The Issue The issue presented is whether Petitioner achieved a passing score on the June 1999 Florida dental licensure examination.
Findings Of Fact Petitioner is licensed to practice dentistry in California and was also licensed in Georgia until he permitted his Georgia license to become inactive. He has been engaged in the active practice of dentistry for thirteen years. He has never been sued. Petitioner took the June 1999 clinical portion of the Florida dental licensure examination. He was subsequently advised that he had not achieved a passing score. Petitioner challenges the score he received on two portions of the clinical examination: his amalgam cavity preparation on the patient and his endodontic procedure on an extracted tooth. Petitioner's patient had a cavity between two teeth, although it was much lower than the contact point. The patient also had a large non-contiguous cavity in the front of the same tooth. Petitioner determined that he wished to save as much of the tooth as possible knowing that the large cavity in the front of the tooth would need to be filled. Because of the manner in which it was necessary to prepare the tooth to preserve the maximum amount of structure, he generated a monitor note explaining his approach. When he located the monitor to whom he would turn in his note, that monitor was busy viewing another patient and motioned for Petitioner to place the note at the monitor's station. Petitioner placed the note in the monitor's chair and returned to his patient. Petitioner completed the preparation procedure. While doing so, he noticed that his patient's tooth had a dead tract, a rare dental defect that would not interfere with the process. This was only the second time that Petitioner had seen a dead tract in a tooth despite his many years of practice. The first time had been while Petitioner was in dental school When his patient was graded, two of the three graders gave Petitioner a score of "0," noting that caries remained. The third grader saw no caries but noted debris remained. What the two examiners mistook for further decay was the dead tract. No debris remained. The other comments of the graders suggested that they had not seen the monitor note generated by Petitioner explaining the manner in which he was preparing the tooth and why. Despite the alleged presence of decay, Petitioner was instructed to proceed to fill the cavity. The extracted tooth on which Petitioner performed his endodontic procedure was an "easy" tooth with large canals. One grader gave Petitioner a "5," which is a perfect score. One grader gave him a "3," and the other gave him a "0." Only the grader who gave Petitioner the "0" noted that the tooth was perforated. The tooth Petitioner worked on had no perforation on the inside, and the x-rays taken during the process revealed no file or gutta percha filling off to the side of the canals. Petitioner did not perforate the tooth during his endodontic procedure. Petitioner properly performed both the amalgam cavity preparation on his patient and the endodontic procedure on the extracted tooth. He should be awarded full points on both procedures. The additional points are sufficient to give Petitioner a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a passing score on the June 1999 dental licensure examination. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2000. COPIES FURNISHED: Bill Buckhalt, Executive Director Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Gregory K. Barfield 2555 Collins Road, Penthouse 114 Miami Beach, Florida 33140 Gregory K. Barfield Post Office Box 102 Rancho Sante Fe, California 92067 Adam Keith Ehrlich, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue The issues in this case are whether Respondent, a dentist who owns a multidentist practice, (a) failed to keep dental records and medical history records justifying the course of a patient's treatment; (b) billed a patient for dental services that were not actually rendered, thereby committing fraud, deceit, or misconduct; or (c) caused a dental office to be operated in such a manner as to result in substandard dental treatment. If Respondent committed any of these offenses, it will be necessary to determine an appropriate penalty.
Findings Of Fact At all times relevant to this case, Respondent Francisco Fonte, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Fonte. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Fonte committed three such offenses. In Count I of the Administrative Complaint, the Department charged Dr. Fonte with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named J.S. In Count II, Dr. Fonte was charged with committing fraud, deceit, or misconduct in the practice of dentistry, an offense under section 466.028(1)(t). In support of this charge, the Department alleged that, as part of a systematic scheme to defraud patients, Dr. Fonte had sought payment from J.S. for services not actually rendered, and had done the same to "Patients P.W., J.M., E.T., A.C., A.H., F.C., M.S., D.L. and/or as many as 500 additional patients " In Count III, the Department charged Dr. Fonte with having caused a dental office to be operated in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community, which is an offense defined in section 466.028(1)(ff). The events giving rise to this case began in the summer of 2008, when a young adult named J.S. went to the offices of Advanced Dental Innovations, P.A. ("ADI") for treatment of a painful tooth. ADI, which was owned by Dr. Fonte, operated a dental clinic in Royal Palm Beach, Florida. Several dentists practiced in ADI's premises——but not Dr. Fonte himself. He was employed by the Florida Department of Corrections as a Senior Dentist and worked at the Everglades Correctional Institution in Miami, where he treated the inmates. Dr. Fonte was not actively involved in the daily business or professional operations of ADI. To manage the clinic, ADI hired Martha Somohano, who held a Florida dental radiographer license and was purportedly experienced in running dental offices. Dr. Fonte trusted Ms. Somohano to manage the business competently and protect his investment in ADI. One of the dentists who saw patients for ADI was Dr. Idalmis Ramos-Abelenda. She worked in ADI's offices one day per week from around April 2008 to April 2009.2 Although J.S. was seen by at least one other dentist at ADI's clinic, Dr. Ramos- Abelenda became his treating dentist of record. Dr. Fonte never saw or treated J.S. During a five-month period, from July through November 2008, Dr. Ramos-Abelenda performed extensive dental work on J.S., which is documented in handwritten progress notes that ADI maintained in its records. Based on the opinion of the Department's expert witness, which was not disputed, the undersigned finds that the dental work which J.S. received met or exceeded the applicable minimum standards of performance. The bills for this dental work eventually totaled around $26,000. There is no evidence that this amount exceeded the fair market value of the services rendered.3 Initially, J.S. paid for his treatment using a regular credit card, rapidly incurring a debt of $4,685. Then, J.S. established a credit card account with CareCredit®, a credit service of GE Money Bank which provides financing for health related costs. Through CareCredit®, ADI was paid $21,429 for dental services rendered to J.S.4 A separate CareCredit® account was opened in the name of J.S.'s mother, D.S. The evidence fails to establish clearly the extent to which ADI submitted J.S.'s charges to D.S.'s CareCredit® account for payment, although there is evidence suggesting that this happened. More important, however, are the Department's allegations that D.S. never applied for a CareCredit® credit card, and that someone at ADI forged her signature on the