Findings Of Fact The Respondent, James A. Ford, D.D.S., is the holder of license No. 5715, which is held with the State of Florida, State Board of Dentistry. A copy of this license may be found as Petitioner's Exhibit No. 1 admitted into evidence. At all times pertinent to the charges in this cause, Dr. Ford was the holder of the aforementioned license. On April 18, 1977, the administrative accusation which is the basis of this case was brought against Dr. Ford. Dr. Ford was duly apprised of that accusation and requested a formal hearing to challenge the administrative accusation. The administrative accusation may be found as a part of Petitioner's Composite Exhibit No. 2. The initial count in the administrative accusation pertains to the care and treatment of Mrs. Henry Good. Mrs. Good was also identified in the hearing as Gladys Good. Mrs. Good went to Dr. Ford's office for the purpose of being treated by a Dr. Foley who had semi-retired at the time she went for treatment. The purpose of going to the office was to have a maxillary full denture constructed. Dr. Foley was not working in the office at that time and the patient was seen by Dr. Ford. When she came to the office she had been a denture wearer for a period of 20 years and the last set of dentures had been fabricated 15 years prior to her office visit with Dr. Ford. The Respondent took impressions and asked Mrs. Good to return for a try-in of the actual dentures. The new dentures were painful to Mrs. Good and were difficult to retain, in that they kept falling down in her mouth. Dr. Ford advised her to keep trying to make the dentures work and to wear them day and night. At some point an argument ensued between Dr. Ford and the patient, Mrs. Good, at which point Dr. Ford explained to the patient that if she could not rely on his instructions and what he told her about the problem, then he would no longer treat her. The patient then demanded that her money be reimbursed and Dr. Ford refused and the patient did not return. Petitioner's Exhibits 14 and 15 are receipts given to Mrs. Good for the payment that she gave to Dr. Ford for the treatment. The dentures in question may be found as Petitioner's Exhibit 16, admitted into evidence. Mrs. Good tried to wear the dentures after leaving the care of Dr. Ford, but the dentures kept falling down. Finally, Mrs. Good made a complaint to the Broward County Dental Association and was eventually referred to the Petitioner for purposes of investigating her complaint. One of the aspects of the investigation of the complaint was to have other dentists review the history of the complaint, together with an inspection of the dentures and an examination of the patient. One of the doctors involved in the examination of Mrs. Good, for the benefit of Petitioner, was Dr. Mervyn J. Dixon, D.D.S. Dr. Dixon is a dentist licensed with the State of Florida and is a member of the Broward County Dental Association, the Atlantic Coast Dental Society, the Florida State Dental Society, the American Dental Association, the Academy of General Practitioners, and the Broward Research Clinic. He is also Secretary-Treasurer of the Broward County Dental Association. His knowledge and experience in the field of prosthetics began with four months practice while in the armed services. He is a member of the Prosthetics Section of the Research Group in Palm Beach County, Florida, which meets once a month and does only prosthetics. Dr. Dixon has also been involved in the administration of the Petitioner's State Board Exams, specifically, checking the setups in the portion of the examination dealing with prosthetics. This function was preformed in the summer of 1977. After his initial practice in the armed services he has continued to work in the field of prosthetics. His total experience in the construction of prosthetic appliances would number at least 1,000. Finally, Dr. Dixon is also an assistant Secretary- Treasurer for the Florida State Board of Dental Examiners of the State Board of Dentistry. Dr. Dixon saw Mrs. Good on March 16, 1977. Her complaint to him was that the upper denture would not stay up and that the denture was too big. Dr. Dixon reviewed the condition of the maxillary denture, which is Petitioner's Exhibit 16. One of the aspects of the examination, was to have the patient try the dentures in her mouth. When he observed the dentures in her mouth he found that they would not stay up, except when the patient bit down and held the dentures in position against the lower partial and lower natural dentition. When she opened the mandibular portion of her mouth the upper denture would fall down. The peripheral or outer border of the denture which had been fabricated by Dr. Ford was over extended in the canine area, to the extent that when you pushed up there was resistence or the denture would drop back down. The over extension was approximately 5 millimeters beyond where the roll of the sulcus is found. This caused an elastic reaction when he tried to push the tissue up. (This reaction is similar to the elasticity found in a rubber band.) A contraction then takes place and the dentures come down. The post-dam was not adequate the post-dam being an excessive acrylic in the posterior part of the denture. This caused a problem with retention. Dr. Dixon felt that the denture did not meet minimum acceptable standards of the community for prosthetic devices. In view of the observations by Dr. Dixon and the complaints by Mrs. Good, the Petitioner charged the Respondent with a number of violations which were reflected in the Issues section of this recommended order. Several of those provisions are set forth in Section 466.24(3)(a), (c) and (d), F.S. The language of those sections states the following: "Suspension or revocation of license certi- ficate for cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it establishes to its satisfaction that he: * * * (3) has been guilty of: (a) misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession; * * * malpractice; willful negligence in the practice of dentistry or dental hygiene" An examination of the facts in the case of Mrs. Good establishes misconduct in Dr. Ford's business that would bring discredit upon the dental profession. The facts spoken of include the fabrication of the highly unacceptable maxillary dentures and the insistance that the patient be required to accept them, and the further insistance that the patient be dismissed because of her unwillingness to accept the dentures. The same facts of Mrs. Good's case are so flagrant, that it would constitute malpractice within the meaning of Chapter 466, F.S. The act of constructing an inferior maxillary denture and causing the patient to wear that denture, in opposition to constructing a serviceable denture, constitutes willful neglect in the practice of dentistry as described in Section 466.24(3)(d), F.S. In count number eight of the accusation, the Respondent is charged with being grossly incompetent in violation of Section 466.24(2), F.S. This provision states: "Suspension or revocation of license certi- ficate of cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he: * * * (2) is grossly ignorant or incompetent" The treatment that Dr. Ford gave Mrs. Good constitutes gross incompetence, by the nature of the construction of the dentures themselves, and the insistance that those dentures be utilized by the patient. Count two of the administrative accusation pertains to the same statutory allegations as set forth in the case of Mrs. Good. This count deals with Yolande Breckley, for whom Dr. Ford constructed a prosthetic appliance: A maxillary full denture. Mrs. Breckley was a patient who had insisted that she needed to have her natural dentition removed and a prosthetic appliance substituted. To effect this end, she requested a Dr. King to remove the teeth and Dr. Ford was to make the denture. Her natural teeth were removed and Dr. Ford made a maxillary denture. Dr. Ford had questioned her decision to remove her natural teeth and had also indicated that the initial maxillary denture, i.e., prosthetic appliance might not function properly. Mrs. Breckley picked up the Ford dentures in an envelope and had those fitted by Dr. King. She was to return to Dr. Ford for further fittings. These dentures that Dr. Ford had made hurt her in the anterior area and in her lip. The latter area was discolored, "black and blue." She told Dr. Ford that the denture was painful. This conversation was held about a week after Dr. King had fitted the denture. She described the pain as being like a toothache. She could not eat with the dentures. The dentures did not match up well with her lower teeth. It was necessary that she remain on a soft diet. Two or three weeks after this, Dr. Ford relined the dentures and she then asked Dr. Ford for a new set of dentures. Where ensued a series of office visits in which every several weeks she would try to have Dr. Ford make an adjustment. The total time was approximately six months. Mrs. Breckley had paid Dr. Ford for the dentures as evidenced by Petitioner's Exhibit 8, admitted into evidence. Subsequent to that six month period, a second set of dentures were made by a Dr. Foley, who is in Dr. Ford's office, but who is not responsible to Dr. Ford. There was no charge for these dentures. They were made while Dr. Ford was on vacation. These dentures were unacceptable and a third set was made by Dr. Ford for which he charged the price of $100.00 and an additional $31.00 for two relines. This is reflected in Petitioner's Exhibit 9, admitted into evidence. This third set of dentures also gave the patient pain and she complained about the pain to Dr. Ford. Dr. Ford tried to persuade the patient that something was wrong with her, not the teeth, suggesting that the condition was perhaps psychosomatic. There were many visits to try to adjust the third set of dentures, and paste was placed on the dentures and they were ground. During the course of this treatment for the latter set of dentures, Mrs. Breckley went to Canada and was seen by a dentist who worked with the dentures. Eventually there was some falling out between Dr. Ford and Mrs. Breckley and Dr. Ford told her he did not wish to see her face again. In result of her confrontation with Dr. Ford, she wrote a letter of complaint which brought about the current accusation. The patient has seen three dentists after seeing Dr. Ford. The patient is still experiencing difficulty with the new set of dentures she now has, and has to have those dentures relined. In investigating the complaint Dr. Dixon saw Yolande Breckley. He saw the patient on December 13, 1976. She related the history that Dr. Ford had constructed two sets of dentures. The first of the two was delivered in July, 1975. When Dr. Dixon saw the patient she was wearing a new upper denture that was constructed by Dr. Burch. She also had the two sets of dentures that Dr. Ford had prepared and Dr. Dixon attempted to try these dentures in her mouth. The patient placed the dentures in her mouth, but when she opened her mouth the dentures fell down. This refers to the maxillary dentures that had been constructed by Dr. Ford. He also observed a very sharp boney ridge with much pendulous tissue in the maxila. This is felt to have occurred because of abnormal bone resorption, which occurred after the extractions of the upper teeth, leaving boney ridges leading to the ensuing pendulous tissue. This made it extremely difficult to get the denture stable because it would shake like "jello." This would cause the dentures to slip and slide. Dr. Dixon feels that he would not have attempted to make dentures until such time the patient had been referred to an oral surgeon to have some of the tissue trimed and the boney ridges smoothed down. This type of difficulty was easily observable by the treating dentist. In addition the lower rehabilitation work had been done in such a way that the cuspation of the teeth and of the crowns and bridges was about 20 percent and therefore similar to the remaining natural dentition in the mandibular area. The upper appliance was flatplane; therefore, the inner digitation of the cusp was deficient, causing problems with chewing. In summary, Dr. Dixon felt that the condition of the patient was one which it would be difficult to treat and oral surgery seemed indicated before trying to make the dentures. The dentures that Dr. Ford had made were felt to be below minimum standards because they could not be retained. Measured against the allegations, Dr. Ford's treatment of Mrs. Breckley shows gross incompetence within the meaning of Section 466.24(2), F.S., due to his failure to recommend surgical intervention. This would also constitute misconduct in his business, which would bring discredit upon the dental profession. In addition, the poor construction of the dentures would tend to discredit the dental profession. Furthermore, this conduct constitutes malpractice and willful negligence in the practice