The Issue The ultimate issues to be decided in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the practice of dentistry and, if so, whether his license should be revoked or suspended for a specified period, or whether other disciplinary action should be invoked. Petitioner contends that Respondent violated the provisions of Section 466.028(1)(y), Florida Statutes, in connection with his construction and adjustments of a set of upper and lower dentures for Sally Cohen, a former patient. Respondent disputes the allegation and contends that his diagnosis and treatment of Sally Cohen was proper.
Findings Of Fact Petitioner holds license No. 1808 issued by Petitioner and has been licensed to practice dentistry in the State of Florida since 1953. Prior to his being licensed in Florida, the Respondent practiced dentistry in other locations beginning in 1940. Since approximately 1963, the Respondent's practice has been solely in the area of fabricating, constructing, fitting, and adjusting complete and partial dentures. Sally Cohen was formerly a patient of the Respondent. The Respondent first saw her during October, 1978, with a broken lower denture. The Respondent repaired it and refit it in her mouth. The Respondent saw Ms. Cohen in October, 1980. She was complaining of her old dentures. The Respondent observed her dentures and noted that they were slipping. He recommended that she get new dentures, and he told her that he would be able to make the dentures for her. He saw her again in April, 1981, observed the same conditions, and made the same recommendations. Ms. Cohen requested that he fit her for a new set of dentures. The Respondent took impressions, developed models, and sent the models to his laboratory for processing into dentures. When the laboratory completed the manufacture of the new dentures, Ms. Cohen returned to the Respondent's office to have the dentures fitted. The Respondent placed the dentures in her mouth, checked for "occlusion," and observed the fit of the dentures. The term "occlusion" pertains to the manner in which the upper and lower dentures touch. With dentures, it is important that the occlusion is as uniform as possible so as to assure a proper fit and prevent slippage of the denture plates within a patient's mouth. The occlusion and fit of Ms. Cohen's dentures appeared appropriate. The Respondent explained to Ms. Cohen at the fitting that there would be an adjustment period, and he explained good oral hygiene procedures to her. Ms. Cohen's upper ridge was anatomically good, but her lower ridge was in poor shape; and it was difficult to accomplish a fit of the lower plate without "overextending" the denture borders so as to make the lower denture as stable as possible in the patient's mouth. The Respondent ordinarily likes to wait for approximately one week after dentures are fitted to make an adjustment. Ms. Cohen, however, returned to his office on the first day after the fitting, complaining of pain. It appears that Ms. Cohen has a low pain threshold. Respondent again explained proper oral treatment to her. He observed no sore spots of significance in her mouth. He again checked the occlusion and fit of the dentures and observed no problems. Several times thereafter, Ms. Cohen returned to the Respondent's office complaining of pain from the new dentures. Each time, the Respondent checked the occlusion and fit of the dentures. He made minor adjustments. He properly observed the occlusion and observed no problems. The Respondent last observed Ms. Cohen on June 12, 1981. He felt at that time that she was in good condition. The Respondent was going on vacation, and he informed Ms. Cohen that Michael Overleese, the dentist who shared office space with the Respondent, would be handling any adjustments while the Respondent was away. While the Respondent was on vacation from his practice, Ms. Cohen made several appointments to see Dr. Overleese. She continued to complain that the dentures hurt her mouth. She complained of generalized discomfort, but was generally unable to pinpoint a specific area of pain. Dr. Overleese made four adjustments of the patient's dentures during June and July, 1981. He properly observed the occlusion and fit of the dentures. He observed no problems. He felt that Ms. Cohen was not keeping the dentures in her mouth long enough to adjust to them. He did not observe any ulceration or irritation in places where Ms. Cohen indicated she was experiencing pain. Dr. Overleese did grind some spots on the patient's dentures in order to improve occlusion, but this is not an unusual occurrence. Occlusion of dentures can typically always be improved at least slightly. Dr. Overleese was somewhat frustrated with the situation. On her last visit, Ms. Cohen felt that Dr. Overleese told her that she would not be able to return for further adjustments. Dr. Overleese did not give instructions of that sort, but was misunderstood by Ms. Cohen. After the last visit, Ms. Cohen visited a lawyer. The attorney assisted her in filing a complaint with the Petitioner. The Petitioner conducted an investigation and retained Richard A. Saal, D.D.S., to examine Ms. Cohen. Dr. Saal examined her in October, 1981, and observed that there was a premature occlusion. He observed that the first bicuspid on the upper and lower right dentures met prematurely. The premature occlusion was obvious to Dr. Saal. Such an occlusion would result in movement of the denture plates, resulting in pain. Dr. Saal concluded that the most logical explanation for the premature occlusion was improper manufacture and