Findings Of Fact At all times relevant hereto Respondent was licensed as a dentist by Petitioner. During the period between September 1978 and March 1979 Marcia Girouard was a patient of Respondent. Following consultation on September 15, 1978, Respondent and Ms. Girouard agreed that she would have three crowns and upper and lower partial dentures installed. The dentures were priced at $300 for the lower, $500 for the upper precision partial and the crowns were $200 each. Respondent installed two crowns for Ms. Girouard and made her lower and upper partial dentures. The bill for these services was $1200. While the temporary crown was on tooth 11 it came off a few times and was recemented by Respondent. When the precision partial was installed the permanent crown was in place. Ms. Girouard had no posterior teeth aft of the two number 3 teeth on the lower jaw and teeth 6 and 11 and the upper jaw (Exhibit 5). Accordingly, the upper partial plate was anchored to tooth 11. In view of the lack of teeth to which to anchor the upper partial denture, Respondent, after discussing it with Ms. Girouard, made precision partial dentures for the upper jaw. Tooth 11 was ground down and fitted with a crown to which the female part of the precision partial was attached. When the precision partial was completed and the crown installed Respondent put the upper precision partial in place and adjusted it. Shortly after the upper precision partial gas installed Ms. Girouard complained of pain in tooth 11 and Respondent performed root canal therapy on this tooth. As is customary with root canal therapy a temporary closure was made of the cavity drilled and filled where the root had been removed. From the time this root canal work was done on February 1, 1979, until Ms. Girouard's last visit to Respondent's office on March 12, 1979, Ms. Girouard continued to complain about some sensitivity in tooth 11. When the lower and upper partials were seated on December 14 and 27, 1978, Ms. Girouard was instructed in removing and reinstalling these dentures. The lower partial was attached by clasps and never presented any problem to Ms. Girouard. How- ever, the upper precision partial did present serious problems in that while at home Ms. Girouard had great difficulty and little success in removing this upper precision partial. During the period between the initial seating of the upper precision partial on December 27, 1978, Exhibit 5 indicates Ms. Girouard was in Respondent's office on January 24, 1979,to have the crown on tooth 11 reseated; on February 1, 1979, for root canal; on February 8 for reseating partial; on February 9 for recementing crown; and on February 15 for an impression to convert the upper precision partial to conventional clasps. On March 12, 1979, Ms. Girouard made her last visit to Respondent's office and on this occasion she had her teeth cleaned. A subsequent appointment some two weeks later Was cancelled by Ms. Girouard as she was unsatisfied with the dentures she had received from Respondent. When the precision upper partial was converted to clasps Ms. Girouard was able to remove the denture but it did not fit as snugly as had the precision partial. Ms. Girouard's testimony that Respondent had difficulty installing and removing the upper precision partial from Ms. Girouard's mouth and that on several occasions he had to resort to the use of a dental tool to remove the denture was contradicted by Respondent and several assistants who worked in the office during the period Ms. Girouard was a patient. Respondent acknowledged that when the upper precision partial was first installed it did fit tight and he may have resorted to a dental tool to remove it the first time but that after making standard and routine adjustments he had no further difficulty removing this partial. Several witnesses observed Ms. Girouard insert and remove the precision partial in the dental office and confirmed her testimony that she complained about being unable to remove the precision partial at home. Because of her inability to remove this precision partial Respondent replaced the male connectors on the precision partial with clasps so the partial could be removed by Ms. Girouard. The female connection was left on the crown in case Ms. Girouard subsequently went back to the precision connection. At the time of Ms. Girouard's last visit to Respondent's office on March 12, 1979, she was complaining about the looseness of the upper partial and the root canal hole had not been permanently sealed. Respondent intended to permanently seal this tooth after the pain stopped and further treatment of this tooth would be unnecessary. Believing that she had been treated unfairly by Respondent Ms. Girouard in April 1979, contacted an attorney to institute a malpractice action against Respondent. This attorney sent her to Dr. Steve Hager for a dental examination. On April 25, 1979, when examined by Dr. Hager, Ms. Girouard had both upper and lower partials in her mouth. Hager's examination indicated no evidence that the work performed on Ms. Girouard by Respondent was below acceptable community standards or that anything was wrong with the work performed by Respondent (Exhibit 8). By letter of April 30, 1979, (Exhibit 9) Ms. Girouard was advised of Dr. Hager's findings. Nevertheless, by letter dated June 5, 1979, the attorney advised Respondent of Ms. Girouard's dissatisfaction with the work done and suggested a monetary settlement to Ms. Girouard of the money she paid for the partial dentures would deter her from filing a complaint with the Florida Board of Dentistry. In reply thereto Respondent, by letter dated June 8, 1979 (Exhibit 7), advised Ms. Girouard he did not feel the partials were improperly constructed or fitted but he would make further adjustments if it would help her. After Ms. Girouard was examined by Dr. Hager, Mr. Girouard returned the partials to Respondent's office. He does not recall with whom he left the dentures and none of Respondent's employees recall receiving these dentures. The fact that these dentures were returned was not disputed. On March 21, 1979, Mr. Girouard wrote a letter to Governor Graham complaining about the treatment his wife had received from Respondent and requested something be done about it. Girouard was referred to the Department of Professional Regulation and an investigation was initiated. In November 1981, Ms. Girouard was examined by a board-appointed dentist. She had received no dental treatment between her last visit to Respondent on March 12, 1979, and November 1981. At this time the permanent closure had not been placed on the root canal and Ms. Girouard did not have any of her partial dentures. This board-appointed witness testified that the work done by Respondent was below minimally acceptable standards because the root canal hole had not been closed with a permanent seal. Upon cross-examination he acknowledged that the six weeks from the time the root canal was done until Ms. Girouard's last visit to Respondent's office was not necessarily too long to wait for permanently closing the root canal opening and that if the patient refused to cooperate with the dentist the latter could not install the permanent seal. This witness also acknowledged under cross-examination that it was difficult to determine that dentures do not fit properly if the dentures are not seen in the patient's mouth. Expert witnesses called by Respondent testified that it was proper to leave the temporary filling on a root canal until the pain was gone or its cause ascertained and that this period could take upwards of six months. These witnesses further concurred that without seeing the dentures in the patient's mouth it is difficult to determine whether they fit properly. They also concurred that precision partial dentures should easily be removable by patients and that adjusting these precision partials is not a difficult process. The fact that the upper partial had to be attached to an anterior tooth and the lack of natural posterior teeth created greater pressure on the tooth to which this partial was attached. The increased leverage on this tooth due to the length of the partial would also create more torque and could lead to potential problems.
The Issue The issues in this case are whether the Agency for Health Care Administration ("AHCA") is entitled to repayment of Medicaid reimbursements that it made to Respondent, pursuant to section 409.913(11), Florida Statues; if so, the amount of the repayment; the amount of any sanctions that should be imposed pursuant to subsections 409.913(15) through (17); and the amount of any investigative, legal, and expert witness costs that AHCA is entitled to recoup pursuant to section 409.913(23).
Findings Of Fact The Parties AHCA is the agency responsible for administering the Medicaid Program in the State of Florida, pursuant to section 403.902, Florida Statutes. During all times relevant to this proceeding, Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid recipients. AHCA's Agency Action Pursuant to its statutory authority to oversee the integrity of the Medicaid program in Florida, AHCA conducted an audit of Respondent's claims for Medicaid reimbursement for the period from February 1, 2010, to March 1, 2011, to verify that claims paid by AHCA to Respondent under the Medicaid program did not exceed the amount authorized by Medicaid law and applicable rules. As a result of the audit, AHCA determined it was entitled to reimbursement from Respondent for $102,444.33 that it paid to him for services not covered under the Medicaid program. AHCA also sought to impose sanctions consisting of a $20,488.86 administrative fine and investigative, legal, and expert witness costs. Respondent requested an administrative hearing under sections 120.569 and 120.57(1) to challenge the overpayment determination and imposition of sanctions. Evidence Adduced at Final Hearing At the final hearing, AHCA presented the testimony of Robi Olmstead, an administrator with AHCA's Bureau of Medicaid Program Integrity ("MPI"). Olmstead's responsibilities include supervising AHCA's staff performance of MPI audits. As a result of her employment with AHCA in this position for several years, Olmstead is very familiar with, and knowledgeable about, conducting MPI audits. No evidence was presented to show that Olmstead is a licensed physician, has any substantive medical or dental knowledge, or is a medical or dental services expert. Olmstead did not serve as a peer reviewer for AHCA in determining or describing the nature or determining medical necessity of the specific procedures at issue in this proceeding, and she was neither proffered nor accepted as a peer reviewer or expert witness for these purposes at the final hearing. Description of the Audit and Overpayment Determination Olmstead described the audit of Respondent's claims at issue in this case. For reasons unspecified in the record, AHCA initiated an audit of the Medicaid claims for which Respondent had been paid.1/ Using AHCA's data support system, investigator Theresa Mock2/ accessed the complete universe of Medicaid claims paid to Respondent.3/ Mock selected the period from February 1, 2010, to March 1, 2011, as the Audit Period ("Audit Period")4/ and selected a statistically-based claim sampling program——in this case, cluster5/ sampling——to perform the audit. A computer-generated representative sample, consisting of 30 Medicaid recipients for whom Respondent had billed claims during the Audit Period and been paid, was identified. AHCA contacted Respondent by demand letter, requesting that he submit documents to substantiate the claims. In response, Respondent provided documents consisting of his records of service and billing for each claim for each of the 30 recipients. Mock forwarded the records to AHCA's peer review coordinators, who, in turn, forwarded them to Dr. Mark Kuhl, AHCA's peer reviewer for this audit.6/ Kuhl reviewed the records and prepared worksheets reflecting his determination regarding the nature of the service rendered for each claim and whether such claim was eligible for payment under the Medicaid program. Respondent's records and Kuhl's worksheets were sent to Mock, who, based on Kuhl's determination regarding the nature and eligibility of each claim, calculated that Respondent had been overpaid by a total of $85,582.02, or $355.11211618 per claim, for the sampled claims. To extrapolate the total probable overpayment to Respondent for all claims, Mock applied the statistical formula for cluster sampling7/ to the calculated overpayment amount of $85,582.02 for the representative sample. This yielded a total extrapolated overpayment amount of $102,444.33, within a 95 percent probability that the actual overpayment amount was equal to or greater than that amount. In a Preliminary Audit Report ("PAR") dated December 12, 2011, AHCA notified Respondent that it had determined that he had been overpaid by $102,444.33 and gave him the options of paying that amount or submitting further documentation to support the claims identified as overpayments in the PAR. Respondent provided additional information in an effort to support these claims; however, AHCA apparently found the information insufficient to support changes to its previous determination that Respondent had been overpaid by $102,444.33. On March 22, 2013, AHCA issued a Final Audit Report ("FAR") stating its determination that Respondent had been overpaid by $102,444.33. The following explanation in the FAR was provided as the basis for AHCA's overpayment determination: REVIEW DETERMINATIONS A review of your dental records revealed that some services rendered were erroneously coded on the submitted claim. The procedure code that would accurately reflect the service provided is not covered by Medicaid. The payment for those claims is considered an overpayment. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented sufficiently. Therefore, the payment for those claims is considered an overpayment. A review of your records indicated that some procedure codes were double billed in error. In those instances, the amount paid for the second (duplicate) procedure is considered an overpayment. The FAR also notified Respondent that AHCA had assessed an administrative fine of $20,488.86 and audit costs of $576.83. In sum, the FAR notified Respondent that he was required to remit a total of $123,510.02. The FAR also notified Respondent that AHCA was entitled to recover all investigative, legal, and expert witness costs. Following issuance of the FAR, Respondent provided additional records to support claims that AHCA asserted were ineligible for payment. After considering these records, AHCA determined that some of these claims had not been overpaid, and on June 17, 2014, performed another calculation of the alleged overpayment for the entire universe of Respondent's claims using the cluster sampling formula. AHCA ultimately determined that Respondent had been overpaid by a total of $102,410.79, the alleged overpayment amount at issue in this proceeding. Requirements for Payment of Claims by Medicaid To be eligible for coverage by Medicaid, a procedure must be "medically necessary," which is defined as follows: “Medical necessity” or “medically necessary” means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. § 403.913(1)(d), Fla. Stat. (2010).8/ AHCA is the final arbiter of medical necessity for purposes of determining Medicaid reimbursement. Id. The statute expressly requires that determinations of medical necessity be made by a licensed physician employed by or under contract with the agency——i.e., a peer reviewer——based on information available at the time the goods or services are provided. Id. To ensure that services rendered by a provider are correctly billed to and paid by Medicaid, the provider must identify the services by referring to specific codes corresponding to the specific procedure or service rendered. If services rendered are incorrectly coded on a provider's billing submittals, they may be determined ineligible for payment by Medicaid. Applicable Medicaid Handbooks, Codes, and Fee Schedules To guide and inform providers regarding the types of services that are covered by the Medicaid program and how to correctly bill Medicaid for those services, AHCA has adopted several documents by rule through incorporation by reference. The documents incorporated by reference that are applicable to this case are the Florida Medicaid Provider General Handbook (July 2008)9/; the Florida Medicaid Dental Services Coverages and Limitations Handbook (January 2006)10/; the Florida Medicaid Provider Reimbursement Handbook, CMS-1500 (July 2008)11/; the Dental Oral/Maxillofacial Surgery Fee Schedule (effective January 1, 2010)12/; and the Dental General Fee Schedule (effective January 1, 2010)13/. Additionally, AHCA rule14/ refers to "CPT" codes, which are the Current Procedural Terminology® codes developed and kept up-to-date by the American Medical Association. These codes, which are published, are used by AHCA to identify the specific services rendered by providers for purposes of determining whether the service is covered by Medicaid. In this proceeding, AHCA provided, for admission into evidence, excerpts from the 2010 CPT codes, which were in effect during the Audit Period. AHCA rules adopted in the Florida Administrative Code do not expressly define, incorporate, or otherwise refer to "CDT" codes, which are the Current Dental Terminology© codes published by the American Dental Association. The Florida Medicaid Dental Services Coverages and Limitations Handbook (January 2006) was in effect during the Audit Period. This handbook refers to the Current Dental Terminology© codes, but does not specify the version of the CDT codes by year that were applicable to that version of the handbook.15/ AHCA provided, as exhibits, portions of the 2011/2012 CDT codes.16/ The Specific Claims at Issue Respondent's records and other documentation regarding the services for which he submitted claims for payment under Medicaid were admitted into evidence at the final hearing. The claims at issue in this proceeding are identified on worksheets prepared by Kuhl, who reviewed Respondent's records and documents provided in response to AHCA's demand letter. Kuhl's worksheets were admitted into evidence. These worksheets document, for each claim reviewed, Kuhl's determination regarding the nature of the service rendered by Respondent and whether the claim was eligible for payment under the Medicaid program. As noted above, Kuhl did not testify at the final hearing. Accordingly, the sole evidence in the record regarding Kuhl's determinations consists of the notations on his worksheets and Ms. Olmstead's testimony regarding his conclusions. As discerned from Kuhl's worksheets, Kuhl determined that Respondent had been overpaid for three reasons: (1) for some claims, Respondent did not provide records, such as x-rays or other documents, to support or verify that he had, in fact, rendered the service; (2) for some claims, Respondent billed twice (i.e., duplicate-billed) and was paid twice for the same service rendered to a recipient; and (3) for some claims, Respondent performed, and billed for, procedures that were not medically necessary so were not payable by Medicaid. Each of these bases is addressed below. Lack of Documentation to Support Claims Based on his review of Respondent's records, Kuhl determined that Respondent did not provide adequate documentation to support some claims for which he was paid. For each such claim, Kuhl wrote on the applicable worksheet next to the applicable claim: "not in the record" or "not in record." As noted above, Respondent subsequently submitted additional documentation for some claims. Based on Kuhl's worksheets and this additional documentation, AHCA determined that Respondent had been overpaid a total of $3,091.91 for the sampled claims as a result of his failure to provide supporting information. The table below summarizes AHCA's overpayment determinations for the sampled claims on this basis. Undocumented Claims Recipient No. No. of Claims Overpaid Amount of Overpayment 1 2 $8.00 17 2 $3.00 21 3 $1,120.75 26 1 $4.00 28 3 $1,956.16 Total Amount of Overpayment $3,091.91 Double-billed Claims Kuhl determined that for some claims, Respondent duplicate-billed and was paid twice for the same service. For each such claim, Kuhl wrote on the applicable worksheet next to the applicable claim, what appears to be a notation stating "duplicate charge amt" or "duplicate charge out."17/ Either way, it is clear from the worksheets that Kuhl determined that Respondent had duplicate-billed for certain services rendered to certain recipients. Based on Kuhl's worksheets and Respondent's billing records, AHCA determined that due to duplicate billing, Respondent had been overpaid a total of $30.00 for the sampled claims. The table below summarizes AHCA's overpayment determinations for the sampled claims on this basis. Duplicate-Billed Claims Recipient No. No. of Claims Double-Billed Amount of Overpayment 8 1 $27.00 9 1 $3.00 Total Amount of Overpayment $30.00 Claims for Face Bone Graft and Lower Jaw Graft Three Medicaid billing codes are implicated in this proceeding: CPT codes 21210 and 21215, and CDT code D7953. The 2010 version of CPT code 21210 is defined as "graft, bone; nasal, maxillary, or malar areas (includes obtaining graft)." The notations on AHCA's spreadsheet summarizing its overpayments refer to this procedure, in lay terms, as a "face bone graft." The 2010 version of CPT code 21215 is defined as "mandible (includes obtaining graft)." The notations on AHCA's spreadsheet summarizing its overpayments refer to this procedure, in lay terms, as a "lower jaw bone graft." Respondent billed and was paid for 44 claims under CPT code 21210 for face bone grafts and 25 claims under CPT code 21215 for lower jaw bone grafts. For each claim identified on Kuhl's worksheets as either "21210 ## ## Face Bone Graft" or "21215 ## ## Lower Jaw Bone Graft," Kuhl made the notation "correct code = D7953 = bone graft place in ext site at time of ext" or a similar notation to that effect. For each such claim, Kuhl checked the "deny" option on the worksheet. Below the "deny" option, Kuhl made the following or a similar notation: "as it was stated by Robi Olmstead it is a non-covered procedure" or "if a non-covered procedure." CDT code D7953 is defined in the 2011-201218/ version of the CDT codes as: bone replacement graft for ridge preservation – per site Osseous autograft, allograft, or non-osseous graft is placed in an extraction or implant removal site at the time of the extraction or removal to preserve ridge integrity (e.g., clinically indicated in preparation for implant reconstruction or where alveolar contour is critical to planned prosthetic reconstruction). Membrane, if used, should be reported separately. Olmstead testified that the D7953 procedure is not medically necessary so is not covered by Medicaid. According to Olmstead, the D7953 procedure is not considered medically necessary because "most often sufficient bone will be regenerated or, you know, you won't really need it unless you [are] getting implants are (sic) [or] dentures, and it's just not always——infrequently medically necessary to do this according to some of the literature, and so Medicaid, you know, as they're allowed to do, has decided not to cover this procedure, and it's clearly not covered except for the oral surgeon19/ under these two codes, but again, it still has to be medically necessary." Olmstead testified that the absence of D7953 as a listed procedure on the Dental General Fee Schedule (January 2010) and the Dental Oral/Maxillofacial Surgery Fee Schedule (January 2010) further evidences that D7953 is not covered by Medicaid. Kuhl did not make any express finding on his worksheets that the D7953 procedure is not medically necessary. Indeed, Olmstead acknowledged that Kuhl's worksheets did not state that the D7953 procedure is not medically necessary. Kuhl also did not make any express finding on his worksheets that the CPT code 21210 and CPT code 21215 procedures were not medically necessary. Based on Kuhl's worksheets, AHCA determined that for each claim Respondent billed under CPT codes 21210 or 21215, the claim was not covered by Medicaid, so should not have been paid. The table below summarizes AHCA's determinations of overpayment, on the basis of lack of medical necessity, for the sampled claims for CPT Code 21210 for face bone grafts performed by Respondent. CPT Code 21210 - Face Bone Graft Recipient No. No. of Claims for CPT Code 21210 Total Amount of Overpayment for Recipient 1 1 $1,089.75 2 1 $ 544.88 4 4 $3,814.13 5 2 $1,634.63 6 1 $1,089.75 7 1 $1,089.75 9 3 $2,724.38 10 1 $1,089.75 11 6 $4,903.89 12 1 $1,089.75 17 2 $1,634.63 19 2 $1,634.63 20 1 $1,089.75 21 2 $1,634.6320/ 22 1 $ 544.88 23 3 $1,847.07 24 1 $1,089.75 25 6 $5,448.76 26 3 $3,269.25 29 1 $1,089.75 30 1 $1,089.75 The table below summarizes AHCA's determinations of overpayment, on the basis of lack of medical necessity, for the sampled claims for CPT Code 21215 for lower jaw bone grafts performed by Respondent. CPT Code 21215 - Lower Jaw Bone Graft Recipient No. No. of Claims for CPT Code 21215 Total Amount of Overpayment for Recipient 1 5 $8,591.22 2 1 $1,909.16 4 1 $1,909.16 5 1 $1,909.16 8 3 $4,772.90 11 2 $3,818.32 14 1 $1,909.16 15 1 $1,909.16 16 2 $3,818.32 17 1 $1,909.16 18 2 $3,817.82 22 1 $1,909.16 27 2 $2,863.74 28 2 $1,909.16 Findings Regarding Alleged Overpayment The undersigned determines that the record evidence supports AHCA's