The Issue Should discipline be imposed against Respondent's license to practice dentistry for violation of Section 466.028(1)(x), Florida Statutes (2004)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with the regulation of the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 466, Florida Statutes. Respondent is Jenny Davenport, D.D.S. Respondent is a licensed dentist in the state of Florida, having been issued license DN 13321. Respondent's mailing address of record is 7955 Dawsons Creek Drive, Jacksonville, Florida 32222. On or about June 17, 2004, Patient L.E. presented to the Respondent complaining of pain associated with tooth number thirty-one. The Respondent performed a comprehensive examination, took an X-ray, removed existing intermediate restorative material, placed a cavit, prescribed an antibiotic and pain medication, and scheduled Patient L.E. for root canal treatment. The Respondent provided root canal treatment to Patient L.E. on or about June 28, 2004. Patient L.E. returned to the Respondent on or about July 6, 2004, for crown preparation of tooth number thirty-one, which the Respondent performed. On or about July 28, 2004, Patient L.E. presented to Respondent for seating of the final crown; however, the Respondent was dissatisfied with the permanent crown; therefore, she seated the crown with temporary cement and instructed the lab to fabricate a new permanent crown. On or about November 16, 2004, Patient L.E. presented to the Respondent for a prophylaxis and complained of pain in the lower right side of her mouth. Care and Treatment of Patient L.E.: The Patient's Recollection As established by the patient's testimony, when first seen by Respondent, Patient L.E. was not experiencing pain. When the patient returned for a visit it was determined that she needed to have a root canal performed on tooth number thirty- one. The procedure was performed. The patient was left with a temporary crown and an appointment made to have a permanent crown seated. Upon the next visit the permanent crown did not fit well. Respondent left the patient with a temporary solution. The patient returned in November 2004 for a cleaning, and she recalls, that at the time of the appointment, the crown on tooth number thirty-one had been set, as she refers to it, or seated. In November 2004 the patient was of the opinion that tooth number thirty-one had a permanent crown. At the November 2004 appointment the patient was experiencing sensitivity in tooth number thirty-one. However, before going to her November 16, 2004 appointment for cleaning, the patient had not complained of sensitivity in tooth number thirty-one. The nature of the sensitivity was a response to cold. She describes the nature of the discomfort as other than "really pain" [sic]. According to the patient, Respondent decided that tooth number thirty-one needed to be retreated. The patient was not certain why that was necessary. As the patient recounts the conversation, Respondent explained that she was going to retreat tooth number thirty-one because of the sensitivity, in particular that she was going to retreat the root canal. The patient returned on December 13, 2004, and the root canal on tooth number thirty-one was retreated. The patient has no recollection of an appointment being set for a later date. She realized that there was a necessity for a permanent crown to be "set again," referring to the need to seat a new permanent crown. The patient recalls Respondent's taking another permanent crown off before retreatment. When the patient left Respondent's office on that date, the area where treatment was performed felt numb. She left the office with the understanding that the treatment had been concluded, with the exception of the need to replace the crown. The patient assumed that the retreatment had been completed on December 13, 2004, but no one told her that specifically, to her recollection. Over time she began to experience pain that got worse with the passage of time. The pain that the patient was eventually experiencing was described by her as "absolutely unbearable." It was constant in nature, a "throbbing pain." The patient tried to contact Respondent's office several times. She explained to someone within the Respondent's office that the pain killer prescribed, Vicodin, was not working. The patient describes people answering the Respondent's office telephone but without providing an adequate response to her needs. The patient left messages with the front desk. She was advised to take Advil. Around the time that the patient was having problems with pain after the December 13, 2004 retreatment, she recalls having a conversation with Respondent on the telephone but not the specifics of their discussion. Patient L.E. contacted Dr. Reid Hines, a dentist in Pace, Florida, who had treated her before. That dentist saw her and addressed her problem by relieving the pain and redoing the root canal. When the patient saw Dr. Hines on December 16, 2004, he relieved her pain and then she returned to receive further treatment, as she recalls. Patient L.E. picked up a crown from Respondent's office, that she believed was necessary to be carried to her appointment with Dr. Hines. At the time she picked up the crown, she also obtained her patient records from Respondent's office. After that she did not return to Respondent's office. The patient remembers signing a form releasing the Respondent from providing future treatment and reminding the patient, that if the crown that she had picked up were to be destroyed, she would have to pay for another. The form referred to the fact that the treatment had not been completed. Respondent Explains the Treatment The Respondent attended the University of Puerto Rica for her undergraduate education. She attended dental school at Rutgers University and received her D.D.S. in 1992. Respondent is licensed to practice dentistry in New Jersey, as well as Florida. During her practice Respondent has performed as many as five-to-six root canals a week. Respondent recalls seeing Patient L.E. on April 29, 2004, for a consultation. The nature of the complaint was discomfort or sensitivity in the lower right side. The patient wanted a complete examination and X-rays. The patient was seen for prophylaxis (cleaning) on May 13, 2004. The patient returned on June 17, 2004. At that time preexisting intermediate restorative material was removed and temporary material was placed on tooth number thirty-one. The diagnosis was "hot tooth, hyper-sensitivity." This meant that the tooth, even under anesthesia had symptoms of either pain or temperature. The recommendation for future treatment was a root canal. On June 28, 2004, the root canal treatment was provided. The patient was anesthetized. A clamp and a rubber dam were placed prior to the provision of anesthesia. The tooth was opened up to allow access to the pulp. That section of the tooth was removed. Files were used to locate the root canals. An X-ray was taken to ascertain the extent to which the files had reached within the roots. The length(s) of the canal(s) was determined with the use of an apex locater. The tooth was irrigated. Using a series of files from the smallest, to wider files in width, the canals were flared from the top of the tooth to the apex of the tooth. A cone(s) was placed and another X- ray taken to confirm the measurements within the cone. Cones were placed at each canal with cement and laterally condensed by using heat. Then buildup material was used, a resin, to compensate for loss of tooth structure and enamel. In combination, the matter of determining the length of canals was associated with radiographic measurements with a file and by use of