Findings Of Fact Dr. Farah is a candidate for licensure by the Board of Dentistry, having taken the dental clinical examination in June 1985. The examination covers ten domains of dental knowledge and practice; each is separately graded, and then weighted according to an algorithm. Rule 21G-2.13(3), Florida Administrative Code. A weighted grade of 3.0 is required to pass the clinical dental examination. Rule 21G-2.13(2)(c), Florida Administrative Code. Dr. Farah received a grade of 2.96. The June 1985 examination was Dr. Farah's second attempt to pass the clinical examination. The grading scale for each procedure is established in Rule 21G- 2.13(1), Florida Administrative Code, as follows: complete failure unacceptable dental procedure below minimal acceptable dental procedure 3- minimal acceptable dental procedure better than minimally acceptable dental procedure outstanding dental procedure An examiner is required to record a comment in support of any grade below 5. Examiners for the dental examination are experienced licensed Florida dentists. Rule 21G-2.20(4), Florida Administrative Code. They are trained by the completion of 8 to 10 hours of standardization exercises. During the standardization exercises the examiners receive examination grading criteria, grade identical procedures, discuss any grade variance and attempt to eliminate any discrepancies in interpretations of the grading criteria in order to bring the examiners to a consensus on grading. In the periodontal portion of the examination there are five criteria which are accorded equal importance in grading. These are: (a) presence of stain on the assigned teeth, (b) presence of supra-gingival calculus on assigned teeth, (c) presence of sub-gingival calculus on assigned teeth, (d) root roughness on the assigned teeth, (e) improper management of tissue such as gums which may have been lacerated during the procedure. Rule 21G-2.13(4)(b), Florida Administrative Code. The grading is holistic and each examiner assigns a grade based on the examiner's evaluation of the overall procedure. Three examiner's grades are averaged to obtain a final grade score for the individual procedure. Rule 21G- 2.17(1), Florida Administrative Code. The score for that procedure is then weighted and added with the other weighted scores to obtain the overall grade on the clinical examination. As a standardization technique in grading the periodontal exercise, an examiner marks off for root roughness when use of an explorer on treated teeth reveals a tactile roughness but the examiner is unable to visually confirm the presence of sub-gingival calculus. Use of an explorer reveals the presence of root roughness or calculus below the gum level (i.e., calculus which is sub- gingival). Dr. Farah was assigned teeth number 2, 3, 4, 12, 13, l4 and 15 on her periodontal patient. A prior candidate (Candidate 20057) had treated the same patient in her periodontal exercise, and had been assigned some of the same teeth as Dr. Farah, viz., teeth 2, 3, 4, 5, 6, 7 and 8. Candidate 20057 received individual holistic grades of 4, 4 and 5, which average to a grade of 4.33 for the periodontal procedure. Dr. Farah received grades of 1, 2 and 3, which average to a grade of 2.00 for the procedure. (Petitioner's Exhibit 8) Examiner #006 graded both Dr. Farah and Candidate 20057 on their periodontal treatment. That examiner gave Candidate 20057 a holistic grade of 4 (better than minimally acceptable), noting a deduction for "root roughness," but there is no indication on the grade sheet of the tooth or teeth on which roughness was found. Examiner #015 also gave Candidate 20057 a grade of 4, and noted "root roughness" on the mesial side of tooth number 7, which was not one of the teeth later treated by Dr. Farah. The third examiner gave Candidate 20057 a grade of 5 with no comments. (All comments are found on Respondent's Exhibit 3.) After Dr. Farah's treatment of the patient, which occurred two days after the treatment provided by Candidate 20057, Examiner #006 gave Dr. Farah a grade of 3, and recorded that he found sub-gingival calculus on the mesial side of tooth number 3. Calculus is a mineral deposit on teeth which does not form in 48 hours; Examiner #006 missed the calculus on tooth 3 when grading Candidate 20057 (perhaps because it was obscured by the inflammation and bleeding of the gums which the patient testified about at the hearing) or the calculus was on a tooth other than tooth 3, and the wrong tooth was noted by Examiner #006 on Dr. Farah's grade report. Examiner #005 gave Dr. Farah a grade of 2, finding root roughness and sub-gingival calculus on the distal side of tooth number 12, a tooth not treated by Candidate 20057. Examiner #048 gave Petitioner a grade of 1, commenting on "several" instances of sub-gingival calculus on teeth treated by Dr. Farah, as well as the presence of root roughness. (All comments are found on Petitioner's Exhibit 4.) Examiner #006 gave Dr. Farah the highest of her grades on the periodontal procedure, which was that it was minimally acceptable. The other examiners determined that Dr. Farah's treatment left sub-gingival calculus, and was below minimally acceptable standards (the grade of 2) or was unacceptable (the grade of 1). At the hearing Dr. Farah agreed that if calculus remained the appropriate grade would be 2 or lower. There is no reason to adjust the grades assigned on the periodontal exercise. Dr. Farah also prepared a cast class II restoration onlay wax up on a posterior tooth on a stone mannequin of a lower jaw. She received grades of 5, 3 and 2, which average to 3.33. Examiner #080 assigned a grade of 2, wrote on the grading form "undercuts," and also noted that the procedure had a marginal surface finish. Examiner #133 assigned a grade of 3, and noted "poor outline form" but added no comment concerning an undercut. The third examiner, #048, made no deductions and assigned a grade of 5. An "undercut" is an improper preparation of a tooth surface which is to support a crown. During the preparation of the assigned tooth, the center portion of the tooth was reduced to create a trapezoidal shape, similar to an equilateral triangle, the top of which has been cut by a plane parallel to its floor. A wax model of the crown is then prepared. If the side walls of the trapezoid, when the prepared surface is viewed from the top, do not slope downward and slightly outward, when the wax cast is removed, the wax deforms, and the crown made from it will not seat correctly on the tooth. This may cause the crown to fail, and is a serious error. When a curved dental explorer is placed against the base of the tooth and against the surface of the tooth vertically, one may observe whether there is an angular displacement outward from the vertical at the top, indicating an undercut. On Dr. Farah's preparation this test reveals an undercut. The testimony of Dr. Farah's expert, Dr. Robert Murrell, was that a "surveyor" is the proper instrument to use to evaluate a tooth preparation surface for an undercut. Dr. Murrell did so and determined there was no undercut on the Petitioner's work. There are two difficulties in determining whether there is an undercut using the surveyor. The surveyor's rod is fixed in a vertical position and cannot reflect whether it is actually up against the base of the tooth or not, and viewing the rod from the top down does not give visual confirmation whether the top edge is wider than the bottom; neither can one visually inspect the vertical alignment from the side because the remaining portion of the tooth would prevent one from viewing the alignment from the side position. Secondly, as the expert for the Department, Dr. Theodor Simkin, testified, the surveyor is not a proper instrument for determining undercuts on a mannequin, but is meant to be used on castings and other bridge or denture work done outside the patient's mouth. Logic supports Dr. Simkin's assessment, because a surveyor simply cannot be inserted into a patient's mouth. Dr. Simkin's testimony is also more persuasive because he has been, for several years, an experienced dental examiner and examination grading consultant. Dr. Murrell, while certainly a well-qualified dentist, has never been trained to grade the Florida clinical dental examination. Laying aside the question whether the surveyor or the explorer is the better instrument for assessing whether there is an undercut on a tooth, the other method for determining an undercut explained by Dr. Simkin is persuasive. If no undercut is present, when the stone mannequin of the mouth on which Dr. Farah worked is viewed from directly above, it should be possible to view all four bottom corners of the preparation surface at the same time; if there is an undercut, the undercut bottom corner will be hidden when all of the other corners are viewed. Visual examination confirms the presence of an undercut in the front right corner of Dr. Farah's preparation.
