The Issue The issue is whether Respondent is guilty of incompetence or negligence and failing to keep adequate dental records and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed dentist, holding license number DN 0010415. He has been licensed continuously in Florida since 1985, and he practices in Naples. On February 13, 1992, M. D. presented to Respondent at Kings Lake Dental Services. M. D. complained of a loose three-unit fixed bridge, which had replaced tooth number 4, using teeth numbers 3 and 5 as abutments. Respondent performed a focused emergency examination. He found a decaying, loose bridge that was falling apart and coming out of M. D.'s mouth; tooth number 5 was decayed and had fractured off; and tooth number three was decayed around the abutment crown and post. Respondent took an x-ray and found root canals on teeth numbers 3 and 5. Based on these findings, Respondent recommended to M. D. that he have post and cores on teeth numbers 3 and 5 and a new bridge. Respondent noted in his dental records these findings during this initial visit and the limited nature of the examination. At the time of this initial examination, Respondent determined that teeth numbers 3 and 5 could serve as abutment teeth to support the bridge for tooth number 4. His determination was correct as tooth number 5, but the record suggests that his determination was questionable as to tooth number 3. However, Petitioner failed to prove by clear and convincing evidence that the suitability determination for tooth number 3 was incompetent or negligent. On M. D.'s next visit, which took place on February 26, 1992, Respondent prepared teeth numbers 3 and 5 for the new bridge by removing the existing post and core in tooth number 3 and preparing tooth number 5 for a post and core. Respondent installed a temporary bridge during this visit. A post and core is an appliance that is cemented into a tooth that has undergone previous endodontic treatment. A post goes into the residual root, and the core replaces the natural crown of the tooth. The post and core can then be prepared for a crown or, as in this case, a fixed bridge. The final result resembles the placement of a peg into a tooth on which additional material is built up. On M. D.'s third visit, which took place on March 4, 1992, Respondent re-cemented the temporary bridge, which had come loose. On M. D.'s fourth and final visit, which took place on March 13, 1992, Respondent installed the permanent fixed bridge. At no time did any blood collect in M. D.'s post preparations. At no time during the post-and-core work, including during the unanaestheticized installation procedure, did M. D. experience pain. As material to this case, a perforation would result from excessive drilling in the process of preparing the tooth for the post, so as to create an extra opening into the bone. The absence of blood during the post preparation is generally inconsistent with a post perforation. The absence of pain during the ensuing installation procedure also militates against a finding that Respondent inadvertently perforated the tooth. The crucial findings on the issue whether Respondent perforated the tooth are thus the absence of blood during the drilling attendant to the post-and-core procedure and the absence of pain during the ensuing installation procedure. These findings are based in part on the self-serving testimony of Respondent, but also are supported by other evidence. At the time of the incident, Respondent had practiced dentistry in Florida for over six years. It is likely that he would have known that an untreated perforation would eventually cause the restorative work to fail. Respondent had treated numerous patients, presumably including seasonal Naples residents, without this issue previously arising, even though excessive-drilling perforations themselves are not that uncommon. When M. D. later contacted Respondent and complained of the dental work, he made no mention of the pain that typically would have accompanied the installation of a core over a perforated tooth. M. D. was a winter resident of Naples. Fourteen months after his final visit to Respondent, a dentist in Massachusetts discovered a perforation of the root on tooth number 5 and an acute periodontal abscess on tooth number 3. An acute periodontal abscess occurs at the end of the root and is secondary to infection involving the dental pulp in the soft tissue part of the tooth. Periodontal abscesses occur around the supporting structures of the teeth. Petitioner has failed to prove by clear and convincing evidence that Respondent perforated M. D.'s tooth. Although excessive drilling may cause a perforation, decay, a root fracture, and rampant periodontal disease may also cause perforations. Given the considerable period of time between Respondent's treatment of M. D. and the discovery of the perforation, the likelihood of decay, a root fracture, and rampant periodontal disease increases as the cause of the perforation. Given the other factors, such as lack of blood during the post procedure or pain during the core procedure, Petitioner has failed to prove by clear and convincing evidence that Respondent's treatment of M. D. was incompetent or negligent. The record provides even less basis to find by clear and convincing evidence that Respondent's work caused the periodontal abscess 14 months later. Respondent's dental records are adequate in many respects. The records adequately describe the cast post and core technique; Petitioner has failed to prove by clear and convincing evidence that the failure to distinguish between the two types of cast post and core is material in this case. Petitioner has also failed to prove by clear and convincing evidence that the records fail to provide an adequate basis for another dentist to infer the removal of the old post and core. The x-ray is of extremely poor quality, but it is merely a duplicate. The original is not in the record, and the record provides insufficient basis for inferring the quality of the original. Petitioner has failed to prove by clear and convincing evidence that the actual x-ray was of such poor quality as to preclude reliance upon it. Respondent's records indicate that tooth number 5 is decayed and fractured off, that tooth number 3 is decayed, and that the x-rays reveal root canals on both these teeth. While adequately documenting these findings, the records do not document Respondent's evaluation of the suitability of teeth numbers 3 and 5 to serve as abutment teeth. Nor do the records document the "moderate" periodontal disease that Respondent testified that he also observed. Respondent's restorative work eventually failed. The most likely cause of failure was the perforation of tooth number 5. However, fourteen months later, tooth number 3 was no longer capable of serving as an abutment tooth. By inference, its condition at the time of Respondent's decision to use it as an abutment tooth at least warranted documentation in the dental records. Similarly, the acute periodontal abscess also evidences the need to document Respondent's finding of moderate periodontal disease. These omissions from Respondent's dental records are material due to the questionable suitability of tooth number 3 as an abutment tooth and the subsequent development of periodontal disease. On these facts, Respondent's records fail to document a thorough evaluation of M. D.'s oral structures involved in the restorative work and his overall dental condition. In these respects, Petitioner proved by clear and convincing evidence that Respondent failed to keep adequate dental records in that they fail to justify the course of Respondent's treatment of M. D. On March 30, 1992, S. T. presented to the Fort Myers Dental Service for an abscessed tooth at tooth number 3. One of the dentists at the office, Dr. Rubin, saw S. T. He recommended full mouth x-rays and study models and prescribed pain medication and an antibiotic. The dental records contain no indication of periodontal disease at this time. The Fort Myers Dental Service maintained a system of patient referral in which Respondent or Dr. Johnson saw patients requiring endodontic treatment and other dentists saw patients requiring periodontic treatment. Following her visit, Dr. Rubin referred S. T. to Respondent for endodontic work on April 2, 1992. The x-rays had revealed lesions on teeth numbers 3 and 4, so the referral was for an evaluation for root canals. On April 3, Respondent examined S. T.'s mouth and noted buccal swelling around teeth numbers 3 and 4 and broken- down, decayed teeth at teeth numbers 3, 4, and 5. However, his examination did not reveal any periodontal disease. Respondent recommended root canals for teeth numbers 3 and 4 followed by casts, posts, and cores for teeth 3 and 4 and a porcelain fuse metal crown for tooth number 5. Respondent commenced this dental treatment on April 10, 1992. During this visit, Respondent began a root canal on tooth number 4. On April 17, Respondent completed the root canal on tooth number 4. On April 24, Respondent began a root canal on tooth number 3. On May 22, Respondent completed the root canal on tooth number 4. On September 24, 1992, Respondent prepared teeth numbers 3, 4, and 5 for crowns. On October 8, Respondent installed crowns on these teeth and posts and cores on teeth numbers 3 and 4. Fourteen months later, on December 7, 1993, S. T. was examined by Dr. William McKenzie, a periodontist who practiced 33 years, primarily in Fort Myers, until his retirement prior to the hearing in this case. A general dentist in Fort Myers had referred S. T. to him. At the time of his examination, Dr. McKenzie found poorly fitting crowns on teeth numbers 3, 4, and 5 and open contacts between teeth numbers 2 and 3, 3 and 4, 4 and 5, and 5 and 6. In general, S. T.'s dental health was good, except for the area in which Respondent had worked. In this area, S. T.'s gums bled profusely upon probing by Dr. McKenzie. In part, Petitioner tried to prove that Respondent improperly proceeded with endodontic treatment despite unresolved periodontic problems. However, the record fails to sustain this allegation. To the contrary, as Dr. McKenzie testified, the poor-fitting and gapped crowns caused the periodontal condition that Dr. McKenzie encountered. The open contacts, which allowed food to pack between the teeth, led to infection, which caused the inflammatory process in the gums and bone deterioration that Dr. McKenzie also discovered in this area of S. T.'s mouth. As to the fit of the crowns, Dr. McKenzie described it as "horrible" and work of which a "freshman dental student" was capable. Petitioner proved by clear and convincing evidence that Respondent failed to meet the minimum standards of performance and treatment when measured against generally prevailing peer performance in the treatment of S. T.
Recommendation It is RECOMMENDED that the Board of Dentistry enter a final order suspending Respondent's license for six months and, following the expiration of the suspension, placing the license on probation for a period of 12 months. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999. COPIES FURNISHED: Thomas E. Wright Senior Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 E. Raymond Shope, II 1404 Goodlette Road, North Naples, Florida 34102 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Bill Buckhalt, Executive Director Board of Dentistry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether or not from January, 1975 until December, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Victoria Lynn Bandosz, who during said time routinely and customarily performed certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits form the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S. , as set forth in Count 1 of the Accusation. Count 1 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from January, 1975, until August, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Janet Amato, who, did during said time routinely and customarily perform certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S., as set forth in Count 2 of the Accusation. Count 2 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not on or about December 23, 1974, Dr. Richard Blustein did carelessly and mistakenly remove several teeth from Shawn McAfee, a minor, when in fact, said teeth should have been removed from Kerry McAfee, sister of Shawn McAfee, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) and 466.24(3)(c)(d), F.S., as set forth in Count 3 of the Accusation. Count 3 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not prior to December 2, 1974, Dr. Richard Blustein treated Helen Rosen and during said treatment failed to diagnose and/or properly treat advanced periodontal disease and further improperly designed, constructed and installed a six-unit splint in the mouth of said Helen Rosen, said acts allegedly being in violation of Chapter 466, F.S., and in particular s. 466.24(2) or 466.24 (3)(c)(d), F.S., as set forth in Count 4 of the Accusation. Count 4 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from June, 1974, until December, 1975 Dr. Richard Blustein failed to provide and maintain reasonably sanitary facilities and conditions in and about his office and person, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(1), F.S., as set forth in Count 5 of the Accusation. Count 5 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, in 1974 and 1975, Dr. Richard Blustein treated Milton Lane and did construct and install in the mouth of said Milton Lane a set of upper and lower dentures, which set of upper and lower dentures never fit properly and were never adjusted to fit properly, despite repeated attempts by Dr. Richard Blustein to correct or adjust said dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 6 of the Accusation. Count 6 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, prior to March 17, 1975, Dr. Richard Blustein treated professionally Sarah Rees and while treating or attempting to treat said Sarah Rees, failed to diagnose and/or properly treat periodontal disease, prepared and installed crowns which were inadequate in design, construction, retention and installation, and placed several inadequate restorations, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(c)(d), as set forth in Count 7 of the Accusation. Count 7 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 8 in the Accusation charging violations of Chapter 466, F.S. and in particular, s. 466.24(2), 466.24 (3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing. Whether or not, during 1975, Dr. Richard Blustein treated Bill Soforenko, and during the treatment of said Bill Soforenko, prepared, constructed and installed a porcelain to gold full arch splint, which was entirely inadequate and unacceptable in preparation, design, construction and installation, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 9 of the Accusation. Count 9 had originally charged the violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 10 concerning certain children referred to him by the Academy of Dentistry, charging violations of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing.
