Findings Of Fact At all times relevant, respondent, Peter Kurachek, held a license to practice dentistry, No. DN005429, issued by the State of Florida, Department of Professional Regulation, Board of Dentistry. In 1983, respondent employed Deborah Burr as a chairside dental assistant. Ms. Burr was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During the employment, respondent directed Ms. Burr to cement and remove temporary crowns, fabricate temporary crowns, fabricate temporary bridgework, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. From a period of 1983 into 1985, respondent employed Craig Marcum as a chairside dental assistant. Mr. Marcum was not licensed by the State of Florida as a dentist or dental hygienist nor did he hold an expanded duties certificate. During this employment, respondent directed Mr. Marcum to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, make adjustments on permanent dentures, pack retraction cord, and take opposing impressions for dentures. All of the foregoing were done without respondent's direct supervision. Many patients confused Mr. Marcum as a dentist. But the evidence did not prove that the respondent was aware of this behavior. This behavior became a greater problem when the respondent was opening a Sarasota office between May and December, 1984, and Marcum was in the Venice office under the supervision of other dentists. When the respondent re-assigned a trusted assistant to Venice in September, 1984, she told the respondent that Marcum was referring to himself, and holding himself out, as a dentist. The respondent reprimanded Marcum and had him sign a written promise to cease that behavior. There was no evidence that Marcum continued this behavior after the reprimand. On at least one occasion, Eugena Whitehead, respondent's receptionist, observed Mr. Marcum using a low speed drill inside a patient's mouth. Ms. Whitehead immediately informed respondent of Mr. Marcum's conduct. Respondent took no immediate action but allowed Mr. Marcum to continue using the drill. While in respondent's employ, Mr. Marcum wrote dental prescriptions under respondent's name. But the evidence did not prove that the respondent did not dictate the prescription or, if he did not, that the respondent knew about forged prescriptions. In 1983, respondent employed Pam Anderson as a chairside dental assistant. Ms. Anderson was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Anderson to cement and remove temporary crowns, fabricate temporary crowns, do temporary fillings, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. In 1983, respondent employed Patricia M. Lacher as a chairside dental assistant. Ms. Lacher was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Lacher to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, take opposing impressions for permanent dentures, make adjustments on permanent dentures, remove sutures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. In 1983, respondent employed Gwen Green as a chairside dental assistant. Ms. Green was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Green to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. Through 1983 and 1984, Dr. Kurachek imposed an office policy that dental assistants, not dentists or dental hygienists, perform the duties of packing retraction cord, fabricating temporary crowns and bridges to a dentist's specifications, and adjusting permanent dentures to a dentist's specifications, all without direct supervision. Since some time in 1985, the respondent altered his practices to some extent. He no longer has dental assistants place or remove temporary restorations or cement temporary crowns and bridges or take study impressions unless the dental assistant has an expanded duties certificate and is under direct supervision. He does not allow dental assistants to place or remove or cement or recement permanent crowns or bridges, take final impressions for dentures, pack retraction cord, use a handpiece, or drill, in a patient's mouth or do temporary fillings regardless whether the dental assistant has an expanded duties certificate. He still has dental assistants, with or without the expanded duties certificate, make temporary crowns and bridges to his or another dentist's specifications outside of the mouth and adjust permanent dentures to his or another dentist's specifications, both outside the mouth either in a laboratory or in the operatory which serves as a laboratory and both under the direct supervision of the responsible dentist. The respondent understands that these procedures are legal based on his understanding of what DPR representatives have told dental assistants in his employ.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Dentistry enter a final order: holding the respondent, Peter Kurachek, D.D.S.: (a) guilty as charged of five counts of violating Section 466.028(1)(g) and (aa) (1983), one for each of the dental assistants Burr, Marcum, Lacher, Anderson and Green; and (b) guilty of a sixth count, as charged, for violating Section 466.028(1)(bb) (1983); imposing a $5,000 fine payable within 30 days; suspending the respondent's license for a period of six months; and placing the respondent on probation for one year after reinstatement of his license. RECOMMENDED this 15th day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1988.
