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 violations of Section 466.028(1)(y), Florida Statutes, as set forth in the Amended Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Robert J. Fish, was licensed by the Department of Professional Regulation (the "Department"), Board of Dentistry (the "Board",) as a dentist in the State of Florida having been issued license number DN0005694. At all times pertinent to this proceeding, Respondent was engaged in the practice of dentistry in Tamarac, Florida. At the time of the hearing in this matter, the Patient whose treatment is the subject of the allegations in the Amended Administrative Complaint was 83 years old. At the hearing, D.E. admitted that, because of certain health problems, she had experienced some loss of memory. The Patient first presented to Respondent's office for oral examination on June 27, 1983. For some time prior to this visit, she had been treated by a periodontist in Broward County. The nature and extent of that prior treatment is not clear. During her visit to Respondent's office on June 27, 1983, the Patient completed a dental and medical history form. According to those forms, the Patient had a history of cancer and high blood pressure. Respondent also confirmed that the Patient had not received any hormone replacement therapy for post-menopausal osteoporosis. Based upon her medical history, Respondent recognized that the Patient's immune system was possibly compromised and she was a likely candidate to suffer loss of the bone supporting her teeth. During her first visit, Respondent performed a complete periodontal examination, charting all of the Patient's visible defects. The Patient was diagnosed as having "chronic gingivitis [and] furcation involvement." Respondent noted bone loss of between three to five millimeters around teeth 23, 24, 25, 26 and 27. On July 19, 1983, the Patient returned to Respondent's office at which time his hygienist performed a prophylaxis. The Patient was advised that she should anticipate the need to address other aspects of her periodontal condition. The Patient visited Respondent's office four times in 1984, six times in 1985, and two times in 1986 for routine dental procedures. On August 12, 1986, Respondent informed the Patient of certain undesirable changes in the health of the bones of her jaws and the condition of her teeth. Respondent advised the Patient that she was losing the support for some of her teeth and bone was disappearing around some of the roots. The Patient was told that she should seek treatment for these matters or she would risk more serious problems down the line. The Patient indicated that she would let Respondent know when she desired any additional treatment. On January 29, 1987, Respondent performed a full-mouth series of x- rays to evaluate the Patient's worsening periodontal status. The Patient returned in August of 1987, at which time she had to have the two fractured roots of tooth number 30 extracted. It is not clear why the Patient did not return until August of 1987. On September 3, 1987, the Patient returned for the removal of the sutures and the area seemed to be healing well. The Patient's next visit to the Respondent's office was on October 1, 1987. During that visit, Respondent examined and charted the Patient's mouth and developed a treatment plan with multiple stages and options. Respondent's treatment plan included the making of a bridge for teeth 27, 28 and 29 and the fabrication of a partial denture, either an acrylic wrought clasp type or a chrome frame marked with acrylic saddles. The plan was discussed with the Patient who selected a course of treatment and signed the plan. The Patient was advised by Respondent in October, 1987 of problems on her lower left side that would need attention in the future. Respondent proposed to use a "temporary provisional" partial in order to avoid the cost of making it twice. From October through December, 1987, the Patient returned to Respondent's office approximately twelve times. During this period, Respondent constructed a three-tooth (#'s 27, 28 and 29) porcelain-fused-to-metal splint and a "transitional" acrylic-based partial lower denture. From October 1987 through August 1988, the Patient experienced some discomfort with the acrylic-based partial lower denture. She returned to Respondent's office approximately seventeen times for adjustments, repairs and/or realigns. These visits were necessitated, at least in part, by the ongoing physiological changes in the Patient's lower jaw during the first year after the extraction of her lower right molar. In August of 1988, the Patient experienced some discomfort on her lower left side. On August 11, 1988, she consulted with the Respondent who confirmed the loss of bone in that area. On August 16, 1988, Respondent performed another complete periodontal examination. Respondent found that the Patient had pockets of approximately 6 to 7 millimeters around teeth 23, 24, 25 and 26. In other words, the Patient's periodontal health was not good and there were great stresses on her teeth which were significantly out of bone. With the aid of x-rays, Respondent generated a diagnosis and treatment plan which was accepted and signed by the Patient. Respondent's plan was to further explore the condition of the Patient's lower left side, extract non-salvageable teeth and modify her recently made partial lower denture to accommodate the teeth that had to be removed on the lower left side. On October 16, 1988, Respondent began this treatment plan and determined that the roots of two of the teeth were so badly infected and diseased that they were non-salvageable. The existing bridge was severed and the four roots from teeth 18 and 19 were removed. A new bridge was made and the teeth that had been removed were added to the removable partial. At this point, the Patient's right side had still not completely healed. During the remainder of 1988, Respondent continued to make adjustments to the Patient's partial lower denture. Many of the adjustments were necessitated by bone recontouring and healing. In December of 1988, Respondent advised the Patient that she needed to have her partial lower denture relined and repaired. The Patient had the denture adjusted on January 24, 1989, but did not have it relined. On February 14, 1989, the Patient telephoned Respondent's office and complained of discomfort. There is conflicting evidence as to whether or not Respondent was in the office on that date. It is not necessary to resolve that issue for purposes of disposing of this case. In any event, the Patient appeared at Respondent's office without an appointment and demanded to see him. After a dispute with the office staff, the Patient left and subsequently refused to return for any further treatment. On May 8, 1989, the Patient went to see another dentist, Dr. Harvey Garrison. On the medical history form that she filled out for that visit, she denied experiencing any pain or discomfort. Dr. Garrison examined the Patient on May 8, 1989 and noted her need for fillings, endontics, prophylaxis and crowns. He did not make any notation that she was experiencing pain or discomfort. The Patient returned to Dr. Garrison's office on June 5 and 8, 1989. Again, there is no notation that the Patient was experiencing any pain or discomfort. Dr. Garrison's records include a notation dated June 27, 1989 which states "27, 28, 29 buccal margins are open plus the patient was made a lower temporary partial. I'm recommending that she contact Broward County Dental Society. The treatment was completed in 1988 by Dr. Fish." In his deposition offered into evidence during this proceeding, Dr. Garrison could not provide any more specific information regarding the open margins he allegedly found and he was unable to provide any further explanation of the Patient's condition on June 26. The Patient was treated by Dr. Garrison on July 26, 1989. The notes from that treatment indicate that the Patient had complained about her "L Part" on June 27, 1989. Dr. Garrison's notes of his examination of the patient on July 26, 1989 indicate that he found open margins around the end of the crowns of teeth #s 27, 28 and 29. There is no chart notation and Dr. Garrison does not recall the location or extent of the margins. His notes do not reflect any clinical significance or treatment necessary. On July 26, 1989, Dr. Garrison began to treat the Patient's upper arch. On November 21, 1989, he provisionally inserted ten crowns and a partial upper removable denture that he had fabricated. Dr. Garrison's notes do not reflect any further complaint of pain or treatment regarding the lower denture until November 20, 1989 when the Patient's lower partial denture was sent to a dental laboratory for repair. Dr. Garrison does not know the extent of the repair. The Patient testified that Dr. Garrison did not do any work on her lower denture. Dr. Dixon, Petitioner's expert, assumed that no work was done on the Patient's lower denture after she left Respondent's care. However, Dr. Garrison's records clearly reflect that the lower partial was sent to the laboratory for repair on November 20, 1989 and Dr. Garrison adjusted the lower partial on November 20 and November 22, 1989. There is no evidence as to the extent of the repairs or adjustments conducted on the lower partial in November of 1989. On November 6, 1989, Dr. Garrison sent a letter to DPR addressed "To Whom It May Concern." The letter states that [DE] came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort. I examined the lower bridge work and found the buccal margins of teeth #27,28,29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. . . . In his testimony for this case, Dr. Garrison could give no further explanation of his findings. When asked to explain why the lower partial was "inadequately fabricated," Dr. Garrison simply said that his office did not like using acrylic for lower partials and he only used acrylic for temporary devices. He admitted that he did not know what the general practice was in other offices. He also admitted that he had not reviewed Respondent's records and did not know what Respondent's treatment plan was for the Patient. From December 19, 1989 through June 5, 1990, Dr. Garrison performed various adjustments and modifications to the fixed bridge he inserted in the Patient's upper arch. It is clear that from November 1989 through June 1990, Dr. Garrison performed many dental procedures which may have significantly altered the Patient's dentition. The extent and impact of the alteration is not clear. On June 16, 1990, approximately a year and a half after Respondent last saw the Patient, D. E. was examined by Dr. Dixon, an expert retained by DPR to evaluate Respondent's treatment of the Patient. Dr. Dixon's examination included the taking of an x-ray, a photograph, a bite registration and a bite impression or study model. Apparently, all of those items were misplaced, and none of them were ever made available to Respondent to review. None of them were offered into evidence at the hearing. As noted in the Preliminary Statement and in the Conclusions of Law, Respondent's Motion In Limine and objection to Dr. Dixon's testimony based upon the failure to produce these items were denied. Nevertheless, the absence of these items is a factor that has been considered in determining the weight to be afforded Dr. Dixon's testimony. Dr. Dixon testified that the three-tooth bridge (splint) for teeth #27, 28 and 29 did not meet community standards because it had open margins and improper occlusion. Dr. Dixon also testified regarding other deficiencies that he says he found in Respondent's treatment of the Patient, including clasps that were too tight and an improper adaptation (fit) of the denture to the lingual portion of the Patient's teeth. As discussed in the Conclusions of Law below, the Amended Administrative Complaint does not specifically charge Respondent with all of these purported deficiencies. In any event, after considering all of the evidence, Dr. Dixon's conclusions and opinions regarding Respondent's treatment of the Patient are not convincing. Dr. Dixon admitted that he had not read Dr. Garrison's records. At the time of his examination of the Patient and at the hearing, Dr. Dixon did not know that the Patient's lower partial had been adjusted and repaired by Dr. Garrison. He also did not know that Dr. Garrison had treated the Patient's entire upper arch. Dr. Dixon admitted that it was important to know exactly what Dr. Garrison had done for the Patient and/or how it affected the dentistry performed by Dr. Fish. However, the evidence indicates that Dr. Dixon did not have the benefit of this information. Thus, he was unable to comment on the impact that Dr. Garrison's treatment had on the Patient's occlusion. A review of the x-rays taken by Respondent and those taken subsequently by Dr. Garrison indicates there was some movement of the posts and necessarily the crowns away from the teeth (roots) with the passage of time. In addition, because of the extensive surgery conducted on the Patient's mouth and because of her age and medical condition, a lengthy recovery process with tissue shrinkage and bone recontouring could reasonably be expected. In view of all the factors, the evidence was insufficient to show that any negligence or incompetence by Respondent was responsible for the inadequacies that Dr. Dixon observed in the Patient's lower partial denture and/or splint. It should also be noted that Dr. Garrison was unable to testify with any specificity regarding the deficiencies in Respondent's work. At the hearing and in his proposed recommended order, Respondent referred to the lower partial denture that he made for the Patient as "transitional" or "temporary." It is not entirely clear what Respondent meant by these references. The Patient clearly did not understand that Respondent intended to fabricate a "permanent" partial denture in the future. Petitioner has suggested that Respondent's use of acrylic in fabricating the lower partial denture for the Patient was improper. Even assuming that this allegation fits within the scope of the Amended Administrative Complaint filed in this matter, the evidence presented was insufficient to establish that Respondent's use of this material given the facts and circumstances of this case fell below the minimum standards expected of a dentist in this community.
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, Robert J. Fish, not guilty of the allegations set forth in the Amended Administrative Complaint and dismissing the charges. DONE and ENTERED this 24th day of January 1994, in Tallahassee, Leon County, Florida. 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 24th day of January 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-687 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 21-23. Subordinate to Findings of Fact 21-25. Subordinate to Findings of Fact 30. Adopted in substance in Findings of Fact 32. Subordinate to Findings of Fact 33. Subordinate to Findings of Fact 35. Respondent's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 4. Rejected as unnecessary. The first sentence is adopted in substance in Findings of Fact 4. The second sentence is rejected as unnecessary. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 10-14. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 15. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 17. Adopted in substance in Findings of Fact 17. Subordinate to Findings of Fact 18. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 18. 25.-33. Subordinate to Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 23. Subordinate to Findings of Fact 24 and 25. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 28 and 30. Adopted in substance in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative and subordinate to Findings of Fact 30. Rejected as constituting legal argument rather than a finding of fact. This proposal is an incorrect statement of the ruling made at the hearing. Adopted in substance in Findings of Fact 28. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 31. Adopted in substance in Findings of Fact 32. Adopted in substance in Findings of Fact 32. The first sentence is adopted in substance in Findings of Fact 32. The remainder is rejected as constituting argument. The subject matter is addressed in the Preliminary Statement and the Conclusions of Law. Adopted in substance in Findings of Fact 33. Subordinate to Findings of Fact 34. 57.-58. Subordinate to Findings of Fact 32 and 35. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as unnecessary. Subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 34. Rejected as constituting argument. This subject matter is addressed in Findings of Fact 33. Rejected as unnecessary and subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 28 and 34. Subordinate to Findings of Fact 33 and 35. Rejected as constituting argument. The subject matter is addressed in paragraph the Conclusions of Law. Adopted in substance in Findings of Fact 33 Adopted in substance in Findings of Fact 33 and in the Conclusions of Law. Subordinate to Findings of Fact 33. Rejected as unnecessary. Rejected as vague and ambiguous. Rejected as constituting argument. Rejected as unnecessary. COPIES FURNISHED: Ashley Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Max R. Price, Esquire Solms & Price 6701 Sunset Drive, Suite #104 South Miami, Florida 33143 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether the Board of Dentistry (Board) should discipline the Respondent on charges that she violated section 466.028(1)(z), (ff), and (gg), Florida Statutes (2009-2012),1/ by: improperly delegating professional responsibilities to persons not qualified to perform them; operating her dental office below minimum acceptable standards; and allowing the administration of anesthesia, in violation of Board rules.