fitting of the dentures or an improper adjustment of the occlusion. While this may be the most common explanation, it is not the only one. Such a prematurity could result from structural problems in the patient's mouth and from changes in the structure. Tooth grinding on the part of the patient or any action that changes the contour of the lower ridge of a patient's mouth could result in such a prematurity. It is not uncommon for such prematurities to develop with dentures that displayed a proper occlusion and fit when first placed in the patient's mouth. Given the fact that the Respondent and Dr. Overleese properly observed the occlusion of Sally Cohen's dentures and observed no abnormalities of the sort observed by Dr. Saal, it is concluded that events which occurred after Ms. Cohen's last visit to Respondent's office resulted in the premature occlusion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Board of Dentistry, dismissing the Administrative Complaint that has been filed against the Respondent, Leonard Foley, D.D.S. RECOMMENDED this 1st day of November, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 1st day of November, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Mr. Samuel R. Shorstein Department of Professional Secretary, Department of Regulation Professional Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Patrick L. Bailey, Esquire Mr. Fred Varn Sullivan, Ranaghan, Bailey Executive Director & Gleason, P.A. Board of Dentistry 2335 East Atlantic Boulevard Department of Professional Post Office Box 549 Regulation Pompano Beach, Florida 33061 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Petitioner earned a passing grade on the clinical portion of the June, 1986 dental examination?
Findings Of Fact The Petitioner is a licensed dentist in the State of Louisiana. Her business address is 1006 Surrey Street, Lafayette, LA. The Petitioner attended Boston University and received a Bachelor of Arts degree in 1973. The Petitioner attended MaHerry Medical College and received a dental degree in 1978. The Petitioner received post-graduate training in dentistry during a residency at Sidham Hospital and received a Post-Graduate Certificate from Sidham Hospital in 1979. The Petitioner has taken approximately 200 hours of post-graduate courses in endodontics. From 1979 until 1982, the Petitioner practiced dentistry in the Bronx, New York. In 1982 the Petitioner relocated her practice to Louisiana. The Petitioner has passed the Northeast Regional Boards and the Louisiana State Board Exam. She is licensed to practice in approximately 20 states in the northeast United States and in Louisiana. The Petitioner has been an applicant for licensure in dentistry in the State of Florida. The Petitioner took the June, 1986 Dental Examination. The Petitioner was notified that she had been awarded an overall score for the clinical portion of the examination of 2.88. A score of 3.00 is the minimum passing score for the clinical portion of the examination. The Petitioner timely requested a review of her grade, filed objections and timely requested a formal administrative hearing. The procedures tested during the examination and the Petitioner's scores for the procedures are as follows: Amalgam Cavity Prep 2.33 Amalgam Final Restoration 2.66 Denture 2.87 Periodontal 3.66 Posterior Endodontics 2.66 Anterior Endodontics 2.00 Cast Class II Only Prep 3.00 Cast Class II Wax-Up 3.33 Pin Amalgam Prep 3.00 Pin Amalgam Final 2.00 Each procedure was graded by 3 different examiners. Each examiner graded a procedure independently. One of the following grades was assigned to each procedure by each examiner: - Complete failure; - Unacceptable Dental Procedure; - Below Minimal Acceptable Dental Procedure; - Minimally Acceptable Dental Procedure; - Better than Minimally Acceptable Dental Procedure; - Outstanding Dental Procedure. The procedures were graded in a holistic manner. A failing grade must include a "comment" justifying the grade of the examiner's grade sheets. The three examiners' grades for a procedure were averaged to determine the score for the procedure. The procedure scores were then individually weighted and the weighted scores were added to provide an overall clinical grade. This overall clinical grade must be at least 3.00 to constitute a passing grade. Examiners are experienced Florida dentists selected by the Board of Dentistry. They must have at least 5 years of experience as a dentist. Potential examiners attended a standardization course. The standardization course consisted of 8 to 12 hours of training, including a review of the criteria by which each procedure is required by rule to be judged. Some of the dentists who took part in the standardization exercise were designated as examiners and some were designated as monitors. Monitors were present during the examination with the candidates. They were instructed not to assist candidates during the examination. Subsequent to receiving notice that she had not received a passing grade on the June, 1986 examination, the Petitioner challenged the correctness of the scores she received on procedures 1, 2, 5, 6, 9 and 10. After receiving notice that her license application was being denied because the Petitioner did not receive a passing grade on the clinical portion of the June, 1986 dental examination, the Petitioner attended a review session with Dr. Simkin on September 10, 1986. The session was scheduled to last for 30 minutes. The session actually lasted longer than that. The session was recorded with a tape recorder. At the conclusion of the session