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
The Issue Whether the Petitioner earned a passing grade on the clinical portion of the June, 1986 dental examination?
Findings Of Fact The Petitioner is a licensed dentist in the State of Louisiana. Her business address is 1006 Surrey Street, Lafayette, LA. The Petitioner attended Boston University and received a Bachelor of Arts degree in 1973. The Petitioner attended MaHerry Medical College and received a dental degree in 1978. The Petitioner received post-graduate training in dentistry during a residency at Sidham Hospital and received a Post-Graduate Certificate from Sidham Hospital in 1979. The Petitioner has taken approximately 200 hours of post-graduate courses in endodontics. From 1979 until 1982, the Petitioner practiced dentistry in the Bronx, New York. In 1982 the Petitioner relocated her practice to Louisiana. The Petitioner has passed the Northeast Regional Boards and the Louisiana State Board Exam. She is licensed to practice in approximately 20 states in the northeast United States and in Louisiana. The Petitioner has been an applicant for licensure in dentistry in the State of Florida. The Petitioner took the June, 1986 Dental Examination. The Petitioner was notified that she had been awarded an overall score for the clinical portion of the examination of 2.88. A score of 3.00 is the minimum passing score for the clinical portion of the examination. The Petitioner timely requested a review of her grade, filed objections and timely requested a formal administrative hearing. The procedures tested during the examination and the Petitioner's scores for the procedures are as follows: Amalgam Cavity Prep 2.33 Amalgam Final Restoration 2.66 Denture 2.87 Periodontal 3.66 Posterior Endodontics 2.66 Anterior Endodontics 2.00 Cast Class II Only Prep 3.00 Cast Class II Wax-Up 3.33 Pin Amalgam Prep 3.00 Pin Amalgam Final 2.00 Each procedure was graded by 3 different examiners. Each examiner graded a procedure independently. One of the following grades was assigned to each procedure by each examiner: - Complete failure; - Unacceptable Dental Procedure; - Below Minimal Acceptable Dental Procedure; - Minimally Acceptable Dental Procedure; - Better than Minimally Acceptable Dental Procedure; - Outstanding Dental Procedure. The procedures were graded in a holistic manner. A failing grade must include a "comment" justifying the grade of the examiner's grade sheets. The three examiners' grades for a procedure were averaged to determine the score for the procedure. The procedure scores were then individually weighted and the weighted scores were added to provide an overall clinical grade. This overall clinical grade must be at least 3.00 to constitute a passing grade. Examiners are experienced Florida dentists selected by the Board of Dentistry. They must have at least 5 years of experience as a dentist. Potential examiners attended a standardization course. The standardization course consisted of 8 to 12 hours of training, including a review of the criteria by which each procedure is required by rule to be judged. Some of the dentists who took part in the standardization exercise were designated as examiners and some were designated as monitors. Monitors were present during the examination with the candidates. They were instructed not to assist candidates during the examination. Subsequent to receiving notice that she had not received a passing grade on the June, 1986 examination, the Petitioner challenged the correctness of the scores she received on procedures 1, 2, 5, 6, 9 and 10. After receiving notice that her license application was being denied because the Petitioner did not receive a passing grade on the clinical portion of the June, 1986 dental examination, the Petitioner attended a review session with Dr. Simkin on September 10, 1986. The session was scheduled to last for 30 minutes. The session actually lasted longer than that. The session was recorded with a tape recorder. At the conclusion of the session the tape recorder was turned off. The discussion continued after the tape recorder was turned off, however. In total, the session and the continued discussion lasted for approximately 45 to 50 minutes. Procedure 1 Procedure 1 is an "Amalgam Cavity Preparation." It involves preparation of a tooth for a filling. This procedure is performed on an actual patient as opposed to a model tooth. The three examiners who graded the Petitioner's performance on procedure 1 awarded the Petitioner the following scores and made the following comments: Examiner 136 3 Outline form & unsupported enamel Examiner 129 2 Unsupported enamel Examiner 83 2 Outline form & depth prep. The primary problem with the tooth the Petitioner performed procedure 1 on and the reason for the failing grades of two of the graders was the failure of the Petitioner to insure that the amalgam base or floor was in dentin and not enamel. Whether the base or floor of the preparation is dentin can be determined by the color, dullness or feel of the dentin. It cannot be determined by x-rays. If an amalgam filling rests on enamel instead of dentin, the filling may be more sensitive to the patient, the enamel can crack and/or the filling may also crack. When the cracking of the enamel or filling may occur cannot be predicted. The Petitioner testified that the depth of the preparation was sufficient and has argued that such a finding is supported by notes which were exchanged between a monitor and the examiners. Petitioner's reliance on the notes which were passed between the monitor and examiners is misplaced. The first note was a note from the Petitioner to the examiners noting conditions she wanted the examiners to be aware of which were unrelated to whether the preparation was into the dentin. The monitor did not "approve" what the Petitioner wrote in her note; the monitor merely noted that the Petitioner had written the note. The other note was a note from one of the examiners to the Petitioner. That note indicated that the Petitioner needed to "lower pulpal floor into dentin." This note is consistent with the examiners' findings. If the note had been followed by the Petitioner and the pulpal floor had been lowered, the patient would have been protected from a potential hazard consistent with the Board's duty to protect patients being used in examinations. When the monitor instructed the Petitioner to "proceed" the monitor was not actually telling the Petitioner what steps she should take or showing any agreement or disagreement with the examiner's note. No regrade of procedure 1 is possible because the procedure was performed on a patient. If the grades the Petitioner received for this procedure had been improper, the Petitioner would have to take this portion of the test over. There is not justification for allowing the Petitioner to take procedure 1 over. The grades the Petitioner received were justified by the comments of the examiners and the difference in the grades of the 3 examiners is insignificant. Procedure 2 Procedure 2 is an "Amalgam Final Restoration." This procedure involves the filling of the tooth prepared in procedure 1 and the shaping of the surface of the filling to the natural surface of the tooth. The three examiners who graded the Petitioner's performance on procedure 2 awarded the following scores and made the following comments: Examiner 138 2 Functional anatomy, proximal contour & gingival overhang Examiner 150 3 Functional anatomy Examiner 48 3 Functional anatomy & margin Although gingival overhang can often be detected with x-rays, it is not always possible to detect with x-rays. In light of the score of 2 given by the examiner which noted "gingival overhang" as one of the examiner's comments, the overhang was probably very slight. It is therefore not unusual that the other two examiners did not note the existence of an overhang. Additionally, a slight gingival overhang could also be noted as "margin." Therefore, it is possible that examiner 48 noted the same problem with the tooth when the comment "margin" was marked that examiner 138 noted when examiner 138 marked the comment "gingival overhang." This procedure was performed on a patient and therefore could not be reviewed. The comments given by the examiners, however, are sufficient to justify the grades given, especially the failing grade. The grades the Petitioner received on procedure 2 were justified by the comments of the examiners and there was no discrepancy in the grades awarded sufficient to order a re-examination of this procedure. No regrade is possible or warranted. Procedure 5 Procedure 5 is a "Posterior Endodontics." This procedure involved the preparation of a molar tooth for a root canal. The procedure is performed on a model tooth and not on the tooth of a patient. The three examiners who graded the Petitioner's performance on procedure 5 awarded the following scores and made the following comments: Examiner 133 3 Overextension Examiner 129 3 Outline form & overextension Examiner 153 2 Outline form, underextension & pulp horns removed Over extension and outline form can indicate the same problem. According to Dr. Simkin, "As soon as you have pulp horns, you have underextension and the outline form is improper ..." It is not inconsistent for examiners to determine that a tooth has an overextension and an underextension. Both conditions can occur on the same tooth as a result of the same procedure. The tooth procedure 5 was performed on by the Petitioner did in fact have an overextension, as even Dr. Webber and Dr. Morrison, witnesses of the Petitioner, agreed. The tooth procedure 5 was performed on by the Petitioner also had pulp horns an underextension. The Petitioner's performance on procedure 5 was not graded according to an outdated technique. The Petitioner's testimony that she was looking for a possible fourth canal is rejected the area of over extension was too large and it was in the wrong area to be justified by a search for a fourth canal. The evidence also failed to prove that any of the examiners graded the Petitioner's performance on procedure 5 according to an outdated technique or that they did not take into account the need to search for a fourth canal. The grades the Petitioner received on procedure 5 were justified by the comments of the examiners and there was no significant discrepancy in the grades they awarded. Their comments and grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 6 Procedure 6 is an "Anterior Endodontics. " This procedure involves the preparation of an anterior, or front, tooth for a root canal. It is performed on a model tooth and not on the tooth of the patient. The three examiners who graded the Petitioner's performance on procedure 6 awarded the following scores and made the following comments: Examiner 153 2 Outlining form, underextension, & pulp horns removed Examiner 129 2 Outline form - too far incisally did not remove entire roof of chamber Examiner 133 2 Outline form & gouges The tooth that the Petitioner performed procedure 6 on has pulp horns (underextension), is overextended (bevelling of the entrance too severely) and has gouges. The grades the Petitioner received on procedure 6 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and the grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 9 Procedure 9 is a "Pin Amalgam Prep." This procedure involves preparation of an ivory model tooth for restoration. The tooth includes an area of damage or decay which is so extensive that a large portion of the tooth must be