The Issue The issue in this case is whether the Department should give the Petitioner a passing grade on the June, 1993, Board of Dentistry Clinical Examination.
Findings Of Fact The Petitioner, Jose P. Cruz, took the June, 1993, Board of Dentistry Clinical Examination. Initially, he received a grade of 2.91, whereas a grade of 3.0 is passing. He requested a review of his grades and received some additional credit, raising his grade for the examination to 2.98--still failing, but quite close to a passing grade. The examination grade is a weighted aggregate made up of scores given on each tested procedure, using a formula for weighting the scores on each procedure. The possible scores for each procedure range from zero to five, with a score of three considered "passing" for a particular procedure. Likewise, weighted aggregates can range from zero to five, with a grade of 3.00 passing. Each procedure performed by the Petitioner (and the other examinees) was graded by three graders from pool of qualified graders. The Petitioner's graders not only were qualified, but they also were "standardized." "Standardization" is a process undertaken on the day before the examination to explain to the prospective qualified graders for an examination the criteria for grading the different procedures and how the criteria should be evaluated. The purpose of "standardization" is to insure that the graders are looking at the criteria in the same way, so that ideally each grader would grade the same performance the same way. Averaging the scores given by three "standardized graders" increased the reliability of the examination results. Procedure 8 on the examination was a pin amalgam preparation on an ivorine (plastic) tooth. Criteria for the procedure include: (a) outline; (b) depth; (c) retention; (d) pin placement; and (e) mutilation of opposing adjacent teeth. Two of the three graders gave the Petitioner a score of 3 on Procedure 8; the other gave him a 2. Procedure 9 on the examination was a pin amalgam final restoration on an ivorine (plastic) tooth. Criteria for the procedure include: (a) functional anatomy - appropriate occlusal and interproximal anatomy; (b) proximal contour and contact - contact is considered present when resistance is met with specified floss given at the time of the exam; (c) margins; (d) gingival overhang - overhang is considered to be excess amalgam in either a proximal or gingival direction at the gingival cavosurface margin; and (e) ma[n]agement of soft tissue. Two of the three graders gave the Petitioner a score of 2 on Procedure 9; the other gave him a 3. An ivorine (plastic) tooth is not the same as a real tooth. It is easier to carve, but it does not have the major external and internal landmarks created by the enamel, dentin and nerve root of a real tooth. Without additional instructions, the latter differences make it difficult or impossible for the examinee or a grader to apply certain criteria. The evidence was that the examinees received an examination booklet that instructed them to "treat simulated teeth as normal human teeth, that is, assume the simulated teeth have the same enamel, dentin, and pupil morphology as human teeth." The instruction in the examination booklet, by itself, leaves some important questions unanswered. "Normal human teeth" differ in the thickness of the enamel, not only from one person to another but also from tooth to tooth within any one person's mouth and even from place to place on any one tooth. Also, the direction in which the enamel rods run in "normal human teeth" differ, depending essentially on the shape of the tooth. The direction of the enamel rods is important in determining whether enough dentin is left under the enamel rods to support the enamel. "Normal human teeth" also have fissures, i.e., little cracks and grooves, and the margins of a preparation and restoration should be extended to include fissures that cannot be eliminated by enamelplasty. But ivorine teeth do not have all the fissures normal teeth have. As a result of these difference between "normal human teeth" and the test mannequin's ivorine teeth, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the following criteria for Procedure 8: outline form; depth of preparation; and retention. In addition, as to Procedure 9, functional anatomy depends upon a tooth's interaction with its opposing and adjacent teeth, but the mannequins did not have opposing teeth. As a result, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the criterion functional anatomy for Procedure 9. Similarly, the ivorine teeth in the mannequins were cemented in place, and points were to be deducted for moving them. This made it difficult, if not impossible--even with the information in the examination booklet--for the candidates to control proximal contour and contact, which are criteria for Procedure 9. Despite the deficiencies in the information in the examination booklet, taken by itself, there also was evidence that the graders were instructed orally during standardization, and the candidates were instructed during an orientation prior to the administration of the examination, that they were to assume an "ideal, minimal preparation" and that the purpose of the examination was simply to demonstrate basic knowledge of acceptable techniques. They also were told to assume "normal" or "ideal" enamel thickness of approximately 0.5 millimeter. Given those qualifications, they were told that the preparations were to have a "normal outline form" and "normal depth." As for functional anatomy, they were told that restorations were to "set up ideal (or normal) occlusion" by making the marginal ridges even and by replacing the restoration to the "normal shape of a cusp of a tooth." As for proximal contour, a restoration's marginal ridges were to meet (i.e., match) those of the adjacent tooth. Candidates also were allowed to ask questions as part of the orientation to clarify the oral instructions, as necessary. Given the additional oral instructions, the candidates and graders were given a clear enough understanding of the examination criteria. Evaluation of the candidates' and the graders' performance by the Department's psychometrician indicated that the examination was valid and reliable. The Petitioner's performance of Procedure 8 was primarily deficient in that the outline form was 0.25 millimeter short of the lingual occlusal groove, which was clearly visible on the ivorine tooth and which should have been included within the outline form. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. The Petitioner's performance of Procedure 9 was primarily deficient in that the restoration did not replace the "normal shape of a cusp of a tooth" and that the marginal ridges did not meet those of the adjacent tooth. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. There was evidence that, since the examination on ivorine teeth only simulates real teeth, which are easier to carve than real teeth, and is necessarily limited to a demonstration of basic knowledge of acceptable techniques, the examination does not directly test the candidate's ability to actually practice dentistry. But, due to heightened concern for the transmission of infectious disease, including HIV, ivorine teeth have been used in dental schools and in dental clinical examinations exclusively for over ten years, and the Petitioner did not prove that the use of ivorine teeth, instead of extracted real teeth, for his examination was unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Dentistry, enter a final order denying the Petitioner's examination challenge. RECOMMENDED this 28th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6923 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and not necessary. Rejected as not proven. (The exam should not necessarily measure a person with more dental experience as receiving a higher grade.) Accepted but subordinate and not necessary. Accepted and incorporated. 8.-10. Rejected as not proven. (It would be more accurate to say that the Department's examination reviewer could neither say that the the score of 2 was erroneous or unreasonable or that a score of 3 would have been erroneous or unreasonable.) 11. Accepted and incorporated. 12.-16. Accepted but subordinate and not necessary. (As to 16, however, he reiterated his opinion that the appropriate score was a 2.) 17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated. Rejected as not proven that the dentin is the "stronger material." Otherwise, accepted and incorporated. Accepted and incorporated. 22.-26. Accepted and incorporated to the extent not subordinate or unnecessary. However, as found, notwithstanding the limitations inherent in not being able to see on the ivorine tooth exactly where the enamel would end and the dentin would begin, or where the enamel rods would be, certain basic knowledge of acceptable techniques can be demonstrated on the ivorine teeth, given certain additional instructions. 27.-29. Rejected as not proven. The Petitioner's expert was not "standardized" and was not privy to what the graders were told during standardization or what the candidates were told during orientation. 30. See 22.-26. 31.-32. See 27.-29. 33. See 22.-26. Respondent's Proposed Findings of Fact. 1.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and subordinate to facts found. 11. Rejected as contrary to the evidence that the Petitioner introduced no competent and substantial evidence in support of his challenge. COPIES FURNISHED: Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 William M. Woodyard, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent is guilty of failing to practice dentistry in accordance with the applicable standard of performance and, if so, what penalty should be imposed.
Findings Of Fact Respondent has been licensed to practice dentistry in Florida since 1984. He practices prosthodontics in a general dentistry practice. Respondent has been disciplined three times. Pursuant to a stipulation, in which Respondent neither admitted nor denied the underlying allegations, Respondent agreed to a reprimand, two years' probation, 30 hours of continuing education in endodontics, 30 hours of continuing education in crown and bridge work, 15 hours of continuing education in risk management, and $6000 in costs, as reflected by a Final Order entered November 2, 1995. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance by failing to take post-operative radiographs following a root canal and had failed to keep adequate dental records. Pursuant to a stipulation, in which Respondent neither admitted nor denied the underlying allegations, Respondent agreed to a reprimand, one year's probation, 15 hours of continuing education in removable prosthodontics, and $1500 in costs, as reflected by a Final Order entered April 1, 1997. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance in preparing and fitting dentures. Pursuant to a stipulation, in which Respondent admitted the underlying allegations, Respondent agreed to an administrative fine of $3000, 14 hours of continuing education in crown and bridge work, and $926.53 in costs, as reflected by a Final Order entered July 27, 2000. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance in fitting a bridge and crown. C. J. underwent a course of treatment with Respondent during the summer of 2002 after taking her son to Respondent for dental work for a couple of years. As a patient, C. J. first visited Respondent on June 23, 1999, complaining of bleeding gums and nocturnal teeth grinding. After examination, Respondent advised C. J. that her dental health was poor and recommended a course of periodontal treatment that would cost nearly $5000. C. J. declined to commence treatment at that time due to a lack of funds. C. J. next saw Respondent on July 9, 2001. At this time, she was complaining of pain in her jaw joint, which clicked and popped on movement. Respondent discussed with C. J. her ongoing dental needs, and C. J. said that she understood that she needed to undergo treatment. However, she could still not afford to start extensive dental work, so she did not do so. By the summer of 2002, C. J. realized that her dental health required treatment at this time, so she borrowed some money from a family member in order to undergo the dental work. A teacher, C. J. wanted to complete the treatment during the summer while she was not teaching, although the record does not indicate whether this desire drove the treatment schedule. Initially, C. J. visited Respondent in the summer of 2002 for treatment due to pain in tooth number 31. Respondent referred her to an oral surgeon, who extracted the tooth, but an ensuing secondary infection necessitated treatment by C. J.'s primary care physician. This process consumed the first half of the summer. The treatment that is the subject of this case took place over a five-week span in July and August 2002. On July 10, Respondent prepared two treatment plans for C. J. One plan included crowns for teeth numbers 3, 14, 18, 19, and 30. (The other plan called for porcelain laminate veneers, which are not at issue in this case.) One of the three claims stated in the Administrative Complaint states that Respondent left defective margins after completing crown restorations of three teeth. A margin is where the crown meets the tooth structure. Margins must be continuous to promote dental health. The discontinuities in open or defective margins may create a space or ledge where debris can accumulate and cause decay or a roughened surface that may continually irritate surrounding gum tissue. According to Petitioner's expert witness, Dr. Robert W. Shippee, an open margin exists when the gap exceeds 50-150 microns. According to Dr. Ronald M. Fisher, an open margin exists when the gap exceeds 120 microns, "maybe a little more." When he examined C. J., Dr. Fisher used an explorer whose width permitted him to detect open margins of 100 microns or more. Radiography does not reveal lingual and buccal margins, but does reveal medial and distal margins. Distal margins, which are located on the tooth surface aligned toward the back, are also revealed clinically by floss or explorers. On July 10, Respondent's hygienist scaled and root planed the teeth in the lower left quadrant. She performed a debridement of the lower left quadrant with irrigation using Peridex®. Respondent did not see C. J. during this visit. On July 17, Respondent took impressions of teeth numbers 14, 18, and 19 in order to prepare crowns for these teeth. Tooth number 14 is in the upper left quadrant, and teeth numbers 18 and 19 are in the lower left quadrant. Mixing the adhesive Durelon™ with Vaseline petroleum jelly, so as to reduce the adhesive force of this dental cement, Respondent fitted C. J. with temporary plastic crowns, noting that teeth numbers 14 and 19 had such deep decay that they might require root canals. Following this work, the hygienist scaled and root planed the teeth in the upper left quadrant and irrigated with Peridex®. On July 23, the hygienist scaled and root planed the teeth in the lower right quadrant and irrigated with Peridex®. Following this work, Respondent examined C. J., who complained of pain at teeth numbers 17 and 18, so Respondent removed these temporary crowns, adjusted at least one of them, and recemented them with Durelon™ and Vaseline petroleum jelly. His notes raise the question whether tooth number 