Findings Of Fact At all times material to this proceeding, Respondent was and remains a licensed optometrist in the State of Florida, having been issued License No. 000595. Respondent's present address is 4636 North Dale Mabry, #619, Tampa, Florida 33614. The Respondent, prior to relocating his office to Tampa, Florida, practiced optometry in Tallahassee, Florida, in an office adjacent to the Pearle Vision Center in the Governor's Square Mall. He closed that office the last week of December, 1980. Treatment of Wendell Harrison The Respondent first saw Wendell Harrison on October 11, 1980. At that time, Respondent was offering a special of $59.00 for three visits which included an examination and prescription, contact lenses, and the fitting of those lenses. The first of the three visits was the initial examination and prescription. The second visit occurred after the patients received their lenses, and the third visit was a follow-up visit for the purpose of ensuring that the lenses were fitted properly and there were no problems. On October 11, 1980, Mr. Harrison was examined by Dr. Hunter and given a prescription for contact lenses. On that date, Mr. Harrison paid the Respondent $40.00 of the $59.00 total charge. On October 22, 1980, Mr. Harrison received his contact lenses and returned to the Respondent's office for his second visit. During that visit, he was shown how to insert the lenses and also saw a film on how to care for the lenses. At this time, he paid the $19.00 balance of the total charge of $59.00. Subsequent to the second visit, Mr. Harrison experienced blurred vision and pain, especially in his left eye. He returned to Dr. Hunter and informed him of the blurred vision and pain. Dr. Hunter made no examination of Mr. Harrison's eyes or the lenses and informed him the lenses would tighten up and that he should continue to wear them. Mr. Harrison continued to have problems and returned to Dr. Hunter's office the first week of January, 1981. The office was closed. Mr. Harrison did not recall seeing a sign in the window or door of the closed office, but was informed by someone employed at the Pearle Vision Center next door that Dr. Hunter had left and that a Dr. Ian Field was handling problems with Dr. Hunter's patients. Mr. Harrison then made an appointment to see Dr. Field. After an examination, Dr. Field told Mr. Harrison not to put the lenses back into his eyes and not to use them. Dr. Field wrote a prescription for new lenses and refitted Mr. Harrison with the new lenses. Mr. Harrison experienced only minor problems in getting used to the new lenses and had no problem with blurred vision with the new lenses. The prescription of the lenses prescribed for Wendell Harrison by Dr. Hunter was improper in that the lenses corrected the vision in his right eye to only 20/40 which is the minimum for driving a vehicle in Florida. The left eye was corrected only to 20/40 and three additional letters on the next line of the chart. The lenses were also improperly fitted to Mr. Harrison's eyes, and as a result, moved around too much and would ride up underneath the upper lids of his eyes. By letter dated February 3, 1981 (see Petitioner's Exhibit 3), Mr. Harrison contacted Dr. Hunter and requested a full refund of his $59.00 fee. Dr. Hunter responded by letter dated February 9, 1981 (see Petitioner's Exhibit 4) and refunded with that letter $9.00 of the $59.00 paid by Mr. Harrison. Treatment of Maureen Sue Woodward Sometime in the Fall of 1980, Maureen Sue Woodward visited the office of the Respondent in Governor's Square Mall for the purpose of an examination and fitting of contact lenses. On the first visit, Ms. Woodward was examined by Dr. Hunter and was given a prescription for contact lenses. She took the prescription next door to Pearle Vision Center to have the prescription filled. Ms. Woodward, on the first visit, was quoted a price of $75.00 for three visits and this is the amount she paid Dr. Hunter. The three visits were to consist of first, an examination and prescription, secondly, the actual insertion and instruction on care of the lenses, and lastly, a follow-up visit to make certain there were no problems. After she received her contact lenses, she returned to Dr. Hunter's office for instruction on how to insert them and care for them. She watched a film about the cleaning of the lenses. Following the second visit, she wore the contacts just as she had been instructed to wear them and began to experience problems. Her eyes were bloodshot, burning, and tearing as a result of the contact lenses. Ms. Woodward returned to Dr. Hunter's office a third time and explained the problems she was experiencing. Dr. Hunter performed no examination of her eyes or the lenses but told her she was not cleaning them properly. She returned home and continued to clean the lenses as prescribed in the written instructions she had been given by Dr. Hunter and continued to have the same problems of bloodshot eyes, tearing, and burning. Dr. Hunter had told her to come back if she had any further problems. When she returned to Dr. Hunter's office in early January, 1981, the office was closed and there was a note on the door of the closed office referring patients to Dr. Ian Field in the Tallahassee Mall. Her third visit with Dr. Hunter had been approximately a week earlier and he had not mentioned the possibility that he might be leaving Tallahassee. The only information given by the note on the door was that Dr. Hunter's patients were referred to Dr. Field. On January 7, 1981, Mrs. Woodward was seen by Dr. Ian Field. The contact lenses which had been prescribed by the Respondent had an improper prescription. Prescriptions for contact lenses are in plus or minus. A prescription at zero has no prescription at all and is clear glass. A nearsighted person needs something for distance and requires a minus prescription and a farsighted person requires a plus prescription. The power of both lenses prescribed by Dr. Hunter for Mrs. Woodward were more plus than they should have been. When Mrs. Woodward saw Dr. Field on January 7, 1981, she was continuing to wear the contacts prescribed by Dr. Hunter. She was also experiencing blurred vision and bloodshot eyes. Her right eye felt scratchy. Treatment of Barbara Magnusson Stathos The Respondent examined Barbara Magnusson Stathos and prescribed contact lenses sometime prior to September 29, 1980. The agreed fee was $59.00 for three visits and Ms. Stathos had her second visit with Dr. Hunter on September 29, 1980, after picking up her contacts. After receiving her contacts Ms. Stathos experienced problems and called Dr. Hunter's office. She spoke with Dr. Hunter at that time. She continued to have problems and when she returned to Dr. Hunter's office, he had left the area. Barbara Stathos was then seen as a patient by Dr. Walter Hathaway, an optometrist, on January l7,1981. She was using a liquid chemical method of disinfectant for the lenses Dr. Hunter had prescribed for her. Thirty to forty percent of the population has an allergic reaction to these particular chemical disinfectants. There were deposits and coatings on the lenses which had been prescribed for Barbara Stathos by Dr. Hunter. Dr. Hathaway replaced her lenses and switched her to a heat disinfectant method. This solved her problem. The problem of coatings and deposits on her lenses would not have corrected itself. Such a condition would have required an optometrist to correct it. Treatment of Marianne Topjian On December l2, 1980, Marianne Topjian was given a prescription by Dr. Hunter for contact lenses. Subsequent to December 12, 1980, she received her contact lenses. On January 8, 1981, Marianne Topjian saw Dr. Ian Field. She was having problems with the contact lenses prescribed by Dr. Hunter. These lenses had an improper prescription in that they did not correct her vision for close work. The lenses should correct for distance as well as close work. Standard of Care and Requirement for Due Notice The standard of care for optometrists in the Tallahassee community in 1980 and 1981 required proper follow- up care in order to ensure that contact lenses fit properly, that the prescription was proper, and that the patient was not experiencing any problems requiring correction by the optometrist. The follow-up care includes necessary examinations to determine the source of any problems being experienced by the patient. Some degree of follow-up care is required with every patient who is fitted with contact lenses by an optometrist. The standard of care in the Tallahassee community, as well as the nation, requires that when a physician leaves his practice and relocates to another community, he must give notice to his patients and make certain that patients under his active care are taken care of by another optometrist. The relocating optometrist must also make arrangements to make the records of his patients available to them. Neither Wendell Harrison nor Maureen Woodward were given notice by the Respondent that he was leaving Tallahassee and relocating elsewhere. Wendell Harrison and Maureen Woodward were under his active care at the time Dr. Hunter left Tallahassee, and no proper arrangements were made by Dr. Hunter for the follow-up care for the problems