Recommendation It is recommended that the petition for regrading of the failing score assigned to Dr. Farah on the June 1985 clinical dental examination be DENIED. DONE AND ORDERED this 27th day of March 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 27th day of March 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0235 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Findings of Fact (onlay) Rejected for the reasons stated in Findings of Fact 14 and 16. Accepted in Finding of Fact 15. Rejected for the reasons stated in Finding of Fact 15. Findings of Fact (periodontal)1 Generally accepted in Findings of Fact 1 and 8, except for the final sentence, which is rejected as argument. Rejected for the reasons stated in Findings of Fact 10 and 11. In addition, the question of whether the performance of Candidate 20057 was properly graded does not arise in this proceeding. If Candidate 20057 received high grades although three of the seven teeth treated had to be retreated 48 ours later by Dr. Farah, this does not address the central question in this case: Did the treatment provided by Dr. Farah meet minimum standards? [page 7] Rejected because there is no competent substantial evidence that Dr. Simkin was Examiner #015, but if he was, the proposal is argument, not a finding of fact. Rulings on Findings of Fact Submitted by Respondent Accepted in Findings of Fact 4, 5 and 6. Accepted in Finding of Fact 5. Accepted in Finding of Fact 4. Accepted in Finding of Fact 3. Accepted in Findings of Fact 3 and 7. Accepted in Finding of Fact 8, 9 and 10. Accepted in Finding of Fact 11. Accepted in Finding of Fact 12. Accepted, but clarified in Findings of Fact 13 and 14. Accepted in Finding of Fact 15. COPIES FURNISHED: Mr. Fred Varn Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dr. Mina Farah 21-32 Crescent Street #D-7 Astoria, NY 11105
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 August, 2001.
The Issue The issue in this case is whether Petitioner should receive a passing score on the December 2001 dental license examination.
Findings Of Fact In December 2001, Petitioner took the dental licensure examination and failed to pass the clinical portion of the exam. The examination is a three-day process involving two days of clinical examination. Those two days of clinical examination consist of nine procedures. Four of the nine procedures were challenged by Petitioner. The clinical portion is where the candidate is required to perform certain patient procedures. The work product of the student, or candidate, is evaluated following the performance of those procedures by three examiners. Each examiner grades the candidate independently of whatever score the other examiners may award on a particular procedure. Then the average grade for each procedure is weighted in accordance with requirements of Rule 64B5-2.013, Florida Administrative Code. This produces the overall score for the entire clinical exam. The Department uses three examiners' scores because this provides a more reliable indication of the candidate's competency and true score. Further, each examiner must be a licensed dentist for a minimum of five years and have no complaints or disciplinary actions against their license. Examiners have no contact with the candidate taking the examination and, accordingly, have no idea of who they are grading. To further ensure fairness, each examiner must attend and successfully complete a standardization session. The purpose of these sessions is to ensure that each examiner is trained to use the same internal grading criteria. In standardization, each examiner is thoroughly taught specific grading criteria with the result that examiners are instructed on how to evaluate the work of the candidates. The examiners who graded Petitioner’s examination had successfully completed the foregoing standardization session. Also, the Department’s post-exam check found these examiners’ grading to be reliable. Petitioner contested the score he received on Procedure 4, the Endodontic procedure, a root canal. The Endodontic procedure required removal of infected nerve tissue and blood vessels pulp from the tooth. Petitioner was required to access the canal and pulp tissue from the outside. Then, Petitioner was required to remove the bad nerve and cleanse the canal. Finally, Petitioner was required to seal the canal to prevent recurring bacteria. Petitioner failed to observe a fracture in the tooth. He claimed that a fracture to the root of the tooth was caused by the Department after he reviewed his examination and that no one advised him the root was fractured. Petitioner requested a score of 3.00 for this procedure. However, the Department's witness, Dr. William F. Robinson, a licensed dentist for 32 years who examined the tooth and X-ray prepared by Petitioner, testified that the fracture to the root was noticed in both the X-ray and on the tooth when he examined the same. Additionally, two of the three re-graders also noted the fracture of the root. With regard to Petitioner's preparation of the X-ray at the conclusion of the examination, Dr. Robinson opined that Petitioner caused the fracture to the root during the examination and not the Department, as alleged by Petitioner. Dr. Robinson further opined that even without a fracture to the root of the tooth, Petitioner failed the procedure and the failing grade he received was fair. Dr. Robinson would not recommend that Petitioner receive a passing score of 3.00 on the procedure. The examiners' comments and grades and the testimony of Dr. William F. Robinson establish that Petitioner failed to properly perform this procedure. The grade Petitioner received was fair. Petitioner challenged the grade he received on Procedure 5, the Class IV Composite Restoration of the front tooth, but did not offer any testimony at the hearing as to why the score was not correct for the procedure. Petitioner requested that the score of 1.00 given by one of the examiners be thrown out, thus giving him a passing grade on this procedure. Procedure 5 of the dental licensure examination is a procedure that involves the candidate’s ability to replace the edge of the front tooth with a composite resin material, which is a tooth-colored filling. As established by the examiners’ comments and grades and the testimony of Dr. William F. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Specifically, the examiners found that the tooth was abraded and the re-grader noted, as did the examiners, the excessive “flash” on the tooth. Dr. Robinson also noted both deficiencies in the procedure. Petitioner contested the score he received on Procedure 6, the Class II Composite Restoration procedure in his original petition, but offered no testimony at the hearing concerning this procedure. Dr. Robinson reviewed the examiners' grades and the tooth prepared by Petitioner and opined that Petitioner’s grade of 2.66 for this procedure is fair. Based on the examiners’ comments and grades and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Petitioner contested the score he received on Procedure 7, the preparation for a 3-unit Fixed Partial Denture, claiming that on the re-grade one of the examiners reviewed the wrong procedure. The Preparation for a 3-unit Fixed Partial Denture procedure of the dental licensure examination is a procedure that involves the candidate’s ability to provide preparations of two (2) teeth in order to replace a missing tooth with a fixed bridge. Dr. Robinson established that Petitioner’s work on this procedure resulted in one tooth, No. 29, being grossly over reduced and tooth No. 31 was insufficiently reduced. The result of such work is that it is impossible to place a bridge on such an improper preparation. As established by testimony of Dr. Robinson, Petitioner's problem with this procedure resulted from Petitioner’s undercut. This undercut indicated that Petitioner’s preparations were not properly aligned to accept a bridge. Based on the examiners’ comments and grades, and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. The Department's “re-grade” process was utilized in this case. Used to give all candidates who timely request a hearing another chance at passing, the re-grade process allows the Department to go back and determine whether any grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade process. The Department maintains post-standardization statistics of the examiners’ performance. In this case, those statistics indicated that Petitioner’s examiners graded reliably. In addition, the Department calculates post- examination statistics for the examiners, which are as follows for the examiners who graded Petitioner’s challenged procedures: Examiner Accuracy Index & Rating #206 95.8-Excellent #375 98.8-Excellent #380 92.1-Good #334 97.8-Excellent #298 95.9-Excellent #375 98.8-Excellent-was an original and a re-grader. All of Petitioner's examiners exhibited a reliability significantly above the minimum acceptable accuracy index of 85.0.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the December 2001 dental licensure examination. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2002. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Jason S. Baker, D.M.D. Westchester Medical Center 95 Grasslands Road, Box 572 Valhalla, New York 10595 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
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
Findings Of Fact Dr. Roberts and His Background Dr. Steven Roberts is a dentist licensed to practice in the State of New York. He attended the United States Military Academy and received his undergraduate degree in 1970. He graduated from the New York University College of Dentistry in 1978, and practiced dentistry in New York, New York from 1978- 1987. To be licensed in New York, Dr. Roberts passed the national boards and the northeast regional board examination. During the course of his practice in New York, Dr. Roberts never received a complaint or had a claim for malpractice made or filed against him. Clinical Examinations Dr. Roberts took the Florida clinical dental examinations in June of 1986, January of 1987, and June of 1987. His grade on the June of 1987, examination is the subject of this proceeding. Dr. Roberts has successfully passed the written examination and the diagnostic examination required for licensure by Section 466.066(4)(a) and (c), Florida Statutes. Dr. Roberts' score for the June of 1987, clinical dental examination was 1.95; the minimum passing score is 3.00. The procedures tested during the June 1987, Clinical Dental Examination and Dr. Roberts' scores were as follows: The Procedure The Score The Revised Score Periodontal 1.67 Amalgam Cavity Preparation 1.67 Amalgam Cavity Restoration 3.00 Composite Preparation .67 Composite Restoration .33 Posterior Endodontics 2.00 3.66 Cast Preparation 2.67 3.00 Pin Amalgam Preparation 1.00 Pin Amalgam Restoration 1.67 Denture 3.63 Total Score 1.95 2.15 Dr. Roberts made a timely request to review his grade, and filed objections to his grades; a regrading procedure resulted in the regrading of his scores for posterior endodontics and cast restoration as set forth above. Each of the procedures tested in the clinical dental examination is scored by three different examiners. For each procedure examiners record their scores on separate 8 1/2" X 11" sheets. Each sheet has a matrix of circles which are blackened with a pencil so that they can be machine scored. On each sheet the candidate's identification number and the examiner's identification number are recorded along with the number for the procedure involved and the candidate's grade. On the sheet for each procedure the criteria for successful performance of the procedure are printed, along with preprinted comments which the examiners may use to explain the reason for the grade assigned. These comments relate to the criteria being examined. The following grades may be assigned by examiners: Complete failure Unacceptable dental procedure Below minimum acceptable dental procedure 3- Minimum acceptable dental procedure 4- Better than minimal acceptable dental procedure 5- Outstanding dental procedure An examiner is not required to mark a comment if the grade assigned is 5, a comment is marked for any grade below 5. Each procedure is graded in a holistic manner. Grades assigned by each of the three examiners for a procedure are averaged; the averaged scores for each procedure are then weighted and the weighted scores are summed to provide the overall clinical grade. By averaging the scores of three examiners for each procedure, variation from examiner to examiner is minimized. The examiners are experienced Florida dentists selected by the Board of Dentistry. An examiner must have at least five years of experience as a dentist and be an active practitioner. Potential examiners attend a standardization training exercise. This training is required by Section 466.006(4)(d), Florida Statutes. Its purpose is to instruct examiners in examination procedures and the criteria to be applied in grading. Through the training the examiner group as a whole arrives at a consensus opinion about the level of grading, so that candidates' scores on the examination will be valid and reliable. The training attempts to focus on each examiner's subjective, internalized evaluation criteria, so that they can be modified, as necessary, to reflect the consensus of all graders. A standardizer explains grading criteria to the potential examiners, and discusses various divisions among schools of thought and training on the procedures which will be the subject of the examination. The standardizer uses dental exhibits from prior dental exams as examples, and identifies