Findings Of Fact The Respondent, Peter Kurachek, was a licensed dentist at all times relevant to the allegations contained in the Administrative Complaint, having been issued license number 0005429, and was so licensed at the time of hearing. On January 19, 1981, Clarence Nicholson consulted the Respondent at the Sheppard Dental Center in Clearwater, Florida, regarding a dental problem. The Respondent performed a root canal treatment on Nicholson's tooth number six, a cuspid, and prepared the tooth to receive a crown. On January 31, 1981, the Respondent installed the permanent crown, which he had had prepared. In August 1981, the crown fell out, and Nicholson returned to the Sheppard Dental Center. Nicholson did not see the Respondent on this visit, and the crown was recemented by Dr. Christopher Clarke. In November 1981, the crown fell out a second time. Nicholson returned to the Sheppard Dental Center. On this occasion, Nicholson did not see Respondent, and the crown was recemented in place by Dr. Clarke. Dr. Clarke made no gross alterations to the crown on either of the appointments; however, he did clean the crown in preparation for recementing it on both occasions. Shortly after Dr. Clarke recemented the crown the second time, Nicholson saw Respondent and requested that he correct the crown. The Respondent advised Nicholson that he would be happy to replace the crown and redo the work if the crown became loose again. Respondent feared that forcefully removing the crown in order to prepare a new one might damage Nicholson's tooth. Because he would be responsible if the tooth were broken while removing the crown, the Respondent elected to deal with Nicholson's problem if the crown became loose again of its own accord. In April 1982, more than a year after Respondent did the work for Nicholson, and after the crown had been recemented twice by another dentist, Nicholson was examined by Dr. Paul Hounchell, a dental consultant for the Petitioner. As a result of his examination, Dr. Hounchell opined that the treatment provided by the Respondent did not meet the minimal accepted standards of practice in the community. (Tr. 81.) However, Dr. Hounchell indicated that his opinion was based upon the fact that Nicholson was unable to have the crown fixed to his satisfaction. Dr. Hounchell stated, "The only unprofessional thing is that we run this man around, you know, for a half a year, a year or something like that." (Tr. 121.) The record reflects that Nicholson only saw the Respondent one time after the Respondent installed the crown, and that on that occasion the Respondent told Nicholson that he would replace the crown to Nicholson's satisfaction if the crown became loose again. The record further reflects that Nicholson never tried to see the Respondent thereafter. The tooth in question was a nonvital tooth as a result of the root canal therapy. Such a tooth is more brittle and may fracture more easily. However, the tooth had a good-sized large root which was adequate to support a longer post. The various dentists disagree concerning whether it would have been appropriate for the Respondent to have removed the crown when he saw Nicholson after Dr. Clarke had recemented the crown in place. The treatment provided by the Respondent to Nicholson met minimum acceptable standards of practice in the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the charges against the Respondent, Peter Kurachek, D.D.S., be dismissed. DONE and RECOMMENDED this 25th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 25th day of April, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Peter Kurachek, DDS 703 Tropical Circle Sarasota, Florida 33581 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Background Respondent, Morley F. Vail, is a licensed dentist having been issued license number DN 0003030 by petitioner, Department of Professional Regulation (DPR), Board of Dentistry (Board). When the events herein occurred, respondent operated the Atlantic Denture Clinic at 1052 University Boulevard North, Jacksonville, Florida. He now resides at 2471 Sage Court, Middleburg, Florida. Respondent has been practicing dentistry for over thirty years, having been licensed by the state in 1960. Except for this proceeding, there is no evidence that he has ever been the subject of disciplinary action in connection with his license. Respondent rented his office space and equipment from another local dentist, Dr. Holloway, in an "as is" condition. The building in which the space was located was antiquated and, among other things, was in need of roof repairs. In addition, all of the equipment was old but still functional. Although the building had a number of rooms, respondent leased only a portion of the building. This included a room used as a reception area, two small cubicles used as patient examination rooms and a room behind the examination rooms which was used as a laboratory to make dentures. The remainder of the building was not used for dental purposes. However, respondent's office manager used a part of the unleased portion of the building as a storage area for her furniture and other personal items. At this point in respondent's career, his practice was limited to extractions and making dentures. Count I Count I alleges that inspections of respondent's office on March 26, 1992, and April 8, 1992, revealed he failed "to provide and maintain reasonable sanitary facilities and conditions" and that he violated Subsection 466.028(1)(bb), Florida Statutes, by violating Chapter 21G-25, Florida Administrative Code. Although not specifically stated in the complaint, this latter charge is presumably based upon the allegation that "Dr. Vail's Drug Enforcement Agency certificate expired on or about May 31, 1991". On an undisclosed date in March 