the tape recorder was turned off. The discussion continued after the tape recorder was turned off, however. In total, the session and the continued discussion lasted for approximately 45 to 50 minutes. Procedure 1 Procedure 1 is an "Amalgam Cavity Preparation." It involves preparation of a tooth for a filling. This procedure is performed on an actual patient as opposed to a model tooth. The three examiners who graded the Petitioner's performance on procedure 1 awarded the Petitioner the following scores and made the following comments: Examiner 136 3 Outline form & unsupported enamel Examiner 129 2 Unsupported enamel Examiner 83 2 Outline form & depth prep. The primary problem with the tooth the Petitioner performed procedure 1 on and the reason for the failing grades of two of the graders was the failure of the Petitioner to insure that the amalgam base or floor was in dentin and not enamel. Whether the base or floor of the preparation is dentin can be determined by the color, dullness or feel of the dentin. It cannot be determined by x-rays. If an amalgam filling rests on enamel instead of dentin, the filling may be more sensitive to the patient, the enamel can crack and/or the filling may also crack. When the cracking of the enamel or filling may occur cannot be predicted. The Petitioner testified that the depth of the preparation was sufficient and has argued that such a finding is supported by notes which were exchanged between a monitor and the examiners. Petitioner's reliance on the notes which were passed between the monitor and examiners is misplaced. The first note was a note from the Petitioner to the examiners noting conditions she wanted the examiners to be aware of which were unrelated to whether the preparation was into the dentin. The monitor did not "approve" what the Petitioner wrote in her note; the monitor merely noted that the Petitioner had written the note. The other note was a note from one of the examiners to the Petitioner. That note indicated that the Petitioner needed to "lower pulpal floor into dentin." This note is consistent with the examiners' findings. If the note had been followed by the Petitioner and the pulpal floor had been lowered, the patient would have been protected from a potential hazard consistent with the Board's duty to protect patients being used in examinations. When the monitor instructed the Petitioner to "proceed" the monitor was not actually telling the Petitioner what steps she should take or showing any agreement or disagreement with the examiner's note. No regrade of procedure 1 is possible because the procedure was performed on a patient. If the grades the Petitioner received for this procedure had been improper, the Petitioner would have to take this portion of the test over. There is not justification for allowing the Petitioner to take procedure 1 over. The grades the Petitioner received were justified by the comments of the examiners and the difference in the grades of the 3 examiners is insignificant. Procedure 2 Procedure 2 is an "Amalgam Final Restoration." This procedure involves the filling of the tooth prepared in procedure 1 and the shaping of the surface of the filling to the natural surface of the tooth. The three examiners who graded the Petitioner's performance on procedure 2 awarded the following scores and made the following comments: Examiner 138 2 Functional anatomy, proximal contour & gingival overhang Examiner 150 3 Functional anatomy Examiner 48 3 Functional anatomy & margin Although gingival overhang can often be detected with x-rays, it is not always possible to detect with x-rays. In light of the score of 2 given by the examiner which noted "gingival overhang" as one of the examiner's comments, the overhang was probably very slight. It is therefore not unusual that the other two examiners did not note the existence of an overhang. Additionally, a slight gingival overhang could also be noted as "margin." Therefore, it is possible that examiner 48 noted the same problem with the tooth when the comment "margin" was marked that examiner 138 noted when examiner 138 marked the comment "gingival overhang." This procedure was performed on a patient and therefore could not be reviewed. The comments given by the examiners, however, are sufficient to justify the grades given, especially the failing grade. The grades the Petitioner received on procedure 2 were justified by the comments of the examiners and there was no discrepancy in the grades awarded sufficient to order a re-examination of this procedure. No regrade is possible or warranted. Procedure 5 Procedure 5 is a "Posterior Endodontics." This procedure involved the preparation of a molar tooth for a root canal. The procedure is performed on a model tooth and not on the tooth of a patient. The three examiners who graded the Petitioner's performance on procedure 5 awarded the following scores and made the following comments: Examiner 133 3 Overextension Examiner 129 3 Outline form & overextension Examiner 153 2 Outline form, underextension & pulp horns removed Over extension and outline form can indicate the same problem. According to Dr. Simkin, "As soon as you have pulp horns, you have underextension and the outline form is improper ..." It is not inconsistent for examiners to determine that a tooth has an overextension and an underextension. Both conditions can occur on the same tooth as a result of the same procedure. The tooth procedure 5 was performed on by the Petitioner did in fact have an overextension, as even Dr. Webber and Dr. Morrison, witnesses of the Petitioner, agreed. The