The Issue The issues for determination are whether Respondent violated the provisions of Section 466.028, F.S. (1981), as alleged, and whether a delay in investigation and processing the administrative complaint resulted in such prejudice as to warrant dismissing the complaint.
Findings Of Fact Based on the evidence of record and Respondent's admissions dated August 29, 1988, the following facts are found: Bert Ong, D.M.D. is licensed as a dentist in the State of Florida, having been issued license #DN 0006246. Dr. Ong graduated in dentistry from the University of the East in Manila, Philippines, in 1964. He immediately left for the United States and between then and 1974, when he was first licensed in Florida, he attended the University of Pittsburgh, and worked as a doorman, a dental assistant, a dental researcher, and medical records clerk. Dr. Ong has an active general dentistry practice at 4435 Curry Ford Road, Orlando, Florida. Margaret Antonette, previously known as Margaret Tyre or Margaret Harp (due to marriage), became a dental patient of Dr. William Branham at a clinic in Longwood, Florida in January 1981. In the course of his examinations, Dr. Branham took some x-rays, prepared study models, and did periodontal probings of Ms. Antonette's teeth. Those probings, for the purpose of determining the depth of pockets between a patient's gums and teeth, are recorded on Dr. Branham's chart. Healthy gums generally have pockets of three millimeters or less. Dr. Branham found pockets in Ms. Antonette's upper teeth ranging from two millimeters to eight millimeters (one eight, several sixes and two sevens). Dr. Branham refers patients to a periodontal specialist when depths exceed five millimeters. He referred Ms. Antonette to periodontist, Robert Ferris, D.D.S. as he wanted to have her periodontal condition evaluate prior to doing restorative work that she needed. Dr. Ferris diagnosed Ms. Antonette as having chronic periodontitis on September 1, 1981. He outlined a treatment plan and gave her an estimate of his fee. She did not follow up on that treatment, but instead went to Dr. Ong, because a friend told her he could do both her crowns and bridges and the periodontal surgery. Margaret Antonette's first visit to Dr. Ong was on February 16, 1982. She had a badly infected upper tooth and was in misery. She told Dr. Ong that she had recently been told by Dr. Ferris that she needed periodontal surgery and that she wanted bridges and crowns. Dr. Ong assured that he could do everything she needed, that he could give her healthy gums and pretty teeth. Although Dr. Ong claims that he did periodontal probes, these are nowhere indicated on his chart, with the exception of some ambiguous ink shading on the diagram for upper tooth number six. Even for that tooth the probe depth is missing. At the first visit Dr. Ong took X-rays and made study models. On March 11, 1982, he extracted tooth number six, the one that had been infected. At the next visit on March 26, 1982, Dr. Ong did sub-gingival scaling, curettage and root planing on teeth numbers two, three, seven and eight. He also prepared those teeth for a crown by using a burr to remove the enamel and shape them. He put a temporary crown on the teeth. His chart indicates only "crown preparation and temporary", for teeth numbers seven and eight, as he forgot to note numbers two and three and he made no note of the periodontal procedures. On April 9, 1982 he performed the same procedures on teeth numbers nine, ten and eleven; and on April 15, 1982, the same procedures were performed on teeth numbers fourteen and fifteen. The chart notations for those dates list the teeth numbers and note "crown preparation and temporary". No mention is made of the periodontal procedures. Permanent crowns and bridges were cemented on Ms. Antonette's upper teeth on May 7, May 18 and June 10, 1982. June 10, 1982, was Ms. Antonette's final visit to Dr. Ong. She understood the work was finished and she was set up for a recall appointment in February 1983, eight months later. She did not return. The treatment administered to Ms. Antonette by Dr. Ong was extremely painful. At one point he prescribed Darvon and Valium to her. Within a year of her final visit she began suffering with bleeding gums. The gums became