The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
The Issue The issue for determination is whether Petitioner successfully completed the December 1999 dental licensure examination.
Findings Of Fact Petitioner has been given a temporary permit to practice dentistry due to his being a resident in training. In December 1999, Petitioner took the dental licensure Examination. He successfully completed the Laws and Rules part of the Examination having received a score of 78.00, where a minimum score of 75.00 was required to pass that part. Petitioner failed to successfully complete the Clinical part of the Examination having received a score of 2.89, where a minimum score of 3.00 was required to pass the Clinical part. As a result, Petitioner failed to successfully complete the overall Examination. On the Periodontal section of the Clinical part, Petitioner received a score of 1.66. He challenges this score. Each candidate is graded by three examiners. Each examiner is a dentist who is licensed in the State of Florida, with a minimum of five active years' experience, and who, among other things, has no complaints or negative actions against his/her license. Before every examination, each examiner is trained in evaluating a procedure to make sure that the procedure is properly performed. The Department of Health (Department) conducts training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida. To further their training, the examiners after receiving verbal training are shown slides of teeth which do not meet the clinical criteria of the examination. Following the standardization, to make sure that the examiners have been able to internalize the criteria, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where models are used and the examiners check for errors on the models. The examiners are evaluated on how they perform when they grade the models, to make sure that the examiners are grading the candidates the same, using the same criteria, and with reliability. Each examiner grades the examination independently. The examiners do not confer with each other while scoring the examination. The examiners do not have contact with the candidates. As to grading, the average of the three grades from the examiners produces the overall grade for the exercise performed by the candidate. Having three examiners grading provides a more reliable indication of the candidate's competency and true grade. Furthermore, the examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored. When the candidate completes the procedures, a proctor accompanies the human patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. Monitors are used by the Department at the examination. The role of a monitor is to preserve and secure the integrity of the examination. The monitor, among other things, gives instructions to the candidates, answers questions of the candidates, and acts as a messenger between the candidate and the examiner. Monitors also ensure that candidates do not have contact with the examiners. For the Periodontal section, a candidate, as Petitioner, performs a periodontal exercise on a human patient who is chosen by the candidate. The human patient must also be approved by the Department in accordance with criteria specified by rule.2 The criteria includes a requirement that the human patient must have a minimum of five teeth, each of which must have pockets of a minimum of four mm in depth with sub-gingival calculus. Petitioner chose his human patient. The Department approved Petitioner's human patient. Petitioner's human patient was a periodontally involved patient. Petitioner performed the periodontal exercise on his human patient. Petitioner's exercise was graded by three examiners, i.e., Examiners 131, 346, and 264. All three examiners participated in and successfully completed the standardization training, and it is inferred that they were considered qualified to act as examiners for the Examination. Petitioner's examination was double-blind graded. Each examiner independently graded Petitioner's examination. Examiner 131 found no errors and awarded Petitioner a grade of five (5). Examiner 346 found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). Examiner 264 also found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). The criteria for the Periodontal exercise mandates a grade of zero (0) where there is gross mutilation of gingival tissue.3 Consequently, Examiners 346 and 264 had no choice but to award Petitioner a grade of zero (0). After the grading, both graders who found gross mutilation of gingival tissue made written comments, regarding the tissue mutilation, on the Examiner-To-Monitor Instructions form. Examiner 264's comment was "Please have candidate place perio pak, area 26, 27, 28" and was not intended to be instructions to Petitioner but was directed to follow-up work or to attention that the human patient may need afterwards. The Examiner-To-Monitor Instructions form, with the written comments, was provided to the monitor who related the comments to Petitioner. The monitor did not allow Petitioner to view the written comments. The monitor informed Petitioner that further work needed to be done as to the human patient. The monitor indicated on the Examiner-To-Monitor Instructions form that Examiner 264's comment was related to Petitioner by the monitor writing "Candidate complied with" and writing and circling his assigned monitor number. The monitor writing "Candidate complied with" meant only that the monitor informed Petitioner that further work needed to be done, not that the Petitioner correctly performed the procedure. No evidence was presented that Petitioner sutured the human patient or that he placed a perio pak on the affected tissue of areas 26, 27, and 28. The evidence shows that the monitor only related to Petitioner that further work needed to be done without the monitor specifying what needed to be done. Moreover, the evidence shows that the monitor did not indicate that Petitioner had done what was requested of him. A candidate is not informed of his/her performance by the examiner because there is no contact between the examiner and the candidate. Additionally, such notification at the Examination site is not done because it is believed to have the effect of alarming the candidate and raising the candidate's anxiety level. The human patient was not informed that there was mutilation of soft tissue as a result of the periodontal exercise. Before an individual is accepted by the Department as a patient, the individual must complete and sign a "Patient Disclosure Statement and Express Assumption of Risk" form. This form, among other things, relieves the Department of any responsibility for poor work done by a candidate or for notifying the human patient of any poor work done by the candidate and places the responsibility on the human patient to have a licensed dentist check the work done by the candidate. The grading of Petitioner's Periodontal exercise is not arbitrary or capricious or an abuse of discretion. The grading process is not devoid of logic and reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order dismissing Rami Ghurani's examination challenge to the periodontal section of the clinical part of the dental licensure examination administered in December 1999. DONE AND ENTERED this 15th day of December, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2000.
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners 207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her reliance upon visual caries-detection preclude a finding of caries in this patient. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.