of dentistry. The subsequent findings establish violations of Section 466.24(a), (c) and (d), F.S. The third count of the accusation pertains to the same statutory allegations found in the first and second counts. The treatment involved Jacob Klapper who received a prosthetic appliance, namely full maxillary and mandibular dentures. Mr. Klapper did not give testimony in the hearing and the description of his case was given by the Respondent and Dr. Dixon. Mr. Klapper was a man of considerable age, who was terminally ill at the time that Dr. Ford saw him in August, 1976. Mr. Klapper had been wearing a full upper denture for 22 years prior to that time. His principal complaint to Dr. Dixon was that Dr. Ford had relined the upper dentures, but he still had looseness and that Dr. Ford had instructed the patient to wear those dentures until they welt in the patient's mouth. Dr. Dixon noted that Mr. Klapper had an extremely poor lower ridge and the centric relation was not correct, in that the mandible or the condyle of the mandible was not in the most superior position in the fossa. This means the position in which all teeth touch simultaneously. After achieving the centric position with the patient, the teeth did not make very acceptable contact. The molars did not contact at all. These dentures prepared by Dr. Ford had over extensions in the set, particularly in the retromolar pad and the mylohyoid ridge. There was a reverse curve of spee. The patient also complained to Dr. Dixon that Dr. Ford had a lack of compassion and that Dr. Ford had instructed him to insert the dentures in the restroom and leave before seeing how the dentures looked. Dr. Dixon did not feel that the dentures met the minimum standards of the community, in fact the dentures would not stay in the patient's mouth and there were some very sore areas in the patient's mouth evidenced by the redness in the tissue when the dentures were inserted. Furthermore, the over extensions of the lower and retromolar pad and mylohyoid area contributed to the fact that the dentures could not be retained. Every time the patient opened his mouth the lower denture jumped up. Dr. Ford claimed that the patient got angry in his office which led to their disagreement and the patient's not coming back. Dr. Ford stated that the patient wrote a threating letter which is Respondent's Exhibit 2. This letter had been addressed to Dr. Foley, the other dentist in the office. Dr. Ford also stated that he had prepared two sets of dentures for Mr. Klapper and questioned which dentures Dr. Dixon's testimony referred to. The dentures which Dr. Dixon had examined from Mr. Klapper were not presented in the hearing. There is therefore, some conflict on the question of which dentures that had been fabricated by Dr. Ford were at issue. In view of Mr. Klapper's non-attendance at the hearing it is hard to tell what really transpired between the Respondent and he, concerning any misunderstanding about the trying of the dentures. No matter which dentures Dr. Dixon looked at, those dentures which had been fabricated for Mr. Klapper demonstrated gross incompetence on the part of Dr. Ford, within the meaning of Section 466.24(2), F.S. There has been insufficient showing to demonstrate that Dr. Ford was guilty of misconduct in his business, such to bring discredit upon the dental profession or guilty of malpractice or guilty of willful negligence in the practice of dentistry while involved with the patient Mr. Klapper, all within the meaning of Section 466.24(3), F.S. The fourth count in this cause concerns the treatment and care of Robert R. Whittaker. Again this count has the same violations alleged for the other patients in this case. The dispute arose over the preparation of full maxillary and mandibular dentures. Robert Whittaker was first seen by Dr. Ford on November 9, 1976. He went there to have a full upper and lower set of dentures constructed. He had been wearing full upper and lower dentures for 20 years. When Dr. Ford looked at the patient's mouth he stated that the dentures that Whittaker was wearing needed replacing. Whittaker requested that the dentures be made in the same style and color as the old dentures. The fee for this work was $220.00. Impressions were taken and try-ins were made on November 15, 17 and 19, 1976. The actual dentures were received on November 23, 1976. The dentures, according to Whittaker, did not fit in that the rails were too high. At first the dentures would not fit his gums and Ford told his assistant to have them altered. They were altered and the dentures were returned to the patient, but they still did not feel right and were sore in the upper quadrant. Dr. Ford made no further attempt at that time to correct the dentures and told Mr. Whittaker to take them home and try to eat and get used to them. Mr. Whittaker went home and wore the dentures but still experienced a great deal of pain and could not eat with the dentures, because they slid around in his mouth both in the upper and lower, but mostly in the upper. The patient went back to Dr. Ford approximately November 29, 1976 because of the continued discomfort. Dr. Ford's assistant got mad at the patient when she saw that he wasn't wearing the dentures. Dr. Ford came in and the patient complained to him that the dentures hurt, were the wrong style, and protruded. In that regard, Petitioner's Exhibit 19, admitted into evidence, is a depiction of the prior dentures and those that were prepared by Dr. Ford, and the photograph clearly shows that the dentures prepared by Dr. Ford did protrude. In addition, the prior dentures had not given the patient any problem and did not protrude. Dr. Ford then tried the dentures he made in the patient's mouth and told the patient he would have to pay another $220.00 if he wanted additional dentures made. The patient told Dr. Ford that he would have to consider legal action and that was the last time he saw Dr. Ford. The dentures themselves may be found as Petitioner's Exhibit 5, admitted into evidence. The checks for payment are Petitioner's Exhibits 6 and 7, admitted into evidence. Dr. Dixon saw Mr. Whittaker on December 8, 1976. At that time Mr. Whittaker was wearing the old dentures which had been constructed 12 years prior to that time. He complained of Dr. Ford's dentures and said that the dentures hurt especially in the upper right quadrant, and that he could not eat and that the dentures were loose. Dr. Dixon's clinical observations were that the vertical dimension of the new dentures was increased by 5 millimeters, which is too much of an increase for a single increment of change in the dentures. When the patient was placed in centric he was a half tooth forward. The periphery of the dentures constructed by Dr. Ford is over extended. In the retromolar pad area, there was a tendency for the teeth to pop up when the teeth were opened. These teeth were also over extended in the maxillary area and the mylohyoid. There was a poor retention of both the upper and lower dentures. The upper and lower dentures were mismatched in terms of their dimensions. This caused an inefficiency in the utilization of the teeth. In Dr. Dixon's mind this construction violated the minimum acceptable standards of the profession. In review of the testimony concerning Dr. Ford's care and treatment of Mr. Whittaker, that testimony demonstrates that the construction of the dentures indicated gross incompetence on the part of Dr. Ford within the meaning of Section 466.24(2), F.S. The act of the poor construction and the attempt to charge further for a second set of dentures is misconduct in his business, by Dr. Ford, which would bring discredit upon the dental profession and constitutes malpractice, all within the meaning of Section 466.24(3)(a) and (c), F.S. The facts do not demonstrate any willful negligence in Dr. Ford's care and treatment of Mr. Whittaker, as defined in Section 466.24(3)(d), F.S. Count number five of the accusation, involves the patient Violet B. Arnst and contains the same allegations found in prior counts. Mrs. Arnst had Dr. Ford prepare a prosthetic appliance, a full maxillary and mandibular denture. Mrs. Arnst had been seen by Dr. Foley, the working associate of Dr. Ford, a number of years before her visit to Dr. Ford. She called to make an appointment with Dr. Foley but was told that he only came in when Dr. Ford was out. Therefore she was seen by Dr. Ford in July or August, 1975. Dr. Ford told the patient that her lower teeth were receding and that she needed a lower set of dentures for that reason and that the more appropriate approach was to make an upper and lower set of dentures. She paid Dr. Ford $200.00 for the services of fabricating prosthetic appliances; maxillary and mandibular. This is verified by Petitioner's Exhibits 10 and 11 which are the cancelled checks for the services. When she went to pick up the teeth and try them on she told Dr. Ford that the teeth did not look right or feel right and that she could not see her teeth when she smiled. This is borne out by Petitioner's Exhibit 18, which was admitted into evidence and is a series of photographs showing the dentures that were prepared by Dr. Foley prior to the dentures prepared by Dr. Ford, as compared to the Ford dentures. It can be seen in the photographs that the Foley dentures allow a smile line, in that the maxillary dentures are showing, whereas in the Ford dentures the maxillary dentures are completely covered by her upper lip. Mrs. Arnst had another initial complaint that the teeth hurt her in the gum area and the gums felt sore when she tried to bite. The dentures were also loose and she could not eat with them. She continued to see Dr. Ford after the initial try-ins and Dr. Ford advised that she was impatient and would have to become accustomed to wearing the dentures. She saw Dr. Ford for five or six times and returned two weeks after the dentures were prepared and said that the dentures still hurt and didn't look right. The last time Mrs. Arnst saw Dr. Ford, Dr. Ford told her to make an appointment for a reline of the dentures and then became angry with the patient and told his office personnel that he did not want to see Mrs. Arnst again. Mrs. Arnst then wrote a letter to Dr. Foley complaining of the situation with Dr. Ford and also wrote a complaint letter to the authorities who regulate Dr. Ford's practice of dentistry. Petitioner's Exhibit 3, admitted into evidence are the dentures made by Dr. Ford which are the subject of discussion. At present the patient is using the dentures prepared by Dr. Foley, which are those prepared immediately before Dr. Ford's. This patient was also seen by Dr. Dixon in the investigative phases of the accusation. Dr. Dixon found that the patient was a person approximately 65 years old who had been wearing full dentures since the age of 16. Dr. Dixon found that the patient had a moderate lower ridge, and still had bone left and for that reason he found her to be an ideal denture patient. Dr. Dixon also noted that there were no second molars on the dentures that were fabricated by Dr. Ford, although there were second molars fabricated by Dr. Foley. From Dr. Dixon's point of view he felt that there was sufficient room to have accommodated the second molars especially on the right side, when Dr. Ford prepared the new set of dentures. Because of the missing second molars this cut down on the efficiency of the utilization of the dentures because there was a lesser number of posterior teeth. These teeth are used for purposes of grinding. He found that the lower molars were not over the crest of the ridge, meaning the highest point of the lower boney ridge. This caused unnecessary tipping and upsetting of the denture when going through the occlusal pattern of chewing. Dr. Dixon also observed a three millimeter buckle to buckle difference in the width of the original upper denture prepared by Dr. Foley and that prepared by Dr. Ford. The buckle to buckle dimension is the outside dimension, that is to say cheek to cheek cuspation of the molars. The retention of the upper dentures prepared by Dr. Foley was fair, but there was no retention of the lower denture in the patient Mrs. Arnst. Dr. Dixon found that the post-dam was fair to poor. He also noted that there was a reverse curve of spee, meaning that gentle slopping curve in the second molar down to the cuspid, that conforms to the curvature of the fossa in the temporal-mandibular joint. This reverse curve caused a lack of continuous contact or occlusion of the teeth. Dr. Dixon also noted that the "smile line" was extremely poor. He, in fact, prepared the photographs which have been referred to before. In Dr. Dixon's opinion the maxillary dentures were set too far up toward the nose or maxila to show. Dr. Dixon felt that Dr. Ford should have seen the problem of the "smile line" at the time the teeth were tried in. In summary, Dr. Dixon felt that both the maxillary and mandibular dentures in the patient Violet