grades and errors on the exhibits so that the graders learn and can adhere to uniform grading standards. The training focuses on three problems which professional literature has identified in evaluation: errors of central tendency, proximity errors, and bias a priori. Errors of central tendency result when graders are uncertain of criteria, hesitate to give extreme judgments, even in appropriate cases, and thus tend to improperly grade near the average. Proximity error is a type of halo effect which is applicable in grading of mannequin exhibits. The examiner grades all of the mannequin exhibits for each candidate at one time. If the first example of the candidate's work is especially good, and deserves a grade of 5, the grader may tend to transfer a generally positive attitude towards the next example of the candidate's work and assign a grade which may not be based solely upon the merits of that second piece of work. The same process can improperly depress the grades on subsequent mannequins if the first example of a candidate's work is poor. Bias a priori is the tendency to grade harshly or leniently based upon the examiner's knowledge of the use that will be made of the grade, rather than only on the quality of the work graded. After an 8 to 12 hour standardization training session, the Department administers an examination to those who have been trained. Those with the highest scores become the examiners, i.e., dentists who will grade candidates' work, while those with the lower scores in the training session become monitors, who supervise the candidates in their work on mannequins or on patients, but who do not actually grade student work. There is, however, no minimum score which a dentist who attends the standardization session must obtain in order to be an examiner rather than a monitor. This results, in part, from the limited pool of dentists who participate in the examination processes as monitors or examiners. For the 1987 clinical dental examination 31 dentists accepted selection by the Board and attended the standardization session, 20 were then selected as examiners and 11 became monitors for the examination. None of the dentists who attended the standardization session were dismissed by Department of Professional Regulation from further service at the examination session. The process by which the Department selected the examiners for the 1987 clinical dental exam was neither arbitrary nor capricious, but comports with Rule 21G- 2.020(4), Florida Administrative Code. The standardization training and examination of dentists to determine who will serve as examiners and monitors does not provide any bright line for distinguishing among potential examiners those who will make the most assiduous effort to apply the grading criteria explained in the training session versus those who retain an innate sense of a passing work based on what the examiner considers acceptable work in his own practice. The effort to convey to examiners the standard of "minimum competency" has imperfect success, but the Department's training is appropriate. Out-of-State Candidates' Scores 11. There is a substantial difference in the failure rates for out-of- state candidates and for in-state candidates on the clinical dental examinations. In the June of 1987, exam 82.5% of the candidates who graduated from the only in-state dental school, the University of Florida, passed the entire examination, while 54.2% of the out-of-state graduates passed, and only 37.8% of candidates from foreign schools were successful. Overall, 86.5% of the candidates passed the written portion of the examination, 93.5% the portion on oral diagnosis, but only 63.3% the clinical portion of the examination. Dr. Roberts has failed to prove that the lower pass rate for out-of- state candidates is the result of any sort of conscious effort on the part of examiners to be more stringent in grading out-of- state candidates. Dr. Kennedy's testimony indicated only that the data bear more analysis, not that they prove improper grading. Procedures Performed on Mannequins The Board of Dentistry tests between 600 and 700 dental candidates per year. It is extremely difficult for the candidates to find patients who have exactly the problem which is to be tested and bring them to the examination to work on. Some portions of the clinical dental examination, therefore, are not performed on patients, but on cast models of human teeth which resemble dentures, and which are known as mannequins. This is expressly authorized by Section 466.006(4)(a), Florida Statutes. The notice to appear which candidates receive approximately 30 days before the examination informs them of the types of mannequins which will be used in the examination. Before that time, however, dental supply companies obtain lists of those eligible to take the examination, and contact the candidates in an attempt to sell them the mannequins. Candidates must bring mannequins with them to the examination and can purchase additional mannequins for practice. Testing with mannequins is also more efficient because with live patients, the student must be graded at the time of the examination, while a model can be retained and graded a day or two later. The decision of the Board to have certain procedures performed on mannequins, so that each candidate would be graded on exactly the same procedure, is reasonable. The Board had also considered having students perform all test procedures on extracted human teeth, but there are not a sufficient number of all natural teeth available, given the number of students who are tested, both for the examination itself and for practice. The Board determined that it would be better to use mannequins for some of the procedures tested in the examination because they are readily available and students can purchase extra copies for practice. For certain procedures, such as endodontics, specific natural teeth (such as first bicuspids) are often extracted and so are generally available; for procedures performed on those teeth, it is possible to have candidates work on human teeth. By contrast, testing procedures performed on teeth such as incisors is not practicable. It is impossible to obtain enough incisors in good condition, without restorations and chips, for use during an examination. The statute governing the dental examination does require that one restoration performed by candidates must be done on a live patient, and for the June 1987, clinical dental examination that procedure was a class 2 amalgam restoration. The Board directed by rule that mannequins be utilized for five test procedures: the pin amalgam preparation and restoration, Rule 21G-2.013(3)(d), Florida Administrative Code; the endodontic procedure, Rule 21G-2.013(3)(e) Florida Administrative Code; the posterior tooth preparation for a cast restoration, Rule 