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 Tessler has violated Florida Statute Section 466.24(3)(a), (c) and (d) and is guilty of misconduct, malpractice, or willful negligence in the practice of dentistry. Whether Respondent is guilty of receiving compensation because of a false claim intentionally submitted. Whether Respondent has failed to treat a patient according to acceptable dental standards and procedures.
Findings Of Fact Dr. Stephen W. Tessler, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, engaged in the practice of dentistry in his office located at 1245 NW 190th Street, North Miami, Florida. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Tessler, which was sworn to and subscribed in July, 1978. The accusation contained two counts, and the Respondent requested an administrative hearing. The hearing was first scheduled for October 20, 1978, but was continued upon motion of the Petitioner to January 10, 1979, and rescheduled upon motion of the Respondent to March 8, 1979. During the months of January, 1977, through mid-June, 1977, Ms. Rachel Dixon was a dental patient of Respondent Tessler. Ms. Dixon is a 32-year-old woman with a history of severe tooth and gum problems. She had prosthetic appliances and six (6) anterior crowns placed in her mouth ten (10) to fifteen (15) years ago in Pennsylvania. She had engaged a dentist, a Dr. Snyder in Hollywood, Florida, but had not seen him for some two (2) years prior to making an appointment with the Respondent for relief from pain and gum irritation, and for cosmetic improvement. Ms. Dixon is an unhappy dental patient with an inordinate fear of dentists, and her home dental hygiene care is inadequate. At the time Ms. Dixon engaged Respondent Tessler, she was in need of dental treatment for full-mouth gross peridontal inflammation and infected root canals in tooth number 30. She employed the Respondent for the purpose of providing dental treatment for peridontal disease, endodonic care of tooth number 30, recapping to the anterior teeth, and restoration of an upper right bridge on teeth number 3, 4 and 5. Ms. Dixon was referred to Dr. Hirschfield, an orthodontist in Respondent's office, for x-rays. Costs were discussed, a payment made, and a schedule of appointments planned. Thereafter, Ms. Dixon kept numerous scheduled and unscheduled appointments with the Respondent. Respondent Tessler replaced existing crowns on six (6) anterior teeth (number 6, 7, 8, 9, 10 and 11) with six (6) anterior foil porcelain jackets. In the presence of peridontal disease, Respondent attempted to replace an upper right bridge on teeth number 3, 4 and 5. Respondent was dissatisfied with the "final restoration" but used it instead of making a temporary one. He placed it in Ms. Dixon's mouth because it was better than a temporary restoration. Respondent had told Ms. Dixon that he would satisfy her and would redo the temporary restoration on her front teeth. He did the restoration a second time. Initially, Ms. Dixon was pleased, but later she was not satisfied because she felt pain upon contact with food, drink, or air that was either hot or cold. At the time of hearing no further work had been done in this area of her mouth, and she still complained of pain. On the second or third visit, within two (2) weeks of Ms. Dixon's initial visit, Respondent treated tooth number 30 by performing three (3) root canal treatments. After a number of weeks, Ms. Dixon continued to experience pain in this tooth. Respondent treated tooth number 30 again, reopening two (2) root canals to permit drainage and prescribing an antibiotic. During the course of the endodonic treatment on tooth number 30 an existing lower right bridge on teeth number 28, 29, 30 and 31 was damaged. Ms. Dixon did not return to Respondent for treatment, although she was in pain and attempted for two (2) or three (3) days to reach Respondent by telephone calls to his office. Thereafter, a week or ten (10) days later, Ms. Dixon sought the services of Dr. Marvin Levinson. She indicated to Dr. Levinson that she was not going to return to Respondent Tessler, that she suffered from pain, and that she was concerned about her appearance. Dr. Levinson examined her and referred her to Dr. Satovsky, an endodontist, for immediate relief of pain for a dental abscess, and to Dr. Garfinkle, a peridontist, for a complete peridontal work-up. It was Dr. Garfinkle's opinion that the caps placed by Respondent Tessler in the mouth of Ms. Dixon were placed in the presence of peridontal disease or that the caps caused the disease. He could not determine which came first. Dr. Garfinkle stated that Ms. Dixon was prone to peridontal disease and that she was an unhappy dental patient. Dr. Garfinkle could not comment on the condition of Ms. Dixon's mouth at the time of the treatment given by Respondent, inasmuch as he had not seen her until some eight (8) months had passed. Dr. Satovsky stated that on tooth number 30, which he treated subsequent to the root canal treatment done by Respondent Tessler, the canals were inadequately cleaned and enlarged. He stated that there were three (3) canals on the tooth, two (2) of which had the rods removed, and that he removed the third. He retreated the three (3) canals and alleviated the pain of Ms. Dixon. Dr. Satovsky could not state whether he thought the work of Respondent was negligent, inasmuch as he could not state what the tooth looked like when Respondent first saw it. Dr. Marshall Brothers, the Secretary/Treasurer of the State Board of Dentistry, found that the permanent type of restoration was adequate but not good for a temporary restoration. Upon his examination of Ms. Dixon's mouth, he found her general peridontal condition to be poor. Dr. Brothers could not determine whether her condition was a result of the restoration or existed prior to the restoration. He assumed the condition to be the one or the other because of the recency of the restoration. Respondent Tessler is a licensed dentist and a general practitioner, and is licensed to perform the dental work involved in this case. His charges for this work were substantial, but there was no evidence submitted that said charges were excessive or that Ms. Dixon misunderstood them. Alternative methods of treatment were discussed. The testimony and the evidence in this case show that Respondent worked within his ability as an average dentist. There was no showing of willful negligence, although Respondent's judgment may have been poor, and probably he should have referred Ms. Dixon to specialists. Affixing a bridge and crown work in the presence of gum disease is not the acceptable standard of care within the dental profession, and Respondent admits to that fact; however, he felt that it would improve the overall condition, and he had not released Ms. Dixon as a patient. Ms. Dixon was not pleased with Respondent's work or his charges ad, after attempting to make an appointment, left Respondent Tessler for another dentist. Ms. Dixon was insured through her husband's employer by a policy issued by Aetna Casualty and Surety Company. On January 31, 1977, Respondent Tessler submitted a pre-treatment estimate for work to be done consisting of porcelain-to-gold restorations on anterior teeth number 7, 8, 9, 10 and 11, and for a fixed bridge on teeth number 28, 29, 30 and 31, plus additional treatment in the amount of $2,420.00. The insurance company refused to pay for all treatment except for the fixed bridge on teeth number 28 through 31. On April 27, 1977, Respondent submitted the customary insurance treatment form to Aetna certifying that the bridgework had been performed and completed on April 27, 1977. Based on Respondent's representation, Aetna paid Respondent $649.50. The bridgework had in fact not been done, nor were the anterior crowns porcelain-to-gold restorations. Approximately one year later, Respondent refunded the overage to Aetna upon the request of the insurance company. Both parties submitted proposed findings of fact and memoranda of law, and Respondent submitted a proposed order. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order, they have been specifically rejected as being irrelevant or not having boon supported by the evidence.
Recommendation Based upon the violation as established, it is recommended that the license of Stephen W. Tessler, D.D.S., be suspended for a period of time not exceeding one year from the date of the Final Order. DONE and ORDERED this 12th day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Stephen Mechanic, Esquire Suite 200 1125 NE 125th Street North Miami, Florida 33161
Findings Of Fact At all times pertinent to the allegations in the Administrative Complaint, the Respondent was licensed as a dentist in Florida and the Petitioner was the state agency charged with regulating the practice of dentistry in this state. In June, 1984, Morris W. Kemmerer went to the Respondent, Peter M. Kurachek's, dental office because he needed dental work done and Respondent's office was handy. He was examined on this first visit by the Respondent and told Respondent what he wanted. Respondent went to work right away and within a few minutes of the patient's sitting in the chair, pulled a tooth which had broken and had to come out. Though Mr. Kemmerer had asked Respondent to put him to sleep for the extraction, Respondent did not do so. Respondent told Mr. Kemmerer what he planned to do as a course of treatment, and advised him of the expected cost and how it could be paid. Mr. Kemmerer claims he did not take a dental history nor did he, at any time, either before or after the work was done, discuss the patient's oral hygiene which was, supposedly, poor. The chart prepared by Respondent on Mr. Kemmerer contains, aside from notations as to work done, only the most basic information, such as allergies and prior medical condition, as well as current status of the mouth. Though minimal, it can be considered a dental history. After the initial procedure done the first day, Mr. Kemmerer returned to Respondent's office every day for awhile. On his second visit, the Respondent told him he needed a bridge and, though Mr. Kemmerer's memory on the matter is poor, probably told him of the remainder of the course of treatment. The bridge in question was necessary because the tooth Respondent pulled on the first visit was the one to which Mr. Kemmerer's existing bridge was anchored, and extraction of that anchor tooth required Respondent to make another bridge to be affixed to the next sound natural tooth. However, Mr. Kemmerer recalls that the bridge made for him by the Respondent did not fit correctly from the beginning and Respondent had to make several for him before a reasonably comfortable fit was finally achieved. This was done by grinding down Mr. Kemmerer's opposing natural teeth. Even with that measure, however, the fit was never completely correct. Respondent also made an additional partial denture for Mr. Kemmerer which could never be worn because it didn't fit. When Mr. Kemmerer told Respondent about this, he