Recommendation It is RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License Examination and determining that he has passed this part of the dental examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact At all times material hereto, Respondent was a dentist authorized to practice dentistry in the State of Florida, with offices located at 7900 Red Road, Miami, Florida. In her practice, Respondent specialized in pedodontics and orthodontics. At various times during her practice, Respondent employed Annabelle Winnan, Sandra Novotney, Mary Ellen Pelaez and Tonya Fogg as dental assistants. Duties and responsibilities allegedly delegated by Respondent to these employees are the subject matter of the allegations contained in Count I of the Administrative Complaint filed herein. Annabelle Winnan was employed in Respondent's dental office from October 11, 1966 through January 1, 1969, and again from July 15, 1974 through July 1, 1977. During the terms of her employment, Ms. Winnan received on-the- job training from Respondent, and in September of 1974, Ms. Winnan attended a formal training course for expanded duties for dental auxiliaries at Lindsay Hopkins Technical Education Center in Miami, Florida. In September of 1974, Ms. Winnan received a certificate from Lindsay Hopkins certifying her to perform expanded duties as a dental auxiliary. However, at no time prior to or during the terms of her employment with Respondent did Ms. Winnan ever receive any formal education as a dental hygienist, nor was she ever certified or licensed as a dental hygienist in the State of Florida. The allegations in Count I of the Administrative Complaint dealing with duties performed by Ms. Winnan relate solely to her second term of employment with Respondent from July 15, 1974 through July 1, 1977. In the Administrative Complaint, Petitioner alleges that Ms. Winnan, at the direction of Respondent, routinely "scaled" and polished patients' teeth; took alginate impressions for both study models and appliances; was directed to place and adjust these applicances in patients' mouths; was directed to fit and cement orthodontic bands for patients and to recement loose bands, even in the absence of an emergency; and routinely took dental X-rays, including cephalostat, cephalogram, panorex, and regular X-rays. Ms. Winnan left Respondent's employ January 1, 1969, because Respondent closed her practice due to ill health. When Respondent reopened her practice in July of 1974, Ms. Winnan returned to work for her, and was, for a time, Respondent's only employee. During the period of time from July 15, 1974 through September, 1974, when Ms. Winnan obtained her expanded duties certificate, Ms. Winnan, at Respondent's direction, routinely took both panorex X-rays and bite-wing radiographs of Respondent's patients. (T. 440). In addition to taking the X-rays, Ms. Winnan would develop those X-rays and submit them to Respondent for reading. In addition, during the period between July, 1974, and September, 1974, when Ms. Winnan received her expanded duties certificate, at the direction of Respondent she cleaned and polished the clinical crowns of the teeth of many of Respondent's patients, for the purpose of removing stains and other foreign matter. In addition, during this period Ms. Winnan used a metal instrument known to her as a "scaler" in the course of her cleaning and polishing patients' teeth. Ms. Winnan's use of the "scaler" was limited to the clinical crown of the patient's teeth, or that area above the gum line of the tooth. It is unclear from the record whether Ms. Winnan's activities in this regard constituted "scaling", as that term is commonly used in the dental profession. It is, however, clear that she used the instrument frequently at Respondent's direction. Ms. Winnan's activities with respect to the taking of X-rays, and cleaning and polishing the teeth of Respondent's patients continued, in the fashion indicated above, from the time Ms. Winnan received her expanded duties certificate through the time she left Respondent's employ in July of 1977. It appears from the record in this proceeding that Ms. Winnan also took alginate impressions of the mouths of Respondent's patients for study and diagnostic models both before and after she received her expanded duties certificate in September of 1974. However, although Ms. Winnan also testified that she took alginate impressions from which "Hawley" appliances were made for Respondent's patients, she was unable to identify the names of any such patients, the dates the impressions were taken, or the circumstances surrounding the taking of the impressions. Further, there is no showing in the record in this proceeding that any casts taken by Ms. Winnan were used for the fabrication of a Hawley appliance or any other appliance designed to be worn in the human mouth. Significantly, there is no showing in the record of Respondent's office practice during this period concerning how the impression was handled after it was taken to corroborate Ms. Winnan's assertion that impressions taken by her were ultimately fabricated into appliances for Respondent's patients. In addition, although the evidence establishes that Ms. Winnan took impressions for mouth study casts of Respondent's patients prior to receiving her expanded duties certificate, there is insufficient evidence on which to base a finding that these impressions were taken without the direct supervision of Respondent, or that the Respondent did not examine the patient's mouth prior to and following the taking of the impressions. Count I of the Administrative Complaint also charges, in part, that Respondent directed Ms. Winnan " . . . to place and adjust . . . appliances in . . . patients' mouth[s] ." Although there is some testimony in the record to show that Ms. Winnan on occasion "placed" appliances in patients' mouths, there is no showing that the simple act of "placing" such an appliance requires any special expertise, nor is there any showing that the doctor was not present and directly supervising Ms. Winnan's activities in this regard. With regard to the alleged "adjustment" of appliances by Ms. Winnan, there is no testimony to indicate the nature of these alleged "adjustments", nor is there any testimony to show that Respondent was not present and supervising any such activity, even assuming that it did occur. Although Respondent did no major orthodontics work until some time during 1977, she did engage in some isolated orthodontic work during the time of Ms. Winnan's employment. This orthodontic work included the utilization of orthodontic bands to accomplish movement in patients' teeth. The process of installing bands on patients' teeth included "pre-sizing", or selecting the appropriate band size, "contouring" or festooning" the band to fit the contour of the tooth, placing cement in the band and, finally, placing the band on the tooth. The evidence establishes that during her second period of employment from 1974 through 1977, Ms. Winnan "pre-sized" orthodontic bands, at times when Respondent was in another room, placed cement in the bands, and placed the bands on the patients' teeth. After the bands were installed by Ms. Winnan, the Respondent would customarily check Ms. Winnan's work before discharging the patient. During a period in the months of June and July, 1977, Respondent took leave from her dental office to vacation in Spain. During Respondent's absence from her office, Ms. Winnan was assigned by Respondent to dispense orthodontic appliances to Respondent's patients, which appliances had earlier been prescribed by Respondent. In addition, Ms. Winnan was directed to dispense elastics for, use with orthodontic appliances to certain of Respondent's patients. However, during Respondent's absence from her office Ms. Winnan resigned her position with Respondent without having dispensed any orthodontic appliances or elastics. After Respondent returned from vacation and discovered that Ms. Winnan had resigned, Respondent filed a lawsuit against Ms. Winnan for breach of an alleged oral employment contract. This lawsuit was eventually resolved in favor of Ms. Winnan. However, Ms. Winnan testified that she would probably not have complained to the Board of Dentistry about Respondent's delegation of duties to her in the absence of the lawsuit. Sandra Novotney was employed in Respondent's dental office from October 10, 1976 through June, 1977; again during the months of August and September of 1977; and, finally, from December of 1978 through June of 1979. At various times Miss Novotney's duties included both secretarial work and chair- side assistance to Respondent. Miss Novotney has never received any formal