21G-013(3)(f), Florida Administrative Code, the class III acid etch composite preparation and class IV acid etch composite restoration, Rule 21G-2.013(3)(g), Florida Administrative Code. Performing these procedures on mannequins is not exactly the same as performing procedures on human teeth in a patient. In view of the difficulty involved in finding patients whose teeth present virgin lesions, so that each candidate would be tested on exactly the same problem, the difficulty in grading a large number of procedures performed on live patients, and the difficulty in obtaining a large number of human teeth necessary for testing and for practice, the Board's decision to use the mannequins for these procedures is reasonable. The Legislature recognized this in Section 466.006(4)(b), Florida Statutes, which prescribes that the clinical dental examination shall include restorations "performed on mannequins, live patients, or both. At least one restoration shall be on a live patient." The Board was within its authority when it determined the procedures to be performed on mannequins. Violation of Blind Grading The dental examiners who grade the work of candidates grade blindly, i.e., they do not know which candidate's work they are grading. The Clinical Monitor and Examiner Instruction Manual for the June of 1987, examination makes this clear. At page 24 paragraph 3 the Manual states Examiners are requested to disqualify themselves at anytime they are presented with models or patients treated by a dentist who they know personally or with whom they have had professional contact. All examiners are requested to give department staff the name of any examination candidate who is personally known to them to be taking the exam. The department staff will assist the examiners in avoiding any work performed by the candidates they know. Rationale: Allegations have been made about examiners who knew candidates taking the exam even though the examiners only see candidate numbers. Monitors and Examiners are strongly urged to avoid discussion with candidates about the examination. Even conversation about non-examination related matters can be misinterpreted by other candidates as an unfair privileged communication. Despite this admonition, one of the examiners, Dr. Cohen, who knew Dr. Roberts, graded the work of Dr. Roberts. Dr. Cohen met Dr. Roberts the first time Dr. Roberts took the Florida Clinical Dental Examination in June of 1986. Dr. Roberts had with him a bag which would have identified him as a student from New York University, where Dr. Cohen had taught. Dr. Cohen came over to Dr. Roberts, introduced himself, gave Dr. Roberts his card, (exhibit 44) and invited Dr. Cohen to his hotel room where they discussed practicing dentistry in Florida. In 1986 Dr. Cohen was associated with another dentist, Gerald P. Gultz, who had recently moved to Florida from New York. Dr. Gultz had also been a part-time clinical assistant professor of dentistry at New York University College of Dentistry. After Dr. Cohen returned from the June 1986, administration of the clinical dental examination, he had a conversation with Dr. Gultz in which Dr. Cohen asked Gultz if he knew Dr. Roberts, and commented on Dr. Roberts performance on the clinical examination. Dr. Cohen said Dr. Roberts had done terribly, and Dr. Cohen believed that Dr. Roberts would never get his license to practice in Florida. (Tr. 5/26/88 at 73). Dr. Roberts saw Dr. Cohen at the January of 1987, clinical dental examination, but they did not speak. In June of 1987, Dr. Cohen also spoke briefly to the wife of Dr. Gerald Gultz, Lauren Gultz, saying that he would be seeing Dr. Roberts at the June of 1987, clinical dental examination, which was coming up. He told Mrs. Gultz that Dr. Roberts was a poor practitioner, and that he did not think he would pass the examination. At the June 1987, exam, Dr. Roberts' periodontal patient was his uncle, Mr. Finkelstein. Dr. Cohen was one of the examiners who reviewed Mr. Finkelstein to determine whether his condition was appropriate to serve as a patient for Dr. Roberts on the periodontal portion of the examination. Dr. Cohen had a conversation with Mr. Finkelstein in which he told him "tell your dentist to do a good job". Because Mr. Finkelstein had stated that his dentist was a graduate from N. Y. U. Dental School, Mr. Finkelstein was convinced that Dr. Cohen knew exactly who the dental candidate who would work on Dr. Finkelstein was -- Dr. Roberts. After accepting Mr. Finkelstein as an appropriate periodontal patient, Dr. Cohen also served as a grader on the periodontal procedure performed on Mr. Finkelstein. After grading the work which Dr. Roberts had done, Dr. Cohen told Mr. Finkelstein to tell his dentist that Dr. Cohen would see him later in the hotel where they were staying. At the hotel, Dr. Cohen talked to Dr. Roberts about the dental examination, that he himself had to take the examination three times, although he considered himself to be a superior dentist, and that Dr. Cohen could help Dr. Roberts with his grades but that he could never grade Dr. Roberts more that one grade higher than any of the other examiners. Dr. Cohen served as an examiner (i.e. grader) for Dr. Roberts on six of the nine procedures tested. There were: procedure number 1, the periodontal evaluation where he assigned a failing grade of 2; procedure number 4, the class III composite preparation, where he assigned a failing grade of 1; procedure number 5, the class IV composite restoration, where he assigned a failing grade of 1; procedure number 6, the endodontic evaluation, where he assigned a passing grade of 3; procedure number 7, the preparation for a cast restoration, where he assigned a passing grade of 3; and procedure number 8, the pin amalgam preparation, where he assigned a failing grade of 1. This failure of blind grading is a serious irregularity in the evaluation of Dr. Roberts' performance on the 1987 clinical dental examination, given his prior negative comments about Dr. Roberts before the examination. By ignoring those scores, Dr. Roberts would be evaluated only by two examiners, on all the procedures for which Dr. Cohen gave a grade. This would mean that his scores would not be comparable with those of any other candidate, for his grade on each procedure would not be the result of blind grading by three independent examiners. Dr. Roberts' Challenges to Grades Assigned by Other Examiners The full nine procedures evaluated in the 1987 dental clinical examination and Dr. Roberts' grades were: A periodontal exercise performed on a live patient, Mr. Finkelstein, which involved the scaling of five teeth both above and below the gum and stain removal. Dr. Roberts was assigned scores of 1, 2, and 2 by the examiners (one grade of 2 was assigned by Dr. Cohen) An amalgam cavity preparation, performed on a live patient, Elizabeth