Findings Of Fact At all times material hereto, Respondent was a licensed dentist in the State of Florida, holding license No. DN0005282. On or about March 31, 1981, Ellen Canton went to Respondent's dental office to have a set of dentures made. Impressions were taken on this initial visit, and the dentures were delivered to Mrs. Canton by Respondent on the following day. On the day the dentures were delivered, some adjustments were made to the dentures by Respondent prior to Mrs. Canton's departure from his office. The evidence in this cause is unrefuted that at the time Mrs. Canton left Respondent's office, the dentures were in centric occlusion, and seated properly to the extent that they did not dislodge. Shortly after leaving Respondent's office, however, Mrs. Canton began to experience problems with the dentures. Among these problems were sore spots on her gums due to unsatisfactory fit, and the dentures becoming easily dislodged. However, because of a television news story which Mrs. Canton saw concerning dissatisfaction of some of Respondent's patients with his work, Mrs. Canton never returned to Respondent's office for adjustments to be made in her dentures. In fact, Mrs. Canton never advised Respondent of the problems she had experienced after leaving his office. However, on June 4, 1982, Mrs. Canton wrote a letter to Respondent at his dental office requesting that he release her dental records to her. On June 7, 1982, one of Respondent's employees responded to Mrs. Canton's request and informed her that her dental records could not be released. At the time of these communications, Respondent's office policy was not to release the dental records themself to patients, at least in Part because of a lack of copying facilities. In addition, Respondent was unaware that patients were entitled to receive copies of dental records upon demand. The record in this cause is, however, clear that Mrs. Canton was subsequently furnished all the information in Respondent's control, which apparently was limited to information on a three-by-five index card containing the patient's name, address, telephone number, and the fact that the patient was fitted with a full set for dentures at a cost of $150.00. Mrs. Canton's records were limited to this skeletal information due to the fact that no procedure other than taking an impression and fitting her with her dentures was performed. In the Administrative Complaint, Respondent is charged with failing to meet acceptable standards of practice in his treatment of Mrs. Canton as follows: The upper dentures have no retention. The buccal flanges are over-extended and any action of the musculature in the vestibule dislodges them. There is no post-dam. Teeth on the new dentures are long. The lower denture does not fit well. It is long in the lingual flange area and does not seat at all. When the upper and lower dentures are seated, the occulsion is end-to-end; the bicuspids are not in occlusion. The only contact is in the anterior and molar regions. Upon opening, both dentures dislodged. The patient cannot tolerate both dentures at the same time; the increased vertical dimension causes breathing problems. At the time Mrs. Canton visited Respondent, she was wearing a set of dentures that she had worn for approximately 17 years. Because of a problem with "gagging" the post-dam had been removed from this old set of dentures. In view of this history of gagging, Respondent also removed the post-dam from the upper dentures with which he fitted Mrs. Canton. Removal of the post- dam reduces retention, as a result of which, Respondent determined it necessary to over-extend the buccal flanges to attempt to increase retention. Respondent took this step with a view toward making any adjustment that might be necessary after the patient had worn the dentures for a period of time. However, because Mrs. Canton did not return to Respondent's office for these adjustments, Respondent was unable to correct any problems associated with the flanges. There is no credible evidence of record that would in any way establish that removing the post- dam and extending the buccal flanges in order to seek increased retention constitutes a departure from accepted standards of dental practice. Some of the teeth on the dentures Respondent furnished Mrs. Canton appeared to be approximately one and one-half millimeters longer than "normal." The evidence is clear, however, that this situation is easily remedied by simple adjustments, and the only problem associated with the teeth being too long is essentially cosmetic. There is no evidence of record in this cause to establish that the existence of these facts constitutes a departure from minimum acceptable standards of dental practice. The lower denture fabricated by Respondent for Mrs. Canton is long in the lingual flange area. Respondent purposely constructed the denture in this fashion to attempt to increase retention. As with the upper denture, Respondent's intention was to make any adjustment necessary should the longer flanges prove uncomfortable to the patient, but was never afforded that opportunity as a result of the patient's election not to return for adjustment. As conceded by Petitioner's expert, Mrs. Canton had a very compromised lower ridge which would have made it difficult to have ever gotten an extremely stable lower denture. There is no evidence of record to establish that Respondent's attempt to increase retention by over- extending the lingual flange and attempting to make any subsequent adjustments necessary, constitutes a departure from accepted standards of dental practice. Evidence in this cause is unrefuted that the dentures were in proper occlusion at the time Mrs. Canton left Respondent's office. Petitioner's expert, who examined Mrs. Canton and the dentures some 18 months thereafter, conceded that it was "very possible" that occlusion was proper at the time Respondent fitted Mrs. Canton with her dentures. Accordingly, there is no evidence to establish that Respondent departed from minimal acceptable standards of dental practice insofar as the occlusion of the dentures is concerned at the time he fitted Mrs. Canton with them. The record in this cause clearly establishes that Mrs. Canton's dentures dislodge easily upon any action of the musculature in her jaws. This apparently is caused by the over- extended flanges on the upper and lower dentures, by which Respondent sought to obtain greater retention as a result of the lack of a post-dam in the upper denture and the compromise condition of Mrs. Canton's lower ridge. As noted above, this problem is subject to easy adjustment by reducing the over extension of the flanges. However, because of Mrs. Canton's failure or refusal to return to Respondent's office, he was unable to perform these adjustments. Again, there is no credible evidence of record to establish that Respondent departed from accepted standards in this regard. At the time of her visit to Respondent, Mrs. Canton had decreased vertical occlusion with the old denture which she had worn for 17 years. As a result, it could reasonably have been expected that Mrs. Canton might eventually have either joint problems or distortion in her face. In an attempt to address the problem of decreased vertical occlusion, Respondent attempted to increase her vertical dimension by approximately 5 millimeters. Respondent advised Mrs. Canton at the time he fitted her with the dentures that she might experience some discomfort as a result of this large increase in her vertical dimension, and that she should return for adjustment if this occurred. With the new denture in place, there was difference of three millimeters between Mrs. Canton's resting tonic vertical dimension and the dimension of occlusion. This difference is within acceptable limits of practice. Further, there is no evidence of record that Mrs. Canton suffered any breathing problems as a result of increased vertical dimension in the new dentures.
The Issue The issues are whether Respondent is guilty of failing to practice dentistry in accordance with the applicable standard of performance and, if so, what penalty should be imposed.