training as either a dental hygienist or dental auxiliary, either prior to or during the time of her employment with Respondent, nor has she ever received licensure or certification as a dental hygienist or a dental auxiliary. Count I of the Administrative Complaint, in part, charges that while Ms. Novotney was employed with Respondent, Respondent directed her to " . . . routinely [take] impressions for both study casts and appliances that were used for patients . . ." and " . . . routinely [adjust] and [fit] orthodontic bands for patients, and [place] arch wires on patients." During her second period of employment with Respondent, Ms. Novotney took alginate impressions of the mouths of certain of Respondent's patients. In her testimony at the final hearing Ms. Novotney was unable to recall the names of any patients from whom she took impressions or the dates that those impressions were taken. It appears from the record that orthodontic appliances made from impressions taken of Respondent's patients' mouths were not fabricated in Respondent's office, but that impressions were mailed to a laboratory for fabrication of appliances. Accordingly, absent a demonstrated knowledge of the office procedures concerning the handling of these impressions once taken, it would be difficult, if not impossible, to determine the purpose for which these impressions were used. In this connection, Ms. Novotney gave no testimony concerning the handling of the impressions taken by her after they were removed from the mouths of the patients, instead flatly stating that the impressions were used for the fabrication of appliances. Given Ms. Novotney's testimony, which was uncorroborated by any other evidence and was denied by Respondent, there is insufficient evidence in the record in this proceeding upon which to base a conclusion that any impressions taken by Ms. Novotney were used to fabricate appliances to be worn in the human mouth. In addition, Ms. Novotney's testimony concerning the taking of impressions failed to establish that impressions taken for study casts were taken without the direct supervision of Respondent, or that the Respondent did not examine the patient's mouth prior to and following the taking of the impressions. During her third period of employment with Respondent, Respondent would, on occasion, allow Ms. Novotney to "pre-size" orthodontic bands by placing them on a patient's tooth. In addition, Ms. Novotney, at Respondent's direction, cemented orthodontic bands on a patient's tooth by placing the band on the tooth and having the patient bite down on a flat instrument in order to correctly seat the band. Ms. Novotney accomplished this procedure only with Respondent's presence in the office, although Respondent would, on occasion, not be physically present in the operatory when Ms. Novotney was actually cementing the band. However, Respondent routinely checked the patients on whom Ms. Novotney cemented bands before the patient was discharged. Although it is alleged in the Administrative Complaint that Ms. Novotney routinely "adjusted" orthodontic bands at Respondent's direction, it is clear from the testimony in this proceeding that Ms. Novotney never made any adjustment to orthodontic bands. Orthodontic bands are often connected by arch wires in order to provide the torque necessary to achieve the desired tooth movement. After bands are placed on a patient's teeth, an arch wire must be pre-sized and cut to fit the patient's mouth, and then must be threaded through brackets located on the orthodontic bands and finally secured. It appears from the evidence in this proceeding that Ms. Novotney, at Respondent's direction, placed arch wires in patients' mouths and secured them in place by putting an elastic band around the arch wire and around the orthodontic band cemented to the tooth. Ms. Novotney's duties with respect to placing and securing arch wires occurred during her third period of employment with Respondent. In addition to her other duties outlined above, it also appears from the record that Ms. Novotney polished or cleaned the clinical crowns of patients' teeth, and polished at least one amalgam restoration during her employment by Respondent. Respondent was not, however, charged in the Administrative Complaint with allowing Miss Novotney to perform these procedures, and no action will, therefore, be recommended against Respondent in this Recommended Order in connection with this activity. Mary Ellen Pelaez was employed in Respondent's dental office from August of 1977 through March of 1979. During her employment with Respondent, Ms. Pelaez attended the expanded duties course at Lindsay Hopkins Technical Education Center. Ms. Pelaez received her extended duties certificate from Lindsay Hopkins in August of 1978. At no time material hereto was Ms. Pelaez ever licensed or certified as a dental hygienist in the State of Florida. In the Administrative Complaint, Petitioner charges that Ms. Pelaez, while not under the direct supervision of Respondent, ". . . routinely took impressions for study casts and appliances; polished, cleaned, and scaled teeth; selected, pre-sized, and cemented-orthodontic bands." During the time she was employed by Respondent, Ms. Pelaez, at Respondent's direction, took alginate impressions of Respondent's patients' mouths for the purpose of making study casts, retainers and appliances. Ms. Pelaez would pour the impressions, cut them down, and Respondent would mark the impression for fabrication of an appliance or a retainer, and the impression would then be mailed to a laboratory for fabrication. After Ms. Pelaez had taken the impression, and after Respondent had marked it appropriately, a note would be placed with the impression indicating whether Respondent wished a retainer or an appliance made for the patient from the impression. During the time she was employed by Respondent, Ms. Pelaez both before and after she received her expanded duties certificate, cleaned and polished the clinical crowns of the teeth of many of Respondent's patients for the purpose of removing stains and other foreign matter. To accomplish this task, Ms. Pelaez used an electronically-run instrument and applied pumice paste to the teeth with a rubber cup. In addition, Ms. Pelaez used an instrument known to her as a "scaler", to assist in removing foreign matter from patients' teeth. Respondent often would not be in the operatory with Ms. Pelaez and the patient while the cleaning and polishing of the patient's teeth was occurring, but Respondent would, in most instances, check the patient's mouth after the procedure was performed by Ms. Pelaez. At some point after she received her expanded duties certificate, Ms. Pelaez advised Respondent that she felt that she could not legally continue to "scale" teeth. Respondent replied that as long as Ms. Pelaez was working for her she would do as she was instructed. In addition to the aforementioned duties, during her employment with Respondent, both before and after she received her expanded duties certificate, Ms. Pelaez, at the direction of Respondent, selected, pre-sized, and cemented orthodontic bands on the teeth of many of Respondent's patients. In many cases, while Ms. Pelaez was selecting and cementing these orthodontic bands, Respondent was not physically present in the operatory with her to directly supervise these activities. However, it appears from the evidence, that Respondent routinely examined these patients after the bands were cemented by Ms. Pelaez. Ms. Pelaez was discharged by Respondent in March of 1979. Ms. Pelaez filed a claim for unemployment compensation, which claim was contested by Respondent, who claimed that Ms. Pelaez was fired for "insubordination." The unemployment compensation claim was apparently resolved in favor of Ms. Pelaez. Tonya Fogg was employed in Respondent's office from January 2, 1979 through October 31, 1979. At no time, either prior to or during her employment with Respondent, did Ms. Fogg receive any formal training either as a dental auxiliary or a dental hygienist, nor was she ever licensed or certified as a dental auxiliary or a dental hygienist in the State of Florida. Count I of the Administrative Complaint charges, in part, that Ms. Fogg, at Respondent's direction, ". . . routinely took impressions for study casts and appliances, selected, pre-sized, and inserted orthodontic bands; and adjusted and placed arch wires . . ." The evidence in this proceeding establishes that, during the period of her employment in Respondent's office, Ms. Fogg, at Respondent's direction, took alginate impressions of the teeth of many of Respondent's patients for the purpose of making study models and for the fabrication of