Arnst would not meet minimum acceptable standards of the dental profession, due to the lack of retention and due to the fact that the lower teeth are not over the crest of the ridge. In Dr. Dixon's opinion this caused an inability in the patient to chew her food. The patient Violet Arnst was also seen by Dr. Richard A. Saul, D.D.S. Dr. Saul is licensed to practice dentistry in the State of Florida and has been so licensed since 1956. He is a member of the American Dental Association, Florida Dental Association, and the Broward County Dental Association. He has practiced dentistry continuously since his graduation in 1956. Dr. Saul sees approximately 50 to 60 appointments a week. Dr. Saul has continued to take courses in prosthetics since his graduation and in his practice Dr. Saul repairs full or partial dentures. In examining Violet Arnst, he agreed with Dr. Dixon that the chief complaint of the patient was one of aesthetics. He found that the upper anteriors did not show in her mouth, because the lip covered them. This is referring to the teeth that were prepared by Dr. Ford. He found that the borders of the full upper and lower dentures were over extended. He noted that the lower anterior region had a knife like ridge and when he palpated the patient, this caused a great deal of pain to her. In his opinion the patient's situation could have been better treated had the lower ridge been flattened out, removing the knife like appearance of the bone. The over extension of the dentures into the musculature was believed to cause ultimate dislodgement of the dentures. Dr. Saul noted that only two of four teeth on one side were in centric. He felt that this was inadequate and would cause the dentures to skid, and cause movement of the denture in the patient's mouth. He observed that the patient at his interview was experiencing some pain. Saul did not feel that the dentures constructed by Dr. Ford for the patient Violet Arnst met the minimum standards of the community for acceptable dental practice. This examination of Mrs. Arnst took place on July 22, 1977. Based upon the quality of the construction of the dentures for Mrs. Arnst, and the abrupt dismissal of the patient, Dr. Ford has been guilty of misconduct in his business which would bring discredit upon the dental profession, in violation of Section 466.24(3)(a), F.S. This conduct on the part of Dr. Ford also shows malpractice and willful negligence in the treatment of Mrs. Arnst, as defined in Section 466.24(3)(c) and (d), F.S. Finally, this quality of treatment of Mrs. Arnst constitutes gross incompetence as set forth in Section 466.24(2), F.S. Count number six of the administrative accusation pertains to the patient Joseph Jenkins. This patient was seen by Dr. Ford in August of 1975, based upon the patient's referral by persons who had been treated by the Respondent. It was necessary to make extractions of the natural teeth prior to the preparation of full maxillary and mandibular dentures. These extractions began in August, 1975 and the patient received the teeth in November, 1975. (The extractions were not done by Dr. Ford.) The format of the treatment of the patient by Dr. Ford was to make impressions, then to try-in the teeth; then the actual dentures were given to the patient. The patient observed that the teeth appeared too large and the upper dentures kept falling out. When the patient would take a bite the teeth would "jump up". Dr. Ford told the patient to keep the dentures in his mouth and to line the dentures with denture powder. Additionally, he indicated to the patient that once the gums had "shrunk", and the teeth were relined, they would fit. The patient was not experiencing trouble with the mandibular teeth, his main problem was with the maxillary teeth. The maxillary dentures rubbed against the top of his mouth and caused him to gag. The patient saw Dr. Ford three or four times in December, 1975 and again in January 1976 at which point the dentures were relined. In February, 1976, the lower dentures were relined. During February and after February, 1976 the patient saw Dr. Ford five or six times. In the course of these visits, Dr. Ford would correct the problem of the rubbing dentures. In the course of treatment prescribed by Dr. Ford he told the patient Joseph Jenkins to use sandpaper to relieve the discomfort, but the dentures still did not fit, meaning the maxillary dentures. In March, 1976, the patient's wife tried to get an understanding of the problem from Dr. Ford and Dr. Ford hung the phone up and did not talk to her. At that point the patient ceased to see Dr. Ford and the patient is not wearing any dentures at this point. The dentures in question may be found as the Petitioner's Exhibit 17, admitted into evidence. For the total services the patient paid Dr. Ford $560.00. In accordance with the investigation of the accusation the patient was seen by Dr. Dixon on December 8, 1976. At that time the patient was complaining of the poor fit of the maxillary dentures. He did not have a complaint about the mandibular dentures. Dr. Dixon observed that the patient gagged excessively when the dentures were placed in his mouth, to the extent of having to use a local topical anesthetic on the palate to allow the patient to keep the dentures in for a sufficient period of time to be observed. Dr. Dixon observed a poor retention of the maxillary denture, in that it kept falling out while the doctor was trying to examine it. There was no post-dam whatsoever. The maxillary dentures were grossly over extended in the area of the soft palate, about five or six millimeters beyond the vibrating line. This is why the gaging occurred. Dr. Dixon felt that in view of the number of visits that the patient had with Dr. Ford, the problem with the post-dam and the gaging should have been observable by Dr. Ford, and been corrected. In view of the lack of retention, Dr. Dixon did not feel that the dentures met minimum acceptable standards of the community. In addition, Dr. Dixon felt that there was no necessity to have to use denture powder, in view of the fact that the dentures had just been fabricated for the patient, as opposed to having been utilized for a period of five or six years. The use of denture powder was not a good technique in Dr. Dixon's mind because the gum could not receive proper circulation causing a destruction of the tissue and bone. Dr. Dixon also felt that it would be improper for Dr. Ford to prescribe the use of sandpaper to relieve soreness. Dr. Saul examined Joseph Jenkins in July or August, 1976. At that point Mr. Jenkins' complaint to Dr. Saul was that the denture was ill fitting. Dr. Saul observed that the borders of the dentures were grossly over extended, especially in the areas of the soft palate and the patient was found to be complaining and gaging. Dr. Saul noted that the maxillary tended to drop when being used. In Dr. Saul's mind, this extension into the soft palate, made by the maxillary dentures, made it difficult for the patient to speak and eat. In Dr. Saul's opinion the over extension of the dentures caused them to fail to meet the minimum acceptable standards of the dental community. In view of the testimony offered by the investigating dentists, it is clear that Dr. Ford has been guilty of misconduct in his business, such that it would bring discredit to the dental profession, as set out in Section 466.24(3)(a), F.S. This is based upon the poor preparation of the maxillary dentures and the failure to correct that prosthetics over a long period of time of innumberable visits. These facts also establish that Dr. Ford is guilty of malpractice and willful negligence in the treatment of Mr. Jenkins, as prohibited by Section 466.24(3)(c) and (d), F.S. Dr. Ford was also grossly incompetent in the preparation of the Jenkins maxillary dentures, as defined by Section 466.24(2), F.S. Count seven of the administrative accusation pertains to the care and treatment given by Dr. Ford to the patient Edith Wenke. In January, 1976 Mrs. Wenke went to Dr. Ford for the purpose of having him prepare a prosthetic appliance, in this instance, full maxillary and mandibular dentures. The patient had worn dentures for 25 years prior to being seen by Dr. Ford. The initial set of dentures by Dr. Ford were prepared before February 3, 1976. These dentures gave the patient a great deal of pain in the gum area and the teeth were not straight and were somewhat misaligned. Another problem that the patient had with Dr. Ford's dentures was the inability to eat because of pain. She made another appointment with Dr. Ford and complained about the first set of teeth. Dr. Ford told her that she had some problem with a "trick" jaw which caused a difficulty in making the dentures. In fact, the patient did not have the problem with a "trick" jaw. Subsequently, a second set of dentures were prepared by Dr. Ford, these too were uncomfortable, and the patient continued to go back as much as twice a week, to try to rectify the problem. Mrs. Wenke is not certain but there may have been a third set of dentures made and the offering by Dr. Ford to make a fourth set or to give the money back. Whether or not Dr. Ford offered to give the money back after completing two or three sets of teeth is uncertain, but it is established that he did offer to refund the money. The patient thought about the offer of a refund over the course of a weekend and elected to have the money refunded. At that point Dr. Ford said that he had changed his mind and would refund only a portion of the money, namely $100.00. The patient later went to another dentist who told her to put in the dentures she had been wearing prior to seeing Dr. Ford. After that date she has had a new set of dentures prepared by a dentist other than Dr. Ford and has experienced no pain or poor quality prosthesis that was found in the dentures that had been prepared by Dr. Ford. Upon consideration of the testimony of Mrs. Wenke, in view of the general opinions stated by Dr. Saul and Dr. Dixon, it is clear that the dentures prepared for Mrs. Wenke were below community standards as to their construction. The dentures were so substandard as to indicate gross incompetence on the part of Dr. Ford as set forth in Section 466.24(2), F.S. Dr. Ford was also guilty of misconduct in his business which would bring discredit upon the dental profession, by his poor construction of the dentures for Mrs. Wenke and his agreement to make a refund to her, which was unreasonably rescinded. This misconduct was a violation of Section 466.24(3)(a), F.S. Dr. Ford's treatment of Mrs. Wenke also demonstrated malpractice, within the meaning of Section 466.24(3)(c), F.S. There is no indication that this conduct with Mrs. Wenke constituted willful negligence in the practice of dentistry as defined in Section 466.24(3)(b), F.S.
Recommendation Having fully considered the testimony offered by the Petitioner and the Respondent, and being duly apprised of the aggravating and mitigating circumstances, it is the recommendation of the undersigned that the Respondent, James A. Ford, D.D.S., have his license to practice dentistry in the State of Florida revoked. DONE AND ENTERED this 20th day of January, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 James A. Ford, D.D.S. 1201 Sample Road Pompano Beach, Florida 33064
