The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH 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 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Respondents Respondent, John A. Rowe, D.D.S., received his license to practice dentistry in the State of Florida on or about July 30, 1982 and has been so licensed continuing to the present under license #DN 009364. Since 1977, Dr. Rowe has been board-certified in oral and maxillofacial surgery and he practices in that specialty. Dr. Rowe's license to practice dentistry in the State of Tennessee was suspended on or about October 3, 1983, and was reinstated on or about September 28, 1984. He neglected to inform the State of Florida Board of Dentistry of that disciplinary action, although he did provide to the Board a copy of the civil complaint when he applied for licensure in Florida. In early 1985, Dr. Rowe moved his practice from Tennessee to central Florida and began working with Dr. Frank Murray. During the time that he treated the patients at issue in this proceeding, Dr. Rowe was a salaried employee and part owner of a clinic, Central Florida Dental Association, in Kissimmee, Florida. He now has his own practice in Kissimmee. Ralph E. Toombs, D.D.S., has at all times relevant to this proceeding been licensed to practice dentistry in the State of Florida under license #DN 007026. During the period in question, 1988, Dr. Toombs was an associate at Central Florida Dental Association. The Clinic and its Procedures During the relevant period, 1988-89, Central Florida Dental Association, P.A., was owned by a group of dentists who actively practiced at the clinic. Dr. Frank Murray was the majority shareholder and President. Dr. Rowe was a shareholder; Dr. Toombs owned no interest and was an associate. The dentist/owners were under employment contracts and received salaries. By all accounts, Dr. Murray made the operational decisions affecting the clinic and its patients. He admitted that shareholders' votes were based on percentage of ownership. (Tr.-p.114) Dr. Murray set the fees for billing and reviewed patients' files. The procedures for billing were computerized. Clerical staff in the insurance department filled out claim forms that were signed in blank by the dentists, or they signed the dentists' names to the forms. Around 1987 or 1988, Dr. Murray acquired computerized diagnostic equipment for the clinic. At first Dr. Toombs, who was trained and familiar with the equipment, performed the testing. Later, Dr. Murray hired Maggie Collins to operate the equipment. Maggie Collins administered the diagnostic tests to the patients at issue in this proceeding. By the time Dr. Rowe left Central Florida Dental Association in 1989, his relationship with Dr. Murray had deteriorated, giving rise to acrimonious litigation. Patient Records After Dr. Rowe left, he had no further access to, or control over the dental records for the eight patients at issue in this proceeding. These Central Florida Dental Association records were at all times maintained under the case, custody and control of Dr. Murray and his employees. When the records were subpoenaed by the Department of Professional Regulation, copies of the records were provided and the clinic employees certified that the records provided were complete. They were, in fact, not complete, as approximately 426 additional pages were included in the originals subpoenaed by counsel for Dr. Rowe, which pages had not been provided to DPR. Many of the documents not copied for DPR related to billings. In some instances Dr. Rowe's daily reports or consultations were missing from the original records and from the copies. And, in at least one case the original record contains an entirely different version of a specific radiology consultation conducted by Dr. Rowe on 5/3/89. (Compare Rowe Exhibit #2 with Pet. Exh. #5-1). No evidence was provided to conclusively explain the discrepancies, and the records themselves are an unreliable source of evidence with regard to the allegations that Dr. Toombs failed to maintain adequate records for patient J.T. Her file contains only one X-ray from Central Florida Dental Association, and no explanation of tests, diagnoses or the continuing contacts she remembers with Dr. Toombs. The patient specifically remembers more than one X-ray being done at the clinic. The Patients At various times during 1987, 1988 and 1989, Dr. Rowe was consulted by these patients: H.W., E.M., M.Z., R.P.V., H.D., R.M. and S.R. Each had been involved in an automobile accident or other traumatic injury and each complained of headaches, pain, dizziness, and other symptoms. After examination and throughout a course of testing and treatment, these various diagnoses of TMJ disorders by Dr. Rowe were commonly found in the above patients: trismus, closed lock, and mandibular atrophy. While other diagnoses were made in the individual cases, the evidence at hearing and Petitioner's proposed recommended order address only these. Patient J.T. first consulted Dr. Toombs in August 1988, after suffering headaches which she understood from her regular dentist and her physician might be caused by dental overbite. She had a friend who had some work done by Dr. Toombs, so she looked him up in the yellow pages under "orthodontics" and made an appointment. After testing and X-rays and a brief consultation with Dr. Rowe, J.T. understood that Drs. Toombs and Rowe were suggesting jaw joint replacement, removal of some teeth and braces. She was advised to get another opinion and she returned to a prior treating physician. She did not follow up with treatment from Dr. Toombs or Rowe. Testing In addition to being administered X-rays, the above patients were tested on myotronics equipment at Central Florida Dental Association by Maggie Collins, a trained diagnostic testing operator hired by Dr. Frank Murray. Myotronics is electronic equipment developed by a Seattle, Washington company over the last twenty years. The equipment is used in diagnosis and sometimes treatment of TMJ functions, and includes sonography, which records the vibration of sound; electromyography (EMG), which measures the electrical activities of the muscles of the face; and computerized mandibular scanning (CMS), which measures a range and velocity of mandibular movement, i.e., the opening and closing of the jaw. Myotronics can also include a device like a TENS unit used for pulsating. The machines produce printouts which are available for interpretation later by the appropriate professional. On each occasion of administering the myotronics tests to the patients at issue, Maggie Collins was alone, undirected by Dr. Toombs, Dr. Rowe or other clinic staff. She utilized testing procedures she had been taught and had used in her prior dental clinic experience and which she continues to use in the clinic where she now works. In some cases, Ms. Collins administered the same tests twice on a single visit. In those cases, after the first series, the patient was pulsated with a TENS before the series was administered again to measure the effectiveness of the pulsating. This is a standard practice. The full testing takes two and a half to three hours. Diagnoses The TMJ, or temporomandibular joint of the jaw, is between the temporo bone and the mandible. A disc is between the condyle (bone) and the fossa (socket). As the mouth is opened, the bone moves and the disc moves slightly at first, until the mouth is opened wider and the disc rotates around the axis of the condyle. According to Respondent Rowe's TMJ expert witness, John Biggs, D.D.S., and as evidenced by the testimony of all of the experts in this proceeding, terminology in TMJ is open to interpretation and there is not a complete union of agreement on every single thing in the field of TMJ. (tr.