Findings Of Fact The Respondent, Miranda Whylly Smith, D.D.S., holds license DN15873, which authorizes her to practice dentistry in the State of Florida. She has held this license since January 2002. No discipline has been imposed against her license to date. Since July 2009, the Respondent has owned and operated a dental practice called "Smiles and Giggles" in Spring Hill, Florida. Prior to May 2011, Smiles and Giggles was located on Mariner Boulevard; in May 2011, it moved to County Line Road. The Respondent is the only dentist practicing at Smiles and Giggles. She employs dental assistants, not dental hygienists. Count I--Improper Delegation Count I charges the Respondent with improperly delegating professional responsibilities to her dental assistants. Expanded-function dental assistants employed by the Respondent have included: Lillian Torres, who worked at Smiles and Giggles from late 2009 to March 2012 and functioned as the "head dental assistant" with responsibility for overseeing the work of other dental assistants working in the office; Kristina Plumadore, who has worked there since 2009; and William Hemme, who has worked there since late 2011 and now serves as head dental assistant. Priscilla Davila worked there as a dental assistant without an expanded-function certificate from May 2011 to August 2011. Incorporated in that charge are specific factual allegations regarding Ms. Torres and an unnamed male expanded- function dental assistant (who, the evidence revealed, was Mr. Hemme). (The Administrative Complaint includes other specific allegations based on statements from other dental assistants who did not testify, and those allegations are omitted here, since there was no evidence to support them.) Also incorporated in the charge are general factual allegations that all dental assistants improperly performed many of the same tasks at the direction of Ms. Torres and Mr. Hemme, with the Respondent's knowledge and approval, including taking impressions and bite registrations2/ for dentures, delivering dentures, adjusting dentures with grinding devices, using drills on cavities, filling cavities, and other tasks for which they were not qualified. Count I charges that the Respondent delegated to dental assistants the taking of final impressions for dentures and the making of adjustments to dentures, including the use of high- and/or low-speed drills, which made unalterable changes to the teeth.3/ As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres took the final impressions for dentures for a patient, L.C.; that Mr. Hemme adjusted dentures for the patient L.C. by "grinding [them] down"; and that both Mr. Hemme and Ms. Torres did "[a]ll denture fabrication and adjustment procedures" for L.C. In some respects, L.C.'s testimony on this allegation was inconsistent with the dental records introduced by the Respondent, which are more accurate in those respects. L.C. presented to the Respondent in late 2009. Initially, it was planned that a partial upper denture would be made, and an immediate complete lower denture would be made for use after her remaining lower teeth were extracted. In mid- January 2010, the plan changed, and an immediate complete upper denture was made for use after her remaining upper teeth were extracted. The upper teeth were extracted in mid-January 2010, and the immediate upper denture was fitted. In July 2010, attempts were made to adjust the denture because it was uncomfortable and also loose. In October 2011, L.C. returned to Smiles and Giggles with more complaints that the upper denture did not fit correctly and was loose. In late October and early November 2011, the upper denture was relined in an attempt to address the patient's complaints, but her complaints persisted. Later in November 2011, impressions were done for the patient's immediate complete lower denture. In January 2012, the patient's remaining lower teeth were extracted, and her immediate lower denture was fitted and adjusted. L.C. continued to complain about the fit of both dentures, and several attempts were made in the spring of 2012 to adjust them, to no avail. The patient then complained to Medicaid, and she returned to the Respondent to have both dentures redone in January 2013. L.C. testified that the Respondent took no impressions for dentures and did not fit or adjust her dentures until after the spring of 2012. She testified, prior to that all the work was done by Ms. Torres and Mr. Hemme. Ms. Torres and Mr. Hemme testified that they took impressions, but not final impressions or bite registrations, which were done by the Respondent. The dental records reflect that the provider of all these services was the Respondent. However, in this instance, the patient's testimony is credited, and the contrary testimony of Ms. Torres and Mr. Hemme (as well as the possible contrary inference from the dental records) is rejected. On questioning by counsel for the Respondent, Mr. Hemme appeared to take the position that the impressions were not final because they were for immediate dentures, which sometimes are replaced by permanent ones. However, it is clear from the evidence that L.C.'s immediate dentures were intended to be permanent. It was not until after her complaints to Medicaid that the Respondent agreed to make permanent dentures for her. Most, if not all, dental assistants working at Smiles and Giggles took impressions for dentures. It is not clear from the evidence whether these were all final impressions, except in the case of the patient L.C. Another patient, V.C.,4/ testified that Ms. Torres also took final impressions for her dentures. The testimony was elicited, in part, as proof of what paragraph 72 of the Administrative Complaint alleges Ms. Davila5/ witnessed. Ms. Davila's testimony gave no indication that she witnessed dental care being provided to V.C., and it seems unlikely from the evidence that Ms. Davila's short tenure working for Smiles and Giggles included the time when the care in question was provided to V.C. No dental records were introduced regarding the patient V.C. that could have helped answer that question. The testimony of the patient V.C. also could have been elicited as proof of a general allegation in paragraph 70 of the Administrative Complaint that all Smiles and Giggles dental assistants supervised by Ms. Torres performed various unauthorized tasks, including making dentures.6/ According to Mr. Hemme, he adjusts patients' dentures by using a handpiece to polish or smooth down rough spots where they come in contact with the gums to try to make them fit more comfortably. This is what he says he attempted to do to L.C.'s dentures. According to Ms. Torres, she uses an acrylic burr to "bring down high spots" that are identified by the Respondent and to make "minute adjustments" to dentures. These adjustments can be remedied only by making a new set of dentures. Although evidence was presented regarding the taking of bite registrations, the Administrative Complaint does not allege that the Respondent delegated this task to dental assistants. In any event, the evidence was not clear and convincing that dental assistants at Smiles and Giggles took bite registrations for dentures for patients other than L.C. To the contrary, there was no evidence that they did, and several denied it. Count I charges that the Respondent delegated to dental assistants the placement of filling materials and the use of dental instruments, including high- and/or low-speed drills, which made unalterable changes to the teeth. As the factual basis for that charge, the Administrative Complaint alleges: that Ms. Torres has admitted to placing amalgam and composite fillings, using low- and high- speed drills, and using a spoon excavator to take out the upper part of a cavity during the time she worked at Smiles and Giggles; and that all assistants working at Smiles and Giggles, while Ms. Torres worked there, used low-speed drills, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Davila saw dental assistants use high-speed drills and complete fillings on patients during the time she worked at Smiles and Giggles, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Torres "placed fillings" for a patient, T.F., when she had dental work done at Smiles and Giggles in the summer of 2011.7/ The evidence was clear that dental assistants at Smiles and Giggles were using flowable resin to fill cavities. This is a composite material that hardens when cured and can only be removed by being drilled out by the dentist using a high-speed handpiece. Dental assistants at Smiles and Giggles also were packing amalgam filling material to fill cavities. The Respondent would then review the restoration. If adjustments were needed, the Respondent or, sometimes, a dental assistant would use a slow-speed handpiece to try to bring down rough or high spots. After the patient T.F. was diagnosed with cavities in the summer of 2011, she returned to have those teeth restored. The Respondent used a drill to prepare the cavities for filling, and Ms. Torres placed composite material. The Respondent then left the room, and Ms. Torres used a slow-speed handpiece, with a burr attached, to grind down the filling to correct the bite. The Respondent did not return to re-examine T.F. before she left the office that day. The Respondent seems to take the position that fillings done by dental assistants were temporary fillings, to be followed by permanent restorations at a later date. But sometimes they were intended to be permanent. Even if intended initially to be temporary, if the patient did not return to have the temporary filling replaced by a permanent restoration, the temporary filling became de facto permanent. In either case, once placed, the filling material could be removed only by being drilled out with a high-speed drill. At some point in 2013, the dental assistants at Smiles and Giggles were told not to place filling material or bring down high spots any more. The source of this directive was not clear from the evidence, but it can be inferred that it came from the Respondent. By mid-October 2013, those tasks were being performed by dental assistants only "every once in a while" and are not being performed by them any longer, according to Ms. Plumadore. Count I charges that the Respondent delegated to dental assistants the performance of full-mouth debridement. As the factual basis for that charge, the Administrative Complaint alleges generally that the Respondent delegated to dental assistants at Smiles and Giggles the task of performing full-mouth debridement. No specifics are alleged. A cavitron is a device that uses ultrasound and water to remove plaque. It is used in the subgingival area, i.e., on the parts of teeth at the gum line and under the gums, as part of a full-mouth debridement. At the hearing, the patient T.F. testified that Ms. Torres used a cavitron to clean plaque from her teeth, including in the subgingival area. Ms. Torres admitted using the cavitron, but denied using it in the subgingival area. The patient was numbed by a local anesthetic, which would have made it difficult for the patient to sense precisely where the cavitron was being used. The evidence was not clear and convincing that Ms. Torres used the cavitron in the subgingival area. Ms. Davila testified that she saw Ms. Torres and other dental assistants use the cavitron for deep cleaning, which would include in the subgingival area. However, it is not clear how she would have been in a position to ascertain where a cavitron was being used in a patient's mouth. During the relatively short time she worked at Smiles and Giggles, she usually was not in the part of the office where patients' teeth were being cleaned. Even if she was in that area of the office, the patient's chair would have been facing away from where Ms. Davila probably would have been standing, so that she would not have been able to observe exactly where the cavitron was being used in the patient's mouth. There was no evidence that the Respondent knew of, or condoned the use of, the cavitron by her dental assistants for full-mouth debridement, including in the subgingival area. Count I charges that the Respondent delegated to dental assistants the initiation of a nitrous oxide mask and the administration of nitrous oxide without direct supervision. As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres placed a nitrous oxide mask on a minor patient, O.S., and administered nitrous oxide to the patient in August 2010. At the hearing, DOH presented the testimony of the child's mother, who was in the examination room when Ms. Torres placed the mask on her child's face and left. Neither she nor any other staff returned for about 20 minutes, during which the child began to act very calm, relaxed, and groggy, slump in the chair, wave his arms up and down, and act silly. The child was autistic, but this was unusual behavior for him. The mother became concerned and called for help. Ms. Torres returned, took the mask off, and dental work was performed on the patient. Ms. Torres denies that she did anything but put the mask on the patient's face and claims that no nitrous oxide was initiated. This testimony is rejected. It is found that Ms. Torres initiated the flow of nitrous oxide on the child before she left the examination room. The dental records indicate that nitrous oxide was administered, which is consistent with the patient's behavior. There was no clear and convincing evidence that it was normal procedure for the dental assistants to initiate nitrous oxide without the Respondent being present. All the dental assistants who testified indicated that they only monitor the flow of nitrous oxide or, at most, adjust the flow at the Respondent's explicit direction during a procedure. Although there were no specific factual allegations about it in the Administrative Complaint, the patient L.C. testified that a dental assistant placed a gas mask on her face when her teeth were being extracted. There was no evidence as to how the flow of nitrous oxide was initiated or administered to L.C. Count III--Dental Office Standards Count III charges the Respondent with operating an inadequately staffed dental office for the number and types of treatments performed for her patients and scheduling too many patients, so that unrealistic time limitations had to be placed on her and her staff, resulting in the office being operated below minimum acceptable standards of performance for the community. At most, the evidence showed that the Respondent operated a dental office that was very busy at times; that full schedules sometimes were exacerbated by emergencies that had to be worked around; that this sometimes resulted in office hours having to be extended into the evening; that the office's function would have benefited from an additional dentist; and that dental assistants at times voiced that the patient load was too high. There also was evidence that the office would have benefited from an experienced office manager/appointment scheduler; that the office eventually did benefit when one was hired; and that the office suffered from the lack of dedication and hard work from some of the dental assistants on staff. Some of them not only slacked off, but also even tried to sabotage the office out of personal animosity towards the Respondent and some of her staff. One of these former dental assistant was fired after she stole drugs from the office. There was no clear and convincing evidence that the Respondent had so many patients that she placed unrealistic time limitations on herself and her staff, or that the result was an office being operated below minimum acceptable standards of performance for the community. Count VI--Sedation Count VI charges the Respondent with administering anesthesia in a manner that violated the rules of the Board. The factual basis for this charge included allegations that the Respondent did not have a sedation permit from the Board; that the Respondent provided nitrous oxide sedation; that the Respondent had an unsupervised assistant provide nitrous oxide; that the Respondent had dental assistants start nitrous oxide; that children would be placed on nitrous oxide before she was present; that the Respondent had a licensed anesthesiologist provide I.V. sedation with propofol; and that the Respondent's dental office was not equipped, and her staff was not properly trained, as required by statute and Board rules for the administration of I.V. sedation with propofol. The factual basis regarding nitrous oxide refers to the administration of nitrous oxide in the presence of a licensed anesthesiologist. For approximately one year, between 2010 and 2011, the Respondent contracted with Anesthesiology Associates to provide an anesthesiologist to administer anesthesiology to patients who would benefit from it, since the Respondent herself was not authorized to do so. Sometimes, before the Respondent's arrival in the room to perform dental work, the anesthesiologist would direct one of the Respondent's dental assistants to place a gas mask on the patient and initiate nitrous oxide to relax the patient prior to sedation. These allegations are distinct from the previously discussed allegations that the Respondent herself delegated this task to her dental assistants without her direct supervision. In addition to nitrous oxide, which typically was administered by the anesthesiologist to relax a patient before the administration of other sedatives, the anesthesiologist used propofol, versed, and ketamine. Ketamine is an analgesic and sedative that typically was administered by injection to an uncooperative patient, usually a child, prior to the initiation of other sedation. Versed and propofol were administered intravenously. Propofol provided conscious sedation. Patients would be sedated for as long as necessary to complete the procedure, according to the Respondent's estimate. If the procedure was long enough to require too much propofol, versed would be started to complete the procedure. Versed reduces anxiety and relaxes the patient, but does not provide conscious sedation. During this time period, the anesthesiologist typically would go to the Respondent's office two days a week and provide services for six to ten patients a day. He would bring the required drugs and I.V. and other equipment. Later, the equipment was left in a closet at the Respondent's office and any unused drugs sometimes were left in a locked storage closet in the Respondent's office for use the next time. The next time the anesthesiologist came to the Respondent's office, he would get a key from the Respondent or her staff to access the locked storage closet and would inventory and inspect the drugs and equipment to be sure he had what was needed before beginning the day's work. The Respondent or the anesthesiologist provided a crash cart with a heart monitor and oxygen, which was needed to support the breathing of a sedated patient. There was a defibrillator in the Respondent's office, and the anesthesiologist was certified to provide cardiopulmonary resuscitation, if needed. The anesthesiologist testified that he met all the requirements of his license to provide anesthesiology services at the Respondent's office and had everything he needed to provide those services safely. At some point, the Respondent became aware that the Board required her to have a sedation permit to do what she was doing through Anesthesiology Associates. She applied for the permit. For some time after applying, she continued to contract with Anesthesiology Associates to provide these services, but later terminated the contract because she became aware that her sedation permit had not been issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order: finding the Respondent guilty of violations under Counts I and VI of the Administrative Complaint; imposing a $10,000 fine; suspending her license for six months; placing her on probation with appropriate conditions for six months after the suspension is lifted. DONE AND ENTERED this 5th day of March, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2014.
