Summary of testimony. See 50-53. 41-43 Unnecessary. Argument as to the weight of the evidence. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida. 0750 Rex D. Ware, Esquire Fuller & Johnson, P.A. Ill North Calhoun Street Tallahassee, Florida 32302 =================================================================
The Issue The issue for consideration in this case is whether Respondent's license as a dentist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was the state agency in Florida responsible for the licensing of dentists and the regulation of the dental profession in this state. Respondent, Dr. Sandra L. Jaudon, was licensed as a dentist in Florida having been issued license number DN 0007871. AS TO COUNT ONE: In January 1985, Dr. Jaudon, practicing in Brandon, Florida, examined 15 year old T. E., then a resident of a foster home, under a Medicaid program in effect at that time. Though Respondent denies she was told of any pain by either T. E. or the foster mother, T. E. claims she was experiencing pain in her two front teeth and her foster mother had brought her in. Weighing the evidence and its relative probabilities, it is found that most likely T. E. was experiencing pain at this time and communicated this fact to the Respondent. Dr. Jaudon had the foster parent fill out a complete medical history form and sign a consent form, and she also mailed a questionnaire to the child's physician. Respondent performed a complete examination, including x-rays on that first visit and did a cleaning and fluoride treatment. She also found T. E. had a few cavities, and, from the x-rays, concluded that she needed root canal work on two teeth. One of the teeth in issue was tooth number 8. Respondent informed the foster parent of this fact and, as a precaution, prescribed an antibiotic for tooth number 8, based on the x-ray. On the basis of the uncontroverted evidence of record, there is no evidence to indicate Dr. Jaudon's diagnostic was not proper, and it is found that it met the minimum standard for diagnosis. On the second visit, on January 21, 1985, Dr. Jaudon filled several teeth and noted swelling over tooth number 8. Because of this, she postponed the root canal treatment until the swelling went down because of the possibility of spreading infection, but prescribed further antibiotics for the existing infection. When the patient returned on February 1, 1985, Dr. Jaudon opened tooth number 8 and drained the infection, after which she sealed the tooth with a temporary closure. She also repeated the dose of antibiotics. Respondent contends that the prevailing standard at the time dictated that a tooth undergoing root canal therapy should be sealed between appointments. Both Petitioner's dentist witnesses concurred with this suggestion, and it is so found. When T. E. came into the office on February 8, 1985, Dr. Jaudon placed a filling on tooth number 8 to establish a stable reference for continuing root canal therapy. Dr. Jaudon claims that neither T. E. nor her foster mother indicated the girl had experienced any pain during the previous week. T. E. disagrees, claiming she was still in pain and told the Respondent so. No doubt she did. No further work was done, however, until a visit on April 10, 1985, when Dr. Jaudon reopened the tooth and cleaned it out. She then resealed it with a temporary filling, and again, the records fail to reflect any complaint of pain. Finally, on May 31, 1985, Dr. Jaudon reopened the tooth, re-treated it, inserted a cotton pellet, and sealed it with a temporary cover. On August 5, 1985, T. E. saw Respondent again. At that visit, Respondent did an examination, took x-rays, and cleaned her teeth. Nothing out of the ordinary was noted, and notwithstanding T. El's claim of constant pain, the chart entries of the dental technician who performed the cleaning fail to reflect that T. E. complained of any pain since her last treatment on May 31, 1985. When Dr. Jaudon checked the condition of tooth number 8, she noted signs of new decay. T. E. recalls that while Respondent was doing the root canal procedure, someone came into the treatment room and said that Medicaid would not pay any more. T. E. recalls that after that comment, Respondent ceased work on her. Dr. Jaudon claims she did not work on this patient further because she was not brought to the office. It is so found. Nonetheless, at that time of the last visit, T. E. had a swollen lip and was still experiencing pain. T. El's foster mother later telephoned Respondent who indicated those symptoms were normal. However, when the symptoms persisted for several days, the foster mother called the Department of Health and Rehabilitative Services, under whose aegis, she was serving as a foster parent, but there is no indication what happened. On August 14, 1985, T. E. was seen at home by Dr. Charles Kekich, a dentist who was working with the Medicaid fraud investigative team which was looking into the billing records of Dr. Jaudon, among others. At the time of this examination, T. E. was still in pain and experiencing difficulties with her teeth. Dr. Kekich examined T. E. on two or three separate occasions, but after this first examination, which was done in T. El's home, he referred her to