Findings Of Fact Joseph L. Ratchford is a graduate of the University of Georgetown School of Dentistry and took the Florida dental exam in June, 1984. The clinical, or practical, portion of the dental exam consists of ten procedures and the examinee must obtain a total combined weighted grade of 3.0 to pass the clinical portion of the exam. Petitioner received a total overall grade of 2.96 and has questioned the grades he received on two of the ten procedures. In grading the clinical portion of the exam, three examiners separately review and grade each procedure performed by the examinees. At each examination, approximately twelve to thirty examiners are used, and three hundred to four hundred candidates are examined. Each examiner must successfully complete an eight to twelve hour standardization exercise during which they are trained on the grading scale, procedures, and the criteria to be used in grading the clinical portion of the exam. The Board of Dentistry determines the criteria to be used in grading the exams and the grading scale. A perfect score is a "5" and a complete failure is a "O". Examiners are chosen by the Board of Dentistry based upon their successful completion of the standardization exercise and must also have been licensed in Florida for at least five years. Petitioner received grades of 2, 3, and 5 from the three examiners grading the Periodontal procedure on his exam. This resulted in a grade of 3.33 on the Periodontal procedure. Petitioner objects to the grading of this procedure due to the wide disparity in the three examiners' grades. The periodontal procedure is performed on a live patient and is an evaluation of the patient's teeth, root structure, and supporting structures. In grading this procedure, five criteria are used: Presence of stain on assigned teeth. Presence of supra-gingival calculus on assigned teeth. Presence of sub-gingival calculus on assigned teeth. Root roughness on assigned teeth. Tissue management. While several of these criteria are easily observable, criteria (c) and (d) are not, and in fact are sometimes hard to distinguish from each other. The grading system requires two points to be taken off when sub-gingival calculus is present on the assigned teeth (criteria c), and allows one to four points to be deducted for root roughness on the assigned teeth (criteria d). Examiner 10 gave Petitioner a grade of 2 since the examiner found Petitioner was deficient on criteria (a), (c), (d) and (e). A grade of 2 is appropriate with these deficiencies, although such a grade may even be a bit high. Examiner 10 had participated in seven exams prior to the one in question and a post-exam evaluation of all examiners shows that Examiner 10 ranked 6th out of 18 examiners in terms of grading accuracy. Examiner 35 gave Petitioner a grade of 3 since the examiner found Petitioner was deficient on criteria (c). A grade of 3 is mandatory is this situation since the presence of subgingival calculus requires two points to be deducted from the grade. Examiner 35 had participated in no previous exams but ranked 7th out of 18 examiners in terms of grading accuracy, according to a post-exam evaluation of all examiners. Examiner 82 gave Petitioner a perfect score of 5, noting no deficiencies. This was the second exam Examiner 82 had participated in and he ranked 17th out of 18 examiners in terms of grading accuracy. Therefore, the perfect score which Petitioner received from Examiner 82 is the least reliable of the three grades on the Periodontal procedure since Examiner 82 had the worst ranking for accuracy among these three examiners, and was next to last among all examiners. On the Cast Class II Onlay Prep procedure, Petitioner received grades of 1, 0, and 1. This resulted in a grade of .66 on this procedure. Petitioner objects to the grading of this procedure. He states he performed this procedure the way he was taught in dental school, he alleges that the comments of the examiners conflict, and he feels it is impossible to measure tooth reduction without an opposing model. The Cast Class II Only Prep procedure is performed on a model, or mannequin, and consists of a restoration onlay wax-up on a posterior tooth. In grading this procedure five criteria are used: Outline form Depth Retention Gingival level Mutilation of opposing or adjacent teeth Examiners 6 and 37 gave Petitioner a grade of 1. Examiner 6 commented on his score sheet that "Distal box too deep and undercut; excess facial cusp reduction." Examiner 37 commented that outline form was poor and "no lingual cusp protection." Examiner 15 gave Petitioner a score of 0 and commented that there was insufficient reduction of the functional cusp. Each of these examiners had participated in at least two previous exams, and each had a high grading accuracy ranking according to a post-exam evaluation of all examiners. Specifically, Examiner 15 ranked 1st, Examiner 37 ranked 4th and Examiner 6 ranked 8th out of 18 examiners. The comments of the examiners do not conflict and, in fact, do support the grades given. An examination of the mannequin used by Petitioner to perform this procedure (Petitioner's Exhibit 1) by a dental consultant who has been a licensed dentist in Florida since 1971, and who was accepted as a expert on the technical aspects of the clinical portion of the dental exam, confirms and supports the grades given by the examiners on this procedure. The major and significant deficiency on this procedure was Petitioner's failure to adequately reduce the functional or lingual cusp, and excessive reduction of the facial cusp resulting in the subject tooth being almost level. Although it is difficult to determine the amount of tooth reduction without an opposing model, and no opposing model was used in the exam, the teeth used for the exam mannequin are manufactured in large quantities from the sane mold or form. Therefore, variations in these model teeth before the procedures are performed are not visible to the naked eye. Improper reductions on these teeth are visible to the examiners who have seen this procedure performed many times on these same models, both in exams and in the standardization procedure. According to an examination development specialist employed by Respondent who was accepted as an expert in testing and measurement, specifically for the dental exam, the grading of exams which involve hands-on, practical demonstrations of an examinee's skill level is not entirely objective. There is some subjectivity in assigning grades after criteria for each procedure are evaluated. This is why three examiners separately review each procedure, and the average of their grades is used. In addition, Respondent performs the standardization exercise prior to the exam and then evaluates each examiner's grades for accuracy after the exam in order to minimize disparity and the effects of subjectivity. Examiners who do not receive a good evaluation in the post-exam review are not used in subsequent exams. Proposed findings of fact and conclusions of law have been submitted by the parties pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. Specifically, Petitioner's proposed findings numbered 7, 10, 11 and 12 are rejected for these reasons, and also because they are not based upon competent substantial evidence.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order upholding the grades given to Petitioner and denying the relief sought by Petitioner. DONE and ENTERED this 19th day of April, 1985 at Tallahassee, Florida. DONALD D. CONN, 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 19th day of April, 1985. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael S. Rywant, Esquire 240 Hyde Park Avenue Tampa, Florida 33606 Fred Roche, Secretary 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 The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violations of Section 466.028(1)(y), Florida Statutes, as set forth in the Amended Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Robert J. Fish, was licensed by the Department of Professional Regulation (the "Department"), Board of Dentistry (the "Board",) as a dentist in the State of Florida having been issued license number DN0005694. At all times pertinent to this proceeding, Respondent was engaged in the practice of dentistry in Tamarac, Florida. At the time of the hearing in this matter, the Patient whose treatment is the subject of the allegations in the Amended Administrative Complaint was 83 years old. At the hearing, D.E. admitted that, because of certain health problems, she had experienced some loss of memory. The Patient first presented to Respondent's office for oral examination on June 27, 1983. For some time prior to this visit, she had been treated by a periodontist in Broward County. The nature and extent of that prior treatment is not clear. During her visit to Respondent's office on June 27, 1983, the Patient completed a dental and medical history form. According to those forms, the Patient had a history of cancer and high blood pressure. Respondent also confirmed that the Patient had not received any hormone replacement therapy for post-menopausal osteoporosis. Based upon her medical history, Respondent recognized that the Patient's immune system was possibly compromised and she was a likely candidate to suffer loss of the bone supporting her teeth. During her first visit, Respondent performed a complete periodontal examination, charting all of the Patient's visible defects. The Patient was diagnosed as having "chronic gingivitis [and] furcation involvement." Respondent noted bone loss of between three to five millimeters around teeth 23, 24, 25, 26 and 27. On July 19, 1983, the Patient returned to Respondent's office at which time his hygienist performed a prophylaxis. The Patient was advised that she should anticipate the need to address other aspects of her periodontal condition. The Patient visited Respondent's office four times in 1984, six times in 1985, and two times in 1986 for routine dental procedures. On August 12, 1986, Respondent informed the Patient of certain undesirable changes in the health of the bones of her jaws and the condition of her teeth. Respondent advised the Patient that she was losing the support for some of her teeth and bone was disappearing around some of the roots. The Patient was told that she should seek treatment for these matters or she would risk more serious problems down the line. The Patient indicated that she would let Respondent know when she desired any additional treatment. On January 29, 1987, Respondent performed a full-mouth series of x- rays to evaluate the Patient's worsening periodontal status. The Patient returned in August of 1987, at which time she had to have the two fractured roots of tooth number 30 extracted. It is not clear why the Patient did not return until August of 1987. On September 3, 1987, the Patient returned for the removal of the sutures and the area seemed to be healing well. The Patient's next visit to the Respondent's office was on October 1, 1987. During that visit, Respondent examined and charted the Patient's mouth and developed a treatment plan with multiple stages and options. Respondent's treatment plan included the making of a bridge for teeth 27, 28 and 29 and the fabrication of a partial denture, either an acrylic wrought clasp type or a chrome frame marked with acrylic saddles. The plan was discussed with the Patient who selected a course of treatment and signed the plan. The Patient was advised by Respondent in October, 1987 of problems on her lower left side that would need attention in the future. Respondent proposed to use a "temporary provisional" partial in order to avoid the cost of making it twice. From October through December, 1987, the Patient returned to Respondent's office approximately twelve times. During this period, Respondent constructed a three-tooth (#'s 27, 28 and 29) porcelain-fused-to-metal splint and a "transitional" acrylic-based partial lower denture. From October 1987 through August 1988, the Patient experienced some discomfort with the acrylic-based partial lower denture. She returned to Respondent's office approximately seventeen times for adjustments, repairs and/or realigns. These visits were necessitated, at least in part, by the ongoing physiological changes in the Patient's lower jaw during the first year after the extraction of her lower right molar. In August of 1988, the Patient experienced some discomfort on her lower left side. On August 11, 1988, she consulted with the Respondent who confirmed the loss of bone in that area. On August 16, 1988, Respondent performed another complete periodontal examination. Respondent found that the Patient had pockets of approximately 6 to 7 millimeters around teeth 23, 24, 25 and 26. In other words, the Patient's periodontal health was not good and there were great stresses on her teeth which were significantly out of bone. With the aid of x-rays, Respondent generated a diagnosis and treatment plan which was accepted and signed by the Patient. Respondent's plan was to further explore the condition of the Patient's lower left side, extract non-salvageable teeth and modify her recently made partial lower denture to accommodate the teeth that had to be removed on the lower left side. On October 16, 1988, Respondent began this treatment plan and determined that the roots of two of the teeth were so badly infected and diseased that they were non-salvageable. The existing bridge was severed and the four roots from teeth 18 and 19 were removed. A new bridge was made and the teeth that had been removed were added to the removable partial. At this point, the Patient's right side had still not completely healed. During the remainder of 1988, Respondent continued to make adjustments to the Patient's partial lower denture. Many of the adjustments were necessitated by bone recontouring and healing. In December of 1988, Respondent advised the Patient that she needed to have her partial lower denture relined and repaired. The Patient had the denture adjusted on January 24, 1989, but did