The Issue The issue for determination in this proceeding is whether Respondent failed to meet minimum standards of performance in the diagnosis and treatment of a patient by making a diagnosis without adequate x-rays, by continuing to repair and use a dental splint, and by failing to advise the patient that either a new splint or new treatment plan was needed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed dentist in the state, holding license number DN 0005278. Respondent provided dental services to patient N.S. from February 21, 1984, through February 19, 1986. N.S. had periodontal problems, worn-down teeth, a bad bite, and previous restorations including bridge work. Respondent recommended a treatment plan that included periodontal surgery, bite reconstruction, and bite rehabilitation. The treatment plan recommended by Respondent was refused by N.S. N.S. wanted to look more presentable but wanted to avoid the cost of major bite reconstruction, periodontal surgery, or of having the previous bridge work reworked. On April 19, 1984, Respondent provided N.S. with a splint for teeth 7- 11 and cemented the splint in place. The splint was anterior porcelain fused to a metal crown on the five unit bridge. Respondent advised N.S. prior to the application of the splint that the splint was susceptible to fracture because of the patient's bad bite and that failure to follow the original treatment plan recommended by Respondent would lead to failure of the splint. The splint required repair on four occasions. When the splint first broke on August 10, 1984, it was sent to the laboratory and replaced. Thereafter, Respondent attempted to repair the splint when it broke. On November 6, 1985, a mandibular orthopedic repositioning appliance was provided to the patient by Respondent. The patient was subsequently treated by Dr. Michael D. Williams. The dental care provided to N.S. by Respondent was within acceptable standards. The recurring breakage that occurred on the splint was caused by excessive biting pressures and not by an improper fit of the splint. The patient's teeth were quite short and there was excessive pressure being placed on the patient's teeth as a result of the patient's bad bite. The patient suffered from traumatically induced osteoarthritis and showed signs of having temporomandibular joint disfunction. If the patient had agreed to bite reconstruction and rehabilitation, the patient's bite could have been opened up, and the outcome improved. The x-rays taken by Respondent provided a sufficient basis for Respondent's diagnosis. The x-rays included panoramic x-rays and transcranial x-rays.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Petitioner should enter a Final Order finding Respondent not guilty of the allegations in the Amended Administrative Complaint. RECOMMENDED this 3rd day of September 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 3rd day of September, 1991.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since December 31, 1973, a dentist licensed to practice dentistry in the State of Florida. His license number is DN 0005300. E.L. is a 70-year old man. He has had extensive dental work done for him by various dentists over the years. Respondent is among the dentists who have treated E.L. E.L. first presented to Respondent in 1977. He made subsequent visits to Respondent's office, but he also went to other dentists for treatment. In June of 1989, E.L. was seen by Dr. John Fishman, a periodontist. He was referred to Dr. Fishman by Respondent. Dr. Fishman noted in his records of E.L.'s initial visit that E.L. had "extensive, rampant subgingival decay," E.L.'s gums were "severely hypertrophic" possibly as the result of medication he was taking 3/ and the prognosis for teeth number 3, number 5, number 12, number 13, number 15 and number 31 was "guarded." Dr. Fishman established a treatment plan to treat E.L.'s periodontal disease. The plan had three components: "review oral hygiene" with E.L.; "temporization [of the] upper/lower [arches]" in conjunction with "caries control;" and "periodontal surgery." E.L. received treatment in accordance with the plan. He remained under Dr. Fishman's care, receiving periodontal therapy, until July of 1992. After not having been seen by Respondent for a period of time, E.L., while still under Dr. Fishman's care, returned to Respondent's office in or about September of 1990, more than a year after he had first started receiving periodontal therapy from Dr. Fishman. From approximately September of 1990, to April of 1992 (hereinafter referred to as the "treatment period"), Respondent provided dental services to E.L. Such services included root canal therapy and crown and bridge work. At the time he provided such services, Respondent was familiar with E.L.'s medical and dental history. 4/ Respondent consulted with Dr. Fishman throughout the treatment period. The dental services Respondent provided E.L. during this period were provided in accordance with Dr. Fishman's suggestions, recommendations and requests. Before rendering such services, Respondent went over with E.L. the treatment plan that had been devised, with Dr. Fishman's input, for E.L. Respondent advised E.L. that E.L. was cavity-prone and that it was critical to the success of the treatment plan that E.L. practice good oral hygiene. In addition, to supplement the training E.L. had received from Dr. Fishman, Respondent reviewed with E.L. proper oral hygiene techniques. On or about January 15, 1991, Respondent prepared E.L.'s teeth number 3 through number 14 for an upper fixed bridge. Before doing so, Respondent did not take full-mouth x-rays of E.L. inasmuch as E.L. had told him that another dentist, Dr. Caesar Sabates, had taken such x-rays two or three months earlier. Instead, Respondent relied on information Dr. Fishman provided him. 5/ On or about February 