that these two persons had complained about. Dr. Hunter saw Maureen Woodward approximately one week prior to his departure, and he did not inform her that he was considering leaving Tallahassee. Prior to leaving Tallahassee, the only arrangements made by Dr. Hunter involved one phone call with a Dr. Orb who planned to move into Dr. Hunter's office in Governor's Square Mall. Dr. Orb agreed generally to take care of any of Dr. Hunter's patients, but no specific financial arrangement was made for such treatment and no specific patients experiencing current problems were discussed. Dr. Hunter did not know when Dr. Orb would be moving into the office, and there was no evidence that he called Dr. Orb in Tallahassee after his departure to determine if Dr. Orb was, in fact, caring for his patients. No arrangement at all had been made with Dr. Ian Field. The Respondent was negligent and fell below the standard of care in the community by failing to provide proper follow-up care to Wendell Harrison. The Respondent specifically failed to examine Mr. Harrison and take appropriate steps to determine the cause of the blurred vision and discomfort complained of by Mr. Harrison on his third visit Having been made aware by an active patient that the patient was having ongoing continuous problems with the new contacts, the Respondent failed to make arrangements upon his departure from Tallahassee to ensure that Mr. Harrison would receive the necessary care to correct his problems, if they continued. As a result of failing to provide proper follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Mr. Harrison. The Respondent was negligent and fell below the standard of care in the community in his treatment of Maureen Sue Woodward by failing to provide her with proper follow-up care after she was fitted with contact lenses by the Respondent. After Maureen Woodward complained of bloodshot eyes, burning and tearing, the Respondent did not perform an examination of her eyes or contact lenses in order to determine the cause of these problems. Having been made aware of these problems, he did not make proper arrangements upon his departure from Tallahassee to ensure that Ms. Woodward would receive the necessary follow- up care to correct these problems in the event that the problems continued. By failing to perform the appropriate examinations and to provide the appropriate follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Maureen Woodward. There was insufficient evidence to show that the Respondent breached any standard of care in the community with regard to his treatment of Marianne Topjian and Barbara Magnusson Stathos. Neither of these patients testified in the administrative proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of Counts 6, 8, 9, and 11 of the First Amended Administrative Complaint and that he be required to pay an administrative fine of $1,000. It is further recommended that the Respondent be placed on probation for a period of six (6) months subject to such conditions as the Board deems appropriate to ensure that the Respondent is completely familiar with and follows the requirements for proper follow-up care with patients being fitted with contact lenses. It is recommended that Counts 1 through 5, 7, 10, and 12 through 16 of the Administrative Complaint be dismissed. DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Daniels, Esquire 127 East Park Avenue Tallahassee, Florida 32302 Ms. Mildred Gardner Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether AHCA found a deficiency at Cypress Manor sufficient to support the issuance of a Conditional license effective September 4, 1997.
Findings Of Fact Cypress Manor is a nursing home located in Fort Myers, Florida. Every year, Cypress Manor is surveyed by AHCA to determine whether the facility should receive a Superior, Standard or Conditional licensure rating. On September 4, 1997, AHCA conducted its annual survey of Cypress Manor. After the survey was completed, AHCA alleged that the facility was not in compliance with 42 CFR Section 483.25(c), the regulatory standard dealing with the prevention and treatment of pressure sores on residents.1 AHCA issued a survey report in which this deficiency was identified and described by a “Tag” numbered F314. AHCA is required to rate the severity of any deficiency identified during a survey with two types of ratings: “scope and severity” rating defined by federal law, and a Class rating which is defined by State law. After the September survey, AHCA assigned the F314 deficiency a scope and severity rating of “G” which, under federal regulations, is a determination that the deficient practice was isolated.2 The F314 deficiency was also given a State Classification rating of II which, under state law and Agency rule, is a determination that the deficiency presented an imminent threat to the health, safety or security of the residents. Because AHCA determined that there was a Class II deficiency at Cypress Manor after the September survey report, it changed Cypress Manor’s Standard licensure rating to Conditional effective September 4, 1997. By law, Cypress Manor was required to post the Conditional license it received in a conspicuous place near the entrance to the facility. See also, Section 400.23(8)(g), Florida Statutes. AHCA also placed Cypress Manor’s name on a list of facilities that received Conditional licenses which was distributed to and published by newspapers throughout Florida. These acts adversely affected Cypress Manor. After AHCA issued its September survey report, Cypress Manor was required to submit a Plan of Correction to AHCA. Although the plan submitted did not admit the allegations of the survey, it did provide a plan of corrective action that the facility would implement to address the deficiencies cited in the survey. The Plan also represented that all corrective action would be completed by October 1, 1997. AHCA returned to Cypress Manor on October 22, 1997, to determine if the facility had corrected the F314 deficiency alleged in the September survey report. After completing that survey, AHCA determined that the alleged deficiency had been corrected and issued Cypress Manor a Standard license effective October 22, 1997.3 Cypress Manor filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of the September survey, as well as AHCA’s decision to issue Cypress Manor a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted by Judge Pfeiffer on November 16, 1998. PRESSURE SORES AHCA alleged under Tag F314 of the September survey report that Cypress Manor failed to provide necessary care to one resident to prevent the development of her pressure sores, and failed to provide necessary treatments to that same resident and one other resident to promote healing of their pressure sores. A pressure sore is a loss of skin integrity, usually over a bony prominence, that is caused by unrelieved, prolonged pressure. Since pressure sores are created by pressure, removal of pressure from a resident’s skin is a primary focus of any care plan for a resident to prevent or treat pressure sores. Although it is impossible to determine with any degree of reliability the length of time that a resident can remain in one position before a pressure sore will develop or worsen, the accepted standard of preventative care for or treatment of pressure sores is that a resident should be turned and repositioned every two hours. Additionally, devices such as heel protectors, boots, or seat cushions can be used to help relieve pressure to those parts of a resident’s body on which pressure sores have developed. The risk of development or worsening of pressure sores may be exacerbated by factors other than pressure. A resident who is incontinent produces moisture that can increase the risk of pressure sore development. A diet which does not provide a resident with sufficient calories or protein may hinder the healing process. A routine preventative care plan to address the development or worsening of pressure sores should include interventions to keep a resident dry, nourished and hydrated, as well as relieve pressure to the resident’s body. Interpretative guidelines provided to AHCA’s surveyors in the State Operations Manual (“SOM”) suggest that, before the surveyors determine that a pressure sore that developed on a resident was avoidable, they must determine that the facility did not “consistently” administer routine preventative care. An isolated occurrence of a failure by a facility to administer appropriate preventative care will not preclude a finding that the development of a sore was unavoidable. Moreover, the failure to implement a routine care plan out of deference to a resident’s personal choices or lifestyle, or as a trade-off to meet other needs of the resident is appropriate to consider. Pressure sores can develop or worsen despite the consistent implementation of a routine pressure sore care plan due to a resident’s clinical conditions. A resident may have diseases which affect a resident’s ability to get oxygen to cells, to digest and process food, to have sensory feelings in arms or legs, or rid the body of waste that may make the development or worsening of pressure sores inevitable. A resident may have psychological conditions that make the