determinations that Respondent was overpaid in the amount of $3,091.91 for claims for which he did not provide required documentation. The undersigned determines that the record evidence supports AHCA's determinations that Respondent was overpaid in the amount of $30.00 for claims for which he duplicate-billed Medicaid. As previously noted, the Florida Medicaid Dental Services Coverages and Limitations Handbook (January 2006) was in effect during the Audit Period. However, AHCA did not provide, as part of its evidence, pertinent excerpts of this version of the handbook referencing the CDT codes in effect during the Audit Period. AHCA also failed to provide the version of the CDT codes in effect during the Audit Period. Thus, the undersigned is left without any evidence regarding the nature or description of procedure D7953 as it was defined under the version of the CDT codes in effect during the Audit Period. Accordingly, the undersigned is unable to verify the correctness of Kuhl's notations stating that CDT code D7953, rather than CPT codes 21210 or 21215, was the correct notation for the procedures Respondent performed. As discussed above, AHCA's audit supervisor, Robi Olmstead, testified regarding the nature of the procedure identified in D7953 and distinguished that procedure from the procedures to which CPT codes 21210 and 21215 apply. However, there is no evidence establishing that she was competent to testify about the medical nature of the D7953 procedure, how it substantively differs from the other procedures at issue as defined in CPT codes 21210 or 21215, whether or not the procedures Respondent performed were medically necessary, or whether the D7953 procedure is medically necessary. As such, the undersigned finds her testimony unpersuasive to show that the procedures Respondent performed and billed under CPT codes 21210 and 21215 were not medically necessary and therefore not billable to Medicaid, that D7953 was the correct billing code for the procedures Respondent performed, and that the procedure corresponding with code D7953 is not medically necessary.21/ AHCA chose not to present testimony by its peer reviewer, Dr. Mark Kuhl, at the final hearing.22/ Although Kuhl's worksheets were admitted into evidence, they do not provide a credible, independently verifiable explanation for his conclusion that Respondent incorrectly billed a particular procedure by using either CPT code 21210 or 21215 instead of CDT code D7953. Moreover, the worksheets contain notations, discussed above, which indicate or appear to indicate that Kuhl relied on Olmstead's direction that the bone graft procedures for which Respondent billed were not medically necessary. Olmstead is not competent to determine medical necessity, and Kuhl's apparent reliance on her direction regarding medical necessity is directly contrary to section 409.913(1)(d), which expressly requires that "[d]eterminations of medical necessity must be made by a licensed physician employed by or under contract with the agency." As such, the undersigned finds Kuhl's worksheets unpersuasive to show that the procedures Respondent performed and billed under CPT codes 21210 and 21215 were not medically necessary and therefore not billable to Medicaid, that D7953 was the correct billing code for the procedures Respondent performed, and that the procedure corresponding with code D7953 is not medically necessary. For these reasons, it is determined that AHCA has not proven, by a preponderance of the competent substantial evidence in the record, that Respondent was overpaid for the claims he billed for bone grafts using CPT codes 21210 and 21215. Based on the foregoing, it is determined that AHCA overpaid Respondent in the total amount of $3,121.91. Determination of Administrative Fine As found above, Respondent was overpaid in the amount of $3,091.91 for undocumented claims. Pursuant to Florida Administrative Code Rule 59G- 9.070(7), sanctions are required to be imposed for failure to furnish all Medicaid-related records to be used by AHCA in determining whether Medicaid payments are or were due. Under rule 59G-9.070(7)(d), a $2,500 fine is to be imposed for the first offense23/ of failing to furnish all Medicaid-related records. AHCA proved that Respondent was paid for undocumented claims, and Respondent does not appear to challenge that. Accordingly, it is determined that sanctions consisting of a $2,500 administrative fine should be imposed for this violation. Duplicate-billed Claims As found above, Respondent was overpaid in the amount of $30.00 for duplicate-billing of services. AHCA did not present any evidence that Respondent engaged in a "pattern of erroneous claims." Rather, the evidence indicates that Respondent inadvertently duplicate- billed for services rendered to two recipients for a total of $30.00. Moreover, in its Proposed Recommended Order, AHCA did not cite and otherwise discuss any basis for the imposition of an administrative fine for Respondent's duplicate-billing. Therefore, it is determined that no administrative fine should be imposed for Respondent's violations consisting of two incidents of duplicate billing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order finding that Respondent was overpaid, and therefore is liable for reimbursement to AHCA, the total amount of $3,121.91; imposing an administrative fine of $2,500; and remanding the matter to the Division of Administrative Hearings for an evidentiary hearing on the recovery of AHCA's costs, if necessary. DONE AND ENTERED this 29th day of May, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2015.
Findings Of Fact At all times pertinent to the allegations in the Administrative Complaint, the Respondent was licensed as a dentist in Florida and the Petitioner was the state agency charged with regulating the practice of dentistry in this state. In June, 1984, Morris W. Kemmerer went to the Respondent, Peter M. Kurachek's, dental office because he needed dental work done and Respondent's office was handy. He was examined on this first visit by the Respondent and told Respondent what he wanted. Respondent went to work right away and within a few minutes of the patient's sitting in the chair, pulled a tooth which had broken and had to come out. Though Mr. Kemmerer had asked Respondent to put him to sleep for the extraction, Respondent did not do so. Respondent told Mr. Kemmerer what he planned to do as a course of treatment, and advised him of the expected cost and how it could be paid. Mr. Kemmerer claims he did not take a dental history nor did he, at any time, either before or after the work was done, discuss the patient's oral hygiene which was, supposedly, poor. The chart prepared by Respondent on Mr. Kemmerer contains, aside from notations as to work done, only the most basic information, such as allergies and prior medical condition, as well as current status of the mouth. Though minimal, it can be considered a dental history. After the initial procedure done the first day, Mr. Kemmerer returned to Respondent's office every day for awhile. On his second visit, the Respondent told him he needed a bridge and, though Mr. Kemmerer's memory on the matter is poor, probably told him of the remainder of the course of treatment. The bridge in question was necessary because the tooth Respondent pulled on the first visit was the one to which Mr. Kemmerer's existing bridge was anchored, and extraction of that anchor tooth required Respondent to make another bridge to be affixed to the next sound natural tooth. However, Mr. Kemmerer recalls that the bridge made for him by the Respondent did not fit correctly from the beginning and Respondent had to make several for him before a reasonably comfortable fit was finally achieved. This was done by grinding down Mr. Kemmerer's opposing natural teeth. Even with that measure, however, the fit was never completely correct. Respondent also made an additional partial denture for Mr. Kemmerer which could never be worn because it didn't fit. When Mr. Kemmerer told Respondent about this, he tried to fix it but was not able to do so satisfactorily and Mr. Kemmerer suffered an extended period of pain as a result. Mr. Kemmerer paid Respondent approximately $1,700.00 for the work done and did not see him again after August 9, 1984. Even though the work done was not to his satisfaction, Mr. Kemmerer did not see another dentist because he could not afford to do so. However, at the suggestion of his coworkers, he agreed to see Dr. Philip M. Davis, II, another dentist in Sarasota who, after an examination, told him the work Respondent had done had to be done over. Mr. Kemmerer ultimately contacted the Department of Professional Regulation about the treatment he received from the Respondent and filed a civil suit against Respondent, settling without trial for $3,000.00. The fact that the suit was settled in Mr. Kemmerer's favor has no bearing on the issue of care involved in this hearing and is not considered. Dr. Davis first saw Mr. Kemmerer as a patient on June 11, 1986 when Mr. Kemmerer presented himself complaining of swelling and pain in a right upper molar, (tooth 4). Upon examination, Dr. Davis found the patient had a partial bridge with crown and observed that the crown margins did not touch the prepared edge of the supporting tooth as they should. His x-rays taken at the time showed Mr. Kemmerer had an infection in the tooth and when he opened it through the crown, he found a space filled with cement, food, and waste, and that the tooth tissue was leathery. All that indicated to him that decay had gotten up under the crown and the base of the tooth had rotted because, in his opinion, the crown edge, (margin), did not properly fit to the tooth base. Dr. Davis noted that the margins of several crowns prepared by the Respondent several years earlier, were not good fits. Photographs of Mr. Kemmerer's mouth made in August, 1987 and October, 1988, as much as 3 and 4 years after completion of Respondent's work, reveal that at that time the margins on several teeth were substantially open. When Dr. Davis saw Mr. Kemmerer in 1986, he noted that the bridge constructed by the Respondent had been cemented to the abutment teeth which also had open margins. Regarding the specific teeth in question, photos of tooth 4 show a failure of the margin of the crown to touch the tooth and the preparation thereof. This indicates the crown was not properly fitted to the prepared tooth. It had never fully seated on the tooth and appeared to have been cemented in a suspended position above the tooth instead of being seated down on it. Insertion of a crown such as this one is a routing procedure and is not particularly complex. By not properly seating the crown, the installer, (Respondent), left an open space for saliva to enter and wash out the cement. Acceptable tolerance for a margin of this nature is 40 microns, (40/10,000 in.). On tooth 4, the margin was 2 mm short on the cheek side and 3 mm short on the tongue side. This led to the cement being washed out and to the entry of food and bacteria resulting in decay and infection of the bone. Had the crown been seated properly, it should have lasted for 10 - 20 years or more, absent trauma. As to tooth 11, examined by Dr. Davis on July 21, 1986, again, the crown margin was found to be well shy of the preparation margin on the tooth. On the tongue side, the crown was 1 mm short of full seating and was pulled away from the tissue. On the cheek side, the crown was too bulky for the preparation and did not match with a smooth, continuing surface. When Dr. Davis examined tooth 6 that same day, he found that here, too, the crown was too bulky and the margin did not fit. On the tongue side, it was 1/2 mm short and allowed food and bacteria to get up into an area of the tooth where the patient could not get it out. Dr. Davis did not measure the degree of separation, if any, on the cheek side. He did, however, find that on tooth 10, the margin was at one point 1/2 mm off and allowed food and bacteria retention. With regard to tooth 7, Dr. Davis found the margin on the lip side to be excessively heavy, (overbuilt), and on the tongue side, to be 1/2 mm short. In none of these cases were the margins acceptable as they far exceeded the 40 micron tolerance. These observations were confirmed by an examination of Mr. Kemmerer conducted at the request of the Board of Dentistry on May 13, 1987 by Dr. Davis R. Smith, an expert in general dentistry and the Board's consultant. Dr. Smith found the bridge built by Respondent to be poorly fitted around the preparation line of the teeth to which it related. Decay was present in every tooth to which Respondent had fitted a crown. The bridge had come loose, the crowns were not fitted properly, and the margin lines were short, open, and/or overcontoured. On