1992, a City of Jacksonville deputy field inspector for the tax collector's office inspected respondent's office to determine if respondent had a city occupational license for the year 1991-92. Finding that the occupant of the building had no license, the inspector left a notice advising respondent that he needed a license. When no response was promptly received, the inspector returned to respondent's office on March 26, 1992. At that time, respondent paid for a new license. During the course of the visit, the inspector entered the premises and said he was not "impressed" with the conditions of the waiting room because it "wasn't what (he) was used to". Because the inspector desired to ascertain if more than one business was being conducted on the premises, he went to a "back room" and observed uncovered "utensils and pans" and concluded the room was a dental laboratory. Based upon an anonymous complaint, and a "referral" by the City of Jacksonville inspector, on April 8, 1992, a DPR investigator, Charles C. Coats, III, made an unannounced visit to respondent's office. According to Coats, the office had considerable dust, aged equipment, a leaky roof which had caused water damage to the panels of one room and "bleeding" paint from moisture, and a "cluttered" examination room. Photographs of the office taken by Coats have been received in evidence as petitioner's exhibits 2A and 2B. Coats also noted that respondent's Drug Enforcement Agency (DEA) certificate had expired on May 31, 1991, or almost a year earlier. Such a certificate is required from the DEA in order to prescribe controlled substances. After discussing these matters with respondent, Coats advised respondent that he would be required to turn the results of his investigation over to the Board for possible action. Although respondent's office was not a model of cleanliness in March and April 1992, it is found that it was not in such a deplorable condition as to constitute "unreasonable" sanitary facilities and conditions. Count II Count II alleges that from July 1991 through November 1991 respondent "violated Section 466.028(1)(q), Florida Statutes, by prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the professional practice of the dentist". This charge stems from respondent's treatment in 1991 of a female patient identified as S. H. S. The facts underlying this charge are extremely confusing since the copy of the patient records offered into evidence is only partially legible, the abbreviations and medical jargon contained in the records were not translated by any witness, the dates in the complaint do not correlate in all respects to the dates in the patient records, many of the prescriptions are not recorded in the records, the testimony of the patient was confusing and contradictory, and most of the prescriptions offered into evidence were in the names of someone other than S. H. S. In addition, a large number of the prescriptions had been telephoned into the pharmacies by unknown persons or did not bear respondent's signature. In judging the credibility of S. H. S.'s version of events, the undersigned has considered the contradictions in her testimony, her inability to recall specific dates and times, and the fact that she has been arrested at least once for fraudulently obtaining drugs. In addition, the patient had a lengthy history of abusing drugs and did not relate this fact to respondent when she requested treatment. She also admitted that during the relevant time period, she used aliases to obtain drugs, and she would telephone various pharmacies, identify herself as respondent's assistant, and then authorize a prescription to be filled under her name or an alias. Finally, when she was arrested in 1992, it can be inferred from her testimony that she quickly volunteered respondent's name to authorities in a less than favorable light in an effort to obtain a lighter sentence. This disclosure led in part to an investigation of respondent by law enforcement authorities. Given these considerations, the undersigned has not accepted her testimony as being credible. Although the complaint alleges that respondent began treating S. H. S. in May 1991, the patient records reflect she first visited his office on April 15, 1991. Among other things, the patient desired to have all of her upper teeth extracted and replaced with a full plate denture. She also presented a complaint about her lower teeth which were causing pain. On the first visit, S. H. S. says respondent did an impression and took x-rays and on the second visit, which was "two or three days" later, he extracted fourteen teeth. However, the records indicate that the teeth were not extracted until her fourth visit, or on May 4, 1991. In any event, the records show that on visits made on April 15 and 20, 1991, the patient was given prescriptions for fifteen and twenty lortab 7.5 tablets, respectively, a schedule III controlled substance. This was presumably in response to a notation in the records that "pt. has pain." The records contrast with the patient's recollection that she received prescriptions for percodan and valium on her first and second visits. However, her recollection is partially confirmed by respondent's acknowledgement that when the teeth were extracted, he gave the patient valium because she was extremely nervous and jittery. The prescription for valium is not noted in the records. Although the patient says she next visited respondent's office in July 1991 when she broke her temporary plate, the records reflect that she returned to respondent's office on May 12, 1991. At that time, the records note that she asked for a refill of a prescription but she was "reminded still had Rx". However, on May 18, 1991, she was apparently given another prescription for eighteen