Findings Of Fact Respondent has been licensed to practice dentistry in Florida since 1984. He practices prosthodontics in a general dentistry practice. Respondent has been disciplined three times. Pursuant to a stipulation, in which Respondent neither admitted nor denied the underlying allegations, Respondent agreed to a reprimand, two years' probation, 30 hours of continuing education in endodontics, 30 hours of continuing education in crown and bridge work, 15 hours of continuing education in risk management, and $6000 in costs, as reflected by a Final Order entered November 2, 1995. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance by failing to take post-operative radiographs following a root canal and had failed to keep adequate dental records. Pursuant to a stipulation, in which Respondent neither admitted nor denied the underlying allegations, Respondent agreed to a reprimand, one year's probation, 15 hours of continuing education in removable prosthodontics, and $1500 in costs, as reflected by a Final Order entered April 1, 1997. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance in preparing and fitting dentures. Pursuant to a stipulation, in which Respondent admitted the underlying allegations, Respondent agreed to an administrative fine of $3000, 14 hours of continuing education in crown and bridge work, and $926.53 in costs, as reflected by a Final Order entered July 27, 2000. The underlying Administrative Complaint alleged that Respondent had failed to meet the minimum standard of performance in fitting a bridge and crown. C. J. underwent a course of treatment with Respondent during the summer of 2002 after taking her son to Respondent for dental work for a couple of years. As a patient, C. J. first visited Respondent on June 23, 1999, complaining of bleeding gums and nocturnal teeth grinding. After examination, Respondent advised C. J. that her dental health was poor and recommended a course of periodontal treatment that would cost nearly $5000. C. J. declined to commence treatment at that time due to a lack of funds. C. J. next saw Respondent on July 9, 2001. At this time, she was complaining of pain in her jaw joint, which clicked and popped on movement. Respondent discussed with C. J. her ongoing dental needs, and C. J. said that she understood that she needed to undergo treatment. However, she could still not afford to start extensive dental work, so she did not do so. By the summer of 2002, C. J. realized that her dental health required treatment at this time, so she borrowed some money from a family member in order to undergo the dental work. A teacher, C. J. wanted to complete the treatment during the summer while she was not teaching, although the record does not indicate whether this desire drove the treatment schedule. Initially, C. J. visited Respondent in the summer of 2002 for treatment due to pain in tooth number 31. Respondent referred her to an oral surgeon, who extracted the tooth, but an ensuing secondary infection necessitated treatment by C. J.'s primary care physician. This process consumed the first half of the summer. The treatment that is the subject of this case took place over a five-week span in July and August 2002. On July 10, Respondent prepared two treatment plans for C. J. One plan included crowns for teeth numbers 3, 14, 18, 19, and 30. (The other plan called for porcelain laminate veneers, which are not at issue in this case.) One of the three claims stated in the Administrative Complaint states that Respondent left defective margins after completing crown restorations of three teeth. A margin is where the crown meets the tooth structure. Margins must be continuous to promote dental health. The discontinuities in open or defective margins may create a space or ledge where debris can accumulate and cause decay or a roughened surface that may continually irritate surrounding gum tissue. According to Petitioner's expert witness, Dr. Robert W. Shippee, an open margin exists when the gap exceeds 50-150 microns. According to Dr. Ronald M. Fisher, an open margin exists when the gap exceeds 120 microns, "maybe a little more." When he examined C. J., Dr. Fisher used an explorer whose width permitted him to detect open margins of 100 microns or more. Radiography does not reveal lingual and buccal margins, but does reveal medial and distal margins. Distal margins, which are located on the tooth surface aligned toward the back, are also revealed clinically by floss or explorers. On July 10, Respondent's hygienist scaled and root planed the teeth in the lower left quadrant. She performed a debridement of the lower left quadrant with irrigation using Peridex®. Respondent did not see C. J. during this visit. On July 17, Respondent took impressions of teeth numbers 14, 18, and 19 in order to prepare crowns for these teeth. Tooth number 14 is in the upper left quadrant, and teeth numbers 18 and 19 are in the lower left quadrant. Mixing the adhesive Durelon™ with Vaseline petroleum jelly, so as to reduce the adhesive force of this dental cement, Respondent fitted C. J. with temporary plastic crowns, noting that teeth numbers 14 and 19 had such deep decay that they might require root canals. Following this work, the hygienist scaled and root planed the teeth in the upper left quadrant and irrigated with Peridex®. On July 23, the hygienist scaled and root planed the teeth in the lower right quadrant and irrigated with Peridex®. Following this work, Respondent examined C. J., who complained of pain at teeth numbers 17 and 18, so Respondent removed these temporary crowns, adjusted at least one of them, and recemented them with Durelon™ and Vaseline petroleum jelly. His notes raise the question whether tooth number 18, as well, might require a root canal. During the same visit, Respondent took impressions of teeth numbers 3 and 30 in order to prepare crowns for these teeth. These teeth are in the upper right and lower right quadrants, respectively. On July 24, Respondent's hygienist scaled and root planed the teeth in the upper right quadrant and irrigated with Peridex®. C. J. reported that she was still feeling pain in the area of tooth number 17. (The dental records misreport this as tooth number 32, but C. J. did not have tooth number 32.) Respondent did not see C. J. during this visit. On August 15, Respondent fitted C. J. with porcelain- fused-to-metal crowns on teeth numbers 3, 14, 18, 19, and 30. Respondent cemented these with Durelon™, but without the Vaseline petroleum jelly. Respondent checked the crowns with an explorer and was concerned about the margins. He directed his staff to perform X-rays of the subject teeth, but, after trying five times, C. J.'s gag reflex prevented staff from taking the exposures. The dental records state that Respondent needs to take this X-ray and check the margins next visit. It is unclear why, but there were no more visits. C. J. visited the office on August 26 to speak with the receptionist about certain charges, but she was not examined or treated by Respondent. C. J. claims that no one in the office gave her another appointment, but her recollection of events, now five years past, was understandably imperfect. Clearly, there had been some problems with charges, and the school year had resumed. On these facts, it is impossible to hold Respondent responsible for the absence of a follow-up visit. Dr. Shippee and Dr. Fisher agree on three things. First, the dental work in this case was not of high quality. Second, the margin left on tooth number 14 does not meet the applicable standard of performance imposed upon dentists, if Respondent had completed treatment of the tooth. Third, it is not always below the standard of performance for a dentist to cement a permanent crown and later find a defective margin, as long as the dentist corrects his work. It is relatively easy to resolve the claim in the Administrative Complaint involving the sequence of periodontal treatment and the taking of impressions. At the hearing, Dr. Shippee admitted that it is not necessarily a departure from the applicable standard of performance for a dentist to take impressions and perform periodontal treatments, such as scaling and planing, on the same visit. He testified