not have it relined. On February 14, 1989, the Patient telephoned Respondent's office and complained of discomfort. There is conflicting evidence as to whether or not Respondent was in the office on that date. It is not necessary to resolve that issue for purposes of disposing of this case. In any event, the Patient appeared at Respondent's office without an appointment and demanded to see him. After a dispute with the office staff, the Patient left and subsequently refused to return for any further treatment. On May 8, 1989, the Patient went to see another dentist, Dr. Harvey Garrison. On the medical history form that she filled out for that visit, she denied experiencing any pain or discomfort. Dr. Garrison examined the Patient on May 8, 1989 and noted her need for fillings, endontics, prophylaxis and crowns. He did not make any notation that she was experiencing pain or discomfort. The Patient returned to Dr. Garrison's office on June 5 and 8, 1989. Again, there is no notation that the Patient was experiencing any pain or discomfort. Dr. Garrison's records include a notation dated June 27, 1989 which states "27, 28, 29 buccal margins are open plus the patient was made a lower temporary partial. I'm recommending that she contact Broward County Dental Society. The treatment was completed in 1988 by Dr. Fish." In his deposition offered into evidence during this proceeding, Dr. Garrison could not provide any more specific information regarding the open margins he allegedly found and he was unable to provide any further explanation of the Patient's condition on June 26. The Patient was treated by Dr. Garrison on July 26, 1989. The notes from that treatment indicate that the Patient had complained about her "L Part" on June 27, 1989. Dr. Garrison's notes of his examination of the patient on July 26, 1989 indicate that he found open margins around the end of the crowns of teeth #s 27, 28 and 29. There is no chart notation and Dr. Garrison does not recall the location or extent of the margins. His notes do not reflect any clinical significance or treatment necessary. On July 26, 1989, Dr. Garrison began to treat the Patient's upper arch. On November 21, 1989, he provisionally inserted ten crowns and a partial upper removable denture that he had fabricated. Dr. Garrison's notes do not reflect any further complaint of pain or treatment regarding the lower denture until November 20, 1989 when the Patient's lower partial denture was sent to a dental laboratory for repair. Dr. Garrison does not know the extent of the repair. The Patient testified that Dr. Garrison did not do any work on her lower denture. Dr. Dixon, Petitioner's expert, assumed that no work was done on the Patient's lower denture after she left Respondent's care. However, Dr. Garrison's records clearly reflect that the lower partial was sent to the laboratory for repair on November 20, 1989 and Dr. Garrison adjusted the lower partial on November 20 and November 22, 1989. There is no evidence as to the extent of the repairs or adjustments conducted on the lower partial in November of 1989. On November 6, 1989, Dr. Garrison sent a letter to DPR addressed "To Whom It May Concern." The letter states that [DE] came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort. I examined the lower bridge work and found the buccal margins of teeth #27,28,29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. . . . In his testimony for this case, Dr. Garrison could give no further explanation of his findings. When asked to explain why the lower partial was "inadequately fabricated," Dr. Garrison simply said that his office did not like using acrylic for lower partials and he only used acrylic for temporary devices. He admitted that he did not know what the general practice was in other offices. He also admitted that he had not reviewed Respondent's records and did not know what Respondent's treatment plan was for the Patient. From December 19, 1989 through June 5, 1990, Dr. Garrison performed various adjustments and modifications to the fixed bridge he inserted in the Patient's upper arch. It is clear that from November 1989 through June 1990, Dr. Garrison performed many dental procedures which may have significantly altered the Patient's dentition. The extent and impact of the alteration is not clear. On June 16, 1990, approximately a year and a half after Respondent last saw the Patient, D. E. was examined by Dr. Dixon, an expert retained by DPR to evaluate Respondent's treatment of the Patient. Dr. Dixon's examination included the taking of an x-ray, a photograph, a bite registration and a bite impression or study model. Apparently, all of those items were misplaced, and none of them were ever made available to Respondent to review. None of them were offered into evidence at the hearing. As noted in the Preliminary Statement and in the Conclusions of Law, Respondent's Motion In Limine and objection to Dr. Dixon's testimony based upon the failure to produce these items were denied. Nevertheless, the absence of these items is a factor that has been considered in determining the weight to be afforded Dr. Dixon's testimony. Dr. Dixon testified that the three-tooth bridge (splint) for teeth #27, 28 and 29 did not meet community standards because it had open margins and improper occlusion. Dr. Dixon also testified regarding other deficiencies that he says he found in Respondent's treatment of the Patient, including clasps that were too tight and an improper adaptation (fit) of the denture to the lingual portion of the Patient's teeth. As discussed in the Conclusions of Law below, the Amended Administrative Complaint does not specifically charge Respondent with all of these purported deficiencies. In any event, after considering all of the evidence, Dr. Dixon's conclusions and opinions regarding Respondent's treatment of the Patient are not convincing. Dr. Dixon admitted that he had not read Dr. Garrison's records. At the time of his examination of the Patient and at the hearing, Dr. Dixon did not know that the Patient's lower partial had been adjusted and repaired by Dr. Garrison. He also did not know that Dr. Garrison had treated the Patient's entire upper arch. Dr. Dixon admitted that it was important to know exactly what Dr. Garrison had done for the Patient and/or how it affected the dentistry performed by Dr. Fish. However, the evidence indicates that Dr. Dixon did not have the benefit of this information. Thus, he was unable to comment on the impact that Dr. Garrison's treatment had on the Patient's occlusion. A review of the x-rays taken by Respondent and those taken subsequently by Dr. Garrison indicates there was some movement of the posts and necessarily the crowns away from the teeth (roots) with the passage of time. In addition, because of the extensive surgery conducted on the Patient's mouth and because of her age and medical condition, a lengthy recovery process with tissue shrinkage and bone recontouring could reasonably be expected. In view of all the factors, the evidence was insufficient to show that any negligence or incompetence by Respondent was responsible for the inadequacies that Dr. Dixon observed in the Patient's lower partial denture and/or splint. It should also be noted that Dr. Garrison was unable to testify with any specificity regarding the deficiencies in Respondent's work. At the hearing and in his proposed recommended order, Respondent referred to the lower partial denture that he made for the Patient as "transitional" or "temporary." It is not entirely clear what Respondent meant by these references. The Patient clearly did not understand that Respondent intended to fabricate a "permanent" partial denture in the future. Petitioner has suggested that Respondent's use of acrylic in fabricating the lower partial denture for the Patient was improper. Even assuming that this allegation fits within the scope of the Amended Administrative Complaint filed in this matter, the evidence presented was insufficient to establish that Respondent's use of this material given the facts and circumstances of this case fell below the minimum standards expected of a dentist in this community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a Final Order finding the Respondent, Robert J. Fish, not guilty of the allegations set forth in the Amended Administrative Complaint and dismissing the charges. DONE and ENTERED this 24th day of January 1994, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-687 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 21-23. Subordinate to Findings of Fact 21-25. Subordinate to Findings of Fact 30. Adopted in substance in Findings of Fact 32. Subordinate to Findings of Fact 33. Subordinate to Findings of Fact 35. Respondent's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 4. Rejected as unnecessary. The first sentence is adopted in substance in Findings of Fact 4. The second sentence is rejected as unnecessary. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 10-14. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 15. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 17. Adopted in substance in Findings of Fact 17. Subordinate to Findings of Fact 18. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 18. 25.-33. Subordinate to Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 23. Subordinate to Findings of Fact 24 and 25. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 28 and 30. Adopted in substance in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative and subordinate to Findings of Fact 30. Rejected as constituting legal argument rather than a finding of fact. This proposal is an incorrect statement of the ruling made at the hearing. Adopted in substance in Findings of Fact 28. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 31. Adopted in substance in Findings of Fact 32. Adopted in substance in Findings of Fact 32. The first sentence is adopted in substance in Findings of Fact 32. The remainder is rejected as constituting argument. The subject matter is addressed in the Preliminary Statement and the Conclusions of Law. Adopted in substance in Findings of Fact 33. Subordinate to Findings of Fact 34. 57.-58. Subordinate to Findings of Fact 32 and 35. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as unnecessary. Subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 34. Rejected as constituting argument. This subject matter is addressed in Findings of Fact 33. Rejected as unnecessary and subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 28 and 34. Subordinate to Findings of Fact 33 and 35. Rejected as constituting argument. The subject matter is addressed in paragraph the Conclusions of Law. Adopted in substance in Findings of Fact 33 Adopted in substance in Findings of Fact 33 and in the Conclusions of Law. Subordinate to Findings of Fact 33. Rejected as unnecessary. Rejected as vague and ambiguous. Rejected as constituting argument. Rejected as unnecessary. COPIES FURNISHED: Ashley Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Max R. Price, Esquire Solms & Price 6701 Sunset Drive, Suite #104 South Miami, Florida 33143 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent provided dental treatment which was below minimum acceptable standards of performance. At the hearing, the Petitioner called Charlene Willoughby and Richard J. Chichetti, D.D.S., as witnesses. The Respondent called Victoria Osborn and Stewart Dropkin, D.D.S., as witnesses and also testified on his own behalf. Both parties also offered documentary exhibits and transcripts of deposition testimony. A transcript of the hearing was filed on June 16, 1987, and the parties were allowed until July 31, 1987, (subsequently extended) within which to file their proposed recommended orders. Both parties filed proposed recommended orders on August 3, 1987, and the despondent filed an amended proposed recommended order on August 4, 1987. On August 3 and 4, 1987, the Respondent also filed separate documents specifically addressed to the issues raised by the Respondent's motion to dismiss. The parties' proposed recommended orders have been carefully considered during the formulation of this recommended order. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact The Respondent, Bruce Larrick, D. D.S., whose license number is DN0007282, was licensed to practice dentistry in the State of Florida on August 26, 1977, and has been so licensed from that date until the present time. Respondent provided dental, services to a Mr. Quinton G. Anglin during the time period of February to April of 1985. The Respondent first saw and examined Mr. Anglin on February 20, 1985. Prior to the examination, all of Mr. Anglin's teeth were cleaned. The Respondent's examination of Mr. Anglin included radiographs, visual, and tactile techniques. The Respondent's treatment of Mr. Anglin consisted of bonding the facial surfaces of Mr. Anglin's six upper front teeth, also known as teeth numbers 6, 7, 8, 9, 10, and 11. Bonding is a type of restorative dentistry which consists of mechanically bonding a coat of plastic to the tooth surface and then chemically bonding a composite material to that coat of plastic. Bonding is a part of the general practice of dentistry and is not recognized as a specialty in dentistry. As a result of problems he was experiencing with the bonding and because of an inability to get in touch with the Respondent, Mr. Anglin filed a complaint against the Respondent. The ultimate facts alleged in Mr. Anglin's uniform complaint form included the following: Dr. Larrick bonded several teeth for me during March and April. The last tooth he bonded was not bonded well and the bonding came off. Dr. Larrick rebonded the tooth. Bonding came off once again. The problem I now have is: (1) I have an upper right canine tooth that has been ground down and the bond has come off. Prior to this I only had a small cavity. (2) I have a right upper incisor on which the bond material was ground down so thin that when something touches the front surface it is quite painful On January 15, 1986, Richard Chichetti, D.D.S., examined Mr. Anglin to evaluate the six restorations performed by the Respondent. The examination lasted approximately thirty minutes. Dr. Chichetti did not examine tooth number 9, because that tooth had been further restored by another dentist subsequent to the restoration work done by the Respondent. Dr. Chichetti's examination of Mr. Anglin's upper front teeth consisted of taking x-rays, a physical examination and inspection using a mouth mirror and explorer, photographs of the teeth, and study models of the teeth. Dr. Chichetti looked at each tooth and observed whether any areas on each tooth indicated the presence of decay. He then used the explorer to tactilely examine the surfaces of the teeth where he suspected decay to be and to confirm the presence of decay. Decay is readily distinguishable from stain when the tip of the explorer comes into contact with the tooth surface. Dr. Chichetti found only a small amount of plaque and materia alba and found no calculus on Mr. Anglin's teeth. Therefore, it was not necessary to clean Mr. Anglin's six upper front teeth in order to determine if decay was present. At the time of Dr. Chichetti's examination of Mr. Anglin, teeth numbers 6, 7, S, and 10, each had bonding on the facial side and recurrent decay on the lingual side. Tooth number 8 had a ledge present at the margin of the veneer closest to the gum line. A ledge exists when the veneer is not smooth and confluent with the tooth surface. At the time of Dr. Chichetti's examination of Mr. Anglin, tooth number 11 no longer had the bonding restoration performed by the Respondent. A large carious lesion was present on the visible portion of the tooth and extended into the enamel and dentin. There are two broad categories of decay known as acute decay and chronic decay. Chronic decay is decay that has progressed at a very slow rate as compared to acute decay. Chronic decay may take place over a period of several years. A chronic carious lesion is darker in color than acute decay and has a firm and leathery texture as compared to the softer texture of acute decay. It is not possible to determine the exact date on which a chronic carious lesion began, nor is it possible to determine the exact rate of decay of such a lesion. Nevertheless, by observation of a chronic carious lesion it is possible to determine that the lesion has been present and detectable for at least a specific period of time. The carious lesion on Mr. Anglin's tooth number 11 had a relatively hard texture and a dark brown color, both of which are consistent with chronic decay. Sclerotic dentin was also present on tooth number 11, which is indicative of the presence of a long-term carious lesion. The decay present on Mr. Anglin's tooth number 11 at the time of Dr. Chichetti's examination was chronic in nature. That decay was present and detectable at the time of the Respondent's treatment of Mr. Anglin. The Respondent used Dycal in connection with the bonding performed on Mr. Anglin's tooth number 11. Dycal is a product used in areas of deep decay to provide insulation between the bonding material and the pulp of the tooth. The use of Dycal by Respondent corroborates the conclusion that decay was present when the Respondent bonded Mr. Anglin's tooth number 11. The fact that the bonding came off of Mr. Anglin's tooth number 11 shortly after the Respondent's treatment of that tooth also corroborates the conclusion that decay was present when the bonding was performed on that tooth, because a tooth surface of a carious nature precludes long-term retention of the bonding material. By bonding over a carious lesion present on Mr. Anglin's tooth number 11, the Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The recurrent decay observed by Dr. Chichetti on Mr. Anglin's teeth numbers 6, 7, 8, and 10, also constituted chronic decay. The chronic carious lesions on the lingual sides of those teeth were similar in color and texture to the lesion on Mr. Anglin's tooth number 11. The chronic carious lesions on the lingual surfaces of Mr. Anglin's teeth numbers 6, 7, 8, and 10 were present and detectable at the time of the Respondent's treatment of Mr. Anglin. By leaving carious lesions untreated on the lingual surfaces of Mr. Anglin's teeth numbers 6, 7, 8, and 10, while placing bonding restorations on the facial surfaces of those teeth, the Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. This failure to treat the lesions on the lingual surfaces of Mr. Anglin's teeth numbers 6, 7, 8, and 10 would be consistent with acceptable practice, if the patient refused treatment after full disclosure, and if the diagnosis, disclosure, and refusal of treatment were all documented in the patient's record. There was no such disclosure and refusal, nor is any such disclosure and refusal contained in the Respondent's records of his treatment of Mr. Anglin. Dr. Chichetti detected a ledge on Mr. Anglin's tooth number 8 by using the tip of an explorer. Due to its location, the ledge was not readily visible and it did not appear on the x-rays or on the study model. The ledge was the result of a failure to properly feather or smooth the edge of the bonding material so as to cause it to meet the existing tooth structure in a smooth and confluent manner. The ledge on Mr. Anglin's tooth number 8 resulted from the application of bonding material by the Respondent. The ledge on Mr. Anglin's tooth number 8 was not causing any significant problem at the time of Dr. Chichetti's examination. Specifically, there was no plaque or inflammation in the area of the ledge at the time of Dr. Chichetti's examination. Nevertheless, it had the potential of becoming a significant problem with the passage of time. The presence of a ledge can lead to an accumulation of plaque which can invoke an inflammatory response in the gingival tissue and lead to periodontal disease. By leaving the ledge on Mr. Anglin's tooth number 8, the Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Recommendation Based on all of the foregoing, it is recommended that the Board of Dentistry enter a final order finding the Respondent to be in violation of Section 466.028(1)(y), Florida Statutes (1985), as charged in the Administrative Complaint. It is also recommended that the following penalties be imposed on the Respondent: That the Respondent's license to practice dentistry be reprimanded; That an administrative fine of $1,000.00 be imposed; and, That the Respondent's license to practice dentistry be placed on probation for a period of 12 months under such conditions as the Board may specify DONE AND ENTERED this 21st day of January 1988, at Tallahassee, Florida. Michael M. Parrish, Hearing Office 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 21st day of January 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3538 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The references to paragraph numbers are to the numbers of the paragraphs in the parties' proposed findings of fact. Findings submitted by Petitioner: Paragraphs 1, 2, and 3: Accepted. Paragraph 4: First two sentences accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 5: Accepted. Paragraph 6: First sentence rejected as constituting a comment on the evidence rather than a proposed finding of fact. The remainder of this paragraph is accepted. Paragraphs 7, 8, 9, and 10: Accepted. Paragraph 11: First sentence. is accepted. The remainder of this paragraph is rejected as constituting argument about the evidence rather than proposed findings of fact. (This rejection does not purport to pass upon the merits of the argument; it merely excludes the text of the argument from the findings of fact.) Paragraphs 12 and 13: Accepted. Paragraph 14: Rejected as constituting a subordinate and unnecessary conclusion that does not necessary follow from the facts. Paragraph 15: Rejected as constituting commentary and argument about the evidence, rather than a proposed finding of fact. (This rejection does not purport to pass upon the merits of the argument.) Paragraphs 16, 17, 18, 19, and 20: Accepted. Findings submitted by Respondent: Paragraph 1: Rejected as constituting unnecessary and subordinate details. Paragraph 2: Rejected as irrelevant observation about the state of the record. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Paragraphs 4, 5, 6, and 7: Accepted. Paragraphs 8 and 9: Rejected as irrelevant. Paragraph 10: Rejected as subordinate and irrelevant details. Paragraph 11: Rejected. Depending on how the paragraph is interpreted, it is either irrelevant or contrary to the greater weight of the evidence. Paragraph 12: First sentence rejected as irrelevant. Second sentence rejected as constituting an inference not warranted by the greater weight of the evidence. Paragraph 13: First two sentences rejected as irrelevant. Last sentence rejected as constituting an inference not warranted by the greater weight of the evidence. Paragraph 14: Rejected as subordinate and unnecessary details. Paragraph 15: Rejected as irrelevant and/or as constituting subordinate details. Paragraph 16: Rejected as constituting argument about the state of the record, rather than a proposed finding about the condition of the teeth. Paragraphs 17, 18, and 19: Rejected as irrelevant. Paragraphs 20 and 21: Rejected as argument about the state of the record and, in any event, as constituting irrelevant details. Portions of paragraph 20 are also contrary to the greater weight of the evidence. Paragraph 22: Rejected as subordinate and irrelevant details. Paragraph 23: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 24: Accepted in substance. Paragraph 25: Rejected as contrary to the greater weight of the evidence. Paragraph 26: First sentence rejected as unnecessary reiteration of a portion of the Administrative Complaint. The remainder of this paragraph is accepted in substance, with unnecessary subordinate details deleted. Paragraph 27: Rejected as subordinate and unnecessary details and as consisting of an inference contrary to the greater weight of the evidence. Paragraphs 28, 29, 30, and 31: Rejected as irrelevant. Paragraph 32: Rejected as contrary to the greater weight of the evidence. Paragraph 33: Accepted. Paragraphs 34 and 35: Rejected as subordinate and unnecessary details. Paragraphs 36 and 37: Accepted. Paragraph 38: Rejected as irrelevant. Paragraph 39: First sentence is accepted. Second sentence is rejected as contrary to the greater weight of the evidence. Paragraphs 40, 41, 42, 43, 44, and 45: Rejected as irrelevant. Paragraph 46: First sentence is rejected as a summary of testimony rather than a proposed finding. Second and third sentences are rejected as contrary to the greater weight of the evidence. The fourth sentence is rejected as irrelevant. Paragraph 47: Rejected as irrelevant. Paragraph 48: The first sentence is rejected as incomplete and, therefore, unintelligible. Second sentence is rejected as irrelevant. Paragraph 49: Rejected as irrelevant. Paragraph 50: Rejected as contrary to the greater weight of the evidence. Paragraph 51: Rejected as irrelevant in light of other evidence. Paragraph 52: Rejected as irrelevant because there is no persuasive evidence that the patient did as suggested in this paragraph. Paragraph 53: Rejected as irrelevant due to insufficient evidence regarding Dr. Morton's charting and treatment. Paragraph 54: Accepted. Paragraphs 55, 56, and 57: Rejected as irrelevant. Paragraph 58: Accepted in substance with additional clarifying details. Paragraph 59: Rejected as irrelevant. Paragraph 60: Accepted in substance with additional clarifying details. Paragraph 61: Rejected as unnecessary and subordinate details; also rejected as suggesting inferences not warranted by the greater weight of the evidence. Paragraph 62: Rejected because the opinion contained in this paragraph is contrary to the greater weight of the evidence. Paragraph 63: Rejected as irrelevant in light of the totality of the evidence, especially the witness's other statements on this subject. Paragraphs 64 and 65: Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Phillip B. Miller, Esquire Robert D. Newell, Jr., P.A. 102 South Monroe Street Tallahassee, Florida 32301 Bill Salmon, Esquire Attorney at Law Post Office Box 1095 Gainesville, Florida 32602 William O'Neil, Esquire General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Respondent's license to practice dentistry in the State of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At all times material to this proceeding, the Respondent was a licensed dentist in the State of Florida, having been issued license number DN 0005429. The patient, R.M., first presented herself to the American Dental Center (Center), a dental business owned and operated by Respondent, around July 7, 1987, and was seen by a dentist, other than the Respondent, employed by the Center. This dentist examined R.M. and recommended a new upper denture and lower partial. R.M. was seen again on December 7, 1987, by a dentist, other than the Respondent, at the Center who repaired tooth number 7 on her upper denture. This dentist also advised R.M. that she needed a new upper denture and a lower partial. On June 13, 1989, R.M. was seen by the Respondent at the Center, and the Respondent refused to reline R.M.'s upper denture. Respondent advised R.M. that she needed a new upper denture and a lower partial. On July 12, 1989, R.M. saw another dentist, other than Respondent, at the Center who replaced tooth number 7 in her upper denture, and this dentist advised R.M. that she needed a new upper denture and a full lower denture. On September 8, 1989, R.M. visited the Center and was seen by the Respondent. R.M. agreed to Respondent's treatment proposal of June 13, 1989, for a new full upper denture and a new lower partial. During this visit, the Respondent drilled two holes in the back of two of the lower teeth, numbers 22 and 27, in preparation for a cingulum rest. This procedure was not discussed with R.M. at that time. R.M. did not complain to the Respondent that there was sensitivity as a