13, 1991, Respondent temporarily cemented the upper fixed bridge. The bridge was temporarily, rather than permanently, cemented in accordance with Dr. Fishman's request. Dr. Fishman wanted to be able to remove the bridge in the event it was necessary to do so to facilitate E.L.'s periodontal therapy. On or about May 13, 1991, Respondent extracted E.L.'s tooth number 14 and recemented (again temporarily) the bridge. Respondent noted during this visit that the gums in the area of tooth number 4 were in "very poor condition." On or about June 4, 1991, Respondent removed the bridge to initiate root canal therapy on E.L.'s tooth number 10. About one week later he recemented (again temporarily) the bridge. On or about July 10, 1991, Respondent noted that E.L. had several cervical cavities. On or about July 30, 1991, Respondent prepared E.L.'s teeth number 29 and number 30 for crowns. On or about August 6, 1991, Respondent performed restorations on E.L.'s teeth number 22, number 23, number 25 and number 27. On or about August 15, 1991, Respondent cemented splinted crowns on E.L.'s teeth number 29 and number 30. On or about August 26, 1991, E.L.'s upper fixed bridge was removed due to looseness and Respondent made impressions for a temporary bridge. On several occasions during the treatment period, Respondent had to reline and recement (temporarily) E.L.'s upper fixed bridge due to its poor fit. 6/ On or about August 3, 1992, pursuant to the instructions of his attorney, E.L. presented to another dentist, Dr. Thomas Ward, for examination. Dr. Ward's examination revealed that teeth number 4, number 7, number 13 and number 14 were missing and that there were open margins 7/ at teeth number 3, number 5, number 8, number 9,, number 10, number 11 and number 12.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Dentistry enter a final order dismissing the Administrative Complaint issued against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of September, 1995. STUART M. LERNER 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 September, 1995.
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 The issue for determination is whether Respondent, Ralph Toombs, committed violations of Chapter 466, F.S., with regard to two dental patients, as alleged in two Administrative Complaints. If the violations are found, some disciplinary action must be recommended.
Findings Of Fact Ralph E. Toombs, D.D.S., is and at all relevant times has been licensed as a dentist in the State of Florida having been issued license number DN 0007026. At all times relevant to the allegations of the two complaints, Dr. Toombs practiced general dentistry in West Palm Beach, Florida, under the group which he owned, the Florida Dental Group. He has since left the West Palm Beach area, and resides in St. Cloud, Osceola County, Florida. In March 1984, patient A.K. was referred to Dr. Toombs for a problem with the joint in her jaw, the temporal mandibular joint (TMJ). She was given a mouth brace, but lost it. She also obtained general dentistry services. After she lost the mouth brace, she moved into orthodontic treatment by an orthodontist, Edward Sheinis, D.D.S., who was employed by the Florida Dental Group. This treatment, including the fitting and adjustment of braces, lasted about a year, until May 1985. At that time Dr. Sheinis left the group and opened his own office in Coral Springs, Florida. When he left, Dr. Sheinis informed his orthodontic patients where he was going. Under his contract with the Florida Dental Group, the patients and their records belonged to the group. His contract expired on May 31, 1985, but Dr. Toombs asked him to leave the day before his final day for treating patients. Dr. Sheinis felt that Dr. Toombs had the idea that he was trying to take patients away. After Dr. Sheinis left, no orthodontist replacement joined the group. Dr. Toombs' office continued making appointments for A.K. and she was treated by him in June, July and August. A. K.'s insurance company had paid for her orthodontic treatment plan in advance. She did not ask for return of the money, but neither was it offered. She did not want to travel to Dr. Sheinis' new office and she also felt that she had already paid the group for the services. She anticipated that a new orthodontist would be hired. Dr. Toombs claimed that the orthodontic patients were given the choice of going with Dr. Sheinis, being referred to another orthodontist, or staying with the group until another orthodontist was found. He claims that in some cases, money was refunded to patients who sought treatment elsewhere. He does not make those claims specifically with regard to A. K. and her testimony that the options and possibility of refund were never discussed with her is credible, consistent, and convincing. The orthodontic treatment rendered by Dr. Toombs to A. K. in June, July and August 1985, was primarily for maintenance, rather than to advance her treatment plan. Ligatures were replaced or re-tied and some parts of the appliances were repaired. A new scheme of elastics was developed in the August appointment, which could have advanced her treatment, but was also only intended for maintenance, according to Dr. Toombs. A September appointment was made, but was cancelled by Dr. Toombs' office and another appointment for October was made. That appointment was also cancelled by Dr. Toombs' office. By September or October the Florida Dental Group was in bankruptcy; the office was closed down and the patient files were in the hands of a trustee. Some records are still inaccessible. A. K. attempted to contact the office, but there was no answer. She heard from a friend that Dr. Toombs had left. She called the American Dental Association and was told they did not know his whereabouts. She then returned for treatment to the dentist who had originally