Findings Of Fact Dr. Richard Blustein, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, F.S., under a license issued August 7, 1964, bearing No. 3716, and was at the time of the acts described in the Accusation engaged in the practice of dentistry at 417 St. James Building, Jacksonville, Florida. In November, 1974, Janet Amato started to work for the Respondent as a dental assistant. She was hired to take X-rays and impressions, clean up operatories set up operatories and assist the dentist in various capacities. She had attended the Florida College of Medical and Dental Assistants at Jacksonville, Florida and graduated as a dental assistant in 1969. After her employment began, she commenced to do those things indicated in her job function. In January, 1975, she attended a polishing course designed to instruct on the polishing of clinical crowns which was held at the Florida Junior College. This course was designed to teach the students to polish with a prophy angle and polishing cup with pumice. After completing the course, Janet Amato began polishing the teeth of patients who had been scaled by the dental hygienist or dentist in the office. Dr. Blustein was aware of this activity. Sometime in the month of February, 1975, Janet Amato began to do the scaling of patients. Janet Amato was not a dental hygienist at any time material to the accusations. Janet Amato learned the scaling procedure by watching Dr. Blustein for a period of three or four months on the basis of once or twice a week. When she began to do this scaling, Dr. Blustein would say, "Honey, go in, and clean this one's teeth, you know", and at times mentioned the word "scale". Janet Amato did this procedure using a hand scaler, as much as ten times a week from February, 1975 through July, 1975. In July or August, 1975, she was placed as a receptionist in Dr. Blustein's office and only did scaling once or twice a week when the hygienist would get behind. This procedure continued until January, 1976. After January, 1976, Janet Amato did not do further scaling and resigned her job with Dr. Blustein in March, 1976. The aforementioned scaling done by Janet Amato was subgingival only on those occasions when she would try to retrieve some debris that had fallen below the gum line. This scaling spoken of was done with the knowledge of Dr. Blustein and under protest of Janet Amato, as evidenced by her remarks to the Respondent that she did not feel qualified to do that procedure, to which Dr. Blustein responded that she would do it anyway. While employed by Dr. Blustein, Janet Amato was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Janet Amato how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with the laboratory burr. This process was done by Janet Amato as much as ten times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Janet Amato was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber bands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. The application of these brackets was made four or five times between February, 1975 and July, 1975, by Janet Amato. Victoria Lynn Bandosz started to work for Dr. Blustein in his dental office, in February, 1974, while Ms. Bandosz was an eleventh grade student at Wolfson High School. This work was done on Saturday and the duties included calling patients in, setting up operatories, taking X-rays, cleaning instruments and putting them away. The schedule of work gradually changed from Saturday to Saturday and after school, and finally a full-time employment in the summer of 1975. Ms. Bandosz performed those functions, as indicated before, until January, 1975, at which time she took a polishing course at Florida Jr. College designed to teach her how to handle instruments and to polish teeth. This course was the same course attended by Janet Amato. She began to do this polishing and was gradually worked into scaling. According to Ms. Bandosz, the Respondent would introduce her to a patient and say that she was to clean the teeth because the office was busy. She began to do scaling over a period of time and protested doing this type activity, but received no response to her complaint about having to do scaling. Ms. Bandosz indicated that Dr. Blustein appeared too busy to respond. The scaling that Victoria Lynn Bandosz did included work by hand scaler and by use of a Cavatron and commenced a few weeks after the polishing course was completed. The scaling done included the removal of calculus on the surface of the tooth and subgingival scaling. She learned this scaling, according to the witness, by watching the office dental hygienist. A schedule of doing the scaling would include as many as three or four times a week during the summer months and fall of 1975. In December, 1975, Victoria Lynn Bandosz left the employ of Dr. Blustein to attend school. While employed by Dr. Blustein, Victoria Lynn Bandosz was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Victoria Bandosz how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with, the laboratory burr. This process was done by Victoria Bandosz as much as five or six times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Victoria Lynn Bandosz was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber brands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. Among the patients being treated by Dr. Blustein in 1974, were Carol Diana (Kerry) McAfee, who was 10 years old at the date of the hearing and Sean McAfee, who was 8 years old at the time of hearing; sister and brother respectively. According to the questionnaire and chart on Sean McAfee and further testimony given in the course of the hearing, Sean McAfee had been seen by Dr. Blustein in April, 1974, on two occasions, one occasion being April 27, 1974, at which time an extraction was made of the right upper deciduous central and for X-rays in a second visit on April 29, 1974. Dr. Blustein recalls the extraction being in March, 1974. Some of this information is shown in Petitioner's Composite Exhibit #9, admitted into evidence. The Petitioner's Composite Exhibit #9 also shows the questionnaire and chart of Carol Diana (Kerry) McAfee, showing visits on November 30, 1974, and December 7, 1974. In the month of December, 1974, the young girl Kerry McAfee was taller than her brother Sean, with long blond hair, while Sean McAfee was stockey and had hair which did not go below the level of the ears. The two children do not resemble each other in other matters of appearance. Prior to December 12, 1974, Carol Diana (Kerry) McAfee had been seen by Dr. Harry L. Geiger, who specializes in orthodontics and then referred to Dr. Blustein through the person of Dr. Geiger for purposes of extraction of the maxillary and mandibuar primary canines. This referral was by correspondence of December 12, 1974, which is Petitioner's Exhibit #1, admitted into evidence. On that same date Dr. Geiger prepared a form which indicated the location of the teeth. to be extracted. This form is a part of Petitioner's Composite Exhibit #9. An appointment was made with Dr. Blustein's office to have the extraction made from Kerry McAfee on December 23, 1974. Due to the proximity of the Christmas holiday, employees within Dr. Blustein's office were contacted and an arrangement made to substitute the appointment of Kerry McAfee for one of Sean McAfee who was to have his teeth cleaned around that time period. This substitution of appointment was made one week prior to the scheduled appointment. When the patient, Sean McAfee, arrived at the Respondent's office he was taken to an operatory to be seen by the Respondent. Dr. Blustein had with him in the operatory the letter which is Petitioner's Exhibit #1 and a set of X-rays pertaining to Carol Diana (Kerry) McAfee. There is some question about whether or not the form which is part of Petitioner's Composite Exhibit #9 was in the operatory. The letter of December 12, 1974 from Dr. Geiger in its reference lines references Carol Diana (Kerry) McAfee - Age: 8 years, and Dr. Blustein indicated that he read this letter and observed the X-rays on Carol Diana McAfee prior to his work. He indicated that the X-rays on Carol Diana (Kerry) McAfee appeared to be similar to what he found in terms of the actual condition in the mouth of Sean McAfee. He then proceeded to extract two of the teeth that were indicated to be removed but he made the extraction on Sean McAfee, as opposed to Carol Diana McAfee. One of Dr. Blustein's patients, beginning August 6, 1974, was Mrs. Helen Rosen. Mrs. Rosen had last seen a dentist about a year prior to that and had had upper dentures made two or three years prior to August, 1974. The radiographic examination made by the Respondent showed that the patient was missing all of her upper teeth and was missing all but seven other teeth, which teeth showed severe periodontal involvement. The patient was a diabetic and clinical evaluation showed bone resorption. The patient on that date was wearing an upper denture which was causing problems due to the lack of a ridge and due to impediment in the muscle attachments. The lower natural teeth were mobile, to a high degree and the lower partial was contributing to that mobility. Further observation showed poor patient hygiene. The X-rays that were taken at that time are Respondent's Exhibit #9 admitted into evidence. The patient was told that she needed much dental work, specifically that she needed surgery on the upper jaw to relieve the muscle attachment, a mucobuccal full procedure to eliminate the frenum to allow her to wear her dentures. The patient by explanation was told that the dentures were irritating the upper ridge severely. The patient was also told that there was bone destruction in the upper jaw and that in addition to the upper jaw, surgery on the lower jaw was needed, which Dr. Blustein felt that he could do. After that surgery, Dr. Blustein indicated that a splinting procedure would be needed on the remaining natural teeth and as a part of that process that a new partial would be made. The prognosis for saving the natural teeth was poor due to the condition of the teeth, but the patient wanted to attempt to save those teeth. Subsequent to that date the Respondent performed a mucoperiosteal flap (an apical repositioning flap). This procedure was performed on August 20, 1974. Photographs of this procedure are shown in Respondent's Exhibit #6, admitted into evidence. Those photos also show the placement of the splint on the natural teeth. Other treatment which was performed on Mrs. Rosen by Dr. Blustein included a visit of August 14, 1974, in which preparation was made on the lower interior plastic temporaries, the temporary splint on the remaining natural teeth, to prepare for periodontal surgery. An adjustment was made on this splint on August 15, 1974. As mentioned, the surgery, on the lower apical repositioning flap was done on August 20, 1974 and involved curettage in between the teeth, root cleaning in between the teeth, suturing in between the teeth and the surgical procedure itself. On August 27, 1974, the dressings and sutures were removed. On September 15, 1974 a bite impression was taken in preparation to construct a permanent splint device. On September 20, 1974, a shade was taken. On October 12, 1974, the casting on the splint was tried and on October 14, 1974 the lower teeth were cemented. This was followed on October 16, 1974, with a bite impression and on October 21, 1974 width an adjustment. A final impression was taken on October 25, 1974, this time of the upper dentures. In the beginning of November 1974 the dentures were remade and adjusted on two occasions. In November a discussion was entered into about the problem with the upper arch and Dr. Blustein indicated to the patient that she might get a second opinion on the need for surgery. At that time Dr. Blustein indicated that he was not through with the splint and it had only been placed to control mobility patterns. . . The partial spoken of at this time was the partial being constructed by the Respondent. Finally on February 27, 1974, upon consultation, the patient was told that she needed ridge adjustments on the upper arch. Dr. Ronald Elinoff D.D.S. saw Helen Rosen on December 2, 1974, as an accommodation to one of his patients, whose mother is Helen Rosen. Dr. Elinoff found a full set of upper dentures with a lower splint and partial with dalbo attachment, the splint being a seven unit device. This splint was on the lower arch and was placed around the only natural teeth in the patient's mouth. The embrassure spaces were closed on the splint, meaning those spaces underneath the solder joints or where the connection ends on the splint. The conture in the bolt that was there was impinging upon the ability of the patient to keep the splint clean, thereby promoting constant irritation. The tissue was grossly inflamed and would easily bleed upon touch and was a bluish redish color, unhealthy in appearance. There was minimal pocket depth, by that, the depth between the gum and the teeth. The minimal amount of bone shown growing beneath these teeth promoted stress on the teeth. The crowns were too long for the bone supporting root structure in that they were approximately three times as long as the root of the teeth, wherein a one to one ratio is desirable. The junction between where the casting ends and the tooth structure begins was very thick and the porcelain on the crowns had been chipped off, leaving an open area. The margins on the crowns were thicker than normal limits of tolerance. By Dr. Elinoff's observation, the mobility of the teeth was 3+. The patient was referred to Dr. Richard Miller, D.D.S., a periodontist. Dr. Richard L. Miller, D.D.S., specializing in periodontics saw Mrs. Rosen on December 5, 1974. By his observation, Mrs. Rosen had periodontal disease about the remaining seven teeth and the lower anterior, plus lower right first bicuspid teeth had been splinted. There was generalized hemorrhaging on probing, synosis and the pocket depth about the teeth indicated mucogingival problems. The splint mobility was 1+. The remaining roots and the bone were not adequate to support the removable partial denture splint. The splint design made it hard to maintain health, in that there were no embrassure spaces and the contact areas were bulky. The margins on the crowns did not fill well and were bulky. The cement which had been used to place the splint could be seen and there was fractured porcelain around margins of the restoration. According to Dr. Miller, these bulky margins contribute to periodontal disease, by causing irritation and attracting plaque. This cement that was observed was felt to be permanent cement. On February 5, 1975, Dr. Seth Weintraub, D.D.S., specializing in periodontics saw Helen Rosen. He examined the remaining seven mandibular teeth and found a periodontal condition which was fairly arrested. The patient lacked gingival tissue in the lower left cuspid and it was his feeling that correction of the muscle pull in that area by free gingival graft to establish an adequate zone of gingival tissue could be done. His impression of the splint or bridge was that it was adequate for present if the oral hygiene improved, but the marrying of the crown was generally poor. On March 18, 1975, Dr. Jack K. Whitman, D.D.S., specializing in periodontics saw Helen Rosen upon the referral of