-p.790) "Closed lock" can legitimately mean that the disc is out of place and is not recaptured as the mouth is closed. The term, "closed lock", can also be applied to the mandible, meaning the jaw does not open normally because it meets resistance from muscle spasm or tissue impediment from the disc. An acute closed lock would impede the opening more than a chronic condition, as the mandible may, over time, stretch the ligaments. An acute closed lock could limit the mandibular opening to 21, 25 or even 27 mm; whereas a chronic closed lock might allow an opening of up to 40 mm, and sometimes more, according to Petitioner's expert, Dr. Abdel-Fattah (rebuttal deposition, 12/2/92, p.71). The patients' files in evidence reveal findings of limited mandibular openings from a variety of sources, including manual and electronic measurement. Those openings are well within the ranges described above for closed lock and most are within the "acute closed lock" range. Another term for "closed lock" is "anterior displacement of the disc without reduction". This means the disc is not recaptured on the condyle. When a sonogram reflects sounds or clicking in the joint, analysis of those sounds is helpful in diagnosing TMJ disorders. Literature appended by Petitioner to the rebuttal deposition of its expert supports Dr. Moretti's opinion that the presence of clicks can still mean that a closed lock exists. (Pet. #3 to deposition of Reba A.Abdel-Fattah, pp. 1 and 3, figure 5 Rowe Ex. #10, p.18) Trismus is more appropriately designated a symptom rather than a diagnosis. It means spasm of the muscles of mastication. The pain of the symptom often interferes with the opening of the mandible, and for that reason, trismus is sometimes used to also denote "limited opening". It is apparent from the patient records that Dr. Rowe used the term interchangeably, and for that reason, findings of trismus where a patient is able to open to 40 mm are not inconsistent. Moreover, trismus as a symptom may be more or less pronounced under a variety of circumstances on different occasions with the same patient. For example, the patient may experience severe trismus upon rising in the morning and find that it subsides later. Mandibular atrophy is indicated by bone loss. Reviewing the same X- rays for patient E.M., Petitioner's and Respondent Rowe's experts came to opposite conclusive opinions as to whether Dr. Rowe's diagnosis of this condition in E.M. was proper. Mandibular atrophy was also diagnosed in patient S.R., but Dr. Fattah did not find a problem with that diagnosis. Treatment Dr. Rowe's treatment of the patients in issue included closed manipulation and the insertion of orthodic splints. Both are noninvasive, conservative procedures. Petitioner alleges that closed manipulation was unnecessary in the absence of closed lock, and that the method of insertion of the splints by Dr. Rowe was improper. Closed manipulation of the mandible, sometimes called "closed reduction", is manual manipulation to attempt to recapture the disc. The procedure can be done several ways, one of which is to approach the patient from the back, place the hands on the mandible and relax the mandible to where it can be opened, moving the disc into place. The patient is in a supine, or reclined, position in the dental chair. Once the disc is manually repositioned, it is important to keep the patient from closing back on his posterior teeth and losing the disc again. To avoid this, an orthodic splint is inserted and fitted in the patient's mouth. Even when manipulation does not unlock the mandible, the practitioner might want to place the splint for support. The splint can be placed with the patient sitting erect or reclined. Dr. Rowe generally places the splint while the patient is reclined in the dental chair. Adjustments may be made after the splint is initially placed and the patient is sometimes seen twice on the same day or on a weekly basis. Because it is important for the patient to be relaxed, the supine or reclining position is preferred. Insurance Claims Insurance claims at Central Florida Dental Association were handled by clerical staff in a separate department. Claim forms were commonly signed by those staff for the treating dentist, but there is no evidence that the signatures were authorized for any specific claim. Another wholly inappropriate practice at the clinic was to have the dentists sign blank forms to be filled out later. Dr. Rowe testified that Dr. Murray required that they do this, and that he did sign blank forms. Those forms include this printed statement over the signature line: NOTICE: Under penalty of perjury, I declare that I have read the foregoing, that the facts alleged are true, to the best of my knowledge and belief, and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. (Pet. Ex. 12) There is no evidence that Dr. Rowe or Dr. Toombs filled out the claim forms in issue, or were involved in the ultimate decisions as to how much and when to bill an insurance company. In several instances, the forms reflect that tests were billed twice on the same day. As found above, tests were commonly administered twice in one day, for valid reasons. Whether the billing for such was proper was simply not addressed by any competent testimony in this proceeding. Patients' insurance companies were also billed for TENS units. H.W. was given this equipment at the clinic and he testified that he still has it. There is no evidence that any billing for TENS units was fraudulent or improper. Advertising In 1988, the Osceola County telephone directory Yellow Pages listed Dr. Toombs under "Dentists-Orthodontics". There is no evidence that anyone other than Dr. Murray was involved with the placement of that listing. Dr. Toombs is a general dentist who practices orthodontics. He is a member of various orthodontic societies. Petitioner's expert witness, Dr. Lilly, confirmed that a general practitioner of dentistry may practice some orthodontics. There is no evidence that Dr. Toombs has held himself out or limited his practice to being an orthodontist. Weighing the Evidence and Summary of Findings Competent reasonable experts testified on behalf of both Petitioner and Respondent Rowe. It is clear that, as Dr. Biggs observed, terminology in the field of TMJ is not as precise and uniform as Dr. Fattah would suggest. Some of the differences in opinion are attributed to that imprecision, and perhaps to quirks in Dr. Rowe's narratives which portray a surgical setting for a nonsurgical procedure, for example, "draping the patient" or "surgical splint". Dr. Rowe, as an oral surgeon, nonetheless, proceeded reasonably in his sequence of diagnosis and treatment; that is, he attempted conservative, noninvasive modalities before going to more invasive procedures such as arthoscopy and surgery. Other differences in opinion and in the way the computerized test results are interpreted are more difficult to resolve. Dr. Rowe contends that Dr. Fattah misread the printed data, confusing vertical with horizontal readings. Dr. Fattah uses myotronic equipment, but not the older model that was used for the tests at issue. The greater weight of evidence supports Respondent Rowe's diagnoses of the patients at issue. Since the allegations of inappropriate and unnecessary treatment are based on allegations of misdiagnosis, Petitioner's proof fails here as well. The further testing, the closed manipulation and insertion of the splints were appropriate follow up for the findings of TMJ disorders by Dr. Rowe. With one exception, it was the insurance companies and not the patients who complained. The records from Central Florida Dental Association reflect substantial billings and insurance form submittals for Dr. Rowe's and Dr. Toombs' patients, but no evidence of these Respondents' responsibility or involvement in the process. The clinic functions were performed in discrete departments under the overall management and control of Dr. Murray. There was no evidence that either Dr. Rowe or Dr. Toombs exercised influence over any patient so as to exploit the patient for personal financial gain.