retainers or positioners. After Ms. Fogg took these impressions, she would place them in a box for mailing to a laboratory for fabrication, and was directed by Respondent to write a prescription for inclusion with the impression asking that either a retainer or positioner be prepared by the laboratory. Ms. Fogg was also on numerous occasions directed by Respondent to select, contour and cement orthodontic bands on the teeth of many of Respondent's patients. Respondent had instructed Ms. Fogg and other dental assistants employed in her office in the use of a "Mizzy stone," a heatless stone used to contour or "festoon" orthodontic bands to fit a patient's tooth. Procedures of this nature performed by Ms. Fogg were often accomplished without the presence of Respondent in the operatory. In addition, Ms. Fogg, and other dental assistants employed in Respondent's office, selected, pre-sized, installed and removed arch wires used in the mouths of some of Respondent's patients. These procedures were performed by Ms. Fogg at Respondent's direction, and included making the proper determination as to arch form and symmetry, and the performance of final adjustments on the arch wire. Ms. Fogg is apparently a close personal friend of Ms. Pelaez. As indicated above, Ms. Pelaez filed an unemployment compensation claim after she was discharged from Respondent's employ Ms. Fogg resigned from her position with Respondent on October 31, 1979, and the next day appeared as a witness on behalf of Ms. Pelaez at a hearing on Ms. Pelaez' unemployment compensation claim. In Count II of the Administrative Complaint, Respondent is charged with various types of physical mistreatment of the following patients: John (last name and age unspecified); Jeff Heggins (age 4); Craig Beggins (age 10); Edwin Rivera (age 3-1/2); Shana Hornwhite (age unspecified) Terry Ruiz (age unspecified) ; Eric Lumkin (age unspecified); Gregory Roberts (age 7); Catherine Gruber (age 12); and Gary Andrews (age unspecified). The incidents involving these patients are alleged to have occurred during a period from "approximately" October of 1976 through October of 1979. At all times material hereto, Respondent's cumary office practice was to have parents of her children patients wait in the office reception area while procedures were performed on the patients in an operatory separated from the reception area by a locked door. As a result, the only potential eye witnesses to most instances of alleged physical mistreatment of patients were the patients themselves, Respondent's dental assistants, and the Respondent. None of the patients who were allegedly mistreated by Respondent were called as witnesses. Respondent categorically denied having in any way mistreated the patients as alleged in the Administrative Complaint, instead contending that the most that had ever occurred was the use of "behavioral management" techniques commonly recognized in the dental profession. However, Ms. Winnan, Ms. Pelaez and Ms. Fogg each testified that they had personally observed various of the alleged incidents of physical mistreatment. Ms. Winnan testified that at some time between June of 1976 and July of 1977, during the course of Respondent's treatment of a patient named "John", whose last name Ms. Winnan could not remember, the child began to cry. In an effort too stop the child from crying, Ms. Winnan testified that Respondent placed her hand over the child's nose and mouth until he stopped crying, but that when Respondent removed her hand, the child again began to cry, whereupon Respondent slapped him across the face. When the child still persisted in crying, Ms. Winnan testified that Respondent stuck her finger down the child's throat and that when Respondent removed her finger it was covered with blood. Ms. Winnan did not report this incident to the parents of the child, nor to the Board of Dentistry until two to three years after it had occurred. Respondent denies that the incident ever occurred and, given Ms. Winnan's inability to more fully identify the child or the date on which the incident is alleged to have occurred, it is hard to conceive how Respondent could do much more than that to defend against these allegations. Although Ms. Winnan's testimony regarding this incident is not incredible, it is no more credible than Respondent's denial of the incident. Accordingly, there is insufficient evidence in the record of this proceeding on which to base a finding of fact that the incident occurred as alleged. On December 1, 1978, Respondent was treating a patient named Jeffrey Beggins. In the course of her treatment of this patient, Respondent slapped Jeffrey Beggins' face with sufficient force to leave a reddened handprint. The reason or reasons for Respondent having slapped the child are not clear from the record. This incident was witnessed by Ms. Pelaez. On the same day that this incident occurred, Respondent advised Ms. Pelaez that Respondent had received a call from Jeffrey Beggins' mother complaining about the slapping incident. Respondent advised Ms. Pelaez that the child's mother had been invited to come to the office for a conference, and that when the child's mother came into the office, Ms. Pelaez should advise the mother that the slapping incident had never occurred. The child's mother did not keep the office conference with Respondent, but did not return her children to Respondent for treatment thereafter. Mrs. Beggins' testimony at the final hearing in this cause regarding her telephone conversation with Respondent is consistent with Respondent's recollection of the subject matter discussed between them. There is insufficient credible evidence in the record in this proceeding to establish that Respondent physically mistreated or abused Craig Beggins, Shana Hornwhite, Terry Ruiz, Eric Lumkin, Catherine Gruber or Gary Andrews. There was no testimony elicited at the final hearing in this cause concerning the allegations in Count II of the Administrative Complaint with respect to mistreatment or abuse of patients Edwin Riviera or Gregory Roberts. Respondent possesses an extraordinary record of academic accomplishment in the field of dentistry. In addition, she enjoys a very good reputation in both the medical and dental communities in Dade County, Florida. There were numerous and profound conflicts in the testimony of several of the witnesses testifying in this proceeding. In attempting to resolve these conflicts, the Hearing Officer took into account the appearance, demeanor and manner of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, and the consistency of their testimony with the testimony of other witnesses regarding the facts at issue herein. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that these proposed findings of fact have not been incorporated in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as being irrelevant to the issues decided herein.
The Issue As to Case No. 89-5273, whether Respondent committed the offenses set forth in the Amended Administrative Complaint dated December 28, 1989, and, if so, the penalties that should be imposed. As to Case No. 89-6492, whether Respondent committed the offenses set forth in the Administrative Complaint dated October 31, 1989, and, if so, the penalties that should be imposed. As to Case No. 90-5801, whether Respondent committed the offenses set forth in the Administrative Complaint dated January 18, 1990, and, if so, the penalties that should be imposed. As to Case No. 90-5802, whether Respondent committed the offenses set forth in the Administrative Complaint dated March 9, 1990, and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent, Michael Albert, was engaged in the general practice of dentistry in the State of Florida. Respondent is the holder of license number DN0009815, which was issued by Petitioner and which authorizes him to engage in the practice of dentistry in the State of Florida. His office, known as "9 to 9 Family Dental Centre" 1/ , was located at 7015 Beracasa Way, Boca Raton, Florida 33433. CASE NO. 89-5273 - PATIENT S.D. Patient S.D. is a female who was born November 6, 1950. S.D. went to Respondent for the first time in May 1987, for a general examination and cleaning. S.D. had her four front upper teeth (teeth 7, 8, 9, and 10) capped when she was between 12 and 14 years of age. The cap on one of those teeth had been chipped and had begun to flake, and S.D. wanted that crown replaced. Respondent recommended to S.D. that she have those four caps replaced to maintain a match- up in color and also recommended that she have three other teeth (teeth 12, 14, and 31) capped because those teeth had open margins. S.D. knew that Respondent's recommendation to have teeth 