tooth procedure 5 was performed on by the Petitioner also had pulp horns an underextension. The Petitioner's performance on procedure 5 was not graded according to an outdated technique. The Petitioner's testimony that she was looking for a possible fourth canal is rejected the area of over extension was too large and it was in the wrong area to be justified by a search for a fourth canal. The evidence also failed to prove that any of the examiners graded the Petitioner's performance on procedure 5 according to an outdated technique or that they did not take into account the need to search for a fourth canal. The grades the Petitioner received on procedure 5 were justified by the comments of the examiners and there was no significant discrepancy in the grades they awarded. Their comments and grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 6 Procedure 6 is an "Anterior Endodontics. " This procedure involves the preparation of an anterior, or front, tooth for a root canal. It is performed on a model tooth and not on the tooth of the patient. The three examiners who graded the Petitioner's performance on procedure 6 awarded the following scores and made the following comments: Examiner 153 2 Outlining form, underextension, & pulp horns removed Examiner 129 2 Outline form - too far incisally did not remove entire roof of chamber Examiner 133 2 Outline form & gouges The tooth that the Petitioner performed procedure 6 on has pulp horns (underextension), is overextended (bevelling of the entrance too severely) and has gouges. The grades the Petitioner received on procedure 6 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and the grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 9 Procedure 9 is a "Pin Amalgam Prep." This procedure involves preparation of an ivory model tooth for restoration. The tooth includes an area of damage or decay which is so extensive that a large portion of the tooth must be removed and the amalgam filling must be supported with a pin. The examiners who graded the Petitioner's performance on procedure 9 awarded the following scores and made the following comments: Examiner 153 3 Outlining form & pin placement Examiner 109 3 Retention form & unsupported enamel Examiner 133 3 Outline form & pin placement Although the Petitioner received a passing grade from all 3 examiners, she contended that she was entitled to a higher score of 4. The grades the Petitioner received on Procedure 9 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and grades were Supported by review of the model tooth. No regrade or change in score is justified. Procedure 10 Procedure 10 is a "Pin Amalgam Final." This procedure is the final step of the procedure begun in procedure 9. A different model tooth, one already prepared, is used for this procedure. The three examiners who graded the Petitioner's performance on procedure 10 awarded the following scores and made the following comments: Examiner 153 2 Proximal contour & margin Examiner 129 2 Functional anatomy & proximal contour Examiner 133 2 Functional anatomy & proximal contour Proximal contour involves the shape of the amalgam - it should follow the natural contour of the tooth. In this case, the tooth used by the Petitioner had a ledge area, where food can be trapped, and a slight overhang. Margin is where the filling meets the tooth. It should be smooth and it was not on the Petitioner's tooth. Functional anatomy primarily involves the occlusal portion of the tooth. The Petitioner failed to build up the lingual cusp, which was the cusp that had been removed. The grades the Petitioner received on Procedure 9 were justified by the comments of the graders and there was no discrepancy in the grades they awarded or their comments. The comments and grades were supported by review of the model tooth. No regrade or change in score is justified.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the clinical portion of the June, 1986, dental examination was a failing grade. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4838 The parties have timely filed proposed recommended orders containing proposed findings of fact. It has been noted below which proposed finding of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioners Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-7. 4 and 7. This proposed finding of fact is generally irrelevant. The issue in this proceeding is whether the Petitioner successfully passed an examination. It is accepted, however, to the extent that it is relevant as to the weight which should be given to the Petitioner's testimony. The first two sentences are accepted in 9, 11 and 12 except to the extent that the proposed findings of fact pertain to the December, 1985 examination. The last sentence is rejected as irrelevant. The time for challenging the results of the December, 1985 examination had passed at the time of this proceeding and the Petitioner did not attempt to amend its Petition until the formal hearing had commenced. 5 12 and 14. 6 13-15. 7 10. 8-9 These proposed "findings of fact" are statements of issues or argument and not findings of fact. To the extent that any finding of fact is suggested, it is not Supported by the weight of the evidence. 10 12 and 19. This proposed finding of fact is irrelevant. See the discussion of proposed finding of fact 3, supra. 20. The Petitioner's score of 2.88 was not an "alleged" score and more than 30 minutes of the review session was recorded. 13-15 Irrelevant, unnecessary or not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant or not supported by the weight of the evidence. 