lortab 7.5 tablets. The notes pertaining to the reasons why the prescription was given are not legible. On June 1, 1991, the records indicate S. H. S. "called on phone for Rx" but she was told she "needed to come in for exam." On June 5, 1991, the patient made another office visit. The word "healing" is legible but most of the remaining notes are not. The records do indicate that she was given a prescription for eighteen lortab 7.5 tablets that day. On July 5, 1991, or four weeks later, the patient returned to respondent's office for a visit. On that day, the records note that she was "still in pain" and was given a prescription for eighteen more lortab 7.5 tablets. S. H. S. next visited respondent's office on August 8, 1991, or more than a month later. The notes reflect that the "upper (illegible) healing slowly". She was given another prescription for eighteen lortab 7.5 tablets. There is a subsequent undated notation in the records that "pt. called on phone wanting Rx, pt. told required office visit." The final notation relevant to this complaint was made on December 6, 1991, and stated that "pt. has painful lower teeth, told to get (illegible)." The amended complaint alleges that "from approximately May 1991 through November 1991, Dr. Vail prescribed Lortab 7.5 to patient S. H. S." and "routinely provide(d) (her) access to controlled substances including Lortab 7.5 and Percodan, without the benefit of an evaluation, examination or proper diagnosis and treatment planning." To substantiate these allegations, a large number of prescription forms allegedly written or authorized by respondent were offered into evidence. In addition, S. H. S. attempted to bolster this allegation by stating that beginning in July 1991 she visited respondent's office up to three times a week and telephoned his office the same number of times, for a total of six personal or telephonic contacts per week, all for the purpose of obtaining prescriptions for drugs. As to this assertion, the patient's testimony is rejected as not being credible. Testimony was offered by four Jacksonville pharmacists who filled prescriptions for S. H. S., or an alias, or for a male who had the same last name. Since the undersigned has deemed the prescriptions in the name of someone other than S. H. S. or those written after the dates cited in the complaint to be irrelevant and having no probative value, only seven prescriptions in the name of S. H. S. have been considered. They are dated July 30, 1991 (fourteen lortab 7.5 tablets), August 1, 1991 (sixteen lortab 7.5 tablets), September 24, 1991 (sixteen percodan tablets), September 27, 1991 (eighteen percodan tablets), October 10, 1991 (fifteen percodan tablets), October 10, 1991 (ten lortab 7.5 tablets), and October 14, 1991 (twelve percodan tablets). Of these seven, prescription number 501738 filled on October 14, 1991, for ten lortab 7.5 tablets was apparently telephoned in by an unnamed person and has been disregarded given the testimony of the patient that she would telephone in prescriptions while posing as respondent's assistant. It is noted that none of these six prescriptions are found in the patient records and all were written after respondent's DEA certificate had expired. Controlled substances are classified into five schedules, with Schedule I drugs (e.g., heroin) having no medical value and the greatest abuse potential. Percodan is a Schedule II controlled substance having a high potential for abuse and addiction, and misuse may lead to severe psychological or physical dependence. It is noted that a Schedule II prescription cannot be telephoned in by a physician. Instead, a written prescription must be personally presented by the patient to the pharmacist. Lortab 7.5 is a Schedule III controlled substance and has a potential for abuse. Misuse of the substance may lead to moderate or low physical dependence or high psychological dependence. Finally, valium is a Schedule IV drug having a lower potential for abuse. It may be reasonably inferred from the evidence that the patient required percodan or lortab for a reasonable period of time after having fourteen teeth extracted, given the fact that she was a slow healer. In addition, the patient's lower teeth were in need of treatment, and the records reflect she continued to experience pain until December 1991. Even so, the dispensing of six prescriptions for schedule II or III controlled substances from July 30 until October 14, 1991, constituted a failure to prescribe drugs in the course of his professional practice, especially since the patient exhibited an unhealthy pattern of continually requesting refills. Count III In Count III, respondent is charged with failing "to provide and maintain reasonable sanitary facilities and conditions" during a July 1992 inspection, prescribing a legend drug to an undercover police officer other than in the course of his professional practice, operating a dental office in such a manner as to result in dental treatment below the minimum acceptable standards of performance for the community, and failing to keep written records and medical history justifying the course of treatment of a patient. Improper prescribing of a drug On June 15, 1992, Latoyle A. Levister, a detective with the Jacksonville Sheriff's Office, visited respondent's office in an undercover capacity. Using the name of "Nikki Lewis", and posing as a "go-go dancer just off the plane from Chicago", the detective told respondent that two fillings had just fallen out, she was in pain, and she needed advice as to what treatment was appropriate. This complaint turned out to be true since Levister had just lost fillings from two teeth. After Levister was taken to an examination room, and she gave a brief patient history, respondent examined her mouth with