tried to fix it but was not able to do so satisfactorily and Mr. Kemmerer suffered an extended period of pain as a result. Mr. Kemmerer paid Respondent approximately $1,700.00 for the work done and did not see him again after August 9, 1984. Even though the work done was not to his satisfaction, Mr. Kemmerer did not see another dentist because he could not afford to do so. However, at the suggestion of his coworkers, he agreed to see Dr. Philip M. Davis, II, another dentist in Sarasota who, after an examination, told him the work Respondent had done had to be done over. Mr. Kemmerer ultimately contacted the Department of Professional Regulation about the treatment he received from the Respondent and filed a civil suit against Respondent, settling without trial for $3,000.00. The fact that the suit was settled in Mr. Kemmerer's favor has no bearing on the issue of care involved in this hearing and is not considered. Dr. Davis first saw Mr. Kemmerer as a patient on June 11, 1986 when Mr. Kemmerer presented himself complaining of swelling and pain in a right upper molar, (tooth 4). Upon examination, Dr. Davis found the patient had a partial bridge with crown and observed that the crown margins did not touch the prepared edge of the supporting tooth as they should. His x-rays taken at the time showed Mr. Kemmerer had an infection in the tooth and when he opened it through the crown, he found a space filled with cement, food, and waste, and that the tooth tissue was leathery. All that indicated to him that decay had gotten up under the crown and the base of the tooth had rotted because, in his opinion, the crown edge, (margin), did not properly fit to the tooth base. Dr. Davis noted that the margins of several crowns prepared by the Respondent several years earlier, were not good fits. Photographs of Mr. Kemmerer's mouth made in August, 1987 and October, 1988, as much as 3 and 4 years after completion of Respondent's work, reveal that at that time the margins on several teeth were substantially open. When Dr. Davis saw Mr. Kemmerer in 1986, he noted that the bridge constructed by the Respondent had been cemented to the abutment teeth which also had open margins. Regarding the specific teeth in question, photos of tooth 4 show a failure of the margin of the crown to touch the tooth and the preparation thereof. This indicates the crown was not properly fitted to the prepared tooth. It had never fully seated on the tooth and appeared to have been cemented in a suspended position above the tooth instead of being seated down on it. Insertion of a crown such as this one is a routing procedure and is not particularly complex. By not properly seating the crown, the installer, (Respondent), left an open space for saliva to enter and wash out the cement. Acceptable tolerance for a margin of this nature is 40 microns, (40/10,000 in.). On tooth 4, the margin was 2 mm short on the cheek side and 3 mm short on the tongue side. This led to the cement being washed out and to the entry of food and bacteria resulting in decay and infection of the bone. Had the crown been seated properly, it should have lasted for 10 - 20 years or more, absent trauma. As to tooth 11, examined by Dr. Davis on July 21, 1986, again, the crown margin was found to be well shy of the preparation margin on the tooth. On the tongue side, the crown was 1 mm short of full seating and was pulled away from the tissue. On the cheek side, the crown was too bulky for the preparation and did not match with a smooth, continuing surface. When Dr. Davis examined tooth 6 that same day, he found that here, too, the crown was too bulky and the margin did not fit. On the tongue side, it was 1/2 mm short and allowed food and bacteria to get up into an area of the tooth where the patient could not get it out. Dr. Davis did not measure the degree of separation, if any, on the cheek side. He did, however, find that on tooth 10, the margin was at one point 1/2 mm off and allowed food and bacteria retention. With regard to tooth 7, Dr. Davis found the margin on the lip side to be excessively heavy, (overbuilt), and on the tongue side, to be 1/2 mm short. In none of these cases were the margins acceptable as they far exceeded the 40 micron tolerance. These observations were confirmed by an examination of Mr. Kemmerer conducted at the request of the Board of Dentistry on May 13, 1987 by Dr. Davis R. Smith, an expert in general dentistry and the Board's consultant. Dr. Smith found the bridge built by Respondent to be poorly fitted around the preparation line of the teeth to which it related. Decay was present in every tooth to which Respondent had fitted a crown. The bridge had come loose, the crowns were not fitted properly, and the margin lines were short, open, and/or overcontoured. On each tooth involved, there was some combination of all those defects. When describing the margin shortage on some of Respondent's work on Mr. Kemmerer, Dr. Smith characterized it as, "ridiculously far off minimum standards." Dr. Smith's measurements were made visually and consisted of his running a probe over the margin seam which, in each case, he found to be excessive. A space of 50 microns can barely be felt with a probe and a space of 30 to 40 microns can barely be seen with the naked eye. Here, the margins were so poor that the space could be visually seen and entered with a probe. Both the experts opinioned that Respondent's seating of the crowns in question, so as to leave extensive gaps at the margins, was below standards. Respondent contends that at the time of installation, the crowns fit properly, and his expert, Dr. Carter, urges that a 1987 review of work done in 1984 cannot determine whether the margins at the time of installation were correct. This is because: Many things could have transpired in the patient's mouth in the interim such as changes in bone and tissue structure or a natural alteration of the appliance; Chemical changes in the mouth can erode tooth structure from beneath the margin, and tooth structure can be removed by cleaning. Respondent also contends that if the margins had been as poor from the beginning as indicated, the patient would have suffered pain and sensitivity associated with them. The evidence clearly demonstrates he did. Both Drs. Davis and Smith were of the opinion that, aliunde the margins, Respondent's office practice and record keeping were poor. In Dr. Davis' opinion, when a patient such as Mr. Kemmerer, of advanced age and obviously poor dental hygiene, comes in, the dentist must do a complete examination and charting to look for gum disease, cavities, occlusion and malocclusion, and evidence of cancer, and the examination should include full mouth x-rays. He must also talk with the patient and see what the patient perceives as his needs. If these are not great, the preliminaries need not be extensive, but in his opinion, to start work immediately, as Respondent did here, was improper since there was no emergency to justify disregard of a full work-up. Under the circumstances, he feels Respondent should have done a complete examination, determined what the patient needed, explained it all to the patient, and lectured on proper oral hygiene instead of jumping right in to do the crown and bridge work. It is found that would be the appropriate course for him to have followed. It must be noted that Mr. Kemmerer came in to Respondent's office indicating he was in pain. Respondent examined him and identified the cause of the pain. He corrected that problem and, in addition, began additional crown and bridge work which, while profitable, was not shown to be unnecessary. The procedures described by Drs. Smith and Davis are unquestionably the clinically appropriate things to do. While Respondent did not do all the things described as appropriate, he did identify his patient's immediate problem and correct it. Either he or his assistant advised the patient to practice better dental hygiene. He also incorporated his findings into his records on this patient. In that regard, the charting practices taught in school are appropriate for a school environment, but what is considered acceptable in private practice is not necessarily as detailed as in school. Respondent's expert is of the opinion that a dentist should advise his patient thoroughly on home care but that advice need not be noted in the records. He has found that records have become verbose, time consuming, and generally a pain in the neck, and, more importantly, record keeping such as is suggested, takes time away from caring for the patient. Legal action requires the dentist to protect himself, but in Dr. Carter's opinion, one cannot put everything on a chart; only those things which support patient care. While perhaps not conforming to optimum standards of practice, Respondent's actions in regard to record keeping and procedure choice cannot be said to be materially below standards. The formulation of the treatment plan is the primary responsibility of the dentist. During their examinations, both Drs. Davis and Smith noted that Mr. Kemmerer had lost a lot of enamel from the teeth occluding with the bridge. It appeared this was caused by Respondent's extensive grinding of the natural tooth material down to the dent in in order to get a proper occlusion with the bridgework he had installed, instead of removing the bridge and adjusting it to properly meet the natural teeth, or making another which did fit. Neither expert considered the worn condition of Mr. Kemmerer's teeth to be the result of natural grinding or bruxism. In any case, Respondent could have polished the rough enamel so as to reduce the resultant abrasion and he failed to do so. Respondent's actions here were, in the opinion of the Board's experts, below practice standards, and it is so found, notwithstanding Dr. Carter's testimony tending to exculpate Respondent's actions. Dr. Carter claims that Respondent's use of porcelain in the bridge, which, since it is harder that normal tooth tissue, will wear it down, was appropriate. He also asserts that if the patient did not wear his tooth 2 - 4 partial, he would still have had the abrasion problem because all chewing force being applied on the front teeth would wear them down. On balance, however, the evidence supports more clearly a finding that Respondent knowingly ground Mr. Kemmerer's natural teeth down to achieve the fit rather than taking appropriate corrective action when he found the bridge did not fit properly and he admits to this. The bridge in issue was made of metal and porcelain. When Respondent inserted the upper bridge, it was necessary for him to adjust the occlusions and to do so, he ground down the opposing lower natural teeth so the uppers and lowers would fit harmoniously. He denies that his placing of the upper teeth caused excessive wear on the lower teeth. The reduction in mass of the lower teeth was the direct result of Respondent's grinding down the natural teeth to fit to the false teeth on the bridge. Respondent presented the testimony by deposition of Dr. Hemerick, accepted