resident unwilling to accept needed care. A resident does not have to be in a terminal state in order for these conditions to lead to the development of an avoidable pressure sore. When pressure sores appear on a resident, a nursing home will describe them in the resident’s medical record by one of four stages. A stage I area is one in which the skin is unbroken but has nonblanchable redness. A stage II area is a very shallow wound that may present itself as a blister or a small crater. A stage III wound is a deeper wound that penetrates subcutaneous tissue, while a stage IV wound is one which reaches muscles, tendons or bone. Staging a pressure sore is not an exact science. For example, a stage III pressure sore will frequently first appear on a resident as a small red area with no unbroken skin, and will not manifest its true character until the skin later breaks open as part of its natural healing process. Because stage III wounds can present themselves in that manner, it is not uncommon for a caregiver to initially document that the sore is a stage I or II sore. In those instances, the true initial character of a pressure sore can only be determined in hindsight or by looking at information other than the stages assigned to the sore, such as pictures, measurements and descriptions of the sore from the resident’s medical record. RESIDENT 4 Resident 4 was one of the two residents identified in the survey report as having received poor pressure sore care. She was admitted to Cypress Manor on February 19, 1997, with many conditions that compromised her body’s ability to prevent the development of pressure sores, including pneumonia, dehydration, cardiac arrhythmia, hypertension, dementia with psychotic agitation (that manifested itself through an unwillingness to cooperate with care or to get out of her wheelchair for prolonged periods of time) and a previous heart attack. Resident 4 was admitted to Cypress Manor with a stage I pressure sore on her left heel. Between her admission on February 19, 1997, and February 24, 1997, Resident 4’s left heel pressure sore was charted as moving from a stage I to a stage II sore and, by March 27, it was shown as a stage III sore. In early April, Resident 4 broke her hip and had to go to the hospital. While in the hospital, her left heel pressure sore became larger and she developed a stage III pressure sore on her right heel. Resident 4 returned to the facility and developed a stage II pressure sore on both her left and right buttocks on May 12, and a stage II pressure sore on the bottom of her left foot on August 31. Of the five pressure sores that developed on Resident 4 between February and September, the right and left buttocks’ sores and the sore on the bottom of her left foot developed while Resident 4 was at Cypress Manor. Each sore developed despite a comprehensive care plan for Resident 4 to prevent the development of sores that included turning and repositioning Resident 4 at least every two hours, incontinence care, heel protectors, a pressure relieving mattress, a top-of-the-line Roho gel cushion in her wheelchair and monthly dietary assessments. AHCA’s expert on pressure sores, Dr. Joel Mattison, conceded that the care plans that Cypress Manor developed to prevent pressure sores on Resident 4 were good. Cypress Manor’s expert on pressure sores, Theresa Vogelpohl, opined that the pressure sores developed by Resident 4 on her buttocks were unavoidable due to her clinical conditions. Resident 4 had pneumonia which prevented the facility from increasing Resident 4’s hydration, because increasing fluids would increase the risk that the pneumonia might worsen. She had an infection in her left heel which compromised her body’s resistance to pressure sore development. She had a fractured hip that increased her risk for blood clots and therefore increased her need to be up in a wheelchair. She had severe circulatory impairment and dementia and was resistive to care. Because the facility had a comprehensive care plan to address pressure sore development (that included a top-of-the-line gel cushion), Ms. Vogelpohl determined that Resident 4’s clinical conditions caused the development of her buttocks’ sores. Ms. Vogelpohl opined that the pressure sore that developed on the bottom of Resident 4’s left foot was also unavoidable. The facility put a Mediboot on Resident 4’s left foot in March to relieve pressure to the pressure sore that existed on Resident 4’s left heel. However, use of the Mediboot increased the Resident’s risk for development of pressure sores on the bottom of her foot, particularly when the Resident used her foot to propel herself in her wheelchair. Because the facility believed that the risk of harm to her left heel without the Mediboot was greater than the risk of development of a sore on the bottom of her foot with it on, the facility kept the Mediboot in place. The correctness of this decision was confirmed as the Resident’s left heel improved and she did not develop any pressure sores on her left foot until August 31, some five months after the Mediboot was placed on her. Thus, the ultimate development of the sore on the bottom of her foot was an unavoidable consequence of other needed care for the Resident. AHCA did not claim that all five of Resident 4’s pressure sores were avoidable, but instead stated that Cypress Manor could have prevented the development of the pressure sores on the Resident’s right and left buttocks.4 Additionally, AHCA did not allege that the development of those sores was related to the failure to assess Resident 4 and develop adequate care plan interventions to prevent the development of the sores. Rather, AHCA believed they developed solely because Cypress Manor failed to implement one component of its care plan program effectively. Dr. Mattison opined that Resident 4 developed preventable pressure sores on her buttocks in May because the facility left the Resident in her wheelchair for too long. He inferred that Resident 4 had been left in her wheelchair too long in May because the survey report stated that the surveyors observed the Resident in her wheelchair for extended periods of time during the September survey.5 However, no surveyor testified at hearing that these observations were made, and Dr. Mattison did not talk to the surveyors about their observations, did not personally observe the Resident and did not offer anything from the Resident’s medical record during that time period to support this conclusion. In addition to showing that Resident 4’s three in-house acquired pressure sores were unavoidable, Cypress Manor showed that it had a good treatment program for Resident 4’s pressure sores, and that all five of Resident 4’s pressure sores steadily improved after they developed. Resident 4’s right heel sore and her right buttock sore were completely healed by August 4 and August 15, 1997, respectively. The sore on the bottom of her left foot was completely healed within 30 days of its development. The left heal pressure sore progressed steadily and was nearly closed by the time of the September survey, and the left buttock pressure sore had been substantially reduced in size by the time of the September survey. Despite this record which showed improvement of Resident 4’s pressure sores, AHCA claimed that Cypress Manor did not provide all necessary treatments to promote healing of the wounds. The specific allegations made by AHCA were that Cypress Manor (a) failed to implement its pressure sore care plans for all of its residents, (b) left Resident 4 up too long in her wheelchair during the survey, (c) failed to update Resident 4’s pressure sore care plan and provide any new interventions after the left heel pressure sore became a stage III sore on March 27, (d) failed to provide all required dressing changes to Resident 4’s left heel between February 19 and March 27, 1997, and (e) failed to provide adequate dietary interventions to Resident 4 to promote healing of all of the pressure sores. AHCA did not present evidence to support the allegations described in (a), (b) or (c) above. AHCA also admitted that the treatments given to the pressure sores on Resident 4’s buttocks and the bottom of her left foot were good. Although AHCA failed to present any evidence in support of its claim that the facility should have updated Resident 4’s care plan on March 27, 1997, Cypress Manor disproved the allegation. AHCA’s belief that the plan should have been updated was predicated on the assumption that the sore had worsened from a stage I to a stage III sore. In fact, it had not. Although Resident 4’s medical records described the sore as a stage I sore that progressed to a stage III sore, they also initially described the sore as an area of red skin surrounding a blue area. The description of a blue area indicated that the sore had deep tissue damage associated with a stage III sore, which was confirmed when the sore later opened up and revealed that damage in March. Moreover, Resident 4’s medical records reflected that the sore had decreased in size between her admission and March 27, thereby indicating that the care plan the facility designed for the sore was appropriate. Finally, Cypress Manor demonstrated that the facility had implemented new interventions