that this was acceptable practice if the dentist could still record the shape of the tooth accurately. The Administrative Complaint does not clearly identify the teeth to which this claim applies. The sequence of periodontal treatment and the taking of impressions is as follows: July 10--treatment of lower left quadrant; July 17-- impressions of teeth numbers 14 (upper left quadrant), 18 (lower left quadrant), and 19 (lower left quadrant) followed by treatment of upper left quadrant; July 23--treatment of lower right quadrant followed by impressions of teeth numbers 3 (upper right quadrant) and 30 (lower right quadrant); and July 24-treatment of upper right quadrant. Thus, the only impressions taken after periodontal treatment are the impressions of teeth numbers 18 and 19, which followed their periodontal work by a week, and tooth number 30, which took place a few minutes after its periodontal work. Dr. Shippee misread the dental records when, in his report dated May 20, 2006 (Petitioner Exhibit 6), he complained about the performance of scaling and root planing on tooth number 14 on the same day that Respondent took an impression of this tooth. He assumed that Respondent's hygienist had worked on the tooth before Respondent did, but this is not the order shown in the dental records. (The order in which information is recorded in the records reveals the order in which Respondent or the hygienist performed services, when both persons worked on C. J. on the same day.) Dr. Shippee's concern about trying to take a good impression of a tooth amidst the bleeding associated with scaling and planing is thus misplaced, at least as to tooth number 14. The Administrative Complaint implicitly precludes consideration of teeth numbers 18 and 19 because the allegations refer to taking the impressions on the same day as performing the periodontal treatment. Any attempt to prove a departure from the applicable standard of performance as to teeth numbers 18 and 19, for which the impressions were taken one week after treatment, would also have to overcome Dr. Shippee's statement, in his May 20 report, that "at least" one week must separate the scaling and planing from the taking of impressions. Absent any other evidence indicating that the condition of C. J.'s gums prevented Respondent from taking an accurate impression of teeth numbers 18 and 19, Petitioner has failed to prove that the sequence of procedures as to these teeth failed to meet the applicable standard of performance. As to tooth number 30, Petitioner omitted this tooth from its allegations of defective margins, so, inferentially, the margins on tooth 30 were not defective. Likewise, immediately after discussing the work on tooth number 30, Dr. Shippee's May 20 report finds that the margins on teeth numbers 3, 14, 18, and 19 are defective. Again, inferentially, the margins on tooth 30 were not defective. Most significantly, at hearing, Dr. Shippee testified that Respondent affixed five crowns and four had defective margins. Coupled with the information in his report, Dr. Shippee's testimony implies that tooth number 30 had acceptable margins. As noted above, Dr. Shippee conceded that it was permissible to take an impression following periodontal work, as long as the impression is accurate. It appears that is exactly what transpired as to tooth number 30. Petitioner has failed to prove that the sequence of procedures as to this tooth failed to meet the applicable standard of performance. In his May 20 report, Dr. Shippee misstates that, on July 23, the hygienist scaled and planed the teeth in the upper right quadrant. As noted above and as reflected clearly in the dental records, this work was done on July 24, not July 23. This misreading of the dental records may have contributed to the focus of Dr. Shippee-and the Administrative Complaint--on tooth number 3, whose margins Dr. Shippee found defective, even though the procedures were performed in the proper order, rather than tooth number 30, whose margins Dr. Shippee found acceptable, even though the procedures were performed in reverse order and only a few minutes apart. It is also relatively easy to resolve the claim that Respondent failed to check marginal integrity clinically and radiographically prior to cementing the crowns. As was the case with the preceding claim, however, this claim itself requires analysis to understand its meaning. First, Dr. Shippee testified at hearing that a dentist meets the applicable standard of performance by checking the margins clinically or radiographically--not both, as alleged in the Administrative Complaint. Second, the Administrative Complaint does not qualify its reference to the cementing of the crowns, which takes place with both the temporary and permanent crowns, but the record reveals that this allegation clearly does not apply to the cementing of temporary crowns. So, this claim raises the questions of whether Respondent clinically or radiographically checked the margins prior to permanently cementing the crowns. Respondent checked the margins clinically, with his explorer, after cementing the porcelain-fused-to-metal crowns into place. He tried to check the margins radiographically, but the patient's admittedly "very nervous" condition, which produced the gagging reflex, prevented staff from taking x-rays at that time. However, the clinical check revealed to Respondent that he needed to recheck these margins, clinically and radiographically, at a subsequent visit, at which C. J. might better tolerate the necessary X-rays. Respondent could reasonably have expected, at a subsequent visit, C. J. would not gag over the X-rays because she had undergone these x-rays previously in his office. The question in this claim is thus reduced to whether Respondent deviated from the applicable standard of performance by cementing the porcelain-fused-to-metal crowns prior to checking the margins by either means. At the hearing, Dr. Shippee conceded on cross-examination that it was not a departure from the applicable standard of performance for a dentist not to check margins radiographically prior to permanently cementing the crowns into place. He also conceded that it would not be a departure from the applicable standard of performance not to check the margins either way, if the dentist were not using permanent cement. Respondent seized upon this opportunity to claim that his use of Durelon™ revealed an intent to temporarily cement the five crowns in place on August 15. This claim strains credulity. Respondent weakened the Durelon™ with Vaseline petroleum jelly when applying temporary crowns, and there does not seem to be a category of semi-permanent crowns that would accommodate Respondent's argument that Durelon™ without Vaseline petroleum jelly was not a permanent adhesion. Also, whatever else can be said of Respondent's dentistry, no one can argue with the durability of his cementing. The "temporary" adhesive that he applied on August 15, 2002, remained in place, four years later, when Dr. Shippee examined C. J. The evidence thus establishes that Respondent intended to permanently cement the crowns that he affixed on August 15, subject to one condition. However, Respondent was prepared to remove the "permanently" cemented crowns if the margins proved defective. There was no other reason to note in his dental records of August 15 the need to recheck the margins. Likewise, Dr. Shippee testified that, at some point over his long career, he may have "permanently" set a crown with a defective margin, and it would not have been a departure from the standard of performance to have discovered the open margin as much as two years later--as long as he then removed the crown and replaced it with a properly fitting one. Coupled with Dr. Shippee's earlier concession that a dentist could permissibly permanently cement a crown into place prior to checking the margins radiographically, it is difficult to find a departure from the applicable standard of performance by the sequence followed by Respondent in this case in cementing the permanent crowns, checking the margins, and noting the need to recheck the margins at a later visit. On re-direct, Dr. Shippee reversed