Findings Of Fact The parties stipulated that respondent is licensed as a dentist in Florida, having license no. 3721 and that, at all material times, he was engaged in the private practice of dentistry in a dental office at 311 South Eighth Street in Fort Pierce, Florida. When her oldest daughter's tooth abscessed in 1964, Jonneaue Rout visited Dr. Brown's office for the first time. He became the Rout family dentist. Mrs. Rout and her thee children, including Karen, visited Dr. Brown regularly, sometimes more frequently than at six-month intervals. Mrs. Rout suffered several dental problems over the years, including toothaches, abscessed teeth, cavities, and sometimes fillings which fell out. She accepted every suggestion Dr. Brown made in connection with her dental health, or in connection with Karen's dental health. She and Karen brushed their teeth conscientiously. She rejected no suggestion for treatment of herself or of her daughter, Karen, on account of expense. Until 1978, Karen had visited no dentist's office but respondent's. In early 1978, Karen Rout visited Drs. Starr and Barkett, orthodontists, to whom Dr. Brown referred her. At the orthodontists' offices, an x-ray film of her mouth was made, which revealed tooth decay. Before beginning their treatment of Karen, the orthodontists referred her to Dr. Dermody, a pedodontist, who first saw Karen on April 19, 1978. The pedodontist had four additional radiographs taken and found the overall condition of her mouth to be poor. He discovered decay in eight posterior teeth, including some five teeth in which respondent had placed white fillings as recently as, in one instance, five months earlier. Shallow cavities that had formed on two upper right molars may well have postdated Karen's last visit to respondent in December of 1977. But green, soft, gross decay underneath little white fillings in lower, left molars demonstrated that significant decay was present when respondent placed the fillings, as respondent himself conceded. Respondent testified that Karen squirmed while he was trying to work on her teeth. Placing fillings in the presence of significant decay does not meet minimum standards of performance for the acceptable practice of dentistry, when measured against generally prevailing peer performance. If decayed matter is not removed before a filing is placed, the process of decay will continue and destroy more of the tooth. Moreover, decay will not hold the filling as well as enamel because it is softer than enamel. Disconcerted by her daughter's problems, Mrs. Rout sought out another general dentist for herself. She chose Dr. Strawn, who first saw her on June 30, 1978. At his instance, panoramic and bite wing x-rays were done on that date. He diagnosed periodontal disease, an inflammatory condition that may cause loss of bone tissue, and which had loosened at least one of Mrs. Rout's teeth. In accordance with his policy with respect to periodontal disease severe enough to cause erosion of supporting tissue or "pockets" deeper than four millimeters, Dr. Strawn referred Mrs. Rout to Dr. Cain, a periodontist. Periodontal disease can cause the loss of perfectly healthy teeth. Its etiology is laid to plaque, the sticky, transparent, bacteria laden, mucus film that coats the teeth. These bacteria can cause inflammation and concomitant softening of the gums which then separate from the teeth giving the bacteria deeper access. Inflammation at deeper and deeper levels can lead ultimately to loss of the bone tissue supporting the teeth. Routine cleaning of the teeth is the most important prophylactic measure against periodontal disease. Once the disease has caused erosion of supporting tissues to a depth of two or three millimeters, routine cleaning does not hinder further erosion, although stimulation from cleaning is good for the gums. When a "pocket" is four millimeters deep, some bone tissue has been lost and there is nothing a victim can do at home to extricate the accumulated plaque or calculus. By the time a "pocket" is 12 millimeters deep, the situation is not treatable. Periodontitis is diagnosed by observing the condition of the gums, measuring erosion around individual teeth with a calibrated probe, and by examining x- rays. A general dentist should be able to diagnose periodontal disease and should either treat it or refer the victim to a specialist. On July 6, 1978, Mrs. Rout first visited the periodontist. At that time, her gums were reddish blue, swollen, and slow to rebound when indented. She had moderate to advanced, generalized periodontitis. Nine teeth were severely involved, with "pockets" ranging up to 12 millimeters in depth. The periodontal disease was chronic and had been present for at least ten years. Mrs. Rout lost one tooth from periodontitis after she began visiting the periodontist and has been given a "guarded prognosis" for four or five other teeth. Dr. Brown was aware that Mrs. Rout had a periodontal problem to some extent when he first saw her, although he never made any indication on her chart of any periodontal condition. Her gums bled from time to time. He became aware that she had a degenerative bone condition, particularly in the upper left part of her mouth where he discovered a deep pocket in mid-1976. He told Mrs. Rout to use dental floss, and a water pick, to brush her teeth, and to have them cleaned regularly. Dr. Brown has never employed a dental hygienist in his office. He cleaned Mrs. Rout's teeth himself, cleaning the clinical crowns and removing all sub-gingival calculus he saw; he performed deep scaling. Dr. Brown does not consider himself an expert periodontist. He believed Mrs. Rout's financial situation was such that she could not afford a periodontist's fees, and he never referred her to a periodontist. Dr. Brown conceded that he probably did tell Mrs. Rout everything was all right on her last visit to him. In addition to the periodontal disease, however, Dr. Strawn discovered widespread decay, missing fillings, and broken- down reconstructions when he examined Mrs. Rout some two months after Dr. Brown last saw her. These conditions existed at the time of Dr. Brown's last examination. At least one filling Dr. Brown placed in Mrs. Rout's mouth (in tooth No. 28) was placed in the presence of significant decay. From about 1964 until July or August of 1979, Mavis Smith went regularly to Dr. Brown for dental care. During this period, except for one occasion in the fall of 1975, when she went to another dentist for a separate opinion, she consulted no dentist other than respondent. She visited Dr. Brown's office often, had cavities filled, teeth extracted, teeth cleaned, and on one occasion, had dental surgery. She invariably abided by Dr. Brown's recommendations and never refused any treatment because of expense. On one visit, Dr. Brown decided that root canal treatment was probably indicated for her lower right first bicuspid. He cut through the crown into the pulp chamber and found a partially viable nerve; ninety percent of the nerve was alive. He twice treated the tooth with paramonochlorophenol or Beechnut creosote, but, through oversight, never completed the root canal procedure by introducing a radiopaque solution into the cavity and sealing the cavity with a filling. In April of 1979, Dr. Brown finished capping Ms. Smith's upper right lateral, upper right central, and upper left central incisors. Later in 1979, Dr. Brown filled a cavity in Ms. Smith's lower left second bicuspid. When the filling fell out, Ms. Smithy decided that she had perhaps eaten too soon after the repair of her tooth and returned to Dr. Brown for a second reconstruction. This filling also fell out, taking a piece of enamel with it. Again, Dr. Brown filled the tooth. When the filling fell out a third time, Ms. Smith consulted another general dentist, Dr. Bancroft. Dr. Bancroft saw Ms. Smith for the first time on August 29, 1979, four weeks after Dr. Brown's third attempt at filling the lower left second bicuspid. On September 14, 1979, Dr. Bancroft removed the decay on which Dr. Brown had placed a filling on August 1, 1979, removed another filling which had been placed in the tooth by Dr. Brown on April 27, 1968, and placed one large filling in Ms. Smith's lower left second bicuspid. In examining the caps on Ms. Smith's incisors, Dr. Bancroft noticed open and overhanging margins. A half-millimeter opening separated the margin of one cap from the margin of the tooth to which it had been cemented. The crowns did not fit properly and their placement was substandard work. On September 26, 1979, Ms. Smith complained to Dr. Bancroft of pain and swelling in the vicinity of her lower right first bicuspid. She had an abscess. Although she told Dr. Bancroft that Dr. Brown had done a root canal procedure on the tooth, roentgenograms revealed that the procedure had not been completed, so Dr. Bancroft performed a root canal procedure on the tooth himself. This procedure was indicated; a pulpotomy would not have been appropriate. Dr. Brown was Kris Fisher's family dentist for ten or eleven years until in September of 1979, she, too, left him for Dr. Bancroft. During the time Dr. Brown was her family dentist, Ms. Fisher went every six months for check-ups and for dental work Dr. Brown recommended. After every visit, she asked whether she was "all right", and Dr. Brown answered affirmatively. Her last visit to Dr. Brown was for the filling of a cavity in her lower left backmost molar. Dr. Brown placed a filling which subsequently fell out. Ms. Fisher returned for replacement of the filling on June 8, 1979 but went to see Dr. Bancroft after the replacement also fell out. On September 9, 1979, Dr. Bancroft discovered a fractured mesial occlusal filling in Ms. Fisher's lower left backmost molar. The mesial portion of the filling was missing. There was extremely extensive decay in the area of the fractured part of the filling which indicated inadequate preparation for the filling and dental work which failed to come up to local and state minimally acceptable standards for the practice of dentistry. There was also decay in other areas of Ms. Fisher's mouth, requiring dental treatment in several areas; seven teeth had decay. From 1966 or 1967 until the latter part of 1978, Herbert C. Brooks relied exclusively on Dr. Brown for dental care, except for the two occasions he went to Dr. Skripak for extractions, on Dr. Brown's referral. Mr. Brooks only has five or six upper teeth, three of which are in bad shape. He has a partial upper denture and will likely soon need a complete upper denture. In the fall of 1978, Mr. Brooks went to respondent because a ten-year-old filling in a front tooth fell out. A week after Dr. Brown replaced the filling, the replacement also fell out. Mr. Brooks returned to Dr. Brown, who, on the second visit, placed a pin in the tooth to augment the filling, which was still in place at the time of the final hearing. Dr. Brown replaced another old filling for Mr. Brooks, this one in his upper right central incisor. Before he did so, Dr. Brown suggested a crown or addition to the partial plate instead of another filling but agreed with Mr. Brooks that the expense might not be warranted in view of the condition of Mr. Brooks' teeth. Dr. Brown advised Mr. Brooks that the filling might not stay. Mr. Brooks' bite is such that his lower teeth hit the backs of his upper incisors, creating considerable pressure. Three or four days after it had been put in, the replacement fell out. Dr. Brown replaced the replacement. Three or four days later, the second replacement also fell out. Mr. Brooks then sought out another general dentist, Dr. Deery. Mr. Brooks complained to Dr. Deery on November 10, 1978, of the broken filling in the upper right central incisor. Dr. Deery caused a periapical x-ray to be taken and advised Mr. Brooks that root canal treatment and a crown were in order. He found gross decay in the tooth, which decay was present at the time Dr. Brown placed the filling, and replaced after it fell out the first time. Mr. Brooks said he needed something done quickly so he could continue his work as a salesman. Dr. Deery acquiesced and placed a filling in the incisor which amounted to a half to two-thirds of the clinical crown involved. Dr. Brown had not used a pin to augment the filling, although in Dr. Deery's opinion, he should have because there was not adequate retention for the filling. Dr. Deery used two pins. Dr. Deery recommended that Mr. Brooks see a periodontist which, however, Mr. Brooks never did. While Mr. Brooks was under his care, Dr. Brown cleaned his teeth occasionally. Dr. Deery found numerous areas of decay in Mr. Brooks' mouth, in addition to generalized periodontal disease. Respondent regularly refers patients who have need of multiple root canal treatments, who need orthodontic care, and who require extraction of teeth to appropriate specialists. Dr. Skripak is the oral surgeon to whom Dr. Brown refers patients in need of oral surgery. In an average week, Dr. Skripak sees five or ten patients referred to him by Dr. Brown. Dr. Skripak has seen 2,000 different patients referred to him by Dr. Brown over the years. Unless a patient brings x-rays with him adequate for his purposes, Dr. Skripak causes x- rays to be made. In every instance, he examines x-rays. On only two or three occasions over a ten-year period did Dr. Skripak tell Dr. Brown that he felt something had been missed. Dr. Skripak averred that he would advise any referring dentist of a problem and has advised others. According to Dr. Skripak, Dr. Brown's work, in general, ranges from standard or adequate to excellent and is, in general, up to the standards obtaining in St. Lucie, Indian River, Martin, and Okeechobee Counties.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license until he shall demonstrate his competency by passing the written and practical examinations administered to applicants for initial licensure as dentists. DONE and ENTERED this 8th day of October, 1980, in Tallahassee, Florida. COPIES FURNISHED: L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202 Rupert Jasen Smith, Esquire 715 Delaware Avenue Fort Pierce, Florida 33450 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980.