more infected and she finally consulted a periodontist in October or November 1984. Appropriate extensive periodontal surgery was completed in December 1984. The result of the subsequent periodontal treatment was a shrinking of Ms. Antonette's gums, leaving unsightly and difficult to clean gaps between her replacement teeth and the maxillary and residual ridge in her upper mouth. The crown and bridgework done by Dr. Ong needs to be replaced. Dr. Ong should have diagnosed Ms. Antonette's periodontal disease on her first visit. He was aware that she had consulted a periodontist prior to visiting him and noted this on her chart. He claims that he can remember what the periodontal probes were, even though they were not written down, because they were mostly normal. In spite of this, he performed the periodontal procedures noted above, consisting of scraping with a sharp instrument, a scaler, removing tartar and calculus buildup from the roots of the teeth and removing diseased tissue from inside the gums. These procedures may be done by a general dentist, but it is essential that the patient be recalled after one or two months in order to evaluate the results on the gums. If the gums have not healed, it is generally accepted that periodontal surgery is required and, the patient is referred to a specialist. In February 1982, Ms. Antonette's gums were not mostly normal. Both Dr. Branham and Dr. Ferris had noted severe problems. She received no treatment for those problems prior to consulting Dr. Ong, and they would not have healed on their own. At best, the gums would have stayed the same, with no further deterioration. Even assuming that Dr. Ong had initially proceeded correctly with the curettage and root planning, he failed to wait to evaluate the results of the treatment prior to commencing the replacement work. Not only was the process more painful for the patient, his failure to wait until the gums had healed caused her to have to seek subsequent periodontal treatment that rendered Dr. Ong's replacement work useless. In addition to the problems caused by Ms. Antonette's subsequent essential periodontal treatment, the crowns placed by Dr. Ong were defective as they contained open margins. This means that spaces were left under the crown, making it impossible to clean the area and accelerating the progression of the periodontal disease. Dr. Ong failed to maintain dental records to justify his course of treatment of Margaret Antonette. No mention whatsoever is made of the condition of her gums. The "periodontal condition" (transcript, p. 238) that, according to Dr. Ong, justified the subgingival scaling and curettage, was not described on the chart or in Dr. Ong's testimony. Moreover, the procedures were not recorded. Dr. Ong's diagnosis and treatment of Margaret Antonette failed to meet minimum standards when measured against generally prevailing peer performance. Petitioner's several credible expert witnesses established this fact. Dr. Ong's own witness, Charles Graham, D.D.S., conceded that Dr. Ong's standard of care was on the "low end of the scale" (Respondent's exhibit #2, p. 34), and that he could use some training. Dr. Ong's motion to dismiss is based, in part, on his claim of prejudice by a delay of approximately 26 months between Ms. Antonette's complaint to the agency and the filing of the administrative complaint. During that time the records of Dr. Ferris, the periodontist whom she had consulted before going to see Dr. Ong, were destroyed in a flood. What remains of those records, as they pertain to Ms. Antonette, is a letter dated February 12, 1985, prior to the flood, addressed to Ms. Antonette, which Dr. Ferris dictated as he reviewed the actual charts. The letter summarizes his findings, outlines the treatment plan and establishes his fee. A finding that Ms. Antonette had periodontal disease at the time that she first visited Dr. Ong is based not only on this letter and Dr. Ferris' testimony, but also the records and testimony of Dr. Branham, Ms. Antonette's testimony, and the expert witnesses presented by the agency. Dr. Ong was not prejudiced by the delay, but rather contributed to it by his failure to honor a subpoena for his records, served on October 9, 1985, until the subpoena was enforced in May 1986.