result of these holes. Also, on this same visit, the Respondent made lower partial impressions and full upper denture impressions. The Respondent properly performed a periodontal probing which was properly recorded in the records, notwithstanding the conflict in the testimony regarding R.M.'s records as to which dentist performed the periodontal probing. Likewise, the Respondent properly performed a soft tissue examination which was properly recorded in the records. On September 25, 1989, the Respondent checked the vertical dimensions of occlusion (VDO) with the full upper dentures and lower partial in place, and found both the vertical dimensions and the occlusion (bite) to be within reasonable bounds. Dr. Marshall performed the vertical dimensions and found them to be outside reasonable bounds. However, when Dr. Marshall performed this test, R.M. did not have the lower partial in place because the holes in teeth numbers 22 and 27 had been bonded by Dr. Odegaard. Because the lower partial could not be in place, the occlusion could not be checked. Also, not having the lower partial in place could have accounted for the difference in the vertical dimensions observed by Dr. Marshall and the Respondent. R.M. was apparently satisfied at this time with Respondent's work since she voiced no complaint. Respondent also selected shade of teeth at this appointment. At R.M.'s next visit, sometime between September 25, 1989, and October 6, 1989 (possibly October 1, 1989), the Respondent made a full upper denture impression in rubber base. R.M. was allowed a look at the full upper denture and the lower partial in place. When in place, the upper denture and lower partial did not interfere with Respondent's enunciation of certain words or certain numbers which would indicate that the upper denture and lower partial fit properly. R.M. initialed her chart indicating that she approved the shape, shade, color, size and arrangement of teeth. There is insufficient evidence to show that the patient knew what she was initialing, and at this point had no complaints, or if she had, she did not voice them. R.M.'s next visit was October 6, 1989, and at this visit the full upper denture and lower partial were delivered to her, placed in her mouth and she was allowed to look at them with a mirror. R.M. voiced no complaints, other than a minor sore spot which Respondent corrected, and she paid the balance of her bill and left. At this same visit, both Respondent and R.M. realized that after a period of time certain adjustment would be needed. On October 16, 1989, R.M. called Respondent's office complaining that her dentures and lower partial were hurting. R.M. was advised that her chart would be pulled for the Respondent to review and that the office would call back. Upon being called back, R.M. was advised by Respondent's staff that Respondent wanted her to come in to the office for adjustments. However, R.M. refused to come back in for any adjustments and advised Respondent's staff that she wanted her money back or she was going to the Better Business Bureau or get a lawyer. Around November 24, 1989, R.M. visited Dr. Odegaard's office complaining of sensitivity on lower teeth numbers 22 and 27. Upon examination, Dr. Odegaard determined that the hole drilled in those teeth by Respondent had gone through the enamel into the dentin which was the apparent cause of the sensitivity. Dr. Odegaard bonded the holes in teeth numbers 22 and 27 which relieved the sensitivity. At that visit, Dr. Odegaard was aware of Petitioner's involvement in this case. Based on the testimony of the experts, it is apparent that drilling through the enamel of a tooth into the dentin is not an uncommon occurrence, and that, in itself, would not necessarily be practice below the standard of care. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including Dr. Reichgott's testimony, to establish facts to show that the placing of the lingual rest on teeth numbers 22 and 27 was a treatment of choice and not any riskier than other procedures performed by dentists. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including the testimony of Dr. Reichgott, to establish facts to show that: (a) a soft tissue and periodontal examination was performed and recorded in the patient's records; (b) the preparation of the lower lingual surface of the lower canine for the lingual rests was not practice below the standard of care, or (c) the failure to record in the patient's chart the possible sequela of sensitivity from lingual rests and alternate methods of treatment was not practice below the standard of care. While the Respondent's plan of treatment was brief, it was not inadequate record keeping or practice below the standard of care. On each visit where R.M. saw the Respondent in a professional capacity, the Respondent made certain notations in the record concerning what he had accomplished during each visit, and while these notations are brief they do adequately describe what Respondent had accomplished. There is competent substantial evidence to establish facts to show that Respondent's dental records and medical history records justified the course of treatment for R.M. There is competent substantial evidence to establish facts to show that Respondent's treatment of R.M. met the minimum standards of performance in diagnosis and treatment when measured against the generally prevailing peer performance.
Recommendation Having considered the foregoing Findings Of Fact and Conclusions Of Law, it is, accordingly, Recommended that the Board enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and ORDERED this 27th day of May, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1992. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings Of Fact submitted by the Parties in this case. Specific Rulings On Proposed Findings Of Fact Submitted By The Petitioner 1. Adopted in Finding of Fact 1. 2-4. Adopted in Finding of Fact 2, except for the date June 7, 1987, which is rejected in that it was July 7, 1987. Adopted in Finding of Fact 4. Rejected as not being supported by competent substantial evidence in the record. 7(a)(b). Adopted in Finding of Fact 6. 7(c). Adopted in substance in Finding of Fact 13, as modified, except for being "performed in a non-traditional area" which is rejected as not being supported by competent substantial evidence in the record. 7(d). Other than being asked to sign chart signifying approval which is adopted in Finding of Fact 9, this proposed finding of fact is rejected as not being supported by competent substantial evidence in the record. 7(e). Adopted in Finding of Fact 10. 7(f)-(i). Rejected as not being supported by competent substantial evidence in the record. 7(j)-(k). Adopted in Finding of Fact 13. 7(l). Neither material or relevant to the conclusion reached in the Recommended Order. 8-9. Rejected as making a conclusion without making a finding of fact that there was in fact a failure on the part of the Respondent, but in any case these are not supported by competent substantial evidence in the record. 10-11. Rejected as not being supported by competent substantial evidence in the record. Specific Rulings On Proposed Findings Of Fact Submitted By The Respondent The Respondent's "Findings Of Fact" are in part argument and part restatement of testimony rather than proposed findings of fact. However, for those that are truly findings of fact, I have adopted in Findings Of Fact 1-19. Copies furnished to: Albert Peacock, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Peter Kurachek, D.D.S. 395 Sugar Mill Drive Osprey, FL 34229 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether Respondent committed various violations of Chapter 466, Florida Statutes, as alleged in the Administrative Complaints.
Findings Of Fact That on or about July 18 1984, patient P.F. presented herself to Respondent's dental center for dental services. At all times material to the allegations contained in the Administrative Complaint, the Respondent was the dentist of record for the patient, P.F. On or about Jul ,8, 1984, Joan Chen, D.D.S., at the direction or request of Respondent, began crown preparation on patient P.F.'s teeth number 18, number 19, number 30 and number 1, during the initial visit. The treatment rendered by Respondent consisted of root canal therapy on teeth number 19 and number 30, and placement of crowns on teeth number 18, number 19, number 30 and number 31. Treatment provided P.F. by Respondent as the dentist of record failed to meet the minimum standards of diagnosis and treatment by failure to complete endodontic treatment on patient's teeth number 19 and number 30. The patient indicated that at the time of her initial visit she was told she would need two root canals, one on each side. Dr. Delk had told the patient of this need and gave the patient an estimate for services. A person with a "certificate" started the drilling for the root canal, and Dr. Delk completed it. After the teeth were drilled, Dr. Delk offered to extract the teeth for the stated reason that her mouth was too small to accommodate them. The endodontic treatment on teeth number 19 and number 30 were never completed. The failure to complete endodontic treatment was beneath the standard of care in the community. It enhanced the possibility of tooth loss due to the involvement of the bifurcation. A permanent crown was placed over tooth number 19, which was fractured. Tooth number 19 had a violation of the bifurcation which showed "absolutely no dental skill at all". There was junk "piled" down to the bifurcation and a permanent crown placed over it. Tooth number 30 was also perforated. According to the pre-operative x-ray, this was a good healthy tooth. No treatment called for a permanent crown to be placed, and the tooth was left in that condition. The chart did not reflect the patient was ever informed of the perforation and that the minimal acceptable practice would be to inform the patient. The capping of the tooth after perforation was beneath the minimal standard of care. The patient first learned of the perforation of the tooth from Dr. Buljevic, a subsequent treating dentist in Chile. There was a level of awareness by both the Respondent and his staff of the perforation of at least one of the teeth according to the testimony of Jacqueline Hansen on July 18, 1984. Dr. Delk was aware of the perforations which were done in this case. Dr. Delk did not note in his chart the perforations or any attempt to notify the patient of the perforations.
Conclusions Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.208(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance by: Failing to complete endodontic treatment on patient's tooth number 19. Failing to complete endodontic treatment on patient's tooth number 30. Placement of a permanent crown over fractured tooth number 19. Perforation of tooth number 30. By failing to inform the patient of the condition or to note it in his chart. It is further found that the Respondent cannot avoid responsibility for his actions in light of Section 466.018, Florida Statutes, which provides that each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patient regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary rendering such treatment at the direction or request of or under the supervision of such dentist of record. Dr. John W. Delk was the dentist of record for patient P.F. when the treatment was rendered. Any attempt to disclaim responsibility based on the performance of services by another dentist is unsupported by the record, but even if, assuming arguendo, it was supported by the record, it does not excuse Dr. Delk's actions based upon Section 466.018, Florida Statutes, which places responsibility on the dentist of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the, Department of Professional Regulation, Board of Dentistry, enter its final order finding Respondent guilty of Count I and not guilty of Count II as to Case Nos. 89-0646; guilty of the allegations contained in Case Nos. 89-0647 and 89-3313; imposing a fine of $500 each for Case Nos. 89- 0646 and 0647 and a fine of $1000 for Case No. 89-3313; suspending the Respondent's license for two years; and placing Respondent on probation for 24 months subsequent to the expiration of the suspension period, conditioning reinstatement of Respondent's license to practice dentistry to such reasonable conditions as the Board may require. The suspension period reflects the consideration of Rule 21G-13.005, Florida Administrative Code, which provides the following be considered: (a) the severity of the offense, (b) the danger to the public, (c) the number of repetitions of offenses or number of patients involved, (d) the length of time since the violation, (e) the number of times the licensee has been previously disciplined by the Board, (f) the length of time the licensee has practiced, (g) the actual damage, physical or otherwise caused by the violation and the irreversibility of the damage, (h) the deterrent effect of the penalty imposed, (i) the effect of the penalty upon the licensee's livelihood, (j) any efforts of any rehabilitation by the licensee, (k) the actual knowledge of the licensee pertaining to the violation, (l) the attempts by the licensee to stop or correct the violation or refusal by the licensee to correct or stop the violation, (m) related violations against licensee in another state, including findings of guilty or innocence penalties imposed and penalties served, (n) penalties imposed for related offenses under Sections 2 and 3 above, and (o) any other relevant mitigating or aggravating factor under the circumstances. The offenses are severe since they have harmed three different patients, and Dr. Delk has previously been disciplined for improper delegation. The record does not indicate any efforts of rehabilitation by the Respondent, and he denied actual knowledge of the damage caused to P.F. in spite of, the fact that it was apparent. DONE AND ENTERED this 26th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact As to Case No. 89-0646 