removed and the amalgam filling must be supported with a pin. The examiners who graded the Petitioner's performance on procedure 9 awarded the following scores and made the following comments: Examiner 153 3 Outlining form & pin placement Examiner 109 3 Retention form & unsupported enamel Examiner 133 3 Outline form & pin placement Although the Petitioner received a passing grade from all 3 examiners, she contended that she was entitled to a higher score of 4. The grades the Petitioner received on Procedure 9 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and grades were Supported by review of the model tooth. No regrade or change in score is justified. Procedure 10 Procedure 10 is a "Pin Amalgam Final." This procedure is the final step of the procedure begun in procedure 9. A different model tooth, one already prepared, is used for this procedure. The three examiners who graded the Petitioner's performance on procedure 10 awarded the following scores and made the following comments: Examiner 153 2 Proximal contour & margin Examiner 129 2 Functional anatomy & proximal contour Examiner 133 2 Functional anatomy & proximal contour Proximal contour involves the shape of the amalgam - it should follow the natural contour of the tooth. In this case, the tooth used by the Petitioner had a ledge area, where food can be trapped, and a slight overhang. Margin is where the filling meets the tooth. It should be smooth and it was not on the Petitioner's tooth. Functional anatomy primarily involves the occlusal portion of the tooth. The Petitioner failed to build up the lingual cusp, which was the cusp that had been removed. The grades the Petitioner received on Procedure 9 were justified by the comments of the graders and there was no discrepancy in the grades they awarded or their comments. The comments and grades were supported by review of the model tooth. No regrade or change in score is justified.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the clinical portion of the June, 1986, dental examination was a failing grade. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4838 The parties have timely filed proposed recommended orders containing proposed findings of fact. It has been noted below which proposed finding of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioners Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-7. 4 and 7. This proposed finding of fact is generally irrelevant. The issue in this proceeding is whether the Petitioner successfully passed an examination. It is accepted, however, to the extent that it is relevant as to the weight which should be given to the Petitioner's testimony. The first two sentences are accepted in 9, 11 and 12 except to the extent that the proposed findings of fact pertain to the December, 1985 examination. The last sentence is rejected as irrelevant. The time for challenging the results of the December, 1985 examination had passed at the time of this proceeding and the Petitioner did not attempt to amend its Petition until the formal hearing had commenced. 5 12 and 14. 6 13-15. 7 10. 8-9 These proposed "findings of fact" are statements of issues or argument and not findings of fact. To the extent that any finding of fact is suggested, it is not Supported by the weight of the evidence. 10 12 and 19. This proposed finding of fact is irrelevant. See the discussion of proposed finding of fact 3, supra. 20. The Petitioner's score of 2.88 was not an "alleged" score and more than 30 minutes of the review session was recorded. 13-15 Irrelevant, unnecessary or not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant or not supported by the weight of the evidence. 18-20 Not supported by the weight of the evidence. Irrelevant. The first 3 sentences are accepted in 21 and 22. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant. 25. The monitor did not indicate agreement with the Petitioner's note. The monitor did take the note and the patient to where an examiner looked at the patient and an examiner did give a note to the monitor. See 25. The rest of the proposed fact is not supported by the weight of the evidence. 26 22. Not supported by the weight of the evidence. The first sentence is accepted in 25. The rest of the proposed fact is not supported by the weight of the evidence. Not supported by the weight of the evidence. 30 27. Not supported by the weight of the evidence. The first 3 sentences are hereby accepted. The rest of the proposed fact is not supported by the weight of the evidence. 29 and 30. The last sentence is irrelevant. 34-35 Not supported by the weight of the evidence. The first sentence is accepted in 33. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant and too broad. The first sentence is accepted in 34. The fourth and fifth sentences are accepted in 35. The rest of the proposed facts are not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. The first two sentences are accepted in 40 and 41. The rest of the proposed fact is not supported by the weight of the evidence. 42 44. 43 The first sentence is accepted in 45. The rest of the proposed fact is not supported by the weight of the evidence. 44 48. 45 The first sentence is accepted in 49. The rest of the proposed fact is not supported by the weight of the evidence. 46-47 Not supported by the weight of the evidence or irrelevant. Respondent's Proposed Findings of Fact 1 8-11. 2 12. 3 13 and 16-17. 4 18. 5-8 Hereby accepted. 9 13-14. 10 15. 11 19. 12-14 Unnecessary. Irrelevant. Argument. 15 21. 16 22. 17-19 Summary Of testimony. See 23-28. 20 29. 21 30. 22-25 Summary of testimony. See 31-33. 26 34. 27 35-36. 28-29 35. 30 Summary of testimony. See 36-39. 31 40. 32 41. 33-34 Summary of testimony. See 42-43. 35 44. 36 45. 37 Summary Of testimony. See 46-47. 38 48. 39 49. 40 Summary of testimony. See 50-53. 41-43 Unnecessary. Argument as to the weight of the evidence. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida. 0750 Rex D. Ware, Esquire Fuller & Johnson, P.A. Ill North Calhoun Street Tallahassee, Florida 32302 =================================================================
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact 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
The Issue The issue in this case is whether Petitioner should receive a passing score on the December 2001 dental license examination.
Findings Of Fact In December 2001, Petitioner took the dental licensure examination and failed to pass the clinical portion of the exam. The examination is a three-day process involving two days of clinical examination. Those two days of clinical examination consist of nine procedures. Four of the nine procedures were challenged by Petitioner. The clinical portion is where the candidate is required to perform certain patient procedures. The work product of the student, or candidate, is evaluated following the performance of those procedures by three examiners. Each examiner grades the candidate independently of whatever score the other examiners may award on a particular procedure. Then the average grade for each procedure is weighted in accordance with requirements of Rule 64B5-2.013, Florida Administrative Code. This produces the overall score for the entire clinical exam. The Department uses three examiners' scores because this provides a more reliable indication of the candidate's competency and true score. Further, each examiner must be a licensed dentist for a minimum of five years and have no complaints or disciplinary actions against their license. Examiners have no contact with the candidate taking the examination and, accordingly, have no idea of who they are grading. To further ensure fairness, each examiner must attend and successfully complete a standardization session. The purpose of these sessions is to ensure that each examiner is trained to use the same internal grading criteria. In standardization, each examiner is thoroughly taught specific grading criteria with the result that examiners are instructed on how to evaluate the work of the candidates. The examiners who graded Petitioner’s examination had successfully completed the foregoing standardization session. Also, the Department’s post-exam check found these examiners’ grading to be reliable. Petitioner contested the score he received on Procedure 4, the Endodontic procedure, a root canal. The Endodontic procedure required removal of infected nerve tissue and blood vessels pulp from the tooth. Petitioner was required to access the canal and pulp tissue from the outside. Then, Petitioner was required to remove the bad nerve and cleanse the canal. Finally, Petitioner was required to seal the canal to prevent recurring bacteria. Petitioner failed to observe a fracture in the tooth. He claimed that a fracture to the root of the tooth was caused by the Department after he reviewed his examination and that no one advised him the root was fractured. Petitioner requested a score of 3.00 for this procedure. However, the Department's witness, Dr. William F. Robinson, a licensed dentist for 32 years who examined the tooth and X-ray prepared by Petitioner, testified that the fracture to the root was noticed in both the X-ray and on the tooth when he examined the same. Additionally, two of the three re-graders also noted the fracture of the root. With regard to Petitioner's preparation of the X-ray at the conclusion of the examination, Dr. Robinson opined that Petitioner caused the fracture to the root during the examination and not the Department, as alleged by Petitioner. Dr. Robinson further opined that even without a fracture to the root of the tooth, Petitioner failed the procedure and the failing grade he received was fair. Dr. Robinson would not recommend that Petitioner receive a passing score of 3.00 on the procedure. The examiners' comments and grades and the testimony of Dr. William F. Robinson establish that Petitioner failed to properly perform this procedure. The grade Petitioner received was fair. Petitioner challenged the grade he received on Procedure 5, the Class IV Composite Restoration of the front tooth, but did not offer any testimony at the hearing as to why the score was not correct for the procedure. Petitioner requested that the score of 1.00 given by one of the examiners be thrown out, thus giving him a passing grade on this procedure. Procedure 5 of the dental licensure examination is a procedure that involves the candidate’s ability to replace the edge of the front tooth with a composite resin material, which is a tooth-colored filling. As established by the examiners’ comments and grades and the testimony of Dr. William F. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Specifically, the examiners found that the tooth was abraded and the re-grader noted, as did the examiners, the excessive “flash” on the tooth. Dr. Robinson also noted both deficiencies in the procedure. Petitioner contested the score he received on Procedure 6, the Class II Composite Restoration procedure in his original petition, but offered no testimony at the hearing concerning this procedure. Dr. Robinson reviewed the examiners' grades and the tooth prepared by Petitioner and opined that Petitioner’s grade of 2.66 for this procedure is fair. Based on the examiners’ comments and grades and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Petitioner contested the score he received on Procedure 7, the preparation for a 3-unit Fixed Partial Denture, claiming that on the re-grade one of the examiners reviewed the wrong procedure. The Preparation for a 3-unit Fixed Partial Denture procedure of the dental licensure examination is a procedure that involves the candidate’s ability to provide preparations of two (2) teeth in order to replace a missing tooth with a fixed bridge. Dr. Robinson established that Petitioner’s work on this procedure resulted in one tooth, No. 29, being grossly over reduced and tooth No. 31 was insufficiently reduced. The result of such work is that it is impossible to place a bridge on such an improper preparation. As established by testimony of Dr. Robinson, Petitioner's problem with this procedure resulted from Petitioner’s undercut. This undercut indicated that Petitioner’s preparations were not properly aligned to accept a bridge. Based on the examiners’ comments and grades, and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. The Department's “re-grade” process was utilized in this case. Used to give all candidates who timely request a hearing another chance at passing, the re-grade process allows the Department to go back and determine whether any grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade process. The Department maintains post-standardization statistics of the examiners’ performance. In this case, those statistics indicated that Petitioner’s examiners graded reliably. In addition, the Department calculates post- examination statistics for the examiners, which are as follows for the examiners who graded Petitioner’s challenged procedures: Examiner Accuracy Index & Rating #206 95.8-Excellent #375 98.8-Excellent #380 92.1-Good #334 97.8-Excellent #298 95.9-Excellent #375 98.8-Excellent-was an original and a re-grader. All of Petitioner's examiners exhibited a reliability significantly above the minimum acceptable accuracy index of 85.0.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the December 2001 dental licensure examination. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2002. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Jason S. Baker, D.M.D. Westchester Medical Center 95 Grasslands Road, Box 572 Valhalla, New York 10595 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0004795. At all times material hereto, Respondent maintained two offices for the practice of dentistry, one where he practices privately in Bay Harbor Islands and one in North Miami Beach which is also known as R & E Dental Offices or as North Dade Dental Office. Case Number 83-3976 Beatrice Gershenson On April 19, 1980, Beatrice Gershenson, in response to a newspaper advertisement, came to R & E Dental Offices complaining that her lower denture made years earlier was uncomfortable and in need of replacement. Respondent examined Gershenson on that visit and advised her that she would need to have both her upper and lower dentures replaced. During that consultation, Respondent and Gershenson agreed upon a fee of $410 for a full set of dentures. Respondent did not provide any treatment to Gershenson during her first visit. Gershenson returned to R & E Dental Offices several times during April and May 1980, during which visits she received a full set of dentures and several subsequent adjustments to those dentures. Although Gershenson's checks were made payable to Respondent, Respondent provided no treatment to her; rather, all dental services were provided to Gershenson by other employees of R & E Dental Offices. Gershenson did not see Respondent following the initial consultation until her last visit to R & E Dental Offices. At that time, Gershenson complained to him about her dentures. She advised Respondent that her dentures were flopping and that she was biting the back of her jaw. Respondent did not examine her at that time. Based upon her complaints, however, he suggested that she be provided a reline and that she use a denture cream. Gershenson refused to have a reline, became upset about having to use a denture cream, and left. On July 16, 1981, Gershenson and her dentures were examined by Dr. Leonard M. Sakrais, a dental expert retained by Petitioner. Between her last visit to R & E Dental Offices and her examination by Dr. Sakrais, Gershenson's dentures were not altered. The three deficiencies in Gershenson's dentures noted by Sakrais became the specific allegations in the Administrative Complaint filed against Respondent. Sakrais noted that the dentures exhibited open occlusion on the right side, the lower anterior teeth were set forward of the ridge making the lower denture unstable, and the upper denture was short in the tuberosity region and therefore had no retention. However, Sakrais recognized that lower dentures are typically unstable, that Gershenson's small knife-edged lower ridge made her a difficult patient to fit, and that the dentures could have very easily been made serviceable. One of the ways in which the defects could be remedied, accordingly to Sakrais, was for the denture to be relined. If a patient refuses to have a denture relined, however, there is nothing a dentist can do further. Gershenson continued to wear the dentures obtained at R & E Dental Offices without adjustment after the examination by Sakrais until she commenced treatment in June 1983 with Dr. Alan B. Friedel. She made no complaints to Friedel regarding the upper denture and only complained about the looseness of the lower denture. Friedel adjusted her lower denture and recommended that it be relined and that she use a denture cream. Friedel noted no problems with the upper denture and attributed the problems with Gershenson's lower denture to the shape and deterioration of her lower ridge. When Dr. Neil Scott Meyers examined Gershenson on August 3, 1984, after Friedel's treatment had been completed, Gershenson complained to him that her upper denture fit so well that she had trouble removing it. Meyers found no defects in Gershenson's dentures, as modified by Dr. Friedel, and also noted the difficulty in fitting a lower denture for a patient with a small sharp lower ridge like Gershenson's. Gershenson voluntarily terminated treatment with R & E Dental Offices without requesting a refund and without requesting that the dental work be redone. Rather, she refused Respondent's offer to reline her dentures. Case Number 84-0349 Barbara Schmidt On November 4, 1980, Barbara Schmidt came to R & E Dental Offices in response to an advertisement. Schmidt complained that an improper bite was causing loss of her natural teeth and advised Respondent that her previous dentists had recommended that she have her teeth capped and bite opened. Schmidt brought with her to that consultation X rays and study models, a lot of advice from previous dentists who had treated her, and her attorney-husband who drilled Respondent on his plan for treatment of Schmidt. During Respondent's examination of Schmidt, he noted that she suffered from an extreme loss of vertical dimension. Her teeth were very worn, and there was little enamel left on her anterior teeth. The agreed upon treatment plan for Schmidt involved a full mouth reconstruction, consisting of 15 lower crowns and 8 upper crowns. On November 4 and 11, 1980, Respondent prepared Schmidt's lower right side and lower left side and provided her with temporaries. Respondent made no attempt to increase her vertical dimension with the first set of temporaries. On November 25, 1980, Respondent took a second bite impression and made a second set of temporaries which increased Schmidt's bite by 2 millimeters. He noted that he was having trouble getting Schmidt's jaws into centric position for taking a second impression because her jaw muscles were too tense. During Schmidt's appointments on December 16 and 23, 1980, Respondent tried-in the lower metal framework, checked the margins, looked for blanching of the tissue, determined that the lower frame was acceptable and ready to be finished, and took a third bite impression due to the difficulty in getting the same registration each time that Schmidt's bite was registered. During Schmidt's January 13, 1981, appointment, Respondent began work on her upper teeth. Schmidt was placed in temporaries. When the upper metal work was tried-in on February 3, 1981, Respondent determined that the fit was correct. On February 10, 1981, Respondent inserted Schmidt's upper crowns using temporary bond and made a notation in Schmidt's records that her bridges should be removed every six months. On February 17, 1981, Respondent removed one of Schmidt's bridges, made new temporaries, and returned Schmidt's crowns and bridgework to the laboratory for rearticulation in order that the bite, with which Respondent was not satisfied, could be corrected. On this date Schmidt was in her third set of temporaries and was clearly in an unfinished stage. On February 18 and 24, 1981, Schmidt was seen by Dr. Wayne Dubin, another dentist in the same office. Schmidt's dental records indicate that on the former date Dubin re-cemented Schmidt's temporary crowns, and on the latter date he cemented with temporary bond the permanent crowns that Respondent had returned to the laboratory on February 17. On March 3, 1981, Respondent repaired Schmidt's lower right bridge, and on March 10 he cemented that bridge back into Schmidt's mouth with temporary bond. On March 17, 1981, Respondent removed one of Schmidt's bridges and returned it to the laboratory so that porcelain could be added. This was the last occasion on which he rendered treatment to Schmidt. On March 24, Schmidt was seen by Dr. Dubin at the request of Respondent. In the presence of Schmidt, Respondent requested Dubin to take over the case because Respondent was still unable to correct Schmidt's bite. Respondent told Dubin to do whatever he thought was necessary. On March 24, 1981, Dubin removed Schmidt's crowns and bridges and took a bite impression without the crowns and bridges in place in order to correct the bite problem in a different way than Respondent had previously tried. On April 7, 1981, Dubin placed Schmidt's bridges in her mouth using temporary cement. He advised her that on her next visit he would take a new set of X rays, presumably to start over again if necessary. Although Dubin was at that time Schmidt's treating dentist, she sought advice from the lady employed as the office manager at R & E Dental Offices. The two women decided that rather than having Schmidt continue with Dubin, she should see Dr. Lawrence Engel the "E" of R & E Dental Offices. On the following day Engel saw Schmidt for an occlusal adjustment. During the examination, Schmidt's jaw muscles went into spasm, and she was unable to make the appropriate movements so that Engel could make the appropriate adjustments. Engel suggested to Schmidt that she go home, practice moving her jaw in front of a mirror in the privacy of her home, and then return so that he could complete her adjustment. Schmidt returned to Engel approximately one week later and brought her husband with her. While Mr. Schmidt engaged in a tirade and Dr. Engel engaged in adjusting Mrs. Schmidt's bite, there was a power failure in North Miami Beach. The Schmidts were given their choice of waiting until electrical power resumed or leaving and coming back at another time. After advising the office manager that they would return and that would also complete paying the agreed upon fee for dental services, the Schmidts left. They did not, however, return, and they did not, however, complete paying their bill. Instead, on May 18, 1981, Mrs. Schmidt picked up her records, X rays, and study models. She did not speak with Respondent about her voluntary termination of treatment, about a refund of