what Levister recalls was a "mirrow-type instrument". He did not take any X-rays. Respondent confirmed the fillings were missing and, according to Levister, suggested as a course of treatment that she either have an extraction, which he could perform, or a root canal, which would have to be performed by another dentist. He also suggested that to ease her pain until she made a decision, she take a prescription drug and offered her one of four drugs, including percodan. He also asked if she was allergic to aspirin. Levister selected percodan and thereafter received a prescription for eighteen percodan tablets and twenty-five ampicillin tablets, the latter being an antibiotic. The prescription for percodan was filled at a nearby drug store. On June 17, 1992, Levister telephoned respondent's office and asked for a refill of her percodan prescription. She was told it could not be done by telephone and she must make an office visit. Accordingly, she visited his office that afternoon. After Levister was seated in the examination room, Dr. Vail entered the room, asked her what she needed, and she responded "percodan". He then had her open her mouth, briefly checked her teeth, and wrote her a prescription for eighteen percodan tablets. Before she left, respondent asked her to advise him if she had any problems. On June 23, 1992, Levister again telephoned respondent's office and asked for a refill of her percodan prescription. She was told she needed to make an office visit. That afternoon, she visited respondent's office but did not see Dr. Vail. Instead, she spoke to his office manager who then went to the laboratory and returned with a prescription for twenty percodan tablets written by Dr. Vail. On June 26, 1992, Levister returned to respondent's office without an appointment. This was because respondent's telephone line had been busy and she was unable to secure an appointment by telephone. After being seated in the examination room, Levister told Dr. Vail that she wanted a refill of the percodan. Respondent reminded her that she had already received three prescriptions and cautioned her that the drug was "highly addictive". After briefly examining her teeth, he again advised her to either have an extraction or a root canal. Again, no X-rays were taken. Levister told respondent that she had difficulty in filling the last prescription, could not afford to have it filled in her own name, and asked if a prescription for percodan could be written in her mother's name, "Nancy Baker", who had dental insurance. Respondent then wrote a prescription for twenty percodan tablets in the name of "Nancy Baker". He readily acknowledges that this was "poor judgment" but his "intention was to provide (Levister) relief from pain, which the patient had complained of on previous visits." By prescribing a Schedule II controlled substance in the name of someone other than a patient, and by prescibing the same drug on June 23, 1992, without actually examining the patient, respondent prescribed a drug other than in the course of his professional practice. Failure to provide sanitary facilities After Levister's undercover work was completed, on July 7, 1992, the Jacksonville Sheriff's Office executed and served on respondent's office a search warrant and subpoena for certain patient records. A DPR investigator accompanied the detectives. Respondent was not present on the premises that day. As a result of his inspection, one detective characterized the premises as "deplorable", "very nasty" and "dirty", and he observed rust and blood on instruments. Levister was also present and observed a suction device in a patient examination room lying on the floor. She also saw dirty (rusted or bloodied) instuments and ants crawling across the counter in one of the rooms. Although she found a back room clogged with "all kinds of junk and furniture" and a refrigerator with mold and mildew, this room was not a part of the dental office but rather was used as a storage area by the office manager. According to the DPR investigator, the office was in a "little bit more deteriorated" condition than in April 1992, and no visible improvements or corrections had been made since his last visit. More specifically, he observed "exposed" dental instruments that appeared to be "corroded or rusted", a used pair of rubber gloves on a countertop and exposed hypodermic needles. When asked to compare the office with others he had inspected, Coats says he inspected only those offices that he suspected might be below standards, and respondent's office "could be worse or better" than others he had seen. He added that the office was "mighty close" to being classified as unsanitary. Petitioner's expert reviewed the photographs taken of respondent's office in April 1992 and heard the testimony given by the detectives and the DPR investigator. Based on the photographs and testimony, he opined that by respondent having "dirty or rusty" instruments throughout the office, and by failing to repair "wet, leaky walls", respondent had maintained his office in an unsanitary condition. This is because moisture and bacteria are easily carried from one room to another by the ventilation system, drills and compressed air from vacuums. Further, dirty or used instruments left unattended have the potential for injuring employees and luring bugs and rodents onto the premises. Accordingly, it is found that the office was maintained in an unsanitary condition during the July 7, 1992, inspection. Operating a dental office below acceptable standards During their inspection of the premises on July 7, 1992, the detectives did not find any patient records for "Nikki Lewis". Indeed, the only records found were file cards, and these were in disarray. By failing to maintain complete patient records and