18-20 Not supported by the weight of the evidence. Irrelevant. The first 3 sentences are accepted in 21 and 22. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant. 25. The monitor did not indicate agreement with the Petitioner's note. The monitor did take the note and the patient to where an examiner looked at the patient and an examiner did give a note to the monitor. See 25. The rest of the proposed fact is not supported by the weight of the evidence. 26 22. Not supported by the weight of the evidence. The first sentence is accepted in 25. The rest of the proposed fact is not supported by the weight of the evidence. Not supported by the weight of the evidence. 30 27. Not supported by the weight of the evidence. The first 3 sentences are hereby accepted. The rest of the proposed fact is not supported by the weight of the evidence. 29 and 30. The last sentence is irrelevant. 34-35 Not supported by the weight of the evidence. The first sentence is accepted in 33. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant and too broad. The first sentence is accepted in 34. The fourth and fifth sentences are accepted in 35. The rest of the proposed facts are not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. The first two sentences are accepted in 40 and 41. The rest of the proposed fact is not supported by the weight of the evidence. 42 44. 43 The first sentence is accepted in 45. The rest of the proposed fact is not supported by the weight of the evidence. 44 48. 45 The first sentence is accepted in 49. The rest of the proposed fact is not supported by the weight of the evidence. 46-47 Not supported by the weight of the evidence or irrelevant. Respondent's Proposed Findings of Fact 1 8-11. 2 12. 3 13 and 16-17. 4 18. 5-8 Hereby accepted. 9 13-14. 10 15. 11 19. 12-14 Unnecessary. Irrelevant. Argument. 15 21. 16 22. 17-19 Summary Of testimony. See 23-28. 20 29. 21 30. 22-25 Summary of testimony. See 31-33. 26 34. 27 35-36. 28-29 35. 30 Summary of testimony. See 36-39. 31 40. 32 41. 33-34 Summary of testimony. See 42-43. 35 44. 36 45. 37 Summary Of testimony. See 46-47. 38 48. 39 49. 40 Summary of testimony. See 50-53. 41-43 Unnecessary. Argument as to the weight of the evidence. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida. 0750 Rex D. Ware, Esquire Fuller & Johnson, P.A. Ill North Calhoun Street Tallahassee, Florida 32302 =================================================================
The Issue Whether Petitioner is entitled to a passing grade on the dental examination given on June 4-7, 2000.
Findings Of Fact Shahmohamady took the clinical portion of the dental licensure examination on June 4-7, 2000. He received a failing score of 2.98. The clinical portion of the dental examination consists of nine parts: a written clinical, three patient procedures, and five mannequin procedures. The five mannequin procedures consist of the endodontic, preparation for a three- unit fixed partial denture, the Class IV composite, the Class II composite, and the Class II amalgam. Shahmohamady challenges the grades that he received for the preparation for a three-unit fixed partial denture and the Class IV composite. The Department retains examiners and monitors during the examination. The examiners actually grade the clinical procedures performed by the candidates during the examination. The monitors give instructions to the candidates, preserve and secure the integrity of the examination, and act as messengers between the examiners and candidates. The procedures are blind graded independently by three examiners. The examiners do not know the name of the candidates they are grading. Each examiner grades the procedures independently of the other examiners. Discussion among the examiners is not allowed. The three examiners' grades for each procedure are averaged for the overall grade for the procedure. Each examiner must attend and successfully complete a standardization course prior to the examination. The standardization session trains each examiner to use the same grading criteria. After the examination is concluded and the final grades are given, the Department performs an analysis of the examiners' grading to determine the reliability of each examiner's grading. Candidates and examiners do not have contact during the examination. If a candidate has a problem during the examination, he is to alert a monitor. Candidates may fill out a Monitor-To-Examiner Instruction form, advising the monitor of any problem experienced during the examination. The monitor will read the comments of the candidate, and if the monitor agrees with the comments the monitor will write his monitor number on the form and circle the number. The monitor will provide the comment forms to the examiners when they are grading the procedures. Each examiner is to read the comment forms. The examiner is to acknowledge that he has read the forms on the grade sheet by either writing SMN followed by the number of comment sheets he read for all the procedures or by writing under each procedure SMN followed by the number of comment sheets that he read for that particular procedure. Shahmohamady filled out a Monitor-to-Examiner Instructions form on June 6, 2000, for the preparation for a three-unit fixed partial denture procedure and wrote the following: Doctor, As I was prepping tooth #20 on the sital aspect, the gas torch of the Candidate sitting in front of me (one row over) suddenly burst into a 3 foot flame that caused everyone to yell out. I inadvertently looked up and saw the flame without knowing where it was coming from