Recommendation Based on the foregoing it is hereby, RECOMMENDED: That the Board issue its final order finding Bert Ong, D.M.D., guilty of violations of subsections 466.028(1)(m) and (y), F.S. (1981), issuing a reprimand and imposing a $2,000.00 fine, suspending his license to practice dentistry for ninety (90) days, and thereafter placing him on probation for one year with a requirement for the completion of appropriate continuing dental education coursework in an amount and type to be specified by the Board. DONE and RECOMMENDED this 9th day of December, 1988, in Tallahassee, Florida. MARY CLARK 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 9th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4172 The following constitutes my specific rulings on the findings of fact submitted by the Petitioner: Adopted in paragraph #1. Adopted in paragraph #2. 3.-6. Adopted in paragraph #3. 7. Adopted in paragraph #4. 8.-11. Adopted in paragraph #5. Adopted in paragraph #7. Adopted in substance in paragraph #13. Rejected as unnecessary. 15.-17. Adopted in paragraph #7. 18.-21. Adopted in paragraph #8. 22.-24. Adopted in paragraph #9. Adopted in paragraph #10. Adopted in paragraph #13. Adopted in paragraph #15. Adopted in paragraph #10. 29.-30. Rejected as cumulative. Adopted in paragraph 16. Rejected as contrary to the evidence. Although the porcelain shading did not match the patient's lower teeth, the uncontroverted testimony was that she selected the color and intended to have the lower teeth replaced later. 33.-35. Adopted in paragraphs #11 and 12. 36.-38. Adopted in paragraph #17. Adopted in substance in paragraph #18. Adopted in paragraphs #19 and #20. Respondent' s Proposed Findings of Fact I.-A. Addressed in conclusions of law. -B. Adopted in paragraphs #1 and 2. -C. Adopted in paragraphs #5 and 10. 2.-A.-D. Rejected as immaterial and unnecessary. "Count I" Adopted in paragraph #3. Adopted in substance in paragraph #4. Adopted in part in paragraph 5, otherwise rejected as unnecessary. Adopted in paragraphs #6-#11. Adopted in paragraph #10, except that the recall was eight, not six, months later. Adopted in substances in paragraphs #3, 4, and 11. G.-H. Adopted in summary paragraph #12. "Count II" A.) B.) C.) Adopted in paragraphs 6. D. Rejected as contrary to the weight of evidence (as to the standard) and immaterial (as to the form). COPIES FURNISHED: Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard I. Wallsh, Esquire 217 East Ivanhoe Boulevard, North Orlando, Florida 32804 William Buckholt, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Petitioner should receive on the the clinical portion of the examination additional credit, which is sufficient to receive a passing grade on the December 1997 dental licensure examination.
Findings Of Fact Petitioner, Neda Raeisian, was a candidate for the dental licensure examination administered by the State of Florida in December 1997. The dental examination administered in December 1997 consisted of three parts: a "Florida Laws & Rules" part, an "Oral Diagnosis" part, and a "Clinical" part. The Petitioner received passing scores on the "Florida Laws & Rules" and "Oral Diagnosis" parts of the examination. Petitioner received a score of 2.95 on the Clinical part of the examination. A score of 3.00 was required on the Clinical part of the examination. The Petitioner failed the Clinical portion by .05 of a point, and, therefore, she failed the overall dental examination. Three examiners grade each candidate's clinical portion of the dental examination. Three examiners are used because by averaging the scores of the three examiners, the Respondent is more likely to capture the candidate's true score than by using one or two examiners. Before an examiner may be used for an examination, he or she must be recommended by an existing examiner or by a member of the Board of Dentistry. The proposed examiner may not have any complaints against his or her license and he or she must have been actively practicing and licensed for at least five years in the State of Florida. The examiner must complete an application that is sent to the Board of Dentistry examination committee, where it is then reviewed by the committee, and if approved, the examiner is entered into the pool of examiners. Before every examination, the Respondent conducts a standardization session, which is a process by which examiners are trained to grade using the same internal criteria. The Respondent uses assistant examiner supervisors who are appointed by the Board to train examiners on the different criteria that are used during the examination. The assistant examination supervisors go through and describe what a score of five would be, all the way down to a zero, the different criteria for each of those particular grades, and under what circumstances those grades should be given. After the examiners go through a verbal training, they are shown slides of teeth and told what the score on that procedure should be. After the standardization, there is a post- standardization exercise where the examiners are required to grade five mannequin models to make sure they have been able to internalize the criteria. After the post-standardization exercise, the Respondent evaluates the examiners to determine whether they are acceptable to use during the examination. There are also post-examination checks on the examiner, whereby the Respondent decides whether or not to use the examiners again. The Respondent runs the post-examination statistical checks to make sure that the examiners grade with consistency and reliability. There is generally a very high agreement rate between the examiners. Typically if there is an inconsistency in grading, it is usually the examiner who gives