the Health Department and she was then seen by Dr. W. Edward Gonzalez, a pediatric dentist in practice in Brandon who also specialized in Medicaid patients. Dr. Gonzalez, who has in the past served as chairman of the Florida Board of Dentistry, saw T. E. in his office on September 24, 1985. At that time, she was still complaining about severe pain in and around tooth number 8. The doctor x- rayed that tooth and opened it. When he did so, he found a plug of intermediate restorative material extending half way down the root canal. At the time of the examination, the tooth was mobile and was painful as the result of a build up of pressure and fluid, an indication of infection. The gum tissue in the area of the tooth was red and inflamed. He did not request T. E.ts xrays from Respondent, as is customary to avoid a duplication of radiography. Dr. Gonzalez removed the intermediate restorative material from the root. When the material was removed, Dr. Gonzalez determined that the tooth canal still contained necrotic pulp tissue which should not have been there. This was not proper work. The accepted procedure for performing a root canal consists of cleaning and sterilizing the entire tooth canal, removing all debris and tissue from the inner portion of the tooth, medicating the tooth and cementing a plastic filling into the canal. The accepted standard of care in root canal therapy relied upon by the Board of Dentistry calls for the filling material not to extend beyond the apex of the tooth. During his examination of T. El's tooth number 8, he found that the intermediate restorative material extended 3 or 4 millimeters beyond the apex of the tooth. This was inappropriate. After he had thoroughly cleansed the inner portion of the canal and rinsed it out, Dr. Gonzalez placed a pellet of forma creosol into the tooth and sealed it, sterilizing the inner portion of the canal. This relieved the patient of pain and constituted a permanent fix of the problem. The course of treatment performed by Dr. Gonzalez lasted over a period of approximately 13 months, ending in late October 1986. Dr. Gonzalez opined that Respondent's treatment of this patient was below standard for several reasons. Among these was her failure to complete the procedure, and her application of a substance in the tooth which extended well beyond the apex. T. El's records relating to tooth number 8 were also reviewed by Dr. Thomas Floyd, a Florida licensed pediatric dentist since 1978 and expert in the field of pediatric dentistry. He was also formerly the Florida Dental Association's liaison to the state Medicaid program for several years. According to Dr. Floyd, a root canal is commenced by cleaning the canal with finger files or root canal files to remove all tissue within the canal. Dr. Jaudon's records relating to her root canal procedure on tooth number 8 on T. E. did not reflect the root canal was filed out or that any filling materials were placed in it. If the root chamber is not properly cleaned, and material is left inside, it can become necrotic and lead to infection. This is what happened in this case. In Dr. Floyd's opinion, the temporary filling done by Dr. Jaudon in this case was inadequate and done in a grossly negligent manner. He found the filling occluded two-thirds of the root canal space. The infection which resulted caused T. E. to be maintained on antibiotics for an unnecessarily long period of time. Proper practice dictates the dentist will refer the patient to a specialist when it appears bacteria cannot be controlled over an extended period of time. In this case, Respondent's dental records for the patient reflect she was given antibiotics on January 7, January 21, February 1 and May 31, 1985, but they do not indicate why the antibiotics were prescribed after the initial dose. The records also fail to reflect whether the patient experienced any swelling, inflammation or infection in the area involved. Respondent's records for this patient do reflect, however, that she began to treat tooth number 8 on February 1, 1985, and the last entry in the records was made on May 31, 1985. There is no indication in her records why the root canal treatment was not completed. An entry dated April 10, 1985 states, "we are waiting for P.A.# to continue work." This may indicate that Respondent stopped work on this patient pending further payment authorization by Medicaid, as T. E. contends, though Respondent denies this. Based on the evidence outlined above, it is most likely that T. E. and her foster parent were not satisfied with the lack of pain relief the patient was getting from Dr. Jaudon's treatment. When, as a part of the Medicaid audit being performed by Dr. Kekich, it was suggested T. E. be seen by Dr. Gonzalez, this was done, and she did not return to Respondent for any further treatment. The records further show that on February 8, 1985, Respondent placed a permanent restoration on the mesial, buccal, lingual and incisal surfaces of tooth number 8. Placing a permanent filling in the area of a root canal which still contains necrotic or infectious debris is inappropriate practice as infection is likely to result. Ordinarily, permanent restorations are not placed on a tooth undergoing root canal