18, as well, might require a root canal. During the same visit, Respondent took impressions of teeth numbers 3 and 30 in order to prepare crowns for these teeth. These teeth are in the upper right and lower right quadrants, respectively. On July 24, Respondent's hygienist scaled and root planed the teeth in the upper right quadrant and irrigated with Peridex®. C. J. reported that she was still feeling pain in the area of tooth number 17. (The dental records misreport this as tooth number 32, but C. J. did not have tooth number 32.) Respondent did not see C. J. during this visit. On August 15, Respondent fitted C. J. with porcelain- fused-to-metal crowns on teeth numbers 3, 14, 18, 19, and 30. Respondent cemented these with Durelon™, but without the Vaseline petroleum jelly. Respondent checked the crowns with an explorer and was concerned about the margins. He directed his staff to perform X-rays of the subject teeth, but, after trying five times, C. J.'s gag reflex prevented staff from taking the exposures. The dental records state that Respondent needs to take this X-ray and check the margins next visit. It is unclear why, but there were no more visits. C. J. visited the office on August 26 to speak with the receptionist about certain charges, but she was not examined or treated by Respondent. C. J. claims that no one in the office gave her another appointment, but her recollection of events, now five years past, was understandably imperfect. Clearly, there had been some problems with charges, and the school year had resumed. On these facts, it is impossible to hold Respondent responsible for the absence of a follow-up visit. Dr. Shippee and Dr. Fisher agree on three things. First, the dental work in this case was not of high quality. Second, the margin left on tooth number 14 does not meet the applicable standard of performance imposed upon dentists, if Respondent had completed treatment of the tooth. Third, it is not always below the standard of performance for a dentist to cement a permanent crown and later find a defective margin, as long as the dentist corrects his work. It is relatively easy to resolve the claim in the Administrative Complaint involving the sequence of periodontal treatment and the taking of impressions. At the hearing, Dr. Shippee admitted that it is not necessarily a departure from the applicable standard of performance for a dentist to take impressions and perform periodontal treatments, such as scaling and planing, on the same visit. He testified that this was acceptable practice if the dentist could still record the shape of the tooth accurately. The Administrative Complaint does not clearly identify the teeth to which this claim applies. The sequence of periodontal treatment and the taking of impressions is as follows: July 10--treatment of lower left quadrant; July 17-- impressions of teeth numbers 14 (upper left quadrant), 18 (lower left quadrant), and 19 (lower left quadrant) followed by treatment of upper left quadrant; July 23--treatment of lower right quadrant followed by impressions of teeth numbers 3 (upper right quadrant) and 30 (lower right quadrant); and July 24-treatment of upper right quadrant. Thus, the only impressions taken after periodontal treatment are the impressions of teeth numbers 18 and 19, which followed their periodontal work by a week, and tooth number 30, which took place a few minutes after its periodontal work. Dr. Shippee misread the dental records when, in his report dated May 20, 2006 (Petitioner Exhibit 6), he complained about the performance of scaling and root planing on tooth number 14 on the same day that Respondent took an impression of this tooth. He assumed that Respondent's hygienist had worked on the tooth before Respondent did, but this is not the order shown in the dental records. (The order in which information is recorded in the records reveals the order in which Respondent or the hygienist performed services, when both persons worked on C. J. on the same day.) Dr. Shippee's concern about trying to take a good impression of a tooth amidst the bleeding associated with scaling and planing is thus misplaced, at least as to tooth number 14. The Administrative Complaint implicitly precludes consideration of teeth numbers 18 and 19 because the allegations refer to taking the impressions on the same day as performing the periodontal treatment. Any attempt to prove a departure from the applicable standard of performance as to teeth numbers 18 and 19, for which the impressions were taken one week after treatment, would also have to overcome Dr. Shippee's statement, in his May 20 report, that "at least" one week must separate the scaling and planing from the taking of impressions. Absent any other evidence indicating that the condition of C. J.'s gums prevented Respondent from taking an accurate impression of teeth numbers 18 and 19, Petitioner has failed to prove that the sequence of procedures as to these teeth failed to meet the applicable standard of performance. As to tooth number 30, Petitioner omitted this tooth from its allegations of defective margins, so, inferentially, the margins on tooth 30 were not defective. Likewise, immediately after discussing the work on tooth number 30, Dr. Shippee's May 20 report finds that the margins on teeth numbers 3, 14, 18, and 19 are defective. Again, inferentially, the margins on tooth 30 were not defective. Most significantly, at hearing, Dr. Shippee testified that Respondent affixed five crowns and four had defective margins. Coupled with the information in his report, Dr. Shippee's testimony implies that tooth number 30 had acceptable margins. As noted above, Dr. Shippee conceded that it was permissible to take an impression following periodontal work, as long as the impression is accurate. It appears that is exactly what transpired as to tooth number 30. Petitioner has failed to prove that the sequence of procedures as to this tooth failed to meet the applicable standard of performance. In his May 20 report, Dr. Shippee misstates that, on July 23, the hygienist scaled and planed the teeth in the upper right quadrant. As noted above and as reflected clearly in the dental records, this work was done on July 24, not July 23. This misreading of the dental records may have contributed to the focus of Dr. Shippee-and the Administrative Complaint--on tooth number 3, whose margins Dr. Shippee found defective, even though the procedures were performed in the proper order, rather than tooth number 30, whose margins Dr. Shippee found acceptable, even though the procedures were performed in reverse order and only a few minutes apart. It is also relatively easy to resolve the claim that Respondent failed to check marginal integrity clinically and radiographically prior to cementing the crowns. As was the case with the preceding claim, however, this claim itself requires analysis to understand its meaning. First, Dr. Shippee testified at hearing that a dentist meets the applicable standard of performance by checking the margins clinically or radiographically--not both, as alleged in the Administrative Complaint. Second, the Administrative Complaint does not qualify its reference to the cementing of the crowns, which takes place with both the temporary and permanent crowns, but the record reveals that this allegation clearly does not apply to the cementing of temporary crowns. So, this claim raises the questions of whether Respondent clinically or radiographically checked the margins prior to permanently cementing the crowns. Respondent checked the margins clinically, with his explorer, after cementing the porcelain-fused-to-metal crowns into place. He tried to check the margins radiographically, but the patient's admittedly "very nervous" condition, which produced the gagging reflex, prevented staff from taking x-rays at that time. However, the clinical check revealed to Respondent that he needed to recheck these margins, clinically and radiographically, at a subsequent visit, at which C. J. might better tolerate the necessary X-rays. Respondent could reasonably have expected, at a subsequent visit, C. J. would not gag over the X-rays because she had undergone these x-rays previously in his office. The question in this claim is thus reduced to whether Respondent deviated from the applicable standard of performance by cementing the porcelain-fused-to-metal crowns prior to checking the margins by either means. At the hearing, Dr. Shippee conceded on cross-examination that it was not a departure from the applicable standard of performance for a dentist not to check margins radiographically prior to permanently cementing the crowns into place. He also conceded that it would not be a departure from the applicable standard of performance not to check the margins either way, if the dentist were not using permanent cement. Respondent seized upon this opportunity to claim that his use of Durelon™ revealed an intent to temporarily cement the five crowns in place on August 15. This claim strains credulity. Respondent weakened the Durelon™ with Vaseline petroleum jelly when applying temporary crowns, and there does not seem to be a category of semi-permanent crowns that would accommodate Respondent's argument that Durelon™ without Vaseline petroleum jelly was not a permanent adhesion. Also, whatever else can be said of Respondent's dentistry, no one can argue with the durability of his cementing. The "temporary" adhesive that he applied on August 15, 2002, remained in place, four years later, when Dr. Shippee examined C. J. The evidence thus establishes that Respondent intended to permanently cement the crowns that he affixed on August 15, subject to one condition. However, Respondent was prepared to remove the "permanently" cemented crowns if the margins proved defective. There was no other reason to note in his dental records of August 15 the need to recheck the margins. Likewise, Dr. Shippee testified that, at some point over his long career, he may have "permanently" set a crown with a defective margin, and it would not have been a departure from the standard of performance to have discovered the open margin as much as two years later--as long as he then removed the crown and replaced it with a properly fitting one. Coupled with Dr. Shippee's earlier concession that a dentist could permissibly permanently cement a crown into place prior to checking the margins radiographically, it is difficult to find a departure from the applicable standard of performance by the sequence followed by Respondent in this case in cementing the permanent crowns, checking the margins, and noting the need to recheck the margins at a later visit. On re-direct, Dr. Shippee reversed himself, again, and testified that he would dry seat porcelain-fused-to-metal crowns and, if he found defective margins, he would not permanently cement them until he had replaced the defective crowns. However, this testimony was less convincing than his above- described admissions on cross-examination, especially after consideration of the testimony of Dr. Fisher. Dr. Fisher testified that a dentist who "permanently" cements porcelain- fused-to-metal crowns, knowing that the margins are defective, does not deviate from the applicable standard of performance, as long as he intends to use the "permanent" crowns as temporaries and replace them with properly fitting crowns at a subsequent visit. Petitioner has failed to prove that Respondent's permanent cementing of the crowns into place, prior to checking them clinically or radiographically, failed to meet the applicable standard of performance, at least when he checked them with an explorer immediately after cementing them and documented the need to recheck the margins--and, if necessary, replace the crowns--at a subsequent office visit. The third claim is the most significant because, as Dr. Shippee testified, "the margins are the real problem." On this claim, the Administrative Complaint is clear: the distal margins on teeth numbers 3, 14, and 18 are allegedly defective. Dr. Fisher testified that the distal margin on tooth number 14 is defective, and the crown needs to be replaced. However, he found no defective margin on tooth number 18. He evidently found a less serious defective margin on tooth number Dr. Fisher testified that he found no evidence of decay on any of these teeth. Although C. J. had evidence of gum inflammation, Dr. Fisher attributed that to the absence of a cleaning over the preceding year. In contrast, Dr. Shippee unequivocally found defective distal margins on all three teeth-both clinically and radiographically. Dr. Shippee's testimony is credited on this point. The record offers little support for any finding as to why the margins are defective. Respondent sends his impressions to a lab for the preparation of the crowns--a practice that Dr. Shippee finds acceptable, even though he makes his own crowns. The allegations imply a causal link between Respondent's practice of taking impressions shortly after periodontal work with the resulting defective margins. However, the evidentiary record offers little support for this theory. Due to his misreading of the dental records, as noted above, Dr. Shippee erroneously concluded that Respondent took the impressions of teeth numbers 3 and 14 shortly after his hygienist scaled and planed these teeth. But the sequence of these procedures was actually the reverse of what Dr. Shippee had found. On the other hand, Respondent took the impression of tooth number 18 one week after the periodontal work to that area, but the likelihood of an adverse result caused by this sequence is diminished by two facts. First, Dr. Shippee opined that at least one week was necessary for the proper healing to take place. Second, when Respondent actually took an impression of one tooth--tooth number 30--only a few minutes after the periodontal work, the margins for this tooth were fine: this was the only tooth with acceptable margins, and it was the only tooth for which the impressions followed immediately upon the completion of the periodontal work. This theory of causation thus finds little support in the present record. Notwithstanding whether the defective margins on these three teeth resulted from the poor workmanship of Respondent or the lab, another issue emerges with respect to whether, on August 15, Respondent was finished with his crown work on these three teeth. As noted with respect to the second claim discussed immediately above, Respondent was not finished, and the applicable standard of performance does not prohibit him from continuing to service these teeth, at least for a reasonable period past August 15, until he obtained a satisfactory result. In theory, the work could have been so deficient, as of August 15, as to constitute a departure from the applicable standard of performance, despite Respondent's intent to continue to service these teeth. However, Dr. Shippee's testimony does not support this theory. In particular, the record is devoid of evidence establishing how far a dentist's work must stray, in terms of defective distal margins, before the applicable standard of performance deprives him of a chance to fix his work. Petitioner has failed to prove that, under the circumstances, the crown restoration work, as of August 15, on teeth numbers 3, 14, and 18 failed to meet the applicable standard of performance due to the presence of defective margins on the distal surfaces of these teeth.