Cox, which is the preparation of a tooth for filling. When the preparation is completed a proctor escorts the patient to the three examiners who independently grade this part. After grading, the patient returns to the candidate who completes the filling of the tooth (the restoration) which is subsequently graded independently by three examiners. Dr. Roberts was assigned grades of 1, 1, and 3 for the preparation (none of these grades were assigned by Dr. Cohen). A final amalgam restoration, which is the filling of the tooth prepared in the prior procedure. Dr. Roberts received grades of 3, 3, and 3 on this procedure (none of the grades were assigned by Dr. Cohen). A class III composite preparation, which is preformed on a model, not a live patient. This involves removing decay and shaping a tooth to hold a class III filling, i.e., one located on the side surface of an incisor. Dr. Roberts received scores of 1, 0, and 1 (Dr. Cohen assigned one of the grades of 1) A class IV composite restoration, which is performed on a model, not a live patient. This involves restoring a fractured tooth with a composite restoration material. On this procedure Dr. Roberts received scores of 0, 0, and 1 (Dr. Cohen assigned the grade of 1). An endodontic evaluation performed on a posterior tooth, which is performed on a mannequin, and involves the opening of a molar, and identification of the canals in the tooth in preparation for a root canal procedure. Originally Dr. Roberts received grades of 3, 3, and 0 (one of the grades of 3 was assigned by Dr. Cohen). Dr. Roberts work was regraded by three new examiners and the grades of the original examiners were discarded. Dr. Roberts ultimately received a grade of 3.67 on the endodontic portion of the examination A preparation of a posterior tooth for a cast restoration, which is performed on a mannequin. It involves preparing a tooth to receive a crown. Dr. Roberts' original grades were 2, 3, and 3 (Dr. Cohen had assigned a grade of 3 on this procedure). On review, Dr. Roberts' was regraded by three new examiners, and the original grades were discarded. Dr. Roberts received a final grade of 3 on this portion of the examination. A pin amalgam preparation, which is performed on a model, not on a live patient. This involves the preparation of a tooth to hold an amalgam filling by inserting a pin into a portion of the tooth, which serves to anchor the filling. Dr. Roberts was assigned grades of 2, 0, and 1 on this procedure (Dr. Cohen assigned the grade of 1). Pin amalgam final restoration, which is performed on a model. It involves filling a tooth with amalgam filling material. Dr. Roberts was assigned grades of 2, 1, and 2 on this procedure (Dr. Cohen assigned one of the grades of 2). Due to the involvement of Dr. Cohen in so many of the procedures involved here, Dr. Roberts performance on the June of 1987, clinical dental examination was not fairly evaluated. A fair evaluation cannot be provided after the fact by merely dropping Dr. Cohen's grades, because Dr. Roberts' performance would not be subject to the independent evaluation of three examiners. Dr. Roberts relies, to a large extent, on the testimony of Dr. Gultz as the basis for regrading his procedures to a passing grade of 3, or better. The testimony of Dr. Gultz does not, however, show that he has ever participated in the standardization exercises for examiners at Florida clinical dental examinations. Dr. Gultz experience as a clinical professor of dentistry at New York University provides a substantial basis for his evaluation of dental procedures. The difficulty, however, is that as with any qualified examiner, his evaluations will be based on internalized standards which are personal to him. There is no way to know whether Dr. Gultz standards for adequate performance are equivalent to those which the standardization training produces among examiners at the standardization exercise before a clinical dental examination. The standardization process "attempts to bring all examiners to the same level of grading, so that each [examiner] is grading in a valid and reliable manner." Clinical Monitor and Examiner Instruction Manual, June of 1987, at page 42. The Florida dental clinical examination uses a holistic grading method. Each score sheet which an examiner fills out has on it the criteria to be applied in evaluating the candidates performance on that procedure. They all contain a statement which reads: It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value, but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have any assigned numerical or point value, but are to be utilized in making a holistic evaluation of the procedure. Each grading sheet also points out to the examiner certain critical factors which, if present, require a grade of 0 for the procedure. The standardization in grading which the Board diligently attempts to achieve through the standardization training and the standardization testing of examiners done at the close of the training is elusive at best. Nonetheless, in the absence of showing that Dr. Gultz standards of evaluation are equivalent to those of an examiner trained at a standardization session, it is impossible to know whether his standards of evaluation are more rigorous or less rigorous than those reflected by the grades assigned to other candidates by the corps of examiners which evaluated the work of candidates at the June of 1987, clinical dental examination. The same is true with respect to the testimony of Dr. Simkins, the expert for the Board in this proceeding. No useful purpose would be served in attempting to choose between the testimony of Dr. Gultz, on the one hand, and the testimony of Dr. Simkins and of the other examiners who testified by deposition in this proceeding. If this were to be done, all the hearing officer would have determined is whose testimony about the appropriate grade to be assigned for each procedure is more believable. On this record it would be impossible to make a further finding about whether that more believable testimony reflects a scoring standard more stringent, less stringent or the same as that generally applied to all candidates by the corps of examiners in the June of 1987, clinical dental examination.
Recommendation It is recommended that the results of the clinical dental examination which Dr. Roberts took in June of 1987, be found invalid, and that he be permitted to take the next clinical dental examination offered by the Department of Professional Regulation at no cost to him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of December, 1989. WILLIAM R. DORSEY, JR. 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 8th day of December, 1989.
The Issue Should Respondent's license as a dentist in Florida be disciplined because of the matters alleged in the Administrative Complaint filed herein?