each tooth involved, there was some combination of all those defects. When describing the margin shortage on some of Respondent's work on Mr. Kemmerer, Dr. Smith characterized it as, "ridiculously far off minimum standards." Dr. Smith's measurements were made visually and consisted of his running a probe over the margin seam which, in each case, he found to be excessive. A space of 50 microns can barely be felt with a probe and a space of 30 to 40 microns can barely be seen with the naked eye. Here, the margins were so poor that the space could be visually seen and entered with a probe. Both the experts opinioned that Respondent's seating of the crowns in question, so as to leave extensive gaps at the margins, was below standards. Respondent contends that at the time of installation, the crowns fit properly, and his expert, Dr. Carter, urges that a 1987 review of work done in 1984 cannot determine whether the margins at the time of installation were correct. This is because: Many things could have transpired in the patient's mouth in the interim such as changes in bone and tissue structure or a natural alteration of the appliance; Chemical changes in the mouth can erode tooth structure from beneath the margin, and tooth structure can be removed by cleaning. Respondent also contends that if the margins had been as poor from the beginning as indicated, the patient would have suffered pain and sensitivity associated with them. The evidence clearly demonstrates he did. Both Drs. Davis and Smith were of the opinion that, aliunde the margins, Respondent's office practice and record keeping were poor. In Dr. Davis' opinion, when a patient such as Mr. Kemmerer, of advanced age and obviously poor dental hygiene, comes in, the dentist must do a complete examination and charting to look for gum disease, cavities, occlusion and malocclusion, and evidence of cancer, and the examination should include full mouth x-rays. He must also talk with the patient and see what the patient perceives as his needs. If these are not great, the preliminaries need not be extensive, but in his opinion, to start work immediately, as Respondent did here, was improper since there was no emergency to justify disregard of a full work-up. Under the circumstances, he feels Respondent should have done a complete examination, determined what the patient needed, explained it all to the patient, and lectured on proper oral hygiene instead of jumping right in to do the crown and bridge work. It is found that would be the appropriate course for him to have followed. It must be noted that Mr. Kemmerer came in to Respondent's office indicating he was in pain. Respondent examined him and identified the cause of the pain. He corrected that problem and, in addition, began additional crown and bridge work which, while profitable, was not shown to be unnecessary. The procedures described by Drs. Smith and Davis are unquestionably the clinically appropriate things to do. While Respondent did not do all the things described as appropriate, he did identify his patient's immediate problem and correct it. Either he or his assistant advised the patient to practice better dental hygiene. He also incorporated his findings into his records on this patient. In that regard, the charting practices taught in school are appropriate for a school environment, but what is considered acceptable in private practice is not necessarily as detailed as in school. Respondent's expert is of the opinion that a dentist should advise his patient thoroughly on home care but that advice need not be noted in the records. He has found that records have become verbose, time consuming, and generally a pain in the neck, and, more importantly, record keeping such as is suggested, takes time away from caring for the patient. Legal action requires the dentist to protect himself, but in Dr. Carter's opinion, one cannot put everything on a chart; only those things which support patient care. While perhaps not conforming to optimum standards of practice, Respondent's actions in regard to record keeping and procedure choice cannot be said to be materially below standards. The formulation of the treatment plan is the primary responsibility of the dentist. During their examinations, both Drs. Davis and Smith noted that Mr. Kemmerer had lost a lot of enamel from the teeth occluding with the bridge. It appeared this was caused by Respondent's extensive grinding of the natural tooth material down to the dent in in order to get a proper occlusion with the bridgework he had installed, instead of removing the bridge and adjusting it to properly meet the natural teeth, or making another which did fit. Neither expert considered the worn condition of Mr. Kemmerer's teeth to be the result of natural grinding or bruxism. In any case, Respondent could have polished the rough enamel so as to reduce the resultant abrasion and he failed to do so. Respondent's actions here were, in the opinion of the Board's experts, below practice standards, and it is so found, notwithstanding Dr. Carter's testimony tending to exculpate Respondent's actions. Dr. Carter claims that Respondent's use of porcelain in the bridge, which, since it is harder that normal tooth tissue, will wear it down, was appropriate. He also asserts that if the patient did not wear his tooth 2 - 4 partial, he would still have had the abrasion problem because all chewing force being applied on the front teeth would wear them down. On balance, however, the evidence supports more clearly a finding that Respondent knowingly ground Mr. Kemmerer's natural teeth down to achieve the fit rather than taking appropriate corrective action when he found the bridge did not fit properly and he admits to this. The bridge in issue was made of metal and porcelain. When Respondent inserted the upper bridge, it was necessary for him to adjust the occlusions and to do so, he ground down the opposing lower natural teeth so the uppers and lowers would fit harmoniously. He denies that his placing of the upper teeth caused excessive wear on the lower teeth. The reduction in mass of the lower teeth was the direct result of Respondent's grinding down the natural teeth to fit to the false teeth on the bridge. Respondent presented the testimony by deposition of Dr. Hemerick, accepted as an expert in general dentistry. Dr. Hemerick was also offered as an expert in the field of prosthodontics. Petitioner accepted the witness as an expert in general dentistry but objected to him being classified as an expert in the field of prosthodontics. The objection is well taken. Though the witness is retained as an expert to evaluate dental performance for an insurance company which provides malpractice insurance to many dentists, his stated educational background and experience in the specialized field do not qualify him as "expert" in that specialty. He can, however, appropriately state his opinion as to the Respondent's treatment of Mr. Kemmerer in its totality and concluded that Respondent's treatment met accepted standards. Specifically, he stated that margins, as here, which fit acceptably when installed, can spread and open due to mouth activity over a period of years. What this witness, as well as Dr. Carter overlooks, however, is the excessive thickness of the device at the margin where it abuts the actual tooth. While the margin may open with time, construction material cannot grow on the appliance to make it thicker than when installed, and this, according to Petitioner's experts, was a basis for claiming Respondent's work was below standard in addition to the open margins. However, it is found that the likelihood of the margins opening as much as appears here, by normal mouth activity, is remote. Respondent has been a practicing dentist since 1966 when he got his degree in Kentucky. Over two separate periods, he has practiced in Florida for approximately 14 years. Mr. Kemmerer came to him initially for repair or replacement of a very old, (1943), denture which replaced front teeth 8 and 9 and which was not reparable. Respondent and Mr. Kemmerer discussed possible alternative treatments but both agreed treatment could not be postponed for this demanding cosmetic problem. It seems Mr. Kemmerer was in the real estate profession and needed teeth, and according to Respondent, wanted to leave Respondent's office that day with replacement teeth in his mouth. Respondent agreed to provide them. However, before starting treatment, Respondent determined from his examination of Mr. Kemmerer that due to long neglect of his dental hygiene, major treatment was necessary. Mr. Kemmerer wanted a patch job, Respondent alleges, and he refused to do that. Before work was started, however, Respondent left the room, leaving to his dental assistant the task of advising Mr. Kemmerer of the proposed treatment plan. Respondent had charted Mr. Kemmerer's mouth and instructed his assistant to go over the proposed work with him and give him a price for the work to be done. The assistant was to answer any questions Mr. Kemmerer might have. When Respondent returned to the treatment room, Mr. Kemmerer had a lot of questions to ask. His main concern was whether a new bridge would last. Respondent went over the proposed procedures with him and told him that with good home care, the appliance should last for the rest of Mr. Kemmerer's life. After Mr. Kemmerer met with Respondent's assistant, he elected to have the bridge made. Thereafter, Respondent had his assistant take impressions of Mr. Kemmerer's upper and lower jaw. Respondent anesthetized the upper area to be worked on and began the crown preparation on teeth 4, 6, 7, 10, and 11. He also adjusted the incisal edges on the abutting lower teeth, poured the upper and lower models, made a plastic temporary device for the upper area, and inserted it. There appears to be some dispute over whether Respondent made and utilized study models in the preparation of Mr. Kemmerer's appliance. He claims he did and there is little evidence to the contrary. Certainly, models were made and whether these constitute the required models has not been defined. It was obvious to Respondent early on that Mr. Kemmerer did not practice good dental hygiene. When Mr. Kemmerer returned to the office with stains on the temporary after only a short period of insertion, Respondent became concerned over his dental practices. However, it was not so bad a situation as to cause the needed repairs to be deferred and in Respondent's opinion, it was safe to begin the restorative treatment regardless of the fact that Mr. Kemmerer required periodontal treatment as well. It also appeared to Respondent that Mr. Kemmerer was an individual who was very susceptible to pain. It is because of this he believes that if all the margins had been open from the beginning, as alleged in the Complaint, Mr. Kemmerer would have sustained a lot of pain right away. At no time, however, during treatment, and after insertion of the permanent appliance did Mr. Kemmerer complain to him of pain. Respondent also contends that according to the records kept by Dr. Davis, when Mr. Kemmerer went to him in 1986, he complained of suffering pain for only 2 days. Respondent claims to have constructed in excess of 1,000 partial bridges in his 20 year career. He agrees that the margins as they now exist in Mr. Kemmerer's mouth are not acceptable and are excessive. However, he contends, these conditions did not exist when he placed the bridge and there were no open margins. It is his practice, he alleges, to return for reconstruction any bridge which does not fit properly and if at insertion this bridge had had the margins it now has, he would have done it over at no charge. He claims he saw Mr. Kemmerer's bridge on five separate occasions after it was inserted and claims never to have seen any open margins. However, Mr. Kemmerer's record shows that he only came back twice after the bridge was inserted and Respondent, commenting on the alleged lack of "follow-up" stated that after the bridge was completed and inserted, Mr. Kemmerer didn't come back. It would appear Respondent's memory is somewhat less than complete. Respondent also sees no problem in his ability to complete Mr. Kemmerer's work within 4 weeks from initial visit. When comparing that with the other expert's estimate of 6 to 9 months for completion of a proper treatment for this patient, Respondent claims the longer period is for rehabilitation of the entire mouth which, he asserts, he did not propose or agree to do. It is found that Respondent's operation is one of direct response to a particular problem, and he is not a provider of broad scale dental care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice dentistry in Florida be suspended for a period of six months and he be fined $3,000.00, and that when reinstated, he be placed on probation, under such terms and conditions as the Board may prescribe, for a period of three additional years, these actions to run concurrently with the penalty, if any , imposed by the Board in its action, when taken, in its allied cases involving Respondent, heard under DOAH case numbers 89-1240 and 89-1241. RECOMMENDED this 21st day of November, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5544 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by Petitioner in this case. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. COPIES FURNISHED: David Bryant, Esquire 13015 North Dale Mabry Highway Suite 315 Tampa, Florida 33618 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Blvd. Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Joseph L. Ratchford is a graduate of the University of Georgetown School of Dentistry and took the Florida dental exam in June, 1984. The clinical, or practical, portion of the dental exam consists of ten procedures and the examinee must obtain a total combined weighted grade of 3.0 to pass the clinical portion of the exam. Petitioner received a total overall grade of 2.96 and has questioned the grades he received on two of the ten procedures. In grading the clinical portion of the exam, three examiners separately review and grade each procedure performed by the examinees. At each examination, approximately twelve to thirty examiners are used, and three hundred to four hundred candidates are examined. Each examiner must successfully complete an eight to twelve hour standardization exercise during which they are trained on the grading scale, procedures, and the criteria to be used in grading the clinical portion of the exam. The Board of Dentistry determines the criteria to be used in grading the exams and the grading scale. A perfect score is a "5" and a complete failure is a "O". Examiners are chosen by the Board of Dentistry based upon their successful completion of the standardization exercise and must also have been licensed in Florida for at least five years. Petitioner received grades of 2, 3, and 5 from the three examiners grading the Periodontal procedure on his exam. This resulted in a grade of 3.33 on the Periodontal procedure. Petitioner objects to the grading of this procedure due to the wide disparity in the three examiners' grades. The periodontal procedure is performed on a live patient and is an evaluation of the patient's teeth, root structure, and supporting structures. In grading this procedure, five criteria are used: Presence of stain on assigned teeth. Presence of supra-gingival calculus on assigned teeth. Presence of sub-gingival calculus on assigned teeth. Root roughness on assigned teeth. Tissue management. While several of these criteria are easily observable, criteria (c) and (d) are not, and in fact are sometimes hard to distinguish from each other. The grading system requires two points to be taken off when sub-gingival calculus is present on the assigned teeth (criteria c), and allows one to four points to be deducted for root roughness on the assigned teeth (criteria d). Examiner 10 gave Petitioner a grade of 2 since the examiner found Petitioner was deficient on criteria (a), (c), (d) and (e). A grade of 2 is appropriate with these deficiencies, although such a grade may even be a bit high. Examiner 10 had participated in seven exams prior to the one in question and a post-exam evaluation of all examiners shows that Examiner 10 ranked 6th out of 18 examiners in terms of grading accuracy. Examiner 35 gave Petitioner a grade of 3 since the examiner found Petitioner was deficient on criteria (c). A grade of 3 is mandatory is this situation since the presence of subgingival calculus requires two points to be deducted from the grade. Examiner 35 had participated in no previous exams but ranked 7th out of 18 examiners in terms of grading accuracy, according to a post-exam evaluation of all examiners. Examiner 82 gave Petitioner a perfect score of 5, noting no deficiencies. This was the second exam Examiner 82 had participated in and he ranked 17th out of 18 examiners in terms of grading accuracy. Therefore, the perfect score which Petitioner received from Examiner 82 is the least reliable of the three grades on the Periodontal procedure since Examiner 82 had the worst ranking for accuracy among these three examiners, and was next to last among all examiners. On the Cast Class II Onlay Prep procedure, Petitioner received grades of 1, 0, and 1. This resulted in a grade of .66 on this procedure. Petitioner objects to the grading of this procedure. He states he performed this procedure the way he was taught in dental school, he alleges that the comments of the examiners conflict, and he feels it is impossible to measure tooth reduction without an opposing model. The Cast Class II Only Prep procedure is performed on a model, or mannequin, and consists of a restoration onlay wax-up on a posterior tooth. In grading this procedure five criteria are used: Outline form Depth Retention Gingival level Mutilation of opposing or adjacent teeth Examiners 6 and 37 gave Petitioner a grade of 1. Examiner 6 commented on his score sheet that "Distal box too deep and undercut; excess facial cusp reduction." Examiner 37 commented that outline form was poor and "no lingual cusp protection." Examiner 15 gave Petitioner a score of 0 and commented that there was insufficient reduction of the functional cusp. Each of these examiners had participated in at least two previous exams, and each had a high grading accuracy ranking according to a post-exam evaluation of all examiners. Specifically, Examiner 15 ranked 1st, Examiner 37 ranked 4th and Examiner 6 ranked 8th out of 18 examiners. The comments of the examiners do not conflict and, in fact, do support the grades given. An examination of the mannequin used by Petitioner to perform this procedure (Petitioner's Exhibit 1) by a dental consultant who has been a licensed dentist in Florida since 1971, and who was accepted as a expert on the technical aspects of the clinical portion of the dental exam, confirms and supports the grades given by the examiners on this procedure. The major and significant deficiency on this procedure was Petitioner's failure to adequately reduce the functional or lingual cusp, and excessive reduction of the facial cusp resulting in the subject tooth being almost level. Although it is difficult to determine the amount of tooth reduction without an opposing model, and no opposing model was used in the exam, the teeth used for the exam mannequin are manufactured in large quantities from the sane mold or form. Therefore, variations in these model teeth before the procedures are performed are not visible to the naked eye. Improper reductions on these teeth are visible to the examiners who have seen this procedure performed many times on these same models, both in exams and in the standardization procedure. According to an examination development specialist employed by Respondent who was accepted as an expert in testing and measurement, specifically for the dental exam, the grading of exams which involve hands-on, practical demonstrations of an examinee's skill level is not entirely objective. There is some subjectivity in assigning grades after criteria for each procedure are evaluated. This is why three examiners separately review each procedure, and the average of their grades is used. In addition, Respondent performs the standardization exercise prior to the exam and then evaluates each examiner's grades for accuracy after the exam in order to minimize disparity and the effects of subjectivity. Examiners who do not receive a good evaluation in the post-exam review are not used in subsequent exams. Proposed findings of fact and conclusions of law have been submitted by the parties pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. Specifically, Petitioner's proposed findings numbered 7, 10, 11 and 12 are rejected for these reasons, and also because they are not based upon competent substantial evidence.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order upholding the grades given to Petitioner and denying the relief sought by Petitioner. DONE and ENTERED this 19th day of April, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1985. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael S. Rywant, Esquire 240 Hyde Park Avenue Tampa, Florida 33606 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0004795. At all times material hereto, Respondent maintained two offices for the practice of dentistry, one where he practices privately in Bay Harbor Islands and one in North Miami Beach which is also known as R & E Dental Offices or as North Dade Dental Office. Case Number 83-3976 Beatrice Gershenson On April 19, 1980, Beatrice Gershenson, in response to a newspaper advertisement, came to R & E Dental Offices complaining that her lower denture made years earlier was uncomfortable and in need of replacement. Respondent examined Gershenson on that visit and advised her that she would need to have both her upper and lower dentures replaced. During that consultation, Respondent and Gershenson agreed upon a fee of $410 for a full set of dentures. Respondent did not provide any treatment to Gershenson during her first visit. Gershenson returned to R & E Dental Offices several times during April and May 1980, during which visits she received a full set of dentures and several subsequent adjustments to those dentures. Although Gershenson's checks were made payable to Respondent, Respondent provided no treatment to her; rather, all dental services were provided to Gershenson by other employees of R & E Dental Offices. Gershenson did not see Respondent following the initial consultation until her last visit to R & E Dental Offices. At that time, Gershenson complained to him about her dentures. She advised Respondent that her dentures were flopping and that she was biting the back of her jaw. Respondent did not examine her at that time. Based upon her complaints, however, he suggested that she be provided a reline and that she use a denture cream. Gershenson refused to have a reline, became upset about having to use a denture cream, and left. On July 16, 1981, Gershenson and her dentures were examined by Dr. Leonard M. Sakrais, a dental expert retained by Petitioner. Between her last visit to R & E Dental Offices and her examination by Dr. Sakrais, Gershenson's dentures were not altered. The three deficiencies in Gershenson's dentures noted by Sakrais became the specific allegations in the Administrative Complaint filed against Respondent. Sakrais noted that the dentures exhibited open occlusion on the right side, the lower anterior teeth were set forward of the ridge making the lower denture unstable, and the upper denture was short in the tuberosity region and therefore had no retention. However, Sakrais recognized that lower dentures are typically unstable, that Gershenson's small knife-edged lower ridge made her a difficult patient to fit, and that the dentures could have very easily been made serviceable. One of the ways in which the defects could be remedied, accordingly to Sakrais, was for the denture to be relined. If a patient refuses to have a denture relined, however, there is nothing a dentist can do further. Gershenson continued to wear the dentures obtained at R & E Dental Offices without adjustment after the examination by Sakrais until she commenced treatment in June 1983 with Dr. Alan B. Friedel. She made no complaints to Friedel regarding the upper denture and only complained about the looseness of the lower denture. Friedel adjusted her lower denture and recommended that it be relined and that she use a denture cream. Friedel noted no problems with the upper denture and attributed the problems with Gershenson's lower denture to the shape and deterioration of her lower ridge. When Dr. Neil Scott Meyers examined Gershenson on August 3, 1984, after Friedel's treatment had been completed, Gershenson complained to him that her upper denture fit so well that she had trouble removing it. Meyers found no defects in Gershenson's dentures, as modified by Dr. Friedel, and also noted the difficulty in fitting a lower denture for a patient with a small sharp lower ridge like Gershenson's. Gershenson voluntarily terminated treatment with R & E Dental Offices without requesting a refund and without requesting that the dental work be redone. Rather, she refused Respondent's offer to reline her dentures. Case Number 84-0349 Barbara Schmidt On November 4, 1980, Barbara Schmidt came to R & E Dental Offices in response to an advertisement. Schmidt complained that an improper bite was causing loss of her natural teeth and advised Respondent that her previous dentists had recommended that she have her teeth capped and bite