treatment until the root canal has been completed. Records indicate that after placing the permanent restoration on tooth number 8, Respondent re-opened the tooth twice by drilling through the permanent restoration placed there in February 1985. Based on the above matters, both Dr. Gonzalez and Dr. Floyd concluded that Dr. Jaudon's treatment on tooth number 8 in T. El's mouth during the period between January and May 1985 failed to meet the minimum standard of performance in diagnosis and treatment. Notwithstanding Respondent's disagreement, it is so found. AS TO COUNT II Respondent does not dispute she pleaded nolo contendere in Circuit Court to 25 counts of Medicaid fraud. As a result of her plea, on November 19, 1986 she was placed on probation for one year on Counts 5 - 10 and 25 - 28, and one year consecutive for Counts 30 - 31. Beyond the routine conditions of probation, she was ordered to pay $238.00 in court costs; $952.00 in restitution to the Department of Health and Rehabilitative Services and $5,000 in prosecution costs to the Auditor of the Medicaid Department. Early termination of probation after one year was authorized. In matters relating to discipline of a dental license, a plea of nolo contendere, by statute, creates a rebuttable presumption of guilt to the underlying criminal charges. Respondent strenuously rejects any claim that she was guilty of any fraud involving Medicaid payments. According to Andrea Chilton, a senior investigator with the Agency's Medicaid Fraud Unit, the case against Respondent was generated based on a review of her billings due to a high percentage of three-surface restorations. At the beginning of the inquiry, Ms. Chilton secured a computer print-out of Respondent's billings and payments and selected a sample of them, relating to thirteen individual patients, for audit. The Agency retained Dr. Kekich, a public health dentist whose activities for the past several years, almost exclusively have consisted of dental patient evaluations to determine evidence of Medicaid fraud, to examine patient records and to compare those records to his independent examination of the patients' mouths. In conjunction with Miss. Chilton, Dr. Kekich examined all thirteen patients and their records and, having found discrepancies, then looked at an additional fifteen patients and their records, and also found discrepancies. Dr. Kekich, along with Special Agent Marcia Connell, who had been trained by Dr. Kekich to record dental procedures and fillings accurately, examined the first thirteen patients on August 14, 1985. Using an artificial light and a tongue blade, Dr. Kekcih looked into the patient's mouth and then called out by tooth number whether there was a filling present and if there was, what surfaces had been treated. If a tooth was missing he would call that out, or if a tooth had no fillings he would call that out as well. This examination procedure revealed a number of fillings for which Medicaid had been billed but which could not be found in the mouths of several patients. Medicaid reimbursed dentists on the basis of the surfaces restored. If there were more than one filling on a particular surface, only the designation of the surface was recorded, not the number of restorations per surface. This is the procedure followed during Dr. Kekich's examination of Respondent's patients. After the first examination, the Medicaid office requested Dr. Kekich reexamine the patients and note each restoration. There were changes in the count. For example, during the first examination of T. E., Dr. Kekich noted that the occlusal surface of tooth number 14 had been restored. During the reexamination conducted on May 15, 1986, approximately nine months later, T. El's mouth showed two restorations on the occlusal surface of tooth number 14. Respondent's records regarding T. E. reflect that on February 18, 1985, Respondent billed for a three-surface restoration on tooth 14. The records also reflect that the same day, she billed for a three surface restoration of tooth number 15 when the two examinations by Dr. Kekich revealed only one surface had been restored. By the same token, on March 1, 1985, she billed for a three surface restoration or both teeth numbers 30 and 31, but the examinations reveal only one restoration on each tooth. Ms. Chilton interviewed Respondent and asked her to explain those discrepancies and her procedure for treating Medicaid patients and her billing practices to EDS, the Medicaid billing agent. Dr. Jaudon was unable to clearly explain what had happened, claiming merely that she "didn't pay attention to their codes or their things I should have known ...," but the difference may be explained by the method used by Dr. Kekich to record procedures done. Based on this interview and the examinations of patients and records, Ms. Chilton found discrepancies on twenty- seven of twenty-eight cases totaling $952.00 for services billed but allegedly not rendered Notwithstanding her plea, Respondent has consistently maintained her innocence of any Medicaid fraud. Over the years of her practice, she claims she has treated literally thousands of Medicaid patients and has never been the subject of any complaint regarding their treatment. In