Recommendation RECOMMENDED that the Board of Dentistry enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2007. COPIES FURNISHED: Susan Foster, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, BIN C08 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Dominick J. Graziano, Esquire Erin M. O'Toole, Esquire Bush, Graziano & Rice, P. A. Post Office Box 3423 Tampa, Florida 33601-3423 H. Wayne Mitchell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Findings Of Fact The Respondent, James A. Ford, D.D.S., is the holder of license No. 5715, which is held with the State of Florida, State Board of Dentistry. A copy of this license may be found as Petitioner's Exhibit No. 1 admitted into evidence. At all times pertinent to the charges in this cause, Dr. Ford was the holder of the aforementioned license. On April 18, 1977, the administrative accusation which is the basis of this case was brought against Dr. Ford. Dr. Ford was duly apprised of that accusation and requested a formal hearing to challenge the administrative accusation. The administrative accusation may be found as a part of Petitioner's Composite Exhibit No. 2. The initial count in the administrative accusation pertains to the care and treatment of Mrs. Henry Good. Mrs. Good was also identified in the hearing as Gladys Good. Mrs. Good went to Dr. Ford's office for the purpose of being treated by a Dr. Foley who had semi-retired at the time she went for treatment. The purpose of going to the office was to have a maxillary full denture constructed. Dr. Foley was not working in the office at that time and the patient was seen by Dr. Ford. When she came to the office she had been a denture wearer for a period of 20 years and the last set of dentures had been fabricated 15 years prior to her office visit with Dr. Ford. The Respondent took impressions and asked Mrs. Good to return for a try-in of the actual dentures. The new dentures were painful to Mrs. Good and were difficult to retain, in that they kept falling down in her mouth. Dr. Ford advised her to keep trying to make the dentures work and to wear them day and night. At some point an argument ensued between Dr. Ford and the patient, Mrs. Good, at which point Dr. Ford explained to the patient that if she could not rely on his instructions and what he told her about the problem, then he would no longer treat her. The patient then demanded that her money be reimbursed and Dr. Ford refused and the patient did not return. Petitioner's Exhibits 14 and 15 are receipts given to Mrs. Good for the payment that she gave to Dr. Ford for the treatment. The dentures in question may be found as Petitioner's Exhibit 16, admitted into evidence. Mrs. Good tried to wear the dentures after leaving the care of Dr. Ford, but the dentures kept falling down. Finally, Mrs. Good made a complaint to the Broward County Dental Association and was eventually referred to the Petitioner for purposes of investigating her complaint. One of the aspects of the investigation of the complaint was to have other dentists review the history of the complaint, together with an inspection of the dentures and an examination of the patient. One of the doctors involved in the examination of Mrs. Good, for the benefit of Petitioner, was Dr. Mervyn J. Dixon, D.D.S. Dr. Dixon is a dentist licensed with the State of Florida and is a member of the Broward County Dental Association, the Atlantic Coast Dental Society, the Florida State Dental Society, the American Dental Association, the Academy of General Practitioners, and the Broward Research Clinic. He is also Secretary-Treasurer of the Broward County Dental Association. His knowledge and experience in the field of prosthetics began with four months practice while in the armed services. He is a member of the Prosthetics Section of the Research Group in Palm Beach County, Florida, which meets once a month and does only prosthetics. Dr. Dixon has also been involved in the administration of the Petitioner's State Board Exams, specifically, checking the setups in the portion of the examination dealing with prosthetics. This function was preformed in the summer of 1977. After his initial practice in the armed services he has continued to work in the field of prosthetics. His total experience in the construction of prosthetic appliances would number at least 1,000. Finally, Dr. Dixon is also an assistant Secretary- Treasurer for the Florida State Board of Dental Examiners of the State Board of Dentistry. Dr. Dixon saw Mrs. Good on March 16, 1977. Her complaint to him was that the upper denture would not stay up and that the denture was too big. Dr. Dixon reviewed the condition of the maxillary denture, which is Petitioner's Exhibit 16. One of the aspects of the examination, was to have the patient try the dentures in her mouth. When he observed the dentures in her mouth he found that they would not stay up, except when the patient bit down and held the dentures in position against the lower partial and lower natural dentition. When she opened the mandibular portion of her mouth the upper denture would fall down. The peripheral or outer border of the denture which had been fabricated by Dr. Ford was over extended in the canine area, to the extent that when you pushed up there was resistence or the denture would drop back down. The over extension was approximately 5 millimeters beyond where the roll of the sulcus is found. This caused an elastic reaction when he tried to push the tissue up. (This reaction is similar to the elasticity found in a rubber band.) A contraction then takes place and the dentures come down. The post-dam was not adequate the post-dam being an excessive acrylic in the posterior part of the denture. This caused a problem with retention. Dr. Dixon felt that the denture did not meet minimum acceptable standards of the community for prosthetic devices. In view of the observations by Dr. Dixon and the complaints by Mrs. Good, the Petitioner charged the Respondent with a number of violations which were reflected in the Issues section of this recommended order. Several of those provisions are set forth in Section 466.24(3)(a), (c) and (d), F.S. The language of those sections states the following: "Suspension or revocation of license certi- ficate for cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it establishes to its satisfaction that he: * * * (3) has been guilty of: (a) misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession; * * * malpractice; willful negligence in the practice of dentistry or dental hygiene" An examination of the facts in the case of Mrs. Good establishes misconduct in Dr. Ford's business that would bring discredit upon the dental profession. The facts spoken of include the fabrication of the highly unacceptable maxillary dentures and the insistance that the patient be required to accept them, and the further insistance that the patient be dismissed because of her unwillingness to accept the dentures. The same facts of Mrs. Good's case are so flagrant, that it would constitute malpractice within the meaning of Chapter 466, F.S. The act of constructing an inferior maxillary denture and causing the patient to wear that denture, in opposition to constructing a serviceable denture, constitutes willful neglect in the practice of dentistry as described in Section 466.24(3)(d), F.S. In count number eight of the accusation, the Respondent is charged with being grossly incompetent in violation of Section 466.24(2), F.S. This provision states: "Suspension or revocation of license certi- ficate of cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he: * * * (2) is grossly ignorant or incompetent" The treatment that Dr. Ford gave Mrs. Good constitutes gross incompetence, by the nature of the construction of the dentures themselves, and the insistance that those dentures be utilized by the patient. Count two of the administrative accusation pertains to the same statutory allegations as set forth in the case of Mrs. Good. This count deals with Yolande Breckley, for whom Dr. Ford constructed a prosthetic appliance: A maxillary full denture. Mrs. Breckley was a patient who had insisted that she needed to have her natural dentition removed and a prosthetic appliance substituted. To effect this end, she requested a Dr. King to remove the teeth and Dr. Ford was to make the denture. Her natural teeth were removed and Dr. Ford made a maxillary denture. Dr. Ford had questioned her decision to remove her natural teeth and had also indicated that the initial maxillary denture, i.e., prosthetic appliance might not function properly. Mrs. Breckley picked up the Ford dentures in an envelope and had those fitted by Dr. King. She was to return to Dr. Ford for further fittings. These dentures that Dr. Ford had made hurt her in the anterior area and in her lip. The latter area was discolored, "black and blue." She told Dr. Ford that the denture was painful. This conversation was held about a week after Dr. King had fitted the denture. She described the pain as being like a toothache. She could not eat with the dentures. The dentures did not match up well with her lower teeth. It was necessary that she remain on a soft diet. Two or three weeks after this, Dr. Ford relined the dentures and she then asked Dr. Ford for a new set of dentures. Where ensued a series of office visits in which every several weeks she would try to have Dr. Ford make an adjustment. The total time was approximately six months. Mrs. Breckley had paid Dr. Ford for the dentures as evidenced by Petitioner's Exhibit 8, admitted into evidence. Subsequent to that six month period, a second set of dentures were made by a Dr. Foley, who is in Dr. Ford's office, but who is not responsible to Dr. Ford. There was no charge for these dentures. They were made while Dr. Ford was on vacation. These dentures were unacceptable and a third set was made by Dr. Ford for which he charged the price of $100.00 and an additional $31.00 for two relines. This is reflected in Petitioner's Exhibit 9, admitted into evidence. This third set of dentures also gave the patient pain and she complained about the pain to Dr. Ford. Dr. Ford tried to persuade the patient that something was wrong with her, not the teeth, suggesting that the condition was perhaps psychosomatic. There were many visits to try to adjust the third set of dentures, and paste was placed on the dentures and they were ground. During the course of this treatment for the latter set of dentures, Mrs. Breckley went to Canada and was seen by a dentist who worked with the dentures. Eventually there was some falling out between Dr. Ford and Mrs. Breckley and Dr. Ford told her he did not wish to see her face again. In result of her confrontation with Dr. Ford, she wrote a letter of complaint which brought about the current accusation. The patient has seen three dentists after seeing Dr. Ford. The patient is still experiencing difficulty with the new set of dentures she now has, and has to have those dentures relined. In investigating the complaint Dr. Dixon saw Yolande Breckley. He saw the patient on December 13, 1976. She related the history that Dr. Ford had constructed two sets of dentures. The first of the two was delivered in July, 1975. When Dr. Dixon saw the patient she was wearing a new upper denture that was constructed by Dr. Burch. She also had the two sets of dentures that Dr. Ford had prepared and Dr. Dixon attempted to try these dentures in her mouth. The patient placed the dentures in her mouth, but when she opened her mouth the dentures fell down. This refers to the maxillary dentures that had been constructed by Dr. Ford. He also observed a very sharp boney ridge with much pendulous tissue in the maxila. This is felt to have occurred because of abnormal bone resorption, which occurred after the extractions of the upper teeth, leaving boney ridges leading to the ensuing pendulous tissue. This made it extremely difficult to get the denture stable because it would shake like "jello." This would cause the dentures to slip and slide. Dr. Dixon feels that he would not have attempted to make dentures until such time the patient had been referred to an oral surgeon to have some of the tissue trimed and the boney ridges smoothed down. This type of difficulty was easily observable by the treating dentist. In addition the lower rehabilitation work had been done in such a way that the cuspation of the teeth and of the crowns and bridges was about 20 percent and therefore similar to the remaining natural dentition in the mandibular area. The upper appliance was flatplane; therefore, the inner digitation of the cusp was deficient, causing problems with chewing. In summary, Dr. Dixon felt that the condition of the patient was one which it would be difficult to treat and oral surgery seemed indicated before trying to make the dentures. The dentures that Dr. Ford had made were felt to be below minimum standards because they could not be retained. Measured against the allegations, Dr. Ford's treatment of Mrs. Breckley shows gross incompetence within the meaning of Section 466.24(2), F.S., due to his failure to recommend surgical intervention. This would also constitute misconduct in his business, which would bring discredit upon the dental profession. In addition, the poor construction of the dentures would tend to discredit the dental profession. Furthermore, this conduct constitutes malpractice and willful negligence in the practice of dentistry. The subsequent findings establish violations of Section 466.24(a), (c) and (d), F.S. The third count of the accusation pertains to the same statutory allegations found in the first and second counts. The treatment involved Jacob Klapper who received a prosthetic appliance, namely full maxillary and mandibular dentures. Mr. Klapper did not give testimony in the hearing and the description of his case was given by the Respondent and Dr. Dixon. Mr. Klapper was a man of considerable age, who was terminally ill at the time that Dr. Ford saw him in August, 1976. Mr. Klapper had been wearing a full upper denture for 22 years prior to that time. His principal complaint to Dr. Dixon was that Dr. Ford had relined the upper dentures, but he still had looseness and that Dr. Ford had instructed the patient to wear those dentures until they welt in the patient's mouth. Dr. Dixon noted that Mr. Klapper had an extremely poor lower ridge and the centric relation was not correct, in that the mandible or the condyle of the mandible was not in the most superior position in the fossa. This means the position in which all teeth touch simultaneously. After achieving the centric position with the patient, the teeth did not make very acceptable contact. The molars did not contact at all. These dentures prepared by Dr. Ford had over extensions in the set, particularly in the retromolar pad and the mylohyoid ridge. There was a reverse curve of spee. The patient also complained to Dr. Dixon that Dr. Ford had a lack of compassion and that Dr. Ford had instructed him to insert the dentures in the restroom and leave before seeing how the dentures looked. Dr. Dixon did not feel that the dentures met the minimum standards of the community, in fact the dentures would not stay in the patient's mouth and there were some very sore areas in the patient's mouth evidenced by the redness in the tissue when the dentures were inserted. Furthermore, the over extensions of the lower and retromolar pad and mylohyoid area contributed to the fact that the dentures could not be retained. Every time the patient opened his mouth the lower denture jumped up. Dr. Ford claimed that the patient got angry in his office which led to their disagreement and the patient's not coming back. Dr. Ford stated that the patient wrote a threating letter which is Respondent's Exhibit 2. This letter had been addressed to Dr. Foley, the other dentist in the office. Dr. Ford also stated that he had prepared two sets of dentures for Mr. Klapper and questioned which dentures Dr. Dixon's testimony referred to. The dentures which Dr. Dixon had examined from Mr. Klapper were not presented in the hearing. There is therefore, some conflict on the question of which dentures that had been fabricated by Dr. Ford were at issue. In view of Mr. Klapper's non-attendance at the hearing it is hard to tell what really transpired between the Respondent and he, concerning any misunderstanding about the trying of the dentures. No matter which dentures Dr. Dixon looked at, those dentures which had been fabricated for Mr. Klapper demonstrated gross incompetence on the part of Dr. Ford, within the meaning of Section 466.24(2), F.S. There has been insufficient showing to demonstrate that Dr. Ford was guilty of misconduct in his business, such to bring discredit upon the dental profession or guilty of malpractice or guilty of willful negligence in the practice of dentistry while involved with the patient Mr. Klapper, all within the meaning of Section 466.24(3), F.S. The fourth count in this cause concerns the treatment and care of Robert R. Whittaker. Again this count has the same violations alleged for the other patients in this case. The dispute arose over the preparation of full maxillary and mandibular dentures. Robert Whittaker was first seen by Dr. Ford on November 9, 1976. He went there to have a full upper and lower set of dentures constructed. He had been wearing full upper and lower dentures for 20 years. When Dr. Ford looked at the patient's mouth he stated that the dentures that Whittaker was wearing needed replacing. Whittaker requested that the dentures be made in the same style and color as the old dentures. The fee for this work was $220.00. Impressions were taken and try-ins were made on November 15, 17 and 19, 1976. The actual dentures were received on November 23, 1976. The dentures, according to Whittaker, did not fit in that the rails were too high. At first the dentures would not fit his gums and Ford told his assistant to have them altered. They were altered and the dentures were returned to the patient, but they still did not feel right and were sore in the upper quadrant. Dr. Ford made no further attempt at that time to correct the dentures and told Mr. Whittaker to take them home and try to eat and get used to them. Mr. Whittaker went home and wore the dentures but still experienced a great deal of pain and could not eat with the dentures, because they slid around in his mouth both in the upper and lower, but mostly in the upper. The patient went back to Dr. Ford approximately November 29, 1976 because of the continued discomfort. Dr. Ford's assistant got mad at the patient