the monies paid for treatment, or about her dental work being completed or redone. Schmidt was not released from treatment by any dentist at R & E Dental Offices. When Schmidt released herself from treatment, none of the three dentists who had treated her had indicated that her case was completed or close to completion. Rather, more temporaries were being made, her crowns and bridgework were being returned to the laboratory, new X rays were being ordered, and one dentist was in the middle of an adjustment when the electrical power failed. Moreover, the dental work made for her had been cemented with temporary bond, and no one had indicated that permanent cementing was likely at any time soon. The only discussion which had occurred regarding the use of permanent cement occurred with Respondent when he explained to her that sometimes sensitive areas are alleviated when permanent cementing takes place. That discussion took place prior to the time that Respondent referred Schmidt to Dr. Dubin with instructions to do whatever Dubin thought necessary. During the time that Respondent was treating Barbara Schmidt, she was seeing other dentists for the purpose of having them monitor Respondent's work. Since neither Schmidt nor her monitoring dentists advised Respondent that he was being monitored, the only information available to those dentists was that provided to them by Barbara Schmidt. They, therefore, did not have the benefit of Respondent's input into their opinions, and Respondent likewise was not given the benefit of their input into his decisions. In addition to seeing a Dr. Coulton and a Dr. Souviron, Schmidt consulted twice with Dr. Alvin Lawrence Philipson, a dentist having some business dealings with Mr. Schmidt. Schmidt saw Dr. Philipson for Use first time on February 11, the day after her permanent lowers were inserted with temporary cement. Six days later Respondent removed Schmidt's lower left bridge and sent it back to the lab to be remade in order to correct the bite and alleviate an area causing sensitivity. When Philipson next saw her in March of 1981 he was of the opinion that Respondent had provided treatment which failed to meet minimum standards. That opinion, however, was based upon the information given to him by the Schmidts that Respondent was finished with the case and ready to permanently cement all bridgework. At the time that he rendered his opinion, Philipson did not know that Schmidt was about to be referred by Respondent to another dentist, i.e., Dr. Dubin for that doctor to do whatever he thought was necessary in order to help Mrs. Schmidt. After Schmidt discharged herself from the care of the dentists at R & E Dental Offices, she continued to wear the crowns and bridgework in their temporized state without treatment from April 8, 1981 (the day of the power failure) until July 7, 1982 when she sought dental treatment from Dr. Donald Lintzenich. By this time she had also developed periodontal problems, most likely as a result of neglect. Schmidt began treating with Tintzenich in July of 1982, and Lintzenich also referred her to other specialists for necessary treatment such as root canals and periodontal treatment. Although many changes were made to the crowns and bridgework Schmidt received from R & E Dental Offices by Lintzenich and the other dentists to whom he referred her, during the first four months that he treated Schmidt Lintzenich left the crowns and bridgework from R & E Dental Offices in Schmidt's mouth. Although Lintzenich began treatment of Schmidt in July 1982, he was still treating her at the time of the Final Hearing in the cause and was, at that point, considering redoing work he had placed in her mouth. The numerous experts in dentistry presented by both Petitioner and Respondent agree that Barbara Schmidt's is an extremely difficult reconstruction case and that a quite extended period of time is necessary for the correction of her dental problems. Further the experts agree on nothing. Each of Petitioner's experts disagrees with almost everything stated by the remainder of Petitioner's experts. For example, Philipson recommends increasing Schmidt's bite; Glatstein believes that Schmidt's bite needs to be reduced; and Lintzenich opines that any attempt to change the vertical dimension would constitute treatment below the minimum acceptable standard. Some of Petitioner's experts believe that Schmidt's periodontal problems existed before she sought treatment by Respondent, and some of them believe that her periodontal problems commenced after she had terminated treatment with Respondent. Although most of Petitioner's experts agreed that Respondent's work fell below minimum standards, they also admit their opinions would be different if they had known that Respondent had not completed his work on Schmidt and had not discharged her but rather had referred her to another dentist with instructions to do whatever was necessary. Only Dr. Glatstein maintained that Respondent's work was substandard at any rate, an opinion he confers on Lintzenich's work, too. The Administrative Complaint filed herein charges that Respondent's treatment of Schmidt failed in the following "specifics": the work has no centric occlusion; the bite is totally unacceptable and if not corrected will cause irreversible damage to the temperomandibular joint; and the contour of the teeth and embrasure space for the soft tissues were unacceptable and ultimately will result in periodontal breakdown. All of the experts who testified agree that Barbara Schmidt's bite is/was not correct. She initially sought treatment because her bite was not correct and is still undergoing treatment because her bite is not correct. There is no consensus on any of the other charges in the Administrative Complaint; in fact, there is no consensus as to the meaning of some of the words' used. For example, some dentists believe that the term "contour of the teeth" encompasses open margins while others believe that an open margin is the space between the tooth and the crown. Few dentists, however, believe that an Administrative Complaint which states that the contour of teeth is unacceptable advises a licensee that he is charged with defective work because of open margins. Even if open margins were part of the term "contour of the teeth," the Administrative Complaint fails to notify anyone that the open margins are the part of the contour that is alleged to be defective or even which teeth are involved. There is no basis for choosing the opinion of one expert in this case over the other experts who testified herein. Further, many of the opinions are based upon information that was either erroneous or false, such as the information that Respondent had completed treatment and discharged Schmidt.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaints filed herein and dismissing them with prejudice. DONE and RECOMMENDED this 20th day of May, 1985, at 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 May, 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, New Jersey 07201 Algis Augustine, Esquire 407 South Dearborn Street Suite 1300 Chicago, Illinois 60605 Stephen I. Mechanic, Esquire Allan M. Glaser, Esquire Post Office Box 398479 Miami Beach, Florida 33139 Ronald P. Glantz, Esquire 201 S.E. 14th Street Fort Lauderdale, Florida 33316 Steven Rindley, D.D.S. 251 NE 167th Street North Miami Beach, Florida 33162 Steven Rindley, D.D.S. 1160 Kane Concourse Bay Harbor Islands, Florida 33154 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
The Issue Whether respondent committed the acts alleged in the Administrative Complaint and, if so, whether respondent's license should be revoked or suspended, or whether some other penalty should be imposed.
Findings Of Fact John R. Parry is and was at all times material to the complaint a licensed dentist in the State of Florida having been issued License No. 0005282. At all times material to the complaint, respondent's address was 255 Wymore Road, Winter Park, Florida, and 315 Wymore Road, Winter Park, Florida. Respondent's address has subsequently changed. At all times material to the complaint, respondent - operated his practice of dentistry under the fictitious name of Florence Dental Clinic. Dr. Parry's practice was limited to the practice of prosthetics, the replacement of missing teeth. In other words, Dr. Parry confined his practice to the provision of partial and full dentures and related services. Wayne Giddens worked for Florence Dental Clinic for about five years, from 1980 through 1985. Wayne Giddens was not licensed to engage in the professions of dentistry or dental hygiene in the State of Florida, and he had not been issued a certificate of expanded duties by the Board of Dentistry. Retha Holt, now Retha Tucker, also worked at Florence Denture Clinic. She was neither a licensed dentist nor a dental hygienist, and she had not been issued a certificate for expanded duties by the Board of Dentistry. LASSETTER CASE On January 15, 1982, Sylvia Lassetter went to the Florence Denture Clinic (FDC) to have all of her remaining upper teeth removed and a full upper denture made. Ms. Lassetter had only six remaining upper teeth. Ms. Lassetter had not seen a dentist for at least five years prior to seeing respondent. At that time, she was advised that she had gum disease and would eventually lose all of her teeth. When she went to FDC, she was having problems with the teeth on the right side of her mouth and, since she had been told that she would eventually lose all of her teeth, Ms. Lassetter decided to have all of the remaining upper teeth extracted and a full upper denture made. Ms. Lassetter went to FDC because she heard that FDC would provide her with a denture she could wear immediately. Respondent was the dentist of record and performed dental services for Ms. Lassetter. On the day Ms. Lassetter went to FDC, general medical information was obtained and x-rays were taken. Later that same day, respondent extracted all of the remaining top teeth, which were teeth number 5, 6, 7, 8, 9, and Dr. Parry also provided her with a full immediate maxillary (upper) denture. The upper denture initially had a full complement of teeth. However, when the denture was first placed into Ms. Lassetter's mouth, it was discovered that there was insufficient room for the posterior denture teeth. Ms. Lassetter had natural teeth on both sides of her lower jaw that were extremely extruded, causing premature contact with the denture teeth. With the denture in place, Ms. Lassetter could not close her mouth, she could not swallow, and she could not talk. In an attempt to alleviate the problem, the posterior teeth on the maxillary denture were ground off, leaving ten teeth on the maxillary denture. Ms. Lassetter was able to keep the denture in her mouth until about 10:00 that evening. At that point, her gums were swollen and she was in such pain that she could not tolerate wearing the denture any longer. The next day the problem had gotten worse. Ms. Lassetter noticed drainage coming from a hole located at the top left front area of her gum where teeth had been pulled. She also observed what appeared to be a portion of bone which was protruding through the gum adjacent to the hole. She called the emergency number which had been provided to her by FDC, since Dr. Parry was going out of town, and talked to Dr. Marini. Although Dr. Marini asked her to come to his office, Ms. Lassetter was unable to do so, and Dr. Marini prescribed some medication. As soon as possible, Ms. Lassetter