the instant case, Respondent was selected for audit because of the relatively high number of three surface restorations for which she billed. She claims, however, that in all her billings she had followed the acceptable standards of the American Dental Association for tooth notation and billing codes. In addition, she asserts she has always utilized Medicaid prior authorization forms when requesting permission for treatment on patients. The instructions on those forms calls for the use of the ADA system, and where appropriate, she would also include x-rays to facilitate the decision. Dr. Jaudon questions the propriety of the examinations done by Dr. Kekich and his qualifications to evaluate her performance. She notes that he admitted to using only a light and a tongue blade to perform the examination. It should be noted, however, that he was merely looking at surface restorations and not doing a clinical examination. As to Kekich's qualifications, he is a licensed dentist, and though he has not been in dental practice for many years, having served as an agency consultant and examiner, possesses adequate technical credentials to perform the minimal surface examinations he did here. By the same token, the fact that he has been an agency employee for many years does not necessarily mean, as claimed by Respondent, that he was not familiar with the methods for charting certain types of fillings as prescribed by the ADA. However, it was shown that on two different patients, surface restorations that Dr. Kekich said were missing were, in fact, present. n Of all Respondent's procedure billings, including examinations, x-rays, white fillings, crowns, and extractions, only silver amalgam fillings were questioned. Respondent asserted that of all the dental procedures performed on patients, the silver filling is the type that generates differences in opinion as to surfaces. Different dentists can look at a silver filling and interpret it as one, or more than one, surface. When Dr. Kekich, at the request of the agency, reexamined some of the Respondent's patients he had previously examined, the results differed as to the identical teeth, even though no work on those teeth had been done in the interim. It was determined that on his first examinations, Dr. Kekich had made no distinction between O and OL fillings as is suggested by the ADA. These two fillings are different. Respondent pointed out that O+OL is the proper way to notate this filling, and this was the way she had done it in her Medicaid authorization requests and billings without objection by the agency. Though Petitioner indicated at hearing that a manual alleged to be in existence in 1985 prohibited reimbursement for O+OL fillings, the manual was not presented and Dr. Kekich, when questioned at deposition, could not recall in what years a manual addressing this issue existed. Respondent contends, and it appears to be a reasonable assertion, that if Medicaid had had such a policy prohibiting that type of filling at the time, her requests for prior authorization would not have been approved. A third examination of Respondent's patients in issue was conducted in May 1986 by a different dentist who was not called to testify at the hearing. The records of these examinations were not, in all cases, consistent with records of the prior two. Respondent claims, and Dr. Kekich agrees, that subjective interpretation and opinion can account for what a particular dentist calls a two or three surface filling, and that different examiners could identify a class 2 filling as either a two surface or a three surface filling. Respondent does not deny that she pleaded nolo contendere to the misdemeanor charges. The grand theft charges were dismissed. She pleaded as she did for several reasons. She had been approached by several parents of the patients involved who asked if there was some way in which the examinations could be brought to an end because of the stress being occasioned to the children as a result of the repeated examinations. She also had substantial concerns about the effect the investigation was having on her family. There were financial concerns as well. She had expended considerable sums in attorney fees and costs up to this point and had been advised by her attorney that the cost of going to trial to contest the charges would be an additional $30,000. Her attorney advised her to plead nolo contendere because, he asserted, such a plea was not an admission of guilt. Respondent has been licensed as a dentist in Florida since 1978 and has no prior disciplinary record. Both dentists, from whose offices she practiced, Drs. Wayman D. Price and Michael 0. Abdoney, would send her patients and, from time to time, see her patients. Neither has received or heard of any complaints from her patients or their own patients regarding her treatment. She continued to treat Medicaid patients throughout the investigation to no cost to insure they received proper care and to ward off any issue of patient abandonment. Any money received from Medicaid during the investigation was placed by Respondent into escrow. She has cooperated with the investigation and in no way unreasonably caused the delay in coming to hearing. Because of financial