when she saw that he wasn't wearing the dentures. Dr. Ford came in and the patient complained to him that the dentures hurt, were the wrong style, and protruded. In that regard, Petitioner's Exhibit 19, admitted into evidence, is a depiction of the prior dentures and those that were prepared by Dr. Ford, and the photograph clearly shows that the dentures prepared by Dr. Ford did protrude. In addition, the prior dentures had not given the patient any problem and did not protrude. Dr. Ford then tried the dentures he made in the patient's mouth and told the patient he would have to pay another $220.00 if he wanted additional dentures made. The patient told Dr. Ford that he would have to consider legal action and that was the last time he saw Dr. Ford. The dentures themselves may be found as Petitioner's Exhibit 5, admitted into evidence. The checks for payment are Petitioner's Exhibits 6 and 7, admitted into evidence. Dr. Dixon saw Mr. Whittaker on December 8, 1976. At that time Mr. Whittaker was wearing the old dentures which had been constructed 12 years prior to that time. He complained of Dr. Ford's dentures and said that the dentures hurt especially in the upper right quadrant, and that he could not eat and that the dentures were loose. Dr. Dixon's clinical observations were that the vertical dimension of the new dentures was increased by 5 millimeters, which is too much of an increase for a single increment of change in the dentures. When the patient was placed in centric he was a half tooth forward. The periphery of the dentures constructed by Dr. Ford is over extended. In the retromolar pad area, there was a tendency for the teeth to pop up when the teeth were opened. These teeth were also over extended in the maxillary area and the mylohyoid. There was a poor retention of both the upper and lower dentures. The upper and lower dentures were mismatched in terms of their dimensions. This caused an inefficiency in the utilization of the teeth. In Dr. Dixon's mind this construction violated the minimum acceptable standards of the profession. In review of the testimony concerning Dr. Ford's care and treatment of Mr. Whittaker, that testimony demonstrates that the construction of the dentures indicated gross incompetence on the part of Dr. Ford within the meaning of Section 466.24(2), F.S. The act of the poor construction and the attempt to charge further for a second set of dentures is misconduct in his business, by Dr. Ford, which would bring discredit upon the dental profession and constitutes malpractice, all within the meaning of Section 466.24(3)(a) and (c), F.S. The facts do not demonstrate any willful negligence in Dr. Ford's care and treatment of Mr. Whittaker, as defined in Section 466.24(3)(d), F.S. Count number five of the accusation, involves the patient Violet B. Arnst and contains the same allegations found in prior counts. Mrs. Arnst had Dr. Ford prepare a prosthetic appliance, a full maxillary and mandibular denture. Mrs. Arnst had been seen by Dr. Foley, the working associate of Dr. Ford, a number of years before her visit to Dr. Ford. She called to make an appointment with Dr. Foley but was told that he only came in when Dr. Ford was out. Therefore she was seen by Dr. Ford in July or August, 1975. Dr. Ford told the patient that her lower teeth were receding and that she needed a lower set of dentures for that reason and that the more appropriate approach was to make an upper and lower set of dentures. She paid Dr. Ford $200.00 for the services of fabricating prosthetic appliances; maxillary and mandibular. This is verified by Petitioner's Exhibits 10 and 11 which are the cancelled checks for the services. When she went to pick up the teeth and try them on she told Dr. Ford that the teeth did not look right or feel right and that she could not see her teeth when she smiled. This is borne out by Petitioner's Exhibit 18, which was admitted into evidence and is a series of photographs showing the dentures that were prepared by Dr. Foley prior to the dentures prepared by Dr. Ford, as compared to the Ford dentures. It can be seen in the photographs that the Foley dentures allow a smile line, in that the maxillary dentures are showing, whereas in the Ford dentures the maxillary dentures are completely covered by her upper lip. Mrs. Arnst had another initial complaint that the teeth hurt her in the gum area and the gums felt sore when she tried to bite. The dentures were also loose and she could not eat with them. She continued to see Dr. Ford after the initial try-ins and Dr. Ford advised that she was impatient and would have to become accustomed to wearing the dentures. She saw Dr. Ford for five or six times and returned two weeks after the dentures were prepared and said that the dentures still hurt and didn't look right. The last time Mrs. Arnst saw Dr. Ford, Dr. Ford told her to make an appointment for a reline of the dentures and then became angry with the patient and told his office personnel that he did not want to see Mrs. Arnst again. Mrs. Arnst then wrote a letter to Dr. Foley complaining of the situation with Dr. Ford and also wrote a complaint letter to the authorities who regulate Dr. Ford's practice of dentistry. Petitioner's Exhibit 3, admitted into evidence are the dentures made by Dr. Ford which are the subject of discussion. At present the patient is using the dentures prepared by Dr. Foley, which are those prepared immediately before Dr. Ford's. This patient was also seen by Dr. Dixon in the investigative phases of the accusation. Dr. Dixon found that the patient was a person approximately 65 years old who had been wearing full dentures since the age of 16. Dr. Dixon found that the patient had a moderate lower ridge, and still had bone left and for that reason he found her to be an ideal denture patient. Dr. Dixon also noted that there were no second molars on the dentures that were fabricated by Dr. Ford, although there were second molars fabricated by Dr. Foley. From Dr. Dixon's point of view he felt that there was sufficient room to have accommodated the second molars especially on the right side, when Dr. Ford prepared the new set of dentures. Because of the missing second molars this cut down on the efficiency of the utilization of the dentures because there was a lesser number of posterior teeth. These teeth are used for purposes of grinding. He found that the lower molars were not over the crest of the ridge, meaning the highest point of the lower boney ridge. This caused unnecessary tipping and upsetting of the denture when going through the occlusal pattern of chewing. Dr. Dixon also observed a three millimeter buckle to buckle difference in the width of the original upper denture prepared by Dr. Foley and that prepared by Dr. Ford. The buckle to buckle dimension is the outside dimension, that is to say cheek to cheek cuspation of the molars. The retention of the upper dentures prepared by Dr. Foley was fair, but there was no retention of the lower denture in the patient Mrs. Arnst. Dr. Dixon found that the post-dam was fair to poor. He also noted that there was a reverse curve of spee, meaning that gentle slopping curve in the second molar down to the cuspid, that conforms to the curvature of the fossa in the temporal-mandibular joint. This reverse curve caused a lack of continuous contact or occlusion of the teeth. Dr. Dixon also noted that the "smile line" was extremely poor. He, in fact, prepared the photographs which have been referred to before. In Dr. Dixon's opinion the maxillary dentures were set too far up toward the nose or maxila to show. Dr. Dixon felt that Dr. Ford should have seen the problem of the "smile line" at the time the teeth were tried in. In summary, Dr. Dixon felt that both the maxillary and mandibular dentures in the patient Violet Arnst would not meet minimum acceptable standards of the dental profession, due to the lack of retention and due to the fact that the lower teeth are not over the crest of the ridge. In Dr. Dixon's opinion this caused an inability in the patient to chew her food. The patient Violet Arnst was also seen by Dr. Richard A. Saul, D.D.S. Dr. Saul is licensed to practice dentistry in the State of Florida and has been so licensed since 1956. He is a member of the American Dental Association, Florida Dental Association, and the Broward County Dental Association. He has practiced dentistry continuously since his graduation in 1956. Dr. Saul sees approximately 50 to 60 appointments a week. Dr. Saul has continued to take courses in prosthetics since his graduation and in his practice Dr. Saul repairs full or partial dentures. In examining Violet Arnst, he agreed with Dr. Dixon that the chief complaint of the patient was one of aesthetics. He found that the upper anteriors did not show in her mouth, because the lip covered them. This is referring to the teeth that were prepared by Dr. Ford. He found that the borders of the full upper and lower dentures were over extended. He noted that the lower anterior region had a knife like ridge and when he palpated the patient, this caused a great deal of pain to her. In his opinion the patient's situation could have been better treated had the lower ridge been flattened out, removing the knife like appearance of the bone. The over extension of the dentures into the musculature was believed to cause ultimate dislodgement of the dentures. Dr. Saul noted that only two of four teeth on one side were in centric. He felt that this was inadequate and would cause the dentures to skid, and cause movement of the denture in the patient's mouth. He observed that the patient at his interview was experiencing some pain. Saul did not feel that the dentures constructed by Dr. Ford for the patient Violet Arnst met the minimum standards of the community for acceptable dental practice. This examination of Mrs. Arnst took place on July 22, 1977. Based upon the quality of the construction of the dentures for Mrs. Arnst, and the abrupt dismissal of the patient, Dr. Ford has been guilty of misconduct in his business which would bring discredit upon the dental profession, in violation of Section 466.24(3)(a), F.S. This conduct on the part of Dr. Ford also shows malpractice and willful negligence in the treatment of Mrs. Arnst, as defined in Section 466.24(3)(c) and (d), F.S. Finally, this quality of treatment of Mrs. Arnst constitutes gross incompetence as set forth in Section 466.24(2), F.S. Count number six of the administrative accusation pertains to the patient Joseph Jenkins. This patient was seen by Dr. Ford in August of 1975, based upon the patient's referral by persons who had been treated by the Respondent. It was necessary to make extractions of the natural teeth prior to the preparation of full maxillary and mandibular dentures. These extractions began in August, 1975 and the patient received the teeth in November, 1975. (The extractions were not done by Dr. Ford.) The format of the treatment of the patient by Dr. Ford was to make impressions, then to try-in the teeth; then the actual dentures were given to the patient. The patient observed that the teeth appeared too large and the upper dentures kept falling out. When the patient would take a bite the teeth would "jump up". Dr. Ford told the patient to keep the dentures in his mouth and to line the dentures with denture powder. Additionally, he indicated to the patient that once the gums had "shrunk", and the teeth were relined, they would fit. The patient was not experiencing trouble with the mandibular teeth, his main problem was with the maxillary teeth. The maxillary dentures rubbed against the top of his mouth and caused him to gag. The patient saw Dr. Ford three or four times in December, 1975 and again in January 1976 at which point the dentures were relined. In February, 1976, the lower dentures were relined. During February and after February, 1976 the patient saw Dr. Ford five or six times. In the course of these visits, Dr. Ford would correct the problem of the rubbing dentures. In the course of treatment prescribed by Dr. Ford he told the patient Joseph Jenkins to use sandpaper to relieve the discomfort, but the dentures still did not fit, meaning the maxillary dentures. In March, 1976, the patient's wife tried to get an understanding of the problem from Dr. Ford and Dr. Ford hung the phone up and did not talk to her. At that point the patient ceased to see Dr. Ford and the patient is not wearing any dentures at this point. The dentures in question may be found as the Petitioner's Exhibit 17, admitted into evidence. For the total services the patient paid Dr. Ford $560.00. In accordance with the investigation of the accusation the patient was seen by Dr. Dixon on December 8, 1976. At that time the patient was complaining of the poor fit of the maxillary dentures. He did not have a complaint about the mandibular dentures. Dr. Dixon observed that the patient gagged excessively when the dentures were placed in his mouth, to the extent of having to use a local topical anesthetic on the palate to allow the patient to keep the dentures in for a sufficient period of time to be observed. Dr. Dixon observed a poor retention of the maxillary denture, in that it kept falling out while the doctor was trying to examine it. There was no post-dam whatsoever. The maxillary dentures were grossly over extended in the area of the soft palate, about five or six millimeters beyond the vibrating line. This is why the gaging occurred. Dr. Dixon felt that in view of the number of visits that the patient had with Dr. Ford, the problem with the post-dam and the gaging should have been observable by Dr. Ford, and been corrected. In view of the lack of retention, Dr. Dixon did not feel that the dentures met minimum acceptable standards of the community. In addition, Dr. Dixon felt that there was no necessity to have to use denture powder, in view of the fact that the dentures had just been fabricated for the patient, as opposed to having been utilized for a period of five or six years. The use of denture powder was not a good technique in Dr. Dixon's mind because the gum could not receive proper circulation causing a destruction of the tissue and bone. Dr. Dixon also felt that it would be improper for Dr. Ford to prescribe the use of sandpaper to relieve soreness. Dr. Saul examined Joseph Jenkins in July or August, 1976. At that point Mr. Jenkins' complaint to Dr. Saul was that the denture was ill fitting. Dr. Saul observed that the borders of the dentures were grossly over extended, especially in the areas of the soft palate and the patient was found to be complaining and gaging. Dr. Saul noted that the maxillary tended to drop when being used. In Dr. Saul's mind, this extension into the soft palate, made by the maxillary dentures, made it difficult for the patient to speak and eat. In Dr. Saul's opinion the over extension of the dentures caused them to fail to meet the minimum acceptable standards of the dental community. In view of the testimony offered by the investigating dentists, it is clear that Dr. Ford has been guilty of misconduct in his business, such that it would bring discredit to the dental profession, as set out in Section 466.24(3)(a), F.S. This is based upon the poor preparation of the maxillary dentures and the failure to correct that prosthetics over a long period of time of innumberable visits. These facts also establish that Dr. Ford is guilty of malpractice and willful negligence in the treatment of Mr. Jenkins, as prohibited by Section 466.24(3)(c) and (d), F.S. Dr. Ford was also grossly incompetent in the preparation of the Jenkins maxillary dentures, as defined by Section 466.24(2), F.S. Count seven of the administrative accusation pertains to the care and treatment given by Dr. Ford to the patient Edith Wenke. In January, 1976 Mrs. Wenke went to Dr. Ford for the purpose of having him prepare a prosthetic appliance, in this instance, full maxillary and mandibular dentures. The patient had worn dentures for 25 years prior to being seen by Dr. Ford. The initial set of dentures by Dr. Ford were prepared before February 3, 1976. These dentures gave the patient a great deal of pain in the gum area and the teeth were not straight and were somewhat misaligned. Another problem that the patient had with Dr. Ford's dentures was the inability to eat because of pain. She made another appointment with Dr. Ford and complained about the first set of teeth. Dr. Ford told her that she had some problem with a "trick" jaw which caused a difficulty in making the dentures. In fact, the patient did not have the problem with a "trick" jaw. Subsequently, a second set of dentures were prepared by Dr. Ford, these too were uncomfortable, and the patient continued to go back as much as twice a week, to try to rectify the problem. Mrs. Wenke is not certain but there may have been a third set of dentures made and the offering by Dr. Ford to make a fourth set or to give the money back. Whether or not Dr. Ford offered to give the money back after completing two or three sets of teeth is uncertain, but it is established that he did offer to refund the money. The patient thought about the offer of a refund over the course of a weekend and elected to have the money refunded. At that point Dr. Ford said that he had changed his mind and would refund only a portion of the money, namely $100.00. The patient later went to another dentist who told her to put in the dentures she had been wearing prior to seeing Dr. Ford. After that date she has had a new set of dentures prepared by a dentist other than Dr. Ford and has experienced no pain or poor quality prosthesis that was found in the dentures that had been prepared by Dr. Ford. Upon consideration of the testimony of Mrs. Wenke, in view of the general opinions stated by Dr. Saul and Dr. Dixon, it is clear that the dentures prepared for Mrs. Wenke were below community standards as to their construction. The dentures were so substandard as to indicate gross incompetence on the part of Dr. Ford as set forth in Section 466.24(2), F.S. Dr. Ford was also guilty of misconduct in his business which would bring discredit upon the dental profession, by his poor construction of the dentures for Mrs. Wenke and his agreement to make a refund to her, which was unreasonably rescinded. This misconduct was a violation of Section 466.24(3)(a), F.S. Dr. Ford's treatment of Mrs. Wenke also demonstrated malpractice, within the meaning of Section 466.24(3)(c), F.S. There is no indication that this conduct with Mrs. Wenke constituted willful negligence in the practice of dentistry as defined in Section 466.24(3)(b), F.S.