Findings Of Fact At all times pertinent to the matter in issue herein, the Petitioner, Board, was the state agency responsible for the regulation and supervision of the dental profession and the licensing of dentists in Florida. Respondent was a licensed dentist holding license Number DN 0010500. At all times pertinent to the matters in issue herein, Respondent was actively engaged in the practice of dentistry at his office located at 1429 Kass Circle, Suite A, Spring Hill, Florida. In mid-January, 1990, Henrietta Pollio, then a 69 year old widow, had two teeth pulled by a Dr. Pikos, to whom she had been referred by her daughter, a patient. Dr. Pikos recommended she see Respondent for replacements for the pulled teeth, and on January 22, 1990, she saw Respondent in his office. At that time, Ms. Pollio told him she had had two teeth pulled and already wore a bridge. She initially wanted only her lower denture replaced, but Respondent suggested she replace both the lower and upper for a better fit. She agreed. In March, 1990, Mrs. Pollio went to the Respondent's office for impressions for the new dentures. In the interim, she continued to wear her existing dentures which she had worn for several years. When she got her first set of dentures from Respondent that same month, she didn't like how they looked or how they fit. She told him so, and he agreed to make her another set. When Respondent gave her her second set of dentures, she did not think they fit any better than the first set he had made for her. They were uncomfortable and she felt the lower denture was too loose. When she told him about this, he said that teeth were supposed to be placed on gums. She disagreed, saying she wanted them to be comfortable so she could chew. She claims he merely stated to her that this was the way they were to fit. He did, however, attempt to adjust both sets over the several times she saw him. Each time she went for an adjustment, Respondent would make some change to the dentures and allegedly said he would get them right even if it took 5 years. However, when he offered to reline the second set of dentures, as he had done to the first set, she refused because she didn't want a reline. She wanted the teeth to be made to fit properly. In all, Dr. Gibney performed 27 adjustments on Mrs. Pollio's dentures. According to Dr. Cadle, it is not routine for a dentist to provide a second set of denture for an unsatisfied patient but it is not unheard of. This fact and the numerous adjustment are, in his opinion, evidence that Respondent was trying to satisfy his patient. By December, 1990, Mrs. Pollio was still complaining to Respondent about the fit of the teeth he had made for her. Respondent claims she wanted a complete partial refund of the amount she had paid. He ultimately offered her a refund of $550.00 if she would sign a release and she decided to think about the offer. When she went back the next day, she claims the office was closed. She later again went to Respondent's office where his assistant, Ginger, handed her a letter terminating the doctor/patient relationship. It was after she received that letter that she agreed to accept the money Respondent had offered but she still refused to sign a release because of the "pain and suffering he had caused her." Dr. Donald I. Cadle, Jr., a dentist practicing in New Port Richey since 1971, former Chairman of the Board of Dentistry, and an expert in general dentistry, was retained by the Board to evaluate Respondent's performance in this case. He reviewed Respondent's records regarding his treatment of Mrs. Pollio including correspondence and x-rays, and the investigative report rendered herein. He also examined Mrs. Pollio on October 14, 1991 and on the basis of all the above had sufficient information on which to base an opinion of the Respondent's work. His review of the lab procedure authorization forms presented to him reveals a lack of finish date on many individual forms. This date is required so that the dentist will know when to arrange for the patient to come back for the dentures. He also noted than on several forms the description of the patient and her condition was minimal but probably enough to be acceptable. On one form the Respondent failed to state how he wanted the teeth set in the mold, (occlusion, spacing, etc.). On other forms, Respondent failed to specify the material used and on some, there was no direction as to contour. As to Respondent's patient records, used to keep all pertinent information regarding a patient in one area, both the statute and the rules say they should include such information as the results and findings of the doctor's initial examination of the patient; a written diagnosis; and a treatment plan. In evaluating Respondent's records relating to Mrs. Pollio, Dr. Cadle found that the treatment notes were adequate as to procedures performed, (what he did in day to day treatment) but that the examination findings and charting of existing conditions were, in his opinion, inadequate. This information would have been determined in the examination at the initial appointment. Respondent's entry is "Denture consult - advised new F/F denture because patient is unable to function with existing F/F denture." In Dr. Cadle's opinion, the Respondent's entry fails to show detailed examination findings which can be found no place else. Also, he claims, the patient history and the dental history forms are inadequate. There is no evidence shown of sores, irritants or other abnormalities and there should be some explanation in the history as to why the patient checked "yes" to questions asked regarding condition. There should also be a diagnosis which relates to the dental conditions in the patient's mouth. Problems had been identified in Dr. Pikos' records, but these are not diagnoses and Dr. Cadle is of the opinion it is lax practice to accept another dentists observations. Dr. Pikos indicated to Respondent by letter that he had discussed some problems and possible alternatives with Mrs. Pollio and this letter was a part of Respondent's records. Nonetheless, Dr. Cadle felt this was not enough. Respondent also should have discussed all alternatives with her. In rebuttal, Respondent asserts that the use of the term "consult" in the records covers his discussion of implants, adhesives and surgery even though they are not specifically noted. He also claims he discussed her pain and other problems when he read the dental history form filled out by Mrs. Pollio's daughter. While it is found that Respondent engaged in the appropriate discussions with Mrs. Pollio, his records do not reflect that and, as such, are inadequate to clearly identify his diagnosis and treatment plan. Cadle found Respondent's treatment plan acceptable as such but other options which existed should have been discussed with the patient and noted in the records. None were so noted. Based on his review of all the available records, Dr. Cadle opined that Respondent's records failed to justify his treatment of Mrs. Pollio and did not meet the required standards as to examination findings and diagnosis. Dr. Cadle examined Mrs. Pollio on October 14, 1991 to evaluate the treatment provided by Respondent and the conditions existing in her mouth. In his report prepared after that examination he noted that the comparison between her old dentures, those she was wearing, and the new ones prepared for her by Respondent, (second set), showed a difference which related to her complaint. He found the maxilary portion of those done by Respondent to be inadequate as to the portion of the anterior teeth which were set differently in the old set, and this related to one of her problems. The "F" sound portion was too heavy and the "S" sound caused a slight whistle. The complaint that the anterior teeth were too long related to the way they were set - the inclination of the teeth. This gave her the feeling they were too big. All of this was visible in her mouth. He also believed the mandibular denture was inadequate because of an over-extension of the border. The edge of the denture extended beyond where it should stop. The reason for this was that the soft tissue in the area was attached higher on the ridge than would be expected. This