as an expert in general dentistry. Dr. Hemerick was also offered as an expert in the field of prosthodontics. Petitioner accepted the witness as an expert in general dentistry but objected to him being classified as an expert in the field of prosthodontics. The objection is well taken. Though the witness is retained as an expert to evaluate dental performance for an insurance company which provides malpractice insurance to many dentists, his stated educational background and experience in the specialized field do not qualify him as "expert" in that specialty. He can, however, appropriately state his opinion as to the Respondent's treatment of Mr. Kemmerer in its totality and concluded that Respondent's treatment met accepted standards. Specifically, he stated that margins, as here, which fit acceptably when installed, can spread and open due to mouth activity over a period of years. What this witness, as well as Dr. Carter overlooks, however, is the excessive thickness of the device at the margin where it abuts the actual tooth. While the margin may open with time, construction material cannot grow on the appliance to make it thicker than when installed, and this, according to Petitioner's experts, was a basis for claiming Respondent's work was below standard in addition to the open margins. However, it is found that the likelihood of the margins opening as much as appears here, by normal mouth activity, is remote. Respondent has been a practicing dentist since 1966 when he got his degree in Kentucky. Over two separate periods, he has practiced in Florida for approximately 14 years. Mr. Kemmerer came to him initially for repair or replacement of a very old, (1943), denture which replaced front teeth 8 and 9 and which was not reparable. Respondent and Mr. Kemmerer discussed possible alternative treatments but both agreed treatment could not be postponed for this demanding cosmetic problem. It seems Mr. Kemmerer was in the real estate profession and needed teeth, and according to Respondent, wanted to leave Respondent's office that day with replacement teeth in his mouth. Respondent agreed to provide them. However, before starting treatment, Respondent determined from his examination of Mr. Kemmerer that due to long neglect of his dental hygiene, major treatment was necessary. Mr. Kemmerer wanted a patch job, Respondent alleges, and he refused to do that. Before work was started, however, Respondent left the room, leaving to his dental assistant the task of advising Mr. Kemmerer of the proposed treatment plan. Respondent had charted Mr. Kemmerer's mouth and instructed his assistant to go over the proposed work with him and give him a price for the work to be done. The assistant was to answer any questions Mr. Kemmerer might have. When Respondent returned to the treatment room, Mr. Kemmerer had a lot of questions to ask. His main concern was whether a new bridge would last. Respondent went over the proposed procedures with him and told him that with good home care, the appliance should last for the rest of Mr. Kemmerer's life. After Mr. Kemmerer met with Respondent's assistant, he elected to have the bridge made. Thereafter, Respondent had his assistant take impressions of Mr. Kemmerer's upper and lower jaw. Respondent anesthetized the upper area to be worked on and began the crown preparation on teeth 4, 6, 7, 10, and 11. He also adjusted the incisal edges on the abutting lower teeth, poured the upper and lower models, made a plastic temporary device for the upper area, and inserted it. There appears to be some dispute over whether Respondent made and utilized study models in the preparation of Mr. Kemmerer's appliance. He claims he did and there is little evidence to the contrary. Certainly, models were made and whether these constitute the required models has not been defined. It was obvious to Respondent early on that Mr. Kemmerer did not practice good dental hygiene. When Mr. Kemmerer returned to the office with stains on the temporary after only a short period of insertion, Respondent became concerned over his dental practices. However, it was not so bad a situation as to cause the needed repairs to be deferred and in Respondent's opinion, it was safe to begin the restorative treatment regardless of the fact that Mr. Kemmerer required periodontal treatment as well. It also appeared to Respondent that Mr. Kemmerer was an individual who was very susceptible to pain. It is because of this he believes that if all the margins had been open from the beginning, as alleged in the Complaint, Mr. Kemmerer would have sustained a lot of pain right away. At no time, however, during treatment, and after insertion of the permanent appliance did Mr. Kemmerer complain to him of pain. Respondent also contends that according to the records kept by Dr. Davis, when Mr. Kemmerer went to him in 1986, he complained of suffering pain for only 2 days. Respondent claims to have constructed in excess of 1,000 partial bridges in his 20 year career. He agrees that the margins as they now exist in Mr. Kemmerer's mouth are not acceptable and are excessive. However, he contends, these conditions did not exist when he placed the bridge and there were no open margins. It is his practice, he alleges, to return for reconstruction any bridge which does not fit properly and if at insertion this bridge had had the margins it now has, he would have done it over at no charge. He claims he saw Mr. Kemmerer's bridge on five separate occasions after it was inserted and claims never to have seen any open margins. However, Mr. Kemmerer's record shows that he only came back twice after the bridge was inserted and Respondent, commenting on the alleged lack of "follow-up" stated that after the bridge was completed and inserted, Mr. Kemmerer didn't come back. It would appear Respondent's memory is somewhat less than complete. Respondent also sees no problem in his ability to complete Mr. Kemmerer's work within 4 weeks from initial visit. When comparing that with the other expert's estimate of 6 to 9 months for completion of a proper treatment for this patient, Respondent claims the longer period is for rehabilitation of the entire mouth which, he asserts, he did not propose or agree to do. It is found that Respondent's operation is one of direct response to a particular problem, and he is not a provider of broad scale dental care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice dentistry in Florida be suspended for a period of six months and he be fined $3,000.00, and that when reinstated, he be placed on probation, under such terms and conditions as the Board may prescribe, for a period of three additional years, these actions to run concurrently with the penalty, if any , imposed by the Board in its action, when taken, in its allied cases involving Respondent, heard under DOAH case numbers 89-1240 and 89-1241. RECOMMENDED this 21st day of November, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5544 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by Petitioner in this case. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. COPIES FURNISHED: David Bryant, Esquire 13015 North Dale Mabry Highway Suite 315 Tampa, Florida 33618 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Blvd. Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Phillip Kibbee Parsons holds a dentist's license issued by petitioner, No. DN 0003193, Petitioner's Exhibit No. 1, and has at all pertinent times. Also at all pertinent times, he has been engaged in the private practice of dentistry in Keystone Heights, Florida. In May of 1986, Bruce Robert McHollan made his first visit to Dr. Parsons' office, to "have [his] teeth checked and to see if [he] needed any work done." T.10. Dr. Parsons caused radiographs to be taken, and Mr. McHollan's teeth were cleaned on this initial visit. When Dr. Parsons suggested replacing his fillings with "non-mercury amalgam fillings," (T.11), Mr. McHollan rejected the idea, and told Dr. Parsons he "was only interested in having decay . . . [and] any cavities . . . repaired." T.11. During two visits in September of 1986 Dr. Parsons placed or replaced nine fillings in Mr. McHollan's teeth. At the time, Mr. McHollan assumed this work was necessary to repair damage done by tooth decay, and the evidence did not establish otherwise. The following year and again on June 8, 1989, Mr. McHollan returned. He had his teeth cleaned on both occasions and, on June 8, 1989, Dr. Parsons who caused a second set of radiographs to be taken that day, advised Mr. McHollan that he needed additional fillings. Under the impression that these fillings were needed on account of decay that had developed since the earlier fillings, Mr. McHollan authorized Dr. Parsons to proceed. He submitted to six fillings on June 13, 1989, and another ten fillings on July 25, 1989. Eventually he noticed that his original fillings had all been replaced. Dr. Parsons' testimony at hearing that the original fillings all leaked and required replacement was uncontroverted. When Mr. McHollan returned to Dr. Parsons' office on August 1, 1989, to discuss his dental health, Dr. Parsons told him "that there w[ere] at least nine [more] areas where there was decay and needed to be filled, but he [Dr. Parsons] couldn't be sure of the total amount until he installed a rubber dam." T.15. Estimating the cost of additional restorations, Dr. Parsons continued, "Let's be conservative and let's say there are 12 more," id., then jotted down the following: ESTIMATE: 8/1/89 BRUCE McHOLLAN 12 90 1080 Petitioner's Exhibit No. 4. He wrote this estimate on a piece of paper on which his name and address are printed. At the time, Dr. Parsons charged $90 per filling. Suspicious about the need for additional fillings, Mr. McHollan went to his mother's dentist, George W. Boring, for a second opinion. On September 8, 1989, Dr. Boring examined Mr. McHollan's teeth and two bite-wing radiographs he had taken of them that day. He found no decay nor any evidence of decalcification or other demineralization. Later asked to compare radiographs taken in his office on September 8, 1989, with copies of those taken in Dr. Parsons' office on June 13, 1989, Dr. Boring concluded that they "basically looked the same." T.47. Cavities or carious conditions do not always show up on x-rays; in fact, "as often as not," (T.4a) they cannot be detected in this fashion. On December 7, 1989, Mr. McHollan sent Dr. Parsons a letter, the body of which began, "Send me my complete dental office records and all of my x-rays as soon as possible." Petitioner's Exhibit No. 5. He received x-rays taken in Dr. Parsons' office on June 13, 1989, but obtained no other records directly from Dr. Parsons' office. Later a collection agency sent Mr. McHollan copies of some, but not all, of the records Dr. Parson had maintained on him. In performing the restorations in the summer of 1989, Dr. Parsons had used rubber dams. A rubber dam permits isolation of a tooth surface so that the dentist can dry it for work (or observation) free of a film of saliva. Both Dr. Parsons