Recommendation Having fully considered the testimony offered by the Petitioner and the Respondent, and being duly apprised of the aggravating and mitigating circumstances, it is the recommendation of the undersigned that the Respondent, James A. Ford, D.D.S., have his license to practice dentistry in the State of Florida revoked. DONE AND ENTERED this 20th day of January, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 James A. Ford, D.D.S. 1201 Sample Road Pompano Beach, Florida 33064
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violation of Section 466.028(1)(y), Florida Statutes set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent, Steven Rindley, has been licensed by the Department of Professional Regulation (the "Department",) Board of Dentistry (the "Board") as a dentist having been issued license number DN0004795. Respondent has been continuously licensed in the State of Florida since 1969. No evidence was presented to establish that his license has previously been revoked, suspended or otherwise disciplined. There have been a number of disputes between Respondent, the Department and/or the Board relating to charges and complaints filed against Respondent. Respondent contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising" dentist. Respondent has filed a federal court law suit against the Board and others based on these contentions. During the hearing in this case, Respondent testified vociferously regarding these issues. However, no competent evidence was presented to establish that the Administrative Complaint or Amended Administrative Complaint filed in this proceeding were initiated for improper purposes. Respondent treated a patient, E.B., from approximately November of 1987 through approximately February 9, 1988. Respondent's treatment of E.B. consisted of extracting certain teeth and fabricating an immediate partial lower denture. Respondent had previously treated E.B. in 1981 during which time he had fabricated full upper and partial lower dentures for the patient. As part of his treatment of E.B. in 1987-1988, Respondent extracted four lower front anterior teeth. The extracted teeth were very loose and were removed at the request and with the consent of the patient. On or about November 12, 1987, Respondent began fabricating a new lower partial denture for E.B. Respondent used E.B.'s lower right cuspid, which was his only remaining tooth, as an abutment for the new lower partial denture. The lower right cuspid had decay in it which required a filling. Respondent diagnosed, but did not treat this carious lesion in the retained tooth. The patient terminated the dentist/patient relationship prior to Respondent's addressing this problem. E.B. refused to allow Respondent to take x-rays as part of the treatment rendered in 1987-1988. Consequently, Respondent did not take any radiographs in connection with his treatment of E.B. during 1987 and 1988. Respondent did not specifically note the patient's refusal to permit x-rays in his dental records. While Respondent claims that he advised E.B. as to the desirability of taking current x-rays, the nature and extent of the conversation between Respondent and the patient regarding the need for x-rays was not established. Respondent used radiographs taken during his treatment of E.B. in 1981 to assist him in his diagnosis and treatment of E.B. in 1987-1988. While those radiographs were outdated, they did provide some useful information regarding tooth morphology and other matters. The evidence established that the teeth that were extracted were not salvageable and would have been extracted irrespective of what current x-rays may have revealed. Ideally, an x-ray should have been taken to determine how secure the lower right cuspid was prior to using it as an abutment for the lower partial denture. This is especially true since the tooth had a carious lesion. In addition, a root canal was done on this tooth at some prior time. Based upon his clinical observations, Respondent determined that the carious lesion was minimal and could be filled after the fabrication of the lower partial denture and that the tooth was stable enough to serve as an abutment. Petitioner has not provided sufficient evidence to rebut those conclusions or to establish that Respondent had insufficient information to reach those conclusions. X-rays are an important diagnostic tool that can be helpful in eliminating surprises and determining pathologies which may exist in a patient's mouth. The Board has not adopted any rules requiring the use of x-rays prior to rendering any specific types of dental services. While current radiographs would have been preferable in the treatment of E.B., the patient refused to permit an x-ray to be taken. As a result, Respondent proceeded with his treatment based upon his clinical observations and the prior radiographs of the patient. There is no evidence that E.B. was suffering from any pathologies or conditions which Respondent failed to detect due to the lack of current radiographs. The two experts who testified on behalf of Petitioner opined that it is below the standards of the community for a dentist to extract teeth and/or use an exising tooth as an abutment for a partial denture without the benefit of a radiograph. Neither of these experts was aware that the patient had refused to permit x-rays to be taken. When asked what they would do with a patient who refuses x-rays, they both said they would have refused to provide services to the patient. Neither of Petitioner's experts ever examined the patient E.B. Respondent's experts testified that, under certain circumstances and after advising the patient of the advisability of having the x-rays taken, they would have proceeded with the extractions and the restoration of the dentition as best they could. Respondent's experts admitted that there are certain situations when proceeding with treatment without the benefit of a radiograph would be below the minimum standard expected of a dentist in this community. However, they believe that a dentist could proceed with the treatments rendered in this case absent any clinical observations, prior history or diagnosis to the contrary. The testimony of Respondent's experts is deemed more persuasive and is accepted. The evidence did not establish that Respondent fell below the minimum standard of care by proceeding with treatment of the patient under the conditions of this case. E.B. became very agitated over the length of time it took to fabricate the partial denture and obtain an acceptable fit. The patient and Respondent had several verbal altercations regarding the dental work. In February of 1988, the patient terminated his treatment before all the work was completed. The patient ultimately refused to pay for the work and reported the matter to the Department.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Dentistry issue a Final Order finding the Respondent, Steven Rindley, not guilty of the allegations set forth in the Administrative Complaint and dismissing the charges. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of July, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0648 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Subordinate to Findings of Fact 9. Adopted in substance in Findings of Fact 11. Rejected as vague and overborad. Rejected as unnecessary and subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 10. Subordinate to Findings of Fact 7 and 10. Subordinate to Findings of Fact 10. Subordinate to Findings of Fact 15 and 16. The Respondent's Proposed Findings of Fact Proposed Paragraph Number in the Findings of Fact Findings of in the Recommended Order Where Accepted or Fact Number Reason for Rejection. Addressed in the preliminary statement. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 6. Rejected as unnecessary and overbroad. Subordinate to Findings of Fact 8, 10 and 13. Subordinate to Findings of Fact 8. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 7 and 10. Subordinate to Findings of Fact 14. COPIES FURNISHED: Jan D. Langer, Esquire Adorno & Zeder 2601 South Bayshore Drive Suite 1600 Miami, Florida 33133 Joel Berger Dental Legal Advisers 1550 Madruga Avenue Suite 230 Coral Gables, Florida 33146 William Buckhalt, Executive Director Department of Professional Regulation, Board of Dentistry 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner earned a passing grade on the clinical portion of the June, 1986 dental examination?
Findings Of Fact The Petitioner is a licensed dentist in the State of Louisiana. Her business address is 1006 Surrey Street, Lafayette, LA. The Petitioner attended Boston University and received a Bachelor of Arts degree in 1973. The Petitioner attended MaHerry Medical College and received a dental degree in 1978. The Petitioner received post-graduate training in dentistry during a residency at Sidham Hospital and received a Post-Graduate Certificate from Sidham Hospital in 1979. The Petitioner has taken approximately 200 hours of post-graduate courses in endodontics. From 1979 until 1982, the Petitioner practiced dentistry in the Bronx, New York. In 1982 the Petitioner relocated her practice to Louisiana. The Petitioner has passed the Northeast Regional Boards and the Louisiana State Board Exam. She is licensed to practice in approximately 20 states in the northeast United States and in Louisiana. The Petitioner has been an applicant for licensure in dentistry in the State of Florida. The Petitioner took the June, 1986 Dental Examination. The Petitioner was notified that she had been awarded an overall score for the clinical portion of the examination of 2.88. A score of 3.00 is the minimum passing score for the clinical portion of the examination. The Petitioner timely requested a review of her grade, filed objections and timely requested a formal administrative hearing. The procedures tested during the examination and the Petitioner's scores for the procedures are as follows: Amalgam Cavity Prep 2.33 Amalgam Final Restoration 2.66 Denture 2.87 Periodontal 3.66 Posterior Endodontics 2.66 Anterior Endodontics 2.00 Cast Class II Only Prep 3.00 Cast Class II Wax-Up 3.33 Pin Amalgam Prep 3.00 Pin Amalgam Final 2.00 Each procedure was graded by 3 different examiners. Each examiner graded a procedure independently. One of the following grades was assigned to each procedure by each examiner: - Complete failure; - Unacceptable Dental Procedure; - Below Minimal Acceptable Dental Procedure; - Minimally Acceptable Dental Procedure; - Better than Minimally Acceptable Dental Procedure; - Outstanding Dental Procedure. The procedures were graded in a holistic manner. A failing grade must include a "comment" justifying the grade of the examiner's grade sheets. The three examiners' grades for a procedure were averaged to determine the score for the procedure. The procedure scores were then individually weighted and the weighted scores were added to provide an overall clinical grade. This overall clinical grade must be at least 3.00 to constitute a passing grade. Examiners are experienced Florida dentists selected by the Board of Dentistry. They must have at least 5 years of experience as a dentist. Potential examiners attended a standardization course. The standardization course consisted of 8 to 12 hours of training, including a review of the criteria by which each procedure is required by rule to be judged. Some of the dentists who took part in the standardization exercise were designated as examiners and some were designated as monitors. Monitors were present during the examination with the candidates. They were instructed not to assist candidates during the examination. Subsequent to receiving notice that she had not received a passing grade on the June, 1986 examination, the Petitioner challenged the correctness of the scores she received on procedures 1, 2, 5, 6, 9 and 10. After receiving notice that her license application was being denied because the Petitioner did not receive a passing grade on the clinical portion of the June, 1986 dental examination, the Petitioner attended a review session with Dr. Simkin on September 10, 1986. The session was scheduled to last for 30 minutes. The session actually lasted longer than that. The session was recorded with a tape recorder. At the conclusion of the session the tape recorder was turned off. The discussion continued after the tape recorder was turned off, however. In total, the session and the continued discussion lasted for approximately 45 to 50 minutes. Procedure 1 Procedure 1 is an "Amalgam Cavity Preparation." It involves preparation of a tooth for a filling. This procedure is performed on an actual patient as opposed to a model tooth. The three examiners who graded the Petitioner's performance on procedure 1 awarded the Petitioner the following scores and made the following comments: Examiner 136 3 Outline form & unsupported enamel Examiner 129 2 Unsupported enamel Examiner 83 2 Outline form & depth prep. The primary problem with the tooth the Petitioner performed procedure 1 on and the reason for the failing grades of two of the graders was the failure of the Petitioner to insure that the amalgam base or floor was in dentin and not enamel. Whether the base or floor of the preparation is dentin can be determined by the color, dullness or feel of the dentin. It cannot be determined by x-rays. If an amalgam filling rests on enamel instead of dentin, the filling may be more sensitive to the patient, the enamel can crack and/or the filling may also crack. When the cracking of the enamel or filling may occur cannot be predicted. The Petitioner testified that the depth of the preparation was sufficient and has argued that such a finding is supported by notes which were exchanged between a monitor and the examiners. Petitioner's reliance on the notes which were passed between the monitor and examiners is misplaced. The first note was a note from the Petitioner to the examiners noting conditions she wanted the examiners to be aware of which were unrelated to whether the preparation was into the dentin. The monitor did not "approve" what the Petitioner wrote in her note; the monitor merely noted that the Petitioner had written the note. The other note was a note from one of the examiners to the Petitioner. That note indicated that the Petitioner needed to "lower pulpal floor into dentin." This note is consistent with the examiners' findings. If the note had been followed by the Petitioner and the pulpal floor had been lowered, the patient would have been protected from a potential hazard consistent with the Board's duty to protect patients being used in examinations. When the monitor instructed the Petitioner to "proceed" the monitor was not actually telling the Petitioner what steps she should take or showing any agreement or disagreement with the examiner's note. No regrade of procedure 1 is possible because the procedure was performed on a patient. If the grades the Petitioner received for this procedure had been improper, the Petitioner would have to take this portion of the test over. There is not justification for allowing the Petitioner to take procedure 1 over. The grades the Petitioner received were justified by the comments of the examiners and the difference in the grades of the 3 examiners is insignificant. Procedure 2 Procedure 2 is an "Amalgam Final Restoration." This procedure involves the filling of the tooth prepared in procedure 1 and the shaping of the surface of the filling to the natural surface of the tooth. The three examiners who graded the Petitioner's performance on procedure 2 awarded the following scores and made the following comments: Examiner 138 2 Functional anatomy, proximal contour & gingival overhang Examiner 150 3 Functional anatomy Examiner 48 3 Functional anatomy & margin Although gingival overhang can often be detected with x-rays, it is not always possible to detect with x-rays. In light of the score of 2 given by the examiner which noted "gingival overhang" as one of the examiner's comments, the overhang was probably very slight. It is therefore not unusual that the other two examiners did not note the existence of an overhang. Additionally, a slight gingival overhang could also be noted as "margin." Therefore, it is possible that examiner 48 noted the same problem with the tooth when the comment "margin" was marked that examiner 138 noted when examiner 138 marked the comment "gingival overhang." This procedure was performed on a patient and therefore could not be reviewed. The comments given by the examiners, however, are sufficient to justify the grades given, especially the failing grade. The grades the Petitioner received on procedure 2 were justified by the comments of the examiners and there was no discrepancy in the grades awarded sufficient to order a re-examination of this procedure. No regrade is possible or warranted. Procedure 5 Procedure 5 is a "Posterior Endodontics." This procedure involved the preparation of a molar tooth for a root canal. The procedure is performed on a model tooth and not on the tooth of a patient. The three examiners who