the higher grade that is incorrect because he or she missed an error; any error found by an examiner must be documented. The examiners grade the examination independently of each other; that is, they do not confer with each other while scoring the examination. The examination is also double-blind graded. Double- blind grading is the process through which examiners have no contact with the candidates. The examination is conducted in such a way that there is one clinic that is monitored by a licensed dentist in which the candidates actually perform the procedures. When the candidates are finished a proctor walks the patient over to another clinic where the examiners are located, and the examiners grade the examination. The candidates perform the patient portion of the examination on human beings that they are responsible for bringing in. If the patient has the necessary characteristics, the patient could serve for two different candidates or on two different examinations. The examination is a minimum competency examination. The grading system used during the clinical portion of the examination is as follows: A zero is a complete failure, a one is unacceptable dental procedure; a two is below minimally acceptable dental procedure; a three is minimally acceptable procedure, which is the minimum required to pass the clinical portion; a four is better than minimally acceptable dental procedure; and a five is outstanding dental procedure. An overall score is determine by averaging the three examiners' scores on the eight clinical procedures, putting different weights into a formula, and calculating the final grade. It is required in Board rule that the scores of the examiners be averaged. The Petitioner challenges the score given to her for her performance on Procedure 03, "Amalgam Final Restoration," of the Clinical portion of the examination. The Petitioner performed Procedure 03, the "Amalgam Final Restoration," on a live patient, Ms. Desiree Peacock. The Petitioner's performance on Procedure 03 was graded by three examiners: examiner number 290, identified as Dr. Richard Tomlin, of Pinellas Park, Florida; examiner number 299, identified as Dr. Haychell Saraydar, of Pinellas Park, Florida; and examiner number 176, identified as Dr. Leonard Britten, of Lutz, Florida. The Petitioner received a grade of 4 on a scale of 0-5 for her performance on Procedure 03 by examiner number 290; and a grade of 3 on a scale of 0-5 for her performance on Procedure 3 by examiner number 299. However, she received a grade of 0 on a scale of 0-5 for her performance on Procedure 03 by examiner number 176. The reason the Petitioner was given a score of 0 on procedure 03 by examiner number 176 was that the examiner felt that there was a lack of contact at the amalgam restoration site. The Respondent's dental expert, Jorge H. Miyares, D.D.S., testified that a score of 4 is given on Procedure 3 when, in the judgment of the examiner, there are only minor errors present which will not jeopardize the procedure; that a score of 3 is given on Procedure 03 when, in the judgment of the examiner, the procedure is completed at entry level; and that a score of 0 on Procedure 03 is mandatory if there is a total lack of contact. The examiners are taught and trained to check for contact when grading a candidate's performance on Procedure 03, as a lack of contact is a very significant error that jeopardizes the integrity of the amalgam restoration. There are two different types of contact involved in a Class II Restoration. The type of contact that was referenced by Examiner 176 in his grade documentation sheet is proximal contact. Proximal contact is when a tooth is restored, the proximal tooth next to it must be touching the tooth that has been prepared. Contact is something that either does or does not exist between two teeth. Contact is checked visually and by running a piece of dental floss between the teeth to see if there is resistance. Examiners 290 and 299 would have been required to give the Petitioner a grade of 0 on Procedure 03 if they had found a lack of contact. The findings of examiners 290 and 299 during their review of the Petitioner's performance on Procedure 03 were inconsistent with the findings of examiner 176 (lack of contact) during his review of the Petitioner's performance on Procedure 03. The inconsistency between the findings of examiners 290 and 299 and the findings of examiner 176 during their review of the Petitioner's performance on Procedure 03 were statistically unusual. Respondent performed Procedure 03 on the patient Desiree Peacock. Following the exam, Peacock used dental floss on the affected area and she believed she felt resistance. Although the grading on Procedure 03 of the clinical portion of the examination is inconsistent, the Respondent followed its standard testing procedures for the December 1997 dental examination. The evidence is insufficient to prove that the Respondent's examiner acted arbitrarily or capriciously or with an abuse of discretion in refusing to give the Petitioner a passing grade on procedure 03 of the clinical examination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petitioner's challenge to the grade assigned her for the clinical portion of the December 1997 dental licensure examination. DONE AND ENTERED this 22nd day of September, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: Anne Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399 Dr. Neda Raeisian 2161 Lake Debra Drive Apartment 1726 Orlando, Florida 32835 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast Bin A-02 Tallahassee, Florida 32399-1703
The Issue The issue for determination is whether Petitioner successfully completed the December 1999 dental licensure examination.