7, 8, 9, and 10 recapped was based solely on aesthetic considerations. S.D. concurred with the recommendations as to teeth 7, 8, 9, and 10, and S.D. agreed to allow Respondent to perform the work that he had recommended on those teeth as well as the recommendations he made as to teeth 12, 14, and 31. Respondent took x-rays of S.D. and ultimately capped the seven teeth he had identified. S.D. was uncertain as to the order in which Respondent performed this work. Respondent's records reflect that S.D. visited Respondent on May 13, 1987, and on May 21, 1987, and that during those visits the Respondent capped teeth 7, 8, 14, and 31. Respondent's records further reflect that S.D. visited Respondent on May 28, 1987, and on June 15, 1987, and that during those visits the Respondent capped teeth 9, 10, and 12. S.D. had no complaints about the work performed by Respondent until she began to develop pain in a tooth that Respondent had capped. She returned to Respondent who replaced the crown on that tooth. The pain that S.D. had experienced went away after the crown was replaced, but S.D. had lost confidence in Respondent. Consequently, S.D. went to another dentist when it was time for her six month checkup. S.D. visited Dr. Clare Garner on March 28, 1988. Dr. Garner was of the opinion that S.D. needed a root canal and a new crown on tooth 31, that she needed a new post and core on tooth 7, and that she needed a root canal on tooth S.D. did not return to Dr. Garner for follow-up care. S.D. visited Dr. Michael Flax for the first time on April 4, 1988. During subsequent visits in April and May of 1988, Dr. Flax performed root canal therapy on teeth 7 and 31. S.D. later experienced pain in tooth 10. Dr. Flax performed an apicalectomy on tooth 10 and determined that tooth 10 had a fracture at the apex which he believed was caused by an oversized post being placed inside of the tooth. Dr. Flax did not know who placed the post. S.D.'s last visit with Dr. Flax was on September 8, 1988. Dr. Flax recommended a general dentist to "take care of her crowns". 2/ There was no competent, substantial evidence that the initial crowns done by Respondent had any open margins. Respondent used a panorex x-ray together with bite-wing x-rays in performing his work on S.D. There are some areas that one can see on a periapical x-ray that one cannot see on a panorex x-ray. Likewise, there are areas that one can see on a panorex x-ray that one cannot see on a periapical x- ray. There was dispute among the experts as to whether Respondent should have also used a periapical x-ray in performing his work on S.D. Petitioner's experts clearly preferred to use periapical x-rays. The greater weight of the evidence, however, is that a panorex x-ray can provide sufficient detail when used with the bite-wing x-rays. There was no evidence that the original panorex x-ray upon which Respondent based his diagnosis had insufficient detail. The record failed to establish by clear and convincing evidence that Respondent's use of the panorex x-rays and the bite-wing x-rays fell below minimum standards of care. Dr. Flax testified that Tooth #7 should have been pulp tested for vitality before any further prosthetics were placed onto the tooth. However, he did not testify that the failure to pulp test Tooth #7 for vitality fell below minimum standards. Dr. Flax also testified that another tooth (which was not identified by number) should have been retreated with a root canal before a crown was placed on top of it. Dr. Flax did not testify that the failure to perform this root canal prior to placing the crown fell below minimum standards. Dr. Flax also testified that there was a crack in the apex of tooth #10 due to an incorrectly placed or incorrectly sized post within the tooth. He did not testify that the placing of the post fell below minimum standards and he did not know whether Respondent placed the post. Symptomatic periapical abscesses can develop at any time. The record fails to establish by clear and convincing evidence that there was a periapical abscess that existed at the time Respondent treated S.D. or that the failure to either treat or diagnosis any abscess was below acceptable standards of care. The record fails to establish by clear and convincing evidence that the root canals performed by Dr. Flax were necessary because of substandard treatment by Respondent. There was no testimony that the records maintained by Respondent were inadequate. CASE NO. 89-6492 - PATIENT E.M. E.M. is a female who 73 years of age when she first visited Respondent on April 14, 1988. The initial visit was prompted by pain from an abscess. Respondent performed root canal therapy on E.M.'s teeth 18 and 26. Between April 14, 1988, and October 5, 1988, Respondent fitted E.M. with a complete denture on her upper arch and with a bridge on her lower. The upper denture placed by Respondent did not fit correctly. On a subsequent visit, Respondent did a chair side reline of E.M.'s upper denture. There was disagreement among the expert witnesses as to whether the chair side reline was appropriate since E.M. was an edentulous patient. This conflict is resolved by finding that the chair side reline performed by Respondent did not fall below minimum standards of care. There was a substantial and significant personality disagreement between E.M. and Respondent and his staff. E.M. was unhappy with the services performed by Respondent and complained that the upper plate did not fit correctly even after the chair reline. As a result of this disagreement, E.M. refused to return to Respondent for follow-up care to adjust her dentures. Although there was testimony that Respondent should have been able to better fit E.M.'s upper denture initially, the greater weight of the evidence and the more persuasive expert testimony is that follow-up care is important for the proper fitting of dentures. Dentures have to be adjusted on the average eight times before the fit is proper and the normal break-in period for dentures is between two and six months. E.M.'s refusal to submit to follow-up treatment contributed in large part to the dissatisfaction she had with the dentures fitted by Respondent. Although E.M. complained of pain, she had not seen any dentist for over two years. At the time she was examined by Dr. Martin Staub, Petitioner's expert, on February 17, 1989, she was still able to wear the dentures that Respondent had prepared for her. Dr. Staub found that the denture adaptation was poor in the post-dam area causing the denture to slip and to have insufficient suction. Dr. Staub found that the denture finish was rough and inconsistent due to excess pieces from the reline adhering to the buccal portion of the denture and being too thick in the palatal area. Despite these findings, Dr. Staub testified that he considered Respondent's performance as a dentist had fallen below minimum standards of care only in that he should have been more patient with E.M. and that he should have been more caring and compassionate. 3/ Dr. Staub's report reflected a finding that there were open margins on teeth 19, 27, and 31. During his cross examination, he admitted that the tooth he reported as being tooth 27 could have been another tooth since Respondent's records reflect that tooth 27 had been extracted. Consequently, there would not have been a margin on tooth 27. Respondent placed the crowns on E.M.'s teeth 19 and 31 with temporary cement because Respondent anticipated that she would require periodontal treatment due to her poor oral hygiene. There was a dispute among the expert witnesses as to whether the margins that Dr. Staub observed were caused by substandard treatment by Respondent. This conflict is resolved by finding that the evidence fails to clearly and convincingly establish that these margins were the result of substandard care by Respondent. These margins could have resulted from causes that should not be attributed to Respondent. For example, there was testimony that the margins could have resulted from the temporary cement washing out or by natural changes in E.M.'s mouth. Petitioner failed to establish that the dental care and treatment rendered E.M. by Respondent fell below minimum standards of care. CASE NO. 90-5801 - PATIENT H.F. H.F. is a female who was born April 6, 1970. H.F. resided in Atlanta, Georgia, at the time of the formal hearing, but she resided in Boca Raton, Florida, with her family when Respondent examined her. H.F. was examined for the first time by Respondent on August 20, 1987. On August 2, 1988, H.F. returned to Respondent for a checkup and cleaning. Respondent diagnosed cavities in H.F.'s teeth numbers 3, 14, 15, 18, 20, 29, and 31, and presented H.F. with a