an apex locator. The starting point for this process is the coronal part of the tooth, the top portion. Each file has a rubber stopper on it to provide a guideline for measurement. The endpoint of the measurement is the apex. The calibration for measurement is in millimeters. These procedures were utilized by Respondent to treat Patient L.E. The measurements for Patient L.E. were the distal canal 15 millimeters; the mesial buccal canal 16 millimeters and the mesial lingual canal 16 millimeters. In looking at a postoperative X-ray to determine if the root canal treatment was adequate, Respondent looks at the length of the fill in proportion to the length of the root. She also looks at any radiolucency around the root. If found, this is an indication of infection around the tooth. Based upon what a textbook says, Respondent believes that fill material placed in a root canal that is 0.5 millimeters short of the apex would be considered acceptable. Looking at the X-ray depicting the postoperative condition after providing the endodonic treatment on June 28, 2004, Respondent expressed the opinion that the fill material in each root extended all the way to the radiographic apex. When referring to the apex of the root, she means by that the end of the root. In this context Respondent mentioned the overlap of two roots, in tooth number thirty-one. In reference to the June 28, 2004 postoperative X-ray, Respondent acknowledges that she can visualize where the roots end but the apex cannot be seen. The patient returned on July 6, 2004. Tooth number thirty-one was prepared for fabrication of a permanent crown. The impression was taken. A shade was selected and the impression then sent to the laboratory. The patient was left with a temporary crown. On July 28, 2004, the patient returned. Respondent was not satisfied with the fit of the permanent crown that had been fabricated. An impression was made to prepare a new permanent crown. In the interim this first permanent crown was used as a temporary. It was not permanently cemented. On November 16, 2004, Respondent saw the patient again. Prophylaxis, (cleaning) was done and two periapical X- rays were taken. Respondent reviewed the X-rays. The X-rays revealed the crown that was placed July 28, 2004 cemented with temporary cement and the root canal treatment that had been provided earlier on tooth number thirty-one were normal, according to Respondent. Based upon the patient's complaint Respondent had ordered the X-rays. Although the X-rays appeared normal, the patient was not satisfied, as Respondent recalls. Respondent gave the patient the option to retreat the root canal at no cost. This offer to retreat the root canal when the X-ray appeared normal was not a common practice by Respondent. On this date, explaining the patient's condition, the Respondent told her that the tooth was going to be sensitive for a time and she would have to await the outcome. The patient was not satisfied with that explanation and wanted something done about it, as Respondent contends. The only other choice was retreatment. The patient returned on December 13, 2004. At that time the crown was removed, one of the canals was opened and a retrieval of the material in the roots commenced. The work was not completed. What was left to be done, according to the patient record, was referred to as RCTIII, which Respondent explains means that the canals would be filled and sealed at another time. The reason for putting off the treatment was that Respondent was concerned with "the patient's state of mind, as far as she felt at the moment. She was not comfortable." This refers to the lack of comfort on the part of the patient. Respondent goes on to say "her body language indicated to me that she would not want me to proceed with what I was doing." There is no recollection by Respondent that the patient was asked if the patient preferred Respondent to proceed or not. Instead Respondent recalls "the anxiety" by appearance and lack of comfort by the patient. Respondent told the patient that she was not going to retrieve the root canal and that the next time (next visit), the goal would be to complete everything. Respondent is not clear on when the patient was to return for the balance of the treatment. Respondent did not anticipate that the patient would be relieved of symptoms following the December 13, 2004 appointment. More specifically, during the December 13, 2004 visit, after removing the crown, Respondent opened up the pulp area and started removing the gutta-percha from the mesial buccal and mesial lingual canals. After December 13, 2004, the intention was that at the next appointment, all the remaining gutta-percha would be retrieved and then the canals refilled. Respondent remembers speaking to the patient on the telephone at a time before the retrieval process began on December 13, 2004. What was said is not provided. Respondent prepared what she describes as a letter, to be signed by Patient L.E., that identified the status of care. That correspondence said: I L.E., have decided not to continue my current treatment with Dr. Jenny Davenport. I have declined to see Dr. Davenport regarding my treatment although she has advised me that my treatment has not been completed and she would like to complete the treatment. I hereby agree that any costs incurred in the completion of this treatment are my sole responsibility and I will not make Dr. Davenport responsible for these costs. I have agreed to complete the payment of the treatment with Dr. Davenport and take possession of my crown to complete treatment with the dentist of my choice. This disclaimer, which refers to the second permanent crown, was signed by Patient L.E. on January 20, 2005, when she retrieved the second crown and her patient records from Respondent's office. Office Staff Sonya Mikki Bates worked in Respondent's office while Patient L.E. was being treated. She remembers receiving a call from the patient saying that the patient was in excruciating pain. The witness does not recall what she did in response. Dr. Hines Dr. Hines, who took over Patient L.E.'s care, earned a bachelor's degree from the University of Mississippi in 1990. He later attended the University of Mississippi dental school earning a doctor's degree. He has been licensed to practice dentistry in Florida since 1994. He performs root canals on a daily basis. As mentioned, Dr. Hines had treated Patient L.E. prior to December 16, 2004. She had become his patient in June of 1998. For that reason, in his care and treatment of the patient, he was familiar with tooth number thirty-one before the patient was seen on December 16, 2004. When Dr. Hines saw Patient L.E. on December 16, 2004, it was on an emergency basis. The patient had pain and swelling and tooth number thirty-one was very mobile. The purpose of the care provided on that date was to try to address the patient's pain and allow the condition to heal to some extent. The patient had trismus in the jaw which prohibited her from being able to open her mouth completely. X-rays taken on that date revealed traces of gutta-percha or filling material inside tooth number thirty-one. There were limited areas that had been cleaned out in the tooth and others in which gutta-percha remained. Dr. Hines' impression was that retreatment of the tooth had been commenced. In the treatment provided that date, Dr. Hines removed a temporary crown that had been placed on the tooth. To address the pain, he gave the patient a dexamethasone injection, an anti-inflammatory steroid. He reduced the tooth out of occlusion. When Dr. Hines saw Patient L.E. on December 16, 2004, he did not observe anything in her condition related to tooth