himself, again, and testified that he would dry seat porcelain-fused-to-metal crowns and, if he found defective margins, he would not permanently cement them until he had replaced the defective crowns. However, this testimony was less convincing than his above- described admissions on cross-examination, especially after consideration of the testimony of Dr. Fisher. Dr. Fisher testified that a dentist who "permanently" cements porcelain- fused-to-metal crowns, knowing that the margins are defective, does not deviate from the applicable standard of performance, as long as he intends to use the "permanent" crowns as temporaries and replace them with properly fitting crowns at a subsequent visit. Petitioner has failed to prove that Respondent's permanent cementing of the crowns into place, prior to checking them clinically or radiographically, failed to meet the applicable standard of performance, at least when he checked them with an explorer immediately after cementing them and documented the need to recheck the margins--and, if necessary, replace the crowns--at a subsequent office visit. The third claim is the most significant because, as Dr. Shippee testified, "the margins are the real problem." On this claim, the Administrative Complaint is clear: the distal margins on teeth numbers 3, 14, and 18 are allegedly defective. Dr. Fisher testified that the distal margin on tooth number 14 is defective, and the crown needs to be replaced. However, he found no defective margin on tooth number 18. He evidently found a less serious defective margin on tooth number Dr. Fisher testified that he found no evidence of decay on any of these teeth. Although C. J. had evidence of gum inflammation, Dr. Fisher attributed that to the absence of a cleaning over the preceding year. In contrast, Dr. Shippee unequivocally found defective distal margins on all three teeth-both clinically and radiographically. Dr. Shippee's testimony is credited on this point. The record offers little support for any finding as to why the margins are defective. Respondent sends his impressions to a lab for the preparation of the crowns--a practice that Dr. Shippee finds acceptable, even though he makes his own crowns. The allegations imply a causal link between Respondent's practice of taking impressions shortly after periodontal work with the resulting defective margins. However, the evidentiary record offers little support for this theory. Due to his misreading of the dental records, as noted above, Dr. Shippee erroneously concluded that Respondent took the impressions of teeth numbers 3 and 14 shortly after his hygienist scaled and planed these teeth. But the sequence of these procedures was actually the reverse of what Dr. Shippee had found. On the other hand, Respondent took the impression of tooth number 18 one week after the periodontal work to that area, but the likelihood of an adverse result caused by this sequence is diminished by two facts. First, Dr. Shippee opined that at least one week was necessary for the proper healing to take place. Second, when Respondent actually took an impression of one tooth--tooth number 30--only a few minutes after the periodontal work, the margins for this tooth were fine: this was the only tooth with acceptable margins, and it was the only tooth for which the impressions followed immediately upon the completion of the periodontal work. This theory of causation thus finds little support in the present record. Notwithstanding whether the defective margins on these three teeth resulted from the poor workmanship of Respondent or the lab, another issue emerges with respect to whether, on August 15, Respondent was finished with his crown work on these three teeth. As noted with respect to the second claim discussed immediately above, Respondent was not finished, and the applicable standard of performance does not prohibit him from continuing to service these teeth, at least for a reasonable period past August 15, until he obtained a satisfactory result. In theory, the work could have been so deficient, as of August 15, as to constitute a departure from the applicable standard of performance, despite Respondent's intent to continue to service these teeth. However, Dr. Shippee's testimony does not support this theory. In particular, the record is devoid of evidence establishing how far a dentist's work must stray, in terms of defective distal margins, before the applicable standard of performance deprives him of a chance to fix his work. Petitioner has failed to prove that, under the circumstances, the crown restoration work, as of August 15, on teeth numbers 3, 14, and 18 failed to meet the applicable standard of performance due to the presence of defective margins on the distal surfaces of these teeth.
Recommendation RECOMMENDED that the Board of Dentistry enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2007. COPIES FURNISHED: Susan Foster, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, BIN C08 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Dominick J. Graziano, Esquire Erin M. O'Toole, Esquire Bush, Graziano & Rice, P. A. Post Office Box 3423 Tampa, Florida 33601-3423 H. Wayne Mitchell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, 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 21st day of December, 1984.
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice dentistry based upon the alleged violations of Section 466.028(1)(y), Florida Statutes, as set forth in the Amended Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Robert J. Fish, was licensed by the Department of Professional Regulation (the "Department"), Board of Dentistry (the "Board",) as a dentist in the State of Florida having been issued license number DN0005694. At all times pertinent to this proceeding, Respondent was engaged in the practice of dentistry in Tamarac, Florida. At the time of the hearing in this matter, the Patient whose treatment is the subject of the allegations in the Amended Administrative Complaint was 83 years old. At the hearing, D.E. admitted that, because of certain health problems, she had experienced some loss of memory. The Patient first presented to Respondent's office for oral examination on June 27, 1983. For some time prior to this visit, she had been treated by a periodontist in Broward County. The nature and extent of that prior treatment is not clear. During her visit to Respondent's office on June 27, 1983, the Patient completed a dental and medical history form. According to those forms, the Patient had a history of cancer and high blood pressure. Respondent also confirmed that the Patient had not received any hormone replacement therapy for post-menopausal osteoporosis. Based upon her medical history, Respondent recognized that the Patient's immune system was possibly compromised and she was a likely candidate to suffer loss of the bone supporting her teeth. During her first visit, Respondent performed a complete periodontal examination, charting all of the Patient's visible defects. The Patient was diagnosed as having "chronic gingivitis [and] furcation involvement." Respondent noted bone loss of between three to five millimeters around teeth 23, 24, 25, 26 and 27. On July 19, 1983, the Patient returned to Respondent's office at which time his hygienist performed a prophylaxis. The Patient was advised that she should anticipate the need to address other aspects of her periodontal condition. The Patient visited Respondent's office four times in 1984, six times in 1985, and two times in 1986 for routine dental procedures. On August 12, 1986, Respondent informed the Patient of certain undesirable changes in the health of the bones of her jaws and the condition of her teeth. Respondent advised the Patient that she was losing the support for some of her teeth and bone was disappearing around some of the roots. The Patient was told that she should seek treatment for these matters or she would risk more serious problems down the line. The Patient indicated that she would let Respondent know when she desired any additional treatment. On January 29, 1987, Respondent performed a full-mouth series of x- rays to evaluate the Patient's worsening periodontal status. The