graded the Petitioner's performance on procedure 5 awarded the following scores and made the following comments: Examiner 133 3 Overextension Examiner 129 3 Outline form & overextension Examiner 153 2 Outline form, underextension & pulp horns removed Over extension and outline form can indicate the same problem. According to Dr. Simkin, "As soon as you have pulp horns, you have underextension and the outline form is improper ..." It is not inconsistent for examiners to determine that a tooth has an overextension and an underextension. Both conditions can occur on the same tooth as a result of the same procedure. The tooth procedure 5 was performed on by the Petitioner did in fact have an overextension, as even Dr. Webber and Dr. Morrison, witnesses of the Petitioner, agreed. The tooth procedure 5 was performed on by the Petitioner also had pulp horns an underextension. The Petitioner's performance on procedure 5 was not graded according to an outdated technique. The Petitioner's testimony that she was looking for a possible fourth canal is rejected the area of over extension was too large and it was in the wrong area to be justified by a search for a fourth canal. The evidence also failed to prove that any of the examiners graded the Petitioner's performance on procedure 5 according to an outdated technique or that they did not take into account the need to search for a fourth canal. The grades the Petitioner received on procedure 5 were justified by the comments of the examiners and there was no significant discrepancy in the grades they awarded. Their comments and grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 6 Procedure 6 is an "Anterior Endodontics. " This procedure involves the preparation of an anterior, or front, tooth for a root canal. It is performed on a model tooth and not on the tooth of the patient. The three examiners who graded the Petitioner's performance on procedure 6 awarded the following scores and made the following comments: Examiner 153 2 Outlining form, underextension, & pulp horns removed Examiner 129 2 Outline form - too far incisally did not remove entire roof of chamber Examiner 133 2 Outline form & gouges The tooth that the Petitioner performed procedure 6 on has pulp horns (underextension), is overextended (bevelling of the entrance too severely) and has gouges. The grades the Petitioner received on procedure 6 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and the grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 9 Procedure 9 is a "Pin Amalgam Prep." This procedure involves preparation of an ivory model tooth for restoration. The tooth includes an area of damage or decay which is so extensive that a large portion of the tooth must be removed and the amalgam filling must be supported with a pin. The examiners who graded the Petitioner's performance on procedure 9 awarded the following scores and made the following comments: Examiner 153 3 Outlining form & pin placement Examiner 109 3 Retention form & unsupported enamel Examiner 133 3 Outline form & pin placement Although the Petitioner received a passing grade from all 3 examiners, she contended that she was entitled to a higher score of 4. The grades the Petitioner received on Procedure 9 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and grades were Supported by review of the model tooth. No regrade or change in score is justified. Procedure 10 Procedure 10 is a "Pin Amalgam Final." This procedure is the final step of the procedure begun in procedure 9. A different model tooth, one already prepared, is used for this procedure. The three examiners who graded the Petitioner's performance on procedure 10 awarded the following scores and made the following comments: Examiner 153 2 Proximal contour & margin Examiner 129 2 Functional anatomy & proximal contour Examiner 133 2 Functional anatomy & proximal contour Proximal contour involves the shape of the amalgam - it should follow the natural contour of the tooth. In this case, the tooth used by the Petitioner had a ledge area, where food can be trapped, and a slight overhang. Margin is where the filling meets the tooth. It should be smooth and it was not on the Petitioner's tooth. Functional anatomy primarily involves the occlusal portion of the tooth. The Petitioner failed to build up the lingual cusp, which was the cusp that had been removed. The grades the Petitioner received on Procedure 9 were justified by the comments of the graders and there was no discrepancy in the grades they awarded or their comments. The comments and grades were supported by review of the model tooth. No regrade or change in score is justified.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the clinical portion of the June, 1986, dental examination was a failing grade. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4838 The parties have timely filed proposed recommended orders containing proposed findings of fact. It has been noted below which proposed finding of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioners Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-7. 4 and 7. This proposed finding of fact is generally irrelevant. The issue in this proceeding is whether the Petitioner successfully passed an examination. It is accepted, however, to the extent that it is relevant as to the weight which should be given to the Petitioner's testimony. The first two sentences are accepted in 9, 11 and 12 except to the extent that the proposed findings of fact pertain to the December, 1985 examination. The last sentence is rejected as irrelevant. The time for challenging the results of the December, 1985 examination had passed at the time of this proceeding and the Petitioner did not attempt to amend its Petition until the formal hearing had commenced. 5 12 and 14. 6 13-15. 7 10. 8-9 These proposed "findings of fact" are statements of issues or argument and not findings of fact. To the extent that any finding of fact is suggested, it is not Supported by the weight of the evidence. 10 12 and 19. This proposed finding of fact is irrelevant. See the discussion of proposed finding of fact 3, supra. 20. The Petitioner's score of 2.88 was not an "alleged" score and more than 30 minutes of the review session was recorded. 13-15 Irrelevant, unnecessary or not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant or not supported by the weight of the evidence. 18-20 Not supported by the weight of the evidence. Irrelevant. The first 3 sentences are accepted in 21 and 22. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant. 25. The monitor did not indicate agreement with the Petitioner's note. The monitor did take the note and the patient to where an examiner looked at the patient and an examiner did give a note to the monitor. See 25. The rest of the proposed fact is not supported by the weight of the evidence. 26 22. Not supported by the weight of the evidence. The first sentence is accepted in 25. The rest of the proposed fact is not supported by the weight of the evidence. Not supported by the weight of the evidence. 30 27. Not supported by the weight of the evidence. The first 3 sentences are hereby accepted. The rest of the proposed fact is not supported by the weight of the evidence. 29 and 30. The last sentence is irrelevant. 34-35 Not supported by the weight of the evidence. The first sentence is accepted in 33. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant and too broad. The first sentence is accepted in 34. The fourth and fifth sentences are accepted in 35. The rest of the proposed facts are not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. The first two sentences are accepted in 40 and 41. The rest of the proposed fact is not supported by the weight of the evidence. 42 44. 43 The first sentence is accepted in 45. The rest of the proposed fact is not supported by the weight of the evidence. 44 48. 45 The first sentence is accepted in 49. The rest of the proposed fact is not supported by the weight of the evidence. 46-47 Not supported by the weight of the evidence or irrelevant. Respondent's Proposed Findings of Fact 1 8-11. 2 12. 3 13 and 16-17. 4 18. 5-8 Hereby accepted. 9 13-14. 10 15. 11 19. 12-14 Unnecessary. Irrelevant. Argument. 15 21. 16 22. 17-19 Summary Of testimony. See 23-28. 20 29. 21 30. 22-25 Summary of testimony. See 31-33. 26 34. 27 35-36. 28-29 35. 30 Summary of testimony. See 36-39. 31 40. 32 41. 33-34 Summary of testimony. See 42-43. 35 44. 36 45. 37 Summary Of testimony. See 46-47. 38 48. 39 49. 40 Summary of testimony. See 50-53. 41-43 Unnecessary. Argument as to the weight of the evidence. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida. 0750 Rex D. Ware, Esquire Fuller & Johnson, P.A. Ill North Calhoun Street Tallahassee, Florida 32302 =================================================================
The Issue The issues in this case are whether the Board of Dentistry (Board) should discipline the Respondent on charges that she violated section 466.028(1)(z), (ff), and (gg), Florida Statutes (2009-2012),1/ by: improperly delegating professional responsibilities to persons not qualified to perform them; operating her dental office below minimum acceptable standards; and allowing the administration of anesthesia, in violation of Board rules.
Findings Of Fact The Respondent, Miranda Whylly Smith, D.D.S., holds license DN15873, which authorizes her to practice dentistry in the State of Florida. She has held this license since January 2002. No discipline has been imposed against her license to date. Since July 2009, the Respondent has owned and operated a dental practice called "Smiles and Giggles" in Spring Hill, Florida. Prior to May 2011, Smiles and Giggles was located on Mariner Boulevard; in May 2011, it moved to County Line Road. The Respondent is the only dentist practicing at Smiles and Giggles. She employs dental assistants, not dental hygienists. Count I--Improper Delegation Count I charges the Respondent with improperly delegating professional responsibilities to her dental assistants. Expanded-function dental assistants employed by the Respondent have included: Lillian Torres, who worked at Smiles and Giggles from late 2009 to March 2012 and functioned as the "head dental assistant" with responsibility for overseeing the work of other dental assistants working in the office; Kristina Plumadore, who has worked there since 2009; and William Hemme, who has worked there since late 2011 and now serves as head dental assistant. Priscilla Davila worked there as a dental assistant without an expanded-function certificate from May 2011 to August 2011. Incorporated in that charge are specific factual allegations regarding Ms. Torres and an unnamed male expanded- function dental assistant (who, the evidence revealed, was Mr. Hemme). (The Administrative Complaint includes other specific allegations based on statements from other dental assistants who did not testify, and those allegations are omitted here, since there was no evidence to support them.) Also incorporated in the charge are general factual allegations that all dental assistants improperly performed many of the same tasks at the direction of Ms. Torres and Mr. Hemme, with the Respondent's knowledge and approval, including taking impressions and bite registrations2/ for dentures, delivering dentures, adjusting dentures with grinding devices, using drills on cavities, filling cavities, and other tasks for which they were not qualified. Count I charges that the Respondent delegated to dental assistants the taking of final impressions for dentures and the making of adjustments to dentures, including the use of high- and/or low-speed drills, which made unalterable changes to the teeth.3/ As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres took the final impressions for dentures for a patient, L.C.; that Mr. Hemme adjusted dentures for the patient L.C. by "grinding [them] down"; and that both Mr. Hemme and Ms. Torres did "[a]ll denture fabrication and adjustment procedures" for L.C. In some respects, L.C.'s testimony on this allegation was inconsistent with the dental records introduced by the Respondent, which are more accurate in those respects. L.C. presented to the Respondent in late 2009. Initially, it was planned that a partial upper denture would be made, and an immediate complete lower denture would be made for use after her remaining lower teeth were extracted. In mid- January 2010, the plan changed, and an immediate complete upper denture was made for use after her remaining upper teeth were extracted. The upper teeth were extracted in mid-January 2010, and the immediate upper denture was fitted. In July 2010, attempts were made to adjust the denture because it was uncomfortable and also loose. In October 2011, L.C. returned to Smiles and Giggles with more complaints that the upper denture did not fit correctly and was loose. In late October and early November 2011, the upper denture was relined in an attempt to address the patient's complaints, but her complaints persisted. Later in November 2011, impressions were done for the patient's immediate complete lower denture. In January 2012, the patient's remaining lower teeth were extracted, and her immediate lower denture was fitted and adjusted. L.C. continued to complain about the fit of both dentures, and several attempts were made in the spring of 2012 to adjust them, to no avail. The patient then complained to Medicaid, and she returned to the Respondent to have both dentures redone in January 2013. L.C. testified that the Respondent took no impressions for dentures and did not fit or adjust her dentures until after the spring of 2012. She testified, prior to that all the work was done by Ms. Torres and Mr. Hemme. Ms. Torres and Mr. Hemme testified that they took impressions, but not final impressions or bite registrations, which were done by the Respondent. The dental records reflect that the provider of all these services was the Respondent. However, in this instance, the patient's testimony is credited, and the contrary testimony of Ms. Torres and Mr. Hemme (as well as the possible contrary inference from the dental records) is rejected. On questioning by counsel for the Respondent, Mr. Hemme appeared to take the position that the impressions were not final because they were for immediate dentures, which sometimes are replaced by permanent ones. However, it is clear from the evidence that L.C.'s immediate dentures were intended to be permanent. It was not until after her complaints to Medicaid that the Respondent agreed to make permanent dentures for her. Most, if not all, dental assistants working at Smiles and Giggles took impressions for dentures. It is not clear from the evidence whether these were all final impressions, except in the case of the patient L.C. Another patient, V.C.,4/ testified that Ms. Torres also took final impressions for her dentures. The testimony was elicited, in part, as proof of what paragraph 72 of the Administrative Complaint alleges Ms. Davila5/ witnessed. Ms. Davila's testimony gave no indication that she witnessed dental care being provided to V.C., and it seems unlikely from the evidence that Ms. Davila's short tenure working for Smiles and Giggles included the time when the care in question was provided to V.C. No dental records were introduced regarding the patient V.C. that could have helped answer that question. The testimony of the patient V.C. also could have been elicited as proof of a general allegation in paragraph 70 of the Administrative Complaint that all Smiles and Giggles dental assistants supervised by Ms. Torres performed various unauthorized tasks, including making dentures.6/ According to Mr. Hemme, he adjusts patients' dentures by using a handpiece to polish or smooth down rough spots where they come in contact with the gums to try to make them fit more comfortably. This is what he says he attempted to do to L.C.'s dentures. According to Ms. Torres, she uses an acrylic burr to "bring down high spots" that are identified by the Respondent and to make "minute adjustments" to dentures. These adjustments can be remedied only by making a new set of dentures. Although evidence was presented regarding the taking of bite registrations, the Administrative Complaint does not allege that the Respondent delegated this task to dental assistants. In any event, the evidence was not clear and convincing that dental assistants at Smiles and Giggles took bite registrations for dentures for patients other than L.C. To the contrary, there was no evidence that they did, and several denied it. Count I charges that the Respondent delegated to dental assistants the placement of filling materials and the use of dental instruments, including high- and/or low-speed drills, which made unalterable changes to the teeth. As the factual basis for that charge, the Administrative Complaint alleges: that Ms. Torres has admitted to placing amalgam and composite fillings, using low- and high- speed drills, and using a spoon excavator to take out the upper part of a cavity during the time she worked at Smiles and Giggles; and that all assistants working