The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent, Robert John Roberts, for violating Section 466.028(1)(m) and (y), Fla. Stat. (1991), by failing to meet minimum standards of performance and by failing to keep adequate dental records, as alleged in the Administrative Complaint, DPR Case No. 91-11243.
Findings Of Fact The Respondent, Robert John Roberts, D.D.S., is a Florida licensed dentist, having been issued Board of Dentistry license number DN 0012197. A patient who will be identified by her initials, M. N., saw the Respondent on February 22, 1991, about having crowns replaced. The Respondent's dental records on the patient's medical history and his record of the clinical oral examination of the patient were inadequate. In addition, the records contained no diagnosis and treatment plan. In total, the records do not adequately explain what the Respondent planned to do, and why. There apparently was some confusion about the number of lower crowns to be replaced. The patient apparently first requested, and understood that she was having, six lower crowns replaced, three on either side (teeth 22, 23, 24, 25, 26 and 27.) But two of the six, one on either side (22 and 27), were splinted to the crown on the tooth next to it (21 and 28, respectively). At some point, the Respondent apparently decided not to attempt to split the splints, but rather decided to replace the crowns on all eight teeth. The Respondent's medical records do not adequately explain when this decision was made, or why, or whether it was explained to the patient. The patient remains confused as to why more than six lower crowns were replaced. The patient wanted the crowns replaced by June 1, 1991, so that the work would be covered by her existing insurance. The Respondent required $1,700 to begin the work. Work began on May 6, 1991. Temporary crowns were cemented on May 23, 1991. Although the patient's dental work was not unusually difficult or complicated, unusual problems developed in making and fitting the permanent crowns. Several efforts had to be made to attempt to complete the work. On occasion, the permanent crowns did not fit. On other occasions, they broke. The patient's temporary crowns had to be removed and replaced several times. Between May 6 and August 14, 1991, the patient had to be seen nine times. On August 14, 1991, a day on which the patient was scheduled to return to the Respondent's office to finally have the permanent crowns fitted and cemented, the Respondent's office called to cancel the appointment because the Respondent was not in the office. At the end of her patience, M. N. asked for her money back. The Respondent's office refused, suggesting other alternatives that were not acceptable to the patient. Instead, in September, 1991, the patient made an appointment with another dentist who had to start over at a cost of $4,000, in addition to the $1,700 the patient already had paid to the Respondent. Normally, permanent crowns are made, fitted and cemented within six weeks after the patient gets temporary crowns. Nothing in the Respondent's records explains or justifies the delay in completing the work for this patient. The evidence is that the Respondent's performance in the treatment given to the patient, M. N., failed to meet the minimum standards when measured against generally prevailing peer performance. Contrary to the Department's allegations, the X rays taken by the Respondent before treating the patient, M. N., were not of poor quality. The Department's allegation was based on the opinion of their expert, who was given poor copies of the X rays the Respondent took and who was given to understand that the copies he was sent were indicative of the quality of the X rays the Respondent took.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order: (1) finding the Respondent, Robert John Roberts, guilty of violating Section 466.028(1)(m) and (y), Fla. Stat. (1991); (2) reprimanding the Respondent; (3) fining the Respondent $3,000; and (4) placing the Respondent on probation for two years, conditioned upon the successful completion of thirty hours of continuing education in fixed prosthetics and fifteen hours in risk management, and upon payment of the $3,000 fine. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert John Roberts, D.D.S. 172 Wickford Street East Safety Harbor, Florida 34695 William Buckhalt Executive Director Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
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 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 day of May, 1998.
The Issue The issue in this case is whether Respondent is guilty of violating the minimum standards of competence, in violation of Section 466.028(1)(y), Florida Statutes; unlawfully delegating certain responsibilities to an unlicensed person, in violation of Section 466.028(1)(aa), Florida Statutes; and failing to maintain adequate records, in violation of Section 466.028(1)(n), Florida Statutes.