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43(3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative and prosecutorial services by the Division of Medical Quality Assurance, councils, or boards. Respondent is and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN0006759. Respondent's dental license has been delinquent since March 1, 2000. Respondent's last known address is 8081 Park Villa Circle, Cupertino, California 95014. On or about December 16, 1993, Respondent was convicted in a jury trial of one count of soliciting prostitution, five counts of sexual battery and two counts of false imprisonment in the County of Santa Clara, California. Respondent was sentenced to three years in prison. The sentence was suspended and Respondent was placed on felony probation for five years subject to the following conditions: that he serve one year in the county jail; that he pay fines and penalties; that he undergo psychiatric counseling; that he report his conviction to future employers; that he report to the California Dental Board; that he treat male patients only; and that he have no contact with the victims. The circumstances underlying Respondent's criminal convictions involved sexual battery of female employees in the dental office and of female patients during dental treatments in his office while he was engaged in the practice of dentistry. In or around January 1996, the California Board of Dentistry accepted Respondent's surrender of his California license to practice dentistry in case number AGN 1994-18, and allowing Respondent to apply for reinstatement after one year, subject to the terms and conditions of Respondent's criminal probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Board of Dentistry enter a final order adopting the foregoing findings of fact and conclusions of law and which revokes Respondent's license. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Rosanna M. Catalano, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 Houshang J. Dayan, D.D.S. 8081 Park Villa Circle Cupertino, California 95014 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this proceeding is whether Petitioner is entitled to change his dental benefit election in the State Group Insurance Program for the 2016 plan year.
Findings Of Fact At all times relevant hereto, Petitioner was an employee of the Department of Management Services (DMS) and was a participant in the State Group Insurance Program.2/ Petitioner was enrolled in dental benefit coverage for the 2015 plan year. Each year during open enrollment, program participants may elect new benefits or change benefits for which they are enrolled. Open enrollment usually occurs during a two-week period in the fall of each year. Benefits, including insurance plans, are administered by a private contractor, Northgate Arinso, through an online system known as “People First.” Petitioner intended to change his dental insurance coverage during the open enrollment period for the 2016 plan year. On October 21, 2015, Petitioner logged on to the People First website and viewed the “Change My Benefits” screen. Petitioner had researched the various coverages available well in advance of enrollment, and knew he wanted to enroll in a preferred provider plan offered by Humana. Petitioner found the plan he was seeking and selected “next” from prompts on the computer screen. Petitioner remembers next selecting “confirm” from the screen prompts, and reported that the next, and last, computer screen he saw was the People First home screen. Petitioner did not review a confirmation of benefits statement confirming his intended change in dental benefits. Petitioner then viewed the page displaying his current benefits, which showed the same dental coverage he had for the 2015 plan year. Petitioner asked his co-worker, Alison Bonnell, when the system would reflect his change in dental coverage, and she replied that it would not change until January 2016. Petitioner asked his supervisor, Heather Cleary, how he could view the change he had made. Ms. Cleary, who was new to DMS, stated she did not know, but suggested Petitioner contact human resources if he needed assistance. Petitioner made no further inquiries regarding his dental benefits until January 1, 2016, when he logged in to People First and viewed the “My Benefits” page, which showed the same dental coverage in which he was enrolled for the 2015 plan year. Petitioner alleges that he effectively changed his dental coverage for the 2016 plan year, but that, due to an error in the People First system, his election was not saved. Petitioner now seeks to change his dental benefit effective for the 2016 plan year. During open enrollment for the 2016 plan year, the People First website required all eligible participants to first complete a process verifying their mailing and email addresses, then certifying their dependents. Following completion of that confirmation and verification process, the system presented participants with the home screen from which participants could choose from a number of tabs, including “Health & Insurance.” The Health & Insurance page provided the following options: General Benefits Information Go to the MyBenefits website for your insurance options. Your Benefits Review your current and past benefits. Insurance Companies See contact information. Your Dependents’ Information View and update dependents’ information. Change My Benefits Makes changes with a qualifying event. Click here for open enrollment. Benefit Premium History Review your insurance payment history. Benefits Materials View and request insurance forms and booklets. Confirmation Statement View your confirmation statement. If a participant selected “Change My Benefits,” the participant was presented with a screen to choose the event triggering enrollment--new hire or open enrollment. Selecting “open enrollment” revealed an enrollment summary screen with a chart listing the categories of “health,” “basic life,” “optional life,” “dental,” and “vision” coverage in the left- hand column. If the participant was enrolled in one of the options, the chart listed the name of the plan in which they are enrolled in the middle column, and, in a column titled “make a change,” the participant could select “cancel” to cancel that coverage. For all other options, the participant could select “add” in the “make a change” column to enroll in a plan. If a participant selected the option to “add” a plan, they were navigated to a screen which displayed all the choices for that type of coverage, in this case dental coverage. Once a coverage plan was selected, the program prompted the participant to “complete enrollment.” At the bottom of the enrollment summary screen, participants were presented with the following statement: By selecting “Complete Enrollment,” I hereby certify that the information entered is true and correct and that all dependents listed above are eligible. I understand that my elections can only be changed during Open Enrollment or as the result of a Qualifying State Change event as defined by the Internal Revenue Code and/or the Florida Administrative Code. I agree to notify People First of any QSC events within the prescribed time frame and to supply the appropriate supporting documentation upon request; otherwise, any requested changes will not be allowed. If any dependent is determined to be ineligible or I fail to notify People First of a loss of elibility or any supporting documentation is not provided upon request, I understand that I may be liable for any and all claims paid for any dependent deemed ineligible. Following this statement was a box in which the participant must enter his or her password and select “Complete Enrollment.” Upon selecting “Complete Enrollment,” participants were notified that a confirmation statement was available in the People First system for his or her review. A participant must have returned to the home screen and selected “Confirmation Statement” to view the statement to confirm any change in his or her elections. Petitioner testified that he did not enter his People First password to complete his enrollment on October 21, 2015. Rather, Petitioner reported that, because he was redirected to the People First home screen after selecting the dental plan option he was seeking, he was not prompted to complete his enrollment. Petitioner did not select the “Confirmation Statement” tab and review any statements in the system for his account. Petitioner did select the “My Benefits” tab, which confirmed the same dental coverage which he had selected for the 2015 plan year. Petitioner did not contact the People First service center for assistance. Dwayne Purifoy has served as operations manager for Northgate Arinso for 12 years. Mr. Purifoy oversees the operation of the People First program. Mr. Purifoy admitted that if the People First program “timed out” during the selection process, the participant would not receive a notification to that affect, and any changes the participant made would not be saved. The People First program records participant interactions with the system, including when a participant logs in, views benefits, and changes benefits. The system record shows that Petitioner logged in to the “Change My Benefits” page on October 21, 2015. The system does not contain a record that Petitioner changed any of his selected benefits during the open enrollment period. The preponderance of the evidence supports a finding that Petitioner, despite his intentions to the contrary, did not complete a change to his dental benefit election under the State Group Insurance Program for the 2016 plan year. Petitioner did not experience any QSC event during the 2016 plan year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order denying Petitioner's request to change his dental benefit coverage in the State Group Insurance Program for the 2016 plan year. DONE AND ENTERED this 24th day of May, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 24th day of May, 2016.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Board of Dentistry, (Board) was the state agency responsible for the licensing of dentists and the regulation of the dental profession in Florida. Respondent, Carl T. Panzarella, was licensed as a dentist in Florida holding license No. DN 0008948, and was in practice in Palm Beach County. Dr. Panzarella graduated from the University of Maryland Dental School in 1981 and practiced in Baltimore, Maryland for approximately 1 year after graduation. In the Spring of 1982 he moved to Florida and for several years, up through the Autumn of 1983, worked for other dentists. At that time, however, he decided to open his own office and, in the course of preparing to do this, met with a dental supplier who advised him as to the relative merits of the locations for dental offices he was considering in various areas within Palm Beach County. After consideration of several vacant offices, he ultimately opened his practice in an office building where he was the only dentist. Within a year, however, 5 or 6 other dentists had opened in competition, primarily in retail locations in the area, where they could advertise by large signs affixed to or adjacent to their buildings. Because Respondent's practice was located in a discrete office building, he was unable to do this and he found his practice was not growing as he had desired because of that inability to attract patients. As a result, he decided to advertise. In the Spring of 1989, some 5 years after he opened his practice, and being dissatisfied with the speed with which it was growing, he attended a practice-building seminar at which one of the presentations recommended starting a dental referral service after a check was first made with the Department to see what type of activity could be approved. Considering that a good idea, Dr. Panzarella contacted 2 other dentists who shared office space and who agreed to go in with him if the proposal could be approved by both the