Findings Of Fact At all times material hereto, Respondent has been a licensed dentist in the State of Florida, having been issued license number DN 0004795. On April 30, 1981, Fay Ackret, an 84-year-old female with arthritis, consulted Respondent seeking both full upper and full lower dentures, since she had broken the set that she had been using for the last twenty years. Because Ackret's lower ridge was almost non-existent, Respondent recommended a lower cushion denture. Ackret advised Respondent she wanted porcelain teeth. On July 16, 1981, Ackret returned. Respondent examined her, and preliminary impressions were taken for the full upper and full lower dentures to be constructed with porcelain anterior teeth, and acrylic posterior teeth. Final impressions were taken on July 23, 1981; additional measurements and a bite block impression were taken on July 30, 1981; a try-in was done on August 5, 1981; and the dentures were delivered on August 12, 1981. Thereafter, Ackret returned for adjustments on August 18, 1981; August 31, 1981; November 12, 1981; November 18, 1981; December 15, 1981; January 6, 1982; January 11, 1982; January 19, 1982; February 2, 1982; February 15, 1982; February 24, 1982; March 2, 1982; March 8, 1982; and March 23, 1982. One of those visits involved, according to Respondent's records, a "major adjustment" and on one visit, her dentures were sent back to the lab for rearticulation. On June 3, 1982, Dr. Marshall A. Brothers examined Ackret on behalf of Petitioner. Ackret complained to him of pain and of not being able to function with her dentures or to retain them in her mouth during functioning. However, Ackret was wearing the dentures when she was seen by Brothers. Based upon his examination of Ackret and her dentures, Brothers concluded that the dentures Ackret got from Respondent failed to meet minimum acceptable standards due to numerous defects. The opinion of Brothers fails to take into account the numerous adjustments made to the dentures in an attempt to make Ackret comfortable with her new dentures. The number and kind of adjustments render the denture seen by Brothers to be substantially different than the denture originally fabricated by Respondent. Additionally, Ackret's lower denture had undergone a hard reline by the time she was seen by Brothers. Although Ackret had complained to Brothers that she could not eat with her new dentures and could not function with them, she in fact was wearing them for her visit to Brothers, and Brothers noted that food had collected on them, indicating that Ackret was in fact using her dentures for eating. On December 7, 1982, Ackret appeared at the dental office of Dr. Harry B. Gaulkin. She advised Gaulkin that her upper denture gave her no problems at all, but that her lower denture was not comfortable. She further advised that she could not chew well with the lower denture, and that it was loose. She then requested that Gaulkin make a new set of dentures for her, both full upper and full lower. Gaulkin initially suggested to Ackret that she simply consider a soft reline on the lower denture since the upper denture was not problematic. After Gaulkin discussed with her her various options and the prices thereof, Ackret left his office to think about what she wanted to have done. She has never returned. Gaulkin is not able to identify Ackret's exact complaints regarding her lower denture and did not note any defects in the set of dentures. A few months prior to the final hearing in this cause, Ackret appeared at Respondent's office complaining that she had broken a tooth off her denture.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed against Respondent herein. DONE and ORDERED this 20th day of January, 1985, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, NJ 07201
The Issue The issues are whether Respondent is guilty of failing to practice dentistry in accordance with the applicable standard of performance and, if so, what penalty should be imposed.
Findings Of Fact Respondent has been licensed to practice dentistry in Florida since 1984. He practices prosthodontics in a general dentistry practice. Respondent has been disciplined three times. Pursuant to a stipulation, in which Respondent neither admitted nor denied the underlying allegations, Respondent agreed to a reprimand, two years' probation, 30 hours of continuing education in endodontics, 30 hours of continuing education in crown and bridge work, 15 hours of continuing education in risk management, and $6000 in costs, as reflected by a Final Order entered November 2, 1995. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance by failing to take post-operative radiographs following a root canal and had failed to keep adequate dental records. Pursuant to a stipulation, in which Respondent neither admitted nor denied the underlying allegations, Respondent agreed to a reprimand, one year's probation, 15 hours of continuing education in removable prosthodontics, and $1500 in costs, as reflected by a Final Order entered April 1, 1997. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance in preparing and fitting dentures. Pursuant to a stipulation, in which Respondent admitted the underlying allegations, Respondent agreed to an administrative fine of $3000, 14 hours of continuing education in crown and bridge work, and $926.53 in costs, as reflected by a Final Order entered July 27, 2000. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance in fitting a bridge and crown. C. J. underwent a course of treatment with Respondent during the summer of 2002 after taking her son to Respondent for dental work for a couple of years. As a patient, C. J. first visited Respondent on June 23, 1999, complaining of bleeding gums and nocturnal teeth grinding. After examination, Respondent advised C. J. that her dental health was poor and recommended a course of periodontal treatment that would cost nearly $5000. C. J. declined to commence treatment at that time due to a lack of funds. C. J. next saw Respondent on July 9, 2001. At this time, she was complaining of pain in her jaw joint, which clicked and popped on movement. Respondent discussed with C. J. her ongoing dental needs, and C. J. said that she understood that she needed to undergo treatment. However, she could still not afford to start extensive dental work, so she did not do so. By the summer of 2002, C. J. realized that her dental health required treatment at this time, so she borrowed some money from a family member in order to undergo the dental work. A teacher, C. J. wanted to complete the treatment during the summer while she was not teaching, although the record does not indicate whether this desire drove the treatment schedule. Initially, C. J. visited Respondent in the summer of 2002 for treatment due to pain in tooth number 31. Respondent referred her to an oral surgeon, who extracted the tooth, but an ensuing secondary infection necessitated treatment by C. J.'s primary care physician. This process consumed the first half of the summer. The treatment that is the subject of this case took place over a five-week span in July and August 2002. On July 10, Respondent prepared two treatment plans for C. J. One plan included crowns for teeth numbers 3, 14, 18, 19, and 30. (The other plan called for porcelain laminate veneers, which are not at issue in this case.) One of the three claims stated in the Administrative Complaint states that Respondent left defective margins after completing crown restorations of three teeth. A margin is where the crown meets the tooth structure. Margins must be continuous to promote dental health. The discontinuities in open or defective margins may create a space or ledge where debris can accumulate and cause decay or a roughened surface that may continually irritate surrounding gum tissue. According to Petitioner's expert witness, Dr. Robert W. Shippee, an open margin exists when the gap exceeds 50-150 microns. According to Dr. Ronald M. Fisher, an open margin exists when the gap exceeds 120 microns, "maybe a little more." When he examined C. J., Dr. Fisher used an explorer whose width permitted him to detect open margins of 100 microns or more. Radiography does not reveal lingual and buccal margins, but does reveal medial and distal margins. Distal margins, which are located on the tooth surface aligned toward the back, are also revealed clinically by floss or explorers. On July 10, Respondent's hygienist scaled and root planed the teeth in the lower left quadrant. She performed a debridement of the lower left quadrant with irrigation using Peridex®. Respondent did not see C. J. during this visit. On July 17, Respondent took impressions of teeth numbers 14, 18, and 19 in order to prepare crowns for these teeth. Tooth number 14 is in the upper left quadrant, and teeth numbers 18 and 19 are in the lower left quadrant. Mixing the adhesive Durelon™ with Vaseline petroleum jelly, so as to reduce the adhesive force of this dental cement, Respondent fitted C. J. with temporary plastic crowns, noting that teeth numbers 14 and 19 had such deep decay that they might require root canals. Following this work, the hygienist scaled and root planed the teeth in the upper left quadrant and irrigated with Peridex®. On July 23, the hygienist scaled and root planed the teeth in the lower right quadrant and irrigated with Peridex®. Following this work, Respondent examined C. J., who complained of pain at teeth numbers 17 and 18, so Respondent removed these temporary crowns, adjusted at least one of them, and recemented them with Durelon™ and Vaseline petroleum jelly. His notes raise the question whether tooth number 18, as well, might require a root canal. During the same visit, Respondent took impressions of teeth numbers 3 and 30 in order to prepare crowns for these teeth. These teeth are in the upper right and lower right quadrants, respectively. On July 24, Respondent's hygienist scaled and root planed the teeth in the upper right quadrant and irrigated with Peridex®. C. J. reported that she was still feeling pain in the area of tooth number 17. (The dental records misreport this as tooth number 32, but C. J. did not have tooth number 32.) Respondent did not see C. J. during this visit. On August 15, Respondent fitted C. J. with porcelain- fused-to-metal crowns on teeth numbers 3, 14, 18, 19, and 30. Respondent cemented these with Durelon™, but without the Vaseline petroleum jelly. Respondent checked the crowns with an explorer and was concerned about the margins. He directed his staff to perform X-rays of the subject teeth, but, after trying five times, C. J.'s gag reflex prevented staff from taking the exposures. The dental records state that Respondent needs to take this X-ray and check the margins next visit. It is unclear why, but there were no more visits. C. J. visited the office on August 26 to speak with the receptionist about certain charges, but she was not examined or treated by Respondent. C. J. claims that no one in the office gave her another appointment, but her recollection of events, now five years past, was understandably imperfect. Clearly, there had been some problems with charges, and the school year had resumed. On these facts, it is impossible to hold Respondent responsible for the absence of a follow-up visit. Dr. Shippee and Dr. Fisher agree on three things. First, the dental work in this case was not of high quality. Second, the margin left on tooth number 14 does not meet the applicable standard of performance imposed upon dentists, if Respondent had completed treatment of the tooth. Third, it is not always below the standard of performance for a dentist to cement a permanent crown and later find a defective margin, as long as the dentist corrects his work. It is relatively easy to resolve the claim in the Administrative Complaint involving the sequence of periodontal treatment and the taking of impressions. At the hearing, Dr. Shippee admitted that it is not necessarily a departure from the applicable standard of performance for a dentist to take impressions and perform periodontal treatments, such as scaling and planing, on the same visit. He testified that this was acceptable practice if the dentist could still record the shape of the tooth accurately. The Administrative Complaint does not clearly identify the teeth to which this claim applies. The sequence of periodontal treatment and the taking of impressions is as follows: July 10--treatment of lower left quadrant; July 17-- impressions of teeth numbers 14 (upper left quadrant), 18 (lower left quadrant), and 19 (lower left quadrant) followed by treatment of upper left quadrant; July 23--treatment of lower right quadrant followed by impressions of teeth numbers 3 (upper right quadrant) and 30 (lower right quadrant); and July 24-treatment of upper right quadrant. Thus, the only impressions taken after periodontal treatment are the impressions of teeth numbers 18 and 19, which followed their periodontal work by a week, and tooth number 30, which took place a few minutes after its periodontal work. Dr. Shippee misread the dental records when, in his report dated May 20, 2006 (Petitioner Exhibit 6), he complained about the performance of scaling and root planing on tooth number 14 on the same day that Respondent took an impression of this tooth. He assumed that Respondent's hygienist had worked on the tooth before Respondent did, but this is not the order shown in the dental records. (The order in which information is recorded in the records reveals the order in which Respondent or the hygienist performed services, when both persons worked on C. J. on the same day.) Dr. Shippee's concern about trying to take a good impression of a tooth amidst the bleeding associated with scaling and planing is thus misplaced, at least as to tooth number 14. The Administrative Complaint implicitly precludes consideration of teeth numbers 18 and 19 because the allegations refer to taking the impressions on the same day as performing the periodontal treatment. Any attempt to prove a departure from the applicable standard of performance as to teeth numbers 18 and 19, for which the impressions were taken one week after treatment, would also have to overcome Dr. Shippee's statement, in his May 20 report, that "at least" one week must separate the scaling and planing from the taking of impressions. Absent any other evidence indicating that the condition of C. J.'s gums prevented Respondent from taking an accurate impression of teeth numbers 18 and 19, Petitioner has failed to prove that the sequence of procedures as to these teeth failed to meet the applicable standard of performance. As