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Respondent Rowe be found guilty of violating Section 466.028(1)(b), (1983), and a fine of $250.00 be imposed; and that the remaining charges as to Respondents Rowe and Toombs be dismissed. DONE AND RECOMMENDED this 2nd day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 2nd day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-3213, 91-6022 AND 91-5362 The following constitute specific rulings on the findings of fact proposed by the parties. Adopted in paragraph 1. 2.-3. Adopted in paragraph 2. 4. Rejected as unnecessary. The statute is addressed in the Conclusions of Law. 5.-6. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 9.-13. Rejected as contrary to the weight of evidence. 14.-15. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 18.-23. Rejected as contrary to the weight of evidence. 24.-25. Adopted in summary in paragraph 13. 26. Adopted in summary in paragraphs 16 and 26. 27.-30. Rejected as contrary to the weight of evidence. 31. Adopted in paragraph 27. The referenced exhibit #33 is Dr. Lilly's resume and does not support the proposed finding. 32.-34. Rejected as contrary to the weight of evidence. 35.-36. Adopted in summary in paragraph 13. 37. Adopted in summary in paragraphs 16 and 26. 38.-42. Rejected as contrary to the weight of evidence. 43.-44. Adopted in summary in paragraph 13. 45. Adopted in summary in paragraphs 16 and 26. 46.-49. Rejected as contrary to the weight of evidence. 50.-51. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 54.-58. Rejected as contrary to the weight of evidence. The reference to exhibit #33 is incorrect. 59.-60. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 63.-67. Rejected as contrary to the weight of evidence. 68. Adopted in paragraph 4. 69.-70. Adopted in paragraph 14. Adopted in part in paragraph 34, otherwise rejected as to Respondent's involvement in the advertisement. Adopted in paragraph 35. 73.-74. Rejected as unnecessary. 75.-77. Rejected as unnecessary or unsupported by competent evidence as the absence of these records does not support the finding of a violation under the circumstances. Findings Proposed by Respondent Rowe Adopted in paragraph 1. Adopted in paragraph 3. 3.-4. Adopted in paragraph 9. 5.-7. Adopted in paragraph 10. 8.-9. Adopted in paragraph 11. Adopted in paragraph 10. Rejected. The testimony of J.T. is inconclusive in this regard. Adopted in paragraph 8. Rejected as unnecessary. Rejected as overbroad. The records received were reliable for a limited purpose. 15.-16. Rejected as unnecessary. Rejected as immaterial. Respondent admitted the violation. Adopted in part in paragraph 2, otherwise rejected as immaterial (see paragraph 17, above) Adopted in paragraph 32, in substance. Adopted in substance in paragraph 6. Rejected as unnecessary. Rejected in part as unsubstantiated by the record (as to whether Rowe received any benefit other than salary), otherwise adopted in paragraph 6. 23.-24. Adopted in paragraph 6. 25. Adopted in paragraph 41. 26.-27. Adopted in paragraph 37. Adopted in paragraph 41. Adopted in paragraph 29. Adopted in substance in paragraph 21. Adopted in paragraph 23. Adopted in paragraph 20. Adopted in paragraph 24. 34.-37. Rejected as unsupported by conclusive evidence. The witness was at times confused in his haste. He does not know this particular equipment but it is not clear from the record that he was reading the data wrong. Adopted in paragraph 24. Adopted in paragraph 23. Adopted in paragraphs 37 and 38. Adopted in paragraph 33. Rejected in part, adopted in part (see conclusions of law). Finding of Fact Recommended by Respondent Toombs Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 14. 4.-5. Rejected as unnecessary. Adopted in paragraph 36. Adopted in paragraph 34. Adopted in paragraph 35. 9.-11. Rejected as unnecessary. 12. Adopted in paragraph 5. 13.-18. Rejected as unnecessary. 19. Adopted in paragraph 12. 20.-26. Rejected as unnecessary. 27. Adopted in paragraph 41. COPIES FURNISHED: William Buckhalt, Executive Director Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Albert Peacock, Sr. Atty. Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Kenneth Brooten, Jr. 660 W. Fairbanks Avenue Winter Park, FL 32789 Ronald Hand 241 E. Ruby Ave., Ste. A Kissimmee, FL 34741
Findings Of Fact The Board had charged the Petitioner, Dr. Jules Klein, with violations of Sections 466.27(2) and 466.24(3)(g)(k) and (m), Florida Statutes. Dr. Alvin H. Savage was called by the Board to testify that he had seen Dr. Klein in the early spring of 1974. At that time Dr. Savage mentioned to Dr. Klein a sign on the side of the building in which Dr. Klein maintained his professional office. Dr. Savage identified Exhibits 1, 2, and 3 as photographs of said building and the signs at the building as they existed at the time. Dr. Savage testified that the sign bearing Dr. Klein's name was not objectionable and that he had received no complaints regarding said sign. Dr. Savage testified that he had received complaints about the sign as it existed on Dr. Klein's building at that time. The wording of that sign was "Longwood Dental Arts Center". Dr. Savage, on cross-examination, testified that Dr. Klein had invited him to his office to discuss Dr. Klein's status in the local professional association. During their discussion Dr. Savage testified that he had suggested to Dr. Klein that as Jews the community probably held them to a higher standard than other members of their profession, and that Dr. Klein should attempt to avoid even the appearance of anything questionable. Although it was suggested that Dr. Savage's comment was evidence of antisemitic discrimination, in the context of discussion as revealed by both Dr. Savage's and Dr. Klein's testimony, it would appear general advice from an older professional man who had practiced in the community for some time to a younger colleague. During this visit Dr. Savage raised the question of the sign on Dr. Klein's building and was advised by Dr. Klein that he would see the landlord of the building about altering the sign. Thereafter, Dr. Savage testified that the sign was changed, and identified Exhibit 5 and 6 as photographs of the building in which Dr. Klein's professional office was located and the amended sign which read, "Longwood Dental Bldg." Dr. Savage testified that he had received only two complaints regarding the amended sign during the preceding year and that one of the two complaints had been received shortly before the date of final hearing. On cross-examination, Dr. Savage opined that Dr. Klein's sign violated the statute by calling attention to the practice of dentistry by an individual, indicating further that if more than one dentist were practicing at Dr. Klein's office that it would not, in his opinion, be in violation of the statute. Dr. Savage based his opinion upon the Code of Ethics of the Florida Dental Association, Bearing Officer's Exhibit 10. Mr. John F. Plumb testified that he had taken the photographs introduced as Exhibits 5 and 6 on the morning of the hearing. He further testified that he visited Dr. Klein's office on March 12, 1975, April 29, 1975, and July 28, 1975. On both the March and April visits he had spoken with Dr. Klein and had found him very cooperative, although quite concerned about why his sign was an apparent violation while some of the signs in the locality, one of which was immediately across the street from his office, were not in violation. Mr. Plumb testified that he had discussed with Dr. Klein the provisions of Section 466.27(2), Florida Statutes, and the sign's apparent violation of its provisions. Mr. Plumb testified that during the March 12, 1975 visit with Dr. Klein that Dr. Klein indicated that he would modify the sign; however, during the April 29, 1975 visit, Dr. Klein indicated that he would not alter the sign on the advice of his attorney. Dr. Klein then testified in his own behalf. Dr. Klein testified that the sign, "Longwood Dental Arts Center" had been chosen originally because patients had indicated that they could not find his office. Dr. Klein testified that he had become truly concerned about the ability of persons to find his offices when dental supply salesmen reported difficulty in finding