Patient returned in August of 1987, at which time she had to have the two fractured roots of tooth number 30 extracted. It is not clear why the Patient did not return until August of 1987. On September 3, 1987, the Patient returned for the removal of the sutures and the area seemed to be healing well. The Patient's next visit to the Respondent's office was on October 1, 1987. During that visit, Respondent examined and charted the Patient's mouth and developed a treatment plan with multiple stages and options. Respondent's treatment plan included the making of a bridge for teeth 27, 28 and 29 and the fabrication of a partial denture, either an acrylic wrought clasp type or a chrome frame marked with acrylic saddles. The plan was discussed with the Patient who selected a course of treatment and signed the plan. The Patient was advised by Respondent in October, 1987 of problems on her lower left side that would need attention in the future. Respondent proposed to use a "temporary provisional" partial in order to avoid the cost of making it twice. From October through December, 1987, the Patient returned to Respondent's office approximately twelve times. During this period, Respondent constructed a three-tooth (#'s 27, 28 and 29) porcelain-fused-to-metal splint and a "transitional" acrylic-based partial lower denture. From October 1987 through August 1988, the Patient experienced some discomfort with the acrylic-based partial lower denture. She returned to Respondent's office approximately seventeen times for adjustments, repairs and/or realigns. These visits were necessitated, at least in part, by the ongoing physiological changes in the Patient's lower jaw during the first year after the extraction of her lower right molar. In August of 1988, the Patient experienced some discomfort on her lower left side. On August 11, 1988, she consulted with the Respondent who confirmed the loss of bone in that area. On August 16, 1988, Respondent performed another complete periodontal examination. Respondent found that the Patient had pockets of approximately 6 to 7 millimeters around teeth 23, 24, 25 and 26. In other words, the Patient's periodontal health was not good and there were great stresses on her teeth which were significantly out of bone. With the aid of x-rays, Respondent generated a diagnosis and treatment plan which was accepted and signed by the Patient. Respondent's plan was to further explore the condition of the Patient's lower left side, extract non-salvageable teeth and modify her recently made partial lower denture to accommodate the teeth that had to be removed on the lower left side. On October 16, 1988, Respondent began this treatment plan and determined that the roots of two of the teeth were so badly infected and diseased that they were non-salvageable. The existing bridge was severed and the four roots from teeth 18 and 19 were removed. A new bridge was made and the teeth that had been removed were added to the removable partial. At this point, the Patient's right side had still not completely healed. During the remainder of 1988, Respondent continued to make adjustments to the Patient's partial lower denture. Many of the adjustments were necessitated by bone recontouring and healing. In December of 1988, Respondent advised the Patient that she needed to have her partial lower denture relined and repaired. The Patient had the denture adjusted on January 24, 1989, but did not have it relined. On February 14, 1989, the Patient telephoned Respondent's office and complained of discomfort. There is conflicting evidence as to whether or not Respondent was in the office on that date. It is not necessary to resolve that issue for purposes of disposing of this case. In any event, the Patient appeared at Respondent's office without an appointment and demanded to see him. After a dispute with the office staff, the Patient left and subsequently refused to return for any further treatment. On May 8, 1989, the Patient went to see another dentist, Dr. Harvey Garrison. On the medical history form that she filled out for that visit, she denied experiencing any pain or discomfort. Dr. Garrison examined the Patient on May 8, 1989 and noted her need for fillings, endontics, prophylaxis and crowns. He did not make any notation that she was experiencing pain or discomfort. The Patient returned to Dr. Garrison's office on June 5 and 8, 1989. Again, there is no notation that the Patient was experiencing any pain or discomfort. Dr. Garrison's records include a notation dated June 27, 1989 which states "27, 28, 29 buccal margins are open plus the patient was made a lower temporary partial. I'm recommending that she contact Broward County Dental Society. The treatment was completed in 1988 by Dr. Fish." In his deposition offered into evidence during this proceeding, Dr. Garrison could not provide any more specific information regarding the open margins he allegedly found and he was unable to provide any further explanation of the Patient's condition on June 26. The Patient was treated by Dr. Garrison on July 26, 1989. The notes from that treatment indicate that the Patient had complained about her "L Part" on June 27, 1989. Dr. Garrison's notes of his examination of the patient on July 26, 1989 indicate that he found open margins around the end of the crowns of teeth #s 27, 28 and 29. There is no chart notation and Dr. Garrison does not recall the location or extent of the margins. His notes do not reflect any clinical significance or treatment necessary. On July 26, 1989, Dr. Garrison began to treat the Patient's upper arch. On November 21, 1989, he provisionally inserted ten crowns and a partial upper removable denture that he had fabricated. Dr. Garrison's notes do not reflect any further complaint of pain or treatment regarding the lower denture until November 20, 1989 when the Patient's lower partial denture was sent to a dental laboratory for repair. Dr. Garrison does not know the extent of the repair. The Patient testified that Dr. Garrison did not do any work on her lower denture. Dr. Dixon, Petitioner's expert, assumed that no work was done on the Patient's lower denture after she left Respondent's care. However, Dr. Garrison's records clearly reflect that the lower partial was sent to the laboratory for repair on November 20, 1989 and Dr. Garrison adjusted the lower partial on November 20 and November 22, 1989. There is no evidence as to the extent of the repairs or adjustments conducted on the lower partial in November of 1989. On November 6, 1989, Dr. Garrison sent a letter to DPR addressed "To Whom It May Concern." The letter states that [DE] came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort. I examined the lower bridge work and found the buccal margins of teeth #27,28,29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. . . . In his testimony for this case, Dr. Garrison could give no further explanation of his findings. When asked to explain why the lower partial was "inadequately fabricated," Dr. Garrison simply said that his office did not like using acrylic for lower partials and he only used acrylic for temporary devices. He admitted that he did not know what the general practice was in other offices. He also admitted that he had not reviewed Respondent's records and did not know what Respondent's treatment plan was for the Patient. From December 19, 1989 through June 5, 1990, Dr. Garrison performed various adjustments and modifications to the fixed bridge he inserted in the Patient's upper arch. It is clear that from November 1989 through June 1990, Dr. Garrison performed many dental procedures which may have significantly altered the Patient's dentition. The extent and impact of the alteration is not clear. On June 16, 1990, approximately a year and a half after Respondent last saw the Patient, D. E. was examined by Dr. Dixon, an expert retained by DPR to evaluate Respondent's treatment of the Patient. Dr. Dixon's examination included the taking of an x-ray, a photograph, a bite registration and a bite impression or study model. Apparently, all of those items were misplaced, and none of them were ever made available to Respondent to review. None of them were offered into