and his assistant of twelve years, Pamela Slocumb, saw "white spots" on dry surfaces of Mr. McHollan's teeth, but neither saw carious lesions penetrating to the dentin. Expert testimony established that white spots on dry teeth evince demineralization. "[A]ccording to dental textbooks," (T.168E) demineralization constitutes active decay. In the early stages, demineralization usually is not very visible to the eye on a wet tooth, and either isolation with a rubber dam or isolation with cotton rolls, and then drying the tooth, would demonstrate this, whereas to the naked eye and, for that matter, even to the little sharp explorer, . . . if they were wet, they probably wouldn't be observable. T.190. Demineralization can lead to further decay, but it can also be a transitory condition: [C]ertain of the chemicals that are in the enamel are also dissolved in the saliva, and under certain circumstances . . . the calcium and other products in the saliva, will redeposit in these areas, and will actually build it back up. T.192. Remineralization can occur very rapidly, (T.193) and easily be completed over a period as long as that which elapsed between Dr. Parsons' last examination and the examination Dr. Boring performed. On October 29, 1990, some fourteen months after Dr. Parsons told him he needed at least nine fillings, Mr. McHollan's teeth had "moderate plaque and some stain," but not the kind of stain sometimes incorporated into the structure of the teeth in the course of remineralization. On October 29, 1990, a third dentist, Hugh B. Avant, examined Mr. McHollan's mouth as well as roentgenograms taken that day, bite-wing views from either side and three periapical views. On the cheek side of the upper left wisdom tooth, one of the places on which Dr. Parsons had seen white spots, Dr. Avant found a carious lesion of moderate size, which had penetrated the enamel into the dentin. He found no other carious lesions. In keeping with the standard of care for a general dentist practicing in Keystone Heights and elsewhere in that part of Florida, teeth require restoration by a dentist once a carious lesion penetrates the enamel into the dentin. Both Doctors Avant and Boring adhere to this standard. Filling a tooth which has demineralized but has no carious lesion would "not generally" be in conformity with the standard, at least the standard DPR's expert is "accustomed to." T.110. DPR's expert testified: "I don't think it's the standard of practice to start filling all areas like that, just because you think they are susceptible and they have some decalcification." T.112. But the patient's history may have a bearing. Dr. Bliss, a former member of the Board of Dentistry, testified for respondent, specifically with reference to Mr. McHollan and in light of his particular history, that "in a patient like this . . . it would not be below the standard to recommend that these [white-spotted] areas be cleaned and restored." T.189. He further testified that he had "had patients where I have identified these areas, and in my extreme conservatism, didn't do something, and within a month's time, it had gone into the dentin." T.200.
Recommendation It is, accordingly, in keeping with Rule 21G-13.005(3)(v), Florida Administrative Code, RECOMMENDED: That the Board of Dentistry impose a fine of five hundred dollars ($500), reprimand respondent, and place him on probation for a period of three years. DONE and ENTERED this 28th day of October, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 17, 18, 19, 20, 24, 27, 28, 29, 30, 31, 32, 37, 38, 39, 40, 41, 42 and 44 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 13, whether Dr. Parsons had a recollection concerning the use of an explorer was not established. With respect to petitioner's proposed finding of fact No. 15, Dr. Parsons testified that he filled teeth when there was a history of severe decay and decalcification, and he felt further decay was likely, but he did not testify to any standard on page 180. Petitioner's proposed findings of fact Nos. 16 and 26 pertain to immaterial matters. Petitioner's proposed findings of fact Nos. 21, 22, 23, 33, 34, 35 and 36 pertain to subordinate matters. Petitioner's proposed findings of fact Nos. 25 and 43 have been rejected as unsupported by the evidence cited. Respondent's proposed findings of fact Nos. 1, 2, 3, 6, 7, 9, 10, 13, 14 and 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, the testimony was that "these decalcified areas" would not have been visible if wet. Respondent's proposed findings of fact Nos. 5 and 11 were not convincingly disproven. With respect to respondent's proposed finding of fact No. 8, there were nine, not twelve, surfaces. With respect to respondent's proposed finding of fact No. 12, there are other ways to dry teeth for observation. Respondent's proposed finding of fact No. 15 relates to a subordinate matter. COPIES FURNISHED: Anna Cam Fentriss, Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, FL 32303-6313 Salvatore A. Carpino, Esquire One North Dale Mabry, Suite 1010 Tampa, FL 33609 William Buckhalt, Executive Director Board of Dentistry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
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 Whether respondent committed the acts alleged in the Administrative Complaint and, if so, whether respondent's license should be revoked or suspended, or whether some other penalty should be imposed.
Findings Of Fact John R. Parry is and was at all times material to the complaint a licensed dentist in the State of Florida having been issued License No. 0005282. At all times material to the complaint, respondent's address was 255 Wymore Road, Winter Park, Florida, and 315 Wymore Road, Winter Park, Florida. Respondent's address has subsequently changed. At all times material to the complaint, respondent - operated his practice of dentistry under the fictitious name of Florence Dental Clinic. Dr. Parry's practice was limited to the practice of prosthetics, the replacement of missing teeth. In other words, Dr. Parry confined his practice to the provision of partial and full dentures and related services. Wayne Giddens worked for Florence Dental Clinic for about five years, from 1980 through 1985. Wayne Giddens was not licensed to engage in the professions of dentistry or dental hygiene in the State of Florida, and he had not been issued a certificate of expanded duties by the Board of Dentistry. Retha Holt, now Retha Tucker, also worked at Florence Denture Clinic. She was neither a licensed dentist nor a dental hygienist, and she had not been issued a certificate for expanded duties by the Board of Dentistry. LASSETTER CASE On January 15, 1982, Sylvia Lassetter went to the Florence Denture Clinic (FDC) to have all of her remaining upper teeth removed and a full upper denture made. Ms. Lassetter had only six remaining upper teeth. Ms. Lassetter had not seen a dentist for at least five years prior to seeing respondent. At that time, she was advised that she had gum disease and would eventually lose all of her teeth. When she went to FDC, she was having problems with the teeth on the right side of her mouth and, since she had been told that she would eventually lose all of her teeth, Ms. Lassetter decided to have all of the remaining upper teeth extracted and a full upper denture made. Ms. Lassetter went to FDC because she heard that FDC would provide her with a denture she could wear immediately. Respondent was the dentist of record and performed dental services for Ms. Lassetter. On the day Ms. Lassetter went to FDC, general medical information was obtained and x-rays were taken. Later that same day, respondent extracted all of the remaining top teeth, which were teeth number 5, 6, 7, 8, 9, and Dr. Parry also provided her with a full immediate maxillary (upper) denture. The upper denture initially had a full complement of teeth. However, when the denture was first placed into Ms. Lassetter's mouth, it was discovered that there was insufficient room for the posterior denture teeth. Ms. Lassetter had natural teeth on both sides of her lower jaw that were extremely extruded, causing premature contact with the denture teeth. With the denture in place, Ms. Lassetter could not close her mouth, she could not swallow, and she could not talk. In an attempt to alleviate the problem, the posterior teeth on the maxillary denture were ground off, leaving ten teeth on the maxillary denture. Ms. Lassetter was able to keep the denture in her mouth until about 10:00 that evening. At that point, her gums were swollen and she was in such pain that she could not tolerate wearing the denture any longer. The next day the problem had gotten worse. Ms. Lassetter noticed drainage coming from a hole located at the top left front area of her gum where teeth had been pulled. She also observed what appeared to be a portion of bone which was protruding through the gum adjacent to the hole. She called the emergency number which had been provided to her by FDC, since Dr. Parry was going out of town, and talked to Dr. Marini. Although Dr. Marini asked her to come to his office, Ms. Lassetter was unable to do so, and Dr. Marini prescribed some medication. As soon as possible, Ms. Lassetter returned to FDC. Respondent flushed out the area where the drainage was occurring and replaced the denture. Although Ms. Lassetter had been told to keep the denture in place, she was unable to do so. By the time she was halfway home she was "foaming at the mouth" because she could not swallow. She removed the dentures. She returned to FDC and saw Dr. Parry again. She explained the problems she was having with the dentures. No adjustments to the dentures were made, and the only treatment she received was to have the area where the drainage was occurring flushed out. Although Ms. Lassetter continued to experience difficulty with the denture and with the extraction area in the front of her mouth, returning to FDC on several occasions to have the problems corrected, the only treatment she received was flushing out the socket. She was also advised to wear the denture; however, apparently no adjustments to the denture were made, and Ms. Lassetter continued to be unable to wear it. Finally, Ms. Lassetter called the clinic and explained to the woman who answered the phone that she wanted the protruding bone removed and that if Dr. Parry could not do it ski' would find someone who could. However, when Ms. Lassetter went to the clinic for her appointment, Dr. Parry told her that the bone had to stay in her mouth and that she would not be able to wear the denture if the bone were removed. Ms. Lassetter did not return again to FDC for treatment. Her last appointment was apparently on February 10, 1982. On February 24, 1982, Dr. Lewis Earle, a dentist, examined Ms. Lassetter. He took a single periapical x-ray and a single panoramic scan. During the course of his examination he observed a lesion or fibroma in the area of teeth numbers 24 and 25; he noted a large defect in the maxillary left central and lateral incisor region where