his offices. At that time Dr. Klein was practicing with his brother-in-law, Dr. Guy. Dr. Klein testified that having determined the need for a sign on the building, that he looked at the building signs on other buildings in the vicinity. Together with Dr. Guy, he determined that the building be named "Longwood Dental Arts Center" because he and Dr. Guy eventually intended to have am orthodontist in association with then. On cross- examination Dr. Klein testified that "medical arts" was not used because they had had no intention of having doctors of medicine practice there. Dr. Klein testified that he then contacted a sign maker who had dome other similar signs, who suggested the layout and size of the sign used on the building. Dr. Klein testified that after Dr. Savage's visit that he had received a visit from Dr. Franklin. Dr. Klein testified that he had the impression that the removal of the words "Arts Center" would eliminate the objection to the sign, and the sign was so modified. After the sign was changed, Dr. Klein testified that he was again contacted but that he had been unable to determine what was acceptable wording for the sign. He testified that in am effort to obtain guidance as to what was "professionally" acceptable he had contacted the American Dental Association and received a copy of their ethic advisory opinions. See Exhibit 16. This exhibit provides: "1. A building may be identified as the '...Dental Building,' except that the full name of the building cannot include the name of a participating dentist. The mane selected should not imply the practice of superior or more artful dentistry, imply any connection with any institutional or governmental unit or organization, or imply or specify the practice of any special area of dentistry. The full name selected shall be limited to the function of helping the patient locate the building. 2. A component society may determine community custom to prohibit dentists from using floodlights to draw attention to their nameplates on the outside of their private practice facilities. Component societies should be aware, futhermore, that the state dental practice acts ordinarily establish regulations on the use of office door lettering and signs." The Florida Dental Association rules would also allow the use of "Dental Building", but only where two or more dentists practice within the professional building. The basis for this distinction was explained by Dr. Savage, who stated that the provisions of Subsection k of Section 466.24(3) relating to".. calling the attention of the public to any person engaged in the practice of dentistry..." were not violated if two or more persons practiced in a building identified as a "Dental Building."
Findings Of Fact Dr. Roberts and His Background Dr. Steven Roberts is a dentist licensed to practice in the State of New York. He attended the United States Military Academy and received his undergraduate degree in 1970. He graduated from the New York University College of Dentistry in 1978, and practiced dentistry in New York, New York from 1978- 1987. To be licensed in New York, Dr. Roberts passed the national boards and the northeast regional board examination. During the course of his practice in New York, Dr. Roberts never received a complaint or had a claim for malpractice made or filed against him. Clinical Examinations Dr. Roberts took the Florida clinical dental examinations in June of 1986, January of 1987, and June of 1987. His grade on the June of 1987, examination is the subject of this proceeding. Dr. Roberts has successfully passed the written examination and the diagnostic examination required for licensure by Section 466.066(4)(a) and (c), Florida Statutes. Dr. Roberts' score for the June of 1987, clinical dental examination was 1.95; the minimum passing score is 3.00. The procedures tested during the June 1987, Clinical Dental Examination and Dr. Roberts' scores were as follows: The Procedure The Score The Revised Score Periodontal 1.67 Amalgam Cavity Preparation 1.67 Amalgam Cavity Restoration 3.00 Composite Preparation .67 Composite Restoration .33 Posterior Endodontics 2.00 3.66 Cast Preparation 2.67 3.00 Pin Amalgam Preparation 1.00 Pin Amalgam Restoration 1.67 Denture 3.63 Total Score 1.95 2.15 Dr. Roberts made a timely request to review his grade, and filed objections to his grades; a regrading procedure resulted in the regrading of his scores for posterior endodontics and cast restoration as set forth above. Each of the procedures tested in the clinical dental examination is scored by three different examiners. For each procedure examiners record their scores on separate 8 1/2" X 11" sheets. Each sheet has a matrix of circles which are blackened with a pencil so that they can be machine scored. On each sheet the candidate's identification number and the examiner's identification number are recorded along with the number for the procedure involved and the candidate's grade. On the sheet for each procedure the criteria for successful performance of the procedure are printed, along with preprinted comments which the examiners may use to explain the reason for the grade assigned. These comments relate to the criteria being examined. The following grades may be assigned by examiners: Complete failure Unacceptable dental procedure Below minimum acceptable dental procedure 3- Minimum acceptable dental procedure 4- Better than minimal acceptable dental procedure 5- Outstanding dental procedure An examiner is not required to mark a comment if the grade assigned is 5, a comment is marked for any grade below 5. Each procedure is graded in a holistic manner. Grades assigned by each of the three examiners for a procedure are averaged; the averaged scores for each procedure are then weighted and the weighted scores are summed to provide the overall clinical grade. By averaging the scores of three examiners for each procedure, variation from examiner to examiner is minimized. The examiners are experienced Florida dentists selected by the Board of Dentistry. An examiner must have at least five years of experience as a dentist and be an active practitioner. Potential examiners attend a standardization training exercise. This training is required by Section 466.006(4)(d), Florida Statutes. Its purpose is to instruct examiners in examination procedures and the criteria to be applied in grading. Through the training the examiner group as a whole arrives at a consensus opinion about the level of grading, so that candidates' scores on the examination will be valid and reliable. The training attempts to focus on each examiner's subjective, internalized evaluation criteria, so that they can be modified, as necessary, to reflect the consensus of all graders. A standardizer explains grading criteria to the potential examiners, and discusses various divisions among schools of thought and training on the procedures which will be the subject of the examination. The standardizer uses dental exhibits from prior dental exams as examples, and identifies grades and errors on the exhibits so that the graders learn and can adhere to uniform grading standards. The training focuses on three problems which professional literature has identified in evaluation: errors of central tendency, proximity errors, and bias a priori. Errors of central tendency result when graders are uncertain of criteria, hesitate to give extreme judgments, even in appropriate cases, and thus tend to improperly grade near the average. Proximity error is a type of halo effect which is applicable in grading of mannequin exhibits. The examiner grades all of the mannequin exhibits for each candidate at one time. If the first example of the candidate's work is especially good, and deserves a grade of 5, the grader may tend to transfer a generally positive attitude towards the next example of the candidate's work and assign a grade which may not be based solely upon the merits of that second piece of work. The same process can improperly depress the grades on subsequent mannequins if the first example of a