Department and their attorney. Dr. Panzarella then called the Department's office in Tallahassee at an information number listed in one of its brochures. He was advised by an unidentified individual that there were no laws in Florida which regulated dental referral services. His lawyer and the lawyer for the other 2 dentists with whom he was considering opening the service agreed. Based on what he believed was a clear path toward the opening of such a service, Dr. Panzarella then went back to the practice-building firm and retained it to design the advertisement which he then placed in the October, 1989 edition of the telephone yellow pages in his area. As soon as the advertisement came out, Dr. Panzarella began getting a number of phone calls from dentists practicing in the local area objecting to it. Some were reasonable and some were quite vituperative in nature. At his own request Dr. Panzarella subsequently went to a meeting of the North County Dental Society at which he described his service and answered all the questions put to him by the members about it. Dr. Peter A. Pullon, President of the Central County Dental Society but not a member of the North County Society, was also present at that meeting and was most aggressive in his questioning of Respondent about the advertisement. After asking numerous pointed questions and apparently not getting the answers he wanted, Dr. Pullon left the meeting before it was terminated. In substance, however, Dr. Panzarella was told, at or after the meeting, that in the opinion of the members of the North County Society, he was in violation of the Board's advertising rules and he would either have to cancel the advertisement or let all dentists practicing in the area join his referral service. After Dr. Pullon left the meeting, the members agreed to query the Department for guidance on the issue and be bound by the Board's response, but before that could be done, Dr. Pullon, on behalf of the Central County Society, filed the Complaint which culminated in this hearing. In the interim period between the North County Society's meeting and the filing of the Administrative Complaint, Dr. Panzarella and his associates attempted to get additional dentists to sign up with their service. No one wanted to do so, however, especially in light of the complaints about it that had been raised. Once the Complaint was filed, Respondent called the Department and spoke with Mr. Audie Wilson, asking him about the propriety of a dental referral service, and again was informed there were no rules of the Board of Dentistry governing dental referral services. The advertisement in issue here was placed by Dr. Panzarella and 2 other dentists who were practicing together. The telephone number listed in the advertisement rang in one of the two offices; in Respondent's office several days a week and in his associates' office several days a week. That procedure was followed for a period of time until they were able to determine the volume of the business, at which time the referrals were turned over to a commercial answering service to handle. The referral service was not organized as a separate legal entity. The 3 dentists in question got together as a group to do it, and all calls which came in were referred either to Respondent's office or to the office of the other two dentists. All three were general dentists, and if anyone called with a specialized problem beyond their degree of competence, they did not refer that person to another dentist but, instead, directed that person to call another referral service. Respondent and his associates had written procedures under which the referrals to their practices were regulated, such as: how the calls were to be answered; who was to get the referral; and how questions asked were to be answered. Nonetheless, no one was hired by Respondent or his associates to operate the service. Any calls were answered by the regular receptionist in the office which was receiving the calls on that day. They did, however, keep records as to from whom and when the calls were received and to which office of the participants they were referred. From this, it becomes clear that the service organized by Respondent and his associates was no more than an avenue to funnel patients to their respective dental practices and was not, in fact, a bona fide referral service such as is operated by the Palm Beach County Dental Association and by others who also advertise in the phone book. The advertisement complained of here indicates that all members of the referral service had been checked on through the American Dental Association, insurance carriers, dental schools, and had a number of years in practice. In reality, these checks were done by the Respondent's wife who merely verified that the participants had the credentials claimed. The inspections of offices and equipment referred to were done by Respondent visiting his associates' office and their visiting his, and references were provided to each other. Dr. Pullon attended the North County Society's meeting where Respondent explained his service and spoke with him and his associates. Dr. Pullon has been in practice in Florida for 11 years and is licensed in Florida and other states. He is a member of and accredited by numerous accrediting agencies and organizations. In his 11 years of practice he has become familiar with referral services and it is his understanding there are only two bona fide referral organization types. One charges the client for referral to any one of several dentists in various specialties who are signed up with it. The other is operated by a dental society which refers on the basis of membership in the society. Those societies are, however, open to membership by all licensed dentists in the community. One