referred her for the TMJ treatment, David Feuer, D.D.S., an orthodontist. A primary purpose of orthodontic treatment is tooth movement. If a patient's treatment is simply maintained, but not advanced for two months, there may not be harm, but minimum acceptable standards of dental practice require that the patient be referred promptly when the treating dentist cannot continue the appropriate treatment plan. The evidence does not clearly establish Dr. Toombs's lack of competence to appropriately continue A. K.'s orthodontic treatment. Therefore, when Dr. Sheinis left, he had the choice of making a referral and transferring the payment, or pursuing the treatment himself. He did neither. By his own admission, in a response to DPR investigator, Charlene Willoughby (Petitioner's Exhibit #7-AK) Dr. Toombs did nothing more than maintain A. K. orthodontically, by changing ligature ties. His attempt at hearing to explain that course as necessary to undo substandard work by Dr. Shienis is unsupported by any competent evidence. Patient S.C. Between approximately February 1984, and October 1985, Ralph Toombs provided dental services to patient, S.C. Those services included, among others not pertinent to this proceeding, the fabrication, fitting, and delivery of a maxillary bridge and lower partial denture. In lay terms, this involved basic full mouth reconstruction. At the time that S.C. began seeing Dr. Toombs he had already had bridge work beginning in 1970. He first saw Dr. Toombs on an emergency basis when he had fractured part of that work. When reconstruction is done, it is necessary to provide a structure to support the bridge, where the existing teeth are incapable of that support on their own. Two methods of support are a post and core, and pins. Pins are used when there is more existing structure; they are screwed into a tooth. The post and core is used generally when teeth have been endodontically treated (root canal therapy). The post is inserted through the central canal area into the tooth. The post provides more stability. A tooth that has been treated endodontically is devitalized, dry and fragile. The use of pins in such teeth is likely to cause crazing (small multiple cracks) or fractures; the support is weakened, and either it fails or causes failure in another site in the structure. In S.C.'s reconstruction, Dr. Toombs extensively used pins in devitalized teeth, in some instances as many as four or five pins in a single tooth. Dr. Toombs installed a bridge, but it cracked, and he replaced it. Later, shortly after Dr. Toombs closed his office in September or October 1985, S.C. returned to his prior dentist, Steven E. Kiltau, DDS, with a complaint that the porcelain had fractured and that his lower bridge work kept falling out. Dr. Kiltau found the bridge work loose and fractured. There were also bulky margins and open margins, or spaces between the original tooth and the crown, allowing the accumulation of food debris. Dr. Kiltau also suspected that some of the pins had perforated the sides of the teeth. Dr. Kiltau and other dentists who treated S.C., both before and after Dr. Toombs, as well as experts retained by Petitioner, attributed the failure of the structure provided by Dr. Toombs to his inappropriate use of pins. The testimony of these witnesses established uneqivocally that this aspect of the treatment violated minimum standards of performance. Petitioner did not, however, establish that the bulky and open margins were caused by Dr. Toombs' negligence. Some evidence of decay was apparent in S.C.'s teeth and the witnesses were reluctant to conclude that this was the result, and not the cause of the margins.
Recommendation Based on the foregoing, it s hereby RECOMMENDED: That the Board of Dentistry enter a final order, finding Respondent guilty of violations of Sections 466.028(1)(u) and (y), F.S., assessing an administrative fine of $3,000.00, and placing Respondent on probation for two years, with the requirement that he also attend such continuing education courses as the Board finds appropriate. Although this recommended penalty is less than that suggested by counsel for Petitioner, it is still within the guidelines of the Board in Rule 21G-13.005, F.A.C. DONE and ORDERED this 23rd day of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Adopted in Paragraph 6. Adopted in Paragraphs 6 and 7. 7 through 10. Rejected as statements of testimony, rather than findings of fact. 11. Adopted in Paragraph 6. 13. through 15. Rejected as statements of testimony rather than findings of fact. Respondent, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Rejected as inconsistent with the weight of the evidence. Her continuation was not entirely voluntary; she had paid for the treatment and was not given an alternative. Rejected as unsupported by credible evidence. Rejected as contrary to the evidence. Adopted in Paragraph 5. Rejected as contrary to the weight of evidence. through 15. Rejected as immaterial. Petitioner, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 10, except that, according to the record, S.C.'s and treatment by Dr. Toombs began in 1984. Adopted in Paragraph 13. through 11. Rejected as statement of testimony, rather than findings of fact. Rejected as immaterial. Other competent evidence established the existence of decay. and 14. Rejected as statements of testimony. Adopted in Paragraph 13. Rejected as a statement of testimony. through 22. Rejected as unnecessary or a statement of testimony. The margins were proven; their cause was not proven. Respondent, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. and 4. Adopted in Paragraph 10, except the record establishes that treatment commenced in 1984. 5. through 8. Rejected as unnecessary or immaterial. Rejected to the extent that the finding implies that failure was not due to Respondent's negligence. Adopted in Paragraph 14. through 19. Rejected as unnecessary. 20. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: John Namey, Esquire Department of Professional Regulation 1520 East Livington Street Orlando, Florida 32803 Ronald M. Hand, Esquire 241 East Ruby Avenue Waterfront Square, Suite A Kissimmee, Florida 32741 William Buckhalt Executive Director Dept. of Professional Regulation Board of Dentistry 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0004795. At all times material hereto, Respondent maintained two offices for the practice of dentistry, one where he practices privately in Bay Harbor Islands and one in North Miami Beach which is also known as R & E Dental Offices or as North Dade Dental Office. Case Number 83-3976 Beatrice Gershenson On April 19, 1980, Beatrice Gershenson, in response to a newspaper advertisement, came to R & E Dental Offices complaining that her lower denture made years earlier was uncomfortable and in need of replacement. Respondent examined Gershenson on that visit and advised her that she would need to have both her upper and lower dentures replaced. During that consultation, Respondent and Gershenson agreed upon a fee of $410 for a full set of dentures. Respondent did not provide any treatment to Gershenson during her first visit. Gershenson returned to R & E Dental Offices several times during April and May 1980, during which visits she received a full set of dentures and several subsequent adjustments to those dentures. Although Gershenson's checks were made payable to Respondent, Respondent provided no treatment to her; rather, all dental services were provided to Gershenson by other employees of R & E Dental Offices. Gershenson did not see Respondent following the initial consultation until her last visit to R & E Dental Offices. At that time, Gershenson complained to him about her dentures. She advised Respondent that her dentures were flopping and that she was biting the back of her jaw. Respondent did not examine her at that time. Based upon her complaints, however, he suggested that she be provided a reline and that she use a denture cream. Gershenson refused to have a reline, became upset about having to use a denture cream, and left. On July 16, 1981, Gershenson and her dentures were examined by Dr. Leonard M. Sakrais, a dental expert retained by Petitioner. Between her last visit to R & E Dental Offices and her examination by Dr. Sakrais, Gershenson's dentures were not altered. The three deficiencies in Gershenson's dentures noted by Sakrais became the specific allegations in the Administrative Complaint filed against Respondent. Sakrais noted that the dentures exhibited open occlusion on the right side, the lower anterior teeth were set forward of the ridge making the lower denture unstable, and the upper denture was short in the tuberosity region and therefore had no retention. However, Sakrais recognized that lower dentures are typically unstable, that Gershenson's small knife-edged lower ridge made her a difficult patient to fit, and that the dentures could have very easily been made serviceable. One of the ways in which the defects could be remedied, accordingly to Sakrais, was for the denture to be relined. If a patient refuses to have a denture relined, however, there is nothing a dentist can do further. Gershenson continued to wear the dentures obtained at R & E Dental Offices without adjustment after the examination by Sakrais until she commenced treatment in June 1983 with Dr. Alan B. Friedel. She made no complaints to Friedel regarding the upper denture and only complained about the looseness of the lower denture. Friedel adjusted her lower denture and recommended that it be relined and that she use a denture cream. Friedel noted no problems with the upper denture and attributed the problems with Gershenson's lower denture to the shape and deterioration of her lower ridge. When Dr. Neil Scott Meyers examined Gershenson on August 3, 1984, after Friedel's treatment had been completed, Gershenson complained to him that her upper denture fit so well that she had trouble removing it. Meyers found no defects in Gershenson's dentures, as modified by Dr. Friedel, and also noted the difficulty in fitting a lower denture for a patient with a small sharp lower ridge like Gershenson's. Gershenson voluntarily terminated treatment with R & E Dental Offices without requesting a refund and without requesting that the dental work be redone. Rather, she refused Respondent's offer to reline her dentures. Case Number 84-0349 Barbara Schmidt On November 4, 1980, Barbara Schmidt came to R & E Dental Offices in response to an advertisement. Schmidt complained that an improper bite was causing loss of her natural teeth and advised Respondent that her previous dentists had recommended that she have her teeth capped and bite opened. Schmidt brought with her to that consultation X rays and study models, a lot of advice from previous dentists who had treated her, and her attorney-husband who drilled Respondent on his plan for treatment of Schmidt. During Respondent's examination of Schmidt, he noted that she suffered from an extreme loss of vertical dimension. Her teeth were very worn, and there was little enamel left on her anterior teeth. The agreed upon treatment plan for Schmidt involved a full mouth reconstruction, consisting of 15 lower crowns and 8 upper crowns. On November 4 and 11, 1980, Respondent prepared Schmidt's lower right side and lower left side and provided her with temporaries. Respondent made no attempt to increase her vertical dimension with the first set of temporaries. On November 25, 1980, Respondent took a second bite impression and made a second set of temporaries which increased Schmidt's bite by 2 millimeters. He noted that he was having trouble getting Schmidt's jaws into centric position for taking a second