candidate's work is poor. Bias a priori is the tendency to grade harshly or leniently based upon the examiner's knowledge of the use that will be made of the grade, rather than only on the quality of the work graded. After an 8 to 12 hour standardization training session, the Department administers an examination to those who have been trained. Those with the highest scores become the examiners, i.e., dentists who will grade candidates' work, while those with the lower scores in the training session become monitors, who supervise the candidates in their work on mannequins or on patients, but who do not actually grade student work. There is, however, no minimum score which a dentist who attends the standardization session must obtain in order to be an examiner rather than a monitor. This results, in part, from the limited pool of dentists who participate in the examination processes as monitors or examiners. For the 1987 clinical dental examination 31 dentists accepted selection by the Board and attended the standardization session, 20 were then selected as examiners and 11 became monitors for the examination. None of the dentists who attended the standardization session were dismissed by Department of Professional Regulation from further service at the examination session. The process by which the Department selected the examiners for the 1987 clinical dental exam was neither arbitrary nor capricious, but comports with Rule 21G- 2.020(4), Florida Administrative Code. The standardization training and examination of dentists to determine who will serve as examiners and monitors does not provide any bright line for distinguishing among potential examiners those who will make the most assiduous effort to apply the grading criteria explained in the training session versus those who retain an innate sense of a passing work based on what the examiner considers acceptable work in his own practice. The effort to convey to examiners the standard of "minimum competency" has imperfect success, but the Department's training is appropriate. Out-of-State Candidates' Scores 11. There is a substantial difference in the failure rates for out-of- state candidates and for in-state candidates on the clinical dental examinations. In the June of 1987, exam 82.5% of the candidates who graduated from the only in-state dental school, the University of Florida, passed the entire examination, while 54.2% of the out-of-state graduates passed, and only 37.8% of candidates from foreign schools were successful. Overall, 86.5% of the candidates passed the written portion of the examination, 93.5% the portion on oral diagnosis, but only 63.3% the clinical portion of the examination. Dr. Roberts has failed to prove that the lower pass rate for out-of- state candidates is the result of any sort of conscious effort on the part of examiners to be more stringent in grading out-of- state candidates. Dr. Kennedy's testimony indicated only that the data bear more analysis, not that they prove improper grading. Procedures Performed on Mannequins The Board of Dentistry tests between 600 and 700 dental candidates per year. It is extremely difficult for the candidates to find patients who have exactly the problem which is to be tested and bring them to the examination to work on. Some portions of the clinical dental examination, therefore, are not performed on patients, but on cast models of human teeth which resemble dentures, and which are known as mannequins. This is expressly authorized by Section 466.006(4)(a), Florida Statutes. The notice to appear which candidates receive approximately 30 days before the examination informs them of the types of mannequins which will be used in the examination. Before that time, however, dental supply companies obtain lists of those eligible to take the examination, and contact the candidates in an attempt to sell them the mannequins. Candidates must bring mannequins with them to the examination and can purchase additional mannequins for practice. Testing with mannequins is also more efficient because with live patients, the student must be graded at the time of the examination, while a model can be retained and graded a day or two later. The decision of the Board to have certain procedures performed on mannequins, so that each candidate would be graded on exactly the same procedure, is reasonable. The Board had also considered having students perform all test procedures on extracted human teeth, but there are not a sufficient number of all natural teeth available, given the number of students who are tested, both for the examination itself and for practice. The Board determined that it would be better to use mannequins for some of the procedures tested in the examination because they are readily available and students can purchase extra copies for practice. For certain procedures, such as endodontics, specific natural teeth (such as first bicuspids) are often extracted and so are generally available; for procedures performed on those teeth, it is possible to have candidates work on human teeth. By contrast, testing procedures performed on teeth such as incisors is not practicable. It is impossible to obtain enough incisors in good condition, without restorations and chips, for use during an examination. The statute governing the dental examination does require that one restoration performed by candidates must be done on a live patient, and for the June 1987, clinical dental examination that procedure was a class 2 amalgam restoration. The Board directed by rule that mannequins be utilized for five test procedures: the pin amalgam preparation and restoration, Rule 21G-2.013(3)(d), Florida Administrative Code; the endodontic procedure, Rule 21G-2.013(3)(e) Florida Administrative Code; the posterior tooth preparation for a cast restoration, Rule 21G-013(3)(f), Florida Administrative Code, the class III acid etch composite preparation and class IV acid etch composite restoration, Rule 21G-2.013(3)(g), Florida Administrative Code. Performing these procedures on mannequins is not exactly the same as performing procedures on human teeth in a patient. In view of the difficulty involved in finding patients whose teeth present virgin lesions, so that each candidate would be tested on exactly the same problem, the difficulty in grading a large number of procedures performed on live patients, and the difficulty in obtaining a large number of human teeth necessary for testing and for practice, the Board's decision to use the mannequins for these procedures is reasonable. The Legislature recognized this in Section 466.006(4)(b), Florida Statutes, which prescribes that the clinical dental examination shall include restorations "performed on mannequins, live patients, or both. At least one restoration shall be on a live patient." The Board was within its authority when it determined the procedures to be performed on mannequins. Violation of Blind Grading The dental examiners who grade the work of candidates grade blindly, i.e., they do not know which candidate's work they are grading. The Clinical Monitor and Examiner Instruction Manual for the June of 1987, examination makes this clear. At page 24 paragraph 3 the Manual states Examiners are requested to disqualify themselves at anytime they are presented with models or patients treated by a dentist who they know personally or with whom they have had professional contact. All examiners are requested to give department staff the name of any examination candidate who is personally known to them to be taking the exam. The department staff will assist the examiners in avoiding any work performed by the candidates they know. Rationale: Allegations have been made about examiners who knew candidates taking the exam even though the examiners only see candidate numbers. Monitors and Examiners are strongly urged to avoid discussion with candidates about the examination. Even conversation about non-examination related matters can be misinterpreted by other candidates as an unfair privileged communication. Despite this admonition, one of