and paniked [sic] and my bur gouged the mesial aspect of #19 (area of box [sic] There is no disagreement among the parties that the incident involving the gas burner occurred and no disagreement that points should not have been deducted for the gouge of the adjacent tooth resulting from the gas burner incident. The clinical procedures are graded on a scale of zero to five, with five being the best score. If an examiner gives a score of less than five, the examiner is to list a comment number, which corresponds to a list of comments for each procedure. The examiner may also list a comment number for things that the examiner observes during the grading, but for which no points are deducted. For procedure 7, which is the preparation of a three-unit fixed partial denture, the comment list to be used by the examiner was as follows: Outline Form Undercut Insufficient Reduction Excessive Reduction Marginal Finish Unsupported Enamel Parrallelism Mutilation of Opposing or Adjacent Teeth Management of Soft Tissue X Additional Comments - Written For procedure 7, Shahmohamady received a score of 5 from Examiner 289, a score of 4 from Examiner 315, and a score of 3 from Examiner 366. Each of the examiners was given the Monitor-to Examiner Instructions form with the note from Shahmohamady concerning the Bunsen burner incident. Shahmohamady challenges the score that he received from Examiner 366. Examiner 366 put numbers 4, 5, and 8 on the comment portion of the grading sheet for procedure 7. Those comments referred to excessive reduction, marginal finish, and mutilation of opposing or adjacent teeth. He indicated that he had read the three comment sheets that were submitted for the mannequin procedures and so indicated by writing "SMN-3" on the grading sheet for Shahmohamady. Examiner 366 did not deduct points for the mutilation of the adjacent tooth due to the Bunsen burner explosion. The grade which Shahmohamady received for procedure 7 is correct and should not be increased. After a candidate receives his grades for the dental examination, he may request an administrative hearing if he fails the examination. When the Department receives a request for an administrative hearing, the Department will regrade the procedures done by that candidate. The top three examiners from the examination based on the post-examination analysis that is done by the Department are chosen to regrade the procedures which are being contested. In addition to regrading candidates who have failed the examination, the examiners also regrade some candidates who have successfully passed the examination in order to ensure the integrity of the regrading process. Shahmohamady challenged the grade he received on procedure 7 and procedure 4; thus his examination was regraded. Each of the grading sheets had the following comment listed on the grading sheet for procedure 7 prior to the regrading: "Ignore nicked adjacent tooth bunson [sic] burner explosion." Procedure 7 was regraded by three examiners, one of whom was Examiner 366. Examiner 366 again gave Shahmohamady a score of three and included comment 4 on the comment section. Examiner 298 gave Shahmohamady a score of 2 for the procedure, included comment 4, and wrote "overtapered" on the grading sheet. Examiner 316 gave Shahmohamady a score of 3 and included comments 1, 4, and 5. Comment 1 referred to outline form. On regrading, Shahmohamady received an overall lower score for procedure 7 than he did in the original grading. Procedure 7 was graded correctly, and Shahmohamady is not entitled to additional points for that procedure. Shahmohamady challenged the score that he received for the Class IV composite restoration. He received an overall score of 2.66. The Class IV composite restoration is a procedure that involves the candidate's ability to cut a section of the tooth off the corner of the biting edge of the front tooth below the level where it contacts the adjacent tooth. The candidate is required to restore the contact and the tooth structure to proper form and function in a tooth- colored material. Based on the expert testimony of the Department's witness, Dr. Dan Bertoch, the restoration done by Shahmohamady was not done properly and would fail prematurely. Examiner 366 opined that Shahmohamady did not appropriately restore the proximal anatomy and the proximal contour. Shahmohamady did not properly perform the Class IV composite restoration procedure and should not be given a passing score for that procedure. Petitioner claims that Examiner 366 consistently graded Shahmohamady lower than the other two examiners. Based on the post-examination statistical analysis performed by the Department, Examiner 366 tied for second place in reliability for scoring. On a scale of 100, he scored 96, which is considered to be excellent. The other two examiners who were grading Shahmohamady clinical procedures scored lower on reliability than Examiner 366. Examiner 366's was a reliable grader and correctly graded Shahmohamady's examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Shahram Shahmohamady failed the clinical portion of the June 4-7, 2000, dental examination with a score of 2.98. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 1st day of February, 2001. COPIES FURNISHED: Orlando Rodriquez-Rams, Esquire Lerenzo & Capua 9192 Coral Way, Suite 201 Miami, Florida 33165 Cherry Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-0792 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
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.
Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1984.