impression because her jaw muscles were too tense. During Schmidt's appointments on December 16 and 23, 1980, Respondent tried-in the lower metal framework, checked the margins, looked for blanching of the tissue, determined that the lower frame was acceptable and ready to be finished, and took a third bite impression due to the difficulty in getting the same registration each time that Schmidt's bite was registered. During Schmidt's January 13, 1981, appointment, Respondent began work on her upper teeth. Schmidt was placed in temporaries. When the upper metal work was tried-in on February 3, 1981, Respondent determined that the fit was correct. On February 10, 1981, Respondent inserted Schmidt's upper crowns using temporary bond and made a notation in Schmidt's records that her bridges should be removed every six months. On February 17, 1981, Respondent removed one of Schmidt's bridges, made new temporaries, and returned Schmidt's crowns and bridgework to the laboratory for rearticulation in order that the bite, with which Respondent was not satisfied, could be corrected. On this date Schmidt was in her third set of temporaries and was clearly in an unfinished stage. On February 18 and 24, 1981, Schmidt was seen by Dr. Wayne Dubin, another dentist in the same office. Schmidt's dental records indicate that on the former date Dubin re-cemented Schmidt's temporary crowns, and on the latter date he cemented with temporary bond the permanent crowns that Respondent had returned to the laboratory on February 17. On March 3, 1981, Respondent repaired Schmidt's lower right bridge, and on March 10 he cemented that bridge back into Schmidt's mouth with temporary bond. On March 17, 1981, Respondent removed one of Schmidt's bridges and returned it to the laboratory so that porcelain could be added. This was the last occasion on which he rendered treatment to Schmidt. On March 24, Schmidt was seen by Dr. Dubin at the request of Respondent. In the presence of Schmidt, Respondent requested Dubin to take over the case because Respondent was still unable to correct Schmidt's bite. Respondent told Dubin to do whatever he thought was necessary. On March 24, 1981, Dubin removed Schmidt's crowns and bridges and took a bite impression without the crowns and bridges in place in order to correct the bite problem in a different way than Respondent had previously tried. On April 7, 1981, Dubin placed Schmidt's bridges in her mouth using temporary cement. He advised her that on her next visit he would take a new set of X rays, presumably to start over again if necessary. Although Dubin was at that time Schmidt's treating dentist, she sought advice from the lady employed as the office manager at R & E Dental Offices. The two women decided that rather than having Schmidt continue with Dubin, she should see Dr. Lawrence Engel the "E" of R & E Dental Offices. On the following day Engel saw Schmidt for an occlusal adjustment. During the examination, Schmidt's jaw muscles went into spasm, and she was unable to make the appropriate movements so that Engel could make the appropriate adjustments. Engel suggested to Schmidt that she go home, practice moving her jaw in front of a mirror in the privacy of her home, and then return so that he could complete her adjustment. Schmidt returned to Engel approximately one week later and brought her husband with her. While Mr. Schmidt engaged in a tirade and Dr. Engel engaged in adjusting Mrs. Schmidt's bite, there was a power failure in North Miami Beach. The Schmidts were given their choice of waiting until electrical power resumed or leaving and coming back at another time. After advising the office manager that they would return and that would also complete paying the agreed upon fee for dental services, the Schmidts left. They did not, however, return, and they did not, however, complete paying their bill. Instead, on May 18, 1981, Mrs. Schmidt picked up her records, X rays, and study models. She did not speak with Respondent about her voluntary termination of treatment, about a refund of the monies paid for treatment, or about her dental work being completed or redone. Schmidt was not released from treatment by any dentist at R & E Dental Offices. When Schmidt released herself from treatment, none of the three dentists who had treated her had indicated that her case was completed or close to completion. Rather, more temporaries were being made, her crowns and bridgework were being returned to the laboratory, new X rays were being ordered, and one dentist was in the middle of an adjustment when the electrical power failed. Moreover, the dental work made for her had been cemented with temporary bond, and no one had indicated that permanent cementing was likely at any time soon. The only discussion which had occurred regarding the use of permanent cement occurred with Respondent when he explained to her that sometimes sensitive areas are alleviated when permanent cementing takes place. That discussion took place prior to the time that Respondent referred Schmidt to Dr. Dubin with instructions to do whatever Dubin thought necessary. During the time that Respondent was treating Barbara Schmidt, she was seeing other dentists for the purpose of having them monitor Respondent's work. Since neither Schmidt nor her monitoring dentists advised Respondent that he was being monitored, the only information available to those dentists was that provided to them by Barbara Schmidt. They, therefore, did not have the benefit of Respondent's input into their opinions, and Respondent likewise was not given the benefit of their input into his decisions. In addition to seeing a Dr. Coulton and a Dr. Souviron, Schmidt consulted twice with Dr. Alvin Lawrence Philipson, a dentist having some business dealings with Mr. Schmidt. Schmidt saw Dr. Philipson for Use first time on February 11, the day after