a "dry socket" osteitis had developed; he noted what appeared to be an exposed necrotic, alveolar bone; and he observed that there was severe periodontal disease in the remaining mandibular teeth, with a hopeless prognosis on the second and third molars. Dr. Earle also noted maxillary exostoses, or tori, in the palatal aspect of the endentulous second and third molar regions, with corresponding prominent undercuts. There was also alveolar prominence in the left canine area. Dr. Earle observed that Ms. Lassetter's mandibular second and third molars had erupted above the normal plane of occlusion, which occurred due to the lack of opposing occlusion and the mobility of the molars resulting from the periodontal disease. When the mandible was closed, approximating normal verticle dimension, the molars appeared to actually touch the soft tissue of the maxillary tuberosity (2nd and 3rd molar) area, indicating a lack of space for a maxillary denture base. Dr. Earle also examined Ms. Lassetter with the maxillary denture in place. He noted that there was extremely poor contact when the mandible was closed in centric relation. On the left side, there was some contact between the mandibular teeth and the denture base in the molar area, and the natural lower canine tooth touched the upper denture tooth in the first bicuspid area. Everything on the right side was totally out of occlusion. In the anterior teeth, the "open bite" was 6 to 8 millimeters. Ms. Lassetter was able to slide out of centric relation, to the right and forward, to get slightly better contact, but it was still very poor and was imbalanced. Dr. Earle referred Ms. Lassetter to Dr. Robinson, an oral and maxillofacial surgeon, for an evaluation and a treatment plan. Dr. Robinson saw Ms. Lassetter on March 2, 1982. He examined her and reviewed the x-rays received from Dr. Earle. The panoramic x-ray revealed severe periodontial disease. The six mandibular molars, as well as the other remaining teeth, had less than half of their roots supported by bone. The periapical x-ray of the maxillary left anterior alveolar process revealed ragged and irregular alveolar bone and one fragment which could have been a segment of bone working loose or a part of a tooth root. Dr. Robinson's examination confirmed the existence of periodontal disease. Dr. Robinson also observed bilateral palatal exostoses, a posterior buccal undercut in the right maxilla and a mild prominence in the maxillary right bicuspid region. He saw the exposed bone or tooth fragment, and noted that the maxillary left cuspid area was prominent and irregular with surface inflammation and tenderness. He also saw a lesion in the endentulous area of the mandibular central incisors. Dr. Robinson recommended excising the bilateral exostoses, flapping and reducing the undercuts in the posterior right maxilla and maxillary right bicuspid region, removing the necrotic segment of bone with appropriate alveoloplasty in the left central incisor and cuspid region, removing the mandibular lesion and submitting it for biopsy, and extracting the mandibular first through third molars on the right and left side. On March 5, 1982, Dr. Robinson performed the recommended procedures. After removing the exposed calcified substance from the upper left central incisor area, Dr. Robinson thought it was probably tooth root rather than bone. The size of the fragment was about 2 mm. by 3 mm. by 10 mm. The mandibular lesion removed by Dr. Robinson was benign. Dr. Wayne Bennett saw Ms. Lassetter on June 4, 1982. He examined her dentures, her dental records, Dr. Earle's report, and her x-rays. He noted that the buccal flanges on the denture were over-extended. He felt that there was reasonable adaptation of the denture to the maxillary ridge except in the areas where surgery had been performed. He was unable to reach any conclusions, based on his own observations, concerning the way the denture originally fit; including the occlusion when in centric relation, due to the extensive surgery that had been performed by Dr. Robinson prior to Dr. Bennett's examination. SPECIFIC CHARGES--LASSETTER: WHETHER RESPONDENT FAILED TO RECOGNIZE, TREAT, OR ADVISE MS. LASSETTER OF EXISTING PERIODONTAL DISEASE. Ms. Lassetter did not go to FDC to get periodontal treatment. When she went to FDC she knew she had periodontal problems and had been told that she would eventually loose all her teeth. She went to FDC simply to have all of her remaining upper teeth extracted and an upper denture made. However, there was no evidence that respondent was aware that Ms. Lassetter knew she had periodontal disease. No one at FDC told Ms. Lassetter that she had periodontal disease or whether the disease was treatable. Further, there is nothing in Ms. Lassetter's records to indicate that Ms. Lassetter's severe periodontal disease was recognized. WHETHER RESPONDENT FAILED TO RECOGNIZE OR TREAT A PATHOLOGICAL LESION ON MS. LASSETTER'S MANDIBULAR ANTERIOR ALVEOLAR RIDGE. There was no evidence presented to establish that the pathological lesion which was observed by Dr. Earle and removed by Dr. Robinson was present when the respondent treated Ms. Lassetter. Although a lesion, or fibroma, such as the one Ms. Lassetter had, is-usually slow developing because it is typically caused by some sort of chronic irritation, it is impossible to say with any certainty that the lesion was present when Dr. Parry treated Ms. Lassetter. WHETHER RESPONDENT FAILED TO RECOGNIZE THE LACK OF SPACE IN THE MAXILLARY TURBEROSITY AREAS FOR A DENTURE BASE, AND WHETHER PRELIMINARY SURGICAL PREPARATION OF MS. LASSETTER'S MOUTH WAS NECESSARY. There was no question that Dr. Parry did not recognize the insufficient space in the maxillary tuberosity areas for an upper denture with a full complement of teeth. The mandibular second and third molars were extremely extruded, rising above the occlusal plane. Due to the height of the second and third molars, there was simply no room for opposing teeth to be placed on the upper denture. Nevertheless, there was nothing in Dr. Parry's record to reflect that he recognized this lack of space and, prior to preparing the upper denture, he did not advise Ms. Lassetter of the lack of space for denture teeth. Indeed, the denture originally had a full complement of teeth. It was only after the denture was placed in Ms. Lassetter's mouth that Dr. Parry realized there was insufficient space for the denture teeth, and the molars on the denture were ground off. Although there was clearly no room for opposing denture teeth in the molar area, both Drs. Marini and Savage testified that, based on Dr. Parry's x-ray, there was sufficient room for a denture base. Dr. Earle also testified that Dr. Parry's x-ray revealed a slight space between the upper gum tissue and the lower teeth. Thus, there may have been room for a thin denture base with no denture teeth. However, a denture should have a full complement of teeth. Under normal circumstances, there should be teeth posterior to the bicuspids. Sufficient room for the complete upper denture could have been made either by performing an alveolectomy, or bone reduction, in the maxillary molar area or by removing the extruded mandibular teeth. In this case, the latter solution was clearly the best solution. The extruded molars could not have been salvaged anyway, due to the severe periodontal disease, and it was preferable to have as much maxillary bone as possible to support the denture. Dr. Parry should have recognized that the mandibular molars needed to be extracted to allow room for the upper denture. Respondent asserts that Ms. Lassetter only wanted removal of her upper teeth and insertion of a full upper denture. He asserts that she did not want and could not afford additional surgical preparation of her mouth. However, the evidence does not support this assertion. Ms. Lassetter was never advised that there was a lack of space for upper denture teeth in the molar region. She was not advised to have her lower molar teeth extracted. Respondent asserts that Ms. Lassetter received the services she sought. To the contrary, Ms. Lassetter wanted an upper denture with a full complement of teeth. Ms. Lassetter was never advised that unless she had surgery, she would not have any molars on her upper denture. Finally, because Dr. Parry did not advise Ms. Lassetter of this problem, because Ms. Lassetter's dental records do not indicate that Dr. Parry was aware of the problem, and because the denture was originally made with molar teeth, it is apparent that Dr. Parry simply did not recognize the problem. WHETHER RESPONDENT FAILED TO RECOGNIZE SEVERE UNDERCUTS IN THE MAXILLARY ANATOMY THAT REQUIRED SURGICAL PREPARATION TO PERMIT PROPER DENTURE RETENTION. An exostosis is an abnormal bony growth or protuberance. There is a natural undercut over an exostosis. If the exostosis is not removed, the denture will not fit properly and there will be a loss of retention. However, it is possible to build around an exostosis. When the denture is constructed, the undercut can be blocked out. However, this results in having an area of no contact between the tissue and the denture base. If there is only one exostosis, the denture base can be constructed to conform to the undercut. In that situation, the denture is put in sideways until the undercut is engaged and then the denture is snapped into position. However, in this case, Ms. Lassetter had large palatal exostoses on the right and left side, she had a posterior buccal undercut in the right maxilla, and an undercut in the maxillary right bicuspid region. Ms. Lassetter could not have a comfortable, well-adapted denture without the exostoses being removed. It was poor judgment and inadvisable to build over the exostoses. Further, Ms. Lassetter was not advised of the need for surgery, and her dental records do not indicate that Dr. Parry was aware of the problem. WHETHER RESPONDENT FRACTURED THE LABIAL ALVEOLAR BONE DURING EXTRACTION, CAUSING THE LOSS OF A LARGE SEGMENT OF BONE; WHETHER RESPONDENT PROPERLY CLOSED THE EXTRACTION SITES AFTER SURGERY AND THE ALVEOLAR FRACTURE; AND WHETHER RESPONDENT PROPERLY TREATED THE EXPOSED ALVEOLAR BONE. It is not uncommon, and certainly not incompetent, to cause a bone fracture during the extraction of teeth. A tooth root can also break during the extraction of teeth. In some cases, it is not necessary to remove the broken root tip. However, because there is a liklihood of subsequent infection if a large root segment is not removed, a root fragment that is more than 2 or 3 millimeters long should be removed unless the risk of removing it exceeds the benefit of removal. In some cases, roots that have had root canal treatment done on them are intentionally left in place to help maintain the height of the alveolar bone. However, in this case, it was totally inappropriate to leave the exposed bone or root fragment in place. There was inflammation around it, indicating that the area had become infected. The bone fragment or root tip was exposed at the time Dr. Parry was treating