Findings Of Fact The Respondent, Prince Edward Denton, D.D.S., is now, and has been at all times material to this proceeding, a licensed dentist in the State of Florida, having previously been issued license number DN 0006762. Carol Hepp has been a dental assistant for twenty-seven years. She received her initial training as a dental assistant after graduation from high school when she went to work for Dr. Seth Rhodes in North Miami Beach. Since that time she has attended many training courses in her career as a dental assistant, including expanded duties courses at Emory University and the University of Florida. Ms. Hepp was employed by the Respondent as a dental assistant for a total of approximately four and one-half years. Ms. Hepp was so employed on February 2, 1988. On February 2, 1988, patient C.H. went to the Respondent's office to obtain treatment for a cracked tooth. The cracked tooth was tooth number 18, which was the last tooth in the patient's left lower jaw. During that visit, the patient C.H. was examined by the Respondent and by his dental assistant, Carol Hepp. Ms. Hepp explained the tooth crowning procedure to the patient. Ms. Hepp took a preliminary impression of the lower jaw by placing a two-part putty-like substance called "citrocon" in a tray, placing a plastic sheet over the top, and placing the tray into the patient's mouth. She held the tray in place for approximately six minutes and then removed it. This procedure yielded an approximate image of the patient's lower teeth. The Respondent took the final impression by applying a viscous substance around tooth number 18, and then inserting the preliminary impression into the patient's mouth. The Respondent held the impression in place until it was set or non-moveable, at which time Ms. Hepp took over the task of holding the impression in place for the balance of the approximately four-minute period during which the final impression material completely set up. After the impression was finished, Ms. Hepp took it to the Respondent who examined it and approved the finished final impression. After the final impression had been taken, Ms. Hepp made a wax form for purposes of fabricating a temporary crown for C.H.`s tooth number 18. This was done prior to the "preparation" of the tooth. The "preparation" of a tooth for crowning is the actual grinding down of the tooth that is to be crowned. The Respondent, and not Ms. Hepp, ground down the patient C.H.`s tooth number 18 in preparation for crowning. Following the Respondent's "preparation" of the subject tooth, Ms. Hepp packed a cord around the tooth. 1/ The grinding down, or "preparation," of a tooth for crowning is an irremediable task, which under no circumstances should be delegated to a dental assistant. Following the Respondent's "preparation" of the tooth, Ms. Hepp then fabricated and installed a temporary crown on the patient's tooth number 18. This was done by utilizing the wax form she had previously made, filling the form with a self-curing jet material, adding tooth color, and then placing the temporary crown over the prepared tooth. At all times during the treatment of the patient C.H., the Respondent was aware of, and had authorized, each step performed by Ms. Hepp, and was available to assistt Ms. Hepp had she requested his assistance. Accordingly, Ms. Hepp was working under the direct supervision of the Respondent at all times material to this proceeding.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st day of July, 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 31st day of July, 1991.
The Issue Whether Respondent committed various violations of Chapter 466, Florida Statutes, as alleged in the Administrative Complaints.
Findings Of Fact That on or about July 18 1984, patient P.F. presented herself to Respondent's dental center for dental services. At all times material to the allegations contained in the Administrative Complaint, the Respondent was the dentist of record for the patient, P.F. On or about Jul ,8, 1984, Joan Chen, D.D.S., at the direction or request of Respondent, began crown preparation on patient P.F.'s teeth number 18, number 19, number 30 and number 1, during the initial visit. The treatment rendered by Respondent consisted of root canal therapy on teeth number 19 and number 30, and placement of crowns on teeth number 18, number 19, number 30 and number 31. Treatment provided P.F. by Respondent as the dentist of record failed to meet the minimum standards of diagnosis and treatment by failure to complete endodontic treatment on patient's teeth number 19 and number 30. The patient indicated that at the time of her initial visit she was told she would need two root canals, one on each side. Dr. Delk had told the patient of this need and gave the patient an estimate for services. A person with a "certificate" started the drilling for the root canal, and Dr. Delk completed it. After the teeth were drilled, Dr. Delk offered to extract the teeth for the stated reason that her mouth was too small to accommodate them. The endodontic treatment on teeth number 19 and number 30 were never completed. The failure to complete endodontic treatment was beneath the standard of care in the community. It enhanced the possibility of tooth loss due to the involvement of the bifurcation. A permanent crown was placed over tooth number 19, which was fractured. Tooth number 19 had a violation of the bifurcation which showed "absolutely no dental skill at all". There was junk "piled" down to the bifurcation and a permanent crown placed over it. Tooth number 30 was also perforated. According to the pre-operative x-ray, this was a good healthy tooth. No treatment called for a permanent crown to be placed, and the tooth was left in that condition. The chart did not reflect the patient was ever informed of the perforation and that the minimal acceptable practice would be to inform the patient. The capping of the tooth after perforation was beneath the minimal standard of care. The patient first learned of the perforation of the tooth from Dr. Buljevic, a subsequent treating dentist in Chile. There was a level of awareness by both the Respondent and his staff of the perforation of at least one of the teeth according to the testimony of Jacqueline Hansen on July 18, 1984. Dr. Delk was aware of the perforations which were done in this case. Dr. Delk did not note in his chart the perforations or any attempt to notify the patient of the perforations.