Findings Of Fact At all times material hereto, Respondent has been a licensed dentist in the State of Florida, having been issued license number DN 0004795. On April 30, 1981, Fay Ackret, an 84-year-old female with arthritis, consulted Respondent seeking both full upper and full lower dentures, since she had broken the set that she had been using for the last twenty years. Because Ackret's lower ridge was almost non-existent, Respondent recommended a lower cushion denture. Ackret advised Respondent she wanted porcelain teeth. On July 16, 1981, Ackret returned. Respondent examined her, and preliminary impressions were taken for the full upper and full lower dentures to be constructed with porcelain anterior teeth, and acrylic posterior teeth. Final impressions were taken on July 23, 1981; additional measurements and a bite block impression were taken on July 30, 1981; a try-in was done on August 5, 1981; and the dentures were delivered on August 12, 1981. Thereafter, Ackret returned for adjustments on August 18, 1981; August 31, 1981; November 12, 1981; November 18, 1981; December 15, 1981; January 6, 1982; January 11, 1982; January 19, 1982; February 2, 1982; February 15, 1982; February 24, 1982; March 2, 1982; March 8, 1982; and March 23, 1982. One of those visits involved, according to Respondent's records, a "major adjustment" and on one visit, her dentures were sent back to the lab for rearticulation. On June 3, 1982, Dr. Marshall A. Brothers examined Ackret on behalf of Petitioner. Ackret complained to him of pain and of not being able to function with her dentures or to retain them in her mouth during functioning. However, Ackret was wearing the dentures when she was seen by Brothers. Based upon his examination of Ackret and her dentures, Brothers concluded that the dentures Ackret got from Respondent failed to meet minimum acceptable standards due to numerous defects. The opinion of Brothers fails to take into account the numerous adjustments made to the dentures in an attempt to make Ackret comfortable with her new dentures. The number and kind of adjustments render the denture seen by Brothers to be substantially different than the denture originally fabricated by Respondent. Additionally, Ackret's lower denture had undergone a hard reline by the time she was seen by Brothers. Although Ackret had complained to Brothers that she could not eat with her new dentures and could not function with them, she in fact was wearing them for her visit to Brothers, and Brothers noted that food had collected on them, indicating that Ackret was in fact using her dentures for eating. On December 7, 1982, Ackret appeared at the dental office of Dr. Harry B. Gaulkin. She advised Gaulkin that her upper denture gave her no problems at all, but that her lower denture was not comfortable. She further advised that she could not chew well with the lower denture, and that it was loose. She then requested that Gaulkin make a new set of dentures for her, both full upper and full lower. Gaulkin initially suggested to Ackret that she simply consider a soft reline on the lower denture since the upper denture was not problematic. After Gaulkin discussed with her her various options and the prices thereof, Ackret left his office to think about what she wanted to have done. She has never returned. Gaulkin is not able to identify Ackret's exact complaints regarding her lower denture and did not note any defects in the set of dentures. A few months prior to the final hearing in this cause, Ackret appeared at Respondent's office complaining that she had broken a tooth off her denture.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed against Respondent herein. DONE and ORDERED this 20th day of January, 1985, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, NJ 07201
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.
The Issue Whether or not from January, 1975 until December, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Victoria Lynn Bandosz, who during said time routinely and customarily performed certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits form the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S. , as set forth in Count 1 of the Accusation. Count 1 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from January, 1975, until August, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Janet Amato, who, did during said time routinely and customarily perform certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S., as set forth in Count 2 of the Accusation. Count 2 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not on or about December 23, 1974, Dr. Richard Blustein did carelessly and mistakenly remove several teeth from Shawn McAfee, a minor, when in fact, said teeth should have been removed from Kerry McAfee, sister of Shawn McAfee, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) and 466.24(3)(c)(d), F.S., as set forth in Count 3 of the Accusation. Count 3 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not prior to December 2, 1974, Dr. Richard Blustein treated Helen Rosen and during said treatment failed to diagnose and/or properly treat advanced periodontal disease and further improperly designed, constructed and installed a six-unit splint in the mouth of said Helen Rosen, said acts allegedly being in violation of Chapter 466, F.S., and in particular s. 466.24(2) or 466.24 (3)(c)(d), F.S., as set forth in Count 4 of the Accusation. Count 4 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from June, 1974, until December, 1975 Dr. Richard Blustein failed to provide and maintain reasonably sanitary facilities and conditions in and about his office and person, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(1), F.S., as set forth in Count 5 of the Accusation. Count 5 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, in 1974 and 1975, Dr. Richard Blustein treated Milton Lane and did construct and install in the mouth of said Milton Lane a set of upper and lower dentures, which set of upper and lower dentures never fit properly and were never adjusted to fit properly, despite repeated attempts by Dr. Richard Blustein to correct or adjust said dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 6 of the Accusation. Count 6 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, prior to March 17, 1975, Dr. Richard Blustein treated professionally Sarah Rees and while treating or attempting to treat said Sarah Rees, failed to diagnose and/or properly treat periodontal disease, prepared and installed crowns which were inadequate in design, construction, retention and installation, and placed several inadequate restorations, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(c)(d), as set forth in Count 7 of the Accusation. Count 7 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 8 in the Accusation charging violations of Chapter 466, F.S. and in particular, s. 466.24(2), 466.24 (3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing. Whether or not, during 1975, Dr. Richard Blustein treated Bill Soforenko, and during the treatment of said Bill Soforenko, prepared, constructed and installed a porcelain to gold full arch splint, which was entirely inadequate and unacceptable in preparation, design, construction and installation, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 9 of the Accusation. Count 9 had originally charged the violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 10 concerning certain children referred to him by the Academy of Dentistry, charging violations of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing.
Findings Of Fact Dr. Richard Blustein, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, F.S., under a license issued August 7, 1964, bearing No. 3716, and was at the time of the acts described in the Accusation engaged in the practice of dentistry at 417 St. James Building, Jacksonville, Florida. In November, 1974, Janet Amato started to work for the Respondent as a dental assistant. She was hired to take X-rays and impressions, clean up operatories set up operatories and assist the dentist in various capacities. She had attended the Florida College of Medical and Dental Assistants at Jacksonville, Florida and graduated as a dental assistant in 1969. After her employment began, she commenced to do those things indicated in her job function. In January, 1975, she attended a polishing course designed to instruct on the polishing of clinical crowns which was held at the Florida Junior College. This course was designed to teach the students to polish with a prophy angle and polishing cup with pumice. After completing the course, Janet Amato began polishing the teeth of patients who had been scaled by the dental hygienist or dentist in the office. Dr. Blustein was aware of this activity. Sometime in the month of February, 1975, Janet Amato began to do the scaling of patients. Janet Amato was not a dental hygienist at any time material to the accusations. Janet Amato learned the scaling procedure by watching Dr. Blustein for a period of three or four months on the basis of once or twice a week. When she began to do this scaling, Dr. Blustein would say, "Honey, go in, and clean this one's teeth, you know", and at times mentioned the word "scale". Janet Amato did this procedure using a hand scaler, as much as ten times a week from February, 1975 through July, 1975. In July or August, 1975, she was placed as a receptionist in Dr. Blustein's office and only did scaling once or twice a week when the hygienist would get behind. This procedure continued until January, 1976. After January, 1976, Janet Amato did not do further scaling and resigned her job with Dr. Blustein in March, 1976. The aforementioned scaling done by Janet Amato was subgingival only on those occasions when she would try to retrieve some debris that had fallen below the gum line. This scaling spoken of was done with the knowledge of Dr. Blustein and under protest of Janet Amato, as evidenced by her remarks to the Respondent that she did not feel qualified to do that procedure, to which Dr. Blustein responded that she would do it anyway. While employed by Dr. Blustein, Janet Amato was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Janet Amato how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with the laboratory burr. This process was done by Janet Amato as much as ten times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Janet Amato was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber bands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. The application of these brackets was made four or five times between February, 1975 and July, 1975, by Janet Amato. Victoria Lynn Bandosz started to work for Dr. Blustein in his dental office, in February, 1974, while Ms. Bandosz was an eleventh grade student at Wolfson High School. This work was done on Saturday and the duties included calling patients in, setting up operatories, taking X-rays, cleaning instruments and putting them away. The schedule of work gradually changed from Saturday to Saturday and after school, and finally a full-time employment in the summer of 1975. Ms. Bandosz performed those functions, as indicated before, until January, 1975, at which time she took a polishing course at Florida Jr. College designed to teach her how to handle instruments and to polish teeth. This course was the same course attended by Janet Amato. She began to do this polishing and was gradually worked into scaling. According to Ms. Bandosz, the Respondent would introduce her to a patient and say that she was to clean the teeth because the office was busy. She began to do scaling over a period of time and protested doing this type activity, but received no response to her complaint about having to do scaling. Ms. Bandosz indicated that Dr. Blustein appeared too busy to respond. The scaling that Victoria Lynn Bandosz did included work by hand scaler and by use of a Cavatron and commenced a few weeks after the polishing course was completed. The scaling done included the removal of calculus on the surface of the tooth and subgingival scaling. She learned this scaling, according to the witness, by watching the office dental hygienist. A schedule of doing the scaling would include as many as three or four times a week during the summer months and fall of 1975. In December, 1975, Victoria Lynn Bandosz left the employ of Dr. Blustein to attend school. While employed by Dr. Blustein, Victoria Lynn Bandosz was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Victoria Bandosz how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with, the laboratory burr. This process was done by Victoria Bandosz as much as five or six times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Victoria Lynn Bandosz was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber brands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. Among the patients being treated by Dr. Blustein in 1974, were Carol Diana (Kerry) McAfee, who was 10 years old at the date of the hearing and Sean McAfee, who was 8 years old at the time of hearing; sister and brother respectively. According to the questionnaire and chart on Sean McAfee and further testimony given in the course of the hearing, Sean McAfee had been seen by Dr. Blustein in April, 1974, on two occasions, one occasion being April 27, 1974, at which time an extraction was made of the right upper deciduous central and for X-rays in a second visit on April 29, 1974. Dr. Blustein recalls the extraction being in March, 1974. Some of this information is shown in Petitioner's Composite Exhibit #9, admitted into evidence. The Petitioner's Composite Exhibit #9 also shows the questionnaire and chart of Carol Diana (Kerry) McAfee, showing visits on November 30, 1974, and December 7, 1974. In the month of December, 1974, the young girl Kerry McAfee was taller than her brother Sean, with long blond hair, while Sean McAfee was stockey and had hair which did not go below the level of the ears. The two children do not resemble each other in other matters of appearance. Prior to December 12, 1974, Carol Diana (Kerry) McAfee had been seen by Dr. Harry L. Geiger, who specializes in orthodontics and then referred to Dr. Blustein through the person of Dr. Geiger for purposes of extraction of the maxillary and mandibuar primary canines. This referral was by correspondence of December 12, 1974, which is Petitioner's Exhibit #1, admitted into evidence. On that same date Dr. Geiger prepared a form which indicated the location of the teeth. to be extracted. This form is a part of Petitioner's Composite Exhibit #9. An appointment was made with Dr. Blustein's office to have the extraction made from Kerry McAfee on December 23, 1974. Due to the proximity of the Christmas holiday, employees within Dr. Blustein's office were contacted and an arrangement made to substitute the appointment of Kerry McAfee for one of Sean McAfee who was to have his teeth cleaned around that time period. This substitution of appointment was made one week prior to the scheduled appointment. When the patient, Sean McAfee, arrived at the Respondent's office he was taken to an operatory to be seen by the Respondent. Dr. Blustein had with him in the operatory the letter which is Petitioner's Exhibit #1 and a set of X-rays pertaining to Carol Diana (Kerry) McAfee. There is some