the examiners, Dr. Cohen, who knew Dr. Roberts, graded the work of Dr. Roberts. Dr. Cohen met Dr. Roberts the first time Dr. Roberts took the Florida Clinical Dental Examination in June of 1986. Dr. Roberts had with him a bag which would have identified him as a student from New York University, where Dr. Cohen had taught. Dr. Cohen came over to Dr. Roberts, introduced himself, gave Dr. Roberts his card, (exhibit 44) and invited Dr. Cohen to his hotel room where they discussed practicing dentistry in Florida. In 1986 Dr. Cohen was associated with another dentist, Gerald P. Gultz, who had recently moved to Florida from New York. Dr. Gultz had also been a part-time clinical assistant professor of dentistry at New York University College of Dentistry. After Dr. Cohen returned from the June 1986, administration of the clinical dental examination, he had a conversation with Dr. Gultz in which Dr. Cohen asked Gultz if he knew Dr. Roberts, and commented on Dr. Roberts performance on the clinical examination. Dr. Cohen said Dr. Roberts had done terribly, and Dr. Cohen believed that Dr. Roberts would never get his license to practice in Florida. (Tr. 5/26/88 at 73). Dr. Roberts saw Dr. Cohen at the January of 1987, clinical dental examination, but they did not speak. In June of 1987, Dr. Cohen also spoke briefly to the wife of Dr. Gerald Gultz, Lauren Gultz, saying that he would be seeing Dr. Roberts at the June of 1987, clinical dental examination, which was coming up. He told Mrs. Gultz that Dr. Roberts was a poor practitioner, and that he did not think he would pass the examination. At the June 1987, exam, Dr. Roberts' periodontal patient was his uncle, Mr. Finkelstein. Dr. Cohen was one of the examiners who reviewed Mr. Finkelstein to determine whether his condition was appropriate to serve as a patient for Dr. Roberts on the periodontal portion of the examination. Dr. Cohen had a conversation with Mr. Finkelstein in which he told him "tell your dentist to do a good job". Because Mr. Finkelstein had stated that his dentist was a graduate from N. Y. U. Dental School, Mr. Finkelstein was convinced that Dr. Cohen knew exactly who the dental candidate who would work on Dr. Finkelstein was -- Dr. Roberts. After accepting Mr. Finkelstein as an appropriate periodontal patient, Dr. Cohen also served as a grader on the periodontal procedure performed on Mr. Finkelstein. After grading the work which Dr. Roberts had done, Dr. Cohen told Mr. Finkelstein to tell his dentist that Dr. Cohen would see him later in the hotel where they were staying. At the hotel, Dr. Cohen talked to Dr. Roberts about the dental examination, that he himself had to take the examination three times, although he considered himself to be a superior dentist, and that Dr. Cohen could help Dr. Roberts with his grades but that he could never grade Dr. Roberts more that one grade higher than any of the other examiners. Dr. Cohen served as an examiner (i.e. grader) for Dr. Roberts on six of the nine procedures tested. There were: procedure number 1, the periodontal evaluation where he assigned a failing grade of 2; procedure number 4, the class III composite preparation, where he assigned a failing grade of 1; procedure number 5, the class IV composite restoration, where he assigned a failing grade of 1; procedure number 6, the endodontic evaluation, where he assigned a passing grade of 3; procedure number 7, the preparation for a cast restoration, where he assigned a passing grade of 3; and procedure number 8, the pin amalgam preparation, where he assigned a failing grade of 1. This failure of blind grading is a serious irregularity in the evaluation of Dr. Roberts' performance on the 1987 clinical dental examination, given his prior negative comments about Dr. Roberts before the examination. By ignoring those scores, Dr. Roberts would be evaluated only by two examiners, on all the procedures for which Dr. Cohen gave a grade. This would mean that his scores would not be comparable with those of any other candidate, for his grade on each procedure would not be the result of blind grading by three independent examiners. Dr. Roberts' Challenges to Grades Assigned by Other Examiners The full nine procedures evaluated in the 1987 dental clinical examination and Dr. Roberts' grades were: A periodontal exercise performed on a live patient, Mr. Finkelstein, which involved the scaling of five teeth both above and below the gum and stain removal. Dr. Roberts was assigned scores of 1, 2, and 2 by the examiners (one grade of 2 was assigned by Dr. Cohen) An amalgam cavity preparation, performed on a live patient, Elizabeth Cox, which is the preparation of a tooth for filling. When the preparation is completed a proctor escorts the patient to the three examiners who independently grade this part. After grading, the patient returns to the candidate who completes the filling of the tooth (the restoration) which is subsequently graded independently by three examiners. Dr. Roberts was assigned grades of 1, 1, and 3 for the preparation (none of these grades were assigned by Dr. Cohen). A final amalgam restoration, which is the filling of the tooth prepared in the prior procedure. Dr. Roberts received grades of 3, 3, and 3 on this procedure (none of the grades were assigned by Dr. Cohen). A class III composite preparation, which is preformed on a model, not a live patient. This involves removing decay and shaping a tooth to hold a class III filling, i.e., one located on the side surface of an incisor. Dr. Roberts received scores of 1, 0, and 1 (Dr. Cohen assigned one of the grades of 1) A class IV composite restoration, which is performed on a model, not a live patient. This involves restoring a fractured tooth with a composite restoration material. On this procedure Dr. Roberts received scores of 0, 0, and 1 (Dr. Cohen assigned the grade of 1). An endodontic evaluation performed on a posterior tooth, which is performed on a mannequin, and involves the opening of a molar, and identification of the canals in the tooth in preparation for a root canal procedure. Originally Dr. Roberts received grades of 3, 3, and 0 (one of the grades of 3 was assigned by Dr. Cohen). Dr. Roberts work was regraded by three new examiners and the grades of the original examiners were discarded. Dr. Roberts ultimately received a grade of 3.67 on the endodontic portion of the examination A preparation of a posterior tooth for a cast restoration, which is performed on a mannequin. It involves preparing a tooth to receive a crown. Dr. Roberts' original grades were 2, 3, and 3 (Dr. Cohen had assigned a grade of 3 on this procedure). On review, Dr. Roberts' was regraded by three new examiners, and the original grades were discarded. Dr. Roberts received a final grade of 3 on this portion of the examination. A pin amalgam preparation, which is performed on a model, not on a live patient. This involves the preparation of a tooth to hold an amalgam filling by inserting a pin into a portion of the tooth, which serves to anchor the filling. Dr. Roberts was assigned grades of 2, 0, and 1 on this procedure (Dr. Cohen assigned the grade of 1). Pin amalgam final restoration, which is performed on a model. It involves filling a tooth with amalgam filling material. Dr. Roberts was assigned grades of 2, 1, and 2 on this procedure (Dr. Cohen assigned one of the grades of 2). Due to the involvement of Dr. Cohen in so many of the procedures involved here, Dr. Roberts performance on the June of 1987, clinical dental examination was not fairly evaluated. A fair evaluation cannot be provided after the fact by merely dropping Dr. Cohen's grades, because Dr. Roberts' performance would not be subject to the independent evaluation of three examiners. Dr. Roberts relies, to a large extent, on the testimony of Dr. Gultz as the basis for regrading his procedures to a passing grade of 3, or better. The testimony of Dr. Gultz does not, however, show that he has ever participated in the standardization exercises for examiners at Florida clinical dental examinations. Dr. Gultz