number thirty-one which he believed reflected a departure from the standard of care by Respondent in providing treatment before that date. In describing the patient's condition on December 16, 2004, Dr. Hines indicates that the patient more than likely had recurring infection in the tooth that would push the tooth out of the socket and make it occlude. Dr. Hines proceeded on the assumption that Respondent was trying to allow infection to be removed out of the tooth. But he did not have certain knowledge concerning Respondent's intensions. Dr. Hines had no discussion with Respondent concerning Patient L.E.'s care and treatment. Dr. Hines did not find it appropriate to fill tooth number thirty-one and replace the restoration on December 16, 2004. He did this later. In observing the X-rays he took on December 16, 2004, the remaining material in the root canals that he observed was found in the mesial buccal canal and possibly the mesial lingual canal. Dr. Hines proceeded with the patient on December 16, 2004, with the belief that the Respondent had begun the retreatment for tooth number thirty-one but did not finish because the patient was on Christmas break. By comparison to Respondent, when Dr. Hines does a root canal, to determine if the obturation is the right length, he looks for indications with a pulp tester, basically allowing him to establish the length of the canal internally. Verification is achieved by use of a radiograph. Once the root canal obturation is finished, the (postoperative) X-ray allows the determination of the length and density of the fill material. It would not be within the standard of care in Dr. Hines' opinion if the dentist failed to completely obturate and fill the canals of the tooth to the radiographic ends. Expert Opinion Harold John Haering, Jr., is licensed to practice dentistry in Florida, Kentucky and Tennessee. He received his training in dentistry at the University of Kentucky. He has practiced since 1982. He is a general dentist who provides endodontic treatment. He performs root canals. He has also had experience reviewing endodontic treatment performed by other dentists, by examining a patient's X-ray following a patient who has had a root canal. He was received as an expert in general dentistry with an emphasis, as a general dentist, on endodontics. In Dr. Haering's opinion the distinction between a tooth that can be treated without a root canal and one where a root canal is indicated, is a tooth that is exposed in the dentin where a filling will suffice, as contrasted with a tooth involving the pulp, as to the depth of decay or a fracture in apical tissues around the roots. In the latter circumstances a root canal is appropriate. In providing root canal treatment Dr. Haering places a rubber dam to isolate the tooth following the provision of anesthesia. Generally, a preoperative X-ray will be performed. That X-ray is to gain a measurement of the tooth as to its length. The coronal portion of the tooth is accessed with a burr down into the pulp to gain access to the canal. Patency with the apex of the tooth, the end of the root, must be established. This is done with a small file. A radiograph is used in that process or the dentist my use an apex locator or a combination of both. Once the apex has been identified, instrumentation proceeds to the apical foramen. This process involves the removal of pulp, bacteria, and decay while creating access to obturate the canal. To place the obturating material, a cone of material, gutta-percha is seated to a predetermined length. After this is accomplished a postoperative radiograph is used to evaluate the obturation. In trying to establish the correct length in the procedure, it is a matter of clinical judgment and for some clinicians the use of X-rays assists in determining the proper length. Observation of the obturation postoperatively reveals the density of fill. The standard that is acceptable, according to Dr. Haering, is to approximate 0.5 millimeters from the apex radiographically when considering the fill in the canal. Dr. Haering's opinion concerning the proper root canal obturation and the proximity to the apical foramen is one in which some U.S. schools accredited by the American Dental Association teach the measurement at approximately 1 millimeter as acceptable but most schools say that obturation should approximate 0.5 millimeters in relation to the apex. To confirm the outcome a postoperative X-ray is needed in Dr. Haering's opinion. The proper placement cannot be determined by tactile means, given the nature of the material that constitutes the fill and other material in the canal that are forms of constriction. In treating the tooth, separate and apart from the root canal work, is the need for restoration. The restoration is necessary but is a different procedure. According to Dr. Haering the proper standard for performing a root canal is that the fill is radiopaque, that is that it is without voids, that it follows the anatomy of the tooth and the root canal and that the obturation approximates the apical foramen, within 0.5 millimeters. A root canal that is poorly obturated can cause pain in the patient, in Dr. Haering's opinion. In the apex area there is no vascularization. If there is a void beneath the fill, above the apex, it is susceptible to a buildup in bacteria, pulp and debris. In this anaerobic condition, problems can occur. Depending on the patient's health status it can occur slowly or quickly, resulting in pain. In preparing himself to comment on Respondent's care and treatment provided Patient L.E., Dr. Haering looked at the patient's charts, Dr. Hines' records and other materials provided to the parties on the subject. Dr. Haering expressed the opinion that the Respondent violated the standard of care in the root canal performed on Patient L.E. on June 28, 2004, by not readdressing the root canal before proceeding with other work done on the patient that commenced July 6, 2004. Dr. Haering expressed the opinion that Respondent failed to completely obturate the canals on June 28, 2004. When a short fill occurs the obligation by the dentist is to take out that filling and refill it to the proper length, in Dr. Haering's opinion. In Dr. Haering's review of the X-ray taken by Respondent on June 28, 2004, when she performed the root canal on Patient L.E., he measured the fill with an instrument designed to address the length and by that process determined that it was 5 millimeters short of the apex. The calibration of the length of fill was done with use of a micro-ruler. This short fill created a void leading to necrotic breakdown byproducts in the canal that could affect the apical bone eventually. Based upon his review of the patient records, Dr. Haering was persuaded that a permanent crown was seated on the patient's tooth number thirty-one. In this belief he is wrong. When the patient returned on November 16, 2004, and the decision was made by Respondent to retreat tooth number thirty-one, that was not a decision criticized by Dr. Haering. In Dr. Haering's opinion, on December 13, 2004, when Respondent saw the patient, the treatment records and X-ray taken confirmed his expectation of an endodontic fill that was left short. When Dr. Hines saw the patient with a swollen condition and a mobile tooth on December 16, 2004, this indicated to Dr. Haering that the patient was getting infection from a canal that was not completely reinstrumented. Dr. Haering does not believe that Respondent met the standard of care on December 13, 2004. The patient had complained a month earlier about pain. To address the tooth, it must be taken out of occlusion. With a short fill in the root canal, the area