returned to FDC. Respondent flushed out the area where the drainage was occurring and replaced the denture. Although Ms. Lassetter had been told to keep the denture in place, she was unable to do so. By the time she was halfway home she was "foaming at the mouth" because she could not swallow. She removed the dentures. She returned to FDC and saw Dr. Parry again. She explained the problems she was having with the dentures. No adjustments to the dentures were made, and the only treatment she received was to have the area where the drainage was occurring flushed out. Although Ms. Lassetter continued to experience difficulty with the denture and with the extraction area in the front of her mouth, returning to FDC on several occasions to have the problems corrected, the only treatment she received was flushing out the socket. She was also advised to wear the denture; however, apparently no adjustments to the denture were made, and Ms. Lassetter continued to be unable to wear it. Finally, Ms. Lassetter called the clinic and explained to the woman who answered the phone that she wanted the protruding bone removed and that if Dr. Parry could not do it ski' would find someone who could. However, when Ms. Lassetter went to the clinic for her appointment, Dr. Parry told her that the bone had to stay in her mouth and that she would not be able to wear the denture if the bone were removed. Ms. Lassetter did not return again to FDC for treatment. Her last appointment was apparently on February 10, 1982. On February 24, 1982, Dr. Lewis Earle, a dentist, examined Ms. Lassetter. He took a single periapical x-ray and a single panoramic scan. During the course of his examination he observed a lesion or fibroma in the area of teeth numbers 24 and 25; he noted a large defect in the maxillary left central and lateral incisor region where a "dry socket" osteitis had developed; he noted what appeared to be an exposed necrotic, alveolar bone; and he observed that there was severe periodontal disease in the remaining mandibular teeth, with a hopeless prognosis on the second and third molars. Dr. Earle also noted maxillary exostoses, or tori, in the palatal aspect of the endentulous second and third molar regions, with corresponding prominent undercuts. There was also alveolar prominence in the left canine area. Dr. Earle observed that Ms. Lassetter's mandibular second and third molars had erupted above the normal plane of occlusion, which occurred due to the lack of opposing occlusion and the mobility of the molars resulting from the periodontal disease. When the mandible was closed, approximating normal verticle dimension, the molars appeared to actually touch the soft tissue of the maxillary tuberosity (2nd and 3rd molar) area, indicating a lack of space for a maxillary denture base. Dr. Earle also examined Ms. Lassetter with the maxillary denture in place. He noted that there was extremely poor contact when the mandible was closed in centric relation. On the left side, there was some contact between the mandibular teeth and the denture base in the molar area, and the natural lower canine tooth touched the upper denture tooth in the first bicuspid area. Everything on the right side was totally out of occlusion. In the anterior teeth, the "open bite" was 6 to 8 millimeters. Ms. Lassetter was able to slide out of centric relation, to the right and forward, to get slightly better contact, but it was still very poor and was imbalanced. Dr. Earle referred Ms. Lassetter to Dr. Robinson, an oral and maxillofacial surgeon, for an evaluation and a treatment plan. Dr. Robinson saw Ms. Lassetter on March 2, 1982. He examined her and reviewed the x-rays received from Dr. Earle. The panoramic x-ray revealed severe periodontial disease. The six mandibular molars, as well as the other remaining teeth, had less than half of their roots supported by bone. The periapical x-ray of the maxillary left anterior alveolar process revealed ragged and irregular alveolar bone and one fragment which could have been a segment of bone working loose or a part of a tooth root. Dr. Robinson's examination confirmed the existence of periodontal disease. Dr. Robinson also observed bilateral palatal exostoses, a posterior buccal undercut in the right maxilla and a mild prominence in the maxillary right bicuspid region. He saw the exposed bone or tooth fragment, and noted that the maxillary left cuspid area was prominent and irregular with surface inflammation and tenderness. He also saw a lesion in the endentulous area of the mandibular central incisors. Dr. Robinson recommended excising the bilateral exostoses, flapping and reducing the undercuts in the posterior right maxilla and maxillary right bicuspid region, removing the necrotic segment of bone with appropriate alveoloplasty in the left central incisor and cuspid region, removing the mandibular lesion and submitting it for biopsy, and extracting the mandibular first through third molars on the right and left side. On March 5, 1982, Dr. Robinson performed the recommended procedures. After removing the exposed calcified substance from the upper left central incisor area, Dr. Robinson thought it was probably tooth root rather than bone. The size of the fragment was about 2 mm. by 3 mm. by 10 mm. The mandibular lesion removed by Dr. Robinson was benign. Dr. Wayne Bennett saw Ms. Lassetter on June 4, 1982. He examined her dentures, her dental records, Dr. Earle's report, and her x-rays. He noted that the buccal flanges on the denture were over-extended. He felt that there was reasonable adaptation of the denture to the maxillary ridge except in the areas where surgery had been performed. He was unable to reach any conclusions, based on his own observations, concerning the way the denture originally fit; including the occlusion when in centric relation, due to the extensive surgery that had been performed by Dr. Robinson prior to Dr. Bennett's examination. SPECIFIC CHARGES--LASSETTER: WHETHER RESPONDENT FAILED TO RECOGNIZE, TREAT, OR ADVISE MS. LASSETTER OF EXISTING PERIODONTAL DISEASE. Ms. Lassetter did not go to FDC to get periodontal treatment. When she went to FDC she knew she had periodontal problems and had been told that she would eventually loose all her teeth. She went to FDC simply to have all of her remaining upper teeth extracted and an upper denture made. However, there was no evidence that respondent was aware that Ms. Lassetter knew she had periodontal disease. No one at FDC told Ms. Lassetter that she had periodontal disease or whether the disease was treatable. Further, there is nothing in Ms. Lassetter's records to indicate that Ms. Lassetter's severe periodontal disease was recognized. WHETHER RESPONDENT FAILED TO RECOGNIZE OR TREAT A PATHOLOGICAL LESION ON MS. LASSETTER'S MANDIBULAR ANTERIOR ALVEOLAR RIDGE. There was no evidence presented to establish that the pathological lesion which was observed by Dr. Earle and removed by Dr. Robinson was present when the respondent treated Ms. Lassetter. Although a lesion, or fibroma, such as the one Ms. Lassetter had, is-usually slow developing because it is typically caused by some sort of chronic irritation, it is impossible to say with any certainty that the lesion was present when Dr. Parry treated Ms. Lassetter. WHETHER RESPONDENT FAILED TO RECOGNIZE THE LACK OF SPACE IN THE MAXILLARY TURBEROSITY AREAS FOR A DENTURE BASE, AND WHETHER PRELIMINARY SURGICAL PREPARATION OF MS. LASSETTER'S MOUTH WAS NECESSARY. There was no question that Dr. Parry did not recognize the insufficient space in the maxillary tuberosity areas for an upper denture with a full complement of teeth. The mandibular second and third molars were extremely extruded, rising above the occlusal plane. Due to the height of the second and third molars, there was simply no room for opposing teeth to be placed on the upper denture. Nevertheless, there was nothing in Dr. Parry's record to reflect that he recognized this lack of space and, prior to preparing the upper denture, he did not advise Ms. Lassetter of the lack of space for denture teeth. Indeed, the denture originally had a full complement of teeth. It was only after the denture was placed in Ms. Lassetter's mouth that Dr. Parry realized there was insufficient space for the denture teeth, and the molars on the denture were ground off. Although there was clearly no room for opposing denture teeth in the molar area, both Drs. Marini and Savage testified that, based on Dr. Parry's x-ray, there was sufficient room for a denture base. Dr. Earle also testified that Dr. Parry's x-ray revealed a slight space between the upper gum tissue and the lower teeth. Thus, there may have been room for a thin denture base with no denture teeth. However, a denture should have a full complement of teeth. Under normal circumstances, there should be teeth posterior to the bicuspids. Sufficient room for the complete upper denture could have been made either by performing an alveolectomy, or bone reduction, in the maxillary molar area or by removing the extruded mandibular teeth. In this case, the latter solution was clearly the best solution. The extruded molars could not have been salvaged anyway, due to the severe periodontal disease, and it was preferable to have as much maxillary bone as possible to support the denture. Dr. Parry should have recognized that the mandibular molars needed to be extracted to allow room for the upper denture. Respondent asserts that Ms. Lassetter only wanted removal of her upper teeth and insertion of a full upper denture. He asserts that she did not want and could not afford additional surgical preparation of her mouth. However, the evidence does not support this assertion. Ms. Lassetter was never advised that there was a lack of space for upper denture teeth in the molar region. She was not advised to have her lower molar teeth extracted. Respondent asserts that Ms. Lassetter received the services she sought. To the contrary, Ms. Lassetter wanted an upper denture with a full complement of teeth. Ms. Lassetter was never advised that unless she had surgery, she would not have any molars on her upper denture. Finally, because Dr. Parry did not advise Ms. Lassetter of this problem, because Ms. Lassetter's dental records do not indicate that Dr. Parry was aware of the problem, and because the denture was originally made with molar teeth, it is apparent that Dr. Parry simply did not recognize the problem. WHETHER RESPONDENT FAILED TO RECOGNIZE SEVERE UNDERCUTS IN THE MAXILLARY ANATOMY THAT REQUIRED SURGICAL PREPARATION TO PERMIT PROPER DENTURE RETENTION. An exostosis is an abnormal bony growth or protuberance. There is a natural undercut over an exostosis. If the exostosis is not removed, the denture will not fit properly and there will be a loss of retention. However, it is possible to build around an exostosis. When the denture is constructed, the undercut can be blocked out. However, this results in having an area of no contact between the tissue and the denture base. If there is only one exostosis, the denture base can be constructed to conform to the undercut. In that situation, the denture is put in sideways until the undercut is engaged and then the denture is snapped into position. However, in this case, Ms. Lassetter had large palatal exostoses on the right and left side, she had a posterior buccal undercut in the right maxilla, and an undercut in the maxillary right bicuspid region. Ms. Lassetter could not have a comfortable, well-adapted denture without the exostoses being removed. It was poor judgment