opened. Schmidt brought with her to that consultation X rays and study models, a lot of advice from previous dentists who had treated her, and her attorney-husband who drilled Respondent on his plan for treatment of Schmidt. During Respondent's examination of Schmidt, he noted that she suffered from an extreme loss of vertical dimension. Her teeth were very worn, and there was little enamel left on her anterior teeth. The agreed upon treatment plan for Schmidt involved a full mouth reconstruction, consisting of 15 lower crowns and 8 upper crowns. On November 4 and 11, 1980, Respondent prepared Schmidt's lower right side and lower left side and provided her with temporaries. Respondent made no attempt to increase her vertical dimension with the first set of temporaries. On November 25, 1980, Respondent took a second bite impression and made a second set of temporaries which increased Schmidt's bite by 2 millimeters. He noted that he was having trouble getting Schmidt's jaws into centric position for taking a second impression because her jaw muscles were too tense. During Schmidt's appointments on December 16 and 23, 1980, Respondent tried-in the lower metal framework, checked the margins, looked for blanching of the tissue, determined that the lower frame was acceptable and ready to be finished, and took a third bite impression due to the difficulty in getting the same registration each time that Schmidt's bite was registered. During Schmidt's January 13, 1981, appointment, Respondent began work on her upper teeth. Schmidt was placed in temporaries. When the upper metal work was tried-in on February 3, 1981, Respondent determined that the fit was correct. On February 10, 1981, Respondent inserted Schmidt's upper crowns using temporary bond and made a notation in Schmidt's records that her bridges should be removed every six months. On February 17, 1981, Respondent removed one of Schmidt's bridges, made new temporaries, and returned Schmidt's crowns and bridgework to the laboratory for rearticulation in order that the bite, with which Respondent was not satisfied, could be corrected. On this date Schmidt was in her third set of temporaries and was clearly in an unfinished stage. On February 18 and 24, 1981, Schmidt was seen by Dr. Wayne Dubin, another dentist in the same office. Schmidt's dental records indicate that on the former date Dubin re-cemented Schmidt's temporary crowns, and on the latter date he cemented with temporary bond the permanent crowns that Respondent had returned to the laboratory on February 17. On March 3, 1981, Respondent repaired Schmidt's lower right bridge, and on March 10 he cemented that bridge back into Schmidt's mouth with temporary bond. On March 17, 1981, Respondent removed one of Schmidt's bridges and returned it to the laboratory so that porcelain could be added. This was the last occasion on which he rendered treatment to Schmidt. On March 24, Schmidt was seen by Dr. Dubin at the request of Respondent. In the presence of Schmidt, Respondent requested Dubin to take over the case because Respondent was still unable to correct Schmidt's bite. Respondent told Dubin to do whatever he thought was necessary. On March 24, 1981, Dubin removed Schmidt's crowns and bridges and took a bite impression without the crowns and bridges in place in order to correct the bite problem in a different way than Respondent had previously tried. On April 7, 1981, Dubin placed Schmidt's bridges in her mouth using temporary cement. He advised her that on her next visit he would take a new set of X rays, presumably to start over again if necessary. Although Dubin was at that time Schmidt's treating dentist, she sought advice from the lady employed as the office manager at R & E Dental Offices. The two women decided that rather than having Schmidt continue with Dubin, she should see Dr. Lawrence Engel the "E" of R & E Dental Offices. On the following day Engel saw Schmidt for an occlusal adjustment. During the examination, Schmidt's jaw muscles went into spasm, and she was unable to make the appropriate movements so that Engel could make the appropriate adjustments. Engel suggested to Schmidt that she go home, practice moving her jaw in front of a mirror in the privacy of her home, and then return so that he could complete her adjustment. Schmidt returned to Engel approximately one week later and brought her husband with her. While Mr. Schmidt engaged in a tirade and Dr. Engel engaged in adjusting Mrs. Schmidt's bite, there was a power failure in North Miami Beach. The Schmidts were given their choice of waiting until electrical power resumed or leaving and coming back at another time. After advising the office manager that they would return and that would also complete paying the agreed upon fee for dental services, the Schmidts left. They did not, however, return, and they did not, however, complete paying their bill. Instead, on May 18, 1981, Mrs. Schmidt picked up her records, X rays, and study models. She did not speak with Respondent about her voluntary termination of treatment, about a refund of the monies paid for treatment, or about her dental work being completed or redone. Schmidt was not released from treatment by any dentist at R & E Dental Offices. When Schmidt released herself from treatment, none of the three dentists who had treated her had indicated that her case was completed or close to completion. Rather, more temporaries were being made, her crowns and bridgework were being returned to the laboratory, new X rays were being ordered, and one dentist was in the middle of an adjustment when the electrical power failed. Moreover, the dental work made for her had been cemented with temporary bond, and no one had indicated that permanent cementing was likely at any time soon. The only discussion which had occurred regarding the use of permanent cement occurred with Respondent when he explained to her that sometimes sensitive areas are alleviated when permanent cementing takes place. That discussion took place prior to the time that Respondent referred Schmidt to Dr. Dubin with instructions to do whatever Dubin thought necessary. During the time that Respondent was treating Barbara Schmidt, she was seeing other dentists for the purpose of having them monitor Respondent's work. Since neither Schmidt nor her monitoring dentists advised Respondent that he was being monitored, the only information available to those dentists was that provided to them by Barbara Schmidt. They, therefore, did not have the benefit of Respondent's input into their opinions, and Respondent likewise was not given the benefit of their input into his decisions. In addition to seeing a Dr. Coulton and a Dr. Souviron, Schmidt consulted twice with Dr. Alvin Lawrence Philipson, a dentist having some business dealings with Mr. Schmidt. Schmidt saw Dr. Philipson for Use first time on February 11, the day after her permanent lowers were inserted with temporary cement. Six days later Respondent removed Schmidt's lower left bridge and sent it back to the lab to be remade in order to correct the bite and alleviate an area causing sensitivity. When Philipson next saw her in March of 1981 he was of the opinion that Respondent had provided treatment which failed to meet minimum standards. That opinion, however, was based upon the information given to him by the Schmidts that Respondent was finished with the case and ready to permanently cement all bridgework. At the time that he rendered his opinion, Philipson did not know that Schmidt was about to be referred by Respondent to another dentist, i.e., Dr. Dubin for that doctor to do whatever he thought was necessary in order to help Mrs. Schmidt. After Schmidt discharged herself from the care of the dentists at R & E Dental Offices, she continued to wear the crowns and bridgework in their temporized state without treatment from April 8, 1981 (the day of the power failure) until July 7, 1982 when she sought dental treatment from Dr. Donald Lintzenich. By this time she had also developed periodontal problems, most likely as a result of neglect. Schmidt began treating with Tintzenich in July of 1982, and Lintzenich also referred her to other specialists for necessary treatment such as root canals and periodontal treatment. Although many changes were made to the crowns and bridgework Schmidt received from R & E Dental Offices by Lintzenich and the other dentists to whom he referred her, during the first four months that he treated Schmidt Lintzenich left the crowns and bridgework from R & E Dental Offices in Schmidt's mouth. Although Lintzenich began treatment of Schmidt in July 1982, he was still treating her at the time of the Final Hearing in the cause and was, at that point, considering redoing work he had placed in her mouth. The numerous experts in dentistry presented by both Petitioner and Respondent agree that Barbara Schmidt's is an extremely difficult reconstruction case and that a quite extended period of time is necessary for the correction of her dental problems. Further the experts agree on nothing. Each of Petitioner's experts disagrees with almost everything stated by the remainder of Petitioner's experts. For example, Philipson recommends increasing Schmidt's bite; Glatstein believes that Schmidt's bite needs to be reduced; and Lintzenich opines that any attempt to change the vertical dimension would constitute treatment below the minimum acceptable standard. Some of Petitioner's experts believe that Schmidt's periodontal problems existed before she sought treatment by Respondent, and some of them believe that her periodontal problems commenced after she had terminated treatment with Respondent. Although most of Petitioner's experts agreed that Respondent's work fell below minimum standards, they also admit their opinions would be different if they had known that Respondent had not completed his work on Schmidt and had not discharged her but rather had referred her to another dentist with instructions to do whatever was necessary. Only Dr. Glatstein maintained that Respondent's work was substandard at any rate, an opinion he confers on Lintzenich's work, too. The Administrative Complaint filed herein charges that Respondent's treatment of Schmidt failed in the following "specifics": the work has no centric occlusion; the bite is totally unacceptable and if not corrected will cause irreversible damage to the temperomandibular joint; and the contour of the teeth and embrasure space for the soft tissues were unacceptable and ultimately will result in periodontal breakdown. All of the experts who testified agree that Barbara Schmidt's bite is/was not correct. She initially sought treatment because her bite was not correct and is still undergoing treatment because her bite is not correct. There is no consensus on any of the other charges in the Administrative Complaint; in fact, there is no consensus as to the meaning of some of the words' used. For example, some dentists believe that the term "contour of the teeth" encompasses open margins while others believe that an open margin is the space between the tooth and the crown. Few dentists, however, believe that an Administrative Complaint which states that the contour of teeth is unacceptable advises a licensee that he is charged with defective work because of open margins. Even if open margins were part of the term "contour of the teeth," the Administrative Complaint fails to notify anyone that the open margins are the part of the contour that is alleged to be defective or even which teeth are involved. There is no basis for choosing the opinion of one expert in this case over the other experts who testified herein. Further, many of the opinions are based upon information that was either erroneous or false, such as the information that Respondent had completed treatment and discharged Schmidt.
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 within the Administrative Complaints filed herein and dismissing them with prejudice. DONE and RECOMMENDED this 20th day of May, 1985, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201 Algis Augustine, Esquire 407 South Dearborn Street Suite 1300 Chicago, Illinois 60605 Stephen I. Mechanic, Esquire Allan M. Glaser, Esquire Post Office Box 398479 Miami Beach, Florida 33139 Ronald P. Glantz, Esquire 201 S.E. 14th Street Fort Lauderdale, Florida 33316 Steven Rindley, D.D.S. 251 NE 167th Street North Miami Beach, Florida 33162 Steven Rindley, D.D.S. 1160 Kane Concourse Bay Harbor Islands, Florida 33154 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
The Issue At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," as well as an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes (1995), now codified at Section 120.569(1)(c), Florida Statutes (1997), as alleged in the amended petition for attorney's fees and costs.