Accepted: Paragraphs 1,2,3,4,5 (in substance), 6 (in substance), 8, 9 (in substance), 10, 15 (in substance),17, 18, 19, 20, 21(1) (in part), 21(2)(in substance), 22 (in substance) ,23 (in substance), 24 (in substance), 26 (in substance), 27 (in substance), 28, 29 (in part) Rejected as not proven by clear and convincing evidence: paragraphs 7, 11, 12, 13, 14, 16 (argument), 21(1) (in part), 25 (in part) As to Case No. 89-0647 Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 9, 14, 15 (in substance) Rejected as not proven by clear and convincing evidence: paragraphs 8, 10, 11, 12, 13, 16 and 17, 18, 19, 20 and 21 (duplication) As to Case No. 89-3313 Accepted: 1, 2, 3, 4, 5, 6 (in substance), 7 (in substance), 8, 9, 10, 11, 12, 13, 14, 15, 16-34 (incorporated in substance), 35 (in substance), 36, 37, 38, 39, 40, 41, 42 (in substance), 43, 44, 45, 46, 47 Respondent's Proposed Findings of Fact As to Case No. 89-0646 Respondent's recommended findings contained in 169 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation of the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-0647 Respondent's recommended findings contained in 129 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-3313 Respondent's recommended findings contained in 248 numbered paragraphs (followed by a summary of the facts numbered A through Y) have been carefully reviewed and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. COPIES FURNISHED: John Namey, Esquire 1520 Livingston Street Orlando, FL 32803 Thomas Gordon, Esquire 320 North Magnolia Avenue Suite 5-B Orlando, FL 32801 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violation of Section 466.028(1)(y), Florida Statutes set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent, Steven Rindley, has been licensed by the Department of Professional Regulation (the "Department",) Board of Dentistry (the "Board") as a dentist having been issued license number DN0004795. Respondent has been continuously licensed in the State of Florida since 1969. No evidence was presented to establish that his license has previously been revoked, suspended or otherwise disciplined. There have been a number of disputes between Respondent, the Department and/or the Board relating to charges and complaints filed against Respondent. Respondent contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising" dentist. Respondent has filed a federal court law suit against the Board and others based on these contentions. During the hearing in this case, Respondent testified vociferously regarding these issues. However, no competent evidence was presented to establish that the Administrative Complaint or Amended Administrative Complaint filed in this proceeding were initiated for improper purposes. Respondent treated a patient, E.B., from approximately November of 1987 through approximately February 9, 1988. Respondent's treatment of E.B. consisted of extracting certain teeth and fabricating an immediate partial lower denture. Respondent had previously treated E.B. in 1981 during which time he had fabricated full upper and partial lower dentures for the patient. As part of his treatment of E.B. in 1987-1988, Respondent extracted four lower front anterior teeth. The extracted teeth were very loose and were removed at the request and with the consent of the patient. On or about November 12, 1987, Respondent began fabricating a new lower partial denture for E.B. Respondent used E.B.'s lower right cuspid, which was his only remaining tooth, as an abutment for the new lower partial denture. The lower right cuspid had decay in it which required a filling. Respondent diagnosed, but did not treat this carious lesion in the retained tooth. The patient terminated the dentist/patient relationship prior to Respondent's addressing this problem. E.B. refused to allow Respondent to take x-rays as part of the treatment rendered in 1987-1988. Consequently, Respondent did not take any radiographs in connection with his treatment of E.B. during 1987 and 1988. Respondent did not specifically note the patient's refusal to permit x-rays in his dental records. While Respondent claims that he advised E.B. as to the desirability of taking current x-rays, the nature and extent of the conversation between Respondent and the patient regarding the need for x-rays was not established. Respondent used radiographs taken during his treatment of E.B. in 1981 to assist him in his diagnosis and treatment of E.B. in 1987-1988. While those radiographs were outdated, they did provide some useful information regarding tooth morphology and other matters. The evidence established that the teeth that were extracted were not salvageable and would have been extracted irrespective of what current x-rays may have revealed. Ideally, an x-ray should have been taken to determine how secure the lower right cuspid was prior to using it as an abutment for the lower partial denture. This is especially true since the tooth had a carious lesion. In addition, a root canal was done on this tooth at some prior time. Based upon his clinical observations, Respondent determined that the carious lesion was minimal and could be filled after the fabrication of the lower partial denture and that the tooth was stable enough to serve as an abutment. Petitioner has not provided sufficient evidence to rebut those conclusions or to establish that Respondent had insufficient information to reach those conclusions. X-rays are an important diagnostic tool that can be helpful in eliminating surprises and determining pathologies which may exist in a patient's mouth. The Board has not adopted any rules requiring the use of x-rays prior to rendering any specific types of dental services. While current radiographs would have been preferable in the treatment of E.B., the patient refused to permit an x-ray to be taken. As a result, Respondent proceeded with his treatment based upon his clinical observations and the prior radiographs of the patient. There is no evidence that E.B. was suffering from any pathologies or conditions which Respondent failed to detect due to the lack of current radiographs. The two experts who testified on behalf of Petitioner opined that it is below the standards of the community for a dentist to extract teeth and/or use an exising tooth as an abutment for a partial denture without the benefit of a radiograph. Neither of these experts was aware that the patient had refused to permit x-rays to be taken. When asked what they would do with a patient who refuses x-rays, they both said they would have refused to provide services to the patient. Neither of Petitioner's experts ever examined the patient E.B. Respondent's experts testified that, under certain circumstances and after advising the patient of the advisability of having the x-rays taken, they would have proceeded with the extractions and the restoration of the dentition as best they could. Respondent's experts admitted that there are certain situations when proceeding with treatment without the benefit of a radiograph would be below the minimum standard expected of a dentist in this community. However, they believe that a dentist could proceed with the treatments rendered in this case absent any clinical observations, prior history or diagnosis to the contrary. The testimony of Respondent's experts is deemed more persuasive and is accepted. The evidence did not establish that Respondent fell below the minimum standard of care by proceeding with treatment of the patient under the conditions of this case. E.B. became very agitated over the length of time it took to fabricate the partial denture and obtain an acceptable fit. The patient and Respondent had several verbal altercations regarding the dental work. In February of 1988, the patient terminated his treatment before all the work was completed. The patient ultimately refused to pay for the work and reported the matter to the Department.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Dentistry issue a Final Order finding the Respondent, Steven Rindley, not guilty of the allegations set forth in the Administrative Complaint and dismissing the charges. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of July, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0648 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Subordinate to Findings of Fact 9. Adopted in substance in Findings of Fact 11. Rejected as vague and overborad. Rejected as unnecessary and subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 10. Subordinate to Findings of Fact 7 and 10. Subordinate to Findings of Fact 10. Subordinate to Findings of Fact 15 and 16. The Respondent's Proposed Findings of Fact Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection. Addressed in the preliminary statement. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 6. Rejected as unnecessary and overbroad. Subordinate to Findings of Fact 8, 10 and 13. Subordinate to Findings of Fact 8. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 7 and 10. Subordinate to Findings of Fact 14. COPIES FURNISHED: Jan D. Langer, Esquire Adorno & Zeder 2601 South Bayshore Drive Suite 1600 Miami, Florida 33133 Joel Berger Dental Legal Advisers 1550 Madruga Avenue Suite 230 Coral Gables, Florida 33146 William Buckhalt, Executive Director Department of Professional Regulation, Board of Dentistry 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Department should give the Petitioner a passing grade on the June, 1993, Board of Dentistry Clinical Examination.
Findings Of Fact The Petitioner, Jose P. Cruz, took the June, 1993, Board of Dentistry Clinical Examination. Initially, he received a grade of 2.91, whereas a grade of 3.0 is passing. He requested a review of his grades and received some additional credit, raising his grade for the examination to 2.98--still failing, but quite close to a passing grade. The examination grade is a weighted aggregate made up of scores given on each tested procedure, using a formula for weighting the scores on each procedure. The possible scores for each procedure range from zero to five, with a score of three considered "passing" for a particular procedure. Likewise, weighted aggregates can range from zero to five, with a grade of 3.00 passing. Each procedure performed by the Petitioner (and the other examinees) was graded by three graders from pool of qualified graders. The Petitioner's graders not only were qualified, but they also were "standardized." "Standardization" is a process undertaken on the day before the examination to explain to the prospective qualified graders for an examination the criteria for grading the different procedures and how the criteria should be evaluated. The purpose of "standardization" is to insure that the graders are looking at the criteria in the same way, so that ideally each grader would grade the same performance the same way. Averaging the scores given by three "standardized graders" increased the reliability of the examination results. Procedure 8 on the examination was a pin amalgam preparation on an ivorine (plastic) tooth. Criteria for the procedure include: (a) outline; (b) depth; (c) retention; (d) pin placement; and (e) mutilation of opposing adjacent teeth. Two of the three graders gave the Petitioner a score of 3 on Procedure 8; the other gave him a 2. Procedure 9 on the examination was a pin amalgam final restoration on an ivorine (plastic) tooth. Criteria for the procedure include: (a) functional anatomy - appropriate occlusal and interproximal anatomy; (b) proximal contour and contact - contact is considered present when resistance is met with specified floss given at the time of the exam; (c) margins; (d) gingival overhang - overhang is considered to be excess amalgam in either a proximal or gingival direction at the gingival cavosurface margin; and (e) ma[n]agement of soft tissue. Two of the three graders gave the Petitioner a score of 2 on Procedure 9; the other gave him a 3. An ivorine (plastic) tooth is not the same as a real tooth. It is easier to carve, but it does not have the major external and internal landmarks created by the enamel, dentin and nerve root of a real tooth. Without additional instructions, the latter differences make it difficult or impossible for the examinee or a grader to apply certain criteria. The evidence was that the examinees received an examination booklet that instructed them to "treat simulated teeth as normal human teeth, that is, assume the simulated teeth have the same enamel, dentin, and pupil morphology as human teeth." The instruction in the examination booklet, by itself, leaves some important questions unanswered. "Normal human teeth" differ in the thickness of the enamel, not only from one person to another but also from tooth to tooth within any one person's mouth and even from place to place on any one tooth. Also, the direction in which the enamel rods run in "normal human teeth" differ, depending essentially on the shape of the tooth. The direction of the enamel rods is important in determining whether enough dentin is left under the enamel rods to support the enamel. "Normal human teeth" also have fissures, i.e., little cracks and grooves, and the margins of a preparation and restoration should be extended to include fissures that cannot be eliminated by enamelplasty. But ivorine teeth do not have all the fissures normal teeth have. As a result of these difference between "normal human teeth" and the test mannequin's ivorine teeth, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the following criteria for Procedure 8: outline form; depth of preparation; and retention. In addition, as to Procedure 9, functional anatomy depends upon a tooth's interaction with its opposing and adjacent teeth, but the mannequins did not have opposing teeth. As a result, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the criterion functional anatomy for Procedure 9. Similarly, the ivorine teeth in the mannequins were cemented in place, and points were to be deducted for moving them. This made it difficult, if not impossible--even with the information in the examination booklet--for the candidates to control proximal contour and contact, which are criteria for Procedure 9. Despite the deficiencies in the information in the examination booklet, taken by itself, there also was evidence that the graders were instructed orally during standardization, and the candidates were instructed during an orientation prior to the administration of the examination, that they were to assume an "ideal, minimal preparation" and that the purpose of the examination was simply to demonstrate basic knowledge of acceptable techniques. They also were told to assume "normal" or "ideal" enamel thickness of approximately 0.5 millimeter. Given those qualifications, they were told that the preparations were to have a "normal outline form" and "normal depth." As for functional anatomy, they were told that restorations were to "set up ideal (or normal) occlusion" by making the marginal ridges even and by replacing the restoration to the "normal shape of a cusp of a tooth." As for proximal contour, a restoration's marginal ridges were to meet (i.e., match) those of the adjacent tooth. Candidates also were allowed to ask questions as part of the orientation to clarify the oral instructions, as necessary. Given the additional oral instructions, the candidates and graders were given a clear enough understanding of the examination criteria. Evaluation of the candidates' and the graders' performance by the Department's psychometrician indicated that the examination was valid and reliable. The Petitioner's performance of Procedure 8 was primarily deficient in that the outline form was 0.25 millimeter short of the lingual occlusal groove, which was clearly visible on the ivorine tooth and which should have been included within the outline form. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. The Petitioner's performance of Procedure 9 was primarily deficient in that the restoration did not replace the "normal shape of a cusp of a tooth" and that the marginal ridges did not meet those of the adjacent tooth. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. There was evidence that, since the examination on ivorine teeth only simulates real teeth, which are easier to carve than real teeth, and is necessarily limited to a demonstration of basic knowledge of acceptable techniques, the examination does not directly test the candidate's ability to actually practice dentistry. But, due to heightened concern for the transmission of infectious disease, including HIV, ivorine teeth have been used in dental schools and in dental clinical examinations exclusively for over ten years, and the Petitioner did not prove that the use of ivorine teeth, instead of extracted real teeth, for his examination was unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Dentistry, enter a final order denying the Petitioner's examination challenge. RECOMMENDED this 28th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6923 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and not necessary. Rejected as not proven. (The exam should not necessarily measure a person with more dental experience as receiving a higher grade.) Accepted but subordinate and not necessary. Accepted and incorporated. 8.-10. Rejected as not proven. (It would be more accurate to say that the Department's examination reviewer could neither say that the the score of 2 was erroneous or unreasonable or that a score of 3 would have been erroneous or unreasonable.) 11. Accepted and incorporated. 12.-16. Accepted but subordinate and not necessary. (As to 16, however, he reiterated his opinion that the appropriate score was a 2.) 17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated. Rejected as not proven that the dentin is the "stronger material." Otherwise, accepted and incorporated. Accepted and incorporated. 22.-26. Accepted and incorporated to the extent not subordinate or unnecessary. However, as found, notwithstanding the limitations inherent in not being able to see on the ivorine tooth exactly where the enamel would end and the dentin would begin, or where the enamel rods would be, certain basic knowledge of acceptable techniques can be demonstrated on the ivorine teeth, given certain additional instructions. 27.-29. Rejected as not proven. The Petitioner's expert was not "standardized" and was not privy to what the graders were told during standardization or what the candidates were told during orientation. 30. See 22.-26. 31.-32. See 27.-29. 33. See 22.-26. Respondent's Proposed Findings of Fact. 1.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and subordinate to facts found. 11. Rejected as contrary to the evidence that the Petitioner introduced no competent and substantial evidence in support of his challenge. COPIES FURNISHED: Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 William M. Woodyard, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not from January, 1975 until December, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Victoria Lynn Bandosz, who during said time routinely and customarily performed certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits form the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S. , as set forth in Count 1 of the Accusation. Count 1 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from January, 1975, until August, 1975, Dr. Richard Blustein did have in his employ a dental auxiliary, to wit: Janet Amato, who, did during said time routinely and customarily perform certain illegal dental procedures with the knowledge and authorization of Dr. Richard Blustein. Said procedures included removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus (commonly known as "scaling"), application of orthodontic plastic brackets and adjustment of dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.02(4) and 466.24(3)(e), F.S., as set forth in Count 2 of the Accusation. Count 2 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not on or about December 23, 1974, Dr. Richard Blustein did carelessly and mistakenly remove several teeth from Shawn McAfee, a minor, when in fact, said teeth should have been removed from Kerry McAfee, sister of Shawn McAfee, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) and 466.24(3)(c)(d), F.S., as set forth in Count 3 of the Accusation. Count 3 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not prior to December 2, 1974, Dr. Richard Blustein treated Helen Rosen and during said treatment failed to diagnose and/or properly treat advanced periodontal disease and further improperly designed, constructed and installed a six-unit splint in the mouth of said Helen Rosen, said acts allegedly being in violation of Chapter 466, F.S., and in particular s. 466.24(2) or 466.24 (3)(c)(d), F.S., as set forth in Count 4 of the Accusation. Count 4 had originally charged a violation of s. 466.24(3)(n), but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, from June, 1974, until December, 1975 Dr. Richard Blustein failed to provide and maintain reasonably sanitary facilities and conditions in and about his office and person, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(1), F.S., as set forth in Count 5 of the Accusation. Count 5 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, in 1974 and 1975, Dr. Richard Blustein treated Milton Lane and did construct and install in the mouth of said Milton Lane a set of upper and lower dentures, which set of upper and lower dentures never fit properly and were never adjusted to fit properly, despite repeated attempts by Dr. Richard Blustein to correct or adjust said dentures, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 6 of the Accusation. Count 6 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Whether or not, prior to March 17, 1975, Dr. Richard Blustein treated professionally Sarah Rees and while treating or attempting to treat said Sarah Rees, failed to diagnose and/or properly treat periodontal disease, prepared and installed crowns which were inadequate in design, construction, retention and installation, and placed several inadequate restorations, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(3)(c)(d), as set forth in Count 7 of the Accusation. Count 7 had originally charged a violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 8 in the Accusation charging violations of Chapter 466, F.S. and in particular, s. 466.24(2), 466.24 (3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing. Whether or not, during 1975, Dr. Richard Blustein treated Bill Soforenko, and during the treatment of said Bill Soforenko, prepared, constructed and installed a porcelain to gold full arch splint, which was entirely inadequate and unacceptable in preparation, design, construction and installation, said acts allegedly being in violation of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(c)(d), F.S., as set forth in Count 9 of the Accusation. Count 9 had originally charged the violation of s. 466.24(3)(n), F.S., but that allegation was voluntarily dismissed and was not considered in the hearing. Petitioner had filed a Count 10 concerning certain children referred to him by the Academy of Dentistry, charging violations of Chapter 466, F.S., and in particular, s. 466.24(2) or 466.24(3)(a)(c)(d) and (n), F.S., but those allegations were voluntarily dismissed and were not considered in the hearing.
Findings Of Fact Dr. Richard Blustein, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, F.S., under a license issued August 7, 1964, bearing No. 3716, and was at the time of the acts described in the Accusation engaged in the practice of dentistry at 417 St. James Building, Jacksonville, Florida. In November, 1974, Janet Amato started to work for the Respondent as a dental assistant. She was hired to take X-rays and impressions, clean up operatories set up operatories and assist the dentist in various capacities. She had attended the Florida College of Medical and Dental Assistants at Jacksonville, Florida and graduated as a dental assistant in 1969. After her employment began, she commenced to do those things indicated in her job function. In January, 1975, she attended a polishing course designed to instruct on the polishing of clinical crowns which was held at the Florida Junior College. This course was designed to teach the students to polish with a prophy angle and polishing cup with pumice. After completing the course, Janet Amato began polishing the teeth of patients who had been scaled by the dental hygienist or dentist in the office. Dr. Blustein was aware of this activity. Sometime in the month of February, 1975, Janet Amato began to do the scaling of patients. Janet Amato was not a dental hygienist at any time material to the accusations. Janet Amato learned the scaling procedure by watching Dr. Blustein for a period of three or four months on the basis of once or twice a week. When she began to do this scaling, Dr. Blustein would say, "Honey, go in, and clean this one's teeth, you know", and at times mentioned the word "scale". Janet Amato did this procedure using a hand scaler, as much as ten times a week from February, 1975 through July, 1975. In July or August, 1975, she was placed as a receptionist in Dr. Blustein's office and only did scaling once or twice a week when the hygienist would get behind. This procedure continued until January, 1976. After January, 1976, Janet Amato did not do further scaling and resigned her job with Dr. Blustein in March, 1976. The aforementioned scaling done by Janet Amato was subgingival only on those occasions when she would try to retrieve some debris that had fallen below the gum line. This scaling spoken of was done with the knowledge of Dr. Blustein and under protest of Janet Amato, as evidenced by her remarks to the Respondent that she did not feel qualified to do that procedure, to which Dr. Blustein responded that she would do it anyway. While employed by Dr. Blustein, Janet Amato was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Janet Amato how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with the laboratory burr. This process was done by Janet Amato as much as ten times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Janet Amato was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber bands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. The application of these brackets was made four or five times between February, 1975 and July, 1975, by Janet Amato. Victoria Lynn Bandosz started to work for Dr. Blustein in his dental office, in February, 1974, while Ms. Bandosz was an eleventh grade student at Wolfson High School. This work was done on Saturday and the duties included calling patients in, setting up operatories, taking X-rays, cleaning instruments and putting them away. The schedule of work gradually changed from Saturday to Saturday and after school, and finally a full-time employment in the summer of 1975. Ms. Bandosz performed those functions, as indicated before, until January, 1975, at which time she took a polishing course at Florida Jr. College designed to teach her how to handle instruments and to polish teeth. This course was the same course attended by Janet Amato. She began to do this polishing and was gradually worked into scaling. According to Ms. Bandosz, the Respondent would introduce her to a patient and say that she was to clean the teeth because the office was busy. She began to do scaling over a period of time and protested doing this type activity, but received no response to her complaint about having to do scaling. Ms. Bandosz indicated that Dr. Blustein appeared too busy to respond. The scaling that Victoria Lynn Bandosz did included work by hand scaler and by use of a Cavatron and commenced a few weeks after the polishing course was completed. The scaling done included the removal of calculus on the surface of the tooth and subgingival scaling. She learned this scaling, according to the witness, by watching the office dental hygienist. A schedule of doing the scaling would include as many as three or four times a week during the summer months