application. The accusation that Dr. Fonte or his agent stole D.S.'s identity and fraudulently established a line of credit in her name is a very serious one, to be sure, but the undersigned is far from convinced of its veracity. The proof consists largely, if not exclusively, of D.S.'s testimony——an awfully thin evidential ground for this sort of wrongdoing, which should have left an incriminating paper trail. Further, the Department did not call a forensic document examiner to testify, for example, that a questioned document examination had established that the signature on the CareCredit® application is not D.S.'s, or to give an opinion that the application can be traced to another known source, e.g., Ms. Somohano. Thus, even if the undersigned were able to find based on clear and convincing evidence that D.S.'s signature had been forged on a credit application (which he is not), there is insufficient evidence to determine who was responsible for the purported fraud, and no basis for finding that Dr. Fonte was involved in——or even aware of——the alleged misdeed. Much of the Department's case against Dr. Fonte rests on a "Single Patient Ledger" (the "Ledger") that ADI maintained in the ordinary course of business, which showed the debits and credits entered upon J.S.'s account. Recorded on the Ledger are the dates on which dental services were rendered to J.S., a brief description of each service, the charge for each service, payments received, and J.S.'s current balance. The Ledger is clearly not a dental record or medical history record; it is, rather, a business record——and most likely was prepared primarily for internal purposes, as part of ADI's book of accounts. The Department alleges that the Ledger lists services that were not rendered to J.S. Plainly, the services shown on the Ledger are more extensive than those described in the handwritten progress notes, which are the dental records made by J.S.'s treating dentists. Based on the opinion of the Department's expert witness, which was credible in this regard, the undersigned finds that the Ledger identifies services that could not reasonably have been performed in J.S.'s mouth. The undersigned further finds, based primarily on the testimony of Dr. Ramos-Abelenda, that where the progress notes and the Ledger are in conflict, the progress notes are the accurate record of the dental services rendered to J.S. That the Ledger lists services not actually rendered to J.S. does not necessarily mean, however, that a fraud was committed, as the Department alleges. For one thing, the evidence does not clearly and convincingly establish that someone knowingly falsified the Leger with intent to deceive. The Ledger's inaccuracies, for instance, might have been the result of incompetence instead of malice. There is, moreover, insufficient evidence to identify clearly the person or persons who prepared the Ledger. The signs point to Ms. Somohano, who reportedly exercised tight control over the accounting systems at ADI. The evidence fails, however, to convince the undersigned that she was the only person who might have accessed the Ledger. More important, there is no persuasive (much less clear and convincing) evidence that Dr. Fonte had anything to do with the Ledger. Even assuming that Ms. Somohano or some other employee of ADI knowingly falsified the Ledger, there is not a sufficient evidential basis for finding that Dr. Fonte authorized, ratified, acquiesced to, or even knew about such wrongdoing, which affected only a single patient.5 Although the Department alleged that Dr. Fonte had "engaged in an organized scheme to systematically bill for dental services that were never rendered," there is no persuasive evidence that J.S. or any other patients were "defrauded." Besides J.S., only two patients——A.H. and O.R.—— gave testimony at the final hearing. There are no allegations of material fact in the Administrative Complaint which, if proved, would establish that Dr. Fonte defrauded either A.H. or O.R., the latter of whom was not even identified in the complaint.6 Pleading deficiencies aside, neither A.H. nor O.R. gave testimony that clearly and convincingly proved fraud, much less a fraudulent scheme similar to the one alleged (but not proved) to have been perpetrated against J.S. Each of them, it can fairly be said, is a disgruntled former patient of ADI. Broadly speaking, one or the other, or both, claim to have been overcharged for services rendered, provided unwanted services, given shoddy treatment, and administered controlled substances by someone other than a dentist. None of this was alleged in the Administrative Complaint. No dental or billing records concerning either of these patients were offered as evidence. No expert testimony was given concerning the treatment these patients received. Indeed, the only expert testimony offered at the final hearing concerning standards of performance came from the Department's expert, who testified that the treatment J.S. had received was "fine," and that he had no opinion regarding the care of any patient other than J.S. Thus, the evidence fails to establish that the operation of ADI resulted in dental treatment that fell below the minimum acceptable standards of performance for the community. Ultimate Facts The evidence is insufficient to prove that Dr. Fonte, as the owner of ADI, failed to maintain either the original or a duplicate of J.S.'s dental records; to the contrary, ADI maintained these records. It is a close question, however, whether the dental records made by J.S.'s dentist of record, Dr. Ramos-Abelenda, fully satisfied the minimum content requirements prescribed in Florida Administrative Code Rule 64B5-17.002(1). This question need not be decided, however, because (a) the owner dentist of a multidentist practice is not responsible for the content of dental records made by a dentist of record, and Dr. Fonte was not the dentist of record for J.S.; and, alternatively, (b) if an owner dentist is responsible for the content of other dentists' records, his responsibility in this regard extends only to "employee, associate or visiting dentists"——and the evidence fails to prove clearly and convincingly that Dr. Ramos-Abelenda was any of these. Consequently, Dr. Fonte is not guilty of committing an offense punishable under section 466.028(1)(m), Florida Statutes.7 The evidence fails to establish clearly and convincingly that anyone, much less Dr. Fonte, committed fraud, deceit, or misconduct in the practice of dentistry. Assuming such wrongdoing did occur in connection with the treatment and billing of J.S., however, it was clearly not done by Dr. Fonte himself, and there was no allegation, nor any persuasive evidence, that Dr. Fonte directed, approved, or should have known about an agent's misconduct. Accordingly, Dr. Fonte is not guilty of committing an offense punishable under section 466.028(1)(t). Finally, because there is no evidence that any patient of ADI received substandard dental treatment, Dr. Fonte is not guilty of causing a dental office to be operated in such a manner as to result in dental treatment that is below minimum acceptable standards of performance, which is a disciplinable offense under section 466.028(1)(ff).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Dr. Fonte not guilty of the charges set forth in the Administrative Complaint. DONE AND ENTERED this 23rd day of May, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 23rd day of May, 2011.
The Issue The issues in this case are whether Respondent, a dentist, failed to maintain adequate records regarding his treatment of patient R.S. and/or provided R.S. dental care that fell below minimum standards of performance, as Petitioner alleges. If Respondent committed any of these offenses, it will be necessary to determine an appropriate penalty.