around March 20 (Mediboots and new treatments). Dr. Mattison was the only AHCA witness to testify with regard to AHCA’s claim that Cypress Manor failed to provide all dressing changes to Resident 4’s left heel between February 19 and March 27.6 He inferred that the facility failed to treat the wound between February 19 and March 27 because the facility failed to treat the wound once in April. However, he acknowledged that this belief was not supported by Resident 4’s February and March treatment records, and that his opinion was based upon a “paranoia” about care rather than facts. Cypress Manor presented Resident 4’s February and March treatment records which showed that Dr. Mattison opinion was incorrect, and that all needed treatments were provided to Resident 4. AHCA’s specific allegations regarding the absence of appropriate dietary care for Resident 4 were that, between May and September 1, 1997, Cypress Manor (a) waited until July 1 to implement a dietician’s May 23 recommendation for vitamin therapy for the Resident, (b) failed to provide Resident 4 with ordered supplements several times in August and twice during the September survey, and (c) failed to communicate the dietician’s recommendation for procalamine treatments for the Resident to the Resident’s doctor.7 AHCA’s surveyor also testified that Resident 4’s lab values taken in late July confirmed that Cypress Manor was not providing adequate dietary interventions to Resident 4 because they indicated she was suffering from severe protein malnutrition. Cypress Manor provided Resident 4 with a diet that was adequate to promote healing of her pressure sores. Dieticians in a facility can estimate the caloric and protein needs of a resident by using formulas such as the Harris Benedict Equation or the Agency Health Care Policy and Research (“AHCPR”) Guidelines for pressure ulcer healing. Those formulas are estimates of a resident’s nutritional needs based upon a resident’s height and weight, and provide for adjustments based upon factors such as resident obesity or stress caused by injury. Cypress Manor’s dietician assessed Resident 4’s nutritional needs when she was admitted to the facility, defined her as being at nutritional risk, and implemented aggressive dietary interventions to meet those needs. Based upon AHCPR guidelines, Resident 4 needed 1600-1900 calories per day and 64-83 grams of protein to meet her nutritional needs and promote healing of her pressure sores. Resident 4 was given a no-added-salt diet, fortified foods, whole milk, extra fruit juices and ice cream that provided her with over 4100 calories and 135 grams of protein per day, as well as twelve times the recommended daily allowance of Vitamin C. Resident 4’s consumption records demonstrated that she consumed enough of her diet to meet her assessed needs every month between April and August 1997. In addition to showing that it provided Resident 4 with an adequate diet to promote healing of her pressure sores, Cypress Manor also demonstrated that its dietician was assessing Resident 4’s nutritional status at least monthly, which was three times as frequent as regulations require. All of these interventions were imminently successful as Resident 4’s pressure sores on her right side healed while those on her left side steadily progressed toward healing between April and September of 1997. Additionally, the facility was able to maintain another important indicator of good nutritional status -- the Resident’s usual body weight -- within its normal ranges during this same time period. AHCA’s contention that Cypress Manor failed to implement a May recommendation by its dietician to add vitamin therapy to the Resident’s dietary regimen until July 1, did not establish that the facility failed to provide Resident 4 with adequate nutrition to promote healing of pressure sores. A primary benefit of vitamin therapy to a resident with pressure sores is that it provides Vitamin C to the resident. The surveyor apparently noted that, because the dietician recommended the Vitamin C, Resident 4 was not getting enough Vitamin C to promote healing. However, Resident 4 was already receiving twelve times her recommended amount of Vitamin C when the May recommendation for a multivitamin was made, and continued receiving that amount up to and after the facility began giving Resident 4 a multivitamin. The failure to provide Resident 4 with the multivitamin did not deprive her of any meaningful amount of Vitamin C and did not retard the healing process for Resident 4’s pressure sores. In fact, all four of the pressure sores that Resident 4 had on May 23 decreased in size by July 1. Likewise, AHCA’s contention that the facility failed to provide Resident 4 with Promod shakes several times in August and twice during the September survey did not establish that the facility failed to provide Resident 4 with adequate nutrition to promote healing of pressure sores. The surveyor apparently believed that, because the dietician ordered the supplements, the Resident was not receiving enough protein and calories from her existing diet. However, at the time the surveyors claim that Resident 4 was not receiving these supplements, Resident 4 was consuming 700-1300 more calories and 17-36 more grams of protein than she needed to promote healing of her pressure sores. Cypress Manor showed that the failure to provide Resident 4 with the supplements did not deprive her of any meaningful amount of protein or calories and did not retard the healing process for Resident 4’s pressure sores. AHCA’s contention that the facility failed to follow through with the dietician’s recommendation for procalamine treatments was based solely upon the fact that nothing was written in the Resident’s medical record to show that the facility contacted the doctor about the recommendation. In fact, the facility had contacted the Resident’s doctor and he rejected the recommendation. The facility informed the surveyors of this rejection and documented it in the Resident’s record at the time of the survey. Any delay in documenting the doctor’s rejection of the recommendation did not cause any harm to Resident 4 or deprive her of any needed dietary interventions. AHCA’s surveyor claimed that her opinion that the facility failed to adequately nourish Resident 4 was absolutely confirmed by lab values that were taken for Resident 4 at the end of July of 1997. The Resident’s albumin, pre-albumin, transferring and BUN levels were all lower than normal range and AHCA’s surveyor interpreted them to mean that the Resident was suffering from severe protein malnutrition. While lab values can be an indicator of the nutritional status of a resident, AHCA’s surveyor and the SOM guidelines acknowledge that it is not always appropriate to the use low values as proof that a resident is malnourished. Low lab values may indicate that a resident is ill rather than malnourished. Some residents will have low lab values regardless of the adequacy of their diets. Lab values cannot be considered the single indicator of a resident’s nutritional status, but must be interpreted in the context of the overall clinical picture of the resident. During the seven-month period chosen by the surveyors in which to evaluate Resident 4, she presented numerous compromising conditions. She had pneumonia, a broken hip, five pressure sores, and had received multiple rounds of antibiotic therapy. Additionally, she suffered from dementia, a condition that can affect a person’s metabolism. Low lab values are not unusual for a resident with these types of conditions. In light of the fact that Cypress Manor provided Resident 4 with an adequate diet to meet her nutritional needs, Resident 4’s low lab values were indicative of her compromised condition rather than a malnourished state. RESIDENT 8 Resident 8 was the only other resident who was identified in the survey report under Tag F314 and AHCA alleged that Cypress Manor failed to provide him necessary treatments to prevent worsening of his pressure sores. Resident 8 was admitted to Cypress Manor in August of 1997 with stage I pressure sores on both of his heels. He had a pressure sore care plan that included turning and repositioning, a pressure relieving mattress, incontinence care, heel protectors while in bed and treatments daily to his sores by the wound nurse. In addition to having pressure sores, Resident 8 was at risk for falls when he would attempt to walk on his own. Resident 8 was also dying from pancreatic cancer, and all of his care plans were tempered by the order that his comfort was the primary objective of any care offered to him. During one day of the survey, AHCA’s surveyor, Bill Sullivan, observed Resident 8 lying in bed with his shoes on without heel protectors on either heel. Because Resident 8’s care plan directed that he was to have heel protectors on while in bed, Mr. Sullivan cited the facility under Tag F314 for failing to provide necessary treatment to promote healing of Resident 8’s pressure sores. However, he acknowledged that neither of Resident 8’s pressure sores worsened while Resident 8 was at the facility. Dr. Mattison, AHCA’s expert on pressure sore care, contradicted Mr. Sullivan’s Tag F314 conclusions. Dr. Mattison testified that a single instance of a facility’s failure to follow a care plan did not violate the standards of the regulation. He further testified that Resident 8’s pressure sores were not going to heal because of the Resident’s terminal state, and that the Resident’s choices and comfort were a primary concern. For those reasons, Dr. Mattison testified that he did not believe that the facility failed to provide necessary care to Resident 8.8 Cypress Manor also demonstrated that there were valid reasons not to remove Resident 8’s shoes and put heel protectors on him every time he went to bed. Resident 8 frequently put himself to bed and got up on his own. The heel protectors that were ordered for Resident 8 were slick and increased his risk for falling if he attempted to walk in them. Accordingly, the facility did not put them on him during his day naps because of the risk that he might get up on his own and attempt to walk in them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order issuing a Standard rating to Cypress Manor and rescinding the Conditional rating. DONE AND ENTERED this 10th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 10th day of February, 1999.