and fall of 1975. In December, 1975, Victoria Lynn Bandosz left the employ of Dr. Blustein to attend school. While employed by Dr. Blustein, Victoria Lynn Bandosz was trained by the Respondent to do certain work on dentures. Dr. Blustein showed Victoria Bandosz how to take the dentures that had been removed from the patient's mouth and paint them with a substance to mark a sore spot in the patient's mouth with this paste, have the patient replace the dentures and get a bite impression, remove the dentures again and adjust the error indicated by the paste with a laboratory burr. The Respondent's instructions or training included the matters mentioned and also the technique for grinding the dentures with, the laboratory burr. This process was done by Victoria Bandosz as much as five or six times a week, ordinarily at a time when the Respondent was not immediately in the operatory, but was in the dental office complex. Additionally, Victoria Lynn Bandosz was instructed by the Respondent on the application of orthodontic plastic brackets. His instruction included the application of etching compound on the teeth prior to the cementing of the plastic brackets to the teeth, the use of the Nuvaco light to dry the cement and the installation of rubber brands on the plastic brackets. Dr. Blustein would supervise the procedure to the extent of indicating where he wanted the brackets placed and the removal of the bracket upon the patient's next visit. These brackets spoken of do not touch soft tissue in the mouth of the patient. Among the patients being treated by Dr. Blustein in 1974, were Carol Diana (Kerry) McAfee, who was 10 years old at the date of the hearing and Sean McAfee, who was 8 years old at the time of hearing; sister and brother respectively. According to the questionnaire and chart on Sean McAfee and further testimony given in the course of the hearing, Sean McAfee had been seen by Dr. Blustein in April, 1974, on two occasions, one occasion being April 27, 1974, at which time an extraction was made of the right upper deciduous central and for X-rays in a second visit on April 29, 1974. Dr. Blustein recalls the extraction being in March, 1974. Some of this information is shown in Petitioner's Composite Exhibit #9, admitted into evidence. The Petitioner's Composite Exhibit #9 also shows the questionnaire and chart of Carol Diana (Kerry) McAfee, showing visits on November 30, 1974, and December 7, 1974. In the month of December, 1974, the young girl Kerry McAfee was taller than her brother Sean, with long blond hair, while Sean McAfee was stockey and had hair which did not go below the level of the ears. The two children do not resemble each other in other matters of appearance. Prior to December 12, 1974, Carol Diana (Kerry) McAfee had been seen by Dr. Harry L. Geiger, who specializes in orthodontics and then referred to Dr. Blustein through the person of Dr. Geiger for purposes of extraction of the maxillary and mandibuar primary canines. This referral was by correspondence of December 12, 1974, which is Petitioner's Exhibit #1, admitted into evidence. On that same date Dr. Geiger prepared a form which indicated the location of the teeth. to be extracted. This form is a part of Petitioner's Composite Exhibit #9. An appointment was made with Dr. Blustein's office to have the extraction made from Kerry McAfee on December 23, 1974. Due to the proximity of the Christmas holiday, employees within Dr. Blustein's office were contacted and an arrangement made to substitute the appointment of Kerry McAfee for one of Sean McAfee who was to have his teeth cleaned around that time period. This substitution of appointment was made one week prior to the scheduled appointment. When the patient, Sean McAfee, arrived at the Respondent's office he was taken to an operatory to be seen by the Respondent. Dr. Blustein had with him in the operatory the letter which is Petitioner's Exhibit #1 and a set of X-rays pertaining to Carol Diana (Kerry) McAfee. There is some question about whether or not the form which is part of Petitioner's Composite Exhibit #9 was in the operatory. The letter of December 12, 1974 from Dr. Geiger in its reference lines references Carol Diana (Kerry) McAfee - Age: 8 years, and Dr. Blustein indicated that he read this letter and observed the X-rays on Carol Diana McAfee prior to his work. He indicated that the X-rays on Carol Diana (Kerry) McAfee appeared to be similar to what he found in terms of the actual condition in the mouth of Sean McAfee. He then proceeded to extract two of the teeth that were indicated to be removed but he made the extraction on Sean McAfee, as opposed to Carol Diana McAfee. One of Dr. Blustein's patients, beginning August 6, 1974, was Mrs. Helen Rosen. Mrs. Rosen had last seen a dentist about a year prior to that and had had upper dentures made two or three years prior to August, 1974. The radiographic examination made by the Respondent showed that the patient was missing all of her upper teeth and was missing all but seven other teeth, which teeth showed severe periodontal involvement. The patient was a diabetic and clinical evaluation showed bone resorption. The patient on that date was wearing an upper denture which was causing problems due to the lack of a ridge and due to impediment in the muscle attachments. The lower natural teeth were mobile, to a high degree and the lower partial was contributing to that mobility. Further observation showed poor patient hygiene. The X-rays that were taken at that time are Respondent's Exhibit #9 admitted into evidence. The patient was told that she needed much dental work, specifically that she needed surgery on the upper jaw to relieve the muscle attachment, a mucobuccal full procedure to eliminate the frenum to allow her to wear her dentures. The patient by explanation was told that the dentures were irritating the upper ridge severely. The patient was also told that there was bone destruction in the upper jaw and that in addition to the upper jaw, surgery on the lower jaw was needed, which Dr. Blustein felt that he could do. After that surgery, Dr. Blustein indicated that a splinting procedure would be needed on the remaining natural teeth and as a part of that process that a new partial would be made. The prognosis for saving the natural teeth was poor due to the condition of the teeth, but the patient wanted to attempt to save those teeth. Subsequent to that date the Respondent performed a mucoperiosteal flap (an apical repositioning flap). This procedure was performed on August 20, 1974. Photographs of this procedure are shown in Respondent's Exhibit #6, admitted into evidence. Those photos also show the placement of the splint on the natural teeth. Other treatment which was performed on Mrs. Rosen by Dr. Blustein included a visit of August 14, 1974, in which preparation was made on the lower interior plastic temporaries, the temporary splint on the remaining natural teeth, to prepare for periodontal surgery. An adjustment was made on this splint on August 15, 1974. As mentioned, the surgery, on the lower apical repositioning flap was done on August 20, 1974 and involved curettage in between the teeth, root cleaning in between the teeth, suturing in between the teeth and the surgical procedure itself. On August 27, 1974, the dressings and sutures were removed. On September 15, 1974 a bite impression was taken in preparation to construct a permanent splint device. On September 20, 1974, a shade was taken. On October 12, 1974, the casting on the splint was tried and on October 14, 1974 the lower teeth were cemented. This was followed on October 16, 1974, with a bite impression and on October 21, 1974 width an adjustment. A final impression was taken on October 25, 1974, this time of the upper dentures. In the beginning of November 1974 the dentures were remade and adjusted on two occasions. In November a discussion was entered into about the problem with the upper arch and Dr. Blustein indicated to the patient that she might get a second opinion on the need for surgery. At that time Dr. Blustein indicated that he was not through with the splint and it had only been placed to control mobility patterns. . . The partial spoken of at this time was the partial being constructed by the Respondent. Finally on February 27, 1974, upon consultation, the patient was told that she needed ridge adjustments on the upper arch. Dr. Ronald Elinoff D.D.S. saw Helen Rosen on December 2, 1974, as an accommodation to one of his patients, whose mother is Helen Rosen. Dr. Elinoff found a full set of upper dentures with a lower splint and partial with dalbo attachment, the splint being a seven unit device. This splint was on the lower arch and was placed around the only natural teeth in the patient's mouth. The embrassure spaces were closed on the splint, meaning those spaces underneath the solder joints or where the connection ends on the splint. The conture in the bolt that was there was impinging upon the ability of the patient to keep the splint clean, thereby promoting constant irritation. The tissue was grossly inflamed and would easily bleed upon touch and was a bluish redish color, unhealthy in appearance. There was minimal pocket depth, by that, the depth between the gum and the teeth. The minimal amount of bone shown growing beneath these teeth promoted stress on the teeth. The crowns were too long for the bone supporting root structure in that they were approximately three times as long as the root of the teeth, wherein a one to one ratio is desirable. The junction between where the casting ends and the tooth structure begins was very thick and the porcelain on the crowns had been chipped off, leaving an open area. The margins on the crowns were thicker than normal limits of tolerance. By Dr. Elinoff's observation, the mobility of the teeth was 3+. The patient was referred to Dr. Richard Miller, D.D.S., a periodontist. Dr. Richard L. Miller, D.D.S., specializing in periodontics saw Mrs. Rosen on December 5, 1974. By his observation, Mrs. Rosen had periodontal disease about the remaining seven teeth and the lower anterior, plus lower right first bicuspid teeth had been splinted. There was generalized hemorrhaging on probing, synosis and the pocket depth about the teeth indicated mucogingival problems. The splint mobility was 1+. The remaining roots and the bone were not adequate to support the removable partial denture splint. The splint design made it hard to maintain health, in that there were no embrassure spaces and the contact areas were bulky. The margins on the crowns did not fill well and were bulky. The cement which had been used to place the splint could be seen and there was fractured porcelain around margins of the restoration. According to Dr. Miller, these bulky margins contribute to periodontal disease, by causing irritation and attracting plaque. This cement that was observed was felt to be permanent cement. On February 5, 1975, Dr. Seth Weintraub, D.D.S., specializing in periodontics saw Helen Rosen. He examined the remaining seven mandibular teeth and found a periodontal condition which was fairly arrested. The patient lacked gingival tissue in the lower left cuspid and it was his feeling that correction of the muscle pull in that area by free gingival graft to establish an adequate zone of gingival tissue could be done. His impression of the splint or bridge was that it was adequate for present if the oral hygiene improved, but the marrying of the crown was generally poor. On March 18, 1975, Dr. Jack K. Whitman, D.D.S., specializing in periodontics saw Helen Rosen upon the referral of Dr. Weintraub. His observation revealed a gingiva which showed 3 millimeters space, (normal appearance being 2 to 3 millimeters), with slight irritation and some gum irritation. The patient was shown to have seven remaining mandibular teeth. The margins of the prosthetic device (splint) was bulky and was irritating the gingiva. The appearance of the patient's mouth showed bone loss and degeneration occlusion. From June, 1974 until December, 1975, the Respondent would on occasion move from the examination of one patient, in a particular operatory over to a second operatory to see a second patient, and could do so without washing his hands. This examination of the second patient would include touching the mouth of the patient. On occasion Dr. Blustein would also move from the examination of one patient in an operatory to the frontdesk area of the office and look into and touch the patient's mouth at the desk, without washing his hands. During the time period, June, 1974 until December, 1975, roaches were observed in the instrument trays which had been placed in cabinets within the office. These instrument trays contained dental instruments. There was no autoclave bag over these instruments and the roaches could be seen crawling about the instruments and roach eggs could be found in the instruments. The office was found in an older building in Jacksonville, Florida, known as the St. James Building. Within his office complex food was kept by the employees. In addition there were a number of other professional offices in the immediate area. The Respondent had made arrangements for periodic pest control treatment and had a separate cleaning crew within his office, in addition to the janitorial service offered by the building maintenance. The office also contained a number of autoclaves, one for each operatory; steam heat cleaning; sterilization; hot oil sterilization; dry heat sterilization; and hexacholrophy in all operatories. During this period and at all other periods in which testimony was offered, there was no report of any incident of infection within patients. On June 10, 1974, Milton Lane became a patient of Dr. Blustein. Mr. Lane had come to Dr. Blustein to have a complete set of dentures made, to replace the dentures that he already had. On the June 10, 1974 visit Dr. Blustein took upper and lower alginates. The next day, June 11, 1974, Dr. Blustein took a bite impression and made base plates to get the midline. On June 14, 