Findings Of Fact Findings related to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes (1997). At all times pertinent to this proceeding, Robert J. Fish, D.D.S. (Dr. Fish) was licensed to practice dentistry in the State of Florida, having been issued license number DN 000 5694. On or about August 22, 1989, D. E. (the "Patient") filed a written complaint with the Department regarding the care and treatment that she had received from Dr. Fish. The complaint provided: On June 27, 1989 I came to see Dr. Garrison complaining about my lower partial made by Dr. Fish in 1988. Dr. Garrison examined [my] Lower Right #27, 28, 29 and found Buccal margins to be opened. Also, the Lower Partial is the kind his office uses as a temporary. Considering the amount of money paid, Dr. Garrison recommended that I consult with the Broward County Dental Assoc. They in turn told me that . . . they do not handle this type of problem and advised me to get in touch with the Fl Dept of Professional Regulation. As per my conversation with Mr. Hunter of your dept I filled these forms out and am enclosing zerox copies of my cancelled checks relating to payment and statements and other papers with pictures of my teeth. Should I have overlooked anything that I should have sent you kindly let me know. To the lay eye, the Patient's complaint would seem to relate to one matter, that being a lower partial, whose construction was more consistent with a temporary or transient appliance, as opposed to one intended for permanent use, and whereon the Buccal margins of teeth number 27, 28, and 29 were found to be open. In fact, as the investigatory record discloses, there are actually two separate items in the Patient's complaint. First is the complaint associated with open margins noted on teeth 27, 28, and 29. Those teeth are part of a fixed bridge installed by Dr. Fish, and distinguishable from the Patient's lower partial (denture), which was a removable appliance.3 Following receipt of the complaint, the Department began its investigation in accordance with Section 455.225(1), Florida Statutes. The matter was assigned DPR Case No. 89-09812. By letter of October 9, 1989, the Department advised Dr. Fish of the Patient's complaint, as follows: THE PATIENT STATES that you provided lower partial for teeth #27, #28 and #29 in 1988. Complainant alleges subsequent dentist advised her that buccal margins are open. She further has been advised that the partial denture that you indicated was a permanent- denture is the type that is normally used as a temporary denture. Apparently, at this stage, the Department did not appreciate the nature of the Patient's complaint or, as observed in Endnote 3, the significance of the language it used to convey the Patient's complaint to Dr. Fish. In response to the Department's letter, Dr. Fish forwarded to the Department copies of the Patient's records, including x-rays. Additionally, Dr. Fish provided the following written response regarding the lower partial (denture): This patient is high strung and often incoherent, she often appears to be suffering from memory loss, i.e. Alzheimer's disease. The lower partial was made as a provisional partial due (sic) the extraction of several teeth. The patient was informed that upon sufficient stabilization of the boney ridge she could obtain a cast frame & acrylic partial. She refused to have any relining procedures which are necessary as bone resorbtion takes place. This option is still available to her. Dr. Fish's response did not address the open Buccal margins noted on teeth 27, 28, and 29; however, as heretofore noted, that question was unrelated to any complaint the Patient might have voiced regarding the lower partial. Pertinent to an understanding of the Patient's complaint, the Patient's records reveal the following two treatments. First, in October and November 1987, Dr. Fish undertook preventive and reconstructive work on the lower (mandibular) right side of the Patient's mouth. That work consisted of the replacement of the existent crowns on teeth 27, 28, and 29, with a ceramic three unit lower right bridge (also referred to as a three unit lower right splint), consisting of three individual crowns on teeth 27, 28, and 29, tied together (splinted) to strengthen the periodontally involved teeth. Contemporaneously, Dr. Fish replaced the lower right molar (tooth 30) with a removable wrought wire and acrylic partial (removable denture). Second, in September 1988, Dr. Fish undertook preventive and reconstructive work on the lower left side of the Patient's mouth. At that time, an existing five unit bridge (teeth 18 through 22) was severed, the bridge for teeth 18 through 20 was removed, and teeth 18 and 19 were surgically extracted. Thereafter, the lower partial which had replaced the molar on the lower right side was modified to include the replacement of teeth 18, 19, and 20 on the lower left side. This lower wrought wire and acrylic partial (removable denture), which replaced the molar on the lower right and the teeth 18, 19, and 20 on the lower left, was the lower partial the Patient complained of to the Department. As part of its investigation, the Department also contacted H. B. Garrison, D.D.S. (Dr. Garrison), who succeeded Dr. Fish as the Patient's treating dentist. Dr. Garrison provided the Department with the Patient's records, including x-rays, and by letter of November 6, 1989, advised the Department that: [D. E.] . . . came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort.4 I examined the lower bridgework and found the buccal margins of teeth #27, 28, 29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. If I can be of further assistance to you, please do not hesitate to contact me. Thank you. Given the Patient's records provided by Dr. Fish and Dr. Garrison, as well as Dr. Garrison's response, it is evident that there were two concerns raised by the Patient. First, the buccal margins observed on teeth 27, 28, and 29 of the lower right bridge, and second the adequacy of the lower partial. The Department presented its investigative report, together with the supporting documentation heretofore discussed, to the Probable Cause Panel of the Board of Dentistry (the Panel) for its consideration. Contemporaneously, the Department's counsel presented a draft closing order, which proposed a finding of probable cause with regard to the inadequacy of the lower partial and closure with a letter of guidance. No mention was made of the concerns related to the lower right bridge. The proposed order read as follows: CLOSING ORDER THE COMPLAINT: The Subject's treatment failed to meet the minimum standard of care. THE FACTS: The Subject provided patient D.E. with a lower denture which was allegedly unsatisfactory and has allegedly refused to correct the problem. Patient D.E. presented to a subsequent treating dentist who stated that the denture prepared by the Subject was inadequately fabricated. When contacted, the Subject stated that the denture provided to patient D.E. was made as a provisional partial due to the extractions of several teeth. The patient was informed by the Subject that upon stabilization of the lower ridge, she could obtain a cast frame and acrylic partial. The patient refused to have any relining procedures, which are necessary as bone resorption takes place. THE LAW: Based on the foregoing, probable cause does exist to establish a violation of Section 466.028(1)(y), Florida Statutes, however, this case will be closed with a letter of guidance. IT IS, therefore, ORDERED that this matter be, and the same is hereby, CLOSED. DONE and ORDERED this day of , 1990. CHAIRMAN, PROBABLE CAUSE PANEL BOARD OF DENTISTRY On April 27, 1990, the Panel met to resolve whether probable cause should be found and, if so, the appropriate disposition of the complaint. Initially, the Panel voted to find probable cause and to close the case with a letter of guidance, as recommended by the proposed closure order submitted by the Department's counsel; however, upon realizing that Dr. Fish had one prior disciplinary matter and two more cases pending on "below standard of care issues," the Panel elected to withdraw its decision to close with a letter of guidance and directed the Department to file an administrative complaint "based on a single charge of inadequate lower denture," a perceived violation of Section 466.028(1)(y), Florida Statutes. With regard to the separate matter relating to perceived deficiencies (open margins on teeth 27, 28, and 29) in the Patient's lower right bridge, the panel took no action. In May 1990, following the Panel's finding of probable cause, the Department employed Mervyn Dixon, D.D.S., as an expert to evaluate the Patient's compliant, and, by letter of May 25, 1990, the Department's counsel advised Dr. Dixon of the following matters: Thank you for consenting to review the enclosed case. . . . The Probable Cause Panel reviewed the merits of this claim on or about April 27, 1990. They determined that an expert review was necessary to properly evaluate the veracity of the complaint.5 A clinical examination of the patient may be necessary in order to make an evaluation. Please do not hesitate to accomplish a patient examination if it is deemed necessary. This particular patient does not have access to transportation. It will be necessary to coordinate with the Bureau of Investigative Services in order to provide transportation. As always, your prompt attention to this case and the receipt of your report within thirty (30) days will be greatly appreciated. . . . Dr. Dixon examined the Patient on June 16, 1990, and, by letter of June 21, 1990, reported the results of that examination to the Department, as follows: On June 16, 1990, I performed a dental clinical exam for patient D.E. in my office. Since the complaint was limited to the mandibular arch, I merely noted that the patient presented with a full maxillary denture. The following findings were observed in the mandibular arch: 1.) the patient was wearing a wrought wire and acrylic lower partial 2.) a ceramic 3 unit bridge was present on teeth #'s 27, 28, 29 3.) a gold and acrylic 2 unit bridge was present on teeth #'s 21 and 22 4.) the four mandibular incisors were natural teeth and free from marked periodontal disease. The right three unit ceramic bridge exhibited the following: 1.) #27 has an open facial margin that would admit an explorer 2.) #28 has an open margin that would admit an explorer 3.) #29 exhibited a grossly open margin both facial and distal 4.) the only occlusion (partial out) was provided by tooth #28 - see enclosed bite registration 5.) also please see enclosed x-ray The mandibular wire and acrylic partial exhibited extremely tight clasps and the lingual adaptation around the teeth and crowns was very poor. Please see enclosed study model. It is my conclusion that neither the mandibular ceramic 3 unit bridge or the mandibular wire and acrylic partial meet community standards. I have provided the x-ray, photo, bite registration and study model as evidence since it is necessary for the patient to have these items replaced.6 In the process of replacement, they will be destroyed. On September 6, 1990, the Department issued an administrative complaint against Dr. Fish (DPR Case No. 89-009812) and on October 9, 1991, an amended administrative complaint.7 The amended complaint was served on Dr. Fish on October 15, 1991, and contained the following allegations upon which the Department proposed to take disciplinary action against Dr. Fish's license to practice dentistry: On or about October 1, 1987, patient D.E. presented to the Respondent [Dr. Fish] for bridgework on teeth #27, #28, and #29. On or about September 15, 1998, D.E. presented to the Respondent for a lower partial. On or about May 8, 1989, D.E. presented to a subsequent treating dentist complaining about discomfort with his (sic) lower partial. The subsequent treating dentist examined patient D.E.'s bridgework and observed the buccal margins of teeth #27, #28, and #29, were inadequately sealed. He also noted that the lower partial was the type usually used as a temporary partial. On or about June 16, 1990, patient D.E. presented to a departmental expert for examination. The consultant observed the teeth #27, #28, and #29 contained open margins. Failure to adequately provide a lower denture that was absent any open margins is failure to practice dentistry within the minimum standard of care as recognized by the prevailing peer community. Based on the foregoing, the Respondent is guilty of violating the following statutory provisions: Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of card (sic) in diagnosis and treatment when measured against generally prevailing peer performance. The administrative complaint filed by the Department is at material variance with the directions of the probable cause panel. Notably, while the complaint perceives the distinction between the two treatments (bridgework and lower partial) which formed the basis for the Patient's complaint, it bases the perceived violation of section 466.028(1)(y) on problems associated with the bridgework. The Panel did not find