Ms. Lassetter. Indeed, Ms. Lassetter asked that it be removed. It was clearly below minimum standards for Dr. Parry to leave the fragment in place, whether it was a segment of bone or tooth root. Although it is not always necessary to suture an extraction site, when there are multiple extractions the preferred procedure is to suture the extraction sites. However, if a denture is to be worn immediately after extractions, it is not below minimum standards to fail to suture the extraction sites. WHETHER RESPONDENT FAILED TO INSTITUTE PROPER ANTIBIOTIC THERAPY OR OTHER TREATMENT AFTER MS. LASSETTER DEVELOPED AN OSTEITIS. A localized osteitis, or dry socket, is an infection of the bone. After an extraction, a blood clot normally plugs the socket and protects the alveolar bone. If the clot breaks down, or deteriorates, exposing the bone to the oral cavity, bacteria invades the bone causing infection. This infection, or osteitis, is very painful and must be treated to relieve the patient's pain. At the time Dr. Earle saw Ms. Lassetter, she did not have acute osteitis. However, her condition was consistent with a partially healed dry socket, and her symptoms immediately after the extractions were consistent with osteitis. The evidence indicates that Ms. Lassetter developed an osteitis subsequent to the extractions by Dr. Parry. However, respondent treated the condition by flushing the socket. Medication, apparently an antibiotic, was prescribed by Dr. Marini and noted on Ms. Lassetter's dental records. Although Dr. Parry's treatment of Ms. Lassetter's condition may not have been the best, there was no evidence that the treatment provided was below minimum standards. WHETHER THE DENTURE PROVIDED BY DR. PARRY WAS EXTREMELY ILL-FITTING, WAS GROSSLY OVEREXTENDED IN THE BUCCAL FLANGE AREA, LACKED A SEAL IN THE POST-DAM AREA, HAD NO REASONABLE ADAPTATION TO THE MAXILLARY RIDGE, AND HAD NO TEETH POSTERIOR TO THE SECOND BICUSPIDS. When Dr. Earle examined Ms. Lassetter, the denture had very poor retention; it did not have any natural adhesion. However, Dr. Earle saw Ms. Lassetter two weeks after her last appointment with Dr. Parry, and approximately a month after her teeth had been extracted. Ms. Lassetter had not worn her upper denture during this time. After extractions, there is a substantial amount of bone resorption and tissue change in the area of the extractions. The denture acts as a mold or splint for the tissue. If the denture is not worn, there is nothing for the tissue to conform to and, even after a few days, the denture will not fit properly. The teeth that were extracted by Dr. Parry were in the front of Ms. Lassetter's mouth, and there was insufficient evidence to determine whether the denture ever fit in that area. However, the posterior and palatal areas would not have changed very much at the time Dr. Earle saw Ms. Lassetter, and the denture fit very poorly in the area of the palatal exostoses at that time. In essence, the poor fit of the denture was simply a corollary of the denture being improperly built over the exostoses. The denture did not appear to have a post-dam seal. The post-dam area is where the soft and hard palate meet. A post-dam seal is a raised area on the denture which creates a seal, keeping the denture from dislodging when the soft palate moves. Some seals, such as a "butterfly" seal, are not as noticable as other types of post-dam seals. However, Ms. Lassetter's denture did not appear to have any type of post-dam seal. Although it is not always necessary to have a post-dam seal, it does enhance the suction which keeps the denture in place. Since a post-dam seal aids in retention, a post-dam seal would be especially helpful where large undercuts are blocked out, as in this case, and the retention is poor. The buccal flanges, the areas of the denture on the side of the gums next to the check, were overextended. The side of the denture, or buccal flange, should not extend so far up that movement of the muscles or soft tissue cause the denture to dislodge. Although the buccal flange will often be overextended when the denture is received from the lab, it should be trimmed back before the patient leaves the office with the denture in place. Although there will be some tissue changes with time, there will not be major changes that would affect a well-adjusted flange. In this case, the height of the buccal flanges in the posterior areas would not have changed with time. There was insufficient evidence to establish that the denture had no reasonable adaptation to the maxillary ridge. As stated previously, Ms. Lassetter was unable to wear the denture. When a denture is not worn after extractions, it would be expected that the denture would not have a reasonable adaptation to the ridge after even a short period of time. Further, Dr. Bennett's testimony, which is accepted, indicated that the adaptation to the ridge was fair, though not exact, except in the areas where there had been corrective surgery. As stated previously, the denture did not have any teeth posterior to the second bicuspids. WHETHER, WHEN THE MANDIBLE WAS CLOSED IN CENTRIC RELATION, NONE OF THE DENTURE TEETH OCCLUDED WITH THE MANDIBULAR TEETH LEADING TO A SEVERE "OPEN BITE" RELATIONSHIP. "Centric relation" refers to an arch-to-arch or to jaw- to-jaw relationship. It is the relationship of the mandible the maxilla when both condyles are in their terminal hinge axis location irrespective of tooth contacts. "Centric occlusion" refers to the maximum occlusal contact irrespective of condylar position. Centric relation is very important to the comfort of the teeth, joints and muscles of the jaw. If centric occlusion is not in harmony with centric relation, the condyles must be pulled out of their terminal hinge position in order to make the teeth fit. The end result of the disharmony between centric relation and centric occlusion is stress on the teeth, joints and muscles. Therefore, it is very important for centric occlusion to be in harmony with centric relation. When Dr. Earle saw Ms. Lassetter he manipulated the mandible into the centric relation position. In centric relation there was exceedingly poor contact between the denture teeth and the mandibular teeth. Indeed, the only tooth-to-tooth contact was on the left side where the lower canine tooth touched the upper denture tooth in the first bicuspid area. There was also contact between the left lower molars, which were subsequently removed, and the denture base. The right side was totally out of occlusion, and the "open bite" in the anterior teeth was six to eight millimeters. When the mandible deviated from the first tooth contact to the maximum occlusal contact, a process commonly called a "slide in centric" which is really a slide out of centric relation the occlusal contact was still quite poor. In his proposed findings of fact respondent suggests that Dr. Earle's testimony regarding the occlusion in centric relation should be rejected because it conflicted with his written report, which stated that none of the denture teeth occluded with the mandibular teeth, and because there appeared to be differences in the position of the mandible in the slides taken by Dr. Earle which were admitted into evidence. Respondent points out that the slides were taken with check retractors in place, which could affect the position of the denture, and that one cannot make a determination of the occlusion in centric relation from merely looking at the slides. Nevertheless, Dr. Earle's testimony is accepted. Although there may have been slight shifts in position while the slides were taken, the slides were only meant to illustrate what Dr. Earle observed. Dr. Earle did not have to take check bites because he was not treating Ms. Lassetter and was not going to modify the denture. Occlusal discrepancies can be observed when the patient closes in centric relation and the initial tooth-to-tooth contact is made. WHETHER RESPONDENT WAS GUILTY OF INCOMPETENCE BY FAILING TO MEET THE MINIMUM STANDARDS OF PERFORMANCE IN DIAGNOSIS AND TREATMENT. For the reasons stated in the above paragraphs it is apparent that respondent's diagnosis and treatment of Ms. Lassetter was below minimal accepted standards. Although petitioner was unable to prove all of the specific allegations set forth in the Administrative Complaint, the evidence presented clearly established respondent's incompetency. THE JEAN BLANCHARD CASE On August 14, 1984, Jean Blanchard went to FDC to get her upper denture relined or, if that could not be done, to get a new upper denture and lower partial. Dr. Parry examined Ms. Blanchard and then an impression was taken. Although Ms. Blanchard testified that a girl named "Ria," apparently Retha Holt Tucker, placed the tray in her mouth, Mrs. Tucker testified that she never took an impression while at FDC, although she stated that she did place empty trays in patients' mouths to determine the size of the tray to be used. Mrs. Tucker also explained that she would hold the tray in place while the impression set. Mrs. Blanchard testified that the first attempt at taking an impression failed. When the tray was inserted in Mrs. Blanchard's mouth, the material in the tray came out and started going down her throat. She began to choke and had to jerk Mrs. Tucker's hand away. Mrs. Tucker was holding the tray in place. The impression was no good and another impression had to be taken. Mrs. Blanchard remembered Dr. Parry taking the second impression. He stayed in the room with her while it set. Although Mrs. Tucker admitted that she took impressions for another dentist after leaving Dr. Parry, she testified decisively that she never took an impression while working at FDC. She stated that Dr. Parry told her that her job was only to hold the tray in place. She was not permitted to put the tray in the patient's mouth or take it out. Mrs. Tucker's testimony is accepted. It is, therefore, concluded that Dr. Parry placed the tray in Mrs. Blanchard's mouth on both occasion and that Mrs. Tucker merely held the tray in place. Holding the tray in place does not constitute the taking of an impression. On October 22, 1984, Mrs. Blanchard executed an Authorization for Release of Medical Information for Merry Paige of the Department of Professional Regulation (Department). On January 23, 1985 and on February 2, 1985, Investigator Paige presented respondent with Mrs. Blanchard's authorization in an attempt to obtain Mrs. Blanchard's patient records. Respondent failed to release Mrs. Blanchard's patient records. The records were ultimately provided to the Department by respondent's counsel in October of 1985. JAMES BLANCHARD CASE James Blanchard went to FDC on August 14, 1984, along with his wife. Mr. Blanchard was having trouble with his teeth and wanted a full set of dentures. He filled out and signed forms provided by FDC. One of the forms contained certain statements regarding the type of work the patient wanted. Mr. Blanchard placed his initials by some of the statements, including the statement, "I do not wish periodontal (gum) treatment to