Dr. Weintraub. His observation revealed a gingiva which showed 3 millimeters space, (normal appearance being 2 to 3 millimeters), with slight irritation and some gum irritation. The patient was shown to have seven remaining mandibular teeth. The margins of the prosthetic device (splint) was bulky and was irritating the gingiva. The appearance of the patient's mouth showed bone loss and degeneration occlusion. From June, 1974 until December, 1975, the Respondent would on occasion move from the examination of one patient, in a particular operatory over to a second operatory to see a second patient, and could do so without washing his hands. This examination of the second patient would include touching the mouth of the patient. On occasion Dr. Blustein would also move from the examination of one patient in an operatory to the frontdesk area of the office and look into and touch the patient's mouth at the desk, without washing his hands. During the time period, June, 1974 until December, 1975, roaches were observed in the instrument trays which had been placed in cabinets within the office. These instrument trays contained dental instruments. There was no autoclave bag over these instruments and the roaches could be seen crawling about the instruments and roach eggs could be found in the instruments. The office was found in an older building in Jacksonville, Florida, known as the St. James Building. Within his office complex food was kept by the employees. In addition there were a number of other professional offices in the immediate area. The Respondent had made arrangements for periodic pest control treatment and had a separate cleaning crew within his office, in addition to the janitorial service offered by the building maintenance. The office also contained a number of autoclaves, one for each operatory; steam heat cleaning; sterilization; hot oil sterilization; dry heat sterilization; and hexacholrophy in all operatories. During this period and at all other periods in which testimony was offered, there was no report of any incident of infection within patients. On June 10, 1974, Milton Lane became a patient of Dr. Blustein. Mr. Lane had come to Dr. Blustein to have a complete set of dentures made, to replace the dentures that he already had. On the June 10, 1974 visit Dr. Blustein took upper and lower alginates. The next day, June 11, 1974, Dr. Blustein took a bite impression and made base plates to get the midline. On June 14, 1974, there was a trying of the teeth and a final impression was made. June 19, 1974, the dentures were inserted and on June 24, 1974 another adjustment was made to the dentures and reline impression was made in an attempt to get a tighter fit. The patient returned on June 26, 1974 for further adjustment and on July 6, 1976 the teeth were remade, in that a new set was fitted. On July 15, 20, and 22, 1976, further adjustments were made. During this time period when Mr. Lane would try to eat his food the dentures would flop around in his mouth and after repeated problems Mr. Lane was referred to Dr. Rupert O. Bliss, D.D.S., based upon a complaint that Mr. Lane had made to the Better Business Bureau. At that time, Dr. Bliss was acting as the chairman of the local dental grievence committee. Dr. Bliss saw Mr. Lane in August, 1974 and Dr. Bliss's observations revealed that the dentures were trimmed on the peripheries and that the dentures were thick in the paletal region of the upper denture, with the teeth in the lower dentures being set "buckley to the ridge", thereby lessening the stability of the dentures. On balance, the dentures were found to be ill fitting. After his examination of the patient, Dr. Bliss wrote Dr. Blustein on August 16, 1974 in his capacity as chairman of the local grievence committee. Dr. Blustein offered his reply to this letter through his answer of August 21, 1974. The contents of these letters may be found in pages 488 and 489 of the transcript of record in the hearing. Dr. Bliss had other observations to the effect that the dentures did not fit the tissue of the ridges, although he felt that Lane had adequate ridge tissue. Dr. Blustein felt that one of the problems with the fit of the dentures had to do with the liquidity of the saliva of the patient, Lane. Dr. Blustein observed that the saliva was not sufficiently sticky to allow a smooth insertion of the dentures and felt that the patient would always need to use some form of dental paste to achieve a satisfactory fit. After the contact between Dr. Bliss and Dr. Blustein, Mr. Lane returned to Dr. Blustein's office of September 13, 1974 for purposes of taking impressions for another set of dentures. On October 1, 1974, Dr. DePaul who was working in the office with Dr. Blustein took an impression on the patient, Lane, to see if he could make a more satisfactory adjustment. On October 5, 1974, Mr. Lane made his last visit to the office of Dr. Blustein at which time the new teeth were inserted and the patient was told to come back if he had further difficulty. The patient did not return to the office of Dr. Blustein. When the patient appeared at the hearing as a witness he was still utilizing the last set of dentures that had been prepared by Dr. Blustein. Between November 28, 1973 and June 13, 1974, Dr. Blustein saw the patient Sara Rees. Mrs. Rees came to see Dr. Blustein because her husband had been seen by the Respondent and because his estimate on the cost of doing needed dental work was satisfactory to her. When Mrs. Rees came to Dr. Blustein she had certain radiographs (X-rays) that had been taken by Dr. Charles Weaver, D.D.S. on November 6, 1973. These radiographs are Respondent's Exhibit #4, admitted into evidence. Dr. Blustein's initial examination revealed a high level of caries, soft teeth and problems with fillings that were falling out. Dr. Blustein crowned seven teeth using pins to place the caps, in which gold caps and cast pins were utilized. This work may be seen in Petitioner's Exhibit #8, admitted into evidence, which is a series of radiographs taken by Dr. Roy Clarke, D.D.S. As a part of that exhibit #8 attached is a radiograph showing the date of March 11, 1975 as taken by Dr. David M. Mizrahi, D.D.S., a specialist in endodontics. This crown work involved the upper right second molar, upper right first molar, upper right first bicuspid, upper left second molar, upper left first molar, lower first molar, lower right first molar, teeth. At the time Mrs. Rees was seeing Dr. Blustein, she had also been referred by her former dentist, Dr. Charles Weaver to see Dr. David M. Mizrahi, for purposes of having certain endodontic procedures, root canal work. While seeing Dr. Blustein, Dr. Mizrahi performed root canal work on two teeth, one of which was the upper right first bicuspid. Dr. Mizrahi had told Mrs. Rees that there was a 50 percent chance that she would need a root canal done on that tooth; nonetheless, she wanted the crown tried out first before having to have root canal work done. This tooth presented special problems for Dr. Blustein in that there was very little tooth left for the cast pin to set against. Dr. Blustein installed a crown on the subject tooth, but the root canal was subsequently necessary to be performed. Another root canal was performed on a third tooth of Mrs. Rees; however, this root canal work was done while the patient was seeing a Dr. Robert Williams, D.D.S. During the pendency of Mrs. Rees' treatment by Dr. Blustein she began to have problems with the crowns falling off, the initial occasion being while Dr. Blustein was trying out the temporaries and this temporary was reinserted by Dr. Watkins, D.D.S., a dentist at Jacksonville Beach, Florida. In March of 1974, the crown on the upper right first bicuspid fell off and was recemented by Dr. Blustein. A couple of months later this same crown fell out and was recemented by Dr. Robert Williams. Shortly, before seeing Dr. Robert Clarke in March or April, 1975, this same crown and another crown fell off. At a point in time when Mrs. Rees was seeing Dr. Mizrahi for the root canal work, she determined to see Dr. Roy F. Clarke, Jr. upon the basis of a referral which had been made by Dr. Mizrahi. To Dr. Clarke's recollection, this referral was made for treatment of a maxillary right second bicuspid tooth that was not being retained. Dr. Clarke worked on the upper right first bicuspid tooth spoken of before, by rebuilding the foundation and making a provisional crown. The case was then turned over to Dr. Robert Williams at the request of the patient. While treating Mrs. Rees, Dr. Clarke prepared the radiographs which are Petitioner's Exhibit #8, as mentioned before, and made a clinical examination. The clinical examination revealed advanced periodontal disease in the posterior teeth, in which the level of disease was between 6 and 7 millimeters in probe depth. There was bleeding and puss formation in the gum area with severe occlusion. The upper right first bicuspid tooth had a perforation in the side of the root below the gum line. There was a pin perforation in the outside of the lower left first molar. There was leakage around the crowns and recurrent caries, with generally poor margination. Specifically, there was poor margination in the upper left as shown by the letter B on Petitioner's Exhibit #8, and space left filled with cement closing off the possibility of the healthy gum tissue surviving. On the lower right hand side, as shown by the letter C in Petitioner's Exhibit #8, there were thick margins, irritated gum and bone. On the upper right, as shown by the letter D in Petitioner's Exhibit #8, there were thick margins on the distal of the upper right first molar, with cement closing off the area of that proximal space. The problems with the margins were causing problems of retention of the teeth. The crowns that were in place were felt to be of such quality as to need replacing, based upon Dr. Clarke's testimony. Respondent's Exhibit #5 is a copy of the office records kept by Dr. Roy F. Clarke, Jr., on the patient Sarah Rees. Bill Soforenko came to see Dr. Blustein about his dental problems and Dr. Blustein told Mr. Soforenko that he had periodontal disease. Dr. Blustein then sent Mr. Soforenko to see Dr. A. Robert Romans, D.D.S., specializing in periodontics. Dr. Romans saw Mr. Soforenko on January 11, 1974 and at the time of his examination found that the patient had several missing teeth, inflammatory periodontal disease and the need for extensive periodontal therapy and substantive restorative work. Discussion of these needs was entered into with Dr. Blustein by correspondence of January 28, 1974, from Dr. Romans to Dr. Blustein, a copy of this correspondence being Petitioner's Exhibit #2, admitted into evidence. In addition, Dr. Romans took certain oral radiographs and on February 5, 1974, discussed those teeth to be removed with Dr. Blustein, the preparation for periodontal treatment, the need for the replacement of temporary bridges, and other matters. Dr. Romans determined that the upper left incisor number 9, and the upper left first permanent molar, number 14, should be removed and an upper acrylic provisional splint placed in the entire upper arch to be used as temporary stabilization until the periodontal disease could be controlled and subsequent disease could be broken down, before allowing Dr. Blustein to make a final splint of porcelain to gold. Dr. Blustein installed a provisional splint and on July 10, 1974, Dr. Romans took out the splint and under local anesthesia performed subgingival curettage, after which the splint was replaced. Between July, 1974 and December 6, 1974 the remainder of periodontal treatment was performed including surgery and this was the last time the provisional splint was seen by Dr. Romans. The periodontal disease seen by Dr. Romans was generalized moderate to severe in a chronic state, identified as compound periodontitis which was caused by bacteria and bacteria by-products. The surgery performed by Dr. Romans was a full thickness mucoperiosteal entry, in which the upper arch was done August 6, 1974 and the lower arch was done on September 30, 1974.. The worst teeth of Mr. Soforenko had been removed prior to the surgery. After December 6, 1974, Dr. Romans referred Mr. Soforenko back to Dr. Blustein for the construction of the permanent splint device. When Dr. Blustein saw Mr. Soforenko, the temporary had started to decompose and Dr. Blustein placed the permanent splint device, as soon as possible, to achieve stability within the patient's mouth. At the time this was done, the patient's mouth was red and inflamed and the patient had not been doing home care to the knowledge of Dr. Blustein. Dr. Blustein anticipated that Mr. Soforenko would return to Dr. Romans for whatever attention was necessary to the gums of the patient, and made an appointment for Mr. Soforenko to return for a bite adjustment. On June 9, 1975 Mr. Soforenko was seen by Dr. Romans for evaluation of the restorative work and recall prophlaxis and polishing, together with oral hygiene instructions. At that point the permanent splint had been constructed and installed by Dr. Blustein, this splint being a 14 unit device with eleven crowns and three missing teeth. The teeth found in the splint are as shown in Petitioner's Exhibit #3, admitted into evidence, which is a letter written from Dr. Romans to Dr. Blustein discussing the quality of the splint. On that same date certain photographs were made of some of Mr. Soforenko's teeth in the splint, to include all those teeth in the splint except numbers 10, 11, and 13. These photographs are Petitioner's Exhibits #4 - #7, admitted into evidence. Petitioner's Exhibit #4 shows the upper eight anterior teeth and accompanying gingival unit as it pertains to the permanent porcelain fused-to-gold splint. The photographs depict quite severe marginal irritation and inflammation, the margins are rough, thereby harboring bacterial plaque and promoting an inability to clean the teeth properly. The margins are very thick in all the teeth in the splint and the depth of these margins is shown in Petitioner's Exhibits #5 - #7, which evidence a periodontal probe placed in the gingival sulcus. In Petitioner's Exhibit #5 the probe is placed in the margin of the upper central incisor, number 8, and the margin is approximately one millimeter thick. The probe being utilized in that photograph is a blunt instrument as opposed to a sharp explorer instrument. This probe is a University of Michigan no. 0, with William's markings. Petitioner's Exhibit #6 shows the upper right lateral incisor, number 7, with the periodontal probe in place. Petitioners Exhibit #7, shows the periodontal probe placed in the upper right cuspid, number 6. The margin in Petitioner's Exhibit #6 is between 1 millimeter and 1-1/2 millimeter in thickness, and the margin in Petitioner's Exhibit #7 is between 1/2 millimeter and a millimeter thick. All other teeth within the splint by Dr. Roman's observation had similar problems in margination, as shown in Petitioner's Exhibits #5 - #7. The photographs also show a redish serus fluid, which is an exudate, indicating the inflammation of the gums. Dr. Blustein did not see Mr. Soforenko after the June 9, 1975 visit to Dr. Romans and when Dr. Romans saw Mr. Soforenko on July 9, 1975, the condition of the splint was the same as found on June 9, 1975.