to tooth number 30, Petitioner omitted this tooth from its allegations of defective margins, so, inferentially, the margins on tooth 30 were not defective. Likewise, immediately after discussing the work on tooth number 30, Dr. Shippee's May 20 report finds that the margins on teeth numbers 3, 14, 18, and 19 are defective. Again, inferentially, the margins on tooth 30 were not defective. Most significantly, at hearing, Dr. Shippee testified that Respondent affixed five crowns and four had defective margins. Coupled with the information in his report, Dr. Shippee's testimony implies that tooth number 30 had acceptable margins. As noted above, Dr. Shippee conceded that it was permissible to take an impression following periodontal work, as long as the impression is accurate. It appears that is exactly what transpired as to tooth number 30. Petitioner has failed to prove that the sequence of procedures as to this tooth failed to meet the applicable standard of performance. In his May 20 report, Dr. Shippee misstates that, on July 23, the hygienist scaled and planed the teeth in the upper right quadrant. As noted above and as reflected clearly in the dental records, this work was done on July 24, not July 23. This misreading of the dental records may have contributed to the focus of Dr. Shippee-and the Administrative Complaint--on tooth number 3, whose margins Dr. Shippee found defective, even though the procedures were performed in the proper order, rather than tooth number 30, whose margins Dr. Shippee found acceptable, even though the procedures were performed in reverse order and only a few minutes apart. It is also relatively easy to resolve the claim that Respondent failed to check marginal integrity clinically and radiographically prior to cementing the crowns. As was the case with the preceding claim, however, this claim itself requires analysis to understand its meaning. First, Dr. Shippee testified at hearing that a dentist meets the applicable standard of performance by checking the margins clinically or radiographically--not both, as alleged in the Administrative Complaint. Second, the Administrative Complaint does not qualify its reference to the cementing of the crowns, which takes place with both the temporary and permanent crowns, but the record reveals that this allegation clearly does not apply to the cementing of temporary crowns. So, this claim raises the questions of whether Respondent clinically or radiographically checked the margins prior to permanently cementing the crowns. Respondent checked the margins clinically, with his explorer, after cementing the porcelain-fused-to-metal crowns into place. He tried to check the margins radiographically, but the patient's admittedly "very nervous" condition, which produced the gagging reflex, prevented staff from taking x-rays at that time. However, the clinical check revealed to Respondent that he needed to recheck these margins, clinically and radiographically, at a subsequent visit, at which C. J. might better tolerate the necessary X-rays. Respondent could reasonably have expected, at a subsequent visit, C. J. would not gag over the X-rays because she had undergone these x-rays previously in his office. The question in this claim is thus reduced to whether Respondent deviated from the applicable standard of performance by cementing the porcelain-fused-to-metal crowns prior to checking the margins by either means. At the hearing, Dr. Shippee conceded on cross-examination that it was not a departure from the applicable standard of performance for a dentist not to check margins radiographically prior to permanently cementing the crowns into place. He also conceded that it would not be a departure from the applicable standard of performance not to check the margins either way, if the dentist were not using permanent cement. Respondent seized upon this opportunity to claim that his use of Durelon™ revealed an intent to temporarily cement the five crowns in place on August 15. This claim strains credulity. Respondent weakened the Durelon™ with Vaseline petroleum jelly when applying temporary crowns, and there does not seem to be a category of semi-permanent crowns that would accommodate Respondent's argument that Durelon™ without Vaseline petroleum jelly was not a permanent adhesion. Also, whatever else can be said of Respondent's dentistry, no one can argue with the durability of his cementing. The "temporary" adhesive that he applied on August 15, 2002, remained in place, four years later, when Dr. Shippee examined C. J. The evidence thus establishes that Respondent intended to permanently cement the crowns that he affixed on August 15, subject to one condition. However, Respondent was prepared to remove the "permanently" cemented crowns if the margins proved defective. There was no other reason to note in his dental records of August 15 the need to recheck the margins. Likewise, Dr. Shippee testified that, at some point over his long career, he may have "permanently" set a crown with a defective margin, and it would not have been a departure from the standard of performance to have discovered the open margin as much as two years later--as long as he then removed the crown and replaced it with a properly fitting one. Coupled with Dr. Shippee's earlier concession that a dentist could permissibly permanently cement a crown into place prior to checking the margins radiographically, it is difficult to find a departure from the applicable standard of performance by the sequence followed by Respondent in this case in cementing the permanent crowns, checking the margins, and noting the need to recheck the margins at a later visit. On re-direct, Dr. Shippee reversed himself, again, and testified that he would dry seat porcelain-fused-to-metal crowns and, if he found defective margins, he would not permanently cement them until he had replaced the defective crowns. However, this testimony was less convincing than his above- described admissions on cross-examination, especially after consideration of the testimony of Dr. Fisher. Dr. Fisher testified that a dentist who "permanently" cements porcelain- fused-to-metal crowns, knowing that the margins are defective, does not deviate from the applicable standard of performance, as long as he intends to use the "permanent" crowns as temporaries and replace them with properly fitting crowns at a subsequent visit. Petitioner has failed to prove that Respondent's permanent cementing of the crowns into place, prior to checking them clinically or radiographically, failed to meet the applicable standard of performance, at least when he checked them with an explorer immediately after cementing them and documented the need to recheck the margins--and, if necessary, replace the crowns--at a subsequent office visit. The third claim is the most significant because, as Dr. Shippee testified, "the margins are the real problem." On this claim, the Administrative Complaint is clear: the distal margins on teeth numbers 3, 14, and 18 are allegedly defective. Dr. Fisher testified that the distal margin on tooth number 14 is defective, and the crown needs to be replaced. However, he found no defective margin on tooth number 18. He evidently found a less serious defective margin on tooth number Dr. Fisher testified that he found no evidence of decay on any of these teeth. Although C. J. had evidence of gum inflammation, Dr. Fisher attributed that to the absence of a cleaning over the preceding year. In contrast, Dr. Shippee unequivocally found defective distal margins on all three teeth-both clinically and radiographically. Dr. Shippee's testimony is credited on this point. The record offers little support for any finding as to why the margins are defective. Respondent sends his impressions to a lab for the preparation of the crowns--a practice that Dr. Shippee finds acceptable, even though he makes his own crowns. The allegations imply a causal link between Respondent's practice of taking impressions shortly after periodontal work with the resulting defective margins. However, the evidentiary record offers little support for this theory. Due to his misreading of the dental records, as noted above, Dr. Shippee erroneously concluded that Respondent took the impressions of teeth numbers 3 and 14 shortly after his hygienist scaled and planed these teeth. But the sequence of these procedures was actually the reverse of what Dr. Shippee had found. On the other hand, Respondent took the impression of tooth number 18 one week after the periodontal work to that area, but the likelihood of an adverse result caused by this sequence is diminished by two facts. First, Dr. Shippee opined that at least one week was necessary for the proper healing to take place. Second, when Respondent actually took an impression of one tooth--tooth number 30--only a few minutes after the periodontal work, the margins for this tooth were fine: this was the only tooth with acceptable margins, and it was the only tooth for which the impressions followed immediately upon the completion of the periodontal work. This theory of causation thus finds little support in the present record. Notwithstanding whether the defective margins on these three teeth resulted from the poor workmanship of Respondent or the lab, another issue emerges with respect to whether, on August 15, Respondent was finished with his crown work on these three teeth. As noted with respect to the second claim discussed immediately above, Respondent was not finished, and the applicable standard of performance does not prohibit him from continuing to service these teeth, at least for a reasonable period past August 15, until he obtained a satisfactory result. In theory, the work could have been so deficient, as of August 15, as to constitute a departure from the applicable standard of performance, despite Respondent's intent to continue to service these teeth. However, Dr. Shippee's testimony does not support this theory. In particular, the record is devoid of evidence establishing how far a dentist's work must stray, in terms of defective distal margins, before the applicable standard of performance deprives him of a chance to fix his work. Petitioner has failed to prove that, under the circumstances, the crown restoration work, as of August 15, on teeth numbers 3, 14, and 18 failed to meet the applicable standard of performance due to the presence of defective margins on the distal surfaces of these teeth.
Recommendation RECOMMENDED that the Board of Dentistry enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 31st day of August, 2007. COPIES FURNISHED: Susan Foster, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, BIN C08 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Dominick J. Graziano, Esquire Erin M. O'Toole, Esquire Bush, Graziano & Rice, P. A. Post Office Box 3423 Tampa, Florida 33601-3423 H. Wayne Mitchell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Findings Of Fact The Respondent is a dentist licensed in the State of Florida, having been issued license number 0001575. The Petitioner is an agency of the State of Florida charged with regulating the standards for licensure and for practice of dentists in the State of Florida and with enforcing compliance with those licensure and practice standards contained in Chapter 466, Florida Statutes (1981). Jewel Taub is an elderly dental patient who first saw Dr. Seth Rhodes on January 28, 1980. On February 14, 1980, the Respondent took impressions of Mrs. Taub's mouth to construct a partial denture for her. On February 26, 1980, the denture was tried in the patient's mouth by Dr. Tyrone Cheeping, an associate of the Respondent. On March 4, 1980, the denture was delivered to Mrs. Taub by the Respondent and an initial adjustment performed by him, Mrs. Taub complaining that the denture palate was too thick. On April 28, 1980, the Respondent again adjusted the denture in response to Mrs. Taub's complaint that the denture or its palatal portion, was still too thick. In approximately March of 1980, the patient had stopped putting the partial denture in a container of liquid as she had been instructed by the Respondent. She began at that time to keep the partial denture in a dry envelope in her medicine chest. The patient had worn lower dentures and had been advised many times that if she did not properly care for and maintain this upper denture it could be damaged. She stopped caring for and maintaining the partial denture because she had no intention of ever wearing it again because of her dissatisfaction with its fit. Dr. Marshall Brothers, a contract dentist for the Department of Professional Regulation/Board of Dentistry, was accepted as an expert witness. He examined Jewel Taub in his office on November 25, 1981, and examined the upper partial denture in question. The theory of the design of the upper partial denture was correct because the Respondent planned that appliance to have full palatal coverage because the patient needed the