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer. Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED. Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violation of Section 466.028(1)(y), Florida Statutes set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent, Steven Rindley, has been licensed by the Department of Professional Regulation (the "Department",) Board of Dentistry (the "Board") as a dentist having been issued license number DN0004795. Respondent has been continuously licensed in the State of Florida since 1969. No evidence was presented to establish that his license has previously been revoked, suspended or otherwise disciplined. There have been a number of disputes between Respondent, the Department and/or the Board relating to charges and complaints filed against Respondent. Respondent contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising" dentist. Respondent has filed a federal court law suit against the Board and others based on these contentions. During the hearing in this case, Respondent testified vociferously regarding these issues. However, no competent evidence was presented to establish that the Administrative Complaint or Amended Administrative Complaint filed in this proceeding were initiated for improper purposes. Respondent treated a patient, E.B., from approximately November of 1987 through approximately February 9, 1988. Respondent's treatment of E.B. consisted of extracting certain teeth and fabricating an immediate partial lower denture. Respondent had previously treated E.B. in 1981 during which time he had fabricated full upper and partial lower dentures for the patient. As part of his treatment of E.B. in 1987-1988, Respondent extracted four lower front anterior teeth. The extracted teeth were very loose and were removed at the request and with the consent of the patient. On or about November 12, 1987, Respondent began fabricating a new lower partial denture for E.B. Respondent used E.B.'s lower right cuspid, which was his only remaining tooth, as an abutment for the new lower partial denture. The lower right cuspid had decay in it which required a filling. Respondent diagnosed, but did not treat this carious lesion in the retained tooth. The patient terminated the dentist/patient relationship prior to Respondent's addressing this problem. E.B. refused to allow Respondent to take x-rays as part of the treatment rendered in 1987-1988. Consequently, Respondent did not take any radiographs in connection with his treatment of E.B. during 1987 and 1988. Respondent did not specifically note the patient's refusal to permit x-rays in his dental records. While Respondent claims that he advised E.B. as to the desirability of taking current x-rays, the nature and extent of the conversation between Respondent and the patient regarding the need for x-rays was not established. Respondent used radiographs taken during his treatment of E.B. in 1981 to assist him in his diagnosis and treatment of E.B. in 1987-1988. While those radiographs were outdated, they did provide some useful information regarding tooth morphology and other matters. The evidence established that the teeth that were extracted were not salvageable and would have been extracted irrespective of what current x-rays may have revealed. Ideally, an x-ray should have been taken to determine how secure the lower right cuspid was prior to using it as an abutment for the lower partial denture. This is especially true since the tooth had a carious lesion. In addition, a root canal was done on this tooth at some prior time. Based upon his clinical observations, Respondent determined that the carious lesion was minimal and could be filled after the fabrication of the lower partial denture and that the tooth was stable enough to serve as an abutment. Petitioner has not provided sufficient evidence to rebut those conclusions or to establish that Respondent had insufficient information to reach those conclusions. X-rays are an important diagnostic tool that can be helpful in eliminating surprises and determining pathologies which may exist in a patient's mouth. The Board has not adopted any rules requiring the use of x-rays prior to rendering any specific types of dental services. While current radiographs would have been preferable in the treatment of E.B., the patient refused to permit an x-ray to be taken. As a result, Respondent proceeded with his treatment based upon his clinical observations and the prior radiographs of the patient. There is no evidence that E.B. was suffering from any pathologies or conditions which Respondent failed to detect due to the lack of current radiographs. The two experts who testified on behalf of Petitioner opined that it is below the standards of the community for a dentist to extract teeth and/or use an exising tooth as an abutment for a partial denture without the benefit of a radiograph. Neither of these experts was aware that the patient had refused to permit x-rays to be taken. When asked what they would do with a patient who refuses x-rays, they both said they would have refused to provide services to the patient. Neither of Petitioner's experts ever examined the patient E.B. Respondent's experts testified that, under certain circumstances and after advising the patient of the advisability of having the x-rays taken, they would have proceeded with the extractions and the restoration of the dentition as best they could. Respondent's experts admitted that there are certain situations when proceeding with treatment without the benefit of a radiograph would be below the minimum standard expected of a dentist in this community. However, they believe that a dentist could proceed with the treatments rendered in this case absent any clinical observations, prior history or diagnosis to the contrary. The testimony of Respondent's experts is deemed more persuasive and is accepted. The evidence did not establish that Respondent fell below the minimum standard of care by proceeding with treatment of the patient under the conditions of this case. E.B. became very agitated over the length of time it took to fabricate the partial denture and obtain an acceptable fit. The patient and Respondent had several verbal altercations regarding the dental work. In February of 1988, the patient terminated his treatment before all the work was completed. The patient ultimately refused to pay for the work and reported the matter to the Department.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Dentistry issue a Final Order finding the Respondent, Steven Rindley, not guilty of the allegations set forth in the Administrative Complaint and dismissing the charges. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of July, 1991. J. STEPHEN MENTON 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 18th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0648 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Subordinate to Findings of Fact 9. Adopted in substance in Findings of Fact 11. Rejected as vague and overborad. Rejected as unnecessary and subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 10. Subordinate to Findings of Fact 7 and 10. Subordinate to Findings of Fact 10. Subordinate to Findings of Fact 15 and 16. The Respondent's Proposed Findings of Fact Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection. Addressed in the preliminary statement. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 6. Rejected as unnecessary and overbroad. Subordinate to Findings of Fact 8, 10 and 13. Subordinate to Findings of Fact 8. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 7 and 10. Subordinate to Findings of Fact 14. COPIES FURNISHED: Jan D. Langer, Esquire Adorno & Zeder 2601 South Bayshore Drive Suite 1600 Miami, Florida 33133 Joel Berger Dental Legal Advisers 1550 Madruga Avenue Suite 230 Coral Gables, Florida 33146 William Buckhalt, Executive Director Department of Professional Regulation, Board of Dentistry 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case concerns whether Respondent violated Section 484.014(1)(f), Florida Statutes, in the manner alleged in an administrative complaint and, if so, what penalties should be imposed.