Recommendation It is recommended that license NO. 3716 to practice dentistry held by the Respondent, Richard Blustein D.D.S., with the Florida State Board of Dentistry be revoked for violation of Chapter 466, F.S. however, the said revocation should be withheld pending satisfactory completion of five years probation, during which time the Respondent must satisfactorily comply with all requirements of law pertaining to his profession as a dentist. DONE and ENTERED this 31st day of January, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Thompson Tygart, Jr., Esquire 609 Barnett Regency Tower Regency Square Jacksonville, Florida 32211 Albert Datz, Esquire 320 Southeast First Bank Building 231 East Forsyth Street Jacksonville, Florida 32202 State of Florida Department of Professional and Occupational Regulations Division of Professions Board of Dentistry c/o Mrs. Charlotte Mullens Executive Director 2009 Apalachee Parkway Suite 240 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION DIVISION OF PROFESSIONS, BOARD OF DENTISTRY FLORIDA STATE BOARD OF DENTISTRY, Petitioner, vs. CASE NO. 76-700 RICHARD BLUSTEIN, D.D.S., Respondent. /
The Issue Should discipline be imposed against Respondent's license to practice dentistry for violation of Section 466.028(1)(x), Florida Statutes (2004)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with the regulation of the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 466, Florida Statutes. Respondent is Jenny Davenport, D.D.S. Respondent is a licensed dentist in the state of Florida, having been issued license DN 13321. Respondent's mailing address of record is 7955 Dawsons Creek Drive, Jacksonville, Florida 32222. On or about June 17, 2004, Patient L.E. presented to the Respondent complaining of pain associated with tooth number thirty-one. The Respondent performed a comprehensive examination, took an X-ray, removed existing intermediate restorative material, placed a cavit, prescribed an antibiotic and pain medication, and scheduled Patient L.E. for root canal treatment. The Respondent provided root canal treatment to Patient L.E. on or about June 28, 2004. Patient L.E. returned to the Respondent on or about July 6, 2004, for crown preparation of tooth number thirty-one, which the Respondent performed. On or about July 28, 2004, Patient L.E. presented to Respondent for seating of the final crown; however, the Respondent was dissatisfied with the permanent crown; therefore, she seated the crown with temporary cement and instructed the lab to fabricate a new permanent crown. On or about November 16, 2004, Patient L.E. presented to the Respondent for a prophylaxis and complained of pain in the lower right side of her mouth. Care and Treatment of Patient L.E.: The Patient's Recollection As established by the patient's testimony, when first seen by Respondent, Patient L.E. was not experiencing pain. When the patient returned for a visit it was determined that she needed to have a root canal performed on tooth number thirty- one. The procedure was performed. The patient was left with a temporary crown and an appointment made to have a permanent crown seated. Upon the next visit the permanent crown did not fit well. Respondent left the patient with a temporary solution. The patient returned in November 2004 for a cleaning, and she recalls, that at the time of the appointment, the crown on tooth number thirty-one had been set, as she refers to it, or seated. In November 2004 the patient was of the opinion that tooth number thirty-one had a permanent crown. At the November 2004 appointment the patient was experiencing sensitivity in tooth number thirty-one. However, before going to her November 16, 2004 appointment for cleaning, the patient had not complained of sensitivity in tooth number thirty-one. The nature of the sensitivity was a response to cold. She describes the nature of the discomfort as other than "really pain" [sic]. According to the patient, Respondent decided that tooth number thirty-one needed to be retreated. The patient was not certain why that was necessary. As the patient recounts the conversation, Respondent explained that she was going to retreat tooth number thirty-one because of the sensitivity, in particular that she was going to retreat the root canal. The patient returned on December 13, 2004, and the root canal on tooth number thirty-one was retreated. The patient has no recollection of an appointment being set for a later date. She realized that there was a necessity for a permanent crown to be "set again," referring to the need to seat a new permanent crown. The patient recalls Respondent's taking another permanent crown off before retreatment. When the patient left Respondent's office on that date, the area where treatment was performed felt numb. She left the office with the understanding that the treatment had been concluded, with the exception of the need to replace the crown. The patient assumed that the retreatment had been completed on December 13, 2004, but no one told her that specifically, to her recollection. Over time she began to experience pain that got worse with the passage of time. The pain that the patient was eventually experiencing was described by her as "absolutely unbearable." It was constant in nature, a "throbbing pain." The patient tried to contact Respondent's office several times. She explained to someone within the Respondent's office that the pain killer prescribed, Vicodin, was not working. The patient describes people answering the Respondent's office telephone but without providing an adequate response to her needs. The patient left messages with the front desk. She was advised to take Advil. Around the time that the patient was having problems with pain after the December 13, 2004 retreatment, she recalls having a conversation with Respondent on the telephone but not the specifics of their discussion. Patient L.E. contacted Dr. Reid Hines, a dentist in Pace, Florida, who had treated her before. That dentist saw her and addressed her problem by relieving the pain and redoing the root canal. When the patient saw Dr. Hines on December 16, 2004, he relieved her pain and then she returned to receive further treatment, as she recalls. Patient L.E. picked up a crown from Respondent's office, that she believed was necessary to be carried to her appointment with Dr. Hines. At the time she picked up the crown, she also obtained her patient records from Respondent's office. After that she did not return to Respondent's office. The patient remembers signing a form releasing the Respondent from providing future treatment and reminding the patient, that if the crown that she had picked up were to be destroyed, she would have to pay for another. The form referred to the fact that the treatment had not been completed. Respondent Explains the Treatment The Respondent attended the University of Puerto Rica for her undergraduate education. She attended dental school at Rutgers University and received her D.D.S. in 1992. Respondent is licensed to practice dentistry in New Jersey, as well as Florida. During her practice Respondent has performed as many as five-to-six root canals a week. Respondent recalls seeing Patient L.E. on April 29, 2004, for a consultation. The nature of the complaint was discomfort or sensitivity in the lower right side. The patient wanted a complete examination and X-rays. The patient was seen for prophylaxis (cleaning) on May 13, 2004. The patient returned on June 17, 2004. At that time preexisting intermediate restorative material was removed and temporary material was placed on tooth number thirty-one. The diagnosis was "hot tooth, hyper-sensitivity." This meant that the tooth, even under anesthesia had symptoms of either pain or temperature. The recommendation for future treatment was a root canal. On June 28, 2004, the root canal treatment was provided. The patient was anesthetized. A clamp and a rubber dam were placed prior to the provision of anesthesia. The tooth was opened up to allow access to the pulp. That section of the tooth was removed. Files were used to locate the root canals. An X-ray was taken to ascertain the extent to which the files had reached within the roots. The length(s) of the canal(s) was determined with the use of an apex locater. The tooth was irrigated. Using a series of files from the smallest, to wider files in width, the canals were flared from the top of the tooth to the apex of the tooth. A cone(s) was placed and another X- ray taken to confirm the measurements within the cone. Cones were placed at each canal with cement and laterally condensed by using heat. Then buildup material was used, a resin, to compensate for loss of tooth structure and enamel. In combination, the matter of determining the length of canals was associated with radiographic measurements with a file and by use of an apex locator. The starting point for this process is the coronal part of the tooth, the top portion. Each file has a rubber stopper on it to provide a guideline for measurement. The endpoint of the measurement is the apex. The calibration for measurement is in millimeters. These procedures were utilized by Respondent to treat Patient L.E. The measurements for Patient L.E. were the distal canal 15 millimeters; the mesial buccal canal 16 millimeters and the mesial lingual canal 16 millimeters. In looking at a postoperative X-ray to determine if the root canal treatment was adequate, Respondent looks at the length of the fill in proportion to the length of the root. She also looks at any radiolucency around the root. If found, this is an indication of infection around the tooth. Based upon what a textbook says, Respondent believes that fill material placed in a root canal that is 0.5 millimeters short of the apex would be considered acceptable. Looking at the X-ray depicting the postoperative condition after providing the endodonic treatment on June 28, 2004, Respondent expressed the opinion that the fill material in each root extended all the way to the radiographic apex. When referring to the apex of the root, she means by that the end of the root. In this context Respondent mentioned the overlap of two roots, in tooth number thirty-one. In reference to the June 28, 2004 postoperative X-ray, Respondent acknowledges that she can visualize where the roots end but the apex cannot be seen. The patient returned on July 6, 2004. Tooth number thirty-one was prepared for fabrication of a permanent crown. The impression was taken. A shade was selected and the impression then sent to the laboratory. The patient was left with a temporary crown. On July 28, 2004, the patient returned. Respondent was not satisfied with the fit of the permanent crown that had been fabricated. An impression was made to prepare a new permanent crown. In the interim this first permanent crown was used as a temporary. It was not permanently cemented. On November 16, 2004, Respondent saw the patient again. Prophylaxis, (cleaning) was done and two periapical X- rays were taken. Respondent reviewed the X-rays. The X-rays revealed the crown that was placed July 28, 2004 cemented with temporary cement and the root canal treatment that had been provided earlier on tooth number thirty-one were normal, according to Respondent. Based upon the patient's complaint Respondent had ordered the X-rays. Although the X-rays appeared normal, the patient was not satisfied, as Respondent recalls. Respondent gave the patient the option to retreat the root canal at no cost. This offer to retreat the root canal when the X-ray appeared normal was not a common practice by Respondent. On this date, explaining the patient's condition, the Respondent told her that the tooth was going to be sensitive for a time and she would have to await the outcome. The patient was not satisfied with that explanation and wanted something done about it, as Respondent contends. The only other choice was retreatment. The patient returned on December 13, 2004. At that time the crown was removed, one of the canals was opened and a retrieval of the material in the roots commenced. The work was not completed. What was left to be done, according to the patient record, was referred to as RCTIII, which Respondent explains means that the canals would be filled and sealed at another time. The reason for putting off the treatment was that Respondent was concerned with "the patient's state of mind, as far as she felt at the moment. She was not comfortable." This refers to the lack of comfort on the part of the patient. Respondent goes on to say "her body language indicated to me that she would not want me to proceed with what I was doing." There is no recollection by Respondent that the patient was asked if the patient preferred Respondent to proceed or not. Instead Respondent recalls "the anxiety" by appearance and lack of comfort by the patient. Respondent told the patient that she was not going to retrieve the root canal and that the next time (next visit), the goal would be to complete everything. Respondent is not clear on when the patient was to return for the balance of the treatment. Respondent did not anticipate that the patient would be relieved of symptoms following the December 13, 2004 appointment. More specifically, during the December 13, 2004 visit, after removing the crown, Respondent opened up the pulp area and started removing the gutta-percha from the mesial buccal and mesial lingual canals. After December 13, 2004, the intention was that at the next appointment, all the remaining gutta-percha would be retrieved and then the canals refilled. Respondent remembers speaking to the patient on the telephone at a time before the retrieval process began on December 13, 2004. What was said is not provided. Respondent prepared what she describes as a letter, to be signed by Patient L.E., that identified the status of care. That correspondence said: I L.E., have decided not to continue my current treatment with Dr. Jenny Davenport. I have declined to see Dr. Davenport regarding my treatment although she has advised me that my treatment has not been completed and she would like to complete the treatment. I hereby agree that any costs incurred in the completion of this treatment are my sole responsibility and I will not make Dr. Davenport responsible for these costs. I have agreed to complete the payment of the treatment with Dr. Davenport and take possession of my crown to complete treatment with the dentist of my choice. This disclaimer, which refers to the second permanent crown, was signed by Patient L.E. on January 20, 2005, when she retrieved the second crown and her patient records from Respondent's office. Office Staff Sonya Mikki Bates worked in Respondent's office while Patient L.E. was being treated. She remembers receiving a call from the patient saying that the patient was in excruciating pain. The witness does not recall what she did in response. Dr. Hines Dr. Hines, who took over Patient L.E.'s care, earned a bachelor's degree from the University of Mississippi in 1990. He later attended the University of Mississippi dental school earning a doctor's degree. He has been licensed to practice dentistry in Florida since 1994. He performs root canals on a daily basis. As mentioned, Dr. Hines had treated Patient L.E. prior to December 16, 2004. She had become his patient in June of 1998. For that reason, in his care and treatment of the patient, he was familiar with tooth number thirty-one before the patient was seen on December 16, 2004. When Dr. Hines saw Patient L.E. on December 16, 2004, it was on an emergency basis. The patient had pain and swelling and tooth number thirty-one was very mobile. The purpose of the care provided on that date was to try to address the patient's pain and allow the condition to heal to some extent. The patient had trismus in the jaw which prohibited her from being able to open her mouth completely. X-rays taken on that date revealed traces of gutta-percha or filling material inside tooth number thirty-one. There were limited areas that had been cleaned out in the tooth and others in which gutta-percha remained. Dr. Hines' impression was that retreatment of the tooth had been commenced. In the treatment provided that date, Dr. Hines removed a temporary crown that had been placed on the tooth. To address the pain, he gave the patient a dexamethasone injection, an anti-inflammatory steroid. He reduced the tooth out of occlusion. When Dr. Hines saw Patient L.E. on December 16, 2004, he did not observe anything in her condition related to tooth number thirty-one which he believed reflected a departure from the standard of care by Respondent in providing treatment before that date. In describing the patient's condition on December 16, 2004, Dr. Hines indicates that the patient more than likely had recurring infection in the tooth that would push the tooth out of the socket and make it occlude. Dr. Hines proceeded on the assumption that Respondent was trying to allow infection to be removed out of the tooth. But he did not have certain knowledge concerning Respondent's intensions. Dr. Hines had no discussion with Respondent concerning Patient L.E.'s care and treatment. Dr. Hines did not find it appropriate to fill tooth number thirty-one and replace the restoration on December 16, 2004. He did this later. In observing the X-rays he took on December 16, 2004, the remaining material in the root canals that he observed was found in the mesial buccal canal and possibly the mesial lingual canal. Dr. Hines proceeded with the patient on December 16, 2004, with the belief that the Respondent had begun the retreatment for tooth number thirty-one but did not finish because the patient was on Christmas break. By comparison to Respondent, when Dr. Hines does a root canal, to determine if the obturation is the right length, he looks for indications with a pulp tester, basically allowing him to establish the length of the canal internally. Verification is achieved by use of a radiograph. Once the root canal obturation is finished, the (postoperative) X-ray allows the determination of the length and density of the fill material. It would not be within the standard of care in Dr. Hines' opinion if the dentist failed to completely obturate and fill the canals of the tooth to the radiographic ends. Expert Opinion Harold John Haering, Jr., is licensed to practice dentistry in Florida, Kentucky and Tennessee. He received his training in dentistry at the University of Kentucky. He has practiced since 1982. He is a general dentist who provides endodontic treatment. He performs root canals. He has also had experience reviewing endodontic treatment performed by other dentists, by examining a patient's X-ray following a patient who has had a root canal. He was received as an expert in general dentistry with an emphasis, as a general dentist, on endodontics. In Dr. Haering's opinion the distinction between a tooth that can be treated without a root canal and one where a root canal is indicated, is a tooth that is exposed in the dentin where a filling will suffice, as contrasted with a tooth involving the pulp, as to the depth of decay or a fracture in apical tissues around the roots. In the latter circumstances a root canal is appropriate. In providing root canal treatment Dr. Haering places a rubber dam to isolate the tooth following the provision of anesthesia. Generally, a preoperative X-ray will be performed. That X-ray is to gain a measurement of the tooth as to its length. The coronal portion of the tooth is accessed with a burr down into the pulp to gain access to the canal. Patency with the apex of the tooth, the end of the root, must be established. This is done with a small file. A radiograph is used in that process or the dentist my use an apex locator or a combination of both. Once the apex has been identified, instrumentation proceeds to the apical foramen. This process involves the removal of pulp, bacteria, and decay while creating access to obturate the canal. To place the obturating material, a cone of material, gutta-percha is seated to a predetermined length. After this is accomplished a postoperative radiograph is used to evaluate the obturation. In trying to establish the correct length in the procedure, it is a matter of clinical judgment and for some clinicians the use of X-rays assists in determining the proper length. Observation of the obturation postoperatively reveals the density of fill. The standard that is acceptable, according to Dr. Haering, is to approximate 0.5 millimeters from the apex radiographically when considering the fill in the canal. Dr. Haering's opinion concerning the proper root canal obturation and the proximity to the apical foramen is one in which some U.S. schools accredited by the American Dental Association teach the measurement at approximately 1 millimeter as acceptable but most schools say that obturation should approximate 0.5 millimeters in relation to the apex. To confirm the outcome a postoperative X-ray is needed in Dr. Haering's opinion. The proper placement cannot be determined by tactile means, given the nature of the material that constitutes the fill and other material in the canal that are forms of constriction. In treating the tooth, separate and apart from the root canal work, is the need for restoration. The restoration is necessary but is a different procedure. According to Dr. Haering the proper standard for performing a root canal is that the fill is radiopaque, that is that it is without voids, that it follows the anatomy of the tooth and the root canal and that the obturation approximates the apical foramen, within 0.5 millimeters. A root canal that is poorly obturated can cause pain in the patient, in Dr. Haering's opinion. In the apex area there is no vascularization. If there is a void