save my teeth." Mr. Blanchard was aware that he had periodontal disease. Mr. Blanchard told Dr. Parry that he wanted a full set of upper and lower dentures. However, Dr. Parry advised Mr. Blanchard that three teeth on each side of the mandible could be saved. Dr. Parry also told Mr. Blanchard that he had periodontal disease, although he did not tell Mr. Blanchard whether the periodontal disease was treatable. Upper and lower impressions were made. Although Mr. Blanchard believed that the impressions were taken by a lady by the name of "Ria," apparently Retha Tucker, Mrs. Tucker merely held the tray in place while the impressions were setting. Retha Tucker did not actually take the impressions. Dr. Parry referred Mr. Blanchard to Dr. Philip Lightbody, an oral and maxillofacial surgeon, for the extractions. On the same day, August 14, 1984, Dr. Lightbody removed eighteen teeth, ten from the upper jaw and eight from the lower jaw. Dr. Parry determined the number of extractions to be made since he was the referring dentist; Dr. Lightbody did not make any decisions regarding the teeth to be extracted. However, as part of the surgery, he also performed a bilateral lingual tuberosity reduction to facilitate the denture fit. Lingual tuberosity refers to a projection of bone on the inside or tongue side of the lower jaw. Mr. Blanchard returned to FDC after the extractions and received his dentures, a full upper and a lower partial, the same day. No one at FDC specifically informed Mr. Blanchard that his dentures were treatment or temporary dentures, and he assumed that the dentures were permanent. However, on the forms Mr. Blanchard completed he initialed the following statement: "I realize that this is just a temporary denture or partial and it may need to be relined or remade due to bone changes during the process of healing, and this will be done at my expense." Mr. Blanchard returned to FDC the following day to have the dentures adjusted because the full upper denture was gagging him and the lower partial denture made his tongue sore and was cutting into his jaws on the inside. Dr. Parry made an adjustment to the upper denture which consisted of grinding down the back of the denture. Mr. Blanchard returned one more time to FDC. His upper dentures were still gagging him. This time, he saw Wayne Giddens who removed the denture and took it out of the room, apparently to have adjustments made. Mr. Blanchard did not know what was done to the denture. Whatever adjustment was made did not help the problem; however, Mr. Blanchard never returned to FDC. He lived 90 miles away and felt that another visit would not solve anything since neither of his earlier visits had helped. On September 5, 1984, Mr. Blanchard saw Dr. David Sweeney, a general dentist located in Brandon. He complained that he could not wear the dentures he had because of discomfort and difficulty in chewing. Because of Mr. Blanchard's complaints, Dr. Sweeney suggested a new upper full denture and a new lower partial. He also advised Mr. Blanchard that he had periodontal disease and that if he wanted to save his six remaining teeth he would need to undergo some periodontal therapy. At the time of the initial visit Dr. Sweeney did a soft reline of the upper denture and lower partial. Dr. Sweeney did a permanent reline of the upper on October 10, 1984. Dr. Sweeney subsequently provided Mr. Blanchard with a new lower partial and, as soon as he could afford it, Mr. Blanchard had another upper denture made. On December 3, 1984, Mr. Blanchard executed an Authorization for Release of Medical Information for Investigator Merry Paige of the Department. On January 23, 1985 and on February 2, 1985, Investigator Paige presented the authorization to respondent to obtain Mr. Blanchard's patient records. On both occasions respondent failed to release the records. On October 28, 1985, Respondent through his counsel, mailed the Department a copy of Mr. Blanchard's patient records. Dr. Lewis Earle examined Mr. Blanchard on February 21, 1985, approximately six months after Mr. Blanchard had received his dentures from Dr. Parry and after the upper denture had been relined twice and the lower partial relined once. At the time of Dr. Earle's examination, Mr. Blanchard had been wearing the new lower partial constructed by Dr. Sweeney. Dr. Earle examined Mr. Blanchard with Dr. Parry's dentures in place. The dentures did not properly occlude when the mandible was closed in centric relation. There was no contact on the posterior teeth' and there was an open bite in several regions which caused instability in the maxillary denture when biting pressure was applied. WHETHER THE DENTURES PROVIDED BY DR. PARRY DID NOT PROPERLY OCCLUDE; DISPLAYED AN OPEN BITE IN SEVERAL REGIONS, CAUSING INSTABILITY OF THE UPPER FULL DENTURE WHEN PRESSURE WAS APPLIED AND A LOSS OF RETENTION, AND WERE DEFECTIVE IN DESIGN, FIT AND FUNCTION IN THAT THEY LACKED THE PROPER CENTRIC RELATION NECESSARY TO A BALANCED OCCLUSAL FUNCTION. Dr. Earle examined Mr. Blanchard six months after Dr. Parry provided the dentures for Mr. Blanchard. Dr. Earle observed that the dentures did not occlude properly when the mandible was closed in centric relation. Because there was not balanced occlusion, when pressure was applied the upper denture dislodged. Dr. Sweeney saw Mr. Blanchard a few weeks after he had obtained the dentures from Dr. Parry. Dr. Sweeney testified that there was no open bite areas and that the occlusion was fair. He testified that the dentures were adequate as treatment or temporary dentures. Based on Dr. Sweeney's testimony, which was credible and is accepted, it is concluded that the dentures provided by Dr. Parry were not below minimum acceptable standards relating to occlusal function and design. WHETHER THE LOWER PARTIAL DENTURE LACKED NECESSARY OCCLUSAL RESTS AND RETENTIVE CLASPS AND WAS INSERTED UPON PERIODONTALLY INVOLVED TISSUE. Respondent's lower partial was an acrylic tissue- bearing partial. This type of partial is approved by the American Dental Association. This type of partial would also be the treatment of choice for periodontally involved tissue, as it is less likely to cause an extraction of the adjacent remaining natural teeth. A clasp placed on a periodontally involved tooth will destroy it. The clasp will act as a pair of forceps as it works, eventually pulling out the periodontally involved tooth. Therefore, although the denture provided to Mr. Blanchard did not have rests and retentive clasps, it was not below minimum acceptable standards. Although the denture was placed on periodontally involved tissue, it is acceptable to provide a functional immediate or treatment partial to a patient without first providing periodontal treatment when the patient has refused such treatment. Under the circumstances of this case, placing the acrylic tissue-being partial upon periodontally involved tissue was not below minimum standards. Based on the foregoing specific findings, it is apparent that respondent's treatment of Mr. Blanchard was not below the minimal acceptable standards when measured against prevailing peer performance. THE McPECK CASE On February 13, 1985, Ms. Dorothy McPeck went to FDC to have two full maxillary dentures and a partial mandibular denture made. She wanted one upper denture for a spare in case anything happened to the other one. Prior to going to FDC, Ms. McPeck had been wearing a full upper denture and a partial lower denture for over thirty years. The teeth on both dentures were worn down--she had not had her upper denture replaced since around 1971 and had been wearing the same lower partial for over thirty years. When she went to FDC, Ms. McPeck completed no paper work and no x-rays were taken. Respondent failed to obtain her medical history, failed to chart her then-present dental condition, failed to take any diagnostic information and failed to prepare a treatment plan for her. The impressions for Ms. McPeck's dentures were taken, and she returned that afternoon to get her dentures. Wayne Giddens, one of Dr. Parry's assistants, brought the dentures into the room. Ms. McPeck thought they were very nice looking but too white. Ms. McPeck wore the dentures all afternoon. However, that evening she was unable to eat dinner because the dentures hurt when she tried to eat. She tried the other upper denture, but that was no better, and she had to put in her old upper denture in order to eat. When Ms. McPeck returned to FDC on February 15, 1985, she was seen by Wayne Giddens. Mr. Giddens-removed the denture and apparently some adjustment to the denture was made. However, when Ms. McPeck tried to eat that afternoon, the denture rocked and she couldn't eat with it in. The denture didn't hurt, but it didn't fit. Ms. McPeck returned to FDC again and initially saw Mr. Giddens. He was unable to help Ms. McPeck and went to get Dr. Parry. Dr. Parry looked in her mouth, indicated that everything looked good, and left. He did not make any adjustments. Ms. McPeck was not happy with the treatment she received at FDC, and not satisfied with her dentures. She never wore the dentures again, and finally, obtained a refund from FDC. Respondent was the treating dentist and dentist of record during the treatment of Ms. McPeck at FDC. Dr. Lewis Earle examined Ms. McPeck on May 8, 1985, along with the dentures fabricated by Dr. Parry. Dr. Earle examined both maxillary dentures. Pressure indicator paste revealed that there were large portions of the palatal area of the dentures that were not in contact with the tissue. Although the two maxillary dentures were not duplicates, both had large areas of no contact. Both uppers lacked proper retention and had poor adaptation. The lower partial had a clasp system, which gave it some retention, but the partial denture base had very poor adaptation to the lower ridge. There was only one small area on the buccal flanges that had any contact. The two upper dentures were very similar as far as the bite. When the mandible was closed in centric relation there was an open bite of approximately three millimeters in the front. Ms. McPeck was able to slide in centric to a position where the teeth occluded quite well. However, this shift forward was very unbalancing to the upper denture, and since it had little retention to start with, chewing in this position caused the denture to become dislodged. The partial denture was partially tooth-borne and partially tissue-borne. It had poorly designed clasps. They were not custom made to fit the teeth to which they were clasped. A partial denture depends on close adaptation of wire or cast metal clasps to slight undercuts. The clasp should be designed so that it does not put a strain on the tooth. The partial denture had no occlusal rests on either of the abutment teeth to keep the partial from sinking into the soft tissue when biting down. It lacked reciprocal clasps or arms on the inside to provide adequate retention. SPECIFIC CHARGES WHETHER THE DENTURES, AS A SET, CONTAINED A THREE MILLIMETER DISCREPANCY BETWEEN CENTRIC RELATION AND