her permanent lowers were inserted with temporary cement. Six days later Respondent removed Schmidt's lower left bridge and sent it back to the lab to be remade in order to correct the bite and alleviate an area causing sensitivity. When Philipson next saw her in March of 1981 he was of the opinion that Respondent had provided treatment which failed to meet minimum standards. That opinion, however, was based upon the information given to him by the Schmidts that Respondent was finished with the case and ready to permanently cement all bridgework. At the time that he rendered his opinion, Philipson did not know that Schmidt was about to be referred by Respondent to another dentist, i.e., Dr. Dubin for that doctor to do whatever he thought was necessary in order to help Mrs. Schmidt. After Schmidt discharged herself from the care of the dentists at R & E Dental Offices, she continued to wear the crowns and bridgework in their temporized state without treatment from April 8, 1981 (the day of the power failure) until July 7, 1982 when she sought dental treatment from Dr. Donald Lintzenich. By this time she had also developed periodontal problems, most likely as a result of neglect. Schmidt began treating with Tintzenich in July of 1982, and Lintzenich also referred her to other specialists for necessary treatment such as root canals and periodontal treatment. Although many changes were made to the crowns and bridgework Schmidt received from R & E Dental Offices by Lintzenich and the other dentists to whom he referred her, during the first four months that he treated Schmidt Lintzenich left the crowns and bridgework from R & E Dental Offices in Schmidt's mouth. Although Lintzenich began treatment of Schmidt in July 1982, he was still treating her at the time of the Final Hearing in the cause and was, at that point, considering redoing work he had placed in her mouth. The numerous experts in dentistry presented by both Petitioner and Respondent agree that Barbara Schmidt's is an extremely difficult reconstruction case and that a quite extended period of time is necessary for the correction of her dental problems. Further the experts agree on nothing. Each of Petitioner's experts disagrees with almost everything stated by the remainder of Petitioner's experts. For example, Philipson recommends increasing Schmidt's bite; Glatstein believes that Schmidt's bite needs to be reduced; and Lintzenich opines that any attempt to change the vertical dimension would constitute treatment below the minimum acceptable standard. Some of Petitioner's experts believe that Schmidt's periodontal problems existed before she sought treatment by Respondent, and some of them believe that her periodontal problems commenced after she had terminated treatment with Respondent. Although most of Petitioner's experts agreed that Respondent's work fell below minimum standards, they also admit their opinions would be different if they had known that Respondent had not completed his work on Schmidt and had not discharged her but rather had referred her to another dentist with instructions to do whatever was necessary. Only Dr. Glatstein maintained that Respondent's work was substandard at any rate, an opinion he confers on Lintzenich's work, too. The Administrative Complaint filed herein charges that Respondent's treatment of Schmidt failed in the following "specifics": the work has no centric occlusion; the bite is totally unacceptable and if not corrected will cause irreversible damage to the temperomandibular joint; and the contour of the teeth and embrasure space for the soft tissues were unacceptable and ultimately will result in periodontal breakdown. All of the experts who testified agree that Barbara Schmidt's bite is/was not correct. She initially sought treatment because her bite was not correct and is still undergoing treatment because her bite is not correct. There is no consensus on any of the other charges in the Administrative Complaint; in fact, there is no consensus as to the meaning of some of the words' used. For example, some dentists believe that the term "contour of the teeth" encompasses open margins while others believe that an open margin is the space between the tooth and the crown. Few dentists, however, believe that an Administrative Complaint which states that the contour of teeth is unacceptable advises a licensee that he is charged with defective work because of open margins. Even if open margins were part of the term "contour of the teeth," the Administrative Complaint fails to notify anyone that the open margins are the part of the contour that is alleged to be defective or even which teeth are involved. There is no basis for choosing the opinion of one expert in this case over the other experts who testified herein. Further, many of the opinions are based upon information that was either erroneous or false, such as the information that Respondent had completed treatment and discharged Schmidt.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaints filed herein and dismissing them with prejudice. DONE and RECOMMENDED this 20th day of May, 1985, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201 Algis Augustine, Esquire 407 South Dearborn Street Suite 1300 Chicago, Illinois 60605 Stephen I. Mechanic, Esquire Allan M. Glaser, Esquire Post Office Box 398479 Miami Beach, Florida 33139 Ronald P. Glantz, Esquire 201 S.E. 14th Street Fort Lauderdale, Florida 33316 Steven Rindley, D.D.S. 251 NE 167th Street North Miami Beach, Florida 33162 Steven Rindley, D.D.S. 1160 Kane Concourse Bay Harbor Islands, Florida 33154 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