beneath the fill, above the apex, it is susceptible to a buildup in bacteria, pulp and debris. In this anaerobic condition, problems can occur. Depending on the patient's health status it can occur slowly or quickly, resulting in pain. In preparing himself to comment on Respondent's care and treatment provided Patient L.E., Dr. Haering looked at the patient's charts, Dr. Hines' records and other materials provided to the parties on the subject. Dr. Haering expressed the opinion that the Respondent violated the standard of care in the root canal performed on Patient L.E. on June 28, 2004, by not readdressing the root canal before proceeding with other work done on the patient that commenced July 6, 2004. Dr. Haering expressed the opinion that Respondent failed to completely obturate the canals on June 28, 2004. When a short fill occurs the obligation by the dentist is to take out that filling and refill it to the proper length, in Dr. Haering's opinion. In Dr. Haering's review of the X-ray taken by Respondent on June 28, 2004, when she performed the root canal on Patient L.E., he measured the fill with an instrument designed to address the length and by that process determined that it was 5 millimeters short of the apex. The calibration of the length of fill was done with use of a micro-ruler. This short fill created a void leading to necrotic breakdown byproducts in the canal that could affect the apical bone eventually. Based upon his review of the patient records, Dr. Haering was persuaded that a permanent crown was seated on the patient's tooth number thirty-one. In this belief he is wrong. When the patient returned on November 16, 2004, and the decision was made by Respondent to retreat tooth number thirty-one, that was not a decision criticized by Dr. Haering. In Dr. Haering's opinion, on December 13, 2004, when Respondent saw the patient, the treatment records and X-ray taken confirmed his expectation of an endodontic fill that was left short. When Dr. Hines saw the patient with a swollen condition and a mobile tooth on December 16, 2004, this indicated to Dr. Haering that the patient was getting infection from a canal that was not completely reinstrumented. Dr. Haering does not believe that Respondent met the standard of care on December 13, 2004. The patient had complained a month earlier about pain. To address the tooth, it must be taken out of occlusion. With a short fill in the root canal, the area will be susceptible to a buildup of bacteria and other noxious materials that needs to be reinstrumented. The reinstrumentation would be insufficient without reaching the apex and cleaning it out. It was not appropriate to obturate the canals on December 13, 2004, because they were not ready for that procedure. It would violate the standard of care to obturate the canals at that time, according to Dr. Haering. On December 13, 2004, Respondent failed to conclude reinstrumentation of the canals visible on the radiograph, leaving two of them with debris, according to Dr. Haering. In would be a violation of the standard of care in the treatment on December 13, 2004, if Respondent did not instrument the canals to the apex, to include areas where the canals had not been obturated, unless the patient was made aware that she might have a lot of problems and was provided Respondent's contact telephone number. If the canals were not fully reinstrumented that would not have gotten the patient out of pain in the treatment of December 13, 2004. In relation to the December 13, 2004 treatment, Respondent was obligated to remove the fill to offer any therapeutic value to the patient. In Dr. Haering's opinion the determination of the appropriateness of fill by length and density is the only proper method. Patient comfort at the moment, leaving the prospect of infection over time would not suffice. J. Geoffrey Weihe, D.D.S., has practiced general dentistry since 1968. He graduated from Emory University in that year. He is licensed in Florida. He was accepted as an expert in general dentistry, in the analysis of root canals and the performance of root canals. He performed root canals on a consistent basis between 1970 and 2002. At present he regularly reviews radiographs of endodontically treated teeth. He views the root canals and the radiographic evidence after the referral of the patients for endodontic treatment and their return for restorative work which he performs. In relation to the standard of care for providing root canal treatment, Dr. Weihe expressed the opinion that the tooth should be treated in a way that the organic material or the majority of the organic material down to the apical third of the tooth and including the proximity to the apex is removed. The canals are shaped and sterilized, an inert material is introduced that is not affordable to growth of bacteria. This process is to be done to the dentist's ability and to allow healing of the surrounding tissue, if necessary. The concept of "best of the dentist's ability" would vary from dentist to dentist, according to Dr. Weihe. Concerning the filling of the canals to the point of the apex, there would be variation in the judgment based upon the clinician. Dr. Weihe is aware of some literature suggesting fill to the apex, some within a half- millimeter of the apex, and some within two millimeters of the apex. In his opinion the fill could be several millimeters short of the apex and still be a successful fill. In determining the optimal apex fill and its attainment, Dr. Weihe stated that the optimal clinical success occurs with the lack of infection, lack of pain, and long-term use of the tooth, comfort to the patient over a long term, and the prospect of the availability of the tooth to use as an abutment for a crown, a bridge abutment or whatever is needed in restorative dentistry. Dr. Weihe believes that a radiograph is not the only available tool to evaluate the adequacy of a root canal. He indicated that the success of a root canal will tell with the passage of time. Circumstances that develop after the procedure, these considerations, in addition to the X-ray findings, enter into the determination of the adequacy of the root canal performed. Dr. Weihe agreed that the best way to determine where the optimal fill has been achieved in a root canal treatment is with a radiograph. Optimal length of the fill relates to the position of the apex of the canal that cannot be seen on an X- ray. An apex locator can be used as well. Files or reamers can be used to make these determinations on optimal fill while the patient is undergoing treatment. In his opinion an experienced operator, clinician, can sense the apex with his or her fingers with the file in hand. To arrive at his opinion concerning Respondent's care of Patient L.E., Dr. Weihe reviewed the charts and X-rays provided from Respondent, the charts and X-rays from Dr. Hines, the deposition of Dr. Haering, the deposition of Patient L.E., a deposition of Respondent and the in-hearing testimony of the Patient L.E. Based upon this information, Dr. Weihe believes that Respondent met the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance. This opinion applies to the treatment and care rendered by Respondent on June 28, 2004, and December 13, 2004, and any records and radiographs maintained by Respondent in treating Patient L.E. Based upon the postoperative radiograph from June 28, 2004, and the radiograph obtained on November 16, 2004, Dr. Weihe believes that the canals were appropriately filled in compliance with minimum standards of performance and diagnosis and treatment, when measured against generally prevailing peer performance in the treatment Respondent provided Patient L.E. Dr. Weihe believes it was appropriate for Respondent to retreat tooth number thirty-one in Patient L.E. Dr. Weihe's examination of the X-ray taken on December 16, 2004, by Dr. Hines, does not lead him to the conclusion that Respondent failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. Dr. Weihe does not believe that it was inappropriate to begin the instrumentation of the canals in treatment of Patient L.E. on December 13, 2004, and continuing that instrumentation at a later time. To do so would not violate performance standards in diagnosis and treatment measured against generally prevailing peer performance. In Dr. Weihe's opinion a poorly obturated canal can eventually result in pain. Having considered the expert opinion testimony by Drs. Haering and Weihe, in relation to the allegations in the Administrative Complaint, Dr. Haering's opinion is more compelling. It is accepted to the extent that he expressed the belief that Respondent had not met the minimum standards in performance and diagnosis and treatment measured against generally prevailing peer performance. In particular, his opinion that Respondent failed to completely obturate the canals in tooth number thirty-one on June 28, 2004, is persuasive, as is his opinion concerning the failures in the treatment provided on December 13, 2004. In addition, Dr. Haering's opinion that Respondent proceeded with the treatment of tooth number thirty- one on July 6, 2004, without retreating the inadequately filled root canal(s) is accepted. This determination is made in deference to the opinion that the fill in the root canal in length compared to the apex in tooth number thirty-one missed the acceptable approximation by a significant margin. A range of 0.5 millimeters to 1 millimeter would have been acceptable. A difference of 5 millimeters is not acceptable in the view of any witness. By contrast, Dr. Weihe's equivocal description of what would be acceptable, awaiting the outcome where the patient experienced difficulties, is unpersuasive. Finally, the remarks by Dr. Hines that he found nothing about the treatment performed by the Respondent that concerned him when he treated Patient L.E. on December 16, 2004, was premised upon certain assumptions about the arrangements between the patient and Respondent concerning additional treatment by the Respondent that were not established in the facts. Moreover, the emphasis placed by Dr. Hines was the more immediate concern for relieving the patient's symptoms, something Respondent had not done. Dr. Haering's viewpoint was based upon a more detailed assessment of Respondent's performance before the patient was seen by Dr. Hines on December 16, 2004. Records Keeping The Administrative Complaint accuses Respondent of failing to record that she had cemented the final crown or the date that it was cemented pertaining to tooth number thirty-one after the June 28, 2004 root canal had been performed and/or that Respondent failed to record what instrumentation took place, how much longer the canals were instrumented or what was removed when therapy was provided on December 13, 2004. It has not been found that the crown was cemented on tooth number thirty-one after the June 28, 2004 procedure. Records on that subject and the use of instrumentation, and how much longer the canals were instrumented, taken to mean, in relation to the length of the canals and what was removed during the therapy on December 13, 2004, is not meaningful.1/
Recommendation Based upon the findings of facts and the conclusions, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 466.028(1)(x), Florida Statutes (2004), issuing a letter of reprimand, imposing an administrative fine of $5,000.00, and requiring Respondent to undergo additional training pertaining to endodontic treatment of patients, to be completed within one year and restricting Respondent from providing endodontic treatment until that training has been completed. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2007.
Findings Of Fact Respondent is a licensed dentist practicing in Holiday, Florida. He has practiced dentistry for approximately 30 years and has limited his practice to prosthetics (dentures) since 1974. Doctors Christian, Bliss and Venable are likewise dentists licensed and practicing in Florida. On the basis of education and experience, each was qualified as an expert witness in the filed of dental prosthetics. In determining whether a denture meets or falls below the minimum standard of acceptability, several technical factors are considered. The denture is placed in the patient's mouth to check area of coverage or the adaptation of the denture to the ridges of the mouth; the extension of the flanges or borders of the dentures; the occlusion of the teeth and bite; the extension of the dentures into the soft palate; esthetics and finally, speech. The expert testimony of Dr. Christian in the evaluation of the dentures is accorded greater weight than that of Doctors Venable and Bliss since Dr. Christina conducted his examinations in May and June 1979, while Doctors Bliss and Venable performed their examinations some two years later. Changes in the patients mouth as well as the dentures over time make such later evaluations less meaningful. Dr. London's testimony is entitled to greater weight than that of his complaining patients with respect to precise financial agreements and dates on which various services were performed. This determination is based on the fact that Dr. London maintained contemporaneous records on each patient (office charts) and was able to refer to these documents during the course of his testimony. However, the testimony of his former patients with respect to the difficulties they encountered with their dentures was not lacking in credibility. On April 13, 1979, Rose Edwards went to Dr. London for treatment, and she agreed to pay $265.00 for a full set of porcelain dentures. On that same date impressions were taken for the construction of upper and lower dentures. On May 4, 1979, Respondent delivered the upper and lower dentures to Ms. Edwards. On May 8, 1979, she returned to Respondent's office complaining that the two front teeth were crooked and too far apart. Respondent found that the two front teeth needed reversing and he did so. On May 11, 1979, Ms. Edwards returned to Respondent's office complaining that she could not chew with the dentures, that the lower denture would not stay in her mouth, that food particles would get under the lower dentures and that she had blisters in her mouth from the loose dentures. Respondent adjusted the dentures. On July 24, 1979, Ms. Edwards returned to Respondent and stated that she was still having a great deal of difficulty with the dentures delivered by Respondent. Respondent advised Ms. Edwards that he would make no further adjustments and dismissed her as his patient. Dr. Christian conducted an examination of Ms. Edwards and the dentures prepared by Dr. London. He found that the borders of the lower denture were overextended into the cheek area. Dr. Bliss later examined Ms. Edwards and the same dentures and found the border areas to be greatly overextended into the soft tissue and muscle. The fact that the lower denture was overextended into the border areas caused it to lift up on movement of Ms. Edwards' mouth making it impossible for her to chew with the denture. Dr. Venable also conducted an examination of Ms. Edwards and the dentures delivered by Respondent. He found that the upper denture was overextended in the posterior or postdam area, and the lower denture underextended in the posterior area. The dentists generally agreed that Ms. Edwards was difficult to fit as she had poor ridges (required to support the denture) from having worn false teeth for many years. However, Ms. Edwards was relatively satisfied with her old dentures and returned to wearing them after being dismissed as a patient by Dr. London. The testimony taken as a whole established that the dentures Dr. London prepared for Ms. Edwards were deficient in several respects and did not meet the overall standards of quality required as a licensed dentist. Dr. Bliss and Dr. Christian stated that their fee for fitting Mrs. Edwards with dentures would have been $800 and $1,000 respectively. However, none of the dentists who testified, including Dr. London, regarded his substantially lower fee of $265 as any excuse for less than satisfactory work. On February 20, 1978, Lila Andrews went to Dr. London for treatment and agreed to pay Dr. London $290 for a full set of dentures, including adjustments and a relining, if required. On that same date impressions were made for the upper and lower dentures. On March 27, 1978, Dr. London delivered upper and lower dentures to Ms. Andrews for insertion by her oral surgeon. On April 7, 1978, Ms. Andrews returned to Dr. London complaining of severe pain on her lower gum. An adjustment was made to the lower denture by Dr. London. On May 18, 1978, Ms. Andrews returned to Dr. London complaining that she still could not put any pressure on her lower gums without a great deal of pain. In addition, she had developed sores in her mouth. At that time, Dr. London told her that he would remake the lower denture if Ms. Andrews agreed to pay Dr. London $45.00 to reline the upper dentures. Ms. Andrews agreed to pay him $45.00 since she wanted a usable denture, although she believed this charge was contrary to their agreement. On June 12, 1978, Dr. London delivered a second lower denture to Ms. Andrews and on June 14, 1978, she returned for an adjustment and told Dr. London that her dentures would not stay in her mouth and that her mouth continued to be extremely sore. Dr. London relined the lower denture. On December 14, 1978, Ms. Andrews returned to Dr. London's office and informed him that her dentures still would not stay in her mouth and that the soreness had continued. Dr. London advised Ms. Andrews that he would reline the dentures but that he would charge her for this service. She refused to pay and received no further treatment from Dr. London. Ms. Andrews currently uses the denture prepared by Dr. London but does so only with the aid of commercial fastening products. She also suffers a "lisp" which she did not previously have. On May 9, 1979, Dr. Deuel Christian examined Ms. Andrews and the dentures delivered by Dr. London. His examination revealed the following: The borders on the upper denture were grossly underextended into the soft tissue. The upper denture was not extended far enough into the postdam area, that area of soft tissue along the junction of the hard and soft palate of the roof of the mouth. The aesthetics of the upper denture were poor and the phonetics were such that the denture caused lisping. The borders of the lower denture were underextended into the soft tissue and the tooth placement in relation to the gum was poor. The bite relation between the upper and lower jaw was such that when the jaw was closed only four teeth made contact. The grossly underextended borders, the underextension in the postdam area, the poor tooth placement in relation to the gum and the poor bite relationship resulted in a lack of stability (especially when chewing), lack of retention and soreness in the mouth. Dr. Venable's examination revealed some deficiencies, but to a much lesser degree. His findings indicated that the flange on the lower denture was too short and the front section of the upper denture was too far forward. The testimony taken as a whole established was too far forward. The testimony taken as a whole established that the dentures Respondent prepared for Ms. Andrews failed to meet the minimum standards of quality required of a licensed dentist. On November 1, 1978, Grace McMichael visited Dr. London to have an upper denture made. A primary impression was taken of Ms. McMichael's upper jaw on November 1, and the upper denture was delivered to her on November 13, 1978. On November 17, Ms. McMichael returned to Dr. London's office complaining that the upper denture would not stay in her mouth, and the denture pressed into her nose when she bit down. Dr. London adjusted the denture. Mr. McMichael returned to Dr. London's office on December 13, as she was not satisfied with her denture. Dr. London advised her that he could not do anything further for three months when her gums would be more stable. He recommended that she purpose adhesive to hold her denture in. Dr. London made an appointment for Ms. McMichael on February 2, 1979, but she cancelled and never returned. Dr. Christian's examination of Ms. McMichael and the denture delivered by Dr. London revealed that the borders on the denture were underextended, that there was no postdam area and that the phonetics were poor. The underextended borders and the lack of extension into the postdam area affected the stability and retention of the denture. The phonetics problems observed by Dr. Christian resulted in Ms. McMichael lisping. It should be noted that any changes that might have occurred in Ms. McMichael's mouth between December 13, 1978, and February 2, 1979, would have had no affect on the underextension of the denture or the phonetics and could not have been corrected by adjustment. The examination by Dr. Venable revealed that the posterior border of the denture (throat area) and the planges (cheek area) were overextended. Although Dr. Venable did not consider these to be major deficiencies, the testimony as a whole established that the denture failed to meet the minimum standards of quality required of a licensed dentist.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Respondent be found guilty of incompetence in the practice of dentistry. It is further
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
The Issue The issues in this case are whether Respondent, a dentist, failed to maintain adequate records regarding his treatment of patient R.S. and/or provided R.S. dental care that fell below minimum standards of performance, as Petitioner alleges. If Respondent committed any of these offenses, it will be necessary to determine an appropriate penalty.