Findings Of Fact Petitioner has been given a temporary permit to practice dentistry due to his being a resident in training. In December 1999, Petitioner took the dental licensure Examination. He successfully completed the Laws and Rules part of the Examination having received a score of 78.00, where a minimum score of 75.00 was required to pass that part. Petitioner failed to successfully complete the Clinical part of the Examination having received a score of 2.89, where a minimum score of 3.00 was required to pass the Clinical part. As a result, Petitioner failed to successfully complete the overall Examination. On the Periodontal section of the Clinical part, Petitioner received a score of 1.66. He challenges this score. Each candidate is graded by three examiners. Each examiner is a dentist who is licensed in the State of Florida, with a minimum of five active years' experience, and who, among other things, has no complaints or negative actions against his/her license. Before every examination, each examiner is trained in evaluating a procedure to make sure that the procedure is properly performed. The Department of Health (Department) conducts training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida. To further their training, the examiners after receiving verbal training are shown slides of teeth which do not meet the clinical criteria of the examination. Following the standardization, to make sure that the examiners have been able to internalize the criteria, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where models are used and the examiners check for errors on the models. The examiners are evaluated on how they perform when they grade the models, to make sure that the examiners are grading the candidates the same, using the same criteria, and with reliability. Each examiner grades the examination independently. The examiners do not confer with each other while scoring the examination. The examiners do not have contact with the candidates. As to grading, the average of the three grades from the examiners produces the overall grade for the exercise performed by the candidate. Having three examiners grading provides a more reliable indication of the candidate's competency and true grade. Furthermore, the examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored. When the candidate completes the procedures, a proctor accompanies the human patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. Monitors are used by the Department at the examination. The role of a monitor is to preserve and secure the integrity of the examination. The monitor, among other things, gives instructions to the candidates, answers questions of the candidates, and acts as a messenger between the candidate and the examiner. Monitors also ensure that candidates do not have contact with the examiners. For the Periodontal section, a candidate, as Petitioner, performs a periodontal exercise on a human patient who is chosen by the candidate. The human patient must also be approved by the Department in accordance with criteria specified by rule.2 The criteria includes a requirement that the human patient must have a minimum of five teeth, each of which must have pockets of a minimum of four mm in depth with sub-gingival calculus. Petitioner chose his human patient. The Department approved Petitioner's human patient. Petitioner's human patient was a periodontally involved patient. Petitioner performed the periodontal exercise on his human patient. Petitioner's exercise was graded by three examiners, i.e., Examiners 131, 346, and 264. All three examiners participated in and successfully completed the standardization training, and it is inferred that they were considered qualified to act as examiners for the Examination. Petitioner's examination was double-blind graded. Each examiner independently graded Petitioner's examination. Examiner 131 found no errors and awarded Petitioner a grade of five (5). Examiner 346 found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). Examiner 264 also found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). The criteria for the Periodontal exercise mandates a grade of zero (0) where there is gross mutilation of gingival tissue.3 Consequently, Examiners 346 and 264 had no choice but to award Petitioner a grade of zero (0). After the grading, both graders who found gross mutilation of gingival tissue made written comments, regarding the tissue mutilation, on the Examiner-To-Monitor Instructions form. Examiner 264's comment was "Please have candidate place perio pak, area 26, 27, 28" and was not intended to be instructions to Petitioner but was directed to follow-up work or to attention that the human patient may need afterwards. The Examiner-To-Monitor Instructions form, with the written comments, was provided to the monitor who related the comments to Petitioner. The monitor did not allow Petitioner to view the written comments. The monitor informed Petitioner that further work needed to be done as to the human patient. The monitor indicated on the Examiner-To-Monitor Instructions form that Examiner 264's comment was related to Petitioner by the monitor writing "Candidate complied with" and writing and circling his assigned monitor number. The monitor writing "Candidate complied with" meant only that