additional support from the roof of her mouth and that type of denture would aid her in making a transition eventually to a full upper denture. Dr. Brothers opined that the thickness of the plate, the impingement, the openness of the bite and a lateral rock rendered the execution of the partial denture to be below community standards for manufacture and fit of such dentures. Dr. Brothers did not, in formulating this opinion, consider the passage of time during which the denture was not used by the patient and not properly cared for and was not aware whether there had been any movement in the teeth, change in size of the gums or adjacent tissue, during more than one and one-half years since the attempted adjustments. It is quite unusual that a denture should fit the first time it is tried in a patient's mouth. Thickness alone, even if a denture is too thick, does not alone render the execution of that denture below the standard of care. If a substantial period of time elapses (here in excess of one and one-half years) between the time when the denture was made and the time expert opinions are rendered regarding the fit of the denture in this patient, there can be movement in the teeth and changes in the dimensions of gums or tissue which can alter the fit of the denture. This is particularly true in the case of an 80- year-old patient. The fit of the denture can be altered for the additional reason that the patient failed to maintain the denture properly during that intervening one and one-half years between the time she quit wearing it, in approximately April of 1980, and the time expert examination and opinions regarding its fit were rendered, shortly prior to this hearing. The manufacture of the denture with a palatal portion of a thickness in excess of one and a half millimeters is not necessarily too thick and the fact that that thickness exceeds one and a half millimeters does not render the manufacture and fit of that denture a departure from the proper standards of care of the dentist who manufactures and fits it. Indeed, proper palatal thickness varies considerably from one patient to another and the prescribing of a proper palatal thickness in such a denture is not an exact science since patients' mouths and their dimensions are all different. Indeed, the Respondent prescribed and fitted dentures for a substantial number of his patients who required a palatal thickness of between 3 and 6.2 millimeters and those patients all reported satisfaction with the fit of their dentures. The material used in the denture in question is an acrylic material containing a metal reinforcing mesh. That material is manufactured and supplied to dentists such as the Respondent with a thickness slightly in excess of one and a half millimeters. That then is the minimum dimension of the palatal material which then must be built-up by the dentist in constructing an accurate fit in the palatal portion of the denture to conform to a particular patient's mouth. The slightly more than one and a half millimeter palatal material is therefore a minimum or starting point for the dentist in constructing the denture and it is practically impossible for the material to be thinner than that dimension. Indeed most of the similar dentures satisfactorily fitted by the Respondent were of a palatal thickness of between 3 and 6.2 millimeters. Thus, a palatal thickness in excess of one and a half millimeters cannot be per se excessive. The Respondent's expert witness, Dr. Gary Golden, is also a contract dentist with the Department of Professional Regulation/Board of Dentistry. He conducts a limited clinical specialty practice in prosthodontics and in maxillofacial prosthetics. He is assistant professor of orthodontics and oral surgery at the University of Miami and has conducted extensive study in his specialty area. He is the author of numerous papers and articles on the subject. One article in particular, admitted into evidence as Respondent's Exhibit 3, deals specifically with the issue of palatal size in dental prosthetics. It is not possible to merely observe a denture and determine if one and a half millimeters, the so-called "old standard" is too thick or too thin for a given patient. The partial denture in this case was outside of the patient's mouth for over one and a half years and that fact alone makes it difficult for the patient to reinsert it comfortably. This is true because of shrinkage of areas of her mouth or gums not containing teeth and the resultant movement of her remaining teeth. In an 80-year-old lady such as the complaining witness, particularly, teeth tend to "drift" because of previous extraction of teeth which the denture was designed to replace. It is quite likely that with this patient movement of her teeth occurred during the one and a half years when she did not use the denture, causing the poor fit. A patient's cooperation is quite necessary in obtaining the proper fit for such a partial denture and it is not unusual for numerous adjustments to have to be made. Here the patient quit coming to the Respondent's office for adjustments after the fourth adjustment during a short period of time after the initial fitting. After that the patient ceased cooperating with the Respondent and did not care for the denture properly by not maintaining it in a liquid environment. The lack of care by the patient, coupled with the fact that only a one-half millimeter movement of the teeth in any direction can render the fit of such a denture improper was more likely the cause of the improper fit than the initial design and manufacture of the denture and the adjustments made during the four opportunities the Respondent had to adjust the denture. When the patient complained of excessive palate thickness, the Respondent made adjustments and trimmed the thickness and the coverage of the palatal portion of the denture. After that, the patient failed to appear in his office again (for any further adjustment). Finally, the Respondent established that the interior metal mesh in the material from which the palate was construction is itself one and a half millimeters thick and thus it was impossible for the palate, including the acrylic material surrounding the mesh, to be only one and a half millimeters thick and although one and a half millimeters could possibly be too thick for some patients, it was not the case with this patient. The patient's complaint was really a generalized one regarding "all that stuff in the roof of my mouth" and in reality it was not established that the denture in question could be made successfully in any other way. In summary, Dr. Brothers could not determine whether or not there had been any movement in the teeth or change in size of the gums or adjacent tissue in the patient's mouth. The patient had not maintained the denture properly during the substantial period of time when she did not wear the denture. It is not possible to accurately determine the appropriate original fit and function of the partial denture in question at the time Dr. Brothers examined it and the patient, since it was outside the mouth of the patient for a period of one and a half years and because of possible shrinkage of edentulous areas which do not contain teeth; the extrusion and drifting of the remaining teeth (since the denture is precisely cast to the teeth and gum tissue in a certain position at a certain time); and any movement or change in the teeth or gums would make it impossible to seat the denture satisfactorily. It is to be expected that in a patient 80 years of age who had not worn a partial denture for a period of one and a half years, that at least some movement of the teeth would have occurred, altering the fit of the partial denture. Thus, it was established that the fit of the denture to the patient's mouth more than one and a half years after the Respondent initially manufactured and fitted the denture was not the same. It is quite rare that a prosthetic dental device can be manufactured and simply inserted and not require a number of adjustments. It was not established that the denture was improperly made or that it should have been remanufactured.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED: That the Respondent be found not guilty of a violation of Section 466.028(1)(y) and that the Administrative Complaint be dismissed in its entirety. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 30th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard A. Hamar, Esquire 155 South Miami Avenue Suite 111 Miami, Florida 33130 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department should give the Petitioner a passing grade on the June, 1993, Board of Dentistry Clinical Examination.
Findings Of Fact The Petitioner, Jose P. Cruz, took the June, 1993, Board of Dentistry Clinical Examination. Initially, he received a grade of 2.91, whereas a grade of 3.0 is passing. He requested a review of his grades and received some additional credit, raising his grade for the examination to 2.98--still failing, but quite close to a passing grade. The examination grade is a weighted aggregate made up of scores given on each tested procedure, using a formula for weighting the scores on each procedure. The possible scores for each procedure range from zero to five, with a score of three considered "passing" for a particular procedure. Likewise, weighted aggregates can range from zero to five, with a grade of 3.00 passing. Each procedure performed by the Petitioner (and the other examinees) was graded by three graders from pool of qualified graders. The Petitioner's graders not only were qualified, but they also were "standardized." "Standardization" is a process undertaken on the day before the examination to explain to the prospective qualified graders for an examination the criteria for grading the different procedures and how the criteria should be evaluated. The purpose of "standardization" is to insure that the graders are looking at the criteria in the same way, so that ideally each grader would grade the same performance the same way. Averaging the scores given by three "standardized graders" increased the reliability of the examination results. Procedure 8 on the examination was a pin amalgam preparation on an ivorine (plastic) tooth. Criteria for the procedure include: (a) outline; (b) depth; (c) retention; (d) pin placement; and (e) mutilation of opposing adjacent teeth. Two of the three graders gave the Petitioner a score of 3 on Procedure 8; the other gave him a 2. Procedure 9 on the examination was a pin amalgam final restoration on an ivorine (plastic) tooth. Criteria for the procedure include: (a) functional anatomy - appropriate occlusal and interproximal anatomy; (b) proximal contour and contact - contact is considered present when resistance is met with specified floss given at the time of the exam; (c) margins; (d) gingival overhang - overhang is considered to be excess amalgam in either a proximal or gingival direction at the gingival cavosurface margin; and (e) ma[n]agement of soft tissue. Two of the three graders gave the Petitioner a score of 2 on Procedure 9; the other gave him a 3. An ivorine (plastic) tooth is not the same as a real tooth. It is easier to carve, but it does not have the major external and internal landmarks created by the enamel, dentin and nerve root of a real tooth. Without additional instructions, the latter differences make it difficult or impossible for the examinee or a grader to apply certain criteria. The evidence was that the examinees received an examination booklet that instructed them to "treat simulated teeth as normal human teeth, that is, assume the simulated teeth have the same enamel, dentin, and pupil morphology as human teeth." The instruction in the examination booklet, by itself, leaves some important questions unanswered. "Normal human teeth" differ in the thickness of the enamel, not only from one person to another but also from tooth to tooth within any one person's mouth and even from place to place on any one tooth. Also, the direction in which the enamel rods run in "normal human teeth" differ, depending essentially on the shape of the tooth. The direction of the enamel rods is important in determining whether enough dentin is left under the enamel rods to support the enamel. "Normal human teeth" also have fissures, i.e., little cracks and grooves, and the margins of a preparation and restoration should be extended to include fissures that cannot be eliminated by enamelplasty. But ivorine teeth do not have all the fissures normal teeth have. As a result of these difference between "normal human teeth" and the test mannequin's ivorine teeth, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the following criteria for Procedure 8: outline form; depth of preparation; and retention. In addition, as to Procedure 9, functional anatomy depends upon a tooth's interaction with its opposing and adjacent teeth, but the mannequins did not have opposing teeth. As a result, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the criterion functional anatomy for Procedure 9. Similarly, the ivorine teeth in the mannequins were cemented in place, and points were to be deducted for moving them. This made it difficult, if not impossible--even with the information in the examination booklet--for the candidates to control proximal contour and contact, which are criteria for Procedure 9. Despite the deficiencies in the information in the examination booklet, taken by itself, there also was evidence that the graders were instructed orally during standardization, and the candidates were instructed during an orientation prior to the administration of the examination, that they were to assume an "ideal, minimal preparation" and that the purpose of the examination was simply to demonstrate basic knowledge of acceptable techniques. They also were told to assume "normal" or "ideal" enamel thickness of approximately 0.5 millimeter. Given those qualifications, they were told that the preparations were to have a "normal outline form" and "normal depth." As for functional anatomy, they were told that restorations were to "set up ideal (or normal) occlusion" by making the marginal ridges even and by replacing the restoration to the "normal shape of a cusp of a tooth." As for proximal contour, a restoration's marginal ridges were to meet (i.e., match) those of the adjacent tooth. Candidates also were allowed to ask questions as part of the orientation to clarify the oral instructions, as necessary. Given the additional oral instructions, the candidates and graders were given a clear enough understanding of the examination criteria. Evaluation of the candidates' and the graders' performance by the Department's psychometrician indicated that the examination was valid and reliable. The Petitioner's performance of Procedure 8 was primarily deficient in that the outline form was 0.25 millimeter short of the lingual occlusal groove, which was clearly visible on the ivorine tooth and which should have been included within the outline form. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. The Petitioner's performance of Procedure 9 was primarily deficient in that the restoration did not replace the "normal shape of a cusp of a tooth" and that the marginal ridges did not meet those of the adjacent tooth. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. There was evidence that, since the examination on ivorine teeth only simulates real teeth, which are easier to carve than real teeth, and is necessarily limited to a demonstration of basic knowledge of acceptable techniques, the examination does not directly test the candidate's ability to actually practice dentistry. But, due to heightened concern for the transmission of infectious disease, including HIV, ivorine teeth have been used in dental schools and in dental clinical examinations exclusively for over ten years, and the Petitioner did not prove that the use of ivorine teeth, instead of extracted real teeth, for his examination was unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Dentistry, enter a final order denying the Petitioner's examination challenge. RECOMMENDED this 28th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6923 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and not necessary. Rejected as not proven. (The exam should not necessarily measure a person with more dental experience as receiving a higher grade.) Accepted but subordinate and not necessary. Accepted and incorporated. 8.-10. Rejected as not proven. (It would be more accurate to say that the Department's examination reviewer could neither say that the the score of 2 was erroneous or unreasonable or that a score of 3 would have been erroneous or unreasonable.) 11. Accepted and incorporated. 12.-16. Accepted but subordinate and not necessary. (As to 16, however, he reiterated his opinion that the appropriate score was a 2.) 17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated. Rejected as not proven that the dentin is the "stronger material." Otherwise, accepted and incorporated. Accepted and incorporated. 22.-26. Accepted and incorporated to the extent not subordinate or unnecessary. However, as found, notwithstanding the limitations inherent in not being able to see on the ivorine tooth exactly where the enamel would end and the dentin would begin, or where the enamel rods would be, certain basic knowledge of acceptable techniques can be demonstrated on the ivorine teeth, given certain additional instructions. 27.-29. Rejected as not proven. The Petitioner's expert was not "standardized" and was not privy to what the graders were told during standardization or what the candidates were told during orientation. 30. See 22.-26. 31.-32. See 27.-29. 33. See 22.-26. Respondent's Proposed Findings of Fact. 1.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and subordinate to facts found. 11. Rejected as contrary to the evidence that the Petitioner introduced no competent and substantial evidence in support of his challenge. COPIES FURNISHED: Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 William M. Woodyard, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations in the Administrative Complaint, the Respondent was licensed as a dentist in Florida and the Petitioner was the state agency charged with regulating the practice of dentistry in this state. In June, 1984, Morris W. Kemmerer went to the Respondent, Peter M. Kurachek's, dental office because he needed dental work done and Respondent's office was handy. He was examined on this first visit by the Respondent and told Respondent what he wanted. Respondent went to work right away and within a few minutes of the patient's sitting in the chair, pulled a tooth which had broken and had to come out. Though Mr. Kemmerer had asked Respondent to put him to sleep for the extraction, Respondent did not do so. Respondent told Mr. Kemmerer what he planned to do as a course of treatment, and advised him of the expected cost and how it could be paid. Mr. Kemmerer claims he did not take a dental history nor did he, at any time, either before or after the work was done, discuss the patient's oral hygiene which was, supposedly, poor. The chart prepared by Respondent on Mr. Kemmerer contains, aside from notations as to work done, only the most basic information, such as allergies and prior medical condition, as well as current status of the mouth. Though minimal, it can be considered a dental history. After the initial procedure done the first day, Mr. Kemmerer returned to Respondent's office every day for awhile. On his second visit, the Respondent told him he needed a bridge and, though Mr. Kemmerer's memory on the matter is poor, probably told him of the remainder of the course of treatment. The bridge in question was necessary because the tooth Respondent pulled on the first visit was the one to which Mr. Kemmerer's existing bridge was anchored, and extraction of that anchor tooth required Respondent to make another bridge to be affixed to the next sound natural tooth. However, Mr. Kemmerer recalls that the bridge made for him by the Respondent did not fit correctly from the beginning and Respondent had to make several for him before a reasonably comfortable fit was finally achieved. This was done by grinding down Mr. Kemmerer's opposing natural teeth. Even with that measure, however, the fit was never completely correct. Respondent also made an additional partial denture for Mr. Kemmerer which could never be worn because it didn't fit. When Mr. Kemmerer told Respondent about this, he tried to fix it but was not able to do so satisfactorily and Mr. Kemmerer suffered an extended period of pain as a result. Mr. Kemmerer paid Respondent approximately $1,700.00 for the work done and did not see him again after August 9, 1984. Even though the work done was not to his satisfaction, Mr. Kemmerer did not see another dentist because he could not afford to do so. However, at the suggestion of his coworkers, he agreed to see Dr. Philip M. Davis, II, another dentist in Sarasota who, after an examination, told him the work Respondent had done had to be done over. Mr. Kemmerer ultimately contacted the Department of Professional Regulation about the treatment he received from the Respondent and filed a civil suit against Respondent, settling without trial for $3,000.00. The fact that the suit was settled in Mr. Kemmerer's favor has no bearing on the issue of care involved in this hearing and is not considered. Dr. Davis first saw Mr. Kemmerer as a patient on June 11, 1986 when Mr. Kemmerer presented himself complaining of swelling and pain in a right upper molar, (tooth 4). Upon examination, Dr. Davis found the patient had a partial bridge with crown and observed that the crown margins did not touch the prepared edge of the supporting tooth as they should. His x-rays taken at the time showed Mr. Kemmerer had an infection in the tooth and when he opened it through the crown, he found a space filled with cement, food, and waste, and that the tooth tissue was leathery. All that indicated to him that decay had gotten up under the crown and the base of the tooth had rotted because, in his opinion, the crown edge, (margin), did not properly fit to the tooth base. Dr. Davis noted that the margins of several crowns prepared by the Respondent several years earlier, were not good fits. Photographs of Mr. Kemmerer's mouth made in August, 1987 and October, 1988, as much as 3 and 4 years after completion of Respondent's work, reveal that at that time the margins on several teeth were substantially open. When Dr. Davis saw Mr. Kemmerer in 1986, he noted that the bridge constructed by the Respondent had been cemented to the abutment teeth which also had open margins. Regarding the specific teeth in question, photos of tooth 4 show a failure of the margin of the crown to touch the tooth and the preparation thereof. This indicates the crown was not properly fitted to the prepared tooth. It had never fully seated on the tooth and appeared to have been cemented in a suspended position above the tooth instead of being seated down on it. Insertion of a crown such as this one is a routing procedure and is not particularly complex. By not properly seating the crown, the installer, (Respondent), left an open space for saliva to enter and wash out the cement. Acceptable tolerance for a margin of this nature is 40 microns, (40/10,000 in.). On tooth 4, the margin was 2 mm short on the cheek side and 3 mm short on the tongue side. This led to the cement being washed out and to the entry of food and bacteria resulting in decay and infection of the bone. Had the crown been seated properly, it should have lasted for 10 - 20 years or more, absent trauma. As to tooth 11, examined by Dr. Davis on July 21, 1986, again, the crown margin was found to be well shy of the preparation margin on the tooth. On the tongue side, the crown was 1 mm short of full seating and was pulled away from the tissue. On the cheek side, the crown was too bulky for the preparation and did not match with a smooth, continuing surface. When Dr. Davis examined tooth 6 that same day, he found that here, too, the crown was too bulky and the margin did not fit. On the tongue side, it was 1/2 mm short and allowed food and bacteria to get up into an area of the tooth where the patient could not get it out. Dr. Davis did not measure the degree of separation, if any, on the cheek side. He did, however, find that on tooth 10, the margin was at one point 1/2 mm off and allowed food and bacteria retention. With regard to tooth 7, Dr. Davis found the margin on the lip side to be excessively heavy, (overbuilt), and on the tongue side, to be 1/2 mm short. In none of these cases were the margins acceptable as they far exceeded the 40 micron tolerance. These observations were confirmed by an examination of Mr. Kemmerer conducted at the request of the Board of Dentistry on May 13, 1987 by Dr. Davis R. Smith, an expert in general dentistry and the Board's consultant. Dr. Smith found the bridge built by Respondent to be poorly fitted around the preparation line of the teeth to which it related. Decay was present in every tooth to which Respondent had fitted a crown. The bridge had come loose, the crowns were not fitted properly, and the margin lines were short, open, and/or overcontoured. On each tooth involved, there was some combination of all those defects. When describing the margin shortage on some of Respondent's work on Mr. Kemmerer, Dr. Smith characterized it as, "ridiculously far off minimum standards." Dr. Smith's measurements were made visually and consisted of his running a probe over the margin seam which, in each case, he found to be excessive. A space of 50 microns can barely be felt with a probe and a space of 30 to 40 microns can barely be seen with the naked eye. Here, the margins were so poor that the space could be visually seen and entered with a probe. Both the experts