evidence at the hearing. As noted in the Preliminary Statement and in the Conclusions of Law, Respondent's Motion In Limine and objection to Dr. Dixon's testimony based upon the failure to produce these items were denied. Nevertheless, the absence of these items is a factor that has been considered in determining the weight to be afforded Dr. Dixon's testimony. Dr. Dixon testified that the three-tooth bridge (splint) for teeth #27, 28 and 29 did not meet community standards because it had open margins and improper occlusion. Dr. Dixon also testified regarding other deficiencies that he says he found in Respondent's treatment of the Patient, including clasps that were too tight and an improper adaptation (fit) of the denture to the lingual portion of the Patient's teeth. As discussed in the Conclusions of Law below, the Amended Administrative Complaint does not specifically charge Respondent with all of these purported deficiencies. In any event, after considering all of the evidence, Dr. Dixon's conclusions and opinions regarding Respondent's treatment of the Patient are not convincing. Dr. Dixon admitted that he had not read Dr. Garrison's records. At the time of his examination of the Patient and at the hearing, Dr. Dixon did not know that the Patient's lower partial had been adjusted and repaired by Dr. Garrison. He also did not know that Dr. Garrison had treated the Patient's entire upper arch. Dr. Dixon admitted that it was important to know exactly what Dr. Garrison had done for the Patient and/or how it affected the dentistry performed by Dr. Fish. However, the evidence indicates that Dr. Dixon did not have the benefit of this information. Thus, he was unable to comment on the impact that Dr. Garrison's treatment had on the Patient's occlusion. A review of the x-rays taken by Respondent and those taken subsequently by Dr. Garrison indicates there was some movement of the posts and necessarily the crowns away from the teeth (roots) with the passage of time. In addition, because of the extensive surgery conducted on the Patient's mouth and because of her age and medical condition, a lengthy recovery process with tissue shrinkage and bone recontouring could reasonably be expected. In view of all the factors, the evidence was insufficient to show that any negligence or incompetence by Respondent was responsible for the inadequacies that Dr. Dixon observed in the Patient's lower partial denture and/or splint. It should also be noted that Dr. Garrison was unable to testify with any specificity regarding the deficiencies in Respondent's work. At the hearing and in his proposed recommended order, Respondent referred to the lower partial denture that he made for the Patient as "transitional" or "temporary." It is not entirely clear what Respondent meant by these references. The Patient clearly did not understand that Respondent intended to fabricate a "permanent" partial denture in the future. Petitioner has suggested that Respondent's use of acrylic in fabricating the lower partial denture for the Patient was improper. Even assuming that this allegation fits within the scope of the Amended Administrative Complaint filed in this matter, the evidence presented was insufficient to establish that Respondent's use of this material given the facts and circumstances of this case fell below the minimum standards expected of a dentist in this community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a Final Order finding the Respondent, Robert J. Fish, not guilty of the allegations set forth in the Amended Administrative Complaint and dismissing the charges. DONE and ENTERED this 24th day of January 1994, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-687 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 11-13. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 15-17. Subordinate to Findings of Fact 21-23. Subordinate to Findings of Fact 21-25. Subordinate to Findings of Fact 30. Adopted in substance in Findings of Fact 32. Subordinate to Findings of Fact 33. Subordinate to Findings of Fact 35. Respondent's Proposed Findings of Fact. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 4. Rejected as unnecessary. The first sentence is adopted in substance in Findings of Fact 4. The second sentence is rejected as unnecessary. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 10-14. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 15. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 17. Adopted in substance in Findings of Fact 17. Subordinate to Findings of Fact 18. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 18. 25.-33. Subordinate to Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 23. Subordinate to Findings of Fact 24 and 25. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 28 and 30. Adopted in substance in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative. This subject is addressed in Findings of Fact 30. Rejected as argumentative and subordinate to Findings of Fact 30. Rejected as constituting legal argument rather than a finding of fact. This proposal is an incorrect statement of the ruling made at the hearing. Adopted in substance in Findings of Fact 28. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 31. Adopted in substance in Findings of Fact 32. Adopted in substance in Findings of Fact 32. The first sentence is adopted in substance in Findings of Fact 32. The remainder is rejected as constituting argument. The subject matter is addressed in the Preliminary Statement and the Conclusions of Law. Adopted in substance in Findings of Fact 33. Subordinate to Findings of Fact 34. 57.-58. Subordinate to Findings of Fact 32 and 35. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as unnecessary. Subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 34. Rejected as constituting argument. This subject matter is addressed in Findings of Fact 33. Rejected as unnecessary and subordinate to Findings of Fact 28. Adopted in substance in Findings of Fact 28 and 34. Subordinate to Findings of Fact 33 and 35. Rejected as constituting argument. The subject matter is addressed in paragraph the Conclusions of Law. Adopted in substance in Findings of Fact 33 Adopted in substance in Findings of Fact 33 and in the Conclusions of Law. Subordinate to Findings of Fact 33. Rejected as unnecessary. Rejected as vague and ambiguous. Rejected as constituting argument. Rejected as unnecessary. COPIES FURNISHED: Ashley Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Max R. Price, Esquire Solms & Price 6701 Sunset Drive, Suite #104 South Miami, Florida 33143 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent is guilty of incompetence or negligence and failing to keep adequate dental records and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed dentist, holding license number DN 0010415. He has been licensed continuously in Florida since 1985, and he practices in Naples. On February 13, 1992, M. D. presented to Respondent at Kings Lake Dental Services. M. D. complained of a loose three-unit fixed bridge, which had replaced tooth number 4, using teeth numbers 3 and 5 as abutments. Respondent performed a focused emergency examination. He found a decaying, loose bridge that was falling apart and coming out of M. D.'s mouth; tooth number 5 was decayed and had fractured off; and tooth number three was decayed around the abutment crown and post. Respondent took an x-ray and found root canals on teeth numbers 3 and 5. Based on these findings, Respondent recommended to M. D. that he have post and cores on teeth numbers 3 and 5 and a new bridge. Respondent noted in his dental records these findings during this initial visit and the limited nature of the examination. At the time of this initial examination, Respondent determined that teeth numbers 3 and 5 could serve as abutment teeth to support the bridge for tooth number 4. His determination was correct as tooth number 5, but the record suggests that his determination was questionable as to tooth number 3. However, Petitioner failed to prove by clear and convincing evidence that the suitability determination for tooth number 3 was incompetent or negligent. On M. D.'s next visit, which took place on February 