The Issue 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 for determination is whether Respondent violated Subsection 466.028(1)(x), Florida Statutes (1996), in connection with his treatment of one patient.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of dentistry in Florida pursuant to Section 20.43 and Chapters 456 and 466. Respondent is licensed to practice dentistry in Florida pursuant to license number DN12561. Respondent is a general dentist. Respondent practices dentistry in Englewood, Florida. Respondent has never had any disciplinary action taken against his dental license and has never been sued for malpractice. Patient J.N. first presented to Respondent for a problem-focused visit on January 28, 1997. A problem-focused visit is directed to a specific complaint. J.N. complained of a crown causing an intermittent toothache. Another dentist had placed the crown approximately one year earlier. J.N. brought X-rays done by the other dentist with her to Respondent's office. The X-rays had been taken approximately two months earlier. Respondent reviewed the prior X-rays and also took X-rays of J.N.'s problematic tooth, Tooth 2. The X-rays revealed that the tooth was badly decayed under the crown. The same area of Tooth 2 is evidenced on November 12, 1997, in bite wing X-rays taken by J.N.'s previous dentist. The X-rays revealed no caries or decay in Tooth 2. The X-rays taken in January 1997 by Respondent show deep decay on the mesial aspect of Tooth 2. Respondent determined that Tooth 2 was non-restorable and referred J.N. to a specialist for extraction. J.N. returned to Respondent's office seven months later on August 12, 1997, to have her teeth cleaned. Respondent examined J.N. and identified Tooth 3 as broken and Tooth 18 as decayed. J.N. also had generalized bleeding that indicated inflammation of her gums. Respondent recommended crowns for Teeth 3 and 18 and better oral hygiene. J.N. had poor oral hygiene, and the tooth cleaning was not completed. J.N. is a long time smoker. On August 12, 1997, Respondent's office scheduled J.N. for a follow-up appointment on August 27, 1997, to complete the cleaning of her teeth. However, J.N. cancelled the appointment after the scheduled appointment time and returned for a follow- up cleaning more than one month later on September 30, 1997. On September 30, 1997, J.N.'s poor oral hygiene had allowed so much build-up that the hygienist had to begin the cleaning anew. The hygienist recommended a shorter four-month recall for cleanings. J.N. returned to Respondent's office for a cleaning 17 months later on April 20, 1999. At the cleaning visit on April 20, 1999, the hygienist noted moderate gingivitis in all areas and recurrent decay in Teeth 11 and 15. J.N. expressed only cosmetic concerns. At J.N.'s request, Respondent placed a composite filling on Tooth 11. The hygienist again recommended more frequent cleanings at four-month intervals. Six weeks later, on June 8, 1999, J.N. presented on an emergency basis for pain in Tooth 15. The tooth had deteriorated due to fracture and decay to the point that aggressive measures were needed to salvage the tooth. Respondent performed a direct pulp cap because the decay had advanced to the nerve. Respondent advised J.N. that J.N. would need a root canal. J.N. stated she would have the tooth extracted instead because she did not want to pay for a root canal. Respondent successfully completed a core build-up and crown on Tooth 15. J.N. presented at Respondent's office on October 25, 1999, for a cleaning visit. A four-month interval had been recommended, but J.N. returned for a cleaning in six months. At this visit, some calculus was noted, along with plaque and generalized irritation, but no significant pocketing. Respondent's office scheduled J.N. for a six-month follow-up appointment. On November 11, 1999, Petitioner presented to Respondent's office for a problem-focused visit. Tooth 18 had decay that had advanced between the roots. Respondent placed a filling on Tooth 18, at no cost, in an attempt to salvage the tooth. Respondent had previously given Petitioner an estimate for a crown on Tooth 18 back in August 1997. Respondent told J.N. that the tooth may require extraction if it became symptomatic. J.N. failed to follow through with the treatment recommended for Tooth 18 in August 1997 and, instead, allowed her tooth to further deteriorate. An oral surgeon extracted Tooth 18. J.N. once again failed to return for her regular cleaning on the scheduled six-month interval. Instead, she did not return for a cleaning visit until August 3, 2000, ten months after her previous cleaning on October 25, 1999. The cleaning visit on August 3, 2000, was the first time the hygienist noted pocketing that exceeded normal limits. She noted significant pocketing in Teeth 6, 7, and 27. Two new X-rays were taken because it had been one year since the last X-rays. Oral hygiene instructions were given, as they had been at every hygiene appointment, with special attention to be paid by J.N. to the areas of newly appearing pockets. J.N. was warned that continued noncompliance with home care and resulting deterioration in her periodontal status would necessitate a referral to the periodontist. A follow-up appointment was given for six months. J.N. returned for a cleaning visit on February 8, 2001. The hygienist noted a slight increase in pocketing in Tooth 6. The pocketing noted in the other teeth at the August 3, 2000, visit remained unchanged. Respondent's hygienist advised J.N. on February 8, 2001, that if problems were not resolved at the next appointment, Respondent would refer J.N. to a periodontist. J.N.'s response to the hygienist was that Tooth 6 was at the side of her mouth where J.N. placed her cigarette and that J.N. would try to smoke on the other corner of her mouth. Decay was again noted in several areas, of which Teeth 4 and 21 were the most serious, and Respondent recommended appropriate treatment. On March 8, 2001, J.N. presented to Respondent to complain about the cosmetics of a facial composite on Tooth 11 placed