will be susceptible to a buildup of bacteria and other noxious materials that needs to be reinstrumented. The reinstrumentation would be insufficient without reaching the apex and cleaning it out. It was not appropriate to obturate the canals on December 13, 2004, because they were not ready for that procedure. It would violate the standard of care to obturate the canals at that time, according to Dr. Haering. On December 13, 2004, Respondent failed to conclude reinstrumentation of the canals visible on the radiograph, leaving two of them with debris, according to Dr. Haering. In would be a violation of the standard of care in the treatment on December 13, 2004, if Respondent did not instrument the canals to the apex, to include areas where the canals had not been obturated, unless the patient was made aware that she might have a lot of problems and was provided Respondent's contact telephone number. If the canals were not fully reinstrumented that would not have gotten the patient out of pain in the treatment of December 13, 2004. In relation to the December 13, 2004 treatment, Respondent was obligated to remove the fill to offer any therapeutic value to the patient. In Dr. Haering's opinion the determination of the appropriateness of fill by length and density is the only proper method. Patient comfort at the moment, leaving the prospect of infection over time would not suffice. J. Geoffrey Weihe, D.D.S., has practiced general dentistry since 1968. He graduated from Emory University in that year. He is licensed in Florida. He was accepted as an expert in general dentistry, in the analysis of root canals and the performance of root canals. He performed root canals on a consistent basis between 1970 and 2002. At present he regularly reviews radiographs of endodontically treated teeth. He views the root canals and the radiographic evidence after the referral of the patients for endodontic treatment and their return for restorative work which he performs. In relation to the standard of care for providing root canal treatment, Dr. Weihe expressed the opinion that the tooth should be treated in a way that the organic material or the majority of the organic material down to the apical third of the tooth and including the proximity to the apex is removed. The canals are shaped and sterilized, an inert material is introduced that is not affordable to growth of bacteria. This process is to be done to the dentist's ability and to allow healing of the surrounding tissue, if necessary. The concept of "best of the dentist's ability" would vary from dentist to dentist, according to Dr. Weihe. Concerning the filling of the canals to the point of the apex, there would be variation in the judgment based upon the clinician. Dr. Weihe is aware of some literature suggesting fill to the apex, some within a half- millimeter of the apex, and some within two millimeters of the apex. In his opinion the fill could be several millimeters short of the apex and still be a successful fill. In determining the optimal apex fill and its attainment, Dr. Weihe stated that the optimal clinical success occurs with the lack of infection, lack of pain, and long-term use of the tooth, comfort to the patient over a long term, and the prospect of the availability of the tooth to use as an abutment for a crown, a bridge abutment or whatever is needed in restorative dentistry. Dr. Weihe believes that a radiograph is not the only available tool to evaluate the adequacy of a root canal. He indicated that the success of a root canal will tell with the passage of time. Circumstances that develop after the procedure, these considerations, in addition to the X-ray findings, enter into the determination of the adequacy of the root canal performed. Dr. Weihe agreed that the best way to determine where the optimal fill has been achieved in a root canal treatment is with a radiograph. Optimal length of the fill relates to the position of the apex of the canal that cannot be seen on an X- ray. An apex locator can be used as well. Files or reamers can be used to make these determinations on optimal fill while the patient is undergoing treatment. In his opinion an experienced operator, clinician, can sense the apex with his or her fingers with the file in hand. To arrive at his opinion concerning Respondent's care of Patient L.E., Dr. Weihe reviewed the charts and X-rays provided from Respondent, the charts and X-rays from Dr. Hines, the deposition of Dr. Haering, the deposition of Patient L.E., a deposition of Respondent and the in-hearing testimony of the Patient L.E. Based upon this information, Dr. Weihe believes that Respondent met the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance. This opinion applies to the treatment and care rendered by Respondent on June 28, 2004, and December 13, 2004, and any records and radiographs maintained by Respondent in treating Patient L.E. Based upon the postoperative radiograph from June 28, 2004, and the radiograph obtained on November 16, 2004, Dr. Weihe believes that the canals were appropriately filled in compliance with minimum standards of performance and diagnosis and treatment, when measured against generally prevailing peer performance in the treatment Respondent provided Patient L.E. Dr. Weihe believes it was appropriate for Respondent to retreat tooth number thirty-one in Patient L.E. Dr. Weihe's examination of the X-ray taken on December 16, 2004, by Dr. Hines, does not lead him to the conclusion that Respondent failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. Dr. Weihe does not believe that it was inappropriate to begin the instrumentation of the canals in treatment of Patient L.E. on December 13, 2004, and continuing that instrumentation at a later time. To do so would not violate performance standards in diagnosis and treatment measured against generally prevailing peer performance. In Dr. Weihe's opinion a poorly obturated canal can eventually result in pain. Having considered the expert opinion testimony by Drs. Haering and Weihe, in relation to the allegations in the Administrative Complaint, Dr. Haering's opinion is more compelling. It is accepted to the extent that he expressed the belief that Respondent had not met the minimum standards in performance and diagnosis and treatment measured against generally prevailing peer performance. In particular, his opinion that Respondent failed to completely obturate the canals in tooth number thirty-one on June 28, 2004, is persuasive, as is his opinion concerning the failures in the treatment provided on December 13, 2004. In addition, Dr. Haering's opinion that Respondent proceeded with the treatment of tooth number thirty- one on July 6, 2004, without retreating the inadequately filled root canal(s) is accepted. This determination is made in deference to the opinion that the fill in the root canal in length compared to the apex in tooth number thirty-one missed the acceptable approximation by a significant margin. A range of 0.5 millimeters to 1 millimeter would have been acceptable. A difference of 5 millimeters is not acceptable in the view of any witness. By contrast, Dr. Weihe's equivocal description of what would be acceptable, awaiting the outcome where the patient experienced difficulties, is unpersuasive. Finally, the remarks by Dr. Hines that he found nothing about the treatment performed by the Respondent that concerned him when he treated Patient L.E. on December 16, 2004, was premised upon certain assumptions about the arrangements between the patient and Respondent concerning additional treatment by the Respondent that were not established in the facts. Moreover, the emphasis placed by Dr. Hines was the more immediate concern for relieving the patient's symptoms, something Respondent had not done. Dr. Haering's viewpoint was based upon a more detailed assessment of Respondent's performance before the patient was seen by Dr. Hines on December 16, 2004. Records Keeping The Administrative Complaint accuses Respondent of failing to record that she had cemented the final crown or the date that it was cemented pertaining to tooth number thirty-one after the June 28, 2004 root canal had been performed and/or that Respondent failed to record what instrumentation took place, how much longer the canals were instrumented or what was removed when therapy was provided on December 13, 2004. It has not been found that the crown was cemented on tooth number thirty-one after the June 28, 2004 procedure. Records on that subject and the use of instrumentation, and how much longer the canals were instrumented, taken to mean, in relation to the length of the canals and what was removed during the therapy on December 13, 2004, is not meaningful.1/