at Smiles and Giggles, while Ms. Torres worked there, used low-speed drills, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Davila saw dental assistants use high-speed drills and complete fillings on patients during the time she worked at Smiles and Giggles, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Torres "placed fillings" for a patient, T.F., when she had dental work done at Smiles and Giggles in the summer of 2011.7/ The evidence was clear that dental assistants at Smiles and Giggles were using flowable resin to fill cavities. This is a composite material that hardens when cured and can only be removed by being drilled out by the dentist using a high-speed handpiece. Dental assistants at Smiles and Giggles also were packing amalgam filling material to fill cavities. The Respondent would then review the restoration. If adjustments were needed, the Respondent or, sometimes, a dental assistant would use a slow-speed handpiece to try to bring down rough or high spots. After the patient T.F. was diagnosed with cavities in the summer of 2011, she returned to have those teeth restored. The Respondent used a drill to prepare the cavities for filling, and Ms. Torres placed composite material. The Respondent then left the room, and Ms. Torres used a slow-speed handpiece, with a burr attached, to grind down the filling to correct the bite. The Respondent did not return to re-examine T.F. before she left the office that day. The Respondent seems to take the position that fillings done by dental assistants were temporary fillings, to be followed by permanent restorations at a later date. But sometimes they were intended to be permanent. Even if intended initially to be temporary, if the patient did not return to have the temporary filling replaced by a permanent restoration, the temporary filling became de facto permanent. In either case, once placed, the filling material could be removed only by being drilled out with a high-speed drill. At some point in 2013, the dental assistants at Smiles and Giggles were told not to place filling material or bring down high spots any more. The source of this directive was not clear from the evidence, but it can be inferred that it came from the Respondent. By mid-October 2013, those tasks were being performed by dental assistants only "every once in a while" and are not being performed by them any longer, according to Ms. Plumadore. Count I charges that the Respondent delegated to dental assistants the performance of full-mouth debridement. As the factual basis for that charge, the Administrative Complaint alleges generally that the Respondent delegated to dental assistants at Smiles and Giggles the task of performing full-mouth debridement. No specifics are alleged. A cavitron is a device that uses ultrasound and water to remove plaque. It is used in the subgingival area, i.e., on the parts of teeth at the gum line and under the gums, as part of a full-mouth debridement. At the hearing, the patient T.F. testified that Ms. Torres used a cavitron to clean plaque from her teeth, including in the subgingival area. Ms. Torres admitted using the cavitron, but denied using it in the subgingival area. The patient was numbed by a local anesthetic, which would have made it difficult for the patient to sense precisely where the cavitron was being used. The evidence was not clear and convincing that Ms. Torres used the cavitron in the subgingival area. Ms. Davila testified that she saw Ms. Torres and other dental assistants use the cavitron for deep cleaning, which would include in the subgingival area. However, it is not clear how she would have been in a position to ascertain where a cavitron was being used in a patient's mouth. During the relatively short time she worked at Smiles and Giggles, she usually was not in the part of the office where patients' teeth were being cleaned. Even if she was in that area of the office, the patient's chair would have been facing away from where Ms. Davila probably would have been standing, so that she would not have been able to observe exactly where the cavitron was being used in the patient's mouth. There was no evidence that the Respondent knew of, or condoned the use of, the cavitron by her dental assistants for full-mouth debridement, including in the subgingival area. Count I charges that the Respondent delegated to dental assistants the initiation of a nitrous oxide mask and the administration of nitrous oxide without direct supervision. As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres placed a nitrous oxide mask on a minor patient, O.S., and administered nitrous oxide to the patient in August 2010. At the hearing, DOH presented the testimony of the child's mother, who was in the examination room when Ms. Torres placed the mask on her child's face and left. Neither she nor any other staff returned for about 20 minutes, during which the child began to act very calm, relaxed, and groggy, slump in the chair, wave his arms up and down, and act silly. The child was autistic, but this was unusual behavior for him. The mother became concerned and called for help. Ms. Torres returned, took the mask off, and dental work was performed on the patient. Ms. Torres denies that she did anything but put the mask on the patient's face and claims that no nitrous oxide was initiated. This testimony is rejected. It is found that Ms. Torres initiated the flow of nitrous oxide on the child before she left the examination room. The dental records indicate that nitrous oxide was administered, which is consistent with the patient's behavior. There was no clear and convincing evidence that it was normal procedure for the dental assistants to initiate nitrous oxide without the Respondent being present. All the dental assistants who testified indicated that they only monitor the flow of nitrous oxide or, at most, adjust the flow at the Respondent's explicit direction during a procedure. Although there were no specific factual allegations about it in the Administrative Complaint, the patient L.C. testified that a dental assistant placed a gas mask on her face when her teeth were being extracted. There was no evidence as to how the flow of nitrous oxide was initiated or administered to L.C. Count III--Dental Office Standards Count III charges the Respondent with operating an inadequately staffed dental office for the number and types of treatments performed for her patients and scheduling too many patients, so that unrealistic time limitations had to be placed on her and her staff, resulting in the office being operated below minimum acceptable standards of performance for the community. At most, the evidence showed that the Respondent operated a dental office that was very busy at times; that full schedules sometimes were exacerbated by emergencies that had to be worked around; that this sometimes resulted in office hours having to be extended into the evening; that the office's function would have benefited from an additional dentist; and that dental assistants at times voiced that the patient load was too high. There also was evidence that the office would have benefited from an experienced office manager/appointment scheduler; that the office eventually did benefit when one was hired; and that the office suffered from the lack of dedication and hard work from some of the dental assistants on staff. Some of them not only slacked off, but also even tried to sabotage the office out of personal animosity towards the Respondent and some of her staff. One of these former dental assistant was fired after she stole drugs from the office. There was no clear and convincing evidence that the Respondent had so many patients that she placed unrealistic time limitations on herself and her staff, or that the result was an office being operated below minimum acceptable standards of performance for the community. Count VI--Sedation Count VI charges the Respondent with administering anesthesia in a manner that violated the rules of the Board. The factual basis for this charge included allegations that the Respondent did not have a sedation permit from the Board; that the Respondent provided nitrous oxide sedation; that the Respondent had an unsupervised assistant provide nitrous oxide; that the Respondent had dental assistants start nitrous oxide; that children would be placed on nitrous oxide before she was present; that the Respondent had a licensed anesthesiologist provide I.V. sedation with propofol; and that the Respondent's dental office was not equipped, and her staff was not properly trained, as required by statute and Board rules for the administration of I.V. sedation with propofol. The factual basis regarding nitrous oxide refers to the administration of nitrous oxide in the presence of a licensed anesthesiologist. For approximately one year, between 2010 and 2011, the Respondent contracted with Anesthesiology Associates to provide an anesthesiologist to administer anesthesiology to patients who would benefit from it, since the Respondent herself was not authorized to do so. Sometimes, before the Respondent's arrival in the room to perform dental work, the anesthesiologist would direct one of the Respondent's dental assistants to place a gas mask on the patient and initiate nitrous oxide to relax the patient prior to sedation. These allegations are distinct from the previously discussed allegations that the Respondent herself delegated this task to her dental assistants without her direct supervision. In addition to nitrous oxide, which typically was administered by the anesthesiologist to relax a patient before the administration of other sedatives, the anesthesiologist used propofol, versed, and ketamine. Ketamine is an analgesic and sedative that typically was administered by injection to an uncooperative patient, usually a child, prior to the initiation of other sedation. Versed and propofol were administered intravenously. Propofol provided conscious sedation. Patients would be sedated for as long as necessary to complete the procedure, according to the Respondent's estimate. If the procedure was long enough to require too much propofol, versed would be started to complete the procedure. Versed reduces anxiety and relaxes the patient, but does not provide conscious sedation. During this time period, the anesthesiologist typically would go to the Respondent's office two days a week and provide services for six to ten patients a day. He would bring the required drugs and I.V. and other equipment. Later, the equipment was left in a closet at the Respondent's office and any unused drugs sometimes were left in a locked storage closet in the Respondent's office for use the next time. The next time the anesthesiologist came to the Respondent's office, he would get a key from the Respondent or her staff to access the locked storage closet and would inventory and inspect the drugs and equipment to be sure he had what was needed before beginning the day's work. The Respondent or the anesthesiologist provided a crash cart with a heart monitor and oxygen, which was needed to support the breathing of a sedated patient. There was a defibrillator in the Respondent's office, and the anesthesiologist was certified to provide cardiopulmonary resuscitation, if needed. The anesthesiologist testified that he met all the requirements of his license to provide anesthesiology services at the Respondent's office and had everything he needed to provide those services safely. At some point, the Respondent became aware that the Board required her to have a sedation permit to do what she was doing through Anesthesiology Associates. She applied for the permit. For some time after applying, she continued to contract with Anesthesiology Associates to provide these services, but later terminated the contract because she became aware that her sedation permit had not been issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order: finding the Respondent guilty of violations under Counts I and VI of the Administrative Complaint; imposing a $10,000 fine; suspending her license for six months; placing her on probation with appropriate conditions for six months after the suspension is lifted. DONE AND ENTERED this 5th day of March, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2014.
Findings Of Fact The parties stipulated that respondent is licensed as a dentist in Florida, having license no. 3721 and that, at all material times, he was engaged in the private practice of dentistry in a dental office at 311 South Eighth Street in Fort Pierce, Florida. When her oldest daughter's tooth abscessed in 1964, Jonneaue Rout visited Dr. Brown's office for the first time. He became the Rout family dentist. Mrs. Rout and her thee children, including Karen, visited Dr. Brown regularly, sometimes more frequently than at six-month intervals. Mrs. Rout suffered several dental problems over the years, including toothaches, abscessed teeth, cavities, and sometimes fillings which fell out. She accepted every suggestion Dr. Brown made in connection with her dental health, or in connection with Karen's dental health. She and Karen brushed their teeth conscientiously. She rejected no suggestion for treatment of herself or of her daughter, Karen, on account of expense. Until 1978, Karen had visited no dentist's office but respondent's. In early 1978, Karen Rout visited Drs. Starr and Barkett, orthodontists, to whom Dr. Brown referred her. At the orthodontists' offices, an x-ray film of her mouth was made, which revealed tooth decay. Before beginning their treatment of Karen, the orthodontists referred her to Dr. Dermody, a pedodontist, who first saw Karen on April 19, 1978. The pedodontist had four additional radiographs taken and found the overall condition of her mouth to be poor. He discovered decay in eight posterior teeth, including some five teeth in which respondent had placed white fillings as recently as, in one instance, five months earlier. Shallow cavities that had formed on two upper right molars may well have postdated Karen's last visit to respondent in December of 1977. But green, soft, gross decay underneath little white fillings in lower, left molars demonstrated that significant decay was present when respondent placed the fillings, as respondent himself conceded. Respondent testified that Karen squirmed while he was trying to work on her teeth. Placing fillings in the presence of significant decay does not meet minimum standards of performance for the acceptable practice of dentistry, when measured against generally prevailing peer performance. If decayed matter is not removed before a filing is placed, the process of decay will continue and destroy more of the tooth. Moreover, decay will not hold the filling as well as enamel because it is softer than enamel. Disconcerted by her daughter's problems, Mrs. Rout sought out another general dentist for herself. She chose Dr. Strawn, who first saw her on June 30, 1978. At his instance, panoramic and bite wing x-rays were done on that date. He diagnosed periodontal disease, an inflammatory condition that may cause loss of bone tissue, and which had loosened at least one of Mrs. Rout's teeth. In accordance with his policy with respect to periodontal disease severe enough to cause erosion of supporting tissue or "pockets" deeper than four millimeters, Dr. Strawn referred Mrs. Rout to Dr. Cain, a periodontist. Periodontal disease can cause the loss of perfectly healthy teeth. Its etiology is laid to plaque, the sticky, transparent, bacteria laden, mucus film that coats the teeth. These bacteria can cause inflammation and concomitant softening of the gums which then separate from the teeth giving the bacteria deeper access. Inflammation at deeper and deeper levels can lead ultimately to loss of the bone tissue supporting the teeth. Routine cleaning of the teeth is the most important prophylactic measure against periodontal disease. Once the disease has caused erosion of supporting tissues to a depth of two or three millimeters, routine cleaning does not hinder further erosion, although stimulation from cleaning is good for the gums. When a "pocket" is four millimeters deep, some bone tissue has been lost and there is nothing a victim can do at home to extricate the accumulated plaque or calculus. By the time a "pocket" is 12 millimeters deep, the situation is not treatable. Periodontitis is diagnosed by observing the condition of the gums, measuring erosion around individual teeth with a calibrated probe, and by examining x- rays. A general dentist should be able to diagnose periodontal disease and should either treat it or refer the victim to a specialist. On July 6, 1978, Mrs. Rout first visited the periodontist. At that time, her gums were reddish blue, swollen, and slow to rebound when indented. She had moderate to advanced, generalized periodontitis. Nine teeth were severely involved, with "pockets" ranging up to 12 millimeters in depth. The periodontal disease was chronic and had been present for at least ten years. Mrs. Rout lost one tooth from periodontitis after she began visiting the periodontist and has been