Findings Of Fact Introduction At all times relevant to this case, Respondent Joseph Gaeta, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Gaeta. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Gaeta committed two such offenses. In Count I of the Complaint, the Department charged Dr. Gaeta with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named R.S., whom Dr. Gaeta saw six times over a five-month period from November 15, 2002, through April 11, 2006. In Count II, Dr. Gaeta was charged with incompetence or negligence——again vis-à-vis R.S.——allegedly by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, an offense under section 466.028(1)(x). The Material Historical Facts The events giving rise to this case began on November 15, 2005, when R.S., a retired septuagenarian who spent winters in Florida but considered Michigan——where he resided the rest of the year——to be his home, arrived at Dr. Gaeta's office with an acute problem, namely a loose tooth. The tooth——#24, an incisor located in the lower jaw, center-left——had recently been knocked loose when R.S. bit into a cashew. Dr. Gaeta's office had scheduled R.S. for an immediate visit when he had called for an appointment, advising that they would "work [him] in." Upon being seen, R.S. informed Dr. Gaeta that he would be leaving in a couple of days for a cruise, and that, consequently, he wanted the bare minimum amount of dental treatment. Dr. Gaeta performed a comprehensive examination of R.S.'s mouth and took X-rays, including periapical X-rays of front tooth #9 (upper jaw, center-left) and tooth #24 . The examination revealed multiple problems besides the loose tooth, including lingual and buccal decay, bone loss, periodontal disease, and a loose amalgam filling in tooth #29 (lower right bicuspid), which filling popped out when probed. These issues were recorded in R.S.'s dental record. Dr. Gaeta prepared a treatment plan in accordance with R.S.'s desire to have as little dental work done as possible. Dr. Gaeta proposed to extract tooth #24, which was noted to have class III mobility (meaning it was quite loose as a result of bone loss caused by periodontal disease), and, in place of the absent tooth, substitute an artificial tooth known as a pontic, which would be supported by a five-unit bridge using the adjacent teeth (##22-23 and ##25-26) as abutment teeth. He proposed to place a crown on tooth #9 due to lingual decay, and another on tooth #29, from which the amalgam filling had fallen out. This treatment plan was documented in R.S.'s chart. Dr. Gaeta informed R.S. of his diagnoses, explained the treatment options, and obtained verbal consent to proceed with the prescribed course of treatment (described above). Dr. Gaeta noted in R.S.'s dental record that he "gave pt [patient] tx [treatment] plan," but did not otherwise memorialize the substance of their discussion, nor did he obtain written consent to treatment from R.S. After agreeing on a course of treatment, R.S. paid in advance for the procedures he had orally authorized Dr. Gaeta to perform. Thereafter, an anesthetic drug known by its brand name, Septocaine®, was injected to numb R.S.'s mouth, and Dr. Gaeta pulled tooth #24. He also "prepped" tooth #9, tooth #24, and the abutment teeth (##22-23 and ##25-26) and seated temporary crowns on them. Finally, Dr. Gaeta installed a temporary bridge, which would remain in R.S.'s mouth until the arrival and placement of a custom-made fixture from a dental laboratory. All of this dental work (including the use of the anesthetic), which was performed on November 15, 2005, was noted in R.S.'s chart. The evidence is in conflict as to whether Dr. Gaeta gave R.S. "post-operative" instructions following the provision of any dental treatments, including but not limited to the procedures performed on November 15, 2005. Dr. Gaeta testified that he did provide such instructions, as necessary, but did not note having done so in R.S.'s chart (which is undisputed) because in his opinion the recordkeeping laws do not require dentists to document the occurrence or substance of such routine dentist-patient communications (a legal point with which the Department disagrees). R.S. testified (via deposition) that Dr. Gaeta never provided any instructions. Neither witness is more believable than the other on this issue. As a result, the undersigned is unable to determine without hesitancy that Dr. Gaeta failed to provide post-operative instructions, as the Department alleged. The evidence offered in support of this allegation, in sum, is legally insufficient because it is not clear and convincing. R.S. next saw Dr. Gaeta on January 3, 2006. This appointment was for the purpose of making final impressions for the crowns, but R.S. presented with a new problem, which was that tooth #9 was painful. A panoramic X-ray was taken and the fact noted in R.S.'s record. Based on that X-ray plus the previous pariapical X-ray of tooth #9, which radiographs showed significant decay and a large filling in the tooth, together with the patient's complaint that the tooth was sensitive (a symptom noted in the chart), Dr. Gaeta determined that tooth #9 needed root canal therapy and documented his conclusion in the chart. Dr. Gaeta performed a root canal on tooth #9. The Department has alleged that Dr. Gaeta failed to measure the root canal length using either an X-ray or, alternatively, an instrument called an apex locator. Dr. Gaeta testified credibly that he used an apex locator to determine that the canal length was 15 millimeters. This measurement is noted in R.S.'s record, and Dr. Gaeta's testimony regarding the use of an apex locator is credited. The Department further alleged that Dr. Gaeta failed to take a post-operative X-ray to determine whether the root canal had been completely filled. The record, however, includes such an X-ray. Finally, the Department alleged that Dr. Gaeta failed to use a rubber dam when performing the root canal procedure on tooth #9. But based on Dr. Gaeta's credible testimony, the undersigned finds that Dr. Gaeta did, in fact, use a rubber dam. Dr. Gaeta did not note in R.S.'s record the use of an apex locator or rubber dam; he denies having an obligation to document the use of common dental implements in a patient's chart. Dr. Gaeta gave R.S. Septocaine® to produce local anesthesia during the root canal procedure. He did not note this fact, or the strength and dosage of the anesthetic drug administered, in R.S.'s chart. Dr. Gaeta maintains that there is no legal requirement to record such information in the patient's dental record. R.S. saw Dr. Gaeta four more times, on February 7, March 27, March 31, and April 11, 2006. Over the course of these visits, excluding the final one in April, Dr. Gaeta placed permanent crowns on tooth #9 and tooth #29 and completed the dental work required to install the permanent bridge spanning tooth #22 and tooth #26. The details of these visits are largely irrelevant, except as set forth below. During the visit on April 11, 2006, Dr. Gaeta learned that R.S.'s tooth #29, which had been crowned earlier that year, had broken near the gum line. The Department did not allege that Dr. Gaeta's treatment of tooth #29 caused the tooth to fracture, but rather charged that Dr. Gaeta: (a) placed the crown without first determining whether the tooth was strong enough to support it; and (b) failed to determine, in April 2006, why the tooth had broken. The Department failed to prove these allegations by clear and convincing evidence, as explained below. Regarding the first of these allegations, it must be observed, initially, that Dr. Gaeta is charged with failing to determine whether tooth #29 could support a crown, not with making an improper determination as measured against the standard of care. Consequently, unless the evidence shows clearly and convincingly that Dr. Gaeta placed the crown despite having not made up his mind one way or the other about the strength of tooth #29, Dr. Gaeta must be found not guilty. Indeed, strange as it sounds, Dr. Gaeta would be not guilty even if the evidence showed that he determined tooth #29 was not strong enough to support a crown and proceeded to place one anyway, for the charge, again, is failing to make a determination, not making a mistaken determination. That said, it is undisputed that the only reasonable alternative to placing a crown on tooth #29 was extraction. Contrary to the Department's allegation, the evidence suggests that Dr. Gaeta did, in fact, determine that tooth #29 might be saved with a crown——a course of treatment that would spare R.S. the loss of yet another tooth. Without more than is present in the instant record, the mere fact that tooth #29 later broke is insufficient to prove, clearly and convincingly, that Dr. Gaeta's judgment fell below the standard of care, much less that he gave little or no thought to the question of whether the tooth could support a crown, as charged. To be sure, the Department's expert witness, Dr. Spiro, testified that, in his opinion, tooth #29 should have been pulled because, he "believe[s]," the "crown to root ratio" was too high. Putting aside that Dr. Gaeta was not actually charged with violating the standard of care by crowning a tooth that could not support a crown, Dr. Spiro did not give an opinion——based on generally prevailing peer performance——as to what an acceptable crown-to-root ratio would be, nor did he (or anyone else) testify about what the crown-to-root ratio of R.S.'s tooth #29 actually was, making it impossible for the undersigned to determine independently whether the latter ratio was too high relative to the standard of care. Thus, Dr. Spiro's belief that Dr. Gaeta violated the standard of care in placing a crown on tooth #29 was an unpersuasive "net opinion" that was, moreover, plainly personal in nature as opposed to being evidently grounded on an objective standard deduced from knowledge of the prevailing practices of dentists as a group. For these reasons, Dr. Spiro's testimony in this regard is not accepted as clear and convincing evidence in support of the allegation that Dr. Gaeta failed to determine whether tooth #29 could support a crown. As for the allegation that Dr. Gaeta failed to determine why tooth #29 broke, the evidence shows otherwise. It is noted in R.S.'s chart that during the visit on April 11, 2006, Dr. Gaeta explained to R.S. that he (R.S.) was "placing extreme force" on tooth #29, which was the patient's "only posterior tooth on [the] lower right" jaw. Even assuming for argument's sake, therefore, that the standard of care required Dr. Gaeta to make a determination as to why the tooth had broken, the evidence fails to prove that he did not do so. Further, the Department neither alleged nor proved that Dr. Gaeta erred, or otherwise violated the standard of care, in determining that tooth #29 had broken apart because, being R.S.'s only lower right rear tooth, it was exposed to extreme force when R.S. chewed his food. This particular allegation, in sum, was not proved by clear and convincing evidence. The Charges The charges against Dr. Gaeta are set forth in the Complaint under two counts. In Count I, the Department accused Dr. Gaeta of failing to keep adequate dental records, an offense disciplinable pursuant to section 466.028(1)(m). The Department alleged that, in the course of treating R.S., Dr. Gaeta violated the recordkeeping requirements in 13 separate instances, which are identified in paragraph 27, subparagraphs a) through m) of the Complaint. In Count II, the Department charged Dr. Gaeta with dental malpractice, which is punishable under section 466.028(1)(x). Fifteen separate instances of alleged negligence in the treatment of R.S. are set forth in paragraph 31, subparagraphs a) through o). The allegations in paragraphs 27 and 31 are largely parallel to one another, so that, when aligned side-by-side, they can be examined in logical pairs. Generally speaking, the Department's theory in relation to each allegation-pair can be expressed as follows: Where the circumstances required that the dental act "X" be done for R.S. to meet the minimum standards of performance as measured against generally prevailing peer performance, Dr. Gaeta failed to do X, thereby violating the standard of care. Dr. Gaeta also failed to record doing X in the patient's record, thereby violating the recordkeeping requirements. The parallel propositions comprising each allegation- pair are mutually exclusive. For example, if Dr. Gaeta did not, in fact, do X, then he might be found to have violated the standard of care, if the Department were successful in proving, additionally, that, under the circumstances, X was required to be done to meet the minimum standards of performance. If Dr. Gaeta did not do X, however, he obviously could not be disciplined for not recording in R.S.'s chart that he actually performed X.2 (If a dentist were to write in the patient's chart that he performed X when in fact he had not performed X, he would be making a false record; that would be a recordkeeping violation, but it is not the sort of misconduct with which the Department has charged Dr. Gaeta.) On the other hand, if Dr. Gaeta in fact did X and failed to note in R.S.'s chart having done X, then——if the law required Dr. Gaeta to document the performance of X——he would be guilty of a recordkeeping violation. But if Dr. Gaeta performed X, then (with one exception) he could not simultaneously be found guilty, here, of a standard-of-care violation, even if he performed X negligently. This is because nearly all of the standard-of-care allegations against Dr. Gaeta involve omissions, i.e., alleged failures to act, which means that the Department's burden was to prove that Dr. Gaeta did not do X when the circumstances required that X be performed. Such a violation of the standard of care (namely, not doing X when X should have been done) is quite different from performing X negligently; the latter would be a disciplinable offense, but (with one exception) it is not the type of wrongdoing with which the Department has charged Dr. Gaeta. The specific charges against Dr. Gaeta are reproduced in the table below, which places the corresponding allegation- pairs side-by-side in separate rows. The standard-of-care violations set forth in Count II are located in column A, while the recordkeeping violations charged in Count I are listed in column B. For ease of presentation, the undersigned has reordered the allegations to some extent. Further, in several instances a subparagraph has been divided into two parts. For example, paragraph 31 k) of the Complaint is shown in the table as paragraphs 31 k.1) and 31 k.2). An empty cell——e.g., column B, row 10 (hereafter, "B10")——denotes the absence of a corresponding allegation. Text which has been stricken through, as in B12, reflects allegations that the Department either withdrew at hearing or conceded in its Proposed Recommended Order. These allegations were not proved and will not be discussed further in this Recommended Order. The Department charges Dr. Gaeta as follows: A Count II, ¶ 31: Alleged Standard-of-Care Violations B Count I, ¶ 27: Alleged Recordkeeping Violations 1 a) [F]ail[ing] to provide a comprehensive diagnosis with adequate radiographs, study models or impressions, periodontal depth probe charting, tooth charting and a comprehensive treatment plan prior to initiating root canal treatment and crown/bridge placement . . . . a.1) [F]ailing to record an overall comprehensive written diagnosis, with periodontal depth probe and tooth charting, failing to document a written comprehensive treatment plan . . . . 