Recommendation Based upon the findings of facts and the conclusions, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 466.028(1)(x), Florida Statutes (2004), issuing a letter of reprimand, imposing an administrative fine of $5,000.00, and requiring Respondent to undergo additional training pertaining to endodontic treatment of patients, to be completed within one year and restricting Respondent from providing endodontic treatment until that training has been completed. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2007.
The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue Whether respondent's license to practice dentistry should be revoked or otherwise disciplined on grounds: (1) that he incompetently performed root canal surgery, and (2) that he accepted and performed professional responsibilities which he knew or should have known he was not competent to perform.
Findings Of Fact Respondent has been licensed to practice dentistry in Florida since January, 1977. At all times material to this proceeding, he practiced dentistry at his office located at 6221 Margate Boulevard, Margate, Florida. (Testimony of Sabroske; P-2, P-7.) II. On June 4, 1980, respondent performed root canal surgery on the lower left second molar (tooth No. 18) of his patient, Leon Seaver. (Testimony of Sabroske; P-1.) Root canal surgery is an endodontic procedure for removal of the diseased nerve or pulp of a tooth. Access to the pulp chamber is obtained by drilling a hole through the tooth's surface. The pulp chamber is then inspected and the root canals are located. The pulpal or nerve tissue is manually removed from the canals by twisting small files of increasing size. The nerve pulp has been removed when tooth filings are detected and the dentist feels increased resistance to the twisting of the file; moreover, an x-ray is taken which shows that the file has reached the apex of the root and completely filled the canal. The hollowed canals are then sterilized by medication and filled with gutta percha or silver point. Then the chamber access or opening is restored. (Testimony of Dixon.) In performing root canal surgery on Leon Seaver, respondent drilled too deeply into the tooth and perforated the floor of the pulp chamber between the two roots of tooth No. 18. He also failed to remove the pulpal tissue from the canal of the mesial root; diseased tissue thus remained in the mesial root canal. (Testimony of Dixon, Sabroske; P-4, P-6.) Seaver, complaining of continuous pain from the tooth, returned to respondent's office on June 16, 1980. Respondent took x-rays but failed to detect the perforation of the tooth floor and pulpal tissue remaining in the mesial canal. He then permanently filled the tooth with gutta percha point-- which filled the intraradicular area between the two roots instead of the mesial root canal, where the diseased pulpal tissue remained. (Testimony of Seaver, Dixon; P-1.) Seaver continued to experience pain and, eventually, the tooth had to be extracted. (Testimony of Seaver.) III. Respondent's performation of the tooth's pulpal floor, his failure to remove the pulpal tissue from the canal in the mesial root on June 4, 1980, and his failure to detect and correct the incomplete removal of the pulpal tissue on June 16, 1980, deviates from minimum dentistry standards of diagnosis and treatment which generally prevail among his professional peers. (Testimony of Dixon, Sabroske.) IV. Respondent graduated from dental school at Ohio State University in 1965. He was dismissed from dental school at the end of the spring quarter of 1963 because he had not met the clinical requirements for graduation. This was due, in part, to the fact that he was married and working part time while attending dental school. In the autumn quarter of 1964, he returned to school and successfully completed the courses required for graduation. (Testimony of Sabroske; P-7.) Although respondent is not a specialist in endodontics, he performs endodontic procedures. Endodontics is considered a part of the practice of general dentistry; dentists are trained to perform ordinary endodontic procedures. Endodontics is not a significant portion of respondent's practice. (Testimony of Dixon, Sabroske.) In the autumn quarter of 1962, respondent failed a course in endodontics at Ohio State University dental school. There was no evidence that he failed any of the seven other endodontics courses he took at dental school; he earned an A and B in two of those courses. (P-7.) Because of the difficulties he encountered in the endodontics procedure which he performed on Leon Seaver, respondent--on his own initiative-- took a continuing education course on endodontics offered by the University of Florida College of Dentistry in November, 1980. (Testimony of Sabroske; R-1.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine be suspended for one (1) month; That he be required to pay an administrative fine of $1,000; and That (following the one-month suspension) respondent be placed on probation for one (1) year, subject to the condition that, during that time, he successfully complete twenty-five (25) hours of recognized continuing education courses in endodontics. (For purposes of satisfying this condition, respondent should be given credit for the continuing education course he completed at the University of Florida on November 1, 1980.) DONE AND RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 16th day of April, 1982. COPIES FURNISHED: Richard Sabroske, D.D.S. 6221 Margate Boulevard Margate, Florida 33063 Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent has been a dentist licensed by the State of Florida, having been issued license number DN0002113. Between January 27, 1979 and March 22, 1980, Respondent provided dental diagnosis or treatment to Robert J. Durant in Respondent's dental office in Melbourne, Florida. Durant's first three visits, which occurred prior to August 4, 1979, were for the purpose of having Respondent re-cement Durant's bridge which had become loosened in his mouth. On August 4, 1979, Respondent cleaned Durant's teeth and took a complete set of x-rays. Respondent recommended to Durant that he have 13 crowns placed on his upper teeth and that root canal therapy be performed on four of Durant's upper teeth. Respondent did not recommend to Durant that any of his upper teeth be extracted. On August 4, 1979, the only appropriate diagnosis for Durant's upper teeth was extraction since the few remaining teeth he had were no longer capable of being restored since Durant had a severe case of periodontal disease and almost no bone remained for supporting any teeth. Respondent's diagnosis that Durant receive 13 crowns failed to meet minimum standards of diagnosis in that it ignored the severe case of periodontal disease which would continue if left untreated. On March 22, 1980, Respondent performed root canal therapy on Durant's upper right cuspid, upper left central incisor, upper left lateral incisor, and an upper left molar. At that time, extraction of those teeth was the only appropriate course of treatment, and Respondent's treatment of those teeth with root canal therapy was not warranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A final order be entered finding Respondent guilty of incompetence by failing to meet the minimum standards of performance, suspending Respondent's license to practice dentistry for 30 days, and requiring Respondent to pay an administrative fine of $1,000.00 by a date certain. DONE and RECOMMENDED this 29th day of October, 1982, 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 29th day of October, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ralph C. Robinson, D.D.S. 316 Ingraham Building Miami, Florida 33131 H. Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent's license as a dentist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was the state agency in Florida responsible for the licensing of dentists and the regulation of the dental profession in this state. Respondent, Dr. Sandra L. Jaudon, was licensed as a dentist in Florida having been issued license number DN 0007871. AS TO COUNT ONE: In January 1985, Dr. Jaudon, practicing in Brandon, Florida, examined 15 year old T. E., then a resident of a foster home, under a Medicaid program in effect at that time. Though Respondent denies she was told of any pain by either T. E. or the foster mother, T. E. claims she was experiencing pain in her two front teeth and her foster mother had brought her in. Weighing the evidence and its relative probabilities, it is found that most likely T. E. was experiencing pain at this time and communicated this fact to the Respondent. Dr. Jaudon had the foster parent fill out a complete medical history form and sign a consent form, and she also mailed a questionnaire to the child's physician. Respondent performed a complete examination, including x-rays on that first visit and did a cleaning and fluoride treatment. She also found T. E. had a few cavities, and, from the x-rays, concluded that she needed root canal work on two teeth. One of the teeth in issue was tooth number 8. Respondent informed the foster parent of this fact and, as a precaution, prescribed an antibiotic for tooth number 8, based on the x-ray. On the basis of the uncontroverted evidence of record, there is no evidence to indicate Dr. Jaudon's diagnostic was not proper, and it is found that it met the minimum standard for diagnosis. On the second visit, on January 21, 1985, Dr. Jaudon filled several teeth and noted swelling over tooth number 8. Because of this, she postponed the root canal treatment until the swelling went down because of the possibility of spreading infection, but prescribed further antibiotics for the existing infection. When the patient returned on February 1, 1985, Dr. Jaudon opened tooth number 8 and drained the infection, after which she sealed the tooth with a temporary closure. She also repeated the dose of antibiotics. Respondent contends that the prevailing standard at the time dictated that a tooth undergoing root canal therapy should be sealed between appointments. Both Petitioner's dentist witnesses concurred with this suggestion, and it is so found. When T. E. came into the office on February 8, 1985, Dr. Jaudon placed a filling on tooth number 8 to establish a stable reference for continuing root canal therapy. Dr. Jaudon claims that neither T. E. nor her foster mother indicated the girl had experienced any pain during the previous week. T. E. disagrees, claiming she was still in pain and told the Respondent so. No doubt she did. No further work was done, however, until a visit on April 10, 1985, when Dr. Jaudon reopened the tooth and cleaned it out. She then resealed it with a temporary filling, and again, the records fail to reflect any complaint of pain. Finally, on May 31, 1985, Dr. Jaudon reopened the tooth, re-treated it, inserted a cotton pellet, and sealed it with a temporary cover. On August 5, 1985, T. E. saw Respondent again. At that visit, Respondent did an examination, took x-rays, and cleaned her teeth. Nothing out of the ordinary was noted, and notwithstanding T. El's claim of constant pain, the chart entries of the dental technician who performed the cleaning fail to reflect that T. E. complained of any pain since her last treatment on May 31, 1985. When Dr. Jaudon checked the condition of tooth number 8, she noted signs of new decay. T. E. recalls that while Respondent was doing the root canal procedure, someone came into the treatment room and said that Medicaid would not pay any more. T. E. recalls that after that comment, Respondent ceased work on her. Dr. Jaudon claims she did not work on this patient further because she was not brought to the office. It is so found. Nonetheless, at that time of the last visit, T. E. had a swollen lip and was still experiencing pain. T. El's foster mother later telephoned Respondent who indicated those symptoms were normal. However, when the symptoms persisted for several days, the foster mother called the Department of Health and Rehabilitative Services, under whose aegis, she was serving as a foster parent, but there is no indication what happened. On August 14, 1985, T. E. was seen at home by Dr. Charles Kekich, a dentist who was working with the Medicaid fraud investigative team which was looking into the billing records of Dr. Jaudon, among others. At the time of this examination, T. E. was still in pain and experiencing difficulties with her teeth. Dr. Kekich examined T. E. on two or three separate occasions, but after this first examination, which was done in T. El's home, he referred her to the Health Department and she was then seen by Dr. W. Edward Gonzalez, a pediatric dentist in practice in Brandon who also specialized in Medicaid patients. Dr. Gonzalez, who has in the past served as chairman of the Florida Board of Dentistry, saw T. E. in his office on September 24, 1985. At that time, she was still complaining about severe pain in and around tooth number 8. The doctor x- rayed that tooth and opened it. When he did so, he found a plug of intermediate restorative material extending half way down the root canal. At the time of the examination, the tooth was mobile and was painful as the result of a build up of pressure and fluid, an indication of infection. The gum tissue in the area of the tooth was red and inflamed. He did not request T. E.ts xrays from Respondent, as is customary to avoid a duplication of radiography. Dr. Gonzalez removed the intermediate restorative material from the root. When the material was removed, Dr. Gonzalez determined that the tooth canal still contained necrotic pulp tissue which should not have been there. This was not proper work. The accepted procedure for performing a root canal consists of cleaning and sterilizing the entire tooth canal, removing all debris and tissue from the inner portion of the tooth, medicating the tooth and cementing a plastic filling into the canal. The accepted standard of care in root canal therapy relied upon by the Board of Dentistry calls for the filling material not to extend beyond the apex of the tooth. During his examination of T. El's tooth number 8, he found that the intermediate restorative material extended 3 or 4 millimeters beyond the apex of the tooth. This was inappropriate. After he had thoroughly cleansed the inner portion of