26, 1992, Respondent prepared teeth numbers 3 and 5 for the new bridge by removing the existing post and core in tooth number 3 and preparing tooth number 5 for a post and core. Respondent installed a temporary bridge during this visit. A post and core is an appliance that is cemented into a tooth that has undergone previous endodontic treatment. A post goes into the residual root, and the core replaces the natural crown of the tooth. The post and core can then be prepared for a crown or, as in this case, a fixed bridge. The final result resembles the placement of a peg into a tooth on which additional material is built up. On M. D.'s third visit, which took place on March 4, 1992, Respondent re-cemented the temporary bridge, which had come loose. On M. D.'s fourth and final visit, which took place on March 13, 1992, Respondent installed the permanent fixed bridge. At no time did any blood collect in M. D.'s post preparations. At no time during the post-and-core work, including during the unanaestheticized installation procedure, did M. D. experience pain. As material to this case, a perforation would result from excessive drilling in the process of preparing the tooth for the post, so as to create an extra opening into the bone. The absence of blood during the post preparation is generally inconsistent with a post perforation. The absence of pain during the ensuing installation procedure also militates against a finding that Respondent inadvertently perforated the tooth. The crucial findings on the issue whether Respondent perforated the tooth are thus the absence of blood during the drilling attendant to the post-and-core procedure and the absence of pain during the ensuing installation procedure. These findings are based in part on the self-serving testimony of Respondent, but also are supported by other evidence. At the time of the incident, Respondent had practiced dentistry in Florida for over six years. It is likely that he would have known that an untreated perforation would eventually cause the restorative work to fail. Respondent had treated numerous patients, presumably including seasonal Naples residents, without this issue previously arising, even though excessive-drilling perforations themselves are not that uncommon. When M. D. later contacted Respondent and complained of the dental work, he made no mention of the pain that typically would have accompanied the installation of a core over a perforated tooth. M. D. was a winter resident of Naples. Fourteen months after his final visit to Respondent, a dentist in Massachusetts discovered a perforation of the root on tooth number 5 and an acute periodontal abscess on tooth number 3. An acute periodontal abscess occurs at the end of the root and is secondary to infection involving the dental pulp in the soft tissue part of the tooth. Periodontal abscesses occur around the supporting structures of the teeth. Petitioner has failed to prove by clear and convincing evidence that Respondent perforated M. D.'s tooth. Although excessive drilling may cause a perforation, decay, a root fracture, and rampant periodontal disease may also cause perforations. Given the considerable period of time between Respondent's treatment of M. D. and the discovery of the perforation, the likelihood of decay, a root fracture, and rampant periodontal disease increases as the cause of the perforation. Given the other factors, such as lack of blood during the post procedure or pain during the core procedure, Petitioner has failed to prove by clear and convincing evidence that Respondent's treatment of M. D. was incompetent or negligent. The record provides even less basis to find by clear and convincing evidence that Respondent's work caused the periodontal abscess 14 months later. Respondent's dental records are adequate in many respects. The records adequately describe the cast post and core technique; Petitioner has failed to prove by clear and convincing evidence that the failure to distinguish between the two types of cast post and core is material in this case. Petitioner has also failed to prove by clear and convincing evidence that the records fail to provide an adequate basis for another dentist to infer the removal of the old post and core. The x-ray is of extremely poor quality, but it is merely a duplicate. The original is not in the record, and the record provides insufficient basis for inferring the quality of the original. Petitioner has failed to prove by clear and convincing evidence that the actual x-ray was of such poor quality as to preclude reliance upon it. Respondent's records indicate that tooth number 5 is decayed and fractured off, that tooth number 3 is decayed, and that the x-rays reveal root canals on both these teeth. While adequately documenting these findings, the records do not document Respondent's evaluation of the suitability of teeth numbers 3 and 5 to serve as abutment teeth. Nor do the records document the "moderate" periodontal disease that Respondent testified that he also observed. Respondent's restorative work eventually failed. The most likely cause of failure was the perforation of tooth number 5. However, fourteen months later, tooth number 3 was no longer capable of serving as an abutment tooth. By inference, its condition at the time of Respondent's decision to use it as an abutment tooth at least warranted documentation in the dental records. Similarly, the acute periodontal abscess also evidences the need to document Respondent's finding of moderate periodontal disease. These omissions from Respondent's dental records are material due to the questionable suitability of tooth number 3 as an abutment tooth and the subsequent development of periodontal disease. On these facts, Respondent's records fail to document a thorough evaluation of M. D.'s oral structures involved in the restorative work and his overall dental condition. In these respects, Petitioner proved by clear and convincing evidence that Respondent failed to keep adequate dental records in that they fail to justify the course of Respondent's treatment of M. D. On March 30, 1992, S. T. presented to the Fort Myers Dental Service for an abscessed tooth at tooth number 3. One of the dentists at the office, Dr. Rubin, saw S. T. He recommended full mouth x-rays and study models and prescribed pain medication and an antibiotic. The dental records contain no indication of periodontal disease at this time. The Fort Myers Dental Service maintained a system of patient referral in which Respondent or Dr. Johnson saw patients requiring endodontic treatment and other dentists saw patients requiring periodontic treatment. Following her visit, Dr. Rubin referred S. T. to Respondent for endodontic work on April 2, 1992. The x-rays had revealed lesions on teeth numbers 3 and 4, so the referral was for an evaluation for root canals. On April 3, Respondent examined S. T.'s mouth and noted buccal swelling around teeth numbers 3 and 4 and broken- down, decayed teeth at teeth numbers 3, 4, and 5. However, his examination did not reveal any periodontal disease. Respondent recommended root canals for teeth numbers 3 and 4 followed by casts, posts, and cores for teeth 3 and 4 and a porcelain fuse metal crown for tooth number 5. Respondent commenced this dental treatment on April 10, 1992. During this visit, Respondent began a root canal on tooth number 4. On April 17, Respondent completed the root canal on tooth number 4. On April 24, Respondent began a root canal on tooth number 3. On May 22, Respondent completed the root canal on tooth number 4. On September 24, 1992, Respondent prepared teeth numbers 3, 4, and 5 for crowns. On October 8, Respondent installed crowns on these teeth and posts and cores on teeth numbers 3 and 4. Fourteen months later, on December 7, 1993, S. T. was examined by Dr. William McKenzie, a periodontist who practiced 33 years, primarily in Fort Myers, until his retirement prior to the hearing in this case. A general dentist in Fort Myers had referred S. T. to him. At the time of his examination, Dr. McKenzie found poorly fitting crowns on teeth numbers 3, 4, and 5 and open contacts between teeth numbers 2 and 3, 3 and 4, 4 and 5, and 5 and 6. In general, S. T.'s dental health was good, except for the area in which Respondent had worked. In this area, S. T.'s gums bled profusely upon probing by Dr. McKenzie. In part, Petitioner tried to prove that Respondent improperly proceeded with endodontic treatment despite unresolved periodontic problems. However, the record fails to sustain this allegation. To the contrary, as Dr. McKenzie testified, the poor-fitting and gapped crowns caused the periodontal condition that Dr. McKenzie encountered. The open contacts, which allowed food to pack between the teeth, led to infection, which caused the inflammatory process in the gums and bone deterioration that Dr. McKenzie also discovered in this area of S. T.'s mouth. As to the fit of the crowns, Dr. McKenzie described it as "horrible" and work of which a "freshman dental student" was capable. Petitioner proved by clear and convincing evidence that Respondent failed to meet the minimum standards of performance and treatment when measured against generally prevailing peer performance in the treatment of S. T.