Findings Of Fact Introduction At all times relevant to this case, Respondent Joseph Gaeta, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Gaeta. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Gaeta committed two such offenses. In Count I of the Complaint, the Department charged Dr. Gaeta with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named R.S., whom Dr. Gaeta saw six times over a five-month period from November 15, 2002, through April 11, 2006. In Count II, Dr. Gaeta was charged with incompetence or negligence——again vis-à-vis R.S.——allegedly by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, an offense under section 466.028(1)(x). The Material Historical Facts The events giving rise to this case began on November 15, 2005, when R.S., a retired septuagenarian who spent winters in Florida but considered Michigan——where he resided the rest of the year——to be his home, arrived at Dr. Gaeta's office with an acute problem, namely a loose tooth. The tooth——#24, an incisor located in the lower jaw, center-left——had recently been knocked loose when R.S. bit into a cashew. Dr. Gaeta's office had scheduled R.S. for an immediate visit when he had called for an appointment, advising that they would "work [him] in." Upon being seen, R.S. informed Dr. Gaeta that he would be leaving in a couple of days for a cruise, and that, consequently, he wanted the bare minimum amount of dental treatment. Dr. Gaeta performed a comprehensive examination of R.S.'s mouth and took X-rays, including periapical X-rays of front tooth #9 (upper jaw, center-left) and tooth #24 . The examination revealed multiple problems besides the loose tooth, including lingual and buccal decay, bone loss, periodontal disease, and a loose amalgam filling in tooth #29 (lower right bicuspid), which filling popped out when probed. These issues were recorded in R.S.'s dental record. Dr. Gaeta prepared a treatment plan in accordance with R.S.'s desire to have as little dental work done as possible. Dr. Gaeta proposed to extract tooth #24, which was noted to have class III mobility (meaning it was quite loose as a result of bone loss caused by periodontal disease), and, in place of the absent tooth, substitute an artificial tooth known as a pontic, which would be supported by a five-unit bridge using the adjacent teeth (##22-23 and ##25-26) as abutment teeth. He proposed to place a crown on tooth #9 due to lingual decay, and another on tooth #29, from which the amalgam filling had fallen out. This treatment plan was documented in R.S.'s chart. Dr. Gaeta informed R.S. of his diagnoses, explained the treatment options, and obtained verbal consent to proceed with the prescribed course of treatment (described above). Dr. Gaeta noted in R.S.'s dental record that he "gave pt [patient] tx [treatment] plan," but did not otherwise memorialize the substance of their discussion, nor did he obtain written consent to treatment from R.S. After agreeing on a course of treatment, R.S. paid in advance for the procedures he had orally authorized Dr. Gaeta to perform. Thereafter, an anesthetic drug known by its brand name, Septocaine®, was injected to numb R.S.'s mouth, and Dr. Gaeta pulled tooth #24. He also "prepped" tooth #9, tooth #24, and the abutment teeth (##22-23 and ##25-26) and seated temporary crowns on them. Finally, Dr. Gaeta installed a temporary bridge, which would remain in R.S.'s mouth until the arrival and placement of a custom-made fixture from a dental laboratory. All of this dental work (including the use of the anesthetic), which was performed on November 15, 2005, was noted in R.S.'s chart. The evidence is in conflict as to whether Dr. Gaeta gave R.S. "post-operative" instructions following the provision of any dental treatments, including but not limited to the procedures performed on November 15, 2005. Dr. Gaeta testified that he did provide such instructions, as necessary, but did not note having done so in R.S.'s chart (which is undisputed) because in his opinion the recordkeeping laws do not require dentists to document the occurrence or substance of such routine dentist-patient communications (a legal point with which the Department disagrees). R.S. testified (via deposition) that Dr. Gaeta never provided any instructions. Neither witness is more believable than the other on this issue. As a result, the undersigned is unable to determine without hesitancy that Dr. Gaeta failed to provide post-operative instructions, as the Department alleged. The evidence offered in support of this allegation, in sum, is legally insufficient because it is not clear and convincing. R.S. next saw Dr. Gaeta on January 3, 2006. This appointment was for the purpose of making final impressions for the crowns, but R.S. presented with a new problem, which was that tooth #9 was painful. A panoramic X-ray was taken and the fact noted in R.S.'s record. Based on that X-ray plus the previous pariapical X-ray of tooth #9, which radiographs showed significant decay and a large filling in the tooth, together with the patient's complaint that the tooth was sensitive (a symptom noted in the chart), Dr. Gaeta determined that tooth #9 needed root canal therapy and documented his conclusion in the chart. Dr. Gaeta performed a root canal on tooth #9. The Department has alleged that Dr. Gaeta failed to measure the root canal length using either an X-ray or, alternatively, an instrument called an apex locator. Dr. Gaeta testified credibly that he used an apex locator to determine that the canal length was 15 millimeters. This measurement is noted in R.S.'s record, and Dr. Gaeta's testimony regarding the use of an apex locator is credited. The Department further alleged that Dr. Gaeta failed to take a post-operative X-ray to determine whether the root canal had been completely filled. The record, however, includes such an X-ray. Finally, the Department alleged that Dr. Gaeta failed to use a rubber dam when performing the root canal procedure on tooth #9. But based on Dr. Gaeta's credible testimony, the undersigned finds that Dr. Gaeta did, in fact, use a rubber dam. Dr. Gaeta did not note in R.S.'s record the use of an apex locator or rubber dam; he denies having an obligation to document the use of common dental implements in a patient's chart. Dr. Gaeta gave R.S. Septocaine® to produce local anesthesia during the root canal procedure. He did not note this fact, or the strength and dosage of the anesthetic drug administered, in R.S.'s chart. Dr. Gaeta maintains that there is no legal requirement to record such information in the patient's dental record. R.S. saw Dr. Gaeta four more times, on February 7, March 27, March 31, and April 11, 2006. Over the course of these visits, excluding the final one in April, Dr. Gaeta placed permanent crowns on tooth #9 and tooth #29 and completed the dental work required to install the permanent bridge spanning tooth #22 and tooth #26. The details of these visits are largely irrelevant, except as set forth below. During the visit on April 11, 2006, Dr. Gaeta learned that R.S.'s tooth #29, which had been crowned earlier that year, had broken near the gum line. The Department did not allege that Dr. Gaeta's treatment of tooth #29 caused the tooth to fracture, but rather charged that Dr. Gaeta: (a) placed the crown without first determining whether the tooth was strong enough to support it; and (b) failed to determine, in April 2006, why the tooth had broken. The Department failed to prove these allegations by clear and convincing evidence, as explained below. Regarding the first of these allegations, it must be observed, initially, that Dr. Gaeta is charged with failing to determine whether tooth #29 could support a crown, not with making an improper determination as measured against the standard of care. Consequently, unless the evidence shows clearly and convincingly that Dr. Gaeta placed the crown despite having not made up his mind one way or the other about the strength of tooth #29, Dr. Gaeta must be found not guilty. Indeed, strange as it sounds, Dr. Gaeta would be not guilty even if the