the canal and rinsed it out, Dr. Gonzalez placed a pellet of forma creosol into the tooth and sealed it, sterilizing the inner portion of the canal. This relieved the patient of pain and constituted a permanent fix of the problem. The course of treatment performed by Dr. Gonzalez lasted over a period of approximately 13 months, ending in late October 1986. Dr. Gonzalez opined that Respondent's treatment of this patient was below standard for several reasons. Among these was her failure to complete the procedure, and her application of a substance in the tooth which extended well beyond the apex. T. El's records relating to tooth number 8 were also reviewed by Dr. Thomas Floyd, a Florida licensed pediatric dentist since 1978 and expert in the field of pediatric dentistry. He was also formerly the Florida Dental Association's liaison to the state Medicaid program for several years. According to Dr. Floyd, a root canal is commenced by cleaning the canal with finger files or root canal files to remove all tissue within the canal. Dr. Jaudon's records relating to her root canal procedure on tooth number 8 on T. E. did not reflect the root canal was filed out or that any filling materials were placed in it. If the root chamber is not properly cleaned, and material is left inside, it can become necrotic and lead to infection. This is what happened in this case. In Dr. Floyd's opinion, the temporary filling done by Dr. Jaudon in this case was inadequate and done in a grossly negligent manner. He found the filling occluded two-thirds of the root canal space. The infection which resulted caused T. E. to be maintained on antibiotics for an unnecessarily long period of time. Proper practice dictates the dentist will refer the patient to a specialist when it appears bacteria cannot be controlled over an extended period of time. In this case, Respondent's dental records for the patient reflect she was given antibiotics on January 7, January 21, February 1 and May 31, 1985, but they do not indicate why the antibiotics were prescribed after the initial dose. The records also fail to reflect whether the patient experienced any swelling, inflammation or infection in the area involved. Respondent's records for this patient do reflect, however, that she began to treat tooth number 8 on February 1, 1985, and the last entry in the records was made on May 31, 1985. There is no indication in her records why the root canal treatment was not completed. An entry dated April 10, 1985 states, "we are waiting for P.A.# to continue work." This may indicate that Respondent stopped work on this patient pending further payment authorization by Medicaid, as T. E. contends, though Respondent denies this. Based on the evidence outlined above, it is most likely that T. E. and her foster parent were not satisfied with the lack of pain relief the patient was getting from Dr. Jaudon's treatment. When, as a part of the Medicaid audit being performed by Dr. Kekich, it was suggested T. E. be seen by Dr. Gonzalez, this was done, and she did not return to Respondent for any further treatment. The records further show that on February 8, 1985, Respondent placed a permanent restoration on the mesial, buccal, lingual and incisal surfaces of tooth number 8. Placing a permanent filling in the area of a root canal which still contains necrotic or infectious debris is inappropriate practice as infection is likely to result. Ordinarily, permanent restorations are not placed on a tooth undergoing root canal treatment until the root canal has been completed. Records indicate that after placing the permanent restoration on tooth number 8, Respondent re-opened the tooth twice by drilling through the permanent restoration placed there in February 1985. Based on the above matters, both Dr. Gonzalez and Dr. Floyd concluded that Dr. Jaudon's treatment on tooth number 8 in T. El's mouth during the period between January and May 1985 failed to meet the minimum standard of performance in diagnosis and treatment. Notwithstanding Respondent's disagreement, it is so found. AS TO COUNT II Respondent does not dispute she pleaded nolo contendere in Circuit Court to 25 counts of Medicaid fraud. As a result of her plea, on November 19, 1986 she was placed on probation for one year on Counts 5 - 10 and 25 - 28, and one year consecutive for Counts 30 - 31. Beyond the routine conditions of probation, she was ordered to pay $238.00 in court costs; $952.00 in restitution to the Department of Health and Rehabilitative Services and $5,000 in prosecution costs to the Auditor of the Medicaid Department. Early termination of probation after one year was authorized. In matters relating to discipline of a dental license, a plea of nolo contendere, by statute, creates a rebuttable presumption of guilt to the underlying criminal charges. Respondent strenuously rejects any claim that she was guilty of any fraud involving Medicaid payments. According to Andrea Chilton, a senior investigator with the Agency's Medicaid Fraud Unit, the case against Respondent was generated based on a review of her billings due to a high percentage of three-surface restorations. At the beginning of the inquiry, Ms. Chilton secured a computer print-out of Respondent's billings and payments and selected a sample of them, relating to thirteen individual patients, for audit. The Agency retained Dr. Kekich, a public health dentist whose activities for the past several years, almost exclusively have consisted of dental patient evaluations to determine evidence of Medicaid fraud, to examine patient records and to compare those records to his independent examination of the patients' mouths. In conjunction with Miss. Chilton, Dr. Kekich examined all thirteen patients and their records and, having found discrepancies, then looked at an additional fifteen patients and their records, and also found discrepancies. Dr. Kekich, along with Special Agent Marcia Connell, who had been trained by Dr. Kekich to record dental procedures and fillings accurately, examined the first thirteen patients on August 14, 1985. Using an artificial light and a tongue blade, Dr. Kekcih looked into the patient's mouth and then called out by tooth number whether there was a filling present and if there was, what surfaces had been treated. If a tooth was missing he would call that out, or if a tooth had no fillings he would call that out as well. This examination procedure revealed a number of fillings for which Medicaid had been billed but which could not be found in the mouths of several patients. Medicaid reimbursed dentists on the basis of the surfaces restored. If there were more than one filling on a particular surface, only the designation of the surface was recorded, not the number of restorations per surface. This is the procedure followed during Dr. Kekich's examination of Respondent's patients. After the first examination, the Medicaid office requested Dr. Kekich reexamine the patients and note each restoration. There were changes in the count. For example, during the first examination of T. E., Dr. Kekich noted that the occlusal surface of tooth number 14 had been restored. During the reexamination conducted on May 15, 1986, approximately nine months later, T. El's mouth showed two restorations on the occlusal surface of tooth number 14. Respondent's records regarding T. E. reflect that on February 18, 1985, Respondent billed for a three-surface restoration on tooth 14. The records also reflect that the same day, she billed for a three surface restoration of tooth number 15 when the two examinations by Dr. Kekich revealed only one surface had been restored. By the same token, on March 1, 1985, she billed for a three surface restoration