opinioned that Respondent's seating of the crowns in question, so as to leave extensive gaps at the margins, was below standards. Respondent contends that at the time of installation, the crowns fit properly, and his expert, Dr. Carter, urges that a 1987 review of work done in 1984 cannot determine whether the margins at the time of installation were correct. This is because: Many things could have transpired in the patient's mouth in the interim such as changes in bone and tissue structure or a natural alteration of the appliance; Chemical changes in the mouth can erode tooth structure from beneath the margin, and tooth structure can be removed by cleaning. Respondent also contends that if the margins had been as poor from the beginning as indicated, the patient would have suffered pain and sensitivity associated with them. The evidence clearly demonstrates he did. Both Drs. Davis and Smith were of the opinion that, aliunde the margins, Respondent's office practice and record keeping were poor. In Dr. Davis' opinion, when a patient such as Mr. Kemmerer, of advanced age and obviously poor dental hygiene, comes in, the dentist must do a complete examination and charting to look for gum disease, cavities, occlusion and malocclusion, and evidence of cancer, and the examination should include full mouth x-rays. He must also talk with the patient and see what the patient perceives as his needs. If these are not great, the preliminaries need not be extensive, but in his opinion, to start work immediately, as Respondent did here, was improper since there was no emergency to justify disregard of a full work-up. Under the circumstances, he feels Respondent should have done a complete examination, determined what the patient needed, explained it all to the patient, and lectured on proper oral hygiene instead of jumping right in to do the crown and bridge work. It is found that would be the appropriate course for him to have followed. It must be noted that Mr. Kemmerer came in to Respondent's office indicating he was in pain. Respondent examined him and identified the cause of the pain. He corrected that problem and, in addition, began additional crown and bridge work which, while profitable, was not shown to be unnecessary. The procedures described by Drs. Smith and Davis are unquestionably the clinically appropriate things to do. While Respondent did not do all the things described as appropriate, he did identify his patient's immediate problem and correct it. Either he or his assistant advised the patient to practice better dental hygiene. He also incorporated his findings into his records on this patient. In that regard, the charting practices taught in school are appropriate for a school environment, but what is considered acceptable in private practice is not necessarily as detailed as in school. Respondent's expert is of the opinion that a dentist should advise his patient thoroughly on home care but that advice need not be noted in the records. He has found that records have become verbose, time consuming, and generally a pain in the neck, and, more importantly, record keeping such as is suggested, takes time away from caring for the patient. Legal action requires the dentist to protect himself, but in Dr. Carter's opinion, one cannot put everything on a chart; only those things which support patient care. While perhaps not conforming to optimum standards of practice, Respondent's actions in regard to record keeping and procedure choice cannot be said to be materially below standards. The formulation of the treatment plan is the primary responsibility of the dentist. During their examinations, both Drs. Davis and Smith noted that Mr. Kemmerer had lost a lot of enamel from the teeth occluding with the bridge. It appeared this was caused by Respondent's extensive grinding of the natural tooth material down to the dent in in order to get a proper occlusion with the bridgework he had installed, instead of removing the bridge and adjusting it to properly meet the natural teeth, or making another which did fit. Neither expert considered the worn condition of Mr. Kemmerer's teeth to be the result of natural grinding or bruxism. In any case, Respondent could have polished the rough enamel so as to reduce the resultant abrasion and he failed to do so. Respondent's actions here were, in the opinion of the Board's experts, below practice standards, and it is so found, notwithstanding Dr. Carter's testimony tending to exculpate Respondent's actions. Dr. Carter claims that Respondent's use of porcelain in the bridge, which, since it is harder that normal tooth tissue, will wear it down, was appropriate. He also asserts that if the patient did not wear his tooth 2 - 4 partial, he would still have had the abrasion problem because all chewing force being applied on the front teeth would wear them down. On balance, however, the evidence supports more clearly a finding that Respondent knowingly ground Mr. Kemmerer's natural teeth down to achieve the fit rather than taking appropriate corrective action when he found the bridge did not fit properly and he admits to this. The bridge in issue was made of metal and porcelain. When Respondent inserted the upper bridge, it was necessary for him to adjust the occlusions and to do so, he ground down the opposing lower natural teeth so the uppers and lowers would fit harmoniously. He denies that his placing of the upper teeth caused excessive wear on the lower teeth. The reduction in mass of the lower teeth was the direct result of Respondent's grinding down the natural teeth to fit to the false teeth on the bridge. Respondent presented the testimony by deposition of Dr. Hemerick, accepted as an expert in general dentistry. Dr. Hemerick was also offered as an expert in the field of prosthodontics. Petitioner accepted the witness as an expert in general dentistry but objected to him being classified as an expert in the field of prosthodontics. The objection is well taken. Though the witness is retained as an expert to evaluate dental performance for an insurance company which provides malpractice insurance to many dentists, his stated educational background and experience in the specialized field do not qualify him as "expert" in that specialty. He can, however, appropriately state his opinion as to the Respondent's treatment of Mr. Kemmerer in its totality and concluded that Respondent's treatment met accepted standards. Specifically, he stated that margins, as here, which fit acceptably when installed, can spread and open due to mouth activity over a period of years. What this witness, as well as Dr. Carter overlooks, however, is the excessive thickness of the device at the margin where it abuts the actual tooth. While the margin may open with time, construction material cannot grow on the appliance to make it thicker than when installed, and this, according to Petitioner's experts, was a basis for claiming Respondent's work was below standard in addition to the open margins. However, it is found that the likelihood of the margins opening as much as appears here, by normal mouth activity, is remote. Respondent has been a practicing dentist since 1966 when he got his degree in Kentucky. Over two separate periods, he has practiced in Florida for approximately 14 years. Mr. Kemmerer came to him initially for repair or replacement of a very old, (1943), denture which replaced front teeth 8 and 9 and which was not reparable. Respondent and Mr. Kemmerer discussed possible alternative treatments but both agreed treatment could not be postponed for this demanding cosmetic problem. It seems Mr. Kemmerer was in the real estate profession and needed teeth, and according to Respondent, wanted to leave Respondent's office that day with replacement teeth in his mouth. Respondent agreed to provide them. However, before starting treatment, Respondent determined from his examination of Mr. Kemmerer that due to long neglect of his dental hygiene, major treatment was necessary. Mr. Kemmerer wanted a patch job, Respondent alleges, and he refused to do that. Before work was started, however, Respondent left the room, leaving to his dental assistant the task of advising Mr. Kemmerer of the proposed treatment plan. Respondent had charted Mr. Kemmerer's mouth and instructed his assistant to go over the proposed work with him and give him a price for the work to be done. The assistant was to answer any questions Mr. Kemmerer might have. When Respondent returned to the treatment room, Mr. Kemmerer had a lot of questions to ask. His main concern was whether a new bridge would last. Respondent went over the proposed procedures with him and told him that with good home care, the appliance should last for the rest of Mr. Kemmerer's life. After Mr. Kemmerer met with Respondent's assistant, he elected to have the bridge made. Thereafter, Respondent had his assistant take impressions of Mr. Kemmerer's upper and lower jaw. Respondent anesthetized the upper area to be worked on and began the crown preparation on teeth 4, 6, 7, 10, and 11. He also adjusted the incisal edges on the abutting lower teeth, poured the upper and lower models, made a plastic temporary device for the upper area, and inserted it. There appears to be some dispute over whether Respondent made and utilized study models in the preparation of Mr. Kemmerer's appliance. He claims he did and there is little evidence to the contrary. Certainly, models were made and whether these constitute the required models has not been defined. It was obvious to Respondent early on that Mr. Kemmerer did not practice good dental hygiene. When Mr. Kemmerer returned to the office with stains on the temporary after only a short period of insertion, Respondent became concerned over his dental practices. However, it was not so bad a situation as to cause the needed repairs to be deferred and in Respondent's opinion, it was safe to begin the restorative treatment regardless of the fact that Mr. Kemmerer required periodontal treatment as well. It also appeared to Respondent that Mr. Kemmerer was an individual who was very susceptible to pain. It is because of this he believes that if all the margins had been open from the beginning, as alleged in the Complaint, Mr. Kemmerer would have sustained a lot of pain right away. At no time, however, during treatment, and after insertion of the permanent appliance did Mr. Kemmerer complain to him of pain. Respondent also contends that according to the records kept by Dr. Davis, when Mr. Kemmerer went to him in 1986, he complained of suffering pain for only 2 days. Respondent claims to have constructed in excess of 1,000 partial bridges in his 20 year career. He agrees that the margins as they now exist in Mr. Kemmerer's mouth are not acceptable and are excessive. However, he contends, these conditions did not exist when he placed the bridge and there were no open margins. It is his practice, he alleges, to return for reconstruction any bridge which does not fit properly and if at insertion this bridge had had the margins it now has, he would have done it over at no charge. He claims he saw Mr. Kemmerer's bridge on five separate occasions after it was inserted and claims never to have seen any open margins. However, Mr. Kemmerer's record shows that he only came back twice after the bridge was inserted and Respondent, commenting on the alleged lack of "follow-up" stated that after the bridge was completed and inserted, Mr. Kemmerer didn't come back. It would appear Respondent's memory is somewhat less than complete. Respondent also sees no problem in his ability to complete Mr. Kemmerer's work within 4 weeks from initial visit. When comparing that with the other expert's estimate of 6 to 9 months for completion of a proper treatment for this patient, Respondent claims the longer period is for rehabilitation of the entire mouth which, he asserts, he did not propose or agree to do. It is found that Respondent's operation is one of direct response to a particular problem, and he is not a provider of broad scale dental care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice dentistry in Florida be suspended for a period of six months and he be fined $3,000.00, and that when reinstated, he be placed on probation, under such terms and conditions as the Board may prescribe, for a period of three additional years, these actions to run concurrently with the penalty, if any , imposed by the Board in its action, when taken, in its allied cases involving Respondent, heard under DOAH case numbers 89-1240 and 89-1241. RECOMMENDED this 21st day of November, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5544 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by Petitioner in this case. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. COPIES FURNISHED: David Bryant, Esquire 13015 North Dale Mabry Highway Suite 315 Tampa, Florida 33618 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Blvd. Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