experience as a clinical professor of dentistry at New York University provides a substantial basis for his evaluation of dental procedures. The difficulty, however, is that as with any qualified examiner, his evaluations will be based on internalized standards which are personal to him. There is no way to know whether Dr. Gultz standards for adequate performance are equivalent to those which the standardization training produces among examiners at the standardization exercise before a clinical dental examination. The standardization process "attempts to bring all examiners to the same level of grading, so that each [examiner] is grading in a valid and reliable manner." Clinical Monitor and Examiner Instruction Manual, June of 1987, at page 42. The Florida dental clinical examination uses a holistic grading method. Each score sheet which an examiner fills out has on it the criteria to be applied in evaluating the candidates performance on that procedure. They all contain a statement which reads: It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value, but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have any assigned numerical or point value, but are to be utilized in making a holistic evaluation of the procedure. Each grading sheet also points out to the examiner certain critical factors which, if present, require a grade of 0 for the procedure. The standardization in grading which the Board diligently attempts to achieve through the standardization training and the standardization testing of examiners done at the close of the training is elusive at best. Nonetheless, in the absence of showing that Dr. Gultz standards of evaluation are equivalent to those of an examiner trained at a standardization session, it is impossible to know whether his standards of evaluation are more rigorous or less rigorous than those reflected by the grades assigned to other candidates by the corps of examiners which evaluated the work of candidates at the June of 1987, clinical dental examination. The same is true with respect to the testimony of Dr. Simkins, the expert for the Board in this proceeding. No useful purpose would be served in attempting to choose between the testimony of Dr. Gultz, on the one hand, and the testimony of Dr. Simkins and of the other examiners who testified by deposition in this proceeding. If this were to be done, all the hearing officer would have determined is whose testimony about the appropriate grade to be assigned for each procedure is more believable. On this record it would be impossible to make a further finding about whether that more believable testimony reflects a scoring standard more stringent, less stringent or the same as that generally applied to all candidates by the corps of examiners in the June of 1987, clinical dental examination.
Recommendation It is recommended that the results of the clinical dental examination which Dr. Roberts took in June of 1987, be found invalid, and that he be permitted to take the next clinical dental examination offered by the Department of Professional Regulation at no cost to him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of December, 1989. WILLIAM R. DORSEY, JR. 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 8th day of December, 1989.
Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, 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 21st day of December, 1984.
Findings Of Fact Dade Dental Laboratories was opened in 1973-74 by a nonprofit corporation which leased dental facilities contiguous and internally connected thereto to dentists. One of the original organizers of the laboratory, Samuel Kushner, was a laboratory technician who had so worked in New York for many years. Respondent was employed on a salary (hourly) basis in 1978 to work as a dentist at the dental facility located at 1225 Washington Avenue, Miami Beach, Florida and known as Dade Dental Associates (hereinafter referred to as Dade Dental). At this time, Dade Dental Laboratories was owned by the wives of Samuel Kushner and Frank Schiller. Schiller was employed as office administrator. Dade Dental Laboratories owned the lease of the premises and equipment located therein. In 1978, the dental office spaces were leased to Frederick Stang, D.D.S., who employed Respondent and other dentists on a salary basis. Effective 1 July 1979, Respondent's wife purchased the fifty percent interest in the laboratory previously owned by Mrs. Kushner and the sub1ease of the dental offices was given to Respondent. Stang continued as an employee of Respondent until September 1979. Frank Schiller spoke Yiddish and was often used as a translator for some of the older Jewish clients who came to Dade Dental. After the sublease was given to Respondent, Schiller continued as administrator until September 1979. The ownership of the fifty percent interest in the laboratory owned by Mrs. Schiller, if not still held by Mrs. Schiller, was not shown. Inspections of the premises at 1225 Washington Avenue were conducted in August, September and October 1979 and again in January 1980. The inspection conducted by the Department of Health and Rehabilitative Services on September 24, 1979 revealed X-ray equipment that was defective by reason of not being properly shielded and having a timer operating erratically (Exhibits 4 and 5); the inspections conducted September 6 and 13 revealed old equipment, improper sterilization of instruments, a very dirty laboratory, dirty impression trays, bite blocks with teeth marks indicating prior use, rusted instruments where chrome had chipped off the underlying steel, no sterile sutures, and a cold dry-heat sterilizer. Following these inspections, Respondent ordered a new X-ray machine and new instruments. No evidence was presented that the rusty instruments found in the dental operatories were ever used on a patient. Respondent's testimony, which was not rebutted, was that he didn't like the instruments located in the operatories when he started working there and he brought his own instruments which he used. The charges of allowing unauthorized persons to perform acts constituting the practice of dentistry, malpractice, misconduct in business or personal affairs of a nature to bring the dental profession into disrepute, and failing to exercise proper care in the treatment of patients involved Joseph Cedar and Hilda Hirschman. After receiving a high estimate of the cost for needed dental work from his dentist, Joseph Cedar, at the recommendation of a friend, went to Dade Dental for a second estimate. He first saw Frank Schiller, who took Cedar to Seymour Rickles, D.D.S., one of the dentists employed at the facility. Cedar described Schiller as the "boss" who gave orders and who looked into his mouth. No evidence was presented that Schiller ever put his hands or any instrument in Cedar's mouth while Cedar was being treated by Respondent or any other dentist at Dade Dental. After examination and impression, Rickles prepared crowns and a partial denture. Although Cedar testified that Rickles performed all the work done on him, the dental record (Exhibit 14) shows 5 dentists worked on Cedar at this office. However, most of the work appears to have been done by Rickles and Stang. After the work on Cedar had been completed, he complained of pain from the partial dentures which had been prepared for him and was referred to Respondent, who first saw Cedar on June 28, 1979 when he adjusted the partial plates. Exhibit 14 indicates Respondent again saw Cedar on July 3, 19, 24, 25 and August 7 for adjustments. Cedar testified he told Respondent about a sore spot near the partial denture on the upper left side of his mouth but Respondent only told him it was not caused by the dentures. Respondent's version was that he X-rayed the lower right side of Cedars' mouth where the partial had been fitted and found an abscess which could cause the pain described by Cedar, and that Cedar never complained of soreness in the upper left area of his mouth. On August 15 or 16, 1979 Cedar went to the dental clinic at