Findings Of Fact Respondent is, and at all times material has been, a licensed optician in the State of Florida, having been issued license number DO 2390 on November 29, 1984. At all times material, Respondent has operated, or has assisted in the operation of, a business named Fast Eyes Optical, located at 8246 Jog Road, Boynton Beach, Florida 33437. On or about January 3, 2002, customer R.S., accompanied by a friend (L.E.), visited Fast Eyes Optical, where they were attended by Respondent. Both R.S. and L.E. decided they would each buy a pair of Oakley sunglasses. Respondent quoted an initial price of $634.00 per pair for the Oakley sunglasses with prescription lenses. Ultimately, Respondent agreed to sell the Oakley sunglasses for $500.00 per pair. At the time in question, the Oakley sunglasses came from the manufacturer with non-prescription lenses made from a material known as polycarbonate. Polycarbonate lenses are noted for being impact resistant. Polycarbonate lenses are more impact resistant than lenses made of a plastic material known as CR-39. Polycarbonate lenses are particularly desirable for people who frequently engage in sports or otherwise lead a very active lifestyle in which they are at greater risk of some form of impact to their eyewear. Plastic lenses made from CR-39 have better optical characteristics than polycarbonate lenses, and, from a visual acuity point of view, are a better choice material than polycarbonate. R.S. wanted to have prescription lenses in his new Oakley sunglasses. Respondent told R.S. that Respondent could put prescription lenses in the new Oakley sunglasses that would duplicate the prescription in the glasses R.S. was wearing when he came into the store, but that he would have to send off for the prescription lenses for the Oakley sunglasses. It was ultimately agree that Respondent would obtain prescription lenses for the new Oakley sunglasses and that when the new sunglasses were ready, Respondent would mail them to R.S. at R.S.'s home in Ohio.1 Using a device called a lensometer, Respondent examined the glasses R.S. was wearing when he came into the shop and determined the prescriptions that were in the lenses in those glasses. Respondent ordered lenses for the Oakley sunglasses that matched the prescriptions in the glasses R.S. was wearing that day. While R.S. was still in the shop, Respondent explained to him that Oakley did not (at that time) make prescription lenses for the frame model R.S. was buying, that the prescription lenses for the sunglasses would not be Oakley lenses, and that the lenses would be made from a plastic material called CR-39 because Respondent thought CR-39 was a better choice lens material in view of the purposes for which R.S. was buying the sunglasses.2 In due course Respondent mailed a pair of Oakley sunglasses to R.S. in Ohio. Shortly after receiving the sunglasses, R.S. went on a trip to Mexico. While in Mexico, and while wearing the sunglasses he had received from Respondent, R.S. fell down at least three different times at the same place on the same set of stairs in the same Mexican restaurant. His last fall on those stairs caused R.S. to have a bruised chin, a bruised wrist, and a broken big toe on his left foot.3 Shortly after returning from his trip to Mexico, R.S. went to an optician in Ohio and asked the Ohio optician to examine the Oakley sunglasses he had purchased from Respondent. Upon examining the sunglasses made by Respondent, the Ohio optician communicated the following conclusions to R.S.: The right lens in those sunglasses did not match R.S.'s prescription, the lenses were made from CR-39 plastic material, and the lenses were chipped.4 On March 14, 2002, the Ohio optician sold R.S. a pair of prescription polycarbonate lenses in his correct prescription for his Oakley frame, and replaced the plastic lenses that Respondent had originally placed in the Oakley frame. The Ohio optician charged $321.00 for the new lenses. The polycarbonate lenses sold by the Ohio optician were not Oakley lenses. Not long after his visit with the Ohio optician, R.S. communicated with Respondent and complained about the things the Ohio optician had told him were wrong with the lenses furnished by Respondent. Respondent told R.S. that R.S. should mail the sunglasses to Respondent and Respondent would correct any problems with the sunglasses. R.S. refused to send the sunglasses back to Respondent because he no longer had any confidence in Respondent. Instead, R.S. asked Respondent to send him a refund of approximately $300.00 to cover the cost of the lenses R.S. bought from the optician in Ohio. Respondent refused to send a refund to R.S., but repeated his offer to make any necessary corrections to the sunglasses. Respondent has a policy of not giving refunds to customers, but Respondent also has a policy of doing whatever is necessary to correct any problems with any of the products he sells.5
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Opticianry enter a Final Order concluding that the violations charged in the Administrative Complaint should be dismissed because the evidence is insufficient to prove the violations alleged by clear and convincing evidence. DONE AND ENTERED this 1st day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2004.
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
Findings Of Fact Respondent, Mark N. Dobin (Dobin), was at all times material hereto licensed to practice optometry in the State of Florida, and held license number OP 0001202. Inadequate Eye Examinations On November 5, 1985, Alison Lichtenstein, an investigator employed by the Department of Professional Regulation (DPR), entered Dobin's offices in Margate, Florida. Using the assumed name of Alison Smith, Ms. Lichtenstein, who was wearing glasses at the time, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Lichtenstein failed to include the following minimum proceduresrequired by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire whether Lichtenstein was taking any medication; (b) an external examination; (c) a pupillary examination; (d) visual field testing; and (e) a biomicroscopy. On November 5, 1985, Mary Pfab, a licensed optometrist in the State of Florida, entered Dobin's offices in Margate, Florida. Using the assumed name of Mary Parker, Ms. Pfab, who was wearing contact lenses, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Pfab failed to include the following minimum procedures required by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire of Pfab's personal medical history, her medications, her family medical history, or her family ocular history; (b) a pupillary examination; and (c) visual field testing. An optometrist's failure to perform the minimum procedures required by Rule 21Q-3.007, Florida Administrative Code, can have a profound impact on the results of his examination. Pertinent to this case, the procedures omitted by Dobin were of import because: Many medications mask the symptoms of a number of eye diseases. A failure to ascertain what medications a patient is taking could, therefore, result in the optometrist missing or not checking for certain diseases. A personal medical history is likewise important to an informed examination. Pre-existing injuries and diseases can have a profound impact on an optometrist's findings, and the cause of that finding is important too the ultimate diagnosis and treatment of the patient. The patient's family medical and ocular history is also important to an informed examination. For example, a person with a family history of diabetes, cataracts or glaucoma is more likely to have such disease than one without such family history. Consequently, if alerted by such information, the optometrist could diagnose the presence of such disease and prescribe treatment at a much earlier stage of its development than might ordinarily be the case. A pupillary examination evaluates the nervous system which connects the eye and retina to the brain. A failure to perform such examination could cause the optometrist to overlook the existence of a brain tumor or other forms of nerve damage. Visual field testing is a diagnostic tool used to detect the presence of gross nerve damage, traumatic cataracts, glaucoma, diabetes, and certain peripheral retinal diseases. Absent such test, these diseases might not be detected. In this case, the import of Dobin's failure to perform a visual field test was heightened. Visual field testing and tonometry are two of the three diagnostic procedures utilized to detect glaucoma. Where, as here, tonometry was not performed, the importance of visual field testing is more significant to the early detection of that disease. Biomicroscopy is a diagnostic tool used to detect the presence of bacterial conjunctivitis, corneal ulcers, corneal scars, blepharitis, and some lid injuries. Absent stich test, these diseases or injuries might not be detected. An external examination is important to the detection of skin cancer, skin lesions, blepharitis, and bacterial or allergic conjunctivitis. Absent such examination, these ocular problems might be overlooked. Inadequate Patient Records Contrary to the requirement of Rule 