must belong to the society to be eligible for the society's referral service. The instant situation, in Pullon's opinion, was not a bona fide referral service but more an advertisement for the participants' practices. It has been so found. Dr. Pullon filed his complaint with the Department in his capacity as President of the Central County Dental Society. On the complaint form he listed several witnesses to the operation of the service, none of whom are members of the Central County Society. After attending the pertinent meeting of the North County Society, Dr. Pullon advised Dr. Krauser, the president of that society, that he intended to advise the Respondent of the problem and would ask for an opinion from the Department before asking Respondents to pull their advertisement if it was determined to be inappropriate. He noted that if they were so advised and thereafter refused to pull the advertisement, he would then file a complaint with the Department. However, after briefing the executive committee of the Central County Society after the North County Society meeting, the committee voted to report the matter to the Department immediately. This is the second complaint Dr. Pullon has filed with the Department concerning another dentist. The former was not related to dental advertising or to this Respondent. It resulted in no action being taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case imposing on the Respondent, Carl T. Panzarella, a reprimand and an administrative fine of $1,000.00. RECOMMENDED this 12th day of October, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1992. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 George P. Bailey, Esquire The Raquet Club Plaza 5160 Sanderlin, Suite 5 Memphis, Tennessee 38117 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation/Board of Dentistry 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent failed to comply with a valid order of the Board of Dentistry and, if so, what disciplinary action should be taken against Respondent’s license to practice dentistry.
Findings Of Fact Petitioner, the Department of Health, is the state agency charged with regulating the practice of dentistry pursuant to Chapters 455 and 466, Florida Statutes. However, at the time the complaint in this cause was filed, this responsibility was assigned to the Agency for Health Care Administration. At the time the Final Order which is the subject of this proceeding was entered, this responsibility was assigned to the Department of Business and Professional Regulation. Respondent, Arnold G. Clement, is now and was at all times material hereto a licensed dentist in the State of Florida, having been issued license number DN 0002500. Respondent’s last known address is 1405 Lennox Road East, Palm Harbor, Florida 34683. On April 22, 1993, the Department of Business and Professional Regulation, Board of Dentistry, entered a Final Order in DPR Case Nos. 90-3628, 90-4117, 0092038, and 0092039 (Final Order), a prior disciplinary action against Respondent. The Final Order, which incorporated by reference an Order issued on February 16, 1993, and a Stipulation approved August 31, 1991, set forth the conditions of Respondent’s probation. Respondent’s signature is on the Stipulation and copies of the Order and Final Order were mailed to counsel representing Respondent in that proceeding. Respondent was aware of the Final Order and Order entered by the Department of Business and Professional Regulation. The Final Order suspended Respondent’s license for six months, and after the period of suspension, placed Respondent’s license on probation for three years. As a condition of probation, Respondent was required to: (1) pay an administrative fine of $2,000; (2) perform ninety-six (96) hours of community service during each year of probation; and (3) complete sixty (60) hours of continuing education in removable prosthetics. Prior to the end of his six-month suspension period, Respondent was required to submit for Board approval, a written practice plan that provided for supervision by a Board approved licensee and for submission to the Board of written reports by the supervising licensee. During the probationary period, Respondent’s practice was restricted to work involving removable prosthetics. On or about October 23, 1993, and December 7, 1993, respectively, Respondent submitted to the Board the required Medical Practice Plan and Dental Practice Plan. These plans were apparently approved by the Board. By letter dated February 15, 1997, the agency reiterated the terms and conditions of Respondent’s probation. That letter provided in pertinent part the following: Pursuant to the final order filed April 22, 1993, the “hearing” held October 23, 1993 concerning the “Dental Practice Plan”, and the subsequent receipt and review of this practice plan, please note the following: * * * Probationary Conditions - 60 hours continuing education in “Removable Prosthetics. Quarterly Written Reports from Woodrow D. Wheetley, DDS, effective March/94, and continuing on a three (3) month quarter thereafter, ending December/96. Submit proof of 96 hours community service, with the first report due December/94, and continuing through December each year ending in 1996. We are requesting “Proof” be in the form of a notarized affidavit from the community service organization. The required fee of $2,000.00 is due April 24, 1994. It is your responsibility to assure that all reports are submitted timely and as specified in the final order filed April 22, 1993. . . . In the Medical Practice Plan submitted by Respondent on October 23, 1993, he agreed to: egin doing his community service work which if approved by the [B]oard would consist of seeing indigent patients at Dr. Wheetley’s office for either no fee