two years before. J.N. was not concerned about the decayed teeth for which treatment had been planned. Respondent advised J.N. that she should be concerned about her continuous recurrent decay and advancing periodontal disease. Respondent prescribed a fluoride mouth rinse to help combat these conditions. Respondent also referred J.N. to the periodontist that J.N.'s husband had been seeing. Respondent discussed the need for J.N. to see a specialist because Respondent had done all that he could do in the face of her noncompliance. Respondent cautioned J.N. that if she wanted to save her remaining teeth she needed to seek out the specialist's help as soon as possible. The care and treatment of J.N. by Respondent satisfied the applicable standard of care. J.N.'s willful noncompliance with recommended treatment and care limited the effect of the care provided by Respondent. Respondent referred J.N. to appropriate specialists when J.N.'s condition warranted the referral, but J.N. did not follow the recommendations. J.N. did not follow the four-month cleaning intervals recommended by Respondent and Respondent's hygienist. J.N. did not keep regular cleaning appointments made by Respondent's office. J.N. presented for cleaning of her teeth at intervals of six months, 10 months, and 17 months. J.N. also failed to follow through with the treatment recommended by the periodontist. J.N. failed to attend phases two and three of the prescribed periodontal treatment. In addition, J.N. failed to present for alternating six-month periodontal cleanings. Respondent did not perform a comprehensive dental examination of J.N. on any single visit and did not charge J.N. for such an examination on a single visit. A comprehensive dental examination includes a soft-tissue examination, a temperomandibular joint evaluation, and a full-mouth series of X-rays. Over the course of Respondent's cumulative treatment of J.N., however, Respondent performed a full-mouth series of X-rays. The applicable standard of care did not require Respondent to perform a soft-tissue examination and temperomandibular joint evaluation. J.N. never complained of any soft-tissue related symptoms or temperomandibular joint symptoms. Such an examination and evaluation was not necessary. Respondent performed periodontal probing and charting for J.N. Respondent's hygienist properly examined J.N. on every cleaning visit with J.N. to determine the presence of pocketing. Respondent's office protocol is to chart only those pocket depths that exceed normal depths of one to four millimeters. When the hygienist noted abnormal pocket depths in August 2000, she charted the pocketing and created a record of the abnormal periodontal status. The applicable standard of care does not require normal findings to be charted and does not prescribe a specific format for periodontal charting. The periodontal documentation completed by Respondent's office adequately and accurately documents J.N.'s periodontal status. The evidence is less than clear and convincing that abnormal pocketing existed prior to August 2000 or that periodontal charting was not performed. The contrary assumptions of Petitioner's expert lack evidential foundation and support. Petitioner's expert also cannot testify within a reasonable degree of dental probability when J.N.'s periodontal disease began. The testimony of Respondent's expert was credible and persuasive. J.N. experienced episodic bone loss, likely associated with diet noncompliance, smoking, poor oral hygiene, and stress. Episodic bone loss can occur in less than two weeks. One example of a stressful event would be involvement in litigation. J.N. did experience a stressful event in May 2000. This event did lead to litigation. In May 2000, a patient under J.N.'s care at an area nursing home suffered more than 1,000 ant bites and died. In January 2001, J.N. and her employer were sued for this event. The State of Florida conducted an investigation of the event. The litigation subsequently settled out of court. The deterioration in J.N.'s dental condition, as documented in the Respondent's chart, coincided contemporaneously with the litigation that involved J.N. Up to that point, Respondent's records for J.N. indicate that despite J.N.'s lack of regular follow-up, her condition was being maintained, at least up to J.N.'s cleaning visit on August 3, 2000. At that visit, periodontal probing identified pocketing that exceeded normal limits. After that point, J.N.'s dental condition rapidly deteriorated. The evidence is less than clear and convincing that Respondent violated Subsection 466.028(1)(x) by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. In particular, the evidence is less than clear and convincing that Respondent undertook a diagnosis and treatment for which Respondent is not qualified by training or experience; that Respondent is guilty of dental malpractice; or that Respondent failed to perform periodontal charting. Respondent completed full-mouth radiographs of J.N. throughout his course of treatment of J.N. The evidence is less than clear and convincing that Respondent failed to: establish an appropriate treatment plan; recognize J.N.'s bone loss and overall dental condition; make appropriate and timely referrals; diagnose properly J.N. on or about February 8, 2001; or provide a proper treatment plan on February 8, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Respondent not guilty of violating Subsection 466.028(1)(x) and dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 29th day of August, 2003. COPIES FURNISHED: Daniel Lake, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher J. Schulte, Esquire Burton, Schulte, Weekley, Hoeler & Robbins, P.A. Post Office Box 1772 Tampa, Florida 33601-1772 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 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