2IQ-3.007, Florida Administrative Code, the patient case record for Ms. Lichtenstein and Ms. Pfab did not reflect whether the following tests were performed or if performed the results: (a) a complete patient history, (b) an external examination, (c) a pupillary examination, (d) a visual field test, (e) an internal examina- tion, (f) a biomicroscopy, and (g) diagnosis and treatment. The inadequacy of Dobin's patient records would adversely affect his ability, and that of a subsequent treating optometrist, in treating these patients. Absent a medical history and the results of the tests performed, an optometrist is severely hampered in his ability to track the progress of diseases, or to detect their onset. Exercising Influence For Financial Gain Petitioner asserts that Dobin, by accepting a fee for a vision analysis that did not comply with the minimum requirements of Rule 2IQ-3.007(1), Florida Administrative Code, violated Section 463.0l6(1)(m), Florida Statutes. That section prohibits: Exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party. Petitioner's proof was not persuasive. While the patients in this case may not have received the minimum examination mandated by law, I am not persuaded that such failure constituted the exercise of influence to exploit a patient contemplated by Section 463.016(1)(m). There was no showing that Dobin recommended unnecessary tests or unnecessary products, or that he otherwise sought to influence their choice of procedures or materials for financial gain. Such being the proof, the Petitioner failed to demonstrate a violation of Section 463.016(1)(m) Unlicensed Practice Of Optometry Petitioner further asserts that Dobin's "association" with Eye-Wear Glasses, Inc., his landlord, violated the provisions of Section 463.0l4(1)(c), Florida Statutes, and Rule 2IQ-3.008, Florida Administrative Code. Section 463.014(1) provides: (c) No optometrist shall engage in the practice of optometry with any organization, corporation, group, or lay individual. This provision shall not prohibit optometrists from employing, or from forming partnerships or professional associations with, optometrists licensed in this state. And, pertinent to this case, Rule 2IQ-3.008 provides: No licensed practitioner shall enter into any agreement which adversely affects the licensed practitioner's exercise of free, independent and unlimited professional judgment and responsibility, or which permits any unlicensed person or entity to practice optometry through the licensed practitioner by controlling and/or offering `optometric services to the public. The professional judgment of a licensed practitioner should be exercised solely for the benefit of his patients and free from any compromising influences and loyalties. The Board will consider the circumstances of the practice including but not limited to, the following factors in determining whether a violation of Section 463.014, F.S., has occurred: Whether the licensed practitioner holds himself out to the public as available to render professional services in any manner which implies that the licensed practitioner is professionally associated with or employed by an entity which itself is not a licensed practitioner. For purposes of this rule "entity" shall refer to any corporation, lay body, organization, individual or commercial or mercantile establishment which is not a licensed practitioner. The term "commercial or mercantile establishment" shall include, but not be limited to, an establishment in which the practice of opticianry is conducted pursuant to Chapter 484. Whether the professional office space occupied by the licensed practitioner is such that it does not clearly and sufficiently indicate to the public that his practice of optometry is independent of, and not associated with the entity. Whether the licensed practitiQner has a telephone listing and number that is separate and distinct from that of the entity or whether the phone is answered in a manner that does not identify his optometric practice or whether the telephone is answered in a way that indicates that the licensed practitioner is professionally associated with or employed by the entity. Whether the entrance to the building or commercial or mercantile area in which the licensed practitioner's practice is located sufficiently identifies that the licensed practitioner is practicing his profession independent of, and not associated with the entity. Whether advertisements, including those placed in a newspaper and/or telephone directory, imply that the licensed practitioner is professionally associated with, or employed by an entity. Whether the licensed practitioner maintains full and total responsibility and control of all files and records relating to patients and the optometric practice, in accordance with Rule 2IQ-3.003. Whether the licensed practitioner has full and complete control and discretion over fees charged to patients for his services and billing methods. Whether the provisions of a lease or space agreement between the licensed practitioner and the entity operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Whether the arrangements for the furnishing of equipment or supplies to the licensed practitioner operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Eye-Wear Glasses, Inc., is owned and operated by two licensed opticians. By a "rental agreement" dated October 12, 1983, Eye-Wear Glasses, Inc., and Dobin entered into an agreement whereby Dobin was sublet space within Eye-Wear Glasses' premises. That "rental agreement" provided: RENTAL AGREEMENT BETWEEN EYEWEAR GLASSES INC. AND DR. MARK N. DOBIN Rent shall be $1.00 per month, and shall continue for a 2 year period with continuing 2 year options. This lease will go into affect on October 17th 1983. The rent of $1.00 per month shall include water, electricity, and air conditioning. Dr. Mark N. Dobin will be responsible to supply all equipment, stationary, and supplies needed to run an Optometric Office. Dr. Mark N. Dobin will have a phone installed at his own expense and his monthly bill along with Yellow Pages advertising c shall be paid by him. Dr. Mark N. Dobin will be allowed to advertise independent of Eyewear Glasses Inc. at his own expense. A key allowing access to the premises shall be given to Dr. Mark N. Dobin. Fees for Services performed by Dr. Mark N. Dobin, will be determined by Dr. Mark N. Dobin and shall be collected independent of those fees from Eyewear Glasses. Being a private entity, Dr. Mark N. Dobin shall have the right to determine his own office hours, days worked and vacation time, but he shall try to coordinate these days with those of Eyewear Glasses Inc. if this is possible. Renter, Dr. Mark N. Dobin, has the option of selling his practice and its contents to another Eye Doctor. This sale may include all records and files of patients belonging to Dr. Mark N. Dobin. At the time of sale, Eyewear Glasses Inc. has the right to renegotiate the lease, but not to alter it in such a way as to make the sale of the practice uninviting. Before the sale is finalized a 3 month trial period may be requested by either party. If Dr. Mark N. Dobin is unable to sell his practice, Eyewear Glasses Inc. has the right of first refusal to purchase his practice or his equipment. If the office is unoccupied for a period of 30 days, Eyewear Glasses Inc. has the option of subleasing the practice to another Eye Doctor, until which time the practice is sold or Dr. Mark N. Dobin returns. Dr. Mark N. Dobin has the right to hire another Eye Doctor to work his office during vacation time, or other times when he is not available. If Eyewear Glasses Inc. is not happy with the performance of said Eye Doctor. it may request that another Doctor be hired by Dr. Mark N. Dobin, but the final decision shall be his. Dr. Mark N. Dobin has the right to hire c an employee at his own expense, to assist in his office. A key to the premises may be given to said employee, but permission must first be granted by Eyewear Glasses inc. If either partner of Eyewear Glasses Inc. decides to sell his share of the corporation to the other, all points of this lease agreement shall remain in affect. If both owners agree to sell their share of the corporation, Dr. Mark N. Dobin shall have the right of first refusal to purchase Eyewear Glasses Inc. and its contents. Eyewear Glasses Inc. agrees to build a partition at its own expense in order to meet Florida State Optometric Board requirements. A Covenant of Restriction with a radius of 5 miles shall go into affect 2 years from the beginning of this lease, and shall last for a period of 3 years from the termination of this lease. Dr. Mark N. Dobin shall not sell eyeglasses or other optical excessories, excluding all items pertaining to the sale and dispensing of contact lenses. The space occupied by Dobin, which consisted of approximately 248 square feet, was located at the rear of the optician's store, and accessible by way of a sliding glass door from the store or through a back glass door from the shopping mall area. Consequently, customers of either business had an unrestricted view and access to the business of either profession. Considering the physical layout of the premises, as well as the view of the premises afforded by Petitioner's exhibit 5, the proof established that Dobin held himself out to the public in a manner that implied he was professionally associated with or employed by Eye-Wear Glasses, Inc. Indeed, the "rental agreement" itself depicts a business association more far reaching than that of landlord and tenant, and served to impair Dobin's exercise of free, independent, and unlimited professional judgment and responsibility. 