question about whether or not the form which is part of Petitioner's Composite Exhibit #9 was in the operatory. The letter of December 12, 1974 from Dr. Geiger in its reference lines references Carol Diana (Kerry) McAfee - Age: 8 years, and Dr. Blustein indicated that he read this letter and observed the X-rays on Carol Diana McAfee prior to his work. He indicated that the X-rays on Carol Diana (Kerry) McAfee appeared to be similar to what he found in terms of the actual condition in the mouth of Sean McAfee. He then proceeded to extract two of the teeth that were indicated to be removed but he made the extraction on Sean McAfee, as opposed to Carol Diana McAfee. One of Dr. Blustein's patients, beginning August 6, 1974, was Mrs. Helen Rosen. Mrs. Rosen had last seen a dentist about a year prior to that and had had upper dentures made two or three years prior to August, 1974. The radiographic examination made by the Respondent showed that the patient was missing all of her upper teeth and was missing all but seven other teeth, which teeth showed severe periodontal involvement. The patient was a diabetic and clinical evaluation showed bone resorption. The patient on that date was wearing an upper denture which was causing problems due to the lack of a ridge and due to impediment in the muscle attachments. The lower natural teeth were mobile, to a high degree and the lower partial was contributing to that mobility. Further observation showed poor patient hygiene. The X-rays that were taken at that time are Respondent's Exhibit #9 admitted into evidence. The patient was told that she needed much dental work, specifically that she needed surgery on the upper jaw to relieve the muscle attachment, a mucobuccal full procedure to eliminate the frenum to allow her to wear her dentures. The patient by explanation was told that the dentures were irritating the upper ridge severely. The patient was also told that there was bone destruction in the upper jaw and that in addition to the upper jaw, surgery on the lower jaw was needed, which Dr. Blustein felt that he could do. After that surgery, Dr. Blustein indicated that a splinting procedure would be needed on the remaining natural teeth and as a part of that process that a new partial would be made. The prognosis for saving the natural teeth was poor due to the condition of the teeth, but the patient wanted to attempt to save those teeth. Subsequent to that date the Respondent performed a mucoperiosteal flap (an apical repositioning flap). This procedure was performed on August 20, 1974. Photographs of this procedure are shown in Respondent's Exhibit #6, admitted into evidence. Those photos also show the placement of the splint on the natural teeth. Other treatment which was performed on Mrs. Rosen by Dr. Blustein included a visit of August 14, 1974, in which preparation was made on the lower interior plastic temporaries, the temporary splint on the remaining natural teeth, to prepare for periodontal surgery. An adjustment was made on this splint on August 15, 1974. As mentioned, the surgery, on the lower apical repositioning flap was done on August 20, 1974 and involved curettage in between the teeth, root cleaning in between the teeth, suturing in between the teeth and the surgical procedure itself. On August 27, 1974, the dressings and sutures were removed. On September 15, 1974 a bite impression was taken in preparation to construct a permanent splint device. On September 20, 1974, a shade was taken. On October 12, 1974, the casting on the splint was tried and on October 14, 1974 the lower teeth were cemented. This was followed on October 16, 1974, with a bite impression and on October 21, 1974 width an adjustment. A final impression was taken on October 25, 1974, this time of the upper dentures. In the beginning of November 1974 the dentures were remade and adjusted on two occasions. In November a discussion was entered into about the problem with the upper arch and Dr. Blustein indicated to the patient that she might get a second opinion on the need for surgery. At that time Dr. Blustein indicated that he was not through with the splint and it had only been placed to control mobility patterns. . . The partial spoken of at this time was the partial being constructed by the Respondent. Finally on February 27, 1974, upon consultation, the patient was told that she needed ridge adjustments on the upper arch. Dr. Ronald Elinoff D.D.S. saw Helen Rosen on December 2, 1974, as an accommodation to one of his patients, whose mother is Helen Rosen. Dr. Elinoff found a full set of upper dentures with a lower splint and partial with dalbo attachment, the splint being a seven unit device. This splint was on the lower arch and was placed around the only natural teeth in the patient's mouth. The embrassure spaces were closed on the splint, meaning those spaces underneath the solder joints or where the connection ends on the splint. The conture in the bolt that was there was impinging upon the ability of the patient to keep the splint clean, thereby promoting constant irritation. The tissue was grossly inflamed and would easily bleed upon touch and was a bluish redish color, unhealthy in appearance. There was minimal pocket depth, by that, the depth between the gum and the teeth. The minimal amount of bone shown growing beneath these teeth promoted stress on the teeth. The crowns were too long for the bone supporting root structure in that they were approximately three times as long as the root of the teeth, wherein a one to one ratio is desirable. The junction between where the casting ends and the tooth structure begins was very thick and the porcelain on the crowns had been chipped off, leaving an open area. The margins on the crowns were thicker than normal limits of tolerance. By Dr. Elinoff's observation, the mobility of the teeth was 3+. The patient was referred to Dr. Richard Miller, D.D.S., a periodontist. Dr. Richard L. Miller, D.D.S., specializing in periodontics saw Mrs. Rosen on December 5, 1974. By his observation, Mrs. Rosen had periodontal disease about the remaining seven teeth and the lower anterior, plus lower right first bicuspid teeth had been splinted. There was generalized hemorrhaging on probing, synosis and the pocket depth about the teeth indicated mucogingival problems. The splint mobility was 1+. The remaining roots and the bone were not adequate to support the removable partial denture splint. The splint design made it hard to maintain health, in that there were no embrassure spaces and the contact areas were bulky. The margins on the crowns did not fill well and were bulky. The cement which had been used to place the splint could be seen and there was fractured porcelain around margins of the restoration. According to Dr. Miller, these bulky margins contribute to periodontal disease, by causing irritation and attracting plaque. This cement that was observed was felt to be permanent cement. On February 5, 1975, Dr. Seth Weintraub, D.D.S., specializing in periodontics saw Helen Rosen. He examined the remaining seven mandibular teeth and found a periodontal condition which was fairly arrested. The patient lacked gingival tissue in the lower left cuspid and it was his feeling that correction of the muscle pull in that area by free gingival graft to establish an adequate zone of gingival tissue could be done. His impression of the splint or bridge was that it was adequate for present if the oral hygiene improved, but the marrying of the crown was generally poor. On March 18, 1975, Dr. Jack K. Whitman, D.D.S., specializing in periodontics saw Helen Rosen upon the referral of Dr. Weintraub. His observation revealed a gingiva which showed 3 millimeters space, (normal appearance being 2 to 3 millimeters), with slight irritation and some gum irritation. The patient was shown to have seven remaining mandibular teeth. The margins of the prosthetic device (splint) was bulky and was irritating the gingiva. The appearance of the patient's mouth showed bone loss and degeneration occlusion. From June, 1974 until December, 1975, the Respondent would on occasion move from the examination of one patient, in a particular operatory over to a second operatory to see a second patient, and could do so without washing his hands. This examination of the second patient would include touching the mouth of the patient. On occasion Dr. Blustein would also move from the examination of one patient in an operatory to the frontdesk area of the office and look into and touch the patient's mouth at the desk, without washing his hands. During the time period, June, 1974 until December, 1975, roaches were observed in the instrument trays which had been placed in cabinets within the office. These instrument trays contained dental instruments. There was no autoclave bag over these instruments and the roaches could be seen crawling about the instruments and roach eggs could be found in the instruments. The office was found in an older building in Jacksonville, Florida, known as the St. James Building. Within his office complex food was kept by the employees. In addition there were a number of other professional offices in the immediate area. The Respondent had made arrangements for periodic pest control treatment and had a separate cleaning crew within his office, in addition to the janitorial service offered by the building maintenance. The office also contained a number of autoclaves, one for each operatory; steam heat cleaning; sterilization; hot oil sterilization; dry heat sterilization; and hexacholrophy in all operatories. During this period and at all other periods in which testimony was offered, there was no report of any incident of infection within patients. On June 10, 1974, Milton Lane became a patient of Dr. Blustein. Mr. Lane had come to Dr. Blustein to have a complete set of dentures made, to replace the dentures that he already had. On the June 10, 1974 visit Dr. Blustein took upper and lower alginates. The next day, June 11, 1974, Dr. Blustein took a bite impression and made base plates to get the midline. On June 14, 1974, there was a trying of the teeth and a final impression was made. June 19, 1974, the dentures were inserted and on June 24, 1974 another adjustment was made to the dentures and reline impression was made in an attempt to get a tighter fit. The patient returned on June 26, 1974 for further adjustment and on July 6, 1976 the teeth were remade, in that a new set was fitted. On July 15, 20, and 22, 1976, further adjustments were made. During this time period when Mr. Lane would try to eat his food the dentures would flop around in his mouth and after repeated problems Mr. Lane was referred to Dr. Rupert O. Bliss, D.D.S., based upon a complaint that Mr. Lane had made to the Better Business Bureau. At that time, Dr. Bliss was acting as the chairman of the local dental grievence committee. Dr. Bliss saw Mr. Lane in August, 1974 and Dr. Bliss's observations revealed that the dentures were trimmed on the peripheries and that the dentures were thick in the paletal region of the upper denture, with the teeth in the lower dentures being set "buckley to the ridge", thereby lessening the stability of the dentures. On balance, the dentures were found to be ill fitting. After his examination of the patient, Dr. Bliss wrote Dr. Blustein on August 16, 1974 in his capacity as chairman of the local grievence committee. Dr. Blustein offered his reply to this letter through his answer of August 21, 1974. The contents of these letters may be found in pages 488 and 489 of the transcript of record in the hearing. Dr. Bliss had other observations to the effect that the dentures did not fit the tissue of the ridges, although he felt that Lane had adequate ridge tissue. Dr. Blustein felt that one of the problems with the fit of the dentures had to do with the liquidity of the saliva of the patient, Lane. Dr. Blustein observed that the saliva was not sufficiently sticky to allow a smooth insertion of the dentures and felt that the patient would always need to use some form of dental paste to achieve a satisfactory fit. After the contact between Dr. Bliss and Dr. Blustein, Mr. Lane returned to Dr. Blustein's office of September 13, 1974 for purposes of taking impressions for another set of dentures. On October 1, 1974, Dr. DePaul who was working in the office with Dr. Blustein took an impression on the patient, Lane, to see if he could make a more satisfactory adjustment. On October 5, 1974, Mr. Lane made his last visit to the office of Dr. Blustein at which time the new teeth were inserted and the patient was told to come back if he had further difficulty. The patient did not return to the office of Dr. Blustein. When the patient appeared at the hearing as a witness he was still utilizing the last set of dentures that had been prepared by Dr. Blustein. Between November 28, 1973 and June 13, 1974, Dr. Blustein saw the patient Sara Rees. Mrs. Rees came to see Dr. Blustein because her husband had been seen by the Respondent and because his estimate on the cost of doing needed dental work was satisfactory to her. When Mrs. Rees came to Dr. Blustein she had certain radiographs (X-rays) that had been taken by Dr. Charles Weaver, D.D.S. on November 6, 1973. These radiographs are Respondent's Exhibit #4, admitted into evidence. Dr. Blustein's initial examination revealed a high level of caries, soft teeth and problems with fillings that were falling out. Dr. Blustein crowned seven teeth using pins to place the caps, in which gold caps and cast pins were utilized. This work may be seen in Petitioner's Exhibit #8, admitted into evidence, which is a series of radiographs taken by Dr. Roy Clarke, D.D.S. As a part of that exhibit #8 attached is a radiograph showing the date of March 11, 1975 as taken by Dr. David M. Mizrahi, D.D.S., a specialist in endodontics. This crown work involved the upper right second molar, upper right first molar, upper right first bicuspid, upper left second molar, upper left first molar, lower first molar, lower right first molar, teeth. At the time Mrs. Rees was seeing Dr. Blustein, she had also been referred by her former dentist, Dr. Charles Weaver to see Dr. David M. Mizrahi, for purposes of having certain endodontic procedures, root canal work. While seeing Dr. Blustein, Dr. Mizrahi performed root canal work on two teeth, one of which was the upper right first bicuspid. Dr. Mizrahi had told Mrs. Rees that there was a 50 percent chance that she would need a root canal done on that tooth; nonetheless, she wanted the crown tried out first before having to have root canal work done. This tooth presented special problems for Dr. Blustein in that there was very little tooth left for the cast pin to set against. Dr. Blustein installed a crown on the subject tooth, but the root canal was subsequently necessary to be performed. Another root canal was performed on a third tooth of Mrs. Rees; however, this root canal work was done while the patient was seeing a Dr. Robert Williams, D.D.S. During the pendency of Mrs. Rees' treatment by Dr. Blustein she began to have problems with the crowns falling off, the initial occasion being while Dr. Blustein was trying out the temporaries and this temporary was reinserted by Dr. Watkins, D.D.S., a dentist at Jacksonville Beach, Florida. In March of 1974, the crown on the upper right first