the monitor informed Petitioner that further work needed to be done, not that the Petitioner correctly performed the procedure. No evidence was presented that Petitioner sutured the human patient or that he placed a perio pak on the affected tissue of areas 26, 27, and 28. The evidence shows that the monitor only related to Petitioner that further work needed to be done without the monitor specifying what needed to be done. Moreover, the evidence shows that the monitor did not indicate that Petitioner had done what was requested of him. A candidate is not informed of his/her performance by the examiner because there is no contact between the examiner and the candidate. Additionally, such notification at the Examination site is not done because it is believed to have the effect of alarming the candidate and raising the candidate's anxiety level. The human patient was not informed that there was mutilation of soft tissue as a result of the periodontal exercise. Before an individual is accepted by the Department as a patient, the individual must complete and sign a "Patient Disclosure Statement and Express Assumption of Risk" form. This form, among other things, relieves the Department of any responsibility for poor work done by a candidate or for notifying the human patient of any poor work done by the candidate and places the responsibility on the human patient to have a licensed dentist check the work done by the candidate. The grading of Petitioner's Periodontal exercise is not arbitrary or capricious or an abuse of discretion. The grading process is not devoid of logic and reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order dismissing Rami Ghurani's examination challenge to the periodontal section of the clinical part of the dental licensure examination administered in December 1999. DONE AND ENTERED this 15th day of December, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2000.
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
Findings Of Fact Petitioner was an applicant for licensure by examination to practice dentistry in the State of Florida. The practical examination, which is the portion here contested, consisted of 11 procedures, each of which is graded separately by three examiners. Petitioner took the dental examination in December, 1983, and obtained a total overall grade of 2.93 (Exhibit 3). A grade of 3.0 is required to pass the examination. He is here contesting only procedures No. 01 in which he received grades from the three examiners of 3, 3, and 0 (Exhibit 1); and procedure No. 05 in which he received grades of 2, 3, and 0 from three different examiners. Examiners for the dental examination are all currently licensed dentists in the State of Florida who have been extensively trained and standardized by the Department of Professional Regulation. A standardization exercise takes place immediately prior to each examination during which the examiners grade identical procedures and discuss any grade variances to eliminate, as far as possible, any discrepancies in interpretation of the grading criteria. Examiners are selected based on their experience as examiners and their ability to grade without extremes of harshness or leniency. Candidates are informed of the grading criteria prior to the examination through the notice to appear (Exhibit 4) and the applicable laws and rules which are sent by the Office of Examiner Services to all candidates prior to the administration of the examination. In procedure No. 01 (Exhibit 1) one of the examiners found caries not removed in the preparation process, noted on the grade sheet where the caries was located, and gave a mandatory zero for this procedure. Although the other examiners did not see this caries, and gave grades of 3, it was in a difficult place to see and feel with the explorer. The examiner who found the caries submitted a note to the monitor (Exhibit 7) to have all decay removed before the tooth was filled and the monitor's notation on Exhibit 7 indicates this was done. In procedure No. 05 (Exhibit 2) which involved cleaning a specified number of teeth, one examiner found stain and root roughness and gave a grade of 2; a second examiner found root roughness and gave a grade of 3; while the third examiner found supra-gingival calculus, root roughness and subgingival calculus, and gave a grade of 0. One of the expert witnesses who testified was the examiner who graded Petitioner a failing grade of 2 on this procedure. Since he did not actually see subgingival calculus but saw stain and felt the rough tooth, he did not give a zero mark which he would have given had he also seen the subgingival calculus. The Notice to Appear (Exhibit 4) and the rules sent to the candidates are clear that all subgingival and supra-gingival foreign particles must be removed and a grade of zero is mandatory if the procedure is not completed, which would include removal of all calculus. The comments on the grade sheets support the grades awarded. Here, two of the three examiners gave Petitioner a failing grade on procedure No. 05 and the fact that only one of the examiners saw the subgingival calculus does not indicate this grade is erroneous. These grades were not very different but merely reflect different degrees of similar conditions as they were observed by the examiners.