1974, there was a trying of the teeth and a final impression was made. June 19, 1974, the dentures were inserted and on June 24, 1974 another adjustment was made to the dentures and reline impression was made in an attempt to get a tighter fit. The patient returned on June 26, 1974 for further adjustment and on July 6, 1976 the teeth were remade, in that a new set was fitted. On July 15, 20, and 22, 1976, further adjustments were made. During this time period when Mr. Lane would try to eat his food the dentures would flop around in his mouth and after repeated problems Mr. Lane was referred to Dr. Rupert O. Bliss, D.D.S., based upon a complaint that Mr. Lane had made to the Better Business Bureau. At that time, Dr. Bliss was acting as the chairman of the local dental grievence committee. Dr. Bliss saw Mr. Lane in August, 1974 and Dr. Bliss's observations revealed that the dentures were trimmed on the peripheries and that the dentures were thick in the paletal region of the upper denture, with the teeth in the lower dentures being set "buckley to the ridge", thereby lessening the stability of the dentures. On balance, the dentures were found to be ill fitting. After his examination of the patient, Dr. Bliss wrote Dr. Blustein on August 16, 1974 in his capacity as chairman of the local grievence committee. Dr. Blustein offered his reply to this letter through his answer of August 21, 1974. The contents of these letters may be found in pages 488 and 489 of the transcript of record in the hearing. Dr. Bliss had other observations to the effect that the dentures did not fit the tissue of the ridges, although he felt that Lane had adequate ridge tissue. Dr. Blustein felt that one of the problems with the fit of the dentures had to do with the liquidity of the saliva of the patient, Lane. Dr. Blustein observed that the saliva was not sufficiently sticky to allow a smooth insertion of the dentures and felt that the patient would always need to use some form of dental paste to achieve a satisfactory fit. After the contact between Dr. Bliss and Dr. Blustein, Mr. Lane returned to Dr. Blustein's office of September 13, 1974 for purposes of taking impressions for another set of dentures. On October 1, 1974, Dr. DePaul who was working in the office with Dr. Blustein took an impression on the patient, Lane, to see if he could make a more satisfactory adjustment. On October 5, 1974, Mr. Lane made his last visit to the office of Dr. Blustein at which time the new teeth were inserted and the patient was told to come back if he had further difficulty. The patient did not return to the office of Dr. Blustein. When the patient appeared at the hearing as a witness he was still utilizing the last set of dentures that had been prepared by Dr. Blustein. Between November 28, 1973 and June 13, 1974, Dr. Blustein saw the patient Sara Rees. Mrs. Rees came to see Dr. Blustein because her husband had been seen by the Respondent and because his estimate on the cost of doing needed dental work was satisfactory to her. When Mrs. Rees came to Dr. Blustein she had certain radiographs (X-rays) that had been taken by Dr. Charles Weaver, D.D.S. on November 6, 1973. These radiographs are Respondent's Exhibit #4, admitted into evidence. Dr. Blustein's initial examination revealed a high level of caries, soft teeth and problems with fillings that were falling out. Dr. Blustein crowned seven teeth using pins to place the caps, in which gold caps and cast pins were utilized. This work may be seen in Petitioner's Exhibit #8, admitted into evidence, which is a series of radiographs taken by Dr. Roy Clarke, D.D.S. As a part of that exhibit #8 attached is a radiograph showing the date of March 11, 1975 as taken by Dr. David M. Mizrahi, D.D.S., a specialist in endodontics. This crown work involved the upper right second molar, upper right first molar, upper right first bicuspid, upper left second molar, upper left first molar, lower first molar, lower right first molar, teeth. At the time Mrs. Rees was seeing Dr. Blustein, she had also been referred by her former dentist, Dr. Charles Weaver to see Dr. David M. Mizrahi, for purposes of having certain endodontic procedures, root canal work. While seeing Dr. Blustein, Dr. Mizrahi performed root canal work on two teeth, one of which was the upper right first bicuspid. Dr. Mizrahi had told Mrs. Rees that there was a 50 percent chance that she would need a root canal done on that tooth; nonetheless, she wanted the crown tried out first before having to have root canal work done. This tooth presented special problems for Dr. Blustein in that there was very little tooth left for the cast pin to set against. Dr. Blustein installed a crown on the subject tooth, but the root canal was subsequently necessary to be performed. Another root canal was performed on a third tooth of Mrs. Rees; however, this root canal work was done while the patient was seeing a Dr. Robert Williams, D.D.S. During the pendency of Mrs. Rees' treatment by Dr. Blustein she began to have problems with the crowns falling off, the initial occasion being while Dr. Blustein was trying out the temporaries and this temporary was reinserted by Dr. Watkins, D.D.S., a dentist at Jacksonville Beach, Florida. In March of 1974, the crown on the upper right first bicuspid fell off and was recemented by Dr. Blustein. A couple of months later this same crown fell out and was recemented by Dr. Robert Williams. Shortly, before seeing Dr. Robert Clarke in March or April, 1975, this same crown and another crown fell off. At a point in time when Mrs. Rees was seeing Dr. Mizrahi for the root canal work, she determined to see Dr. Roy F. Clarke, Jr. upon the basis of a referral which had been made by Dr. Mizrahi. To Dr. Clarke's recollection, this referral was made for treatment of a maxillary right second bicuspid tooth that was not being retained. Dr. Clarke worked on the upper right first bicuspid tooth spoken of before, by rebuilding the foundation and making a provisional crown. The case was then turned over to Dr. Robert Williams at the request of the patient. While treating Mrs. Rees, Dr. Clarke prepared the radiographs which are Petitioner's Exhibit #8, as mentioned before, and made a clinical examination. The clinical examination revealed advanced periodontal disease in the posterior teeth, in which the level of disease was between 6 and 7 millimeters in probe depth. There was bleeding and puss formation in the gum area with severe occlusion. The upper right first bicuspid tooth had a perforation in the side of the root below the gum line. There was a pin perforation in the outside of the lower left first molar. There was leakage around the crowns and recurrent caries, with generally poor margination. Specifically, there was poor margination in the upper left as shown by the letter B on Petitioner's Exhibit #8, and space left filled with cement closing off the possibility of the healthy gum tissue surviving. On the lower right hand side, as shown by the letter C in Petitioner's Exhibit #8, there were thick margins, irritated gum and bone. On the upper right, as shown by the letter D in Petitioner's Exhibit #8, there were thick margins on the distal of the upper right first molar, with cement closing off the area of that proximal space. The problems with the margins were causing problems of retention of the teeth. The crowns that were in place were felt to be of such quality as to need replacing, based upon Dr. Clarke's testimony. Respondent's Exhibit #5 is a copy of the office records kept by Dr. Roy F. Clarke, Jr., on the patient Sarah Rees. Bill Soforenko came to see Dr. Blustein about his dental problems and Dr. Blustein told Mr. Soforenko that he had periodontal disease. Dr. Blustein then sent Mr. Soforenko to see Dr. A. Robert Romans, D.D.S., specializing in periodontics. Dr. Romans saw Mr. Soforenko on January 11, 1974 and at the time of his examination found that the patient had several missing teeth, inflammatory periodontal disease and the need for extensive periodontal therapy and substantive restorative work. Discussion of these needs was entered into with Dr. Blustein by correspondence of January 28, 1974, from Dr. Romans to Dr. Blustein, a copy of this correspondence being Petitioner's Exhibit #2, admitted into evidence. In addition, Dr. Romans took certain oral radiographs and on February 5, 1974, discussed those teeth to be removed with Dr. Blustein, the preparation for periodontal treatment, the need for the replacement of temporary bridges, and other matters. Dr. Romans determined that the upper left incisor number 9, and the upper left first permanent molar, number 14, should be removed and an upper acrylic provisional splint placed in the entire upper arch to be used as temporary stabilization until the periodontal disease could be controlled and subsequent disease could be broken down, before allowing Dr. Blustein to make a final splint of porcelain to gold. Dr. Blustein installed a provisional splint and on July 10, 1974, Dr. Romans took out the splint and under local anesthesia performed subgingival curettage, after which the splint was replaced. Between July, 1974 and December 6, 1974 the remainder of periodontal treatment was performed including surgery and this was the last time the provisional splint was seen by Dr. Romans. The periodontal disease seen by Dr. Romans was generalized moderate to severe in a chronic state, identified as compound periodontitis which was caused by bacteria and bacteria by-products. The surgery performed by Dr. Romans was a full thickness mucoperiosteal entry, in which the upper arch was done August 6, 1974 and the lower arch was done on September 30, 1974.. The worst teeth of Mr. Soforenko had been removed prior to the surgery. After December 6, 1974, Dr. Romans referred Mr. Soforenko back to Dr. Blustein for the construction of the permanent splint device. When Dr. Blustein saw Mr. Soforenko, the temporary had started to decompose and Dr. Blustein placed the permanent splint device, as soon as possible, to achieve stability within the patient's mouth. At the time this was done, the patient's mouth was red and inflamed and the patient had not been doing home care to the knowledge of Dr. Blustein. Dr. Blustein anticipated that Mr. Soforenko would return to Dr. Romans for whatever attention was necessary to the gums of the patient, and made an appointment for Mr. Soforenko to return for a bite adjustment. On June 9, 1975 Mr. Soforenko was seen by Dr. Romans for evaluation of the restorative work and recall prophlaxis and polishing, together with oral hygiene instructions. At that point the permanent splint had been constructed and installed by Dr. Blustein, this splint being a 14 unit device with eleven crowns and three missing teeth. The teeth found in the splint are as shown in Petitioner's Exhibit #3, admitted into evidence, which is a letter written from Dr. Romans to Dr. Blustein discussing the quality of the splint. On that same date certain photographs were made of some of Mr. Soforenko's teeth in the splint, to include all those teeth in the splint except numbers 10, 11, and 13. These photographs are Petitioner's Exhibits #4 - #7, admitted into evidence. Petitioner's Exhibit #4 shows the upper eight anterior teeth and accompanying gingival unit as it pertains to the permanent porcelain fused-to-gold splint. The photographs depict quite severe marginal irritation and inflammation, the margins are rough, thereby harboring bacterial plaque and promoting an inability to clean the teeth properly. The margins are very thick in all the teeth in the splint and the depth of these margins is shown in Petitioner's Exhibits #5 - #7, which evidence a periodontal probe placed in the gingival sulcus. In Petitioner's Exhibit #5 the probe is placed in the margin of the upper central incisor, number 8, and the margin is approximately one millimeter thick. The probe being utilized in that photograph is a blunt instrument as opposed to a sharp explorer instrument. This probe is a University of Michigan no. 0, with William's markings. Petitioner's Exhibit #6 shows the upper right lateral incisor, number 7, with the periodontal probe in place. Petitioners Exhibit #7, shows the periodontal probe placed in the upper right cuspid, number 6. The margin in Petitioner's Exhibit #6 is between 1 millimeter and 1-1/2 millimeter in thickness, and the margin in Petitioner's Exhibit #7 is between 1/2 millimeter and a millimeter thick. All other teeth within the splint by Dr. Roman's observation had similar problems in margination, as shown in Petitioner's Exhibits #5 - #7. The photographs also show a redish serus fluid, which is an exudate, indicating the inflammation of the gums. Dr. Blustein did not see Mr. Soforenko after the June 9, 1975 visit to Dr. Romans and when Dr. Romans saw Mr. Soforenko on July 9, 1975, the condition of the splint was the same as found on June 9, 1975.
Recommendation It is recommended that license NO. 3716 to practice dentistry held by the Respondent, Richard Blustein D.D.S., with the Florida State Board of Dentistry be revoked for violation of Chapter 466, F.S. however, the said revocation should be withheld pending satisfactory completion of five years probation, during which time the Respondent must satisfactorily comply with all requirements of law pertaining to his profession as a dentist. DONE and ENTERED this 31st day of January, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Thompson Tygart, Jr., Esquire 609 Barnett Regency Tower Regency Square Jacksonville, Florida 32211 Albert Datz, Esquire 320 Southeast First Bank Building 231 East Forsyth Street Jacksonville, Florida 32202 State of Florida Department of Professional and Occupational Regulations Division of Professions Board of Dentistry c/o Mrs. Charlotte Mullens Executive Director 2009 Apalachee Parkway Suite 240 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION DIVISION OF PROFESSIONS, BOARD OF DENTISTRY FLORIDA STATE BOARD OF DENTISTRY, Petitioner, vs. CASE NO. 76-700 RICHARD BLUSTEIN, D.D.S., Respondent. /