OCCLUSION. With respondent's dentures in place, centric relation was not in harmony with centric occlusion. When the mandible was closed in centric, there was a three millimeter open bite. The mandible had to move out of centric relation for maximum occlusal contact, or centric occlusion, to be reached. Dr. Earle estimated that the mandible had to deviate approximately three millimeters from the centric relation position in order to achieve centric occlusion. Dr. Earle's testimony, that centric occlusion and centric relation were not in harmony, is accepted. The problems that Ms. McPeck was having with her dentures were consistent with centric occlusion and centric relation being out of harmony. WHETHER THE COMPLETE MAXILLARY DENTURE AND DUPLICATE MAXILLARY DENTURE CONTAINED LARGE AREAS OF NO CONTACT; WHETHER THE DENTURES LACKED PROPER RETENTION. There were large areas where the dentures fabricated by Dr. Parry were not in contact with tissue. Especially crucial were the areas on the upper dentures at the peripheral border or post-dam area. Due to the poor adaptation of the dentures to the tissues, the upper dentures also had poor retention, although one was better than the other. Dr. Earle tested the dentures for retention simply by putting pressure on one side and then the other. WHETHER THE PARTIAL MANDIBULAR DENTURE LACKED PROPERLY ADAPTED, INDIVIDUALLY-CAST CLASPS FITTED TO A SURVEYED MODEL, LACKED LINGUAL RECIPROCAL CLASPS FITTED TO THE FACIAL RETENTION CLASPS, LACKED CAST METAL LINGUAL RESTS, AND CONTAINED LARGE AREAS OF NO TISSUE CONTACT. The lower partial denture provided to Ms. McPeck was a tissue-borne acrylic partial denture wire clasps. It did not have individually-cast clasps, it lacked lingual reciprocal clasps, and it lacked cast metal lingual rests. Although it can be acceptable dental treatment to provide a partial without these rests and clasps, and to provide a tissue bearing partial, there was no evidence to explain why Ms. McPeck was not provided with a denture that had these rests and clasps. Dr. Marini, respondent's expert witness, testified that a partial mandibular denture that did not have individually-cast clasps, labial reciprocal clasps, and cast metal labial rests was not necessarily below minimum standards. However, he indicated that such a denture should be provided only when the patient's economic situation required it. He stated, "when they are able to afford something better, you can make another type of partial." There was no evidence presented that the partial was constructed the way it was based on Ms. McPeck's economic condition. There was no evidence that Ms. McPeck could not, at the time the denture was made, "afford something better." This was also not the same situation as that of Mr. Blanchard, who required a tissue bearing partial due to his periodontal condition. Further, Mr. Blanchard's partial was intended to be a temporary denture. Ms. McPeck's denture was meant to be a permanent denture. Under these circumstances, it was below minimum standards to provide Ms. McPeck with a denture that lacked individually-cast clasps, lacked lingual reciprocal clasps, and lacked metal lingual rests. WHETHER RESPONDENT FAILED TO MEET MINIMUM STANDARDS IN HIS TREATMENT OF MS. MCPECK. Based on the foregoing findings, it is apparent that respondent did not-provide competent treatment to Ms. McPeck. The dentures provided to her had poor adaptation and retention. The dentures were not constructed so that centric relation would be in harmony with centric occlusion which caused Ms. McPeck to have problems when trying to eat. Further, the partial provided by Dr. Parry was not an adequate partial denture under the circumstances presented. WHETHER RESPONDENT DELEGATED PROFESSIONAL RESPONSIBILITIES TO A PERSON NOT QUALIFIED BY TRAINING, EXPERIENCE OR LICENSURE TO PERFORM THEM. Although Ms. McPeck testified that Wayne Giddens, respondent's dental assistant, took her impressions, worked on her dentures, and placed the dentures in her mouth on several occasions, I did not find that Ms. McPeck's testimony was credible insofar as it related to the procedures followed as FDC, including who took her impressions and adjusted her dentures. There were too many inconsistencies in her testimony and at times she seemed somewhat confused. Therefore, there was simply no competent substantial evidence to establish that respondent delegated professional responsibilities to a person not qualified to perform them. WHETHER RESPONDENT FAILED TO SIGN A WRITTEN DENTAL WORK ORDER. A dentist who does his own laboratory adjustments does not need to prepare a work order authorization. If the laboratory work is performed by an unlicensed person, a work order authorization must be used. In this case, a laboratory procedure authorization form was filled out indicating two upper dentures and a lower partial should be fabricated. The authorization indicated it was from Dr. Parry and for Ms. McPeck. PREVIOUS DISCIPLINARY ACTION On January 18, 1984, a final order was rendered in the Board of Dentistry and Department of Professional Regulation vs. John R. Parry, D.D.S., DPR Case Nos. 0012886 and 0017095, DOAH Case No. 83-1085. In that case, respondent was found guilty by the Board of Dentistry of violating Section 466.028(1)(g) and (y), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a final order finding the respondent guilty of the following acts: Being guilty of incompetence in his treatment of Ms. Lassetter; as alleged in Case No. 85-3840; Being guilty of incompetence in his treatment of Ms. McPeck, as alleged in Count III of Case No. 86-0141; Failing to make Mrs. Blanchard's records available to her, through the Department's investigator, as alleged in Count I of Case No. 86-0141; Failing to make Mr. Blanchard's records available to him, through the Department's investigator, as alleged in Count II of Case No. 86-0141; Failing to keep-written dental records and medical history records justifying the course of treatment of Ms. McPeck, including a patient history and examination results; Failing to perform the statutory or legal obligation imposed by Section 466.021, Florida Statutes, by failing to sign Ms. McPeck's work order; and The repeated violation of Chapter 466. It is further recommended that Counts IV and V of the Administrative Complaint filed in Case No. 86-0141 be dismissed; that the charges of violating Section 466.028(1)(aa), Florida Statutes, as set forth in Counts I, II and III of Case No. 86- 0141 be dismissed; and that the charge of violating Section 466.028(1)(y), Florida Statutes, set forth in Count II of Case No. 86-0141 be dismissed. It is further recommended that the following penalties be imposed: A total administrative fine of $3,400 to be assessed as follows: Incompetence (Lassetter) $1,000 Incompetence (McPeck) $750 Failure to provide records $300 (Mrs. Blanchard) Failure to provide records $300 (Mr. Blanchard) Failure to keep proper Records $300 (McPeck) Failure to sign work order $250 (McPeck) Repeated violation of $500 Chapter 466 Suspension of respondent's license for a period of eighteen months, with the condition that respondent may have his license reinstated after a period of no less than six months upon satisfactory completion of a program of study or training approved by the Board. DONE and ENTERED this 2nd day of December, 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX Petitioner's Proposed Findings of Fact 1-3. Accepted. Accepted generally. Accepted. Accepted, except last sentence. 7-8. Accepted generally though unnecessary as separate findings. 9. Accepted. 10-15. Accepted generally. 16. Unnecessary. 17-20. Accepted. 21. Unnecessary. 22-27. Accepted generally. 28. Unnecessary. 29-39. Accepted generally. 40. Unnecessary. 41-42. Accepted generally. 43-44. Rejected by contrary finding. 45-49. Accepted generally, except first sentence of paragraph 45 which is rejected by contrary finding. Rejected as not clearly established by the evidence. Accepted as to treatment of bone or tooth root. 52-53. Accepted generally. Accepted. Accepted as to area of exostoses. 56-62. Accepted generally. Accepted, except as to beginning of first sentence. Accepted in part, rejected in part. Accepted. First sentence rejected by contrary finding second sentence accepted. Unnecessary. 68-70. Accepted. Accepted generally. Rejected by contrary finding. Accepted. Accepted to the degree stated in paragraph 47. 75-80. Accepted generally, except reject that Giddens made adjustments. 81. Irrelevant; the patient refused treatment. 82-86. Rejected by contrary findings, except paragraph 83 which is unnecessary finding as to Mr. Blanchard. Accepted generally, except third sentence which is rejected by contrary finding. Rejected by contrary finding. 89-91. Accepted. First sentence rejected for lack of competent evidence; remainder accepted generally. Rejected as irrelevant. Second part of sentence accepted, first part rejected as there was no evidence presented as to where denture fabricated. Rejected, generally, for lack of competent evidence. Accepted. 97-98. Accepted except as to Mr. Giddens role. 99-100. Accepted. 101-102. Accepted generally that centric occlusion was not in harmony with centric relation with the Parry dentures in place resulting in 3mm open bite. 103. First sentence rejected - it is not clear what it means. Second sentence accepted. 104-112. Accepted generally. 113-114. Unnecessary. 115-116. Accepted generally. Respondent's Proposed Findings of Fact 1-6. Accepted. Reject statement that evidence did not support charge. Remainder generally accepted. Accepted generally. Accepted as to minimal space for denture base, remainder rejected generally by contrary findings in paragraphs 22-24. Rejected generally by contrary findings. Accepted generally. First part generally rejected; last sentence accepted. First five sentences accepted generally. Remainder rejected. Rejected in general as stated in paragraph 26. Rejected in part, accepted in part (see paragraph 30). Rejected as stated in paragraphs 35-37. Rejected generally (see paragraph 32). Rejected generally. There was no evidence that the denture had a seal, butterfly or otherwise. Second sentence accepted. Accepted generally. 20-25. Accepted generally. 26. Accepted as to facts stated, not legal conclusion. 27-28. Accepted generally. Accepted as to facts stated, not legal conclusion. Accepted. Rejected by contrary findings in paragraph 73 and for same reasons argument as to Lassetter was rejected. Dr. Earle's testimony was accepted as to McPeck. 32-33. Rejected by contrary findings. Rejected by contrary finding (see paragraph 75). Accepted generally. 36-37. Rejected generally by contrary findings and conclusions of law. COPIES FURNISHED: Errol H. Powell, Esquire Senior Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Kenneth M. Meer, Esquire 180 South Knowles Avenue Winter Park, FL 32789 Tom Gallagher Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Pat Guilford Executive Director Board of Dentistry 130 N. Monroe Street Tallahassee, FL 32399-0750