The Issue Whether Petitioner is entitled to a passing grade on the dental examination given on June 4-7, 2000.
Findings Of Fact Shahmohamady took the clinical portion of the dental licensure examination on June 4-7, 2000. He received a failing score of 2.98. The clinical portion of the dental examination consists of nine parts: a written clinical, three patient procedures, and five mannequin procedures. The five mannequin procedures consist of the endodontic, preparation for a three- unit fixed partial denture, the Class IV composite, the Class II composite, and the Class II amalgam. Shahmohamady challenges the grades that he received for the preparation for a three-unit fixed partial denture and the Class IV composite. The Department retains examiners and monitors during the examination. The examiners actually grade the clinical procedures performed by the candidates during the examination. The monitors give instructions to the candidates, preserve and secure the integrity of the examination, and act as messengers between the examiners and candidates. The procedures are blind graded independently by three examiners. The examiners do not know the name of the candidates they are grading. Each examiner grades the procedures independently of the other examiners. Discussion among the examiners is not allowed. The three examiners' grades for each procedure are averaged for the overall grade for the procedure. Each examiner must attend and successfully complete a standardization course prior to the examination. The standardization session trains each examiner to use the same grading criteria. After the examination is concluded and the final grades are given, the Department performs an analysis of the examiners' grading to determine the reliability of each examiner's grading. Candidates and examiners do not have contact during the examination. If a candidate has a problem during the examination, he is to alert a monitor. Candidates may fill out a Monitor-To-Examiner Instruction form, advising the monitor of any problem experienced during the examination. The monitor will read the comments of the candidate, and if the monitor agrees with the comments the monitor will write his monitor number on the form and circle the number. The monitor will provide the comment forms to the examiners when they are grading the procedures. Each examiner is to read the comment forms. The examiner is to acknowledge that he has read the forms on the grade sheet by either writing SMN followed by the number of comment sheets he read for all the procedures or by writing under each procedure SMN followed by the number of comment sheets that he read for that particular procedure. Shahmohamady filled out a Monitor-to-Examiner Instructions form on June 6, 2000, for the preparation for a three-unit fixed partial denture procedure and wrote the following: Doctor, As I was prepping tooth #20 on the sital aspect, the gas torch of the Candidate sitting in front of me (one row over) suddenly burst into a 3 foot flame that caused everyone to yell out. I inadvertently looked up and saw the flame without knowing where it was coming from and paniked [sic] and my bur gouged the mesial aspect of #19 (area of box [sic] There is no disagreement among the parties that the incident involving the gas burner occurred and no disagreement that points should not have been deducted for the gouge of the adjacent tooth resulting from the gas burner incident. The clinical procedures are graded on a scale of zero to five, with five being the best score. If an examiner gives a score of less than five, the examiner is to list a comment number, which corresponds to a list of comments for each procedure. The examiner may also list a comment number for things that the examiner observes during the grading, but for which no points are deducted. For procedure 7, which is the preparation of a three-unit fixed partial denture, the comment list to be used by the examiner was as follows: Outline Form Undercut Insufficient Reduction Excessive Reduction Marginal Finish Unsupported Enamel Parrallelism Mutilation of Opposing or Adjacent Teeth Management of Soft Tissue X Additional Comments - Written For procedure 7, Shahmohamady received a score of 5 from Examiner 289, a score of 4 from Examiner 315, and a score of 3 from Examiner 366. Each of the examiners was given the Monitor-to Examiner Instructions