Findings Of Fact At all material times, Respondent has been licensed as a dentist. On October 7, 1987, B. K. visited Respondent's office to have her teeth cleaned. She had recently moved to Orlando and had not previously seen a dentist there. She selected Respondent based on the proximity of his office to her home. At her initial visit, B. K., who is 62 years old, presented a natural lower arch, except for the absence of molars that apparently caused her no trouble, and full dentures on the upper arch. In the course of examining B. K., Respondent asked her how old her dentures were. When B. K. replied 12 years, he told her that they should be replaced. She expressed reservations and told Respondent that she had had no problems ordiscomfort with her dentures. Respondent answered that the dentures should at least be relined. B. K. agreed to this suggestion. Respondent's office notes incorrectly recite that, as of the original visit, the dentures did not fit correctly. There is no evidence of a poor fit. Further, there is no reason to replace or reline dentures once they reach a certain age. Changes in fit or comfort may dictate the replacement or relining of dentures; age alone is irrelevant. The remainder of the initial visit was devoted to cleaning B. K.'s teeth and taking an impression of her arch for the purpose of relining the dentures. Respondent took the impression. At the conclusion of the visit, Respondent retained B. K.'s dentures and advised her to schedule a visit for about a week later, at which time she could pick up her relined dentures. When B. K. returned for her second appointment, Respondent installed the relined dentures. B. K. immediately complained that they were much too big. She did not believe that they were even the same dentures that she had left the week before. Respondent assured her that they were her dentures, and they would take additional impressions. An employee of Respondent named Stacy or Terry took the second impression, which took place during the second visit. After taking it, he told B. K. that something went wrong and asked her if he could taken another impression. B. K. agreed and another impression was taken. The employee told B. K. that her dentures could be ready in three of four days. When she returned, the dentures still were too large. At this point, B. K. embarked on a process that involved more impressions, more office visits, and more ill-fitting dentures. During this period, Respondent's employee routinely blamed the laboratory doing the relining work and finally said that they would change labs. On the only occasion that Respondent saw B. K. following her initial visit, he also said that they would be changing labs. However, he never took another impression after the first. In the process, the dentures seemed to be getting larger each time. At some point, B. K. learned from Respondent's employee that he was not a licensed dental assistant or hygienist and lacked any special training. Unable to obtain from Respondent a properly fitting set of dentures, B. K. finally contacted the local dental society and obtained the name of another dentist. She retrieved her dentures from Respondent's office, which refunded the portion of the payment that she had made for the dentures. (She had paid $125, and her insurance company paid $300.) B. K. visited the other dentist and soon obtained a new set of upper dentures that fit properly. Petitioner retained an independent dentist to examine the relined dentures prepared by Respondent and his employee. Without regard to B. K.'s complaints, the relineddentures were objectively unsatisfactory with regard to the adaptation of the denture to the gum. Respondent's dentures were grossly inadequate in terms of retention. When the independent dentist examined Respondent's dentures installed in B. K., he found a defective occlusion that left B. K. unable to bring her upper and lower arches together without distorting her jaw. Even if she could so distort her jaw, the resulting pressure on the dentures caused them to pop out. Poorly taken impressions led Respondent to cause the preparation of dentures of grossly excessive vertical dimension. Compared to properly fitting dentures, Respondent's dentures measured another 10 millimeters in the vertical dimension, substantiating B. K.'s recurring complaints about the size of the relined dentures. The fit of the dentures was also improper where it contacted the roof of the mouth. Contacting not more than 50% of the surface area of the roof of the mouth, the relined dentures allowed air continually to break the seal caused by the sheeting action of saliva, which is vital for the retention of upper dentures. It is improper for a dentist to delegate to an unlicensed person the duties of taking an impression for the purpose of preparing a prosthetic device, such as dentures. Respondent also failed to maintain adequate dental records. The records contain no medical history on B. K., norecord of Respondent's findings, and no treatment plan. In fact, the record do not even bear the name of B. K. The most material item in the records, which is that B. K. complained about her dentures during the initial visit, is incorrect and reflects either extreme carelessness or deceit. Based on the above-described facts, Respondent was guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Dentistry enter a final order finding Respondent guilty of violating Section 466.028(1)(m), (y), and (aa), suspending Respondent's license for a period of six months, imposing an administrative fine of $9000, and issuing a reprimand. RECOMMENDED this 12th day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, FL 32399-0792 Albert Peacock, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Michael J. Hammonds, D.D.S. 4901 Palm Beach Blvd. Ft. Myers, FL 33905
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.