Recommendation It is RECOMMENDED that the Board of Dentistry enter a final order suspending Respondent's license for six months and, following the expiration of the suspension, placing the license on probation for a period of 12 months. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999. COPIES FURNISHED: Thomas E. Wright Senior Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 E. Raymond Shope, II 1404 Goodlette Road, North Naples, Florida 34102 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Bill Buckhalt, Executive Director Board of Dentistry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner's licensure examination challenge should be sustained.
Findings Of Fact Petitioner is a dentist who seeks licensure to practice dentistry in the State of Florida and who was a candidate for the dental examination administered by Respondent in December 1990. Each candidate for licensure is given three opportunities to present a patient who presents certain minimal periodontal problems upon whom the candidate can demonstrate his or her proficiency in periodontics. Rule 21G- 2.013, Florida Administrative Code, provides, in pertinent part, as follows: (2)(b) ... It is the applicant's responsibil- ity to provide a patient who is at least 18 years of age and whose medical history permits dental treatment. In order that the examination may be conducted in an efficient and orderly manner, an applicant will be allowed no more than three attempts to qualify a patient during the specified check-in period for each procedure requiring a patient. The candidate is required to select five teeth that meet certain criteria from the candidate's first patient. Rule 21G-2.013, Florida Administrative Code, provides those criteria, in pertinent part, as follows: (4) The grading of the clinical portion of the dental examination shall be based on the following criteria: * * * (b) Periodontal exercise on a patient with a minimum of 5 teeth, none of which shall have a full crown restoration, all of which shall have pockets at least 4 mm. in depth with obvious sub-gingival calculus detectable by visual or tactile means and radiographic evidence of osseous destruction; at least one tooth shall be a multi-rooted molar which shall be in proximal contact with at least one other tooth; none of the 5 teeth shall be primary teeth. All calculus appearing on radiographs must be detectable by visual or tactile means. The patient is thereafter examined by two examiners who are dentists to determine whether each selected tooth meets the criteria. If the examiners determine that one or more of the teeth selected do not meet the criteria, the candidate has a second opportunity and may select additional teeth from patient one, or the candidate may present patient two and select five teeth from the new patient. If the examiners determine that one or more of the teeth selected on his second opportunity do not meet the criteria, the candidate has a third opportunity and may select additional teeth from patient two, or the candidate may present patient three and select five teeth from that third patient. If the examiners determine that one or more of the teeth selected on his third opportunity do not meet the criteria, the candidate receives, pursuant to Rule 21G-2.013(4)(b), Florida Administrative Code, a score of zero on the periodontics portion of the examination. For her first opportunity, Petitioner presented Patient #1 and selected teeth 13, 14, 19, 20, and 21. Examiners 187 and 054 examined the five teeth selected by Petitioner and rejected teeth 13, 20, and 21. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Patient #1 had been used by Petitioner during the June 1990 administration of the examination. The five teeth selected from Patient #1 in the June 1990 examination had been accepted, but the teeth that had been accepted did not include teeth 13, 20, or 21. For her second opportunity, Petitioner presented Patient #2 and selected teeth 19, 20, 21, 22, and 23. Examiners 176 and 080 examined these five teeth and rejected teeth 19, 20, and 23. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. For her third opportunity, Petitioner again used Patient #2, but substituted teeth 3, 29, and 30 for the teeth that had been rejected in opportunity two, so that the selected teeth were 3, 21, 22, 29, and 30. Examiners 162 and 195 rejected teeth 3, 29, and 30. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Petitioner thereafter received a zero on the periodontal portion of the examination, which greatly contributed to her failing the examination. Petitioner received a final grade of 2.51 on the examination. She needed a score of 3.00 to pass the examination. Each of the examiners who are used by Respondent in the administration of the dental examinations is a dentist who has been licensed in the State of Florida for a minimum of five years. Prior to the examination, the examiners undergo a day long standardization session during which the criteria to be applied and the proper method of application are taught. These dentists who serve as examiners examine the patient and the selected teeth from that patient independently of one another. Neither examiner knows the results of the examination performed by the other examiner and neither examiner knows the candidate who brought that patient to the examination. The purpose of the preliminary examination is to determine whether the teeth selected by the candidate meet the criteria established by Rule 21G- 2.013(4)(b), Florida Administrative Code. The form used by the examiners does not require that the reason for the rejection of a tooth to be stated. If both examiners reject a particular tooth, that tooth cannot be used by the candidate. Petitioner failed to present evidence upon which it can be concluded that the teeth she presented from the two patients she brought to the examination met the criteria for examination found in Rule 21G-2.013(4)(b), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenge to the dental examination. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of August, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3086 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in the first numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are adopted in material part by the Recommended Order. The proposed findings of fact in the second numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are rejected as being unnecessary to the conclusions reached. The greater weight of the evidence was that the statistics cited by this paragraph were not designed to measure the professional qualifications of an examiner or how he or she grades a particular criteria. Therefore, these statistics do not support Petitioner's contention that the teeth she selected were arbitrarily or capriciously rejected. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact in paragraphs 1-5 are adopted in material part by the Recommended. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vytas J. Urba, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Beatriz Jacobo 175 Fort Wilkinson Road Milledgeville, Georgia 31061