and inadvisable to build over the exostoses. Further, Ms. Lassetter was not advised of the need for surgery, and her dental records do not indicate that Dr. Parry was aware of the problem. WHETHER RESPONDENT FRACTURED THE LABIAL ALVEOLAR BONE DURING EXTRACTION, CAUSING THE LOSS OF A LARGE SEGMENT OF BONE; WHETHER RESPONDENT PROPERLY CLOSED THE EXTRACTION SITES AFTER SURGERY AND THE ALVEOLAR FRACTURE; AND WHETHER RESPONDENT PROPERLY TREATED THE EXPOSED ALVEOLAR BONE. It is not uncommon, and certainly not incompetent, to cause a bone fracture during the extraction of teeth. A tooth root can also break during the extraction of teeth. In some cases, it is not necessary to remove the broken root tip. However, because there is a liklihood of subsequent infection if a large root segment is not removed, a root fragment that is more than 2 or 3 millimeters long should be removed unless the risk of removing it exceeds the benefit of removal. In some cases, roots that have had root canal treatment done on them are intentionally left in place to help maintain the height of the alveolar bone. However, in this case, it was totally inappropriate to leave the exposed bone or root fragment in place. There was inflammation around it, indicating that the area had become infected. The bone fragment or root tip was exposed at the time Dr. Parry was treating Ms. Lassetter. Indeed, Ms. Lassetter asked that it be removed. It was clearly below minimum standards for Dr. Parry to leave the fragment in place, whether it was a segment of bone or tooth root. Although it is not always necessary to suture an extraction site, when there are multiple extractions the preferred procedure is to suture the extraction sites. However, if a denture is to be worn immediately after extractions, it is not below minimum standards to fail to suture the extraction sites. WHETHER RESPONDENT FAILED TO INSTITUTE PROPER ANTIBIOTIC THERAPY OR OTHER TREATMENT AFTER MS. LASSETTER DEVELOPED AN OSTEITIS. A localized osteitis, or dry socket, is an infection of the bone. After an extraction, a blood clot normally plugs the socket and protects the alveolar bone. If the clot breaks down, or deteriorates, exposing the bone to the oral cavity, bacteria invades the bone causing infection. This infection, or osteitis, is very painful and must be treated to relieve the patient's pain. At the time Dr. Earle saw Ms. Lassetter, she did not have acute osteitis. However, her condition was consistent with a partially healed dry socket, and her symptoms immediately after the extractions were consistent with osteitis. The evidence indicates that Ms. Lassetter developed an osteitis subsequent to the extractions by Dr. Parry. However, respondent treated the condition by flushing the socket. Medication, apparently an antibiotic, was prescribed by Dr. Marini and noted on Ms. Lassetter's dental records. Although Dr. Parry's treatment of Ms. Lassetter's condition may not have been the best, there was no evidence that the treatment provided was below minimum standards. WHETHER THE DENTURE PROVIDED BY DR. PARRY WAS EXTREMELY ILL-FITTING, WAS GROSSLY OVEREXTENDED IN THE BUCCAL FLANGE AREA, LACKED A SEAL IN THE POST-DAM AREA, HAD NO REASONABLE ADAPTATION TO THE MAXILLARY RIDGE, AND HAD NO TEETH POSTERIOR TO THE SECOND BICUSPIDS. When Dr. Earle examined Ms. Lassetter, the denture had very poor retention; it did not have any natural adhesion. However, Dr. Earle saw Ms. Lassetter two weeks after her last appointment with Dr. Parry, and approximately a month after her teeth had been extracted. Ms. Lassetter had not worn her upper denture during this time. After extractions, there is a substantial amount of bone resorption and tissue change in the area of the extractions. The denture acts as a mold or splint for the tissue. If the denture is not worn, there is nothing for the tissue to conform to and, even after a few days, the denture will not fit properly. The teeth that were extracted by Dr. Parry were in the front of Ms. Lassetter's mouth, and there was insufficient evidence to determine whether the denture ever fit in that area. However, the posterior and palatal areas would not have changed very much at the time Dr. Earle saw Ms. Lassetter, and the denture fit very poorly in the area of the palatal exostoses at that time. In essence, the poor fit of the denture was simply a corollary of the denture being improperly built over the exostoses. The denture did not appear to have a post-dam seal. The post-dam area is where the soft and hard palate meet. A post-dam seal is a raised area on the denture which creates a seal, keeping the denture from dislodging when the soft palate moves. Some seals, such as a "butterfly" seal, are not as noticable as other types of post-dam seals. However, Ms. Lassetter's denture did not appear to have any type of post-dam seal. Although it is not always necessary to have a post-dam seal, it does enhance the suction which keeps the denture in place. Since a post-dam seal aids in retention, a post-dam seal would be especially helpful where large undercuts are blocked out, as in this case, and the retention is poor. The buccal flanges, the areas of the denture on the side of the gums next to the check, were overextended. The side of the denture, or buccal flange, should not extend so far up that movement of the muscles or soft tissue cause the denture to dislodge. Although the buccal flange will often be overextended when the denture is received from the lab, it should be trimmed back before the patient leaves the office with the denture in place. Although there will be some tissue changes with time, there will not be major changes that would affect a well-adjusted flange. In this case, the height of the buccal flanges in the posterior areas would not have changed with time. There was insufficient evidence to establish that the denture had no reasonable adaptation to the maxillary ridge. As stated previously, Ms. Lassetter was unable to wear the denture. When a denture is not worn after extractions, it would be expected that the denture would not have a reasonable adaptation to the ridge after even a short period of time. Further, Dr. Bennett's testimony, which is accepted, indicated that the adaptation to the ridge was fair, though not exact, except in the areas where there had been corrective surgery. As stated previously, the denture did not have any teeth posterior to the second bicuspids. WHETHER, WHEN THE MANDIBLE WAS CLOSED IN CENTRIC RELATION, NONE OF THE DENTURE TEETH OCCLUDED WITH THE MANDIBULAR TEETH LEADING TO A SEVERE "OPEN BITE" RELATIONSHIP. "Centric relation" refers to an arch-to-arch or to jaw- to-jaw relationship. It is the relationship of the mandible the maxilla when both condyles are in their terminal hinge axis location irrespective of tooth contacts. "Centric occlusion" refers to the maximum occlusal contact irrespective of condylar position. Centric relation is very important to the comfort of the teeth, joints and muscles of the jaw. If centric occlusion is not in harmony with centric relation, the condyles must be pulled out of their terminal hinge position in order to make the teeth fit. The end result of the disharmony between centric relation and centric occlusion is stress on the teeth, joints and muscles. Therefore, it is very important for centric occlusion to be in harmony with centric relation. When Dr. Earle saw Ms. Lassetter he manipulated the mandible into the centric relation position. In centric relation there was exceedingly poor contact between the denture teeth and the mandibular teeth. Indeed, the only tooth-to-tooth contact was on the left side where the lower canine tooth touched the upper denture tooth in the first bicuspid area. There was also contact between the left lower molars, which were subsequently removed, and the denture base. The right side was totally out of occlusion, and the "open bite" in the anterior teeth was six to eight millimeters. When the mandible deviated from the first tooth contact to the maximum occlusal contact, a process commonly called a "slide in centric" which is really a slide out of centric relation the occlusal contact was still quite poor. In his proposed findings of fact respondent suggests that Dr. Earle's testimony regarding the occlusion in centric relation should be rejected because it conflicted with his written report, which stated that none of the denture teeth occluded with the mandibular teeth, and because there appeared to be differences in the position of the mandible in the slides taken by Dr. Earle which were admitted into evidence. Respondent points out that the slides were taken with check retractors in place, which could affect the position of the denture, and that one cannot make a determination of the occlusion in centric relation from merely looking at the slides. Nevertheless, Dr. Earle's testimony is accepted. Although there may have been slight shifts in position while the slides were taken, the slides were only meant to illustrate what Dr. Earle observed. Dr. Earle did not have to take check bites because he was not treating Ms. Lassetter and was not going to modify the denture. Occlusal discrepancies can be observed when the patient closes in centric relation and the initial tooth-to-tooth contact is made. WHETHER RESPONDENT WAS GUILTY OF INCOMPETENCE BY FAILING TO MEET THE MINIMUM STANDARDS OF PERFORMANCE IN DIAGNOSIS AND TREATMENT. For the reasons stated in the above paragraphs it is apparent that respondent's diagnosis and treatment of Ms. Lassetter was below minimal accepted standards. Although petitioner was unable to prove all of the specific allegations set forth in the Administrative Complaint, the evidence presented clearly established respondent's incompetency. THE JEAN BLANCHARD CASE On August 14, 1984, Jean Blanchard went to FDC to get her upper denture relined or, if that could not be done, to get a new upper denture and lower partial. Dr. Parry examined Ms. Blanchard and then an impression was taken. Although Ms. Blanchard testified that a girl named "Ria," apparently Retha Holt Tucker, placed the tray in her mouth, Mrs. Tucker testified that she never took an impression while at FDC, although she stated that she did place empty trays in patients' mouths to determine the size of the tray to be used. Mrs. Tucker also explained that she would hold the tray in place while the impression set. Mrs. Blanchard testified that the first attempt at taking an impression failed. When the tray was inserted in Mrs. Blanchard's mouth, the material in the tray came out and started going down her throat. She began to choke and had to jerk Mrs. Tucker's hand away. Mrs. Tucker was holding the tray in place. The impression was no good and another impression had to be taken. Mrs. Blanchard remembered Dr. Parry taking the second impression. He stayed in the room with her while it set. Although Mrs. Tucker admitted that she took impressions for another dentist after leaving Dr. Parry, she testified decisively that she never took an impression while working at FDC. She stated that Dr. Parry told her that her job was only to hold the tray in place. She was not permitted to put the tray in the patient's mouth or take it out. Mrs. Tucker's testimony is accepted. It is, therefore, concluded that Dr. Parry placed the tray in Mrs. Blanchard's mouth on both occasion and that Mrs. Tucker merely held the tray in place. Holding the tray in place does not constitute the taking of an impression. On October 22, 1984, Mrs. Blanchard executed an Authorization for