1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOM)MENDED that Respondent, Mark N. Dobin, be placed on probation for twelve (12) months, and that an administrative fine of $3,000 be imposed upon him. DONE AND ORDERED this 24th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4484 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2. 4. Addressed in paragraph 3. 5-6. Addressed in paragraph 2. 7-9. Addressed in paragraph 4. 10. Addressed in paragraph 5. 11-12. Addressed in paragraph 4. 13-22. Addressed in paragraph 6(a) -(g). 23-24. Addressed in paragraph 7. 25. Addressed in paragraph 8. 26. Addressed in paragraphs 9-10. 27-31. Addressed in paragraphs 11-13. COPIES FURNISHED: Phillip B. Miller, Esquire c Robert D. Newell, Jr., Esquire 102 South Monroe Street Tallahassee, Florida 32301 Mark N. Dobin 7384 West Atlantic Boulevard Margate, Florida 33063 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material hereto, Respondent was a licensed dentist in the State of Florida, holding license No. DN0005282. On or about March 31, 1981, Ellen Canton went to Respondent's dental office to have a set of dentures made. Impressions were taken on this initial visit, and the dentures were delivered to Mrs. Canton by Respondent on the following day. On the day the dentures were delivered, some adjustments were made to the dentures by Respondent prior to Mrs. Canton's departure from his office. The evidence in this cause is unrefuted that at the time Mrs. Canton left Respondent's office, the dentures were in centric occlusion, and seated properly to the extent that they did not dislodge. Shortly after leaving Respondent's office, however, Mrs. Canton began to experience problems with the dentures. Among these problems were sore spots on her gums due to unsatisfactory fit, and the dentures becoming easily dislodged. However, because of a television news story which Mrs. Canton saw concerning dissatisfaction of some of Respondent's patients with his work, Mrs. Canton never returned to Respondent's office for adjustments to be made in her dentures. In fact, Mrs. Canton never advised Respondent of the problems she had experienced after leaving his office. However, on June 4, 1982, Mrs. Canton wrote a letter to Respondent at his dental office requesting that he release her dental records to her. On June 7, 1982, one of Respondent's employees responded to Mrs. Canton's request and informed her that her dental records could not be released. At the time of these communications, Respondent's office policy was not to release the dental records themself to patients, at least in Part because of a lack of copying facilities. In addition, Respondent was unaware that patients were entitled to receive copies of dental records upon demand. The record in this cause is, however, clear that Mrs. Canton was subsequently furnished all the information in Respondent's control, which apparently was limited to information on a three-by-five index card containing the patient's name, address, telephone number, and the fact that the patient was fitted with a full set for dentures at a cost of $150.00. Mrs. Canton's records were limited to this skeletal information due to the fact that no procedure other than taking an impression and fitting her with her dentures was performed. In the Administrative Complaint, Respondent is charged with failing to meet acceptable standards of practice in his treatment of Mrs. Canton as follows: The upper dentures have no retention. The buccal flanges are over-extended and any action of the musculature in the vestibule dislodges them. There is no post-dam. Teeth on the new dentures are long. The lower denture does not fit well. It is long in the lingual flange area and does not seat at all. When the upper and lower dentures are seated, the occulsion is end-to-end; the bicuspids are not in occlusion. The only contact is in the anterior and molar regions. Upon opening, both dentures dislodged. The patient cannot tolerate both dentures at the same time; the increased vertical dimension causes breathing problems. At the time Mrs. Canton visited Respondent, she was wearing a set of dentures that she had worn for approximately 17 years. Because of a problem with "gagging" the post-dam had been removed from this old set of dentures. In view of this history of gagging, Respondent also removed the post-dam from the upper dentures with which he fitted Mrs. Canton. Removal of the post- dam reduces retention, as a result of which, Respondent determined it necessary to over-extend the buccal flanges to attempt to increase retention. Respondent took this step with a view toward making any adjustment that might be necessary after the patient had worn the dentures for a period of time. However, because Mrs. Canton did not return to Respondent's office for these adjustments, Respondent was unable to correct any problems associated with the flanges. There is no credible evidence of record that would in any way establish that removing the post- dam and extending the buccal flanges in order to seek increased retention constitutes a departure from accepted standards of dental practice. Some of the teeth on the dentures Respondent furnished Mrs. Canton appeared to be approximately one and one-half millimeters longer than "normal." The evidence is clear, however, that this situation is easily remedied by simple adjustments, and the only problem associated with the teeth being too long is essentially cosmetic. There is no evidence of record in this cause to establish that the existence of these facts constitutes a departure from minimum acceptable standards of dental practice. The lower denture fabricated by Respondent for Mrs. Canton is long in the lingual flange area. Respondent purposely constructed the denture in this fashion to attempt to increase retention. As with the upper denture, Respondent's intention was to make any adjustment necessary should the longer flanges prove uncomfortable to the patient, but was never afforded that opportunity as a result of the patient's election not to return for adjustment. As conceded by Petitioner's expert, Mrs. Canton had a very compromised lower ridge which would have made it difficult to have ever gotten an extremely stable lower denture. There is no evidence of record to establish that Respondent's attempt to increase retention by over- extending the lingual flange and attempting to make any subsequent adjustments necessary, constitutes a departure from accepted standards of dental practice. Evidence in this cause is unrefuted that the dentures were in proper occlusion at the time Mrs. Canton left Respondent's office. Petitioner's expert, who examined Mrs. Canton and the dentures some 18 months thereafter, conceded that it was "very possible" that occlusion was proper at the time Respondent fitted Mrs. Canton with her dentures. Accordingly, there is no evidence to establish that Respondent departed from minimal acceptable standards of dental practice insofar as the occlusion of the dentures is concerned at the time he fitted Mrs. Canton with them. The record in this cause clearly establishes that Mrs. Canton's dentures dislodge easily upon any action of the musculature in her jaws. This apparently is caused by the over- extended flanges on the upper and lower dentures, by which Respondent sought to obtain greater retention as a result of the lack of a post-dam in the upper denture and the compromise condition of Mrs. Canton's lower ridge. As noted above, this problem is subject to easy adjustment by reducing the over extension of the flanges. However, because of Mrs. Canton's failure or refusal to return to Respondent's office, he was unable to perform these adjustments. Again, there is no credible evidence of record to establish that Respondent departed from accepted standards in this regard. At the time of her visit to Respondent, Mrs. Canton had decreased vertical occlusion with the old denture which she had worn for 17 years. As a result, it could reasonably have been expected that Mrs. Canton might eventually have either joint problems or distortion in her face. In an attempt to address the problem of decreased vertical occlusion, Respondent attempted to increase her vertical dimension by approximately 5 millimeters. Respondent advised Mrs. Canton at the time he fitted her with the dentures that she might experience some discomfort as a result of this large increase in her vertical dimension, and that she should return for adjustment if this occurred. With the new denture in place, there was difference of three millimeters between Mrs. Canton's resting tonic vertical dimension and the dimension of occlusion. This difference is within acceptable limits of practice. Further, there is no evidence of record that Mrs. Canton suffered any breathing problems as a result of increased vertical dimension in the new dentures.