Conclusions Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.208(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance by: Failing to complete endodontic treatment on patient's tooth number 19. Failing to complete endodontic treatment on patient's tooth number 30. Placement of a permanent crown over fractured tooth number 19. Perforation of tooth number 30. By failing to inform the patient of the condition or to note it in his chart. It is further found that the Respondent cannot avoid responsibility for his actions in light of Section 466.018, Florida Statutes, which provides that each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patient regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary rendering such treatment at the direction or request of or under the supervision of such dentist of record. Dr. John W. Delk was the dentist of record for patient P.F. when the treatment was rendered. Any attempt to disclaim responsibility based on the performance of services by another dentist is unsupported by the record, but even if, assuming arguendo, it was supported by the record, it does not excuse Dr. Delk's actions based upon Section 466.018, Florida Statutes, which places responsibility on the dentist of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the, Department of Professional Regulation, Board of Dentistry, enter its final order finding Respondent guilty of Count I and not guilty of Count II as to Case Nos. 89-0646; guilty of the allegations contained in Case Nos. 89-0647 and 89-3313; imposing a fine of $500 each for Case Nos. 89- 0646 and 0647 and a fine of $1000 for Case No. 89-3313; suspending the Respondent's license for two years; and placing Respondent on probation for 24 months subsequent to the expiration of the suspension period, conditioning reinstatement of Respondent's license to practice dentistry to such reasonable conditions as the Board may require. The suspension period reflects the consideration of Rule 21G-13.005, Florida Administrative Code, which provides the following be considered: (a) the severity of the offense, (b) the danger to the public, (c) the number of repetitions of offenses or number of patients involved, (d) the length of time since the violation, (e) the number of times the licensee has been previously disciplined by the Board, (f) the length of time the licensee has practiced, (g) the actual damage, physical or otherwise caused by the violation and the irreversibility of the damage, (h) the deterrent effect of the penalty imposed, (i) the effect of the penalty upon the licensee's livelihood, (j) any efforts of any rehabilitation by the licensee, (k) the actual knowledge of the licensee pertaining to the violation, (l) the attempts by the licensee to stop or correct the violation or refusal by the licensee to correct or stop the violation, (m) related violations against licensee in another state, including findings of guilty or innocence penalties imposed and penalties served, (n) penalties imposed for related offenses under Sections 2 and 3 above, and (o) any other relevant mitigating or aggravating factor under the circumstances. The offenses are severe since they have harmed three different patients, and Dr. Delk has previously been disciplined for improper delegation. The record does not indicate any efforts of rehabilitation by the Respondent, and he denied actual knowledge of the damage caused to P.F. in spite of, the fact that it was apparent. DONE AND ENTERED this 26th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact As to Case No. 89-0646 Accepted: Paragraphs 1,2,3,4,5 (in substance), 6 (in substance), 8, 9 (in substance), 10, 15 (in substance),17, 18, 19, 20, 21(1) (in part), 21(2)(in substance), 22 (in substance) ,23 (in substance), 24 (in substance), 26 (in substance), 27 (in substance), 28, 29 (in part) Rejected as not proven by clear and convincing evidence: paragraphs 7, 11, 12, 13, 14, 16 (argument), 21(1) (in part), 25 (in part) As to Case No. 89-0647 Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 9, 14, 15 (in substance) Rejected as not proven by clear and convincing evidence: paragraphs 8, 10, 11, 12, 13, 16 and 17, 18, 19, 20 and 21 (duplication) As to Case No. 89-3313 Accepted: 1, 2, 3, 4, 5, 6 (in substance), 7 (in substance), 8, 9, 10, 11, 12, 13, 14, 15, 16-34 (incorporated in substance), 35 (in substance), 36, 37, 38, 39, 40, 41, 42 (in substance), 43, 44, 45, 46, 47 Respondent's Proposed Findings of Fact As to Case No. 89-0646 Respondent's recommended findings contained in 169 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation of the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-0647 Respondent's recommended findings contained in 129 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-3313 Respondent's recommended findings contained in 248 numbered paragraphs (followed by a summary of the facts numbered A through Y) have been carefully reviewed and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. COPIES FURNISHED: John Namey, Esquire 1520 Livingston Street Orlando, FL 32803 Thomas Gordon, Esquire 320 North Magnolia Avenue Suite 5-B Orlando, FL 32801 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