Mount Sinai Medical Center complaining of a soreness in the upper left area of his mouth. He was examined by several dentists because the affected area looked suspicious, and a biopsy was done. This showed the lesion to be squalus cell carcinoma, which was subsequently excised. The lesion removed from Cedar's mouth was well-differentiated in mid- August when he was seen at Mt. Sinai. It is unlikely that a well-differentiated lesion will develop in a week to ten days, but could develop in a period of two or more weeks. A competent dentist should recognize a well-differentiated lesion and refer the patient to an oral surgeon. Failure to do so constitutes practice below minimum accepted community standards. Respondent has referred other patients to oral surgeons when suspicious conditions were observed in patients' mouths. (Exhibit 18). Hilda Hirschman first visited Dade Dental in December 1978 and was referred to Respondent. She had several teeth extracted by Respondent, partial dentures made and two crowns installed. Mrs. Hirschman testified that Schiller escorted her into Respondent's office on her first visit and wrote down and quoted to her prices for work as he and Grebin talked. She thought Schiller was the head dentist. She also testified that one time Schiller ground down one of her teeth. When told periodontal treatment was indicated, Mrs. Hirschman told Respondent she did not want root canals done. After her teeth had been extracted and partials made, the partials were inserted by Respondent, but neither of the partials fit. The upper was adjusted to fit and a second impression was taken for the lower. Mrs. Hirschman was later examined by Dr. Leonard Sakris at the request of the Dental Board. From his study of the X-rays taken in November 1978 and August 1979 and his examination of the patient, Dr. Sakris opined that the teeth extracted by Respondent could have been saved if root canal therapy had been used and crowns installed. This examination also revealed the condition of Mrs. Hirschman's mouth to be bad, with two ill-fitting partial dentures and restoration placed over decay. The conclusion this decay existed when Respondent treated Mrs. Hirschman was reached from the X-rays. On cross- examination, Dr. Sakris acknowledged that decay was not always discernible on X- rays and could be misdiagnosed absent a visual examination and probe by the dentist. Dr. Sakris' examination did not confirm Mrs. Hirschman's testimony that Schiller had ground down her tooth. He found no evidence of grinding, except possibly on Lower Left Canine 3. This is also the tooth with decay found on Sakris' examination. The crown on Lower Right 5 placed by Respondent had a bad margin and decay when Mrs. Hirschman was examined by Sakris. Unless margin of crown makes solid contact with tooth, decay can occur. It is below acceptable minimum standards to leave open margins between crown and tooth. Respondent's testimony that he suggested Mrs. Hirschman go to a periodontist for root canal treatment and she refused is corroborated by Mrs. Hirschman's testimony that she didn't want the expense of root canals. Without periodontal treatment for Mrs. Hirschman's dental condition, extraction is the standard practice. Respondent's testimony that both he and Stang worked on Mrs. Hirschman is supported by Exhibit 13 and lends credence to his testimony that he did not prepare the crowns he installed on this patient. Further, Exhibit 13 contains the notation that Mrs. Hirschman "refuses pero" (presumably periodontal treatment) and confirms Respondent's testimony that the patient's refusal to have root canals left him no choice but extraction. The parties stipulated that the advertising which forms the basis for Counts XVI II through XXI was ordered and paid for by Stang, although it continued for some two months after Respondent took over the operation of the dental clinic before it was stopped. Respondent's testimony that he neither ordered nor paid for the advertising which appeared after July 1, 1979 was not disputed. No evidence was presented regarding the character of this advertising, other than the examples thereof shown in Exhibit 8.
Findings Of Fact Background Petitioner, Richard Alan Cohen, sat for the dental licensure examination in December 1992 and received an overall score of 2.98 for the clinical portion of that examination. The minimal passing score for the clinical portion of the examination was 3.0. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 01, 05 and 06. Respondent rejected petitioner's challenge, and petitioner filed a timely request for a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest respondent's grading of those procedures. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05. The examination procedure During the course of the examination at issue, the candidates were called upon to exhibit, with regard to procedure 06, certain manual skills relevant to an endodonic procedure. Specifically, the candidate was required to prepare a tooth, which had been extracted and mounted in a mold, for what is commonly called a "root canal." Preparing for the procedure included the cleaning and shaping of the interior of both root canals from each apex (the tip of the root) up to the access area near the crown (top) of the tooth. Thereafter, sealant was to be sprayed into the canal, and gutta percha condensed (compressed) in the canal until it was completely filled. The goal of the procedure was to get a seal within one half to one millimeter of the apex, and to fill the canal so there were no voids. The quality of a candidate's performance on the procedure was graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, a grade of "4" represented a better than minimally acceptable dental procedure, and a grade of "5" represented an outstanding dental procedure. See, Rule 61F5-2.013, Florida Administrative Code. Petitioner's examination results Petitioner received a grade of 3.66 for procedure 06, based on scores of 3, 3, and 5 from the individual examiners. Although a passing score on procedure 06, petitioner's overall score on the clinical part of the examination was 2.98; a score below the minimum 3.00 required to pass that portion of the examination. According to the grade sheets, the two examiners who assigned petitioner a grade of 3 observed that petitioner failed to properly fill the canal spaces with gutta percha. In the opinion of the one examiner who testified at the hearing, such observation was based on his examination of an x-ray (petitioner's exhibit 1D) which reflected that the canal was filled beyond the apex and there appeared to be some spacing between the wall of the canal and the filling material. A review of the examination results At hearing, the proof demonstrated that the quality of petitioner's performance on that portion of procedure 06 pertinent to this case is aptly reflected on the x-ray marked as petitioner's exhibit 1D. That x-ray reflects, with regard to one of the canals petitioner filled, what is either a void or filling material beyond the apex of the root. Either event evidences a failure to properly fill the canal space, and warrants a grade of less than 5. Here, petitioner contends he should be awarded a grade of 4 for the procedure. The proof fails, however, to support his contention. If the image reflected by the x-ray is gutta percha beyond the apex, petitioner's performance on the procedure would not meet minimally acceptable dental standards and would merit a failing grade. If on the other hand, the material extending beyond the apex is sealant or the image reflected by the x-ray is a void, the procedure was acceptable, but warranted a grade of less than 5. Under such circumstances, it is concluded that the proof fails to demonstrate that the grades of 3 accorded petitioner were baseless, lacking in reason or that in deriving such grades the examiners departed from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1994. Hearings 1550 Hearings 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 22nd day of February