or both teeth numbers 30 and 31, but the examinations reveal only one restoration on each tooth. Ms. Chilton interviewed Respondent and asked her to explain those discrepancies and her procedure for treating Medicaid patients and her billing practices to EDS, the Medicaid billing agent. Dr. Jaudon was unable to clearly explain what had happened, claiming merely that she "didn't pay attention to their codes or their things I should have known ...," but the difference may be explained by the method used by Dr. Kekich to record procedures done. Based on this interview and the examinations of patients and records, Ms. Chilton found discrepancies on twenty- seven of twenty-eight cases totaling $952.00 for services billed but allegedly not rendered Notwithstanding her plea, Respondent has consistently maintained her innocence of any Medicaid fraud. Over the years of her practice, she claims she has treated literally thousands of Medicaid patients and has never been the subject of any complaint regarding their treatment. In the instant case, Respondent was selected for audit because of the relatively high number of three surface restorations for which she billed. She claims, however, that in all her billings she had followed the acceptable standards of the American Dental Association for tooth notation and billing codes. In addition, she asserts she has always utilized Medicaid prior authorization forms when requesting permission for treatment on patients. The instructions on those forms calls for the use of the ADA system, and where appropriate, she would also include x-rays to facilitate the decision. Dr. Jaudon questions the propriety of the examinations done by Dr. Kekich and his qualifications to evaluate her performance. She notes that he admitted to using only a light and a tongue blade to perform the examination. It should be noted, however, that he was merely looking at surface restorations and not doing a clinical examination. As to Kekich's qualifications, he is a licensed dentist, and though he has not been in dental practice for many years, having served as an agency consultant and examiner, possesses adequate technical credentials to perform the minimal surface examinations he did here. By the same token, the fact that he has been an agency employee for many years does not necessarily mean, as claimed by Respondent, that he was not familiar with the methods for charting certain types of fillings as prescribed by the ADA. However, it was shown that on two different patients, surface restorations that Dr. Kekich said were missing were, in fact, present. n Of all Respondent's procedure billings, including examinations, x-rays, white fillings, crowns, and extractions, only silver amalgam fillings were questioned. Respondent asserted that of all the dental procedures performed on patients, the silver filling is the type that generates differences in opinion as to surfaces. Different dentists can look at a silver filling and interpret it as one, or more than one, surface. When Dr. Kekich, at the request of the agency, reexamined some of the Respondent's patients he had previously examined, the results differed as to the identical teeth, even though no work on those teeth had been done in the interim. It was determined that on his first examinations, Dr. Kekich had made no distinction between O and OL fillings as is suggested by the ADA. These two fillings are different. Respondent pointed out that O+OL is the proper way to notate this filling, and this was the way she had done it in her Medicaid authorization requests and billings without objection by the agency. Though Petitioner indicated at hearing that a manual alleged to be in existence in 1985 prohibited reimbursement for O+OL fillings, the manual was not presented and Dr. Kekich, when questioned at deposition, could not recall in what years a manual addressing this issue existed. Respondent contends, and it appears to be a reasonable assertion, that if Medicaid had had such a policy prohibiting that type of filling at the time, her requests for prior authorization would not have been approved. A third examination of Respondent's patients in issue was conducted in May 1986 by a different dentist who was not called to testify at the hearing. The records of these examinations were not, in all cases, consistent with records of the prior two. Respondent claims, and Dr. Kekich agrees, that subjective interpretation and opinion can account for what a particular dentist calls a two or three surface filling, and that different examiners could identify a class 2 filling as either a two surface or a three surface filling. Respondent does not deny that she pleaded nolo contendere to the misdemeanor charges. The grand theft charges were dismissed. She pleaded as she did for several reasons. She had been approached by several parents of the patients involved who asked if there was some way in which the examinations could be brought to an end because of the stress being occasioned to the children as a result of the repeated examinations. She also had substantial concerns about the effect the investigation was having on her family. There were financial concerns as well. She had expended considerable sums in attorney fees and costs up to this point and had been advised by her attorney that the cost of going to trial to contest the charges would be an additional $30,000. Her attorney advised her to plead nolo contendere because, he asserted, such a plea was not an admission of guilt. Respondent has been licensed as a dentist in Florida since 1978 and has no prior disciplinary record. Both dentists, from whose offices she practiced, Drs. Wayman D. Price and Michael 0. Abdoney, would send her patients and, from time to time, see her patients. Neither has received or heard of any complaints from her patients or their own patients regarding her treatment. She continued to treat Medicaid patients throughout the investigation to no cost to insure they received proper care and to ward off any issue of patient abandonment. Any money received from Medicaid during the investigation was placed by Respondent into escrow. She has cooperated with the investigation and in no way unreasonably caused the delay in coming to hearing. Because of financial considerations, she has, from time to time, had to proceed without counsel, and was not represented at this hearing, her counsel having withdrawn shortly before the hearing. Though in 1987 she withdrew from practice out of deference to her patients and because of the large amount of time needed to devote to the defense of the matters alleged here, Respondent has continued to take all and more than is required of continuing education courses in an effort to keep current with developments in her field. She has met all the conditions of her probation and it was successfully terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order dismissing so much of Count I of the Administrative Complaint as alleges Respondent is guilty of diagnosis below standard, but finding her guilty of treatment below standard in the root canal treatment of T.E. It is further recommended that Count II of the Administrative Complaint be dismissed. It is further recommended that Respondent's license be reprimanded and placed on probation for a period of six months. DONE and ENTERED this 19th day of May, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1997. COPIES FURNISHED: Natalie Duguid Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sandra L. Jaudon, D. M. D., pro se Post Office Box 2023 Brandon, Florida 33599-2023 William Buckhalt, Executive Director Agency for Health Care Administration Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