evidence showed that he determined tooth #29 was not strong enough to support a crown and proceeded to place one anyway, for the charge, again, is failing to make a determination, not making a mistaken determination. That said, it is undisputed that the only reasonable alternative to placing a crown on tooth #29 was extraction. Contrary to the Department's allegation, the evidence suggests that Dr. Gaeta did, in fact, determine that tooth #29 might be saved with a crown——a course of treatment that would spare R.S. the loss of yet another tooth. Without more than is present in the instant record, the mere fact that tooth #29 later broke is insufficient to prove, clearly and convincingly, that Dr. Gaeta's judgment fell below the standard of care, much less that he gave little or no thought to the question of whether the tooth could support a crown, as charged. To be sure, the Department's expert witness, Dr. Spiro, testified that, in his opinion, tooth #29 should have been pulled because, he "believe[s]," the "crown to root ratio" was too high. Putting aside that Dr. Gaeta was not actually charged with violating the standard of care by crowning a tooth that could not support a crown, Dr. Spiro did not give an opinion——based on generally prevailing peer performance——as to what an acceptable crown-to-root ratio would be, nor did he (or anyone else) testify about what the crown-to-root ratio of R.S.'s tooth #29 actually was, making it impossible for the undersigned to determine independently whether the latter ratio was too high relative to the standard of care. Thus, Dr. Spiro's belief that Dr. Gaeta violated the standard of care in placing a crown on tooth #29 was an unpersuasive "net opinion" that was, moreover, plainly personal in nature as opposed to being evidently grounded on an objective standard deduced from knowledge of the prevailing practices of dentists as a group. For these reasons, Dr. Spiro's testimony in this regard is not accepted as clear and convincing evidence in support of the allegation that Dr. Gaeta failed to determine whether tooth #29 could support a crown. As for the allegation that Dr. Gaeta failed to determine why tooth #29 broke, the evidence shows otherwise. It is noted in R.S.'s chart that during the visit on April 11, 2006, Dr. Gaeta explained to R.S. that he (R.S.) was "placing extreme force" on tooth #29, which was the patient's "only posterior tooth on [the] lower right" jaw. Even assuming for argument's sake, therefore, that the standard of care required Dr. Gaeta to make a determination as to why the tooth had broken, the evidence fails to prove that he did not do so. Further, the Department neither alleged nor proved that Dr. Gaeta erred, or otherwise violated the standard of care, in determining that tooth #29 had broken apart because, being R.S.'s only lower right rear tooth, it was exposed to extreme force when R.S. chewed his food. This particular allegation, in sum, was not proved by clear and convincing evidence. The Charges The charges against Dr. Gaeta are set forth in the Complaint under two counts. In Count I, the Department accused Dr. Gaeta of failing to keep adequate dental records, an offense disciplinable pursuant to section 466.028(1)(m). The Department alleged that, in the course of treating R.S., Dr. Gaeta violated the recordkeeping requirements in 13 separate instances, which are identified in paragraph 27, subparagraphs a) through m) of the Complaint. In Count II, the Department charged Dr. Gaeta with dental malpractice, which is punishable under section 466.028(1)(x). Fifteen separate instances of alleged negligence in the treatment of R.S. are set forth in paragraph 31, subparagraphs a) through o). The allegations in paragraphs 27 and 31 are largely parallel to one another, so that, when aligned side-by-side, they can be examined in logical pairs. Generally speaking, the Department's theory in relation to each allegation-pair can be expressed as follows: Where the circumstances required that the dental act "X" be done for R.S. to meet the minimum standards of performance as measured against generally prevailing peer performance, Dr. Gaeta failed to do X, thereby violating the standard of care. Dr. Gaeta also failed to record doing X in the patient's record, thereby violating the recordkeeping requirements. The parallel propositions comprising each allegation- pair are mutually exclusive. For example, if Dr. Gaeta did not, in fact, do X, then he might be found to have violated the standard of care, if the Department were successful in proving, additionally, that, under the circumstances, X was required to be done to meet the minimum standards of performance. If Dr. Gaeta did not do X, however, he obviously could not be disciplined for not recording in R.S.'s chart that he actually performed X.2 (If a dentist were to write in the patient's chart that he performed X when in fact he had not performed X, he would be making a false record; that would be a recordkeeping violation, but it is not the sort of misconduct with which the Department has charged Dr. Gaeta.) On the other hand, if Dr. Gaeta in fact did X and failed to note in R.S.'s chart having done X, then——if the law required Dr. Gaeta to document the performance of X——he would be guilty of a recordkeeping violation. But if Dr. Gaeta performed X, then (with one exception) he could not simultaneously be found guilty, here, of a standard-of-care violation, even if he performed X negligently. This is because nearly all of the standard-of-care allegations against Dr. Gaeta involve omissions, i.e., alleged failures to act, which means that the Department's burden was to prove that Dr. Gaeta did not do X when the circumstances required that X be performed. Such a violation of the standard of care (namely, not doing X when X should have been done) is quite different from performing X negligently; the latter would be a disciplinable offense, but (with one exception) it is not the type of wrongdoing with which the Department has charged Dr. Gaeta. The specific charges against Dr. Gaeta are reproduced in the table below, which places the corresponding allegation- pairs side-by-side in separate rows. The standard-of-care violations set forth in Count II are located in column A, while the recordkeeping violations charged in Count I are listed in column B. For ease of presentation, the undersigned has reordered the allegations to some extent. Further, in several instances a subparagraph has been divided into two parts. For example, paragraph 31 k) of the Complaint is shown in the table as paragraphs 31 k.1) and 31 k.2). An empty cell——e.g., column B, row 10 (hereafter, "B10")——denotes the absence of a corresponding allegation. Text which has been stricken through, as in B12, reflects allegations that the Department either withdrew at hearing or conceded in its Proposed Recommended Order. These allegations were not proved and will not be discussed further in this Recommended Order. The Department charges Dr. Gaeta as follows: A Count II, ¶ 31: Alleged Standard-of-Care Violations B Count I, ¶ 27: Alleged Recordkeeping Violations 1 a) [F]ail[ing] to provide a comprehensive diagnosis with adequate radiographs, study models or impressions, periodontal depth probe charting, tooth charting and a comprehensive treatment plan prior to initiating root canal treatment and crown/bridge placement . . . . a.1) [F]ailing to record an overall comprehensive written diagnosis, with periodontal depth probe and tooth charting, failing to document a written comprehensive treatment plan . . . . 2 k.1) [F]ail[ing] to provide adequate diagnosis, including symptoms, with an accompanying treatment plan for Patient R.S. prior to initiating root canal i.1) [F]ailing to record an adequate diagnosis, symptoms, and accompanying treatment plan for Patient R.S. prior to initiating root canal treatment of tooth number 9 . . . . treatment of tooth number 9 . . . . 3 k.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. i.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. 