could have been compensated for during the patient examination and diagnosis and noted in the treatment plan. The patient should have been advised of the condition and what its consequences could be. Respondent's records failed to show this was done. Taken together, Dr. Cadle was of the opinion that the dentures Respondent prepared were inadequate. There were actions he could have taken to correct this. At the initial examination and diagnosis he could have discussed the options available with the patient. Also, after construction of the dentures he could have corrected the maxilary denture by removing and resetting the six front teeth. He also could have reduced the mandibular borders. If that simple procedure had been done, according to Dr. Cadle, it might have resolved the problem. If he had contemplated doing this procedure, however, he would be required to warn Mrs. Pollio that to do it might reduce the strength of the denture and as a result, surgery might become a possibility. Dr. Cadle could find no evidence in the records that any of this was done except for a discussion toward the end of the doctor/patient relationship, but there was no notation as to what action he could take to correct any but one small part of the problem. None of the previous records showed any discussion of the problem or alternatives discussed. Based on the above, Dr. Cadle opined that Respondent's treatment of Mrs. Pollio failed to meet the minimum standards of performance as to both the maxillary and mandibular dentures. In that regard, the mental capacity of the patient should not enter into a determination of the standard of care to be provided. Dr. Ronald E. Myers practices dentistry in Spring Hill and is considered an expert in maxillofacial prosthodontics. He, too, reviewed the Respondent's records of his treatment of Mrs. Pollio and formed an opinion of Respondent's performance quite different from that of Dr. Cadle. He agrees with Cadle that Respondent's treatment records were acceptable for the treatment given but he opined, with regard to the lab requests, that there was sufficient data contained thereon to allow the lab technician to do what was required. A lab order is generally supplemented by either oral or written communications which permit the technician to know what is required. This has to be so since there is no way the dentist can write down all exact specifications on dentures. Here, the Respondent and the lab technician had an understanding of what the Respondent expected in each case as to types of acrylic, the base for the denture, and like matters, unless otherwise indicated. According to Mr. Eidenschink, the technician, he and Respondent had established certain basics as to materials and procedures to be used in all work done for Respondent. On the lab prescription, Respondent would specify what teeth he wanted, and frequently they would speak by phone about specific cases. This is, according to Myers, an accepted procedure. As to the lack of a return date, he admits they are lacking on the copies he saw. Evidence otherwise submitted indicates, however, that the slips examined by both experts, which came from the pad in the dentist's office, were duplicates whereas the original was given to the receptionist who set up a return appointment with the patient before sending that original, with a return date based on that appointment on it, to the lab. A substantial number of original lab slips, furnished by Respondent without objection by counsel for the Board subsequent to the hearing, all clearly reflected a finish date. As to the Respondent's chart dealing with Mrs. Pollio's existing condition, Dr. Myers admits the notes thereon are somewhat skimpy, but since Dr. Pikos' letter to Respondent indicated he had discussed the potential for surgery with Mrs. Pollio, Gibney could have relied on that. In any event, the diagnosis is there and the treatment plan evident is to fabricate complete new dentures. In his opinion, this is sufficient and meets standards. Based on all the above, Dr. Myers is of the opinion that Respondent's records, taken together, are adequate to meet the legal standards. Mrs. Pollio's undercut condition in her upper jaw did not contra- indicate full dentures. This condition does not always indicate the need for surgery. Here high tissue attachment in the front lower jaw can interfere with denture placement but a denture could be fabricated around it.. Psychologically, this can be a problem for denture wearers, many of whom, like Mrs. Pollio dislike wearing dentures and yearn for the days when they didn't have them. This being so, and coupled with her testy personality and her apparent inability to clearly comprehend the situation, Mrs. Pollio appears to be a difficult dental patient. Dr. Myers examined Mrs. Pollio on February 5, 1993. She brought both sets of dentures made for her by Respondent to the examination and was wearing her old dentures. He had her insert both sets of dentures made for her by Respondent and did speech tests and measurements with both. Then he mixed uppers and lowers from the sets in different combinations and when he asked her to give him the first set Respondent made, she gave him the lowers from both sets. Obviously, she was confused and she could not tell which was which from the feel in her mouth. Dr. Myers found the dentures to be made of high quality materials and fabricated to the "pleasure curve" Mrs. Pollio had developed in the old teeth. He did not care for the fit of the first set but this may have been due to the appearance instructions Mrs. Pollio gave to Respondent at that time. He found the second set to be "fine", however - fitting even better than her old set. As to the lower, the anterior flange was overextended into the mouth. This, however, could have been corrected by a minor procedure. Generally, this type of problem can be corrected if the patient and the dentist work together. Here, Myers feels Mrs. Pollio's frustration with the situation precluded this. The teeth were in the proper place, however, and with a possible realignments, they would have fit. Had Mrs. Pollio worked more with Respondent, he could have made them fit. The fact that Mrs. Pollio would go back to her old dentures from time to time could materially effect the fit of the new dentures because such a practice inhibits tissue adaptation. The current looseness of the dentures is due to tissue damage occurring during the past two years since Mrs. Pollio last saw Respondent. Dr. Myers is of the opinion that Respondent did all he could to help Mrs. Pollio accommodate to her new dentures. Unfortunately, it appears, she manipulated him. From all the evidence he observed, Dr. Myers also concluded that Respondent treated the patient properly. He is of the opinion that Respondent met community standards in both his dental records and history and the treatment given.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered by the Board of Dentistry finding Respondent, James W. Gibney, D.M.D., not guilty of incompetence or negligence and not guilty of both preparing inadequate work orders and failing to list examination findings and to chart existing conditions in his records, but guilty only of failing to include an adequate written diagnosis and treatment plan in his records, in violation of Section 466.028(1)(m), Florida Statutes. It is further recommended that Respondent be reprimanded. RECOMMENDED this 19th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 19th day of April, 1993. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. & 3. Accepted and incorporated herein. & 5. Accepted and incorporated herein. Accepted but dissatisfaction basis is as alleged by Mrs. Pollio. Accepted and incorporated herein. Accepted as claimed by Mrs. Pollio. Accepted. Accepted. Rejected as not proven by clear and convincing evidence. Accepted and incorporated herein. Rejected as not proven by clear and convincing evidence. Accepted in part and rejected in part. FOR THE RESPONDENT: No Proposed Findings of Fact submitted by Respondent. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Louis Kwall, Esquire 133 N. Ft. Harrison Avenue Clearwater, Florida 34615 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