bicuspid fell off and was recemented by Dr. Blustein. A couple of months later this same crown fell out and was recemented by Dr. Robert Williams. Shortly, before seeing Dr. Robert Clarke in March or April, 1975, this same crown and another crown fell off. At a point in time when Mrs. Rees was seeing Dr. Mizrahi for the root canal work, she determined to see Dr. Roy F. Clarke, Jr. upon the basis of a referral which had been made by Dr. Mizrahi. To Dr. Clarke's recollection, this referral was made for treatment of a maxillary right second bicuspid tooth that was not being retained. Dr. Clarke worked on the upper right first bicuspid tooth spoken of before, by rebuilding the foundation and making a provisional crown. The case was then turned over to Dr. Robert Williams at the request of the patient. While treating Mrs. Rees, Dr. Clarke prepared the radiographs which are Petitioner's Exhibit #8, as mentioned before, and made a clinical examination. The clinical examination revealed advanced periodontal disease in the posterior teeth, in which the level of disease was between 6 and 7 millimeters in probe depth. There was bleeding and puss formation in the gum area with severe occlusion. The upper right first bicuspid tooth had a perforation in the side of the root below the gum line. There was a pin perforation in the outside of the lower left first molar. There was leakage around the crowns and recurrent caries, with generally poor margination. Specifically, there was poor margination in the upper left as shown by the letter B on Petitioner's Exhibit #8, and space left filled with cement closing off the possibility of the healthy gum tissue surviving. On the lower right hand side, as shown by the letter C in Petitioner's Exhibit #8, there were thick margins, irritated gum and bone. On the upper right, as shown by the letter D in Petitioner's Exhibit #8, there were thick margins on the distal of the upper right first molar, with cement closing off the area of that proximal space. The problems with the margins were causing problems of retention of the teeth. The crowns that were in place were felt to be of such quality as to need replacing, based upon Dr. Clarke's testimony. Respondent's Exhibit #5 is a copy of the office records kept by Dr. Roy F. Clarke, Jr., on the patient Sarah Rees. Bill Soforenko came to see Dr. Blustein about his dental problems and Dr. Blustein told Mr. Soforenko that he had periodontal disease. Dr. Blustein then sent Mr. Soforenko to see Dr. A. Robert Romans, D.D.S., specializing in periodontics. Dr. Romans saw Mr. Soforenko on January 11, 1974 and at the time of his examination found that the patient had several missing teeth, inflammatory periodontal disease and the need for extensive periodontal therapy and substantive restorative work. Discussion of these needs was entered into with Dr. Blustein by correspondence of January 28, 1974, from Dr. Romans to Dr. Blustein, a copy of this correspondence being Petitioner's Exhibit #2, admitted into evidence. In addition, Dr. Romans took certain oral radiographs and on February 5, 1974, discussed those teeth to be removed with Dr. Blustein, the preparation for periodontal treatment, the need for the replacement of temporary bridges, and other matters. Dr. Romans determined that the upper left incisor number 9, and the upper left first permanent molar, number 14, should be removed and an upper acrylic provisional splint placed in the entire upper arch to be used as temporary stabilization until the periodontal disease could be controlled and subsequent disease could be broken down, before allowing Dr. Blustein to make a final splint of porcelain to gold. Dr. Blustein installed a provisional splint and on July 10, 1974, Dr. Romans took out the splint and under local anesthesia performed subgingival curettage, after which the splint was replaced. Between July, 1974 and December 6, 1974 the remainder of periodontal treatment was performed including surgery and this was the last time the provisional splint was seen by Dr. Romans. The periodontal disease seen by Dr. Romans was generalized moderate to severe in a chronic state, identified as compound periodontitis which was caused by bacteria and bacteria by-products. The surgery performed by Dr. Romans was a full thickness mucoperiosteal entry, in which the upper arch was done August 6, 1974 and the lower arch was done on September 30, 1974.. The worst teeth of Mr. Soforenko had been removed prior to the surgery. After December 6, 1974, Dr. Romans referred Mr. Soforenko back to Dr. Blustein for the construction of the permanent splint device. When Dr. Blustein saw Mr. Soforenko, the temporary had started to decompose and Dr. Blustein placed the permanent splint device, as soon as possible, to achieve stability within the patient's mouth. At the time this was done, the patient's mouth was red and inflamed and the patient had not been doing home care to the knowledge of Dr. Blustein. Dr. Blustein anticipated that Mr. Soforenko would return to Dr. Romans for whatever attention was necessary to the gums of the patient, and made an appointment for Mr. Soforenko to return for a bite adjustment. On June 9, 1975 Mr. Soforenko was seen by Dr. Romans for evaluation of the restorative work and recall prophlaxis and polishing, together with oral hygiene instructions. At that point the permanent splint had been constructed and installed by Dr. Blustein, this splint being a 14 unit device with eleven crowns and three missing teeth. The teeth found in the splint are as shown in Petitioner's Exhibit #3, admitted into evidence, which is a letter written from Dr. Romans to Dr. Blustein discussing the quality of the splint. On that same date certain photographs were made of some of Mr. Soforenko's teeth in the splint, to include all those teeth in the splint except numbers 10, 11, and 13. These photographs are Petitioner's Exhibits #4 - #7, admitted into evidence. Petitioner's Exhibit #4 shows the upper eight anterior teeth and accompanying gingival unit as it pertains to the permanent porcelain fused-to-gold splint. The photographs depict quite severe marginal irritation and inflammation, the margins are rough, thereby harboring bacterial plaque and promoting an inability to clean the teeth properly. The margins are very thick in all the teeth in the splint and the depth of these margins is shown in Petitioner's Exhibits #5 - #7, which evidence a periodontal probe placed in the gingival sulcus. In Petitioner's Exhibit #5 the probe is placed in the margin of the upper central incisor, number 8, and the margin is approximately one millimeter thick. The probe being utilized in that photograph is a blunt instrument as opposed to a sharp explorer instrument. This probe is a University of Michigan no. 0, with William's markings. Petitioner's Exhibit #6 shows the upper right lateral incisor, number 7, with the periodontal probe in place. Petitioners Exhibit #7, shows the periodontal probe placed in the upper right cuspid, number 6. The margin in Petitioner's Exhibit #6 is between 1 millimeter and 1-1/2 millimeter in thickness, and the margin in Petitioner's Exhibit #7 is between 1/2 millimeter and a millimeter thick. All other teeth within the splint by Dr. Roman's observation had similar problems in margination, as shown in Petitioner's Exhibits #5 - #7. The photographs also show a redish serus fluid, which is an exudate, indicating the inflammation of the gums. Dr. Blustein did not see Mr. Soforenko after the June 9, 1975 visit to Dr. Romans and when Dr. Romans saw Mr. Soforenko on July 9, 1975, the condition of the splint was the same as found on June 9, 1975.
Recommendation It is recommended that license NO. 3716 to practice dentistry held by the Respondent, Richard Blustein D.D.S., with the Florida State Board of Dentistry be revoked for violation of Chapter 466, F.S. however, the said revocation should be withheld pending satisfactory completion of five years probation, during which time the Respondent must satisfactorily comply with all requirements of law pertaining to his profession as a dentist. DONE and ENTERED this 31st day of January, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Thompson Tygart, Jr., Esquire 609 Barnett Regency Tower Regency Square Jacksonville, Florida 32211 Albert Datz, Esquire 320 Southeast First Bank Building 231 East Forsyth Street Jacksonville, Florida 32202 State of Florida Department of Professional and Occupational Regulations Division of Professions Board of Dentistry c/o Mrs. Charlotte Mullens Executive Director 2009 Apalachee Parkway Suite 240 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION DIVISION OF PROFESSIONS, BOARD OF DENTISTRY FLORIDA STATE BOARD OF DENTISTRY, Petitioner, vs. CASE NO. 76-700 RICHARD BLUSTEIN, D.D.S., Respondent. /
Findings Of Fact The Respondent, James A. Ford, D.D.S., is the holder of license No. 5715, which is held with the State of Florida, State Board of Dentistry. A copy of this license may be found as Petitioner's Exhibit No. 1 admitted into evidence. At all times pertinent to the charges in this cause, Dr. Ford was the holder of the aforementioned license. On April 18, 1977, the administrative accusation which is the basis of this case was brought against Dr. Ford. Dr. Ford was duly apprised of that accusation and requested a formal hearing to challenge the administrative accusation. The administrative accusation may be found as a part of Petitioner's Composite Exhibit No. 2. The initial count in the administrative accusation pertains to the care and treatment of Mrs. Henry Good. Mrs. Good was also identified in the hearing as Gladys Good. Mrs. Good went to Dr. Ford's office for the purpose of being treated by a Dr. Foley who had semi-retired at the time she went for treatment. The purpose of going to the office was to have a maxillary full denture constructed. Dr. Foley was not working in the office at that time and the patient was seen by Dr. Ford. When she came to the office she had been a denture wearer for a period of 20 years and the last set of dentures had been fabricated 15 years prior to her office visit with Dr. Ford. The Respondent took impressions and asked Mrs. Good to return for a try-in of the actual dentures. The new dentures were painful to Mrs. Good and were difficult to retain, in that they kept falling down in her mouth. Dr. Ford advised her to keep trying to make the dentures work and to wear them day and night. At some point an argument ensued between Dr. Ford and the patient, Mrs. Good, at which point Dr. Ford explained to the patient that if she could not rely on his instructions and what he told her about the problem, then he would no longer treat her. The patient then demanded that her money be reimbursed and Dr. Ford refused and the patient did not return. Petitioner's Exhibits 14 and 15 are receipts given to Mrs. Good for the payment that she gave to Dr. Ford for the treatment. The dentures in question may be found as Petitioner's Exhibit 16, admitted into evidence. Mrs. Good tried to wear the dentures after leaving the care of Dr. Ford, but the dentures kept falling down. Finally, Mrs. Good made a complaint to the Broward County Dental Association and was eventually referred to the Petitioner for purposes of investigating her complaint. One of the aspects of the investigation of the complaint was to have other dentists review the history of the complaint, together with an inspection of the dentures and an examination of the patient. One of the doctors involved in the examination of Mrs. Good, for the benefit of Petitioner, was Dr. Mervyn J. Dixon, D.D.S. Dr. Dixon is a dentist licensed with the State of Florida and is a member of the Broward County Dental Association, the Atlantic Coast Dental Society, the Florida State Dental Society, the American Dental Association, the Academy of General Practitioners, and the Broward Research Clinic. He is also Secretary-Treasurer of the Broward County Dental Association. His knowledge and experience in the field of prosthetics began with four months practice while in the armed services. He is a member of the Prosthetics Section of the Research Group in Palm Beach County, Florida, which meets once a month and does only prosthetics. Dr. Dixon has also been involved in the administration of the Petitioner's State Board Exams, specifically, checking the setups in the portion of the examination dealing with prosthetics. This function was preformed in the summer of 1977. After his initial practice in the armed services he has continued to work in the field of prosthetics. His total experience in the construction of prosthetic appliances would number at least 1,000. Finally, Dr. Dixon is also an assistant Secretary- Treasurer for the Florida State Board of Dental Examiners of the State Board of Dentistry. Dr. Dixon saw Mrs. Good on March 16, 1977. Her complaint to him was that the upper denture would not stay up and that the denture was too big. Dr. Dixon reviewed the condition of the maxillary denture, which is Petitioner's Exhibit 16. One of the aspects of the examination, was to have the patient try the dentures in her mouth. When he observed the dentures in her mouth he found that they would not stay up, except when the patient bit down and held the dentures in position against the lower partial and lower natural dentition. When she opened the mandibular portion of her mouth the upper denture would fall down. The peripheral or outer border of the denture which had been fabricated by Dr. Ford was over extended in the canine area, to the extent that when you pushed up there was resistence or the denture would drop back down. The over extension was approximately 5 millimeters beyond where the roll of the sulcus is found. This caused an elastic reaction when he tried to push the tissue up. (This reaction is similar to the elasticity found in a rubber band.) A contraction then takes place and the dentures come down. The post-dam was not adequate the post-dam being an excessive acrylic in the posterior part of the denture. This caused a problem with retention. Dr. Dixon felt that the denture did not meet minimum acceptable standards of the community for prosthetic devices. In view of the observations by Dr. Dixon and the complaints by Mrs. Good, the Petitioner charged the Respondent with a number of violations which were reflected in the Issues section of this recommended order. Several of those provisions are set forth in Section 466.24(3)(a), (c) and (d), F.S. The language of those sections states the following: "Suspension or revocation of license certi- ficate for cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it establishes to its satisfaction that he: * * * (3) has been guilty of: (a) misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession; * * * malpractice; willful negligence in the practice of dentistry or dental hygiene" An examination of the facts in the case of Mrs. Good establishes misconduct in Dr. Ford's business that would bring discredit upon the dental profession. The facts spoken of include the fabrication of the highly unacceptable maxillary dentures and the insistance that the patient be required to accept them, and the further insistance that the patient be dismissed because of her unwillingness to accept the dentures. The same facts of Mrs. Good's case are so flagrant, that it would constitute