4 c) [F]ail]ing] to fully determine through diagnostic exam results whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five- unit bridge was needed[.] a.2) [F]ailing to document whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five-unit bridge was needed[.] 5 e) [F]ail[ing] to formulate and/or present treatment options with explanation of risks/benefits to, and fail[ing] to obtain informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] c) [F]ailing to document presenting treatment options with explanation of risks/benefits to, or obtaining informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] 6 f) [F]ail[ing] to fully determine through diagnostic exam results where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and fail[ing] to provide adequate diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . d) [F]ailing to notate where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and failing to provide a written diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . 7 g) [F]ail[ing] to provide post-op instructions or discussions for Patient R.S. following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] e) [F]ailing to record in the treatment notes that post-op instructions or discussions for Patient R.S. were provided appropriately following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] 8 l) [F]ailing to take a diagnostic working length radiograph, and/or use of an apex locator, and/or take a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] j) [F]ailing to record a diagnostic working length radiograph, and/or use of an apex locator, and/or tak[e] a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] 9 m) [F]ail[ing] to use a rubber dam was used during the January 3, 2006, root k) [F]ailing to record that a rubber dam was used in the January 3, 2006, root canal canal procedure, and/or indicate why it was not employed[.] procedure, and if it was not, why it was not employed[.] 10 b) [F]ail[ing] to either fully diagnose and/or properly treat the periodontal condition [that was] noted in Patient R.S.'s mouth during the initial exam November 15, 2005, before embarking upon complex restorative treatments including root canal and crown and bridge restorations[.] 11 n.1) [S]eat[ing] a crown on tooth number 29 in early 2006, which broke off with the tooth at the gum line[,] without first determining if tooth number 29 was strong enough to support a crown . . . . 12 n.2) [F]ail[ing] to diagnose and determine why the crown seated a few months earlier at tooth number 29 broke off with the tooth[.] m.1) [F]ailing to record in treatment notes for Patient R.S.'s April 6, 2006, visit, why the crown seated a few months earlier at tooth number 29 broke off with the tooth at the gum line . . . . 13 l) [F]ailing to record the types and amounts of anesthetic used during the January 3, 2006, root canal procedure[.] 14 i) [F]ail[ing] to take a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . g) [F]ailing to take and/or interpret in the treatment notes a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . 15 j) [F]ail[ing] to perform any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] h) [F]ailing to record the results of any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] 16 d) [F]ail[ing] to fully determine through diagnostic exam results why an extraction of tooth number 24 was required and why a five- unit bridge was being fabricated instead of a three-unit bridge or some b) [F]ailing to clarify why an extraction of tooth number 24 was required and why a five-unit bridge was being fabricated instead of a three-unit bridge or some other restorative option in the treatment notes [dated] November 15, 2005, which other restorative option [on] November 15, 2005, during which Respondent extracted tooth number 24 and then prepared for a five-unit bridge from tooth sites 22-26 to replace the extracted tooth[.] indicate that Respondent extracted tooth number 24 and then prepared for a five unit bridge from tooth sites 22-26 to replace the extracted tooth[.] 17 h) [F]ail[ing] to inform f) [F]ailing to note informing Patient R.S. that temporary Patient R.S. that temporary or or permanent parathesia is a permanent parathesia is a known known risk of extractions risk of extractions when the when the patient presented on patient presented on December 9, December 9, 2005, complaining 2005, complaining on numbness in on numbness in the lingual the lingual area proximate to area proximate to the the extraction/bridge prep site. extraction/bridge prep site. Respondent further failed to re- Respondent further failed to check the parathesia and note re-check the parathesia and progress at subsequent note progress at subsequent appointments, and/or fail[ed] to appointments, and/or failed advise Patient R.S. of possible to advise Patient R.S. of referral to an oral surgeon if possible referral to an oral surgeon if needed[.] needed[.] 18 o) [F]ail[ing] to provide m.2) [F]ailing to record adequate diagnostic results diagnostic results to justify a to justify a proposed plan to proposed plan to seat crowns at seat crowns at tooth numbers tooth numbers 27 and 28, along 27 and 28, along with placing with placing implants at tooth implants at tooth numbers 29 numbers 29 and 30. and 30, after the crown seated on tooth number 29 broke off with the tooth at the gum line. The Expert Testimony The Department presented the testimony of Victor Spiro, D.D.S., on issues relating to the standard of care. Dr. Spiro was shown to have formulated his opinions without the benefit of some potentially relevant information available to the Department, e.g., the deposition of R.S., which he had not read, and some of the X-rays Dr Gaeta had taken. In addition, he misunderstood certain facts, such as the length of the dentist-patient relationship between Dr. Gaeta and R.S., which was about six months, not many years as Dr. Spiro believed. These considerations were marginally damaging to Dr. Spiro's credibility, but not as devastating as Dr. Gaeta has argued. The real problems with Dr. Spiro's testimony go to the heart of what an expert opinion must contain to be credited as evidence of a standard-of-care violation. To be convincing, the opinion needs to establish clearly the existence of a standard of care in the profession and explain how such standard applies to the facts of the case.3 As the statute plainly specifies, the standard of care must be a minimum standard of performance, not the optimal standard or best practice.4 The standard, moreover, must be based on "generally prevailing peer performance", that is, be "recognized as necessary and customarily followed in the community."5 It is therefore not sufficient for the standard-of- care expert (who likely has a keen interest in seeing his views "recognized as being 'correct' and 'justifiable'") merely to declare his personal opinions or practices and invite the fact- finder, either implicitly or explicitly, to extrapolate——from one practitioner's ideas about how the profession should perform——a generally applicable, minimum standard for all practitioners.6 Instead, to be credited, an expert's opinion on the standard of care must result from a process of deductive reasoning, based demonstrably upon an informed understanding7 of what the dental community, as a whole, generally does in a given situation.8 Here, Dr. Spiro did not convincingly articulate minimum standards of performance against which the undersigned, as fact-finder, can independently measure Dr. Gaeta's conduct. In addition, Dr. Spiro did not establish that his criticisms of Dr. Gaeta were based on a comparison of Dr. Gaeta's conduct to that which generally prevails in the relevant peer group. Indeed, the undersigned is not persuaded, much less convinced, that Dr. Spiro is familiar with the generally prevailing peer practices, if any, relevant to the charges in this case. In sum, a thorough review of Dr. Spiro's testimony leaves the undersigned with the distinct impression that Dr. Gaeta failed to measure up to Dr. Spiro's standards of performance. This is not a factually