Release of Medical Information for Merry Paige of the Department of Professional Regulation (Department). On January 23, 1985 and on February 2, 1985, Investigator Paige presented respondent with Mrs. Blanchard's authorization in an attempt to obtain Mrs. Blanchard's patient records. Respondent failed to release Mrs. Blanchard's patient records. The records were ultimately provided to the Department by respondent's counsel in October of 1985. JAMES BLANCHARD CASE James Blanchard went to FDC on August 14, 1984, along with his wife. Mr. Blanchard was having trouble with his teeth and wanted a full set of dentures. He filled out and signed forms provided by FDC. One of the forms contained certain statements regarding the type of work the patient wanted. Mr. Blanchard placed his initials by some of the statements, including the statement, "I do not wish periodontal (gum) treatment to save my teeth." Mr. Blanchard was aware that he had periodontal disease. Mr. Blanchard told Dr. Parry that he wanted a full set of upper and lower dentures. However, Dr. Parry advised Mr. Blanchard that three teeth on each side of the mandible could be saved. Dr. Parry also told Mr. Blanchard that he had periodontal disease, although he did not tell Mr. Blanchard whether the periodontal disease was treatable. Upper and lower impressions were made. Although Mr. Blanchard believed that the impressions were taken by a lady by the name of "Ria," apparently Retha Tucker, Mrs. Tucker merely held the tray in place while the impressions were setting. Retha Tucker did not actually take the impressions. Dr. Parry referred Mr. Blanchard to Dr. Philip Lightbody, an oral and maxillofacial surgeon, for the extractions. On the same day, August 14, 1984, Dr. Lightbody removed eighteen teeth, ten from the upper jaw and eight from the lower jaw. Dr. Parry determined the number of extractions to be made since he was the referring dentist; Dr. Lightbody did not make any decisions regarding the teeth to be extracted. However, as part of the surgery, he also performed a bilateral lingual tuberosity reduction to facilitate the denture fit. Lingual tuberosity refers to a projection of bone on the inside or tongue side of the lower jaw. Mr. Blanchard returned to FDC after the extractions and received his dentures, a full upper and a lower partial, the same day. No one at FDC specifically informed Mr. Blanchard that his dentures were treatment or temporary dentures, and he assumed that the dentures were permanent. However, on the forms Mr. Blanchard completed he initialed the following statement: "I realize that this is just a temporary denture or partial and it may need to be relined or remade due to bone changes during the process of healing, and this will be done at my expense." Mr. Blanchard returned to FDC the following day to have the dentures adjusted because the full upper denture was gagging him and the lower partial denture made his tongue sore and was cutting into his jaws on the inside. Dr. Parry made an adjustment to the upper denture which consisted of grinding down the back of the denture. Mr. Blanchard returned one more time to FDC. His upper dentures were still gagging him. This time, he saw Wayne Giddens who removed the denture and took it out of the room, apparently to have adjustments made. Mr. Blanchard did not know what was done to the denture. Whatever adjustment was made did not help the problem; however, Mr. Blanchard never returned to FDC. He lived 90 miles away and felt that another visit would not solve anything since neither of his earlier visits had helped. On September 5, 1984, Mr. Blanchard saw Dr. David Sweeney, a general dentist located in Brandon. He complained that he could not wear the dentures he had because of discomfort and difficulty in chewing. Because of Mr. Blanchard's complaints, Dr. Sweeney suggested a new upper full denture and a new lower partial. He also advised Mr. Blanchard that he had periodontal disease and that if he wanted to save his six remaining teeth he would need to undergo some periodontal therapy. At the time of the initial visit Dr. Sweeney did a soft reline of the upper denture and lower partial. Dr. Sweeney did a permanent reline of the upper on October 10, 1984. Dr. Sweeney subsequently provided Mr. Blanchard with a new lower partial and, as soon as he could afford it, Mr. Blanchard had another upper denture made. On December 3, 1984, Mr. Blanchard executed an Authorization for Release of Medical Information for Investigator Merry Paige of the Department. On January 23, 1985 and on February 2, 1985, Investigator Paige presented the authorization to respondent to obtain Mr. Blanchard's patient records. On both occasions respondent failed to release the records. On October 28, 1985, Respondent through his counsel, mailed the Department a copy of Mr. Blanchard's patient records. Dr. Lewis Earle examined Mr. Blanchard on February 21, 1985, approximately six months after Mr. Blanchard had received his dentures from Dr. Parry and after the upper denture had been relined twice and the lower partial relined once. At the time of Dr. Earle's examination, Mr. Blanchard had been wearing the new lower partial constructed by Dr. Sweeney. Dr. Earle examined Mr. Blanchard with Dr. Parry's dentures in place. The dentures did not properly occlude when the mandible was closed in centric relation. There was no contact on the posterior teeth' and there was an open bite in several regions which caused instability in the maxillary denture when biting pressure was applied. WHETHER THE DENTURES PROVIDED BY DR. PARRY DID NOT PROPERLY OCCLUDE; DISPLAYED AN OPEN BITE IN SEVERAL REGIONS, CAUSING INSTABILITY OF THE UPPER FULL DENTURE WHEN PRESSURE WAS APPLIED AND A LOSS OF RETENTION, AND WERE DEFECTIVE IN DESIGN, FIT AND FUNCTION IN THAT THEY LACKED THE PROPER CENTRIC RELATION NECESSARY TO A BALANCED OCCLUSAL FUNCTION. Dr. Earle examined Mr. Blanchard six months after Dr. Parry provided the dentures for Mr. Blanchard. Dr. Earle observed that the dentures did not occlude properly when the mandible was closed in centric relation. Because there was not balanced occlusion, when pressure was applied the upper denture dislodged. Dr. Sweeney saw Mr. Blanchard a few weeks after he had obtained the dentures from Dr. Parry. Dr. Sweeney testified that there was no open bite areas and that the occlusion was fair. He testified that the dentures were adequate as treatment or temporary dentures. Based on Dr. Sweeney's testimony, which was credible and is accepted, it is concluded that the dentures provided by Dr. Parry were not below minimum acceptable standards relating to occlusal function and design. WHETHER THE LOWER PARTIAL DENTURE LACKED NECESSARY OCCLUSAL RESTS AND RETENTIVE CLASPS AND WAS INSERTED UPON PERIODONTALLY INVOLVED TISSUE. Respondent's lower partial was an acrylic tissue- bearing partial. This type of partial is approved by the American Dental Association. This type of partial would also be the treatment of choice for periodontally involved tissue, as it is less likely to cause an extraction of the adjacent remaining natural teeth. A clasp placed on a periodontally involved tooth will destroy it. The clasp will act as a pair of forceps as it works, eventually pulling out the periodontally involved tooth. Therefore, although the denture provided to Mr. Blanchard did not have rests and retentive clasps, it was not below minimum acceptable standards. Although the denture was placed on periodontally involved tissue, it is acceptable to provide a functional immediate or treatment partial to a patient without first providing periodontal treatment when the patient has refused such treatment. Under the circumstances of this case, placing the acrylic tissue-being partial upon periodontally involved tissue was not below minimum standards. Based on the foregoing specific findings, it is apparent that respondent's treatment of Mr. Blanchard was not below the minimal acceptable standards when measured against prevailing peer performance. THE McPECK CASE On February 13, 1985, Ms. Dorothy McPeck went to FDC to have two full maxillary dentures and a partial mandibular denture made. She wanted one upper denture for a spare in case anything happened to the other one. Prior to going to FDC, Ms. McPeck had been wearing a full upper denture and a partial lower denture for over thirty years. The teeth on both dentures were worn down--she had not had her upper denture replaced since around 1971 and had been wearing the same lower partial for over thirty years. When she went to FDC, Ms. McPeck completed no paper work and no x-rays were taken. Respondent failed to obtain her medical history, failed to chart her then-present dental condition, failed to take any diagnostic information and failed to prepare a treatment plan for her. The impressions for Ms. McPeck's dentures were taken, and she returned that afternoon to get her dentures. Wayne Giddens, one of Dr. Parry's assistants, brought the dentures into the room. Ms. McPeck thought they were very nice looking but too white. Ms. McPeck wore the dentures all afternoon. However, that evening she was unable to eat dinner because the dentures hurt when she tried to eat. She tried the other upper denture, but that was no better, and she had to put in her old upper denture in order to eat. When Ms. McPeck returned to FDC on February 15, 1985, she was seen by Wayne Giddens. Mr. Giddens-removed the denture and apparently some adjustment to the denture was made. However, when Ms. McPeck tried to eat that afternoon, the denture rocked and she couldn't eat with it in. The denture didn't hurt, but it didn't fit. Ms. McPeck returned to FDC again and initially saw Mr. Giddens. He was unable to help Ms. McPeck and went to get Dr. Parry. Dr. Parry looked in her mouth, indicated that everything looked good, and left. He did not make any adjustments. Ms. McPeck was not happy with the treatment she received at FDC, and not satisfied with her dentures. She never wore the dentures again, and finally, obtained a refund from FDC. Respondent was the treating dentist and dentist of record during the treatment of Ms. McPeck at FDC. Dr. Lewis Earle examined Ms. McPeck on May 8, 1985, along with the dentures fabricated by Dr. Parry. Dr. Earle examined both maxillary dentures. Pressure indicator paste revealed that there were large portions of the palatal area of the dentures that were not in contact with the tissue. Although the two maxillary dentures were not duplicates, both had large areas of no contact. Both uppers lacked proper retention and had poor adaptation. The lower partial had a clasp system, which gave it some retention, but the partial denture base had very poor adaptation to the lower ridge. There was only one small area on the buccal flanges that had any contact. The two upper dentures were very similar as far as the bite. When the mandible was closed in centric relation there was an open bite of approximately three millimeters in the front. Ms. McPeck was able to slide in centric to a position where the teeth occluded quite well. However, this shift forward was very unbalancing to the upper denture, and since it had little retention to start with, chewing in this position caused the denture to become dislodged. The partial denture was partially tooth-borne and partially tissue-borne. It had poorly designed clasps. They were not custom made to fit the teeth to which they were clasped. A partial denture depends on close adaptation of wire or cast metal clasps to slight undercuts. The