treatment plan requiring all seven teeth to be filled and called for amalgam restorations. In making his diagnosis, Respondent took x-rays of her teeth, visually inspected her mouth, and probed her teeth with the use of an explorer. H.F. did not return to Respondent to have her teeth filled. On August 19, 1988, H.F. went to Dr. Anders K. Finnvold, her mother's dentist, for a second opinion. Dr. Finnvold conducted a thorough examination of H.F. Dr. Finnvold examined a copy of the x-rays that Respondent had taken of H.F., visually inspected her mouth and probed her teeth with the use of an explorer. Dr. Finnvold found no cavities. On October 12, 1989, Dr. Finnvold examined H.F. for the second time and again found no cavities. On August 2 or 3, 1990, Dr. George C. Karr, one of Petitioner's expert witnesses, examined H.F. and found clinical decay on teeth numbers 2, 3, 14, 15, and 18. Dr. Karr did not find any cavity on H.F.'s teeth numbers 20, 29, and Dr. Karr considered H.F. to have poor oral hygiene. Dr. Karr was of the opinion that Respondent had misrepresented H.F.'s condition and that his treatment plan was over-zealous and below minimum standards. A caries is a technical term for a cavity or a hole in the tooth and results from acid dissolution of the enamel and/or dentin structure of a tooth. Poor oral hygiene contributes to the development of caries. H.F. had poor oral hygiene. A caries may be diagnosed by use of an x-ray, by visually inspecting the mouth, by probing the teeth with an explorer, or by a combination of those diagnostic means. In diagnosing caries by use of an explorer, the dentist is making an educated assumption based on the resistance the dentist feels in probing a pit or fissure. In making this educated assumption, the dentist should consider the patient's oral hygiene and the patient's susceptibility to developing cavities. A catch or resistance when using an explorer indicates that either a fissure has become carious or has the probability of becoming carious. If a sharp explorer is used and it hangs on the teeth, that is indicative that there is either decay present or a situation of pre-decay. It is within acceptable standards of care to recommend filling those areas. The evidence was clear that the detection of cavities by use of an explorer is a difficult task, and that legitimate differences of opinion can occur. The disagreements between Respondent, Dr. Finnvold, and Dr. Karr illustrate that difficulty. Respondent used a sharp explorer to examine H.F.'s teeth. The explorer grabbed or stuck on teeth 3, 14, 15, 18, 20, 29, and 31, and he believed that each of those teeth should be treated in the manner he recommended. It is dentally improper to deliberately misrepresent the existence of decay and the need for treatment. However, the fact that Respondent was of the opinion that there existed cavities that Dr. Finnvold and Dr. Karr did not detect does not establish, clearly and convincingly, that Respondent deliberately misrepresented H.F.'s condition or that he failed to practice within acceptable standards of care. CASE NO. 90-5802 - PATIENT L.M. During the summer of 1987, L.M. presented to the Respondent for routine dental care. This was L.M.'s initial visit. Respondent examined L.M., took x-rays, and then advised L.M. that he suspected that she had a little problem with her gums. Respondent directed her to Dr. Rosa, 4/ a periodontist who worked in the same dental office as Respondent. Respondent advised Dr. Rosa that he felt that L.M. had a problem with her gums and asked Dr. Rosa to examine her. Dr. Rosa diagnosed periodontal breakdown and recommended an extensive treatment plan for L.M., which included root planing, dental wedge procedures, and osseous surgery. The estimate for the work to be performed was given to L.M. on a form which reflected that it was from "9 to 9 Dental Centre". Although it was established that "9 to 9 Dental Centre" was the name of the dental office in which Respondent practiced, and that L.M. associated that name with that of Respondent, there was no showing as to how or why Respondent should be held responsible for acts of Dr. Rosa. The evidence clearly establishes that Respondent was not acting below accepted standards merely in recommending that a periodontist with whom he worked examine a patient he thought may have a periodontal problem. The record does not establish that Respondent misrepresented L.M.'s condition when he asked Dr. Rosa to examine her. Petitioner's experts who later examined L.M. established that L.M. did not have periodontal problems that would justify the recommended treatment plan proposed by Dr. Rosa.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses all charges brought against Respondent in Case No. 89-5273, which dismisses all charges brought against Respondent in Case No. 89-6492, which dismisses all charges brought against Respondent in Case No. 90-5801, and which dismisses all charges brought against Respondent in Case No. 90-5802. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November, 1991. CLAUDE B. ARRINGTON 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 27th day of November, 1991.
Findings Of Fact The Board had charged the Petitioner, Dr. Jules Klein, with violations of Sections 466.27(2) and 466.24(3)(g)(k) and (m), Florida Statutes. Dr. Alvin H. Savage was called by the Board to testify that he had seen Dr. Klein in the early spring of 1974. At that time Dr. Savage mentioned to Dr. Klein a sign on the side of the building in which Dr. Klein maintained his professional office. Dr. Savage identified Exhibits 1, 2, and 3 as photographs of said building and the signs at the building as they existed at the time. Dr. Savage testified that the sign bearing Dr. Klein's name was not objectionable and that he had received no complaints regarding said sign. Dr. Savage testified that he had received complaints about the sign as it existed on Dr. Klein's building at that time. The wording of that sign was "Longwood Dental Arts Center". Dr. Savage, on cross-examination, testified that Dr. Klein had invited him to his office to discuss Dr. Klein's status in the local professional association. During their discussion Dr. Savage testified that he had suggested to Dr. Klein that as Jews the community probably held them to a higher standard than other members of their profession, and that Dr. Klein should attempt to avoid even the appearance of anything questionable. Although it was suggested that Dr. Savage's comment was evidence of antisemitic discrimination, in the context of discussion as revealed by both Dr. Savage's and Dr. Klein's testimony, it would appear general advice from an older professional man who had practiced in the community for some time to a younger colleague. During this visit Dr. Savage raised the question of the sign on Dr. Klein's building and was advised by Dr. Klein that he would see the landlord of the building about altering the sign. Thereafter, Dr. Savage testified that the sign was changed, and identified Exhibit 5 and 6 as photographs of the building in which Dr. Klein's professional office was located and the amended sign which read, "Longwood Dental Bldg." Dr. Savage testified that he had received only two complaints regarding the amended sign during the preceding year and that one of the two complaints had been received shortly before the date of final hearing. On cross-examination, Dr. Savage opined that Dr. Klein's sign violated the statute by calling attention to the practice of dentistry by an individual, indicating further that if more than one dentist were practicing at Dr. Klein's office that it would not, in his opinion, be in violation of the statute. Dr. Savage based his opinion upon the Code of Ethics of the Florida Dental Association, Bearing Officer's Exhibit 10. Mr. John F. Plumb testified that he had taken the photographs introduced as Exhibits 5 and 6 on the morning of the hearing. He further testified that he visited Dr. Klein's office on March 12, 1975, April 29, 1975, and July 28, 1975. On both the March and April visits he had spoken with Dr. Klein and had found him very cooperative, although quite concerned about why his sign was an apparent violation while some of the signs in the locality, one of which was immediately across the street from his office, were not in violation. Mr. Plumb testified that he had discussed with Dr. Klein the provisions of Section 466.27(2), Florida Statutes, and the sign's apparent violation of its provisions. Mr. Plumb testified that during the March 12, 1975 visit with Dr. Klein that Dr. Klein indicated that he would modify the sign; however, during the April 29, 1975 visit, Dr. Klein indicated that he would not