malpractice within the meaning of Chapter 466, F.S. The act of constructing an inferior maxillary denture and causing the patient to wear that denture, in opposition to constructing a serviceable denture, constitutes willful neglect in the practice of dentistry as described in Section 466.24(3)(d), F.S. In count number eight of the accusation, the Respondent is charged with being grossly incompetent in violation of Section 466.24(2), F.S. This provision states: "Suspension or revocation of license certi- ficate of cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he: * * * (2) is grossly ignorant or incompetent" The treatment that Dr. Ford gave Mrs. Good constitutes gross incompetence, by the nature of the construction of the dentures themselves, and the insistance that those dentures be utilized by the patient. Count two of the administrative accusation pertains to the same statutory allegations as set forth in the case of Mrs. Good. This count deals with Yolande Breckley, for whom Dr. Ford constructed a prosthetic appliance: A maxillary full denture. Mrs. Breckley was a patient who had insisted that she needed to have her natural dentition removed and a prosthetic appliance substituted. To effect this end, she requested a Dr. King to remove the teeth and Dr. Ford was to make the denture. Her natural teeth were removed and Dr. Ford made a maxillary denture. Dr. Ford had questioned her decision to remove her natural teeth and had also indicated that the initial maxillary denture, i.e., prosthetic appliance might not function properly. Mrs. Breckley picked up the Ford dentures in an envelope and had those fitted by Dr. King. She was to return to Dr. Ford for further fittings. These dentures that Dr. Ford had made hurt her in the anterior area and in her lip. The latter area was discolored, "black and blue." She told Dr. Ford that the denture was painful. This conversation was held about a week after Dr. King had fitted the denture. She described the pain as being like a toothache. She could not eat with the dentures. The dentures did not match up well with her lower teeth. It was necessary that she remain on a soft diet. Two or three weeks after this, Dr. Ford relined the dentures and she then asked Dr. Ford for a new set of dentures. Where ensued a series of office visits in which every several weeks she would try to have Dr. Ford make an adjustment. The total time was approximately six months. Mrs. Breckley had paid Dr. Ford for the dentures as evidenced by Petitioner's Exhibit 8, admitted into evidence. Subsequent to that six month period, a second set of dentures were made by a Dr. Foley, who is in Dr. Ford's office, but who is not responsible to Dr. Ford. There was no charge for these dentures. They were made while Dr. Ford was on vacation. These dentures were unacceptable and a third set was made by Dr. Ford for which he charged the price of $100.00 and an additional $31.00 for two relines. This is reflected in Petitioner's Exhibit 9, admitted into evidence. This third set of dentures also gave the patient pain and she complained about the pain to Dr. Ford. Dr. Ford tried to persuade the patient that something was wrong with her, not the teeth, suggesting that the condition was perhaps psychosomatic. There were many visits to try to adjust the third set of dentures, and paste was placed on the dentures and they were ground. During the course of this treatment for the latter set of dentures, Mrs. Breckley went to Canada and was seen by a dentist who worked with the dentures. Eventually there was some falling out between Dr. Ford and Mrs. Breckley and Dr. Ford told her he did not wish to see her face again. In result of her confrontation with Dr. Ford, she wrote a letter of complaint which brought about the current accusation. The patient has seen three dentists after seeing Dr. Ford. The patient is still experiencing difficulty with the new set of dentures she now has, and has to have those dentures relined. In investigating the complaint Dr. Dixon saw Yolande Breckley. He saw the patient on December 13, 1976. She related the history that Dr. Ford had constructed two sets of dentures. The first of the two was delivered in July, 1975. When Dr. Dixon saw the patient she was wearing a new upper denture that was constructed by Dr. Burch. She also had the two sets of dentures that Dr. Ford had prepared and Dr. Dixon attempted to try these dentures in her mouth. The patient placed the dentures in her mouth, but when she opened her mouth the dentures fell down. This refers to the maxillary dentures that had been constructed by Dr. Ford. He also observed a very sharp boney ridge with much pendulous tissue in the maxila. This is felt to have occurred because of abnormal bone resorption, which occurred after the extractions of the upper teeth, leaving boney ridges leading to the ensuing pendulous tissue. This made it extremely difficult to get the denture stable because it would shake like "jello." This would cause the dentures to slip and slide. Dr. Dixon feels that he would not have attempted to make dentures until such time the patient had been referred to an oral surgeon to have some of the tissue trimed and the boney ridges smoothed down. This type of difficulty was easily observable by the treating dentist. In addition the lower rehabilitation work had been done in such a way that the cuspation of the teeth and of the crowns and bridges was about 20 percent and therefore similar to the remaining natural dentition in the mandibular area. The upper appliance was flatplane; therefore, the inner digitation of the cusp was deficient, causing problems with chewing. In summary, Dr. Dixon felt that the condition of the patient was one which it would be difficult to treat and oral surgery seemed indicated before trying to make the dentures. The dentures that Dr. Ford had made were felt to be below minimum standards because they could not be retained. Measured against the allegations, Dr. Ford's treatment of Mrs. Breckley shows gross incompetence within the meaning of Section 466.24(2), F.S., due to his failure to recommend surgical intervention. This would also constitute misconduct in his business, which would bring discredit upon the dental profession. In addition, the poor construction of the dentures would tend to discredit the dental profession. Furthermore, this conduct constitutes malpractice and willful negligence in the practice of dentistry. The subsequent findings establish violations of Section 466.24(a), (c) and (d), F.S. The third count of the accusation pertains to the same statutory allegations found in the first and second counts. The treatment involved Jacob Klapper who received a prosthetic appliance, namely full maxillary and mandibular dentures. Mr. Klapper did not give testimony in the hearing and the description of his case was given by the Respondent and Dr. Dixon. Mr. Klapper was a man of considerable age, who was terminally ill at the time that Dr. Ford saw him in August, 1976. Mr. Klapper had been wearing a full upper denture for 22 years prior to that time. His principal complaint to Dr. Dixon was that Dr. Ford had relined the upper dentures, but he still had looseness and that Dr. Ford had instructed the patient to wear those dentures until they welt in the patient's mouth. Dr. Dixon noted that Mr. Klapper had an extremely poor lower ridge and the centric relation was not correct, in that the mandible or the condyle of the mandible was not in the most superior position in the fossa. This means the position in which all teeth touch simultaneously. After achieving the centric position with the patient, the teeth did not make very acceptable contact. The molars did not contact at all. These dentures prepared by Dr. Ford had over extensions in the set, particularly in the retromolar pad and the mylohyoid ridge. There was a reverse curve of spee. The patient also complained to Dr. Dixon that Dr. Ford had a lack of compassion and that Dr. Ford had instructed him to insert the dentures in the restroom and leave before seeing how the dentures looked. Dr. Dixon did not feel that the dentures met the minimum standards of the community, in fact the dentures would not stay in the patient's mouth and there were some very sore areas in the patient's mouth evidenced by the redness in the tissue when the dentures were inserted. Furthermore, the over extensions of the lower and retromolar pad and mylohyoid area contributed to the fact that the dentures could not be retained. Every time the patient opened his mouth the lower denture jumped up. Dr. Ford claimed that the patient got angry in his office which led to their disagreement and the patient's not coming back. Dr. Ford stated that the patient wrote a threating letter which is Respondent's Exhibit 2. This letter had been addressed to Dr. Foley, the other dentist in the office. Dr. Ford also stated that he had prepared two sets of dentures for Mr. Klapper and questioned which dentures Dr. Dixon's testimony referred to. The dentures which Dr. Dixon had examined from Mr. Klapper were not presented in the hearing. There is therefore, some conflict on the question of which dentures that had been fabricated by Dr. Ford were at issue. In view of Mr. Klapper's non-attendance at the hearing it is hard to tell what really transpired between the Respondent and he, concerning any misunderstanding about the trying of the dentures. No matter which dentures Dr. Dixon looked at, those dentures which had been fabricated for Mr. Klapper demonstrated gross incompetence on the part of Dr. Ford, within the meaning of Section 466.24(2), F.S. There has been insufficient showing to demonstrate that Dr. Ford was guilty of misconduct in his business, such to bring discredit upon the dental profession or guilty of malpractice or guilty of willful negligence in the practice of dentistry while involved with the patient Mr. Klapper, all within the meaning of Section 466.24(3), F.S. The fourth count in this cause concerns the treatment and care of Robert R. Whittaker. Again this count has the same violations alleged for the other patients in this case. The dispute arose over the preparation of full maxillary and mandibular dentures. Robert Whittaker was first seen by Dr. Ford on November 9, 1976. He went there to have a full upper and lower set of dentures constructed. He had been wearing full upper and lower dentures for 20 years. When Dr. Ford looked at the patient's mouth he stated that the dentures that Whittaker was wearing needed replacing. Whittaker requested that the dentures be made in the same style and color as the old dentures. The fee for this work was $220.00. Impressions were taken and try-ins were made on November 15, 17 and 19, 1976. The actual dentures were received on November 23, 1976. The dentures, according to Whittaker, did not fit in that the rails were too high. At first the dentures would not fit his gums and Ford told his assistant to have them altered. They were altered and the dentures were returned to the patient, but they still did not feel right and were sore in the upper quadrant. Dr. Ford made no further attempt at that time to correct the dentures and told Mr. Whittaker to take them home and try to eat and get used to them. Mr. Whittaker went home and wore the dentures but still experienced a great deal of pain and could not eat with the dentures, because they slid around in his mouth both in the upper and lower, but mostly in the upper. The patient went back to Dr. Ford approximately November 29, 1976 because of the continued discomfort. Dr. Ford's assistant got mad at the patient when she saw that he wasn't wearing the dentures. Dr. Ford came in and the patient complained to him that the dentures hurt, were the wrong style, and protruded. In that regard, Petitioner's Exhibit 19, admitted into evidence, is a depiction of the prior dentures and those that were prepared by Dr. Ford, and the photograph clearly shows that the dentures prepared by Dr. Ford did protrude. In addition, the prior dentures had not given the patient any problem and did not protrude. Dr. Ford then tried the dentures he made in the patient's mouth and told the patient he would have to pay another $220.00 if he wanted additional dentures made. The patient told Dr. Ford that he would have to consider legal action and that was the last time he saw Dr. Ford. The dentures themselves may be found as Petitioner's Exhibit 5, admitted into evidence. The checks for payment are Petitioner's Exhibits 6 and 7, admitted into evidence. Dr. Dixon saw Mr. Whittaker on December 8, 1976. At that time Mr. Whittaker was wearing the old dentures which had been constructed 12 years prior to that time. He complained of Dr. Ford's dentures and said that the dentures hurt especially in the upper right quadrant, and that he could not eat and that the dentures were loose. Dr. Dixon's clinical observations were that the vertical dimension of the new dentures was increased by 5 millimeters, which is too much of an increase for a single increment of change in the dentures. When the patient was placed in centric he was a half tooth forward. The periphery of the dentures constructed by Dr. Ford is over extended. In the retromolar pad area, there was a tendency for the teeth to pop up when the teeth were opened. These teeth were also over extended in the maxillary area and the mylohyoid. There was a poor retention of both the upper and lower dentures. The upper and lower dentures were mismatched in terms of their dimensions. This caused an inefficiency in the utilization of the teeth. In Dr. Dixon's mind this construction violated the minimum acceptable standards of the profession. In review of the testimony concerning Dr. Ford's care and treatment of Mr. Whittaker, that testimony demonstrates that the construction of the dentures indicated gross incompetence on the part of Dr. Ford within the meaning of Section 466.24(2), F.S. The act of the poor construction and the attempt to charge further for a second set of dentures is misconduct in his business, by Dr. Ford, which would bring discredit upon the dental profession and constitutes malpractice, all within the meaning of Section 466.24(3)(a) and (c), F.S. The facts do not demonstrate any willful negligence in Dr. Ford's care and treatment of Mr. Whittaker, as defined in Section 466.24(3)(d), F.S. Count number five of the accusation, involves the patient Violet B. Arnst and contains the same allegations found in prior counts. Mrs. Arnst had Dr. Ford prepare a prosthetic appliance, a full maxillary and mandibular denture. Mrs. Arnst had been seen by Dr. Foley, the working associate of Dr. Ford, a number of years before her visit to Dr. Ford. She called to make an appointment with Dr. Foley but was told that he only came in when Dr. Ford was out. Therefore she was seen by Dr. Ford in July or August, 1975. Dr. Ford told the patient that her lower teeth were receding and that she needed a lower set of dentures for that reason and that the more appropriate approach was to make an upper and lower set of dentures. She paid Dr. Ford $200.00 for the services of fabricating prosthetic appliances; maxillary and mandibular. This is verified by Petitioner's Exhibits 10 and 11 which are the cancelled checks for the services. When she went to pick up the teeth and try them on she told Dr. Ford that the teeth did not