sufficient basis for the imposition of discipline. Because the Department failed to meet its burden of proof with regard to establishing the applicable minimum standards of care, it is unnecessary to make findings based on the testimony of Dr. Fish, whose opinions Dr. Gaeta offered to rebut those of Dr. Spiro. Ultimate Factual Determinations The evidence presented with regard to A1, A2, and A3 does not clearly and convincingly demonstrate that Dr. Gaeta "failed" to provide a "comprehensive diagnosis" inasmuch as the existence of a standard of care defining and requiring such a diagnosis was not proved and, in any event, Dr. Gaeta did diagnose and treat multiple problems in R.S.'s mouth. The evidence does not prove that Dr. Gaeta improperly diagnosed any of the conditions he treated. The evidence fails to establish convincingly any minimum standards of performance requiring the diagnostic tests that Dr. Gaeta allegedly failed to perform. There is, on the other hand, evidence that Dr. Gaeta performed diagnostic work on R.S., including periodontal depth probing. The evidence fails to establish convincingly the existence of a standard of care requiring (or defining) the provision of a "comprehensive treatment plan." There is, however, evidence that Dr. Gaeta developed a treatment plan for R.S., consistent with the patient's desires, which was implemented. Dr. Gaeta is not guilty of the charges reproduced in A1, A2, and A3 of the table above. The evidence fails to prove clearly and convincingly that Dr. Gaeta failed to record or include in R.S.'s chart any of the diagnoses he made, the results of examinations performed, or the X-rays taken. A dispute exists between the parties regarding whether the Department possessed all of the records comprising R.S.'s chart. The evidence suggests, as Dr. Gaeta maintains, that some materials might be missing. Given the many years that elapsed between the time Dr. Gaeta treated R.S. and the commencement of this proceeding, during which period Dr. Gaeta sold the dental practice in which R.S. had been seen and, as a result, surrendered exclusive control over R.S.'s chart, it is easy to accept that a few documents or X-rays have gotten lost or been misplaced. Dr. Gaeta was not charged, however, with failing to preserve dental records he had made, but rather with failing to enter certain required information upon R.S.'s chart.9 Therefore, he is not subject to discipline in this case for losing materials originally contained in R.S.'s chart.10 In sum, Dr. Gaeta is not guilty of the charges set forth in B1, B2, and B3 in the table above. Contrary to the allegations in A4, the evidence shows that Dr. Gaeta did, in fact, make a determination based on diagnostic examination results, including X-rays, that a five- unit bridge spanning tooth #22 and tooth #26 was appropriate. The evidence thus fails to prove clearly and convincingly that Dr. Gaeta gave little or no thought to the propriety of a five- unit bridge. He is not guilty of violating the standard of care as alleged in A4, even if his determination were wrong (which the evidence does not clearly establish either). Dr. Gaeta documented in R.S.'s chart the plan to install a five-unit bridge as a means of replacing tooth #24 with a false tooth. In doing so Dr. Gaeta clearly manifested his determination that the abutment teeth were appropriate. Although he did not write a detailed explanation of why a five- unit bridge was needed, Dr. Gaeta did prepare a dental record that justifies this course of treatment; thus he is not guilty of the recordkeeping violation alleged in B4. With regard to A5, the evidence is insufficient to prove clearly and convincingly that Dr. Gaeta failed to present treatment options, explain risks and benefits, and obtain informed consent before treating R.S., for there is credible evidence suggesting that he did those things. For that reason alone, Dr. Gaeta is not guilty of this alleged standard-of-care violation. Further, the failure to obtain informed consent is a disciplinable offense under section 466.028(1)(o) and thus is not punishable under section 466.028(1)(x), which defines the separate offense (dental malpractice) that Dr. Gaeta has been accused of committing.11 For this additional and independent reason, Dr. Gaeta cannot be found guilty of the standard-of-care violation alleged in A5. As just mentioned, providing dental services without first obtaining the patient's informed consent is an offense punishable under section 466.028(1)(o). Dr. Gaeta was not charged pursuant to that statute. Moreover, presenting treatment options, explaining risks and benefits, and obtaining informed consent do not justify the course of treatment; doing them does not transform an improper diagnosis into a correct one, nor does failing to do them deprive dentally necessary treatment of justification. Dr. Gaeta is not guilty of the recordkeeping violation as charged in B5. Contrary to the allegations in A6, the evidence shows that Dr. Gaeta provided a diagnosis for tooth #29 which supported his determination that the tooth might be saved with a crown. The evidence is undisputed that replacing the filling was not a reasonable option; the only alternative treatment was extraction. The evidence fails to establish that Dr. Gaeta was required, in meeting minimum standards of performance, to determine why the amalgam filling came loose from tooth #29. The evidence fails to prove that Dr. Gaeta was unaware of the location of the filling in tooth #29; to the contrary, there is credible evidence that he dislodged the loose filling while probing it. Dr. Gaeta is not guilty of the standard-of-care- violation alleged in A6. The notes and materials in R.S.'s chart justify Dr. Gaeta's treatment of tooth #29. No more than that is legally required. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B6. There is credible evidence that Dr. Gaeta provided post-operative instructions to R.S. In light of such evidence, the allegation that he failed to do so, as charged in A7, is not established by clear and convincing proof. Dr. Gaeta is therefore not guilty of this alleged standard-of-care violation. While the failure to give post-operative instructions might in some circumstances be shown to fall below minimum standards of performance, the failure to record in the patient's chart the giving of such instructions does not make an appropriate course of treatment unjustified, any more than giving——and noting in the record the giving of——post-operative instructions would justify an inappropriate course of treatment. The purpose of section 466.028(1)(m) is not to ensure that every dentist-patient communication is noted, every tool or instrument used listed, all actions taken, however routine, described in detail; nor is it to obligate the dentist to defend in writing his every diagnosis, treatment decision, exercise of professional judgment, and therapeutic act against potential criticism, as a sort of preemptive rebuttal to a possible future malpractice claim. Rather, the statute is designed, more modestly, to ensure that patient records contain information showing that every course of treatment has a rational basis in dentally relevant facts. Dr. Gaeta was not legally required to document his discussions with R.S. regarding post-operative instructions, and therefore he is not guilty of the recordkeeping violation as alleged in B7. The evidence shows that Dr. Gaeta used an apex locator to measure the canal length of R.S.'s tooth #9. Consequently, the allegation in A8 that he failed to do so is not established by clear and convincing evidence. Dr. Gaeta is not guilty of this charge. R.S.'s record contains X-rays and reflects the fact that Dr. Gaeta determined the canal length of tooth #9. The minimum statutory requirements were satisfied with respect to these particulars. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B8. There is credible evidence, which the Department failed sufficiently to overcome, showing that Dr. Gaeta used a rubber dam when he performed a root canal on R.S. Thus, the evidence is not clear and convincing that he failed to use this common dental implement, as alleged in A9. Dr. Gaeta is not guilty of this alleged standard-of-care violation. Section 466.028(1)(m) does not demand that a patient's record reveal that the dentist used common dental tools in the customary fashion. If the statute were held to require that level of detail, the dentist would need to note, e.g., the routine use of scalers and currettes, periodontal probes, latex gloves, drills, etc.——an absurd result. Therefore, although Dr. Gaeta did not document the use of a rubber dam, he was not legally required to do so. Dr. Gaeta is not guilty of the recordkeeping charge found in 9B. The evidence shows that Dr. Gaeta diagnosed R.S.'s periodontal condition. The evidence does not clearly and convincingly establish any minimum standards of performance that Dr. Gaeta failed to meet, under the facts of this case, in addressing the periodontal condition. As a result, Dr. Gaeta is not guilty of the standard-of-care violation alleged in A10. The evidence shows that Dr. Gaeta made a determination regarding tooth #29's ability to support a crown. He is therefore not guilty of the standard-of-care violation charged in A11. The evidence shows that Dr. Gaeta made a determination concerning the cause of tooth #29's collapse. He is therefore not guilty of the standard-of-care violation charged in A12. It is undisputed that Dr. Gaeta did not record in R.S.'s chart the type and amount of anesthetic used during the root canal procedure. Dr. Gaeta contends that producing local anesthesia with Septocaine® is not "treatment" and therefore need not be noted in the dental record. This argument is rejected; the use of medicine to control pain and anxiety is surely a form of "treatment" as that term is commonly used and understood. Consequently, section 466.028(1)(m) requires that the patient record contain justification for the use of anesthetic agents, which means that the drugs and dosages administered must be documented.12 Dr. Gaeta is guilty of the recordkeeping violation charged in B13. He has, moreover, been found guilty of, and been disciplined for, recordkeeping violations on two previous occasions.13 Credible evidence, which the Department failed rebut with clear and convincing evidence, shows that Dr. Gaeta took X- rays of R.S.'s tooth #9 before initiating root canal therapy. The X-rays and other information in R.S.'s chart justified that course of treatment. The allegations in B14 are not supported by clear and convincing evidence, and thus Dr. Gaeta is not guilty of this alleged recordkeeping violation. The evidence does not demonstrate clearly and convincingly that Dr. Gaeta performed any thermal, pulp, or bite percussion tests before initiating root canal therapy. Therefore, he cannot be punished for failing to record in R.S.'s chart the results of such tests, as charged in B15. Dr. Gaeta is not guilty of this alleged recordkeeping violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Dr. Gaeta guilty of the recordkeeping violation alleged in paragraph 27 l) of the Complaint (failure to record types and amounts of anesthetic agents used); finding Dr. Gaeta not guilty of the remaining violations; and imposing the following penalties: suspension from practice for three months, followed by probation for 18 months with conditions reasonably related to the goal of improving Dr. Gaeta's recordkeeping skills; and a fine in the amount of $2,500. DONE AND ENTERED this 12th day of June, 2012, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 12th day of June, 2012.
Findings Of Fact William Cecil Graham is licensed by the Florida State Board of Dentistry and at all times herein involved was so licensed. Dr. Graham began treating Mrs. Dover Stokes in August 1977, and during the time Mrs. Stokes was a patient, Respondent performed oral surgery, extractions and prepared upper and lower partial plates. All this work was done in Respondent's office located at 16580 Northwest 10th Avenue, Miami. For this work Mrs. Stokes paid Respondent approximately $500. Mrs. Stokes suffers from glaucoma and is nearly blind. She began going to Respondent for treatment upon the recommendation of one of Mrs. Stokes' roomers who is a cousin of Respondent. This roomer generally provided Mrs. Stokes transportation to and from Respondent's office for treatment. After the impressions for the plates had been taken and close to the time these plates were delivered to Respondent, he suddenly had to leave the Northwest Miami office. He advised Mrs. Stokes, and presumably his other patients, of his imminent departure and that he would contact her when relocated. Since he had by then received the partial dentures, Mrs. Stokes asked him to bring them to her. Respondent had been to Mrs. Stokes home on previous occasions to collect payments and he agreed to bring the plates to her. When Respondent took these plates to Mrs. Stokes, he brought along a portable hand grinder to adjust the plates. During this visit, Respondent tried the plates in Mrs. Stokes' mouth and she found them tight. After making some adjustments, Respondent left with the plates for additional adjustment. No instrument was used in Mrs. Stokes' mouth while the plates were being fitted at her home. Respondent returned to Mrs. Stokes' home in early November 1977, inserted the plates and made additional adjustments. Mrs. Stokes was happy with the plates at this time. Upon leaving, Respondent advised Mrs. Stokes that he would contact her as soon as he was relocated in an office. After not hearing from Respondent and experiencing discomfort with her plates, Mrs. Stokes began searching for Respondent. Mrs. Stokes testified that she called Graham's home and his wife couldn't tell her how to contact Graham. Respondent testified that Mrs. Stokes called his home, spoke to his wife who relayed Mrs. Stokes message to him, and that he called Mrs. Stokes in early January 1978. At this time, Graham was still without an office. During this conversation, Mrs. Stokes expressed her dissatisfaction with Respondent. When he offered to send her to another dentist, Mrs. Stokes said she didn't want another black dentist. At this point Respondent realized further communication with Mrs. Stokes was impossible and he suggested that she select a dentist and he, Graham, would pay for the treatment she needed. Mrs. Stokes doesn't recall this conversation; however, Respondent's testimony in this regard is accepted as the true version of what happened. Mrs. Stokes next contacted the State Dental Board with her complaint about Respondent. The matter was referred to a Board member in Miami, Marshall A. Brothers, who telephoned the number of the office in Northwest Miami where Stokes had previously worked and was advised the whereabouts of Graham was unknown. Dr. Brothers did not speak directly to one of the dentists in the Northwest Miami office when the call was made to locate Graham. No correspondence was sent to the office previously used by Respondent. When Brothers was unable to contact Graham, he did nothing further to investigate the treatment that had been provided Mrs. Stokes by Respondent. In July 1978, Respondent opened an office on Northwest 54th Street in Miami. Mrs. Stokes telephoned the office and Respondent returned her call. He offered to examine her teeth, but Mrs. Stokes said she didn't want him to work on her. Respondent then renewed his offer to Mrs. Stokes to select a dentist of her choice, have him do the necessary work, and he, Graham, would pay for it. Mrs. Stokes then visited a dentist close to her home and advised him that Respondent would pay for the treatment. This dentist, Dr. Efrom, called Respondent who confirmed that he would pay for the treatment Mrs. Stokes required. Dr. Efrom found some rough places on the plates which he polished, corrected some sore spots in Mrs. Stokes' mouth, filled a cavity, and his technician cleaned Mrs. Stokes' teeth. Respondent paid for this treatment, although he had not contracted to fill a tooth for Mrs. Stokes or to do the cleaning.