or for the cost of the dentures only. In the Dental Practice Plan that Respondent submitted to the Board, he agreed to: egin doing his community service work consisting of removable prosthetics, which if approved by the [B]oard would consist of seeing patients referred to Dr. Clement by the Department of Health and Rehabilitative Services, Pasco Community Health Agency or any other agency as directed by the Board of Dentistry. . . . Respondent failed to submit the requisite proof that he performed ninety-six hours of community service hours for the years ending December 1994 and December 1995. In fact, no such proof was submitted at any time during Respondent’s during entire probationary period. Respondent failed to comply with the requirements of the Final Order relative to submission of quarterly written reports. Pursuant to the terms of Respondent's probation, these reports were to be submitted quarterly beginning March 1994, and continuing thereafter on at three month intervals, with the last report due December 1996. While these quarterly reports were to be prepared by the dentist supervising Respondent, it was Respondent’s responsibility to assure that all reports were timely submitted. In 1994, only two quarterly reports, not the required four, were submitted on Respondent’s behalf. The first report, due the end of March 1994, was not received by the Board until May 6, 1994. The second report was due at or near the end of June 1994, but was not submitted to the Board until November 1994. Thus, the only two quarterly reports received by the Board in 1994, were untimely submitted. Moreover, no quarterly reports were submitted by or on behalf of Respondent during the 1995 and 1996 calendar years. If Respondent had complied with the terms of and conditions of his probation as set forth in the Final Order, his probationary status would have ended in December 1996. Respondent violated the provisions of the Final Order entered in DPR Case Nos. 90-04117, 90-03628, 0092038, and 0092039 by failing to comply with the terms and conditions of his probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, the Department of Health, Board of Dentistry, enter a Final Order finding that Respondent violated a lawful order of the Board and revoking his license to practice dentistry. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: Craig A. McCarthy, Esquire Greg W. Files, Esquire Thomas E. Wright, Esquire Agency for Health Care Administration Office of the General Counsel Allied Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Arnold G. Clement, D.D.S. 1405 Lennox Road East Palm Harbor, Florida 34683 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building Six Tallahassee, Florida 32399-0700
The Issue This is a license discipline case in which the Department of Professional Regulation seeks to have disciplinary action taken against the Respondent on the basis of allegations set forth in an Administrative Complaint filed April 29, 1988. The Respondent is charged with one count of violating Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. At the commencement of the hearing, the parties filed a Joint Prehearing Stipulation in which they stipulated to certain amendments to the Administrative Complaint, stipulated to certain factual matters, and stipulated to the receipt into evidence of certain records. The parties also stipulated to the late filing of the depositions of Dr. Jordan, Dr. Braunstein, and Dr. Kilgallen. At the hearing, the Petitioner presented the testimony of two witnesses and offered four exhibits which were received in evidence. The Respondent testified on his own behalf, presented the testimony of one other witness, and offered three exhibits which were received in evidence. Subsequent to the hearing, the transcripts of the depositions of Dr. Jordan, Dr. Braunstein, and Dr. Kilgallen were filed, and on March 24, 1989, the transcript of the formal hearing was filed. Thereafter, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. (The Respondent also filed a written argument in support of his proposals.) The parties' post-hearing submissions have been carefully considered during the formulation of this recommended order. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the parties' stipulation and on the evidence received at the hearing, I make the following findings of fact: The Respondent, David E. Murrin, D.D.S., and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0008730. From June of 1984 through January of 1986 the Respondent provided dental services to a patient named Richard A. Byrd. Mr. Byrd had experienced many problems prior to receiving treatment from the Respondent. At the time of Mr. Byrd's first visit to the Respondent, Mr. Byrd had an upper splint in place, a history of bruxism (grinding of the teeth), short lower teeth, fourteen teeth missing (including all back teeth), and several old root canals. As part of the treatment of Mr. Byrd, the Respondent made a complete lower splint for Mr. Byrd. The splint was delivered to Mr. Byrd on June 21, 1985. It was difficult to fit Mr. Byrd with the splint because of his edge-to- edge occlusion, his bruxism, his short teeth, and his missing back teeth. Prior to fabricating a splint or bridge, a dentist normally prepares a "working model," which is a reproduction of the teeth which have been prepared to accept the splint or bridge. The working model of Mr. Byrd's teeth prepared by the Respondent showed adequate tooth preparations and retention length. In the normal practice of restorative dentistry, the dentist or the laboratory technicians sometimes make errors when fabricating bridgework. Bridgework which is not correct when initially delivered can be repaired or remade. However, a dentist cannot force a patient to return for