clasp should be designed so that it does not put a strain on the tooth. The partial denture had no occlusal rests on either of the abutment teeth to keep the partial from sinking into the soft tissue when biting down. It lacked reciprocal clasps or arms on the inside to provide adequate retention. SPECIFIC CHARGES WHETHER THE DENTURES, AS A SET, CONTAINED A THREE MILLIMETER DISCREPANCY BETWEEN CENTRIC RELATION AND OCCLUSION. With respondent's dentures in place, centric relation was not in harmony with centric occlusion. When the mandible was closed in centric, there was a three millimeter open bite. The mandible had to move out of centric relation for maximum occlusal contact, or centric occlusion, to be reached. Dr. Earle estimated that the mandible had to deviate approximately three millimeters from the centric relation position in order to achieve centric occlusion. Dr. Earle's testimony, that centric occlusion and centric relation were not in harmony, is accepted. The problems that Ms. McPeck was having with her dentures were consistent with centric occlusion and centric relation being out of harmony. WHETHER THE COMPLETE MAXILLARY DENTURE AND DUPLICATE MAXILLARY DENTURE CONTAINED LARGE AREAS OF NO CONTACT; WHETHER THE DENTURES LACKED PROPER RETENTION. There were large areas where the dentures fabricated by Dr. Parry were not in contact with tissue. Especially crucial were the areas on the upper dentures at the peripheral border or post-dam area. Due to the poor adaptation of the dentures to the tissues, the upper dentures also had poor retention, although one was better than the other. Dr. Earle tested the dentures for retention simply by putting pressure on one side and then the other. WHETHER THE PARTIAL MANDIBULAR DENTURE LACKED PROPERLY ADAPTED, INDIVIDUALLY-CAST CLASPS FITTED TO A SURVEYED MODEL, LACKED LINGUAL RECIPROCAL CLASPS FITTED TO THE FACIAL RETENTION CLASPS, LACKED CAST METAL LINGUAL RESTS, AND CONTAINED LARGE AREAS OF NO TISSUE CONTACT. The lower partial denture provided to Ms. McPeck was a tissue-borne acrylic partial denture wire clasps. It did not have individually-cast clasps, it lacked lingual reciprocal clasps, and it lacked cast metal lingual rests. Although it can be acceptable dental treatment to provide a partial without these rests and clasps, and to provide a tissue bearing partial, there was no evidence to explain why Ms. McPeck was not provided with a denture that had these rests and clasps. Dr. Marini, respondent's expert witness, testified that a partial mandibular denture that did not have individually-cast clasps, labial reciprocal clasps, and cast metal labial rests was not necessarily below minimum standards. However, he indicated that such a denture should be provided only when the patient's economic situation required it. He stated, "when they are able to afford something better, you can make another type of partial." There was no evidence presented that the partial was constructed the way it was based on Ms. McPeck's economic condition. There was no evidence that Ms. McPeck could not, at the time the denture was made, "afford something better." This was also not the same situation as that of Mr. Blanchard, who required a tissue bearing partial due to his periodontal condition. Further, Mr. Blanchard's partial was intended to be a temporary denture. Ms. McPeck's denture was meant to be a permanent denture. Under these circumstances, it was below minimum standards to provide Ms. McPeck with a denture that lacked individually-cast clasps, lacked lingual reciprocal clasps, and lacked metal lingual rests. WHETHER RESPONDENT FAILED TO MEET MINIMUM STANDARDS IN HIS TREATMENT OF MS. MCPECK. Based on the foregoing findings, it is apparent that respondent did not-provide competent treatment to Ms. McPeck. The dentures provided to her had poor adaptation and retention. The dentures were not constructed so that centric relation would be in harmony with centric occlusion which caused Ms. McPeck to have problems when trying to eat. Further, the partial provided by Dr. Parry was not an adequate partial denture under the circumstances presented. WHETHER RESPONDENT DELEGATED PROFESSIONAL RESPONSIBILITIES TO A PERSON NOT QUALIFIED BY TRAINING, EXPERIENCE OR LICENSURE TO PERFORM THEM. Although Ms. McPeck testified that Wayne Giddens, respondent's dental assistant, took her impressions, worked on her dentures, and placed the dentures in her mouth on several occasions, I did not find that Ms. McPeck's testimony was credible insofar as it related to the procedures followed as FDC, including who took her impressions and adjusted her dentures. There were too many inconsistencies in her testimony and at times she seemed somewhat confused. Therefore, there was simply no competent substantial evidence to establish that respondent delegated professional responsibilities to a person not qualified to perform them. WHETHER RESPONDENT FAILED TO SIGN A WRITTEN DENTAL WORK ORDER. A dentist who does his own laboratory adjustments does not need to prepare a work order authorization. If the laboratory work is performed by an unlicensed person, a work order authorization must be used. In this case, a laboratory procedure authorization form was filled out indicating two upper dentures and a lower partial should be fabricated. The authorization indicated it was from Dr. Parry and for Ms. McPeck. PREVIOUS DISCIPLINARY ACTION On January 18, 1984, a final order was rendered in the Board of Dentistry and Department of Professional Regulation vs. John R. Parry, D.D.S., DPR Case Nos. 0012886 and 0017095, DOAH Case No. 83-1085. In that case, respondent was found guilty by the Board of Dentistry of violating Section 466.028(1)(g) and (y), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a final order finding the respondent guilty of the following acts: Being guilty of incompetence in his treatment of Ms. Lassetter; as alleged in Case No. 85-3840; Being guilty of incompetence in his treatment of Ms. McPeck, as alleged in Count III of Case No. 86-0141; Failing to make Mrs. Blanchard's records available to her, through the Department's investigator, as alleged in Count I of Case No. 86-0141; Failing to make Mr. Blanchard's records available to him, through the Department's investigator, as alleged in Count II of Case No. 86-0141; Failing to keep-written dental records and medical history records justifying the course of treatment of Ms. McPeck, including a patient history and examination results; Failing to perform the statutory or legal obligation imposed by Section 466.021, Florida Statutes, by failing to sign Ms. McPeck's work order; and The repeated violation of Chapter 466. It is further recommended that Counts IV and V of the Administrative Complaint filed in Case No. 86-0141 be dismissed; that the charges of violating Section 466.028(1)(aa), Florida Statutes, as set forth in Counts I, II and III of Case No. 86- 0141 be dismissed; and that the charge of violating Section 466.028(1)(y), Florida Statutes, set forth in Count II of Case No. 86-0141 be dismissed. It is further recommended that the following penalties be imposed: A total administrative fine of $3,400 to be assessed as follows: Incompetence (Lassetter) $1,000 Incompetence (McPeck) $750 Failure to provide records $300 (Mrs. Blanchard) Failure to provide records $300 (Mr. Blanchard) Failure to keep proper Records $300 (McPeck) Failure to sign work order $250 (McPeck) Repeated violation of $500 Chapter 466 Suspension of respondent's license for a period of eighteen months, with the condition that respondent may have his license reinstated after a period of no less than six months upon satisfactory completion of a program of study or training approved by the Board. DONE and ENTERED this 2nd day of December, 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX Petitioner's Proposed Findings of Fact 1-3. Accepted. Accepted generally. Accepted. Accepted, except last sentence. 7-8. Accepted generally though unnecessary as separate findings. 9. Accepted. 10-15. Accepted generally. 16. Unnecessary. 17-20. Accepted. 21. Unnecessary. 22-27. Accepted generally. 28. Unnecessary. 29-39. Accepted generally. 40. Unnecessary. 41-42. Accepted generally. 43-44. Rejected by contrary finding. 45-49. Accepted generally, except first sentence of paragraph 45 which is rejected by contrary finding. Rejected as not clearly established by the evidence. Accepted as to treatment of bone or tooth root. 52-53. Accepted generally. Accepted. Accepted as to area of exostoses. 56-62. Accepted generally. Accepted, except as to beginning of first sentence. Accepted in part, rejected in part. Accepted. First sentence rejected by contrary finding second sentence accepted. Unnecessary. 68-70. Accepted. Accepted generally. Rejected by contrary finding. Accepted. Accepted to the degree stated in paragraph 47. 75-80. Accepted generally, except reject that Giddens made adjustments. 81. Irrelevant; the patient refused treatment. 82-86. Rejected by contrary findings, except paragraph 83 which is unnecessary finding as to Mr. Blanchard. Accepted generally, except third sentence which is rejected by contrary finding. Rejected by contrary finding. 89-91. Accepted. First sentence rejected for lack of competent evidence; remainder accepted generally. Rejected as irrelevant. Second part of sentence accepted, first part rejected as there was no evidence presented as to where denture fabricated. Rejected, generally, for lack of competent evidence. Accepted. 97-98. Accepted except as to Mr. Giddens role. 99-100. Accepted. 101-102. Accepted generally that centric occlusion was not in harmony with centric relation with the Parry dentures in place resulting in 3mm open bite. 103. First sentence rejected - it is not clear what it means. Second sentence accepted. 104-112. Accepted generally. 113-114. Unnecessary. 115-116. Accepted generally. Respondent's Proposed Findings of Fact 1-6. Accepted. Reject statement that evidence did not support charge. Remainder generally accepted. Accepted generally. Accepted as to minimal space for denture base, remainder rejected generally by contrary findings in paragraphs 22-24. Rejected generally by contrary findings. Accepted generally. First part generally rejected; last sentence accepted. First five sentences accepted generally. Remainder rejected. Rejected in general as stated in paragraph 26. Rejected in part, accepted in part (see paragraph 30). Rejected as stated in paragraphs 35-37. Rejected generally (see paragraph 32). Rejected generally. There was no evidence that the denture had a seal, butterfly or otherwise. Second sentence accepted. Accepted generally. 20-25. Accepted generally. 26. Accepted as to facts stated, not legal conclusion. 27-28. Accepted generally. Accepted as to facts stated, not legal conclusion. Accepted. Rejected by contrary findings in paragraph 73 and for same reasons argument as to Lassetter was rejected. Dr. Earle's testimony was accepted as to McPeck. 32-33. Rejected by contrary findings. Rejected by contrary finding (see paragraph 75). Accepted generally. 36-37. Rejected generally by contrary findings and conclusions of law. COPIES FURNISHED: Errol H. Powell, Esquire Senior Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Kenneth M. Meer, Esquire 180 South Knowles Avenue Winter Park, FL 32789 Tom Gallagher Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Pat Guilford Executive Director Board of Dentistry 130 N. Monroe Street Tallahassee, FL 32399-0750
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