The Issue This is a license discipline case in which the Respondent has been charged in a Corrected Administrative Complaint with a violation of Section 466.028(1)(m), Florida Statutes.
Findings Of Fact At all times material to this proceeding, the Respondent, Dr. Merle N. Jacobs, has been licensed to practice dentistry in the State of Florida. He currently holds license number DN 0005940. During the period from January 22, 1993, through March 27, 1995, T. C. was a patient of the Respondent. During that period of time, the Respondent performed various dental services for T. C., including the making and fitting of a partial denture. The Respondent prepared and kept dental records and medical history records of his care of patient T. C. The Respondent's records of such care are sufficient to comply with all relevant statutory requirements. The Respondent's records of such care do not include any notations specifically identified or captioned as a treatment plan. The records do, however, include marginal notes of the course of treatment the Respondent intended to follow in his care of patient T. C. Those marginal notes describe the treatment the Respondent planned to provide to patient T. C.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 29th day of May, 1998.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, a licensed dentist, on the basis of alleged violations of paragraphs (m) and (x) of Section 466.028(1), Florida Statutes. The alleged violations are set forth in a two-count Amended Administrative Complaint.
Findings Of Fact Stipulated facts2 The Respondent, Jack Saban, D.D.S., is now, and was at all material times, licensed as a dentist in the State of Florida, having been issued license number DN 8257. The Respondent's address of record is 150 North University Drive, Suite 100, Plantation, Florida. The Respondent is not board- certified in any specialty. The Respondent provided dental care to Patient A.S. from April 3, 2000, to August 6, 2001. On or about June 14, 2001, Patient A.S., then a 41-year-old female, presented to Respondent for emergency treatment of severe pain in her tooth number 31, a lower right molar. On or about June 14, 2001, the Respondent began root canal therapy on Patient A.S.'s tooth number 31. The Respondent was able to treat the distal canal of Patient A.S.'s tooth number 31, but he could not enter the mesial canals of that tooth and he referred Patient A.S. to a specialist. On or about June 22, 2001, Patient A.S. returned to the Respondent for treatment, and the Respondent again attempted to enter the mesial canals by drilling on Patient A.S.'s tooth number 31. Facts based on evidence at the final hearing On June 14, 2001, Patient A.S. presented to the Respondent's office experiencing severe pain in a lower right molar, tooth number 31. On that date the Respondent began root canal therapy on tooth number 31. The Respondent was able to treat the distal canal of tooth number 31, but he could not enter the two mesial canals. The Respondent's drilling produced bleeding, which he noted as "mesio-lingual canal pulpitis." The Respondent believed that the subject tooth was hypercalcified; that is, that it contained excess dental tissue that closed off the root canals. During the treatment session on June 14, 2001, the Respondent sealed tooth number 31 with a temporary filling. Because of the secondary and tertiary reparative dentin which resulted from previous treatment of Patient A.S.'s tooth number 31, the Respondent believed the required endodontics were beyond his skill.3 Accordingly, the Respondent referred Patient A.S. to a specialist in endodontics. On June 15, 2001, Patient A.S. presented at the office of the endodontist (Dr. Green) to whom the Respondent had referred her, but she did not see Dr. Green. Later that same day, Patient A.S. presented to another endodontist, Dr. Kaplan. On that occasion, Dr. Kaplan performed a clinical examination and made an x-ray of the subject tooth. On the basis of the examination and the x-ray, Dr. Kaplan concluded that the floor of the pulp chamber of Patient A.S.'s tooth number 31 was very thin and was perhaps even perforated. Dr. Kaplan discussed his conclusions with Patient A.S. and discussed treatment possibilities with her, but Dr. Kaplan did not perform any treatment. On June 18, 2001, the Respondent spoke with Dr. Kaplan. Dr. Kaplan told him that Patient A.S.'s tooth number 31 was near perforation or was perforated, and that the patient had chosen not to be treated by Dr. Kaplan. On June 22, 2001, Patient A.S. returned to the Respondent's office with her husband and requested that the Respondent treat her tooth number 31. With Patient A.S.'s husband present, the Respondent discussed the treatment options which had previously been explained to the patient by Dr. Kaplan, and also reviewed the risks associated with treatment of the subject tooth. Patient A.S. and her husband insisted that the Respondent complete the root canal therapy on tooth number 31. Against his better judgment, the Respondent yielded to their requests and embarked upon further endodontic treatment of the subject tooth. During the Respondent's attempt to access the hypercalcified mesial canals, a perforation occurred in the furcation area.4 The Respondent again urged Patient A.S. and her husband to seek endodontic treatment of her tooth number 31 from an endodontic specialist. Instead of seeking treatment by an endodontic specialist, Patient A.S. returned to the Respondent's office on June 29, 2001, and again implored him to continue treating the subject tooth. On June 29, 2001, the distal canal was sealed, but entry into the mesial canals was not possible. On July 13, 2001, Patient A.S. again presented at the Respondent's office, and again he attempted to treat her tooth number 31. On that date, one last unsuccessful effort was made to enter the mesial canals. Each time Patient A.S. requested that the Respondent treat her tooth number 31, the Respondent recommended that she seek treatment from an endodontic specialist. The Respondent did not at any time advise Patient A.S. that he had perforated her tooth number 31. The Respondent's records of his treatment of Patient A.S. do not contain any mention of a perforation of the subject tooth prior to the notations on August 6, 2001, regarding the Respondent's conversation with Dr. Baker in which Dr. Baker told the Respondent that Patient A.S.'s tooth number 31 was perforated. When a dentist perforates a patient's tooth, the dentist should promptly inform the patient of the perforation, should promptly note in the treatment records that a perforation occurred, and should promptly refer the patient to a specialist to initiate reparative measures.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Adopting all of the Findings of Fact in this Recommended Order, Adopting all of the Conclusions of Law in this Recommended Order, Dismissing the portion of Count One of the Administrative Complaint that is based on allegations regarding the lack of a treatment plan. Concluding that the Respondent is guilty of a violation of Section 466.028(1)(m), Florida Statutes, by reason of his failure to include in his treatment records that he had perforated the patient's tooth. Concluding that the Respondent is guilty of the violations of Section 466.028(1)(x), Florida Statutes, charged in Count Two of the Amended Administrative Complaint. Imposing the following penalties:7 Administrative fines in the total amount of $7,500.00; Probation for a period of one year on terms to be determined by the Board of Dentistry; and A requirement that the Respondent attend a course in dental record-keeping. DONE AND ENTERED this 31st day of January, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2004.