further treatment. When the splint was completed by the Respondent and delivered to Mr. Byrd on June 21, 1985, there were several problems with the splint. Mr. Byrd did not like the appearance of the splint. The splint did not fit right and made Mr. Byrd uncomfortable. The Respondent was displeased with the embrasure spaces and the contours of the splint. The Respondent temporarily cemented the splint in place on June 21, 1985, and directed Mr. Byrd to make an appointment to return in a few days so that the Respondent and the laboratory technician could do some more work on the splint. It is acceptable dental practice for an imperfect permanent-type splint or bridge to be temporarily cemented in place and used as a temporary splint or bridge pending repair or replacement of the imperfect splint or bridge. Mr. Byrd did not return promptly to the Respondent's office. Instead, Mr. Byrd waited until August 16, 1985, to return. When Mr. Byrd returned on August 16, 1985, some of the porcelain on the splint was fractured. While Mr. Byrd was still present in the office, the Respondent arranged for Mr. Byrd to meet with the Respondent and the laboratory technician on August 21, 1985. The purpose of the August 21, 1985 meeting was to determine what needed to be done to repair or replace the splint that had been delivered to Mr. Byrd on June 21, 1985. Mr. Byrd did not appear for the August 21, 1985 meeting. Mr. Byrd next visited the Respondent's office on November 15, 1985, at which time he refused to see the Respondent and was attended by Dr. Ross, another dentist in the Respondent's office. At that time, Mr. Byrd complained of sensitivity in the mandibular area and also complained about the fractured porcelain in the splint. Mr. Byrd made it clear that he was unhappy about his dental treatment. Dr. Ross felt that Mr. Byrd's complaints of sensitivity were due to endodontic problems and referred Mr. Byrd back to his endodontist, who was Dr. Braunstein. On December 4, 1985, the Respondent had a telephone conversation with Dr. Braunstein in an attempt to coordinate the treatment of Mr. Byrd. It was decided that Dr. Braunstein would complete the necessary endodontic procedures and that the Respondent would then remake the splint. Mr. Byrd's next, and last, visit to the Respondent's office was on January 9, 1986. Mr. Byrd wanted to have the splint redone, but did not want to have the Respondent or anyone in the Respondent's office do the work. Mr. Byrd wanted the Respondent to reimburse him in the approximate amount of $8,000 to $10,000 in order to have the splint remade by some other dental office. The Respondent declined to pay for having the work done at another office, but offered to remake the splint at no additional cost to Mr. Byrd. Mr. Byrd never accepted the Respondent's offer to remake the splint. Mr. Byrd failed or refused to allow the Respondent to repair or remake the splint. The Respondent was not finished with the splint on June 21, 1985, when it was initially cemented temporarily into Mr. Byrd's mouth. The splint was, however, adequate for use as a temporary splint, as indicated by the fact that it was used as a temporary splint by the subsequent treating dentist, Dr. Trabulsky, and, as of the date of the hearing, was still being used as a temporary splint. It is not reasonable to hold a dentist responsible for the adequacy of a splint or bridge when the dentist is not yet finished with it, and the patient fails or refuses to return to the dentist's office so the work can be completed. In sum, the Respondent's diagnosis and treatment of Mr. Byrd has not been shown to have been incompetent, nor has there been a showing that such diagnosis and treatment falls below minimum standards of performance when measured against generally prevailing peer performance.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Dentistry issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of May 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Bui1dig 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2552 The following are my specific rulings on all proposed findings of fact submitted by all of the parties: Findings proposed by Petitioner: Paragraphs 1 through 7: Accepted, along with additional facts to form a more complete picture of the events surrounding the Respondent's treatment of Mr. Byrd. Paragraphs 8 through 11: Rejected as for the most part irrelevant or subordinate and unnecessary details. The observations of Dr. Braunstein are of little value in disposing of the central issue in this case because, as he stated at page 15 of his deposition, "...I really don't feel qualified to judge standards, you know, the procedures that were performed on him [Mr. Byrd)." Paragraphs 12 through 15: The essence of the findings proposed in these paragraphs is accepted, but most of the proposed details are rejected as subordinate and unnecessary. Paragraphs 16 and 17: Rejected as constituting argument about the evidence or commentary on the evidence, rather than proposed findings of facts. Further, the implications suggested by these paragraphs are rejected as contrary to the greater weight of the evidence. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraphs 2 and 3: Dates of first and last treatment and basic details of patient's condition are accepted. All other details are rejected as irrelevant to disposition of this case. Paragraphs 4 and 5: Rejected as unnecessary background history. Paragraphs 6 through 9: All accepted, with exception of last sentence of Paragraph 9. That sentence is incorrect. Paragraphs 10 through 14: Accepted. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 William Furlow, Esquire Katz, Kutter, Haigler, Alderman, Eaton, Davis & Marks, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