given a "guarded prognosis" for four or five other teeth. Dr. Brown was aware that Mrs. Rout had a periodontal problem to some extent when he first saw her, although he never made any indication on her chart of any periodontal condition. Her gums bled from time to time. He became aware that she had a degenerative bone condition, particularly in the upper left part of her mouth where he discovered a deep pocket in mid-1976. He told Mrs. Rout to use dental floss, and a water pick, to brush her teeth, and to have them cleaned regularly. Dr. Brown has never employed a dental hygienist in his office. He cleaned Mrs. Rout's teeth himself, cleaning the clinical crowns and removing all sub-gingival calculus he saw; he performed deep scaling. Dr. Brown does not consider himself an expert periodontist. He believed Mrs. Rout's financial situation was such that she could not afford a periodontist's fees, and he never referred her to a periodontist. Dr. Brown conceded that he probably did tell Mrs. Rout everything was all right on her last visit to him. In addition to the periodontal disease, however, Dr. Strawn discovered widespread decay, missing fillings, and broken- down reconstructions when he examined Mrs. Rout some two months after Dr. Brown last saw her. These conditions existed at the time of Dr. Brown's last examination. At least one filling Dr. Brown placed in Mrs. Rout's mouth (in tooth No. 28) was placed in the presence of significant decay. From about 1964 until July or August of 1979, Mavis Smith went regularly to Dr. Brown for dental care. During this period, except for one occasion in the fall of 1975, when she went to another dentist for a separate opinion, she consulted no dentist other than respondent. She visited Dr. Brown's office often, had cavities filled, teeth extracted, teeth cleaned, and on one occasion, had dental surgery. She invariably abided by Dr. Brown's recommendations and never refused any treatment because of expense. On one visit, Dr. Brown decided that root canal treatment was probably indicated for her lower right first bicuspid. He cut through the crown into the pulp chamber and found a partially viable nerve; ninety percent of the nerve was alive. He twice treated the tooth with paramonochlorophenol or Beechnut creosote, but, through oversight, never completed the root canal procedure by introducing a radiopaque solution into the cavity and sealing the cavity with a filling. In April of 1979, Dr. Brown finished capping Ms. Smith's upper right lateral, upper right central, and upper left central incisors. Later in 1979, Dr. Brown filled a cavity in Ms. Smith's lower left second bicuspid. When the filling fell out, Ms. Smithy decided that she had perhaps eaten too soon after the repair of her tooth and returned to Dr. Brown for a second reconstruction. This filling also fell out, taking a piece of enamel with it. Again, Dr. Brown filled the tooth. When the filling fell out a third time, Ms. Smith consulted another general dentist, Dr. Bancroft. Dr. Bancroft saw Ms. Smith for the first time on August 29, 1979, four weeks after Dr. Brown's third attempt at filling the lower left second bicuspid. On September 14, 1979, Dr. Bancroft removed the decay on which Dr. Brown had placed a filling on August 1, 1979, removed another filling which had been placed in the tooth by Dr. Brown on April 27, 1968, and placed one large filling in Ms. Smith's lower left second bicuspid. In examining the caps on Ms. Smith's incisors, Dr. Bancroft noticed open and overhanging margins. A half-millimeter opening separated the margin of one cap from the margin of the tooth to which it had been cemented. The crowns did not fit properly and their placement was substandard work. On September 26, 1979, Ms. Smith complained to Dr. Bancroft of pain and swelling in the vicinity of her lower right first bicuspid. She had an abscess. Although she told Dr. Bancroft that Dr. Brown had done a root canal procedure on the tooth, roentgenograms revealed that the procedure had not been completed, so Dr. Bancroft performed a root canal procedure on the tooth himself. This procedure was indicated; a pulpotomy would not have been appropriate. Dr. Brown was Kris Fisher's family dentist for ten or eleven years until in September of 1979, she, too, left him for Dr. Bancroft. During the time Dr. Brown was her family dentist, Ms. Fisher went every six months for check-ups and for dental work Dr. Brown recommended. After every visit, she asked whether she was "all right", and Dr. Brown answered affirmatively. Her last visit to Dr. Brown was for the filling of a cavity in her lower left backmost molar. Dr. Brown placed a filling which subsequently fell out. Ms. Fisher returned for replacement of the filling on June 8, 1979 but went to see Dr. Bancroft after the replacement also fell out. On September 9, 1979, Dr. Bancroft discovered a fractured mesial occlusal filling in Ms. Fisher's lower left backmost molar. The mesial portion of the filling was missing. There was extremely extensive decay in the area of the fractured part of the filling which indicated inadequate preparation for the filling and dental work which failed to come up to local and state minimally acceptable standards for the practice of dentistry. There was also decay in other areas of Ms. Fisher's mouth, requiring dental treatment in several areas; seven teeth had decay. From 1966 or 1967 until the latter part of 1978, Herbert C. Brooks relied exclusively on Dr. Brown for dental care, except for the two occasions he went to Dr. Skripak for extractions, on Dr. Brown's referral. Mr. Brooks only has five or six upper teeth, three of which are in bad shape. He has a partial upper denture and will likely soon need a complete upper denture. In the fall of 1978, Mr. Brooks went to respondent because a ten-year-old filling in a front tooth fell out. A week after Dr. Brown replaced the filling, the replacement also fell out. Mr. Brooks returned to Dr. Brown, who, on the second visit, placed a pin in the tooth to augment the filling, which was still in place at the time of the final hearing. Dr. Brown replaced another old filling for Mr. Brooks, this one in his upper right central incisor. Before he did so, Dr. Brown suggested a crown or addition to the partial plate instead of another filling but agreed with Mr. Brooks that the expense might not be warranted in view of the condition of Mr. Brooks' teeth. Dr. Brown advised Mr. Brooks that the filling might not stay. Mr. Brooks' bite is such that his lower teeth hit the backs of his upper incisors, creating considerable pressure. Three or four days after it had been put in, the replacement fell out. Dr. Brown replaced the replacement. Three or four days later, the second replacement also fell out. Mr. Brooks then sought out another general dentist, Dr. Deery. Mr. Brooks complained to Dr. Deery on November 10, 1978, of the broken filling in the upper right central incisor. Dr. Deery caused a periapical x-ray to be taken and advised Mr. Brooks that root canal treatment and a crown were in order. He found gross decay in the tooth, which decay was present at the time Dr. Brown placed the filling, and replaced after it fell out the first time. Mr. Brooks said he needed something done quickly so he could continue his work as a salesman. Dr. Deery acquiesced and placed a filling in the incisor which amounted to a half to two-thirds of the clinical crown involved. Dr. Brown had not used a pin to augment the filling, although in Dr. Deery's opinion, he should have because there was not adequate retention for the filling. Dr. Deery used two pins. Dr. Deery recommended that Mr. Brooks see a periodontist which, however, Mr. Brooks never did. While Mr. Brooks was under his care, Dr. Brown cleaned his teeth occasionally. Dr. Deery found numerous areas of decay in Mr. Brooks' mouth, in addition to generalized periodontal disease. Respondent regularly refers patients who have need of multiple root canal treatments, who need orthodontic care, and who require extraction of teeth to appropriate specialists. Dr. Skripak is the oral surgeon to whom Dr. Brown refers patients in need of oral surgery. In an average week, Dr. Skripak sees five or ten patients referred to him by Dr. Brown. Dr. Skripak has seen 2,000 different patients referred to him by Dr. Brown over the years. Unless a patient brings x-rays with him adequate for his purposes, Dr. Skripak causes x- rays to be made. In every instance, he examines x-rays. On only two or three occasions over a ten-year period did Dr. Skripak tell Dr. Brown that he felt something had been missed. Dr. Skripak averred that he would advise any referring dentist of a problem and has advised others. According to Dr. Skripak, Dr. Brown's work, in general, ranges from standard or adequate to excellent and is, in general, up to the standards obtaining in St. Lucie, Indian River, Martin, and Okeechobee Counties.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license until he shall demonstrate his competency by passing the written and practical examinations administered to applicants for initial licensure as dentists. DONE and ENTERED this 8th day of October, 1980, in Tallahassee, Florida. COPIES FURNISHED: L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202 Rupert Jasen Smith, Esquire 715 Delaware Avenue Fort Pierce, Florida 33450 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980.
Findings Of Fact Joseph L. Ratchford is a graduate of the University of Georgetown School of Dentistry and took the Florida dental exam in June, 1984. The clinical, or practical, portion of the dental exam consists of ten procedures and the examinee must obtain a total combined weighted grade of 3.0 to pass the clinical portion of the exam. Petitioner received a total overall grade of 2.96 and has questioned the grades he received on two of the ten procedures. In grading the clinical portion of the exam, three examiners separately review and grade each procedure performed by the examinees. At each examination, approximately twelve to thirty examiners are used, and three hundred to four hundred candidates are examined. Each examiner must successfully complete an eight to twelve hour standardization exercise during which they are trained on the grading scale, procedures, and the criteria to be used in grading the clinical portion of the exam. The Board of Dentistry determines the criteria to be used in grading the exams and the grading scale. A perfect score is a "5" and a complete failure is a "O". Examiners are chosen by the Board of Dentistry based upon their successful completion of the standardization exercise and must also have been licensed in Florida for at least five years. Petitioner received grades of 2, 3, and 5 from the three examiners grading the Periodontal procedure on his exam. This resulted in a grade of 3.33 on the Periodontal procedure. Petitioner objects to the grading of this procedure due to the wide disparity in the three examiners' grades. The periodontal procedure is performed on a live patient and is an evaluation of the patient's teeth, root structure, and supporting structures. In grading this procedure, five criteria are used: Presence of stain on assigned teeth. Presence of supra-gingival calculus on assigned teeth. Presence of sub-gingival calculus on assigned teeth. Root roughness on assigned teeth. Tissue management. While several of these criteria are easily observable, criteria (c) and (d) are not, and in fact are sometimes hard to distinguish from each other. The grading system requires two points to be taken off when sub-gingival calculus is present on the assigned teeth (criteria c), and allows one to four points to be deducted for root roughness on the assigned teeth (criteria d). Examiner 10 gave Petitioner a grade of 2 since the examiner found Petitioner was deficient on criteria (a), (c), (d) and (e). A grade of 2 is appropriate with these deficiencies, although such a grade may even be a bit high. Examiner 10 had participated in seven exams prior to the one in question and a post-exam evaluation of all examiners shows that Examiner 10 ranked 6th out of 18 examiners in terms of grading accuracy. Examiner 35 gave Petitioner a grade of 3 since the examiner found Petitioner was deficient on criteria (c). A grade of 3 is mandatory is this situation since the presence of subgingival calculus requires two points to be deducted from the grade. Examiner 35 had participated in no previous exams but ranked 7th out of 18 examiners in terms of grading accuracy, according to a post-exam evaluation of all examiners. Examiner 82 gave Petitioner a perfect score of 5, noting no deficiencies. This was the second exam Examiner 82 had participated in and he ranked 17th out of 18 examiners in terms of grading accuracy. Therefore, the perfect score which Petitioner received from Examiner 82 is the least reliable of the three grades on the Periodontal procedure since Examiner 82 had the worst ranking for accuracy among these three examiners, and was next to last among all examiners. On the Cast Class II Onlay Prep procedure, Petitioner received grades of 1, 0, and 1. This resulted in a grade of .66 on this procedure. Petitioner objects to the grading of this procedure. He states he performed this procedure the way he was taught in dental school, he alleges that the comments of the examiners conflict, and he feels it is impossible to measure tooth reduction without an opposing model. The Cast Class II Only Prep procedure is performed on a model, or mannequin, and consists of a restoration onlay wax-up on a posterior tooth. In grading this procedure five criteria are used: Outline form Depth Retention Gingival level Mutilation of opposing or adjacent teeth Examiners 6 and 37 gave Petitioner a grade of 1. Examiner 6 commented on his score sheet that "Distal box too deep and undercut; excess facial cusp reduction." Examiner 37 commented that outline form was poor and "no lingual cusp protection." Examiner 15 gave Petitioner a score of 0 and commented that there was insufficient reduction of the functional cusp. Each of these examiners had participated in at least two previous exams, and each had a high grading accuracy ranking according to a post-exam evaluation of all examiners. Specifically, Examiner 15 ranked 1st, Examiner 37 ranked 4th and Examiner 6 ranked 8th out of 18 examiners. The comments of the examiners do not conflict and, in fact, do support the grades given. An examination of the mannequin used by Petitioner to perform this procedure (Petitioner's Exhibit 1) by a dental consultant who has been a licensed dentist in Florida since 1971, and who was accepted as a expert on the technical aspects of the clinical portion of the dental exam, confirms and supports the grades given by the examiners on this procedure. The major and significant deficiency on this procedure was Petitioner's failure to adequately reduce the functional or lingual cusp, and excessive reduction of the facial cusp resulting in the subject tooth being almost level. Although it is difficult to determine the amount of tooth reduction without an opposing model, and no opposing model was used in the exam, the teeth used for the exam mannequin are manufactured in large quantities from the sane mold or form. Therefore, variations in these model teeth before the procedures are performed are not visible to the naked eye. Improper reductions on these teeth are visible to the examiners who have seen this procedure performed many times on these same models, both in exams and in the standardization procedure. According to an examination development specialist employed by Respondent who was accepted as an expert in testing and measurement, specifically for the dental exam, the grading of exams which involve hands-on, practical demonstrations of an examinee's skill level is not entirely objective. There is some subjectivity in assigning grades after criteria for each procedure are evaluated. This is why three examiners separately review each procedure, and the average of their grades is used. In addition, Respondent performs the standardization exercise prior to the exam and then evaluates each examiner's grades for accuracy after the exam in order to minimize disparity and the effects of subjectivity. Examiners who do not receive a good evaluation in the post-exam review are not used in subsequent exams. Proposed findings of fact and conclusions of law have been submitted by the parties pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. Specifically, Petitioner's proposed findings numbered 7, 10, 11 and 12 are rejected for these reasons, and also because they are not based upon competent substantial evidence.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order upholding the grades given to Petitioner and denying the relief sought by Petitioner. DONE and ENTERED this 19th day of April, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1985. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael S. Rywant, Esquire 240 Hyde Park Avenue Tampa, Florida 33606 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