form with the note from Shahmohamady concerning the Bunsen burner incident. Shahmohamady challenges the score that he received from Examiner 366. Examiner 366 put numbers 4, 5, and 8 on the comment portion of the grading sheet for procedure 7. Those comments referred to excessive reduction, marginal finish, and mutilation of opposing or adjacent teeth. He indicated that he had read the three comment sheets that were submitted for the mannequin procedures and so indicated by writing "SMN-3" on the grading sheet for Shahmohamady. Examiner 366 did not deduct points for the mutilation of the adjacent tooth due to the Bunsen burner explosion. The grade which Shahmohamady received for procedure 7 is correct and should not be increased. After a candidate receives his grades for the dental examination, he may request an administrative hearing if he fails the examination. When the Department receives a request for an administrative hearing, the Department will regrade the procedures done by that candidate. The top three examiners from the examination based on the post-examination analysis that is done by the Department are chosen to regrade the procedures which are being contested. In addition to regrading candidates who have failed the examination, the examiners also regrade some candidates who have successfully passed the examination in order to ensure the integrity of the regrading process. Shahmohamady challenged the grade he received on procedure 7 and procedure 4; thus his examination was regraded. Each of the grading sheets had the following comment listed on the grading sheet for procedure 7 prior to the regrading: "Ignore nicked adjacent tooth bunson [sic] burner explosion." Procedure 7 was regraded by three examiners, one of whom was Examiner 366. Examiner 366 again gave Shahmohamady a score of three and included comment 4 on the comment section. Examiner 298 gave Shahmohamady a score of 2 for the procedure, included comment 4, and wrote "overtapered" on the grading sheet. Examiner 316 gave Shahmohamady a score of 3 and included comments 1, 4, and 5. Comment 1 referred to outline form. On regrading, Shahmohamady received an overall lower score for procedure 7 than he did in the original grading. Procedure 7 was graded correctly, and Shahmohamady is not entitled to additional points for that procedure. Shahmohamady challenged the score that he received for the Class IV composite restoration. He received an overall score of 2.66. The Class IV composite restoration is a procedure that involves the candidate's ability to cut a section of the tooth off the corner of the biting edge of the front tooth below the level where it contacts the adjacent tooth. The candidate is required to restore the contact and the tooth structure to proper form and function in a tooth- colored material. Based on the expert testimony of the Department's witness, Dr. Dan Bertoch, the restoration done by Shahmohamady was not done properly and would fail prematurely. Examiner 366 opined that Shahmohamady did not appropriately restore the proximal anatomy and the proximal contour. Shahmohamady did not properly perform the Class IV composite restoration procedure and should not be given a passing score for that procedure. Petitioner claims that Examiner 366 consistently graded Shahmohamady lower than the other two examiners. Based on the post-examination statistical analysis performed by the Department, Examiner 366 tied for second place in reliability for scoring. On a scale of 100, he scored 96, which is considered to be excellent. The other two examiners who were grading Shahmohamady clinical procedures scored lower on reliability than Examiner 366. Examiner 366's was a reliable grader and correctly graded Shahmohamady's examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Shahram Shahmohamady failed the clinical portion of the June 4-7, 2000, dental examination with a score of 2.98. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001. COPIES FURNISHED: Orlando Rodriquez-Rams, Esquire Lerenzo & Capua 9192 Coral Way, Suite 201 Miami, Florida 33165 Cherry Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-0792 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
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 to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 31st day of January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)