probable cause, nor direct the filing of a complaint, regarding the bridgework but, rather, the lower partial (denture). Dr. Fish filed an election of rights whereby he disputed the allegations contained in the amended administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Consequently, the case was referred to the Division of Administrative Hearings (DOAH) to conduct the formal hearing Dr. Fish had requested. The case was docketed as DOAH Case No. 92-0687. A formal hearing on the administrative complaint was held on June 1, 1993, where proof was offered and received regarding perceived deficiencies in both treatments (the bridgework and lower partial) provided by Dr. Fish. Subsequently, on January 24, 1994, a Recommended Order was rendered which concluded, inter alia, that the Department had failed to establish, by the requisite degree of proof, that, with regard to either the bridgework or the lower partial denture, Dr. Fish had failed to meet the minimum standard of care in diagnosis and treatment, and recommended that a final order be entered dismissing the amended administrative complaint. On April 16, 1994, the Board of Dentistry (Board) met to consider the Recommended Order. At the time, no exceptions had been filed by any party, and the Department recommended that the Board adopt the findings and recommended dismissal contained in that order. Notwithstanding, following discussion, the Board resolved to remand the case to the Division of Administrative Hearings. The Order of Remand was issued May 13, 1994. Following consideration of the parties' responses to the Order of Remand, the presiding officer entered an order (Order on Remand) on December 7, 1994, declining remand. That order, while amplifying upon the basis for certain factual findings and conclusions reached related to credibility, concluded that the Board had not presented any compelling reason to reconsider the findings of fact, conclusions of law, or recommended disposition contained in the Recommended Order. On January 6, 1995, the Board met to consider the Recommended Order and Order on Remand, and on February 25, 1995, entered a Final Order. The Final Order, with nominal modification, adopted the findings of fact and conclusions of law set forth in the Recommended Order, as well as the recommended disposition, and dismissed the amended administrative complaint filed against Dr. Fish. Findings related to the claim for attorney's fees and costs Pertinent to the claim for attorney's fees and costs, it is observed that the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Fish prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs is appropriate provided Dr. Fish can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust. Addressing first Dr. Fish's status, the proof demonstrates that at the time the underlying proceeding was initiated Dr. Fish was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes. Supportive of such conclusion is the proof of record which demonstrated that, at all times material: (1) Dr. Fish was the sole owner of, and operated his dental practice as, an unincorporated business; (2) that the principal place of business for his dental practice was Broward County, Florida; (3) that Dr. Fish resided in Broward County, Florida, and had been domiciled in the State of Florida since 1973; and, (4) that Dr. Fish's business did not employ more than 25 full time employees and his net worth, including both personal and business investments, was less than two million dollars. Next, it must be concluded that the Department failed to demonstrate that its actions were substantially justified or that special circumstances existed which would make an award unjust. Dispositive of this issue is the proof which demonstrated that the Panel did not find probable cause to conclude that the bridge work provided by Dr. Fish fell below community standards and did not direct the Department to file an administrative complaint on such issue. Therefore, the Department was without any factual or legal basis to file a complaint challenging the adequacy of the bridgework installed by Dr. Fish.8 Consequently, Dr. Fish is entitled to an award of reasonable attorney's fees and costs under Section 57.111, Florida Statutes.9 Here, Petitioner's counsel claims $25,511.50 (based on 184.5 hours) as attorney's fees, and $1,699.06 as costs, reasonably and necessarily incurred in the underlying proceeding. The Department, as heretofore noted, did not oppose the request for attorney's fees and costs by affidavit, but responded that it "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Thereafter, the Department never filed an affidavit, as required by law, opposing the request for fees and costs, did not question or oppose any portion of the request during hearing, and has not objected to any of the requests post- hearing. Section 57.111(4)(c), Florida Statutes, and Rule 60Q- 2.035(4), Florida Administrative Code. Indeed, the only proof of record regarding the reasonableness and necessity of the attorney's fees and costs sought was offered by Dr. Fish. With regard to attorney's fees, that proof suggested that the hours dedicated to the case (184.5) were reasonably and necessarily incurred, and that the hourly rate sought (an average of slightly over $138.00 per hour) was reasonable and less than the community standard of $175.00 per hour. Consequently, the attorney's fees sought in the sum of $25,511.50 were reasonable. With regard to costs, the proof observed that the $1,699.06 claimed was "reasonable." (Petitioner's Exhibit 2). Given the provisions of section 57.111(4), and the record, Petitioner's claim of attorney's fees in the sum of $25,511.50, and costs in the sum of $1,699.06 are, without further discussion, found reasonable.
Findings Of Fact Respondent is a licensed dentist holding license No. DN0003704. In 1980, Karen Hansen was a patient of Respondent. In August of 1980, Respondent furnished Ms. Hansen a four-unit fixed bridge encompassing the upper left cuspid, the left lateral incisor, the left central incisor, and the upper right central incisor. Despite pain and sensitivity to hot and cold, Ms. Hansen was satisfied initially with the work performed by Respondent. However, shortly after the bridge was installed, she began to experience pain and sensitivity to hot and cold, and became dissatisfied with the aesthetics of the bridge. She returned to Respondent for adjustments, but Respondent was unable to correct the problems or alleviate her pain and sensitivity. On June 8, 1981, Ms. Hansen was examined by Petitioner's dental consultant. Upon examination of Ms. Hansen, the following conditions were observed: The porcelain was badly chipped on the upper left cuspid; The facial margin of the crown on the upper left cuspid was short of the gingiva; The porcelain on the facial aspect of the upper left central incisor was chipped and a jagged edge was present; The facial margin of the crown on the right central incisor was short of the gingiva; and Occlusion was extremely heavy and traumatic in the bridge area. Ms. Hansen was examined by Petitioner's expert several months after the bridge was seated. As a result, he was unable to state with absolute certainty that the short margins existed at the time the work was completed. However, since less than a year had passed since the bridge was seated, it is likely that the short margins were present in August of 1980. The bridge provided by Respondent to Ms. Hansen is neither functionally nor aesthetically serviceable. There was nothing so unusual about Ms. Hansen's oral condition that would have made it difficult to fabricate a serviceable bridge for her. The roots of her teeth were not so large that it would have been impossible to crown the teeth to the gingiva, in accordance with acceptable dental practice. Furthermore, the patient's decision not to crown an additional tooth had no effect on the occlusion or the short margins found upon later examination of the bridge. For these reasons, the bridge furnished by Respondent to ?s. Hansen failed to meet the minimum acceptable standard of practice. Respondent first saw Eileen Murray as a patient on or about December 13, 1976. Ms. Murray at that time was a 23-year-old female who had approximately 11 teeth missing including her four wisdom teeth. At the time she was first seen by Respondent her mouth was in very poor condition. She needed bridgework involving 22 teeth, including the two upper right bicuspids which were missing. She also gave a history of having had severe bruxism for over ten years prior to seeing Respondent. The dental work performed by Respondent was completed on or about March 20, 1977. In September of 1977, Ms. Murray returned to Respondent because the porcelain on one of her bicuspids had fallen away from the gold backing. From that point until May of 1981, Ms. Murray experienced many problems with the crown and bridgework installed by Respondent and returned to his office numerous times for repairs and adjustments. In addition to the aforementioned problem, Ms. Murray again saw Respondent in March of 1978 when she experienced sensitivity to hot and cold and the short margin developed on an upper cuspid. In January of 1979, the last two teeth on the upper bridge broke away from the bridge itself. In July of 1979, the last two teeth on the lower bridge broke away. In June of 1980, the lower bridge broke into four pieces when it was removed by Respondent. Finally, in September of 1980, the porcelain chipped on the upper central incisor of the bridge. In July of 1981 Ms. Murray was examined by a consultant to Petitioner. She was also examined in September of 1981 by another consultant retained by Petitioner. Both consultants noted the following conditions present in Ms. Murray's mouth: The metal substructure of the ontics was fractured between the pontics which replaced the maxillary right, first and second bicuspids; There were open margins on the facial aspect of tooth Nos. 6, 8, 10, 11, 18, 22, and 27; There were short margins on the facial aspect of tooth Nos. 22, 23, and 26; There were short margins on the lingual aspect of tooth Nos. 3, 23, 26, and 30; Porcelain was chipped on the incisoral edge of the maxillary right cuspid and the maxillary right central; Metal was exposed on the occlusal or incisal surfaces of tooth Nos. 12, 26, 27, and 30; The porcelain in the bridge exhibited an overall contamination indicative of poor dentistry; There was generalized periodontal involvement of the soft tissues; and There was severe malocclusion. As a result of the foregoing problems, the record in this cause establishes that the work done by Respondent on Ms. Murray is not salvageable, but must be redone in its entirety. The breakage problems experienced by Ms. Murray would not have occurred had the porcelain not been of such poor quality. In addition, the metal utilized by Respondent was inadequate and could not withstand the stress of the prosthesis as designed by Respondent. When the metal substructure of Ms. Murray's bridge fractured, the bridge should have been remade, but Respondent chose not to do so. The margin on tooth No. 10 was never adequate. The incisal edges of several teeth are opaque and do not resemble natural teeth. On most teeth this is largely a cosmetic consideration, but on the molars, this thick, opaque, rounded "mothball" appearance severely effects the function of the teeth, in that the lack of a properly contoured incisal edge makes chewing extremely difficult. Apparently, little consideration was given by Respondent to the function of the bridgework. The upper bridge was apparently designed to be aesthetically pleasing, and the lower bridge was then shaped to fit around or under the upper prosthesis. This lack of consideration for function is further indicated, in part, by a flat spot on one lower tooth, and a generally poor occlusal table. The record in this cause also reflects that Ms. Murray had active periodontal disease when she first consulted Respondent. The inadequate restorative dentistry described above contributes to the progress of periodontal disease. In Ms. Murray's case, it is likely that her periodontal disease was exacerbated by the poor restorative dentistry performed by Respondent. It is clear from the record in this cause that Ms. Murray had a long history of bruxism when she was first seen by Respondent. She made this fact known to Respondent, and Respondent in fact furnished certain appliances to Ms. Murray because of her bruxing problem. In most cases, properly done crown and bridgework will eliminate bruxism. However, neither the mouth guards prescribed by Respondent nor the restorative dental work performed by him served to alleviate Ms. Murray's bruxism. However, the record in this cause establishes that the poor restorative dentistry practiced by Respondent in fact worsened Ms. Murray's bruxism. Both counsel for Petitioner and counsel for Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been included in this Recommended Order, they have been specifically rejected as either irrelevant to the issues in this cause, or as not having been supported by evidence of record.