look right or feel right and that she could not see her teeth when she smiled. This is borne out by Petitioner's Exhibit 18, which was admitted into evidence and is a series of photographs showing the dentures that were prepared by Dr. Foley prior to the dentures prepared by Dr. Ford, as compared to the Ford dentures. It can be seen in the photographs that the Foley dentures allow a smile line, in that the maxillary dentures are showing, whereas in the Ford dentures the maxillary dentures are completely covered by her upper lip. Mrs. Arnst had another initial complaint that the teeth hurt her in the gum area and the gums felt sore when she tried to bite. The dentures were also loose and she could not eat with them. She continued to see Dr. Ford after the initial try-ins and Dr. Ford advised that she was impatient and would have to become accustomed to wearing the dentures. She saw Dr. Ford for five or six times and returned two weeks after the dentures were prepared and said that the dentures still hurt and didn't look right. The last time Mrs. Arnst saw Dr. Ford, Dr. Ford told her to make an appointment for a reline of the dentures and then became angry with the patient and told his office personnel that he did not want to see Mrs. Arnst again. Mrs. Arnst then wrote a letter to Dr. Foley complaining of the situation with Dr. Ford and also wrote a complaint letter to the authorities who regulate Dr. Ford's practice of dentistry. Petitioner's Exhibit 3, admitted into evidence are the dentures made by Dr. Ford which are the subject of discussion. At present the patient is using the dentures prepared by Dr. Foley, which are those prepared immediately before Dr. Ford's. This patient was also seen by Dr. Dixon in the investigative phases of the accusation. Dr. Dixon found that the patient was a person approximately 65 years old who had been wearing full dentures since the age of 16. Dr. Dixon found that the patient had a moderate lower ridge, and still had bone left and for that reason he found her to be an ideal denture patient. Dr. Dixon also noted that there were no second molars on the dentures that were fabricated by Dr. Ford, although there were second molars fabricated by Dr. Foley. From Dr. Dixon's point of view he felt that there was sufficient room to have accommodated the second molars especially on the right side, when Dr. Ford prepared the new set of dentures. Because of the missing second molars this cut down on the efficiency of the utilization of the dentures because there was a lesser number of posterior teeth. These teeth are used for purposes of grinding. He found that the lower molars were not over the crest of the ridge, meaning the highest point of the lower boney ridge. This caused unnecessary tipping and upsetting of the denture when going through the occlusal pattern of chewing. Dr. Dixon also observed a three millimeter buckle to buckle difference in the width of the original upper denture prepared by Dr. Foley and that prepared by Dr. Ford. The buckle to buckle dimension is the outside dimension, that is to say cheek to cheek cuspation of the molars. The retention of the upper dentures prepared by Dr. Foley was fair, but there was no retention of the lower denture in the patient Mrs. Arnst. Dr. Dixon found that the post-dam was fair to poor. He also noted that there was a reverse curve of spee, meaning that gentle slopping curve in the second molar down to the cuspid, that conforms to the curvature of the fossa in the temporal-mandibular joint. This reverse curve caused a lack of continuous contact or occlusion of the teeth. Dr. Dixon also noted that the "smile line" was extremely poor. He, in fact, prepared the photographs which have been referred to before. In Dr. Dixon's opinion the maxillary dentures were set too far up toward the nose or maxila to show. Dr. Dixon felt that Dr. Ford should have seen the problem of the "smile line" at the time the teeth were tried in. In summary, Dr. Dixon felt that both the maxillary and mandibular dentures in the patient Violet Arnst would not meet minimum acceptable standards of the dental profession, due to the lack of retention and due to the fact that the lower teeth are not over the crest of the ridge. In Dr. Dixon's opinion this caused an inability in the patient to chew her food. The patient Violet Arnst was also seen by Dr. Richard A. Saul, D.D.S. Dr. Saul is licensed to practice dentistry in the State of Florida and has been so licensed since 1956. He is a member of the American Dental Association, Florida Dental Association, and the Broward County Dental Association. He has practiced dentistry continuously since his graduation in 1956. Dr. Saul sees approximately 50 to 60 appointments a week. Dr. Saul has continued to take courses in prosthetics since his graduation and in his practice Dr. Saul repairs full or partial dentures. In examining Violet Arnst, he agreed with Dr. Dixon that the chief complaint of the patient was one of aesthetics. He found that the upper anteriors did not show in her mouth, because the lip covered them. This is referring to the teeth that were prepared by Dr. Ford. He found that the borders of the full upper and lower dentures were over extended. He noted that the lower anterior region had a knife like ridge and when he palpated the patient, this caused a great deal of pain to her. In his opinion the patient's situation could have been better treated had the lower ridge been flattened out, removing the knife like appearance of the bone. The over extension of the dentures into the musculature was believed to cause ultimate dislodgement of the dentures. Dr. Saul noted that only two of four teeth on one side were in centric. He felt that this was inadequate and would cause the dentures to skid, and cause movement of the denture in the patient's mouth. He observed that the patient at his interview was experiencing some pain. Saul did not feel that the dentures constructed by Dr. Ford for the patient Violet Arnst met the minimum standards of the community for acceptable dental practice. This examination of Mrs. Arnst took place on July 22, 1977. Based upon the quality of the construction of the dentures for Mrs. Arnst, and the abrupt dismissal of the patient, Dr. Ford has been guilty of misconduct in his business which would bring discredit upon the dental profession, in violation of Section 466.24(3)(a), F.S. This conduct on the part of Dr. Ford also shows malpractice and willful negligence in the treatment of Mrs. Arnst, as defined in Section 466.24(3)(c) and (d), F.S. Finally, this quality of treatment of Mrs. Arnst constitutes gross incompetence as set forth in Section 466.24(2), F.S. Count number six of the administrative accusation pertains to the patient Joseph Jenkins. This patient was seen by Dr. Ford in August of 1975, based upon the patient's referral by persons who had been treated by the Respondent. It was necessary to make extractions of the natural teeth prior to the preparation of full maxillary and mandibular dentures. These extractions began in August, 1975 and the patient received the teeth in November, 1975. (The extractions were not done by Dr. Ford.) The format of the treatment of the patient by Dr. Ford was to make impressions, then to try-in the teeth; then the actual dentures were given to the patient. The patient observed that the teeth appeared too large and the upper dentures kept falling out. When the patient would take a bite the teeth would "jump up". Dr. Ford told the patient to keep the dentures in his mouth and to line the dentures with denture powder. Additionally, he indicated to the patient that once the gums had "shrunk", and the teeth were relined, they would fit. The patient was not experiencing trouble with the mandibular teeth, his main problem was with the maxillary teeth. The maxillary dentures rubbed against the top of his mouth and caused him to gag. The patient saw Dr. Ford three or four times in December, 1975 and again in January 1976 at which point the dentures were relined. In February, 1976, the lower dentures were relined. During February and after February, 1976 the patient saw Dr. Ford five or six times. In the course of these visits, Dr. Ford would correct the problem of the rubbing dentures. In the course of treatment prescribed by Dr. Ford he told the patient Joseph Jenkins to use sandpaper to relieve the discomfort, but the dentures still did not fit, meaning the maxillary dentures. In March, 1976, the patient's wife tried to get an understanding of the problem from Dr. Ford and Dr. Ford hung the phone up and did not talk to her. At that point the patient ceased to see Dr. Ford and the patient is not wearing any dentures at this point. The dentures in question may be found as the Petitioner's Exhibit 17, admitted into evidence. For the total services the patient paid Dr. Ford $560.00. In accordance with the investigation of the accusation the patient was seen by Dr. Dixon on December 8, 1976. At that time the patient was complaining of the poor fit of the maxillary dentures. He did not have a complaint about the mandibular dentures. Dr. Dixon observed that the patient gagged excessively when the dentures were placed in his mouth, to the extent of having to use a local topical anesthetic on the palate to allow the patient to keep the dentures in for a sufficient period of time to be observed. Dr. Dixon observed a poor retention of the maxillary denture, in that it kept falling out while the doctor was trying to examine it. There was no post-dam whatsoever. The maxillary dentures were grossly over extended in the area of the soft palate, about five or six millimeters beyond the vibrating line. This is why the gaging occurred. Dr. Dixon felt that in view of the number of visits that the patient had with Dr. Ford, the problem with the post-dam and the gaging should have been observable by Dr. Ford, and been corrected. In view of the lack of retention, Dr. Dixon did not feel that the dentures met minimum acceptable standards of the community. In addition, Dr. Dixon felt that there was no necessity to have to use denture powder, in view of the fact that the dentures had just been fabricated for the patient, as opposed to having been utilized for a period of five or six years. The use of denture powder was not a good technique in Dr. Dixon's mind because the gum could not receive proper circulation causing a destruction of the tissue and bone. Dr. Dixon also felt that it would be improper for Dr. Ford to prescribe the use of sandpaper to relieve soreness. Dr. Saul examined Joseph Jenkins in July or August, 1976. At that point Mr. Jenkins' complaint to Dr. Saul was that the denture was ill fitting. Dr. Saul observed that the borders of the dentures were grossly over extended, especially in the areas of the soft palate and the patient was found to be complaining and gaging. Dr. Saul noted that the maxillary tended to drop when being used. In Dr. Saul's mind, this extension into the soft palate, made by the maxillary dentures, made it difficult for the patient to speak and eat. In Dr. Saul's opinion the over extension of the dentures caused them to fail to meet the minimum acceptable standards of the dental community. In view of the testimony offered by the investigating dentists, it is clear that Dr. Ford has been guilty of misconduct in his business, such that it would bring discredit to the dental profession, as set out in Section 466.24(3)(a), F.S. This is based upon the poor preparation of the maxillary dentures and the failure to correct that prosthetics over a long period of time of innumberable visits. These facts also establish that Dr. Ford is guilty of malpractice and willful negligence in the treatment of Mr. Jenkins, as prohibited by Section 466.24(3)(c) and (d), F.S. Dr. Ford was also grossly incompetent in the preparation of the Jenkins maxillary dentures, as defined by Section 466.24(2), F.S. Count seven of the administrative accusation pertains to the care and treatment given by Dr. Ford to the patient Edith Wenke. In January, 1976 Mrs. Wenke went to Dr. Ford for the purpose of having him prepare a prosthetic appliance, in this instance, full maxillary and mandibular dentures. The patient had worn dentures for 25 years prior to being seen by Dr. Ford. The initial set of dentures by Dr. Ford were prepared before February 3, 1976. These dentures gave the patient a great deal of pain in the gum area and the teeth were not straight and were somewhat misaligned. Another problem that the patient had with Dr. Ford's dentures was the inability to eat because of pain. She made another appointment with Dr. Ford and complained about the first set of teeth. Dr. Ford told her that she had some problem with a "trick" jaw which caused a difficulty in making the dentures. In fact, the patient did not have the problem with a "trick" jaw. Subsequently, a second set of dentures were prepared by Dr. Ford, these too were uncomfortable, and the patient continued to go back as much as twice a week, to try to rectify the problem. Mrs. Wenke is not certain but there may have been a third set of dentures made and the offering by Dr. Ford to make a fourth set or to give the money back. Whether or not Dr. Ford offered to give the money back after completing two or three sets of teeth is uncertain, but it is established that he did offer to refund the money. The patient thought about the offer of a refund over the course of a weekend and elected to have the money refunded. At that point Dr. Ford said that he had changed his mind and would refund only a portion of the money, namely $100.00. The patient later went to another dentist who told her to put in the dentures she had been wearing prior to seeing Dr. Ford. After that date she has had a new set of dentures prepared by a dentist other than Dr. Ford and has experienced no pain or poor quality prosthesis that was found in the dentures that had been prepared by Dr. Ford. Upon consideration of the testimony of Mrs. Wenke, in view of the general opinions stated by Dr. Saul and Dr. Dixon, it is clear that the dentures prepared for Mrs. Wenke were below community standards as to their construction. The dentures were so substandard as to indicate gross incompetence on the part of Dr. Ford as set forth in Section 466.24(2), F.S. Dr. Ford was also guilty of misconduct in his business which would bring discredit upon the dental profession, by his poor construction of the dentures for Mrs. Wenke and his agreement to make a refund to her, which was unreasonably rescinded. This misconduct was a violation of Section 466.24(3)(a), F.S. Dr. Ford's treatment of Mrs. Wenke also demonstrated malpractice, within the meaning of Section 466.24(3)(c), F.S. There is no indication that this conduct with Mrs. Wenke constituted willful negligence in the practice of dentistry as defined in Section 466.24(3)(b), F.S.
Recommendation Having fully considered the testimony offered by the Petitioner and the Respondent, and being duly apprised of the aggravating and mitigating circumstances, it is the recommendation of the undersigned that the Respondent, James A. Ford, D.D.S., have his license to practice dentistry in the State of Florida revoked. DONE AND ENTERED this 20th day of January, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 James A. Ford, D.D.S. 1201 Sample Road Pompano Beach, Florida 33064