considerations, she has, from time to time, had to proceed without counsel, and was not represented at this hearing, her counsel having withdrawn shortly before the hearing. Though in 1987 she withdrew from practice out of deference to her patients and because of the large amount of time needed to devote to the defense of the matters alleged here, Respondent has continued to take all and more than is required of continuing education courses in an effort to keep current with developments in her field. She has met all the conditions of her probation and it was successfully terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order dismissing so much of Count I of the Administrative Complaint as alleges Respondent is guilty of diagnosis below standard, but finding her guilty of treatment below standard in the root canal treatment of T.E. It is further recommended that Count II of the Administrative Complaint be dismissed. It is further recommended that Respondent's license be reprimanded and placed on probation for a period of six months. DONE and ENTERED this 19th day of May, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1997. COPIES FURNISHED: Natalie Duguid Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sandra L. Jaudon, D. M. D., pro se Post Office Box 2023 Brandon, Florida 33599-2023 William Buckhalt, Executive Director Agency for Health Care Administration Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Whether or not on or before January 7, 1978, the Respondent, James P. Haas, was offering to practice dentistry, and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center, in violation of Sections 466.24(3)(n) and 466.36, Florida Statutes. Whether or not on or before January 7, 1978, the Respondent, James P. Haas, maintained a telephone listing whereby he offered to practice dentistry as D.A.D. Denture Center at 101 Palm Springs Drive, Longwood, Florida, and whether or not he continues to maintain said listing, in violation of Sections 466.24(3)(g) and 466.27(5), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, one Bernie Morlock has been employed by the Respondent, James P. Haas, to perform dental services at a time when the said Bernie Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida. Further, whether or not Bernie Morlock, while employed by the Respondent, practiced dentistry as defined in Section 466.04, Florida Statutes, to the extent of: Taking impressions of the human teeth and jaws. Placing dentures and dental appliances in patients' mouths and adjusting or attempting to adjust same. Diagnosing or professing to diagnose the physical condition of the teeth and jaws of patients. Finally, whether or not the Respondent knowingly allowed the practice of dentistry by Bernie Morlock in violation of Section 466.02, Florida Statutes, and in further violation of Section 466.24(3)(d) and (e), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, the Respondent, James P. Haas, has employed unlicensed personnel to perform dental services for patients, to-wit: orthodontic treatment, which services constitute the practice of dentistry under Section 466.04, Florida Statutes. Further, whether or not if these services were performed by unlicensed persons, were they performed with the full knowledge and consent of the Respondent, thereby constituting a violation on the part of the Respondent of Sections 466.24(3)(d) and (e), Florida Statutes. (The Amended Accusation which charges the Respondent contained a certain Count III; however, no testimony was offered in support of that allegation and at the conclusion of the formal hearing, the Petitioner, through its counsel, voluntarily withdrew that count from consideration. This voluntary dismissal was unopposed by the Respondent.)
Findings Of Fact The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Division of Professions, Board of Dentistry, is an agency of the state created for the purposes of protecting the public health, safety and welfare of the citizens of the State of Florida, to the extent that practice of dentistry in the state and dental hygiene are subject to the regulation and control of the Petitioner in the public interest. The authority for such regulation is set forth in Chapter 466, Florida Statutes, and those rules of the Florida Administrative Code related thereto. The Respondent, James P. Haas, is licensed by the Florida State Board of Dentistry to practice dentistry in the State of Florida. The Petitioner, by an Amended Accusation, has charged the Respondent, James P. Haas, with various violations of provisions of Chapter 466, Florida Statutes, and the Respondent has requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, which request has been granted and a hearing held on February 15 and 16, 1979. The first of the allegations states that on or before January 7, 1978, the Respondent was offering to practice dentistry and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center. The facts reveal that Dr. Haas made an arrangement with an organization known as Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky, wherein he agreed to coordinate the placement of advertisements for the benefit of that corporation and in turn the corporation agreed to refer patients