alter the sign on the advice of his attorney. Dr. Klein then testified in his own behalf. Dr. Klein testified that the sign, "Longwood Dental Arts Center" had been chosen originally because patients had indicated that they could not find his office. Dr. Klein testified that he had become truly concerned about the ability of persons to find his offices when dental supply salesmen reported difficulty in finding his offices. At that time Dr. Klein was practicing with his brother-in-law, Dr. Guy. Dr. Klein testified that having determined the need for a sign on the building, that he looked at the building signs on other buildings in the vicinity. Together with Dr. Guy, he determined that the building be named "Longwood Dental Arts Center" because he and Dr. Guy eventually intended to have am orthodontist in association with then. On cross- examination Dr. Klein testified that "medical arts" was not used because they had had no intention of having doctors of medicine practice there. Dr. Klein testified that he then contacted a sign maker who had dome other similar signs, who suggested the layout and size of the sign used on the building. Dr. Klein testified that after Dr. Savage's visit that he had received a visit from Dr. Franklin. Dr. Klein testified that he had the impression that the removal of the words "Arts Center" would eliminate the objection to the sign, and the sign was so modified. After the sign was changed, Dr. Klein testified that he was again contacted but that he had been unable to determine what was acceptable wording for the sign. He testified that in am effort to obtain guidance as to what was "professionally" acceptable he had contacted the American Dental Association and received a copy of their ethic advisory opinions. See Exhibit 16. This exhibit provides: "1. A building may be identified as the '...Dental Building,' except that the full name of the building cannot include the name of a participating dentist. The mane selected should not imply the practice of superior or more artful dentistry, imply any connection with any institutional or governmental unit or organization, or imply or specify the practice of any special area of dentistry. The full name selected shall be limited to the function of helping the patient locate the building. 2. A component society may determine community custom to prohibit dentists from using floodlights to draw attention to their nameplates on the outside of their private practice facilities. Component societies should be aware, futhermore, that the state dental practice acts ordinarily establish regulations on the use of office door lettering and signs." The Florida Dental Association rules would also allow the use of "Dental Building", but only where two or more dentists practice within the professional building. The basis for this distinction was explained by Dr. Savage, who stated that the provisions of Subsection k of Section 466.24(3) relating to".. calling the attention of the public to any person engaged in the practice of dentistry..." were not violated if two or more persons practiced in a building identified as a "Dental Building."
Findings Of Fact Dade Dental Laboratories was opened in 1973-74 by a nonprofit corporation which leased dental facilities contiguous and internally connected thereto to dentists. One of the original organizers of the laboratory, Samuel Kushner, was a laboratory technician who had so worked in New York for many years. Respondent was employed on a salary (hourly) basis in 1978 to work as a dentist at the dental facility located at 1225 Washington Avenue, Miami Beach, Florida and known as Dade Dental Associates (hereinafter referred to as Dade Dental). At this time, Dade Dental Laboratories was owned by the wives of Samuel Kushner and Frank Schiller. Schiller was employed as office administrator. Dade Dental Laboratories owned the lease of the premises and equipment located therein. In 1978, the dental office spaces were leased to Frederick Stang, D.D.S., who employed Respondent and other dentists on a salary basis. Effective 1 July 1979, Respondent's wife purchased the fifty percent interest in the laboratory previously owned by Mrs. Kushner and the sub1ease of the dental offices was given to Respondent. Stang continued as an employee of Respondent until September 1979. Frank Schiller spoke Yiddish and was often used as a translator for some of the older Jewish clients who came to Dade Dental. After the sublease was given to Respondent, Schiller continued as administrator until September 1979. The ownership of the fifty percent interest in the laboratory owned by Mrs. Schiller, if not still held by Mrs. Schiller, was not shown. Inspections of the premises at 1225 Washington Avenue were conducted in August, September and October 1979 and again in January 1980. The inspection conducted by the Department of Health and Rehabilitative Services on September 24, 1979 revealed X-ray equipment that was defective by reason of not being properly shielded and having a timer operating erratically (Exhibits 4 and 5); the inspections conducted September 6 and 13 revealed old equipment, improper sterilization of instruments, a very dirty laboratory, dirty impression trays, bite blocks with teeth marks indicating prior use, rusted instruments where chrome had chipped off the underlying steel, no sterile sutures, and a cold dry-heat sterilizer. Following these inspections, Respondent ordered a new X-ray machine and new instruments. No evidence was presented that the rusty instruments found in the dental operatories were ever used on a patient. Respondent's testimony, which was not rebutted, was that he didn't like the instruments located in the operatories when he started working there and he brought his own instruments which he used. The charges of allowing unauthorized persons to perform acts constituting the practice of dentistry, malpractice, misconduct in business or personal affairs of a nature to bring the dental profession into disrepute, and failing to exercise proper care in the treatment of patients involved Joseph Cedar and Hilda Hirschman. After receiving a high estimate of the cost for needed dental work from his dentist, Joseph Cedar, at the recommendation of a friend, went to Dade Dental for a second estimate. He first saw Frank Schiller, who took Cedar to Seymour Rickles, D.D.S., one of the dentists employed at the facility. Cedar described Schiller as the "boss" who gave orders and who looked into his mouth. No evidence was presented that Schiller ever put his hands or any instrument in Cedar's mouth while Cedar was being treated by Respondent or any other dentist at Dade Dental. After examination and impression, Rickles prepared crowns and a partial denture. Although Cedar testified that Rickles performed all the work done on him, the dental record (Exhibit 14) shows 5 dentists worked on Cedar at this office. However, most of the work appears to have been done by Rickles and Stang. After the work on Cedar had been completed, he complained of pain from the partial dentures which had been prepared for him and was referred to Respondent, who first saw Cedar on June 28, 1979 when he adjusted the partial plates. Exhibit 14 indicates Respondent again saw Cedar on July 3, 19, 24, 25 and August 7 for adjustments. Cedar testified he told Respondent about a sore spot near the partial denture on the upper left side of his mouth but Respondent only told him it was not caused by the dentures. Respondent's version was that he X-rayed the lower right side of Cedars' mouth where the partial had been fitted and found an abscess which could cause the pain described by Cedar, and that Cedar never complained of soreness in the upper left area of his mouth. On August 15 or 16, 1979 Cedar went to the dental clinic at Mount Sinai Medical Center complaining of a soreness in the upper left area of his mouth. He was examined by several dentists because the affected area looked suspicious, and a biopsy was done. This showed the lesion to be squalus cell carcinoma, which was subsequently excised. The lesion removed from Cedar's mouth was well-differentiated in mid- August when he was seen at Mt. Sinai. It is unlikely that a well-differentiated lesion will develop in a week to ten days, but could develop in a period of two or more weeks. A competent dentist should recognize a well-differentiated lesion and refer the patient to an oral surgeon. Failure to do so constitutes practice below minimum accepted community standards. Respondent has referred other patients to oral surgeons when suspicious conditions were observed in patients' mouths. (Exhibit 18). Hilda Hirschman first visited Dade Dental in December 1978 and was referred to Respondent. She had several teeth extracted by Respondent, partial dentures made and two crowns installed. Mrs. Hirschman testified that Schiller escorted her into Respondent's office on her first visit and wrote down and quoted to her prices for work as he and Grebin talked. She thought Schiller was the head dentist. She also testified that one time Schiller ground down one of her teeth. When told periodontal treatment was indicated, Mrs. Hirschman told Respondent she did not want root canals done. After her teeth had been extracted and partials made, the partials were inserted by Respondent, but neither of the partials fit. The upper was adjusted to fit and a second impression was taken for the lower. Mrs. Hirschman was later examined by Dr. Leonard Sakris at the request of the Dental Board. From his study of the X-rays taken in November 1978 and August 1979 and his examination of the patient, Dr. Sakris opined that the teeth extracted by Respondent could have been saved if root canal therapy had been used and crowns installed. This examination also revealed the condition of Mrs. Hirschman's mouth to be bad, with two ill-fitting partial dentures and restoration placed over decay. The conclusion this decay existed when Respondent treated Mrs. Hirschman was reached from the X-rays. On cross- examination, Dr. Sakris acknowledged that decay was not always discernible on X- rays and could be misdiagnosed absent a visual examination and probe by the dentist. Dr. Sakris' examination did not confirm Mrs. Hirschman's testimony that Schiller had ground down her tooth. He found no evidence of grinding, except possibly on Lower Left Canine 3. This is also the tooth with decay found on Sakris' examination. The crown on Lower Right 5 placed by Respondent had a bad margin and decay when Mrs. Hirschman was examined by Sakris. Unless margin of crown makes solid contact with tooth, decay can occur. It is below acceptable minimum standards to leave open margins between crown and tooth. Respondent's testimony that he suggested Mrs. Hirschman go to a periodontist for root canal treatment and she refused is corroborated by Mrs. Hirschman's testimony that she didn't want the expense of root canals. Without periodontal treatment for Mrs. Hirschman's dental condition, extraction is the standard practice. Respondent's testimony that both he and Stang worked on Mrs. Hirschman is supported by Exhibit 13 and lends credence to his testimony that he did not prepare the crowns he installed on this patient. Further, Exhibit 13 contains the notation that Mrs. Hirschman "refuses pero" (presumably periodontal treatment) and confirms Respondent's testimony that the patient's refusal to have root canals left him no choice but extraction. The parties stipulated that the advertising which forms the basis for Counts XVI II through XXI was ordered and paid for by Stang, although it continued for some two months after Respondent took over the operation of the dental clinic before it was stopped. Respondent's testimony that he neither ordered nor paid for the advertising which appeared after July 1, 1979 was not disputed. No evidence was presented regarding the character of this advertising, other than the examples thereof shown in Exhibit 8.
Findings Of Fact The Respondent filed Exceptions to the Hearing Officer's Recommended Findings of Fact. These exceptions were numbered 6 through 30 with numerous subparts. The numbered exceptions do not deal with individual findings and for the most part merely assert that various recommended facts are inconsistent with other evidence and testimony in the record, but not cited by the Hearing Officer. Although the Board discussed and considered each exception, because of the format in which the exceptions were filed, it was impossible for the Board to vote on each numbered exception individually. However, the Board did find that the Hearing Officer's Recommended Findings of Fact are supported by competent substantial evidence and Respondent's assertions regarding internal inconsistency and conflict with other evidence and testimony in the record do not meet the requirements of Section 120.57(1)(b)10., Florida Statutes, for rejecting the Hearing Officer's Recommended Findings of Fact. Therefore, Respondent's exceptions to the Recommended Findings of Fact are rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of Counts II, III and VI of the Administrative Complaint and not guilty of Counts IV and V of the Administrative Complaint. It is further recommended that such final order imposes an administrative fine of $6,000.00 against respondent, and suspend his license for a term of two (2) years, followed by a term of probation of eight (8) years, subject to such terms and conditions as the board may specify, including the requirement that respondent be personally attended by a third person at all times he is treating female patients. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of January 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January 1992.
The Issue The issue presented is whether Petitioner achieved a passing score on the June 1999 Florida dental licensure examination.
Findings Of Fact Petitioner is licensed to practice dentistry in California and was also licensed in Georgia until he permitted his Georgia license to become inactive. He has been engaged in the active practice of dentistry for thirteen years. He has never been sued. Petitioner took the June 1999 clinical portion of the Florida dental licensure examination. He was subsequently advised that he had not achieved a passing score. Petitioner challenges the score he received on two portions of the clinical examination: his amalgam cavity preparation on the patient and his endodontic procedure on an extracted tooth. Petitioner's patient had a cavity between two teeth, although it was much lower than the contact point. The patient also had a large non-contiguous cavity in the front of the same tooth. Petitioner determined that he wished to save as much of the tooth as possible knowing that the large cavity in the front of the tooth would need to be filled. Because of the manner in which it was necessary to prepare the tooth to preserve the maximum amount of structure, he generated a monitor note explaining his approach. When he located the monitor to whom he would turn in his note, that monitor was busy viewing another patient and motioned for Petitioner to place the note at the monitor's station. Petitioner placed the note in the monitor's chair and returned to his patient. Petitioner completed the preparation procedure. While doing so, he noticed that his patient's tooth had a dead tract, a rare dental defect that would not interfere with the process. This was only the second time that Petitioner had seen a dead tract in a tooth despite his many years of practice. The first time had been while Petitioner was in dental school When his patient was graded, two of the three graders gave Petitioner a score of "0," noting that caries remained. The third grader saw no caries but noted debris remained. What the two examiners mistook for further decay was the dead tract. No debris remained. The other comments of the graders suggested that they had not seen the monitor note generated by Petitioner explaining the manner in which he was preparing the tooth and why. Despite the alleged presence of decay, Petitioner was instructed to proceed to fill the cavity. The extracted tooth on which Petitioner performed his endodontic procedure was an "easy" tooth with large canals. One grader gave Petitioner a "5," which is a perfect score. One grader gave him a "3," and the other gave him a "0." Only the grader who gave Petitioner the "0" noted that the tooth was perforated. The tooth Petitioner worked on had no perforation on the inside, and the x-rays taken during the process revealed no file or gutta percha filling off to the side of the canals. Petitioner did not perforate the tooth during his endodontic procedure. Petitioner properly performed both the amalgam cavity preparation on his patient and the endodontic procedure on the extracted tooth. He should be awarded full points on both procedures. The additional points are sufficient to give Petitioner a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a passing score on the June 1999 dental licensure examination. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2000. COPIES FURNISHED: Bill Buckhalt, Executive Director Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Gregory K. Barfield 2555 Collins Road, Penthouse 114 Miami Beach, Florida 33140 Gregory K. Barfield Post Office Box 102 Rancho Sante Fe, California 92067 Adam Keith Ehrlich, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