2 k.1) [F]ail[ing] to provide adequate diagnosis, including symptoms, with an accompanying treatment plan for Patient R.S. prior to initiating root canal i.1) [F]ailing to record an adequate diagnosis, symptoms, and accompanying treatment plan for Patient R.S. prior to initiating root canal treatment of tooth number 9 . . . . treatment of tooth number 9 . . . . 3 k.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. i.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. 4 c) [F]ail]ing] to fully determine through diagnostic exam results whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five- unit bridge was needed[.] a.2) [F]ailing to document whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five-unit bridge was needed[.] 5 e) [F]ail[ing] to formulate and/or present treatment options with explanation of risks/benefits to, and fail[ing] to obtain informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] c) [F]ailing to document presenting treatment options with explanation of risks/benefits to, or obtaining informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] 6 f) [F]ail[ing] to fully determine through diagnostic exam results where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and fail[ing] to provide adequate diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . d) [F]ailing to notate where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and failing to provide a written diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . 7 g) [F]ail[ing] to provide post-op instructions or discussions for Patient R.S. following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] e) [F]ailing to record in the treatment notes that post-op instructions or discussions for Patient R.S. were provided appropriately following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] 8 l) [F]ailing to take a diagnostic working length radiograph, and/or use of an apex locator, and/or take a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] j) [F]ailing to record a diagnostic working length radiograph, and/or use of an apex locator, and/or tak[e] a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] 9 m) [F]ail[ing] to use a rubber dam was used during the January 3, 2006, root k) [F]ailing to record that a rubber dam was used in the January 3, 2006, root canal canal procedure, and/or indicate why it was not employed[.] procedure, and if it was not, why it was not employed[.] 10 b) [F]ail[ing] to either fully diagnose and/or properly treat the periodontal condition [that was] noted in Patient R.S.'s mouth during the initial exam November 15, 2005, before embarking upon complex restorative treatments including root canal and crown and bridge restorations[.] 11 n.1) [S]eat[ing] a crown on tooth number 29 in early 2006, which broke off with the tooth at the gum line[,] without first determining if tooth number 29 was strong enough to support a crown . . . . 12 n.2) [F]ail[ing] to diagnose and determine why the crown seated a few months earlier at tooth number 29 broke off with the tooth[.] m.1) [F]ailing to record in treatment notes for Patient R.S.'s April 6, 2006, visit, why the crown seated a few months earlier at tooth number 29 broke off with the tooth at the gum line . . . . 13 l) [F]ailing to record the types and amounts of anesthetic used during the January 3, 2006, root canal procedure[.] 14 i) [F]ail[ing] to take a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . g) [F]ailing to take and/or interpret in the treatment notes a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . 15 j) [F]ail[ing] to perform any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] h) [F]ailing to record the results of any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] 16 d) [F]ail[ing] to fully determine through diagnostic exam results why an extraction of tooth number 24 was required and why a five- unit bridge was being fabricated instead of a three-unit bridge or some b) [F]ailing to clarify why an extraction of tooth number 24 was required and why a five-unit bridge was being fabricated instead of a three-unit bridge or some other restorative option in the treatment notes [dated] November 15, 2005, which other restorative option [on] November 15, 2005, during which Respondent extracted tooth number 24 and then prepared for a five-unit bridge from tooth sites 22-26 to replace the extracted tooth[.] indicate that Respondent extracted tooth number 24 and then prepared for a five unit bridge from tooth sites 22-26 to replace the extracted tooth[.] 17 h) [F]ail[ing] to inform f) [F]ailing to note informing Patient R.S. that temporary Patient R.S. that temporary or or permanent parathesia is a permanent parathesia is a known known risk of extractions risk of extractions when the when the patient presented on patient presented on December 9, December 9, 2005, complaining 2005, complaining on numbness in on numbness in the lingual the lingual area proximate to area proximate to the the extraction/bridge prep site. extraction/bridge prep site. Respondent further failed to re- Respondent further failed to check the parathesia and note re-check the parathesia and progress at subsequent note progress at subsequent appointments, and/or fail[ed] to appointments, and/or failed advise Patient R.S. of possible to advise Patient R.S. of referral to an oral surgeon if possible referral to an oral surgeon if needed[.] needed[.] 18 o) [F]ail[ing] to provide m.2) [F]ailing to record adequate diagnostic results diagnostic results to justify a to justify a proposed plan to proposed plan to seat crowns at seat crowns at tooth numbers tooth numbers 27 and 28, along 27 and 28, along with placing with placing implants at tooth implants at tooth numbers 29 numbers 29 and 30. and 30, after the crown seated on tooth number 29 broke off with the tooth at the gum line. The Expert Testimony The Department presented the testimony of Victor Spiro, D.D.S., on issues relating to the standard of care. Dr. Spiro was shown to have formulated his opinions without the benefit of some potentially relevant information available to the Department, e.g., the deposition of R.S., which he had not read, and some of the X-rays Dr Gaeta had taken. In addition, he misunderstood certain facts, such as the length of the dentist-patient relationship between Dr. Gaeta and R.S., which was about six months, not many years as Dr. Spiro believed. These considerations were marginally damaging to Dr. Spiro's credibility, but not as devastating as Dr. Gaeta has argued. The real problems with Dr. Spiro's testimony go to the heart of what an expert opinion must contain to be credited as evidence of a standard-of-care violation. To be convincing, the opinion needs to establish clearly the existence of a standard of care in the profession and explain how such standard applies to the facts of the case.3 As the statute plainly specifies, the standard of care must be a minimum standard of performance, not the optimal standard or best practice.4 The standard, moreover, must be based on "generally prevailing peer performance", that is, be "recognized as necessary and customarily followed in the community."5 It is therefore not sufficient for the standard-of- care expert (who likely has a keen interest in seeing his views "recognized as being 'correct' and 'justifiable'") merely to declare his personal opinions or practices and invite the fact- finder, either implicitly or explicitly, to extrapolate——from one practitioner's ideas about how the profession should perform——a generally applicable, minimum standard for all practitioners.6 Instead, to be credited, an expert's opinion on the standard of care must result from a process of deductive reasoning, based demonstrably upon an informed understanding7 of what the dental community, as a whole, generally does in a given situation.8 Here, Dr. Spiro did not convincingly articulate minimum standards of performance against which the undersigned, as fact-finder, can independently measure Dr. Gaeta's conduct. In addition, Dr. Spiro did not establish that his criticisms of Dr. Gaeta were based on a comparison of Dr. Gaeta's conduct to that which generally prevails in the relevant peer group. Indeed, the undersigned is not persuaded, much less convinced, that Dr. Spiro is familiar with the generally prevailing peer practices, if any, relevant to the charges in this case. In sum, a thorough review of Dr. Spiro's testimony leaves the undersigned with the distinct impression that Dr. Gaeta failed to measure up to Dr. Spiro's standards of performance. This is not a factually sufficient basis for the imposition of discipline. Because the Department failed to meet its burden of proof with regard to establishing the applicable minimum standards of care, it is unnecessary to make findings based on the testimony of Dr. Fish, whose opinions Dr. Gaeta offered to rebut those of Dr. Spiro. Ultimate Factual Determinations The evidence presented with regard to A1, A2, and A3 does not clearly and convincingly demonstrate that Dr. Gaeta "failed" to provide a "comprehensive diagnosis" inasmuch as the existence of a standard of care defining and requiring such a diagnosis was not proved and, in any event, Dr. Gaeta did diagnose and treat multiple problems in R.S.'s mouth. The evidence does not prove that Dr. Gaeta improperly diagnosed any of the conditions he treated. The evidence fails to establish convincingly any minimum standards of performance requiring the diagnostic tests that Dr. Gaeta allegedly failed to perform. There is, on the other hand, evidence that Dr. Gaeta performed diagnostic work on R.S., including periodontal depth probing. The evidence fails to establish convincingly the existence of a standard of care requiring (or defining) the provision of a "comprehensive treatment plan." There is, however, evidence that Dr. Gaeta developed a treatment plan for R.S., consistent with the patient's desires, which was implemented. Dr. Gaeta is not guilty of the charges reproduced in A1, A2, and A3 of the table above. The evidence fails to prove clearly and convincingly that Dr. Gaeta failed to record or include in R.S.'s chart any of the diagnoses he made, the results of examinations performed, or the X-rays taken. A dispute exists between the parties regarding whether the Department possessed all of the records comprising R.S.'s chart. The evidence suggests, as Dr. Gaeta maintains, that some materials might be missing. Given the many years that elapsed between the time Dr. Gaeta treated R.S. and the commencement of this proceeding, during which period Dr. Gaeta sold the dental practice in which R.S. had been seen and, as a result, surrendered exclusive control over R.S.'s chart, it is easy to accept that a few documents or X-rays have gotten lost or been misplaced. Dr. Gaeta was not charged, however, with failing to preserve dental records he had made, but rather with failing to enter certain required information upon R.S.'s chart.9 Therefore, he is not subject to discipline in this case for losing materials originally contained in R.S.'s chart.10 In sum, Dr. Gaeta is not guilty of the charges set forth in B1, B2, and B3 in the table above. Contrary to the allegations in A4, the evidence shows that Dr. Gaeta did, in fact, make a determination based on diagnostic examination results, including X-rays, that a five- unit bridge spanning tooth #22 and tooth #26 was appropriate. The evidence thus fails to prove clearly and convincingly that Dr. Gaeta gave little or no thought to the propriety of a five- unit bridge. He is not guilty of violating the standard of care as alleged in A4, even if his determination were wrong (which the evidence does not clearly establish either). Dr. Gaeta documented in R.S.'s chart the plan to install a five-unit bridge as a means of replacing tooth #24 with a false tooth. In doing so Dr. Gaeta clearly manifested his determination that the abutment teeth were appropriate. Although he did not write a detailed explanation of why a five- unit bridge was needed, Dr. Gaeta did prepare a dental record that justifies this course of treatment; thus he is not guilty of the recordkeeping violation alleged in B4. With regard to A5, the evidence is insufficient to prove clearly and convincingly that Dr. Gaeta failed to present treatment options, explain risks and benefits, and obtain informed consent before treating R.S., for there is credible evidence suggesting that he did those things. For that reason alone, Dr. Gaeta is not guilty of this alleged standard-of-care violation. Further, the failure to obtain informed consent is a disciplinable offense under section 466.028(1)(o) and thus is not punishable under section 466.028(1)(x), which defines the separate offense (dental malpractice) that Dr. Gaeta has been accused of committing.11 For this additional and independent reason, Dr. Gaeta cannot be found guilty of the standard-of-care violation alleged in A5. As just mentioned, providing dental services without first obtaining the patient's informed consent is an offense punishable under section 466.028(1)(o). Dr. Gaeta was not charged pursuant to that statute. Moreover, presenting treatment options, explaining risks and benefits, and obtaining informed consent do not justify the course of treatment; doing them does not transform an improper diagnosis into a correct one, nor does failing to do them deprive dentally necessary treatment of justification. Dr. Gaeta is not guilty of the recordkeeping violation as charged in B5. Contrary to the allegations in A6, the evidence shows that Dr. Gaeta provided a diagnosis for tooth #29 which supported his determination that the tooth might be saved with a crown. The evidence is undisputed that replacing the filling was not a reasonable option; the only alternative treatment was extraction. The evidence fails to establish that Dr. Gaeta was required, in meeting minimum standards of performance, to determine why the amalgam filling came loose from tooth #29. The evidence fails to prove that Dr. Gaeta was unaware of the location of the filling in tooth #29; to the contrary, there is credible evidence that he dislodged the loose filling while probing it. Dr. Gaeta is not guilty of the standard-of-care- violation alleged in A6. The notes and materials in R.S.'s chart justify Dr. Gaeta's treatment of tooth #29. No more than that is legally required. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B6. There is credible evidence that Dr. Gaeta provided post-operative instructions to R.S. In light of such evidence, the allegation that he failed to do so, as charged in A7, is not established by clear and convincing proof. Dr. Gaeta is therefore not guilty of this alleged standard-of-care violation. While the failure to give post-operative instructions might in some circumstances be shown to fall below minimum standards of performance, the failure to record in the patient's chart the giving of such instructions does not make an appropriate course of treatment unjustified, any more than giving——and noting in the record the giving of——post-operative instructions would justify an inappropriate course of treatment. The purpose of section 466.028(1)(m) is not to ensure that every dentist-patient communication is noted, every tool or instrument used listed, all actions taken, however routine, described in detail; nor is it to obligate the dentist to defend in writing his every diagnosis, treatment decision, exercise of professional judgment, and therapeutic act against potential criticism, as a sort of preemptive rebuttal to a possible future malpractice claim. Rather, the statute is designed, more modestly, to ensure that patient records contain information showing that every course of treatment has a rational basis in dentally relevant facts. Dr. Gaeta was not legally required to document his discussions with R.S. regarding post-operative instructions, and therefore he is not guilty of the recordkeeping violation as alleged in B7. The evidence shows that Dr. Gaeta used an apex locator to measure the canal length of R.S.'s tooth #9. Consequently, the allegation in A8 that he failed to do so is not established by clear and convincing evidence. Dr. Gaeta is not guilty of this charge. R.S.'s record contains X-rays and reflects the fact that Dr. Gaeta determined the canal length of tooth #9. The minimum statutory requirements were satisfied with respect to these particulars. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B8. There is credible evidence, which the Department failed sufficiently to overcome, showing that Dr. Gaeta used a rubber dam when he performed a root canal on R.S. Thus, the evidence is not clear and convincing that he failed to use this common dental implement, as alleged in A9. Dr. Gaeta is not guilty of this alleged standard-of-care violation. Section 466.028(1)(m) does not demand that a patient's record reveal that the dentist used common dental tools in the customary fashion. If the statute were held to require that level of detail, the dentist would need to note, e.g., the routine use of scalers and currettes, periodontal probes, latex gloves, drills, etc.——an absurd result. Therefore, although Dr. Gaeta did not document the use of a rubber dam, he was not legally required to do so. Dr. Gaeta is not guilty of the recordkeeping charge found in 9B. The evidence shows that Dr. Gaeta diagnosed R.S.'s periodontal condition. The evidence does not clearly and convincingly establish any minimum standards of performance that Dr. Gaeta failed to meet, under the facts of this case, in addressing the periodontal condition. As a result, Dr. Gaeta is not guilty of the standard-of-care violation alleged in A10. The evidence shows that Dr. Gaeta made a determination regarding tooth #29's ability to support a crown. He is therefore not guilty of the standard-of-care violation charged in A11. The evidence shows that Dr. Gaeta made a determination concerning the cause of tooth #29's collapse. He is therefore not guilty of the standard-of-care violation charged in A12. It is undisputed that Dr. Gaeta did not record in R.S.'s chart the type and amount of anesthetic used during the root canal procedure. Dr. Gaeta contends that producing local anesthesia with Septocaine® is not "treatment" and therefore need not be noted in the dental record. This argument is rejected; the use of medicine to control pain and anxiety is surely a form of "treatment" as that term is commonly used and understood. Consequently, section 466.028(1)(m) requires that the patient record contain justification for the use of anesthetic agents, which means that the drugs and dosages administered must be documented.12 Dr. Gaeta is guilty of the recordkeeping violation charged in B13. He has, moreover, been found guilty of, and been disciplined for, recordkeeping violations on two previous occasions.13 Credible evidence, which the Department failed rebut with clear and convincing evidence, shows that Dr. Gaeta took X- rays of R.S.'s tooth #9 before initiating root canal therapy. The X-rays and other information in R.S.'s chart justified that course of treatment. The allegations in B14 are not supported by clear and convincing evidence, and thus Dr. Gaeta is not guilty of this alleged recordkeeping violation. The evidence does not demonstrate clearly and convincingly that Dr. Gaeta performed any thermal, pulp, or bite percussion tests before initiating root canal therapy. Therefore, he cannot be punished for failing to record in R.S.'s chart the results of such tests, as charged in B15. Dr. Gaeta is not guilty of this alleged recordkeeping violation.
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 Dr. Gaeta guilty of the recordkeeping violation alleged in paragraph 27 l) of the Complaint (failure to record types and amounts of anesthetic agents used); finding Dr. Gaeta not guilty of the remaining violations; and imposing the following penalties: suspension from practice for three months, followed by probation for 18 months with conditions reasonably related to the goal of improving Dr. Gaeta's recordkeeping skills; and a fine in the amount of $2,500. DONE AND ENTERED this 12th day of June, 2012, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 12th day of June, 2012.
The Issue The issue in this case is whether the Department should give the Petitioner a passing grade on the June, 1993, Board of Dentistry Clinical Examination.
Findings Of Fact The Petitioner, Jose P. Cruz, took the June, 1993, Board of Dentistry Clinical Examination. Initially, he received a grade of 2.91, whereas a grade of 3.0 is passing. He requested a review of his grades and received some additional credit, raising his grade for the examination to 2.98--still failing, but quite close to a passing grade. The examination grade is a weighted aggregate made up of scores given on each tested procedure, using a formula for weighting the scores on each procedure. The possible scores for each procedure range from zero to five, with a score of three considered "passing" for a particular procedure. Likewise, weighted aggregates can range from zero to five, with a grade of 3.00 passing. Each procedure performed by the Petitioner (and the other examinees) was graded by three graders from pool of qualified graders. The Petitioner's graders not only were qualified, but they also were "standardized." "Standardization" is a process undertaken on the day before the examination to explain to the prospective qualified graders for an examination the criteria for grading the different procedures and how the criteria should be evaluated. The purpose of "standardization" is to insure that the graders are looking at the criteria in the same way, so that ideally each grader would grade the same performance the same way. Averaging the scores given by three "standardized graders" increased the reliability of the examination results. Procedure 8 on the examination was a pin amalgam preparation on an ivorine (plastic) tooth. Criteria for the procedure include: (a) outline; (b) depth; (c) retention; (d) pin placement; and (e) mutilation of opposing adjacent teeth. Two of the three graders gave the Petitioner a score of 3 on Procedure 8; the other gave him a 2. Procedure 9 on the examination was a pin amalgam final restoration on an ivorine (plastic) tooth. Criteria for the procedure include: (a) functional anatomy - appropriate occlusal and interproximal anatomy; (b) proximal contour and contact - contact is considered present when resistance is met with specified floss given at the time of the exam; (c) margins; (d) gingival overhang - overhang is considered to be excess amalgam in either a proximal or gingival direction at the gingival cavosurface margin; and (e) ma[n]agement of soft tissue. Two of the three graders gave the Petitioner a score of 2 on Procedure 9; the other gave him a 3. An ivorine (plastic) tooth is not the same as a real tooth. It is easier to carve, but it does not have the major external and internal landmarks created by the enamel, dentin and nerve root of a real tooth. Without additional instructions, the latter differences make it difficult or impossible for the examinee or a grader to apply certain criteria. The evidence was that the examinees received an examination booklet that instructed them to "treat simulated teeth as normal human teeth, that is, assume the simulated teeth have the same enamel, dentin, and pupil morphology as human teeth." The instruction in the examination booklet, by itself, leaves some important questions unanswered. "Normal human teeth" differ in the thickness of the enamel, not only from one person to another but also from tooth to tooth within any one person's mouth and even from place to place on any one tooth. Also, the direction in which the enamel rods run in "normal human teeth" differ, depending essentially on the shape of the tooth. The direction of the enamel rods is important in determining whether enough dentin is left under the enamel rods to support the enamel. "Normal human teeth" also have fissures, i.e., little cracks and grooves, and the margins of a preparation and restoration should be extended to include fissures that cannot be eliminated by enamelplasty. But ivorine teeth do not have all the fissures normal teeth have. As a result of these difference between "normal human teeth" and the test mannequin's ivorine teeth, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the following criteria for Procedure 8: outline form; depth of preparation; and retention. In addition, as to Procedure 9, functional anatomy depends upon a tooth's interaction with its opposing and adjacent teeth, but the mannequins did not have opposing teeth. As a result, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the criterion functional anatomy for Procedure 9. Similarly, the ivorine teeth in the mannequins were cemented in place, and points were to be deducted for moving them. This made it difficult, if not impossible--even with the information in the examination booklet--for the candidates to control proximal contour and contact, which are criteria for Procedure 9. Despite the deficiencies in the information in the examination booklet, taken by itself, there also was evidence that the graders were instructed orally during standardization, and the candidates were instructed during an orientation prior to the administration of the examination, that they were to assume an "ideal, minimal preparation" and that the purpose of the examination was simply to demonstrate basic knowledge of acceptable techniques. They also were told to assume "normal" or "ideal" enamel thickness of approximately 0.5 millimeter. Given those qualifications, they were told that the preparations were to have a "normal outline form" and "normal depth." As for functional anatomy, they were told that restorations were to "set up ideal (or normal) occlusion" by making the marginal ridges even and by replacing the restoration to the "normal shape of a cusp of a tooth." As for proximal contour, a restoration's marginal ridges were to meet (i.e., match) those of the adjacent tooth. Candidates also were allowed to ask questions as part of the orientation to clarify the oral instructions, as necessary. Given the additional oral instructions, the candidates and graders were given a clear enough understanding of the examination criteria. Evaluation of the candidates' and the graders' performance by the Department's psychometrician indicated that the examination was valid and reliable. The Petitioner's performance of Procedure 8 was primarily deficient in that the outline form was 0.25 millimeter short of the lingual occlusal groove, which was clearly visible on the ivorine tooth and which should have been included within the outline form. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. The Petitioner's performance of Procedure 9 was primarily deficient in that the restoration did not replace the "normal shape of a cusp of a tooth" and that the marginal ridges did not meet those of the adjacent tooth. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. There was evidence that, since the examination on ivorine teeth only simulates real teeth, which are easier to carve than real teeth, and is necessarily limited to a demonstration of basic knowledge of acceptable techniques, the examination does not directly test the candidate's ability to actually practice dentistry. But, due to heightened concern for the transmission of infectious disease, including HIV, ivorine teeth have been used in dental schools and in dental clinical examinations exclusively for over ten years, and the Petitioner did not prove that the use of ivorine teeth, instead of extracted real teeth, for his examination was unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Dentistry, enter a final order denying the Petitioner's examination challenge. RECOMMENDED this 28th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6923 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and not necessary. Rejected as not proven. (The exam should not necessarily measure a person with more dental experience as receiving a higher grade.) Accepted but subordinate and not necessary. Accepted and incorporated. 8.-10. Rejected as not proven. (It would be more accurate to say that the Department's examination reviewer could neither say that the the score of 2 was erroneous or unreasonable or that a score of 3 would have been erroneous or unreasonable.) 11. Accepted and incorporated. 12.-16. Accepted but subordinate and not necessary. (As to 16, however, he reiterated his opinion that the appropriate score was a 2.) 17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated. Rejected as not proven that the dentin is the "stronger material." Otherwise, accepted and incorporated. Accepted and incorporated. 22.-26. Accepted and incorporated to the extent not subordinate or unnecessary. However, as found, notwithstanding the limitations inherent in not being able to see on the ivorine tooth exactly where the enamel would end and the dentin would begin, or where the enamel rods would be, certain basic knowledge of acceptable techniques can be demonstrated on the ivorine teeth, given certain additional instructions. 27.-29. Rejected as not proven. The Petitioner's expert was not "standardized" and was not privy to what the graders were told during standardization or what the candidates were told during orientation. 30. See 22.-26. 31.-32. See 27.-29. 33. See 22.-26. Respondent's Proposed Findings of Fact. 1.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and subordinate to facts found. 11. Rejected as contrary to the evidence that the Petitioner introduced no competent and substantial evidence in support of his challenge. COPIES FURNISHED: Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 William M. Woodyard, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