to Dr. Haas for his treatment. The advertising spoken of consisted of an ad in the Winter Park, Florida, telephone directory yellow pages and certain newspaper advertising through the Orlando Sentinel of Orlando, Florida. The advertising in the telephone directory was placed in the fall of 1977 and a copy of that yellow page advertising may be found as Petitioner's Exhibit No. 2 admitted into evidence. The Petitioner's Exhibit No. 1 admitted into evidence contains a copy of the format for the telephone yellow page advertising, as contemplated by Dr. Haas through his agreement with Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky. The listing of the telephone number was of the number in Harredsberg, Kentucky, and those individuals at that number in turn made the referrals to Dr. Haas's office located at 101 Palm Springs Drive, Longwood, Florida. An example of the newspaper advertising may be found in the Petitioner's Exhibit No. 3 admitted into evidence at page 161-I, a copy of the Sentinal Star Progress Edition of December 18, 1977. In that advertising the same number is given as indicated in the aforementioned telephone telephone ad, with the difference being that Delivering Affordable Dentistry, Inc., is given as the trade name as opposed to D.A.D. Denture Center, which was found in the telephone advertisement. Dr. Haas maintained a separate checking account for D.A.D. Denture Center, the name of his affiliation with Delivering Affordable Dentistry, Inc. The payments for services made by those patients referred through the D.A.D. Denture Center process, were placed into the D.A.D. Denture Center operating account of Dr. Haas. Those persons authorized to make withdrawals from that account were Dr. Haas and his employee, Bernie Morlock, and checks were drawn from that account under the authority of Dr. Haas. The overall income and expanses of D.A.D. Denture Center, operated by Dr. Haas, and of his general practice in the name of James P. Haas-sole proprietor, were combined and were under the control and authority of Dr. Haas. The dental office located in Longwood, Florida, was identified as the office of James P. Haas, D.D.S., and also by a placard indicating the office to be a D.A.D. Denture Center. Finally, those patients who called for service under D.A.D. Denture Center were charged by different fee structure and were listed in a separate appointment book, than that appointment hook for the Respondent through his general practice, James P. Haas, D.D.S. The Respondent was knowledgeable of the arrangement to treat patients under the assumed name of D.A.D. Denture Center at the address in Longwood, Florida, and in fact practiced dentistry under that assumed name and at that location as alleged in Count I of the Amended Accusation. This constituted a violation of Section 466.36, Florida Statutes, which states: "Practicing dentistry under assumed name; penalties.-- On and after the passage of this chapter, it shall be unlawful for any person or persons to practice or offer to practice dentistry under any name except his or her own proper name, which shall be the name used in his or her license certificate granted to him or her as a dentist as provided in this chapter, and unlawful to use the name of any company, association, corporation, clinic, trade name, or business name in connection with the practice of dentistry as defined in this chapter, provided, nothing herein contained shall be so construed as to prevent two or more licensed dentists from associating to- gether for the practice of dentistry, each in his or her own proper name. The violation of any of the provisions of this section by any dentist shall subject such dentist to suspen- sion or revocation of his or her license." The advertisement placed in the Winter Park, Florida, telephone directory, which is sham as Petitioner's Exhibit No. 2 admitted into evidence, was placed with the knowledge of the Respondent and with the intention by the Respondent that the advertisement be made. This advertisement pertained to the 1978 telephone directory for Winter Park, Florida. Under these facts, the Petitioner has charged the Respondent with a violation of Section 466.27(5), Florida Statutes. That provision reads: "466.27(5) Telephone listings shall be con- fined to the local telephone directories. Such listings shall be limited to the den- tist's name, dental degree, 'D.D.S.' or 'D.M.D.,' using the abbreviation only, the word 'dentist,' 'dentistry,' or 'general dentistry,' any specialty as approved by the board to which the dentist confines his practice exclusively, office location, resi- dence and office telephone numbers, and residence address and may include his member- ship in a local dental society if in accord with local customs." A review of the language of this section, in view of the fact that the advertising in the telephone directory inured to the benefit of the Respondent by the process of the referral system spoken of above, demonstrates that the telephone listing was for the benefit of Dr. Haas and was not in keeping with the requirements of this subsection. This constituted advertising professional services and the practice of dentistry in a manner not expressly authorized by Chapter 466, Florida Statutes, and was therefore in violation of Section 466.24(3)(g), Florida Statutes. One of the employees of the Respondent who worked in the office at 101 Palm Springs Drive, Longwood, Florida, was Bernie Morlock. Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida at any time relevant to the allegations in the Amended Accusation. Nonetheless, Morlock practiced dentistry as defined by Section 466.04, Florida Statutes, and did so in the office of the Respondent in Longwood, Florida, with the knowledge and consent of the Respondent. The arrangement which was condoned by the Respondent allowed for Morlock to have patients scheduled for him for the purpose of the preparation of dentures through the referral system, D.A.D. Denture Center, which was part of Dr. Haas's Longwood, Florida, office. (An example of the written schedules may be found in the Petitioner's Exhibit No. 5 admitted into evidence.) Dr. Haas had instructed that these patients be scheduled to be seen by Bernie Morlock. Some of these patients were being seen by Dr. Haas's office for the first time and were attended by Bernie Morlock from this initial visit to the conclusion of the case, at which time the patients were given their dentures. Morlock's involvement with patients included diagnosis of the physical condition of the teeth and jaws of the patients; taking impressions of patients' teeth, both algenate and working model impressions; the placement of dentures and other dental appliances in the patients' mouths and the adjustment to those dentures and dental appliances, and the discussion of the case with the patient. Most of the work that Morlock did was done at a time when Dr. Haas was not in attendance in the aforementioned office and was done without supervision from any licensed dentist. This process undertaxen by Bernie Morlock happened on numerous occasions. The patients were considered to be Morlock's patients and the patients only saw licensed dentists for the purpose of extracting teeth or other dental procedures unconnected with the fabrication and try-in and adjustment to the dentures. These actions on the part of Bernie Morlock took place during the time period alleged in Count IV of the Amended Accusation. By allowing Bernie Morlock to attend patients in the fashion that Morlock did, the Respondent was willfully negligent in the practice of dentistry within the moaning of Section 466.24(3)(d), Florida Statutes, and in addition was guilty of a violation of Section 466.24(e), Florida Statutes, which states: "Employing or permitting any unlicensed per- son or persons to perform any work in his office which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter." During the period of time alleged in Count V of the Amended Accusation, the Respondent employed dental hygienists Vic Simmons and Mary Simmons at his office in Longwood, Florida. Although they wore dental hygienists, these individuals were not licensed to practice dentistry or dental hygiene within the State of Florida. Notwithstanding this absence of a license, the Simmonses practiced dentistry in the Longwood office within the meaning of Section 466.04, Florida Statutes. This included having certain schedules set for them as indicated by Petitioner's Exhibit No. 5 admitted into evidence. This is an example of the schedule for the Simmonses under the title, "Ortho". This scheduling was with the knowledge of Dr. Haas, who had arranged for the Simmonses to come and treat orthodontic patients in his office. The Simmonses came to the location of the Respondent's office two days a month, of which Dr. Haas was in the Longwood office one of those days. These orthodontic patients would be seen initially by Dr. Haas and then treated for their condition by the Simmonses. Some of the patients first seen by the Simmonses arrived at the office without any form of braces in the mouth of the patient. The procedures that the Simmonses then performed were done without supervision by a licensed dentist. By that it is meant that the Simmonses were performing the dental services without the licensed dentist being in the room. The Simmonses, in the pursuit of orthodontic dental practice, placed bands and changed beads, cemented hands and placed arch wires; all with the knowledge and consent of the Respondent. Under the circumstances involved in the employment of the Simmonses, it has been demonstrated that the Respondent is guilty of willful negligence in the practice of dentistry as prescribed in Section 466.24(3)(d), Florida Statutes. The Respondent is also guilty of a violation of Section 466.24(3)(e), Florida Statutes, in that he employed and permitted unlicensed persons to perform work in his office which would constitute the practice of dentistry. The proposed findings of fact, conclusions of law and recommendation offered by the parties have been revied prior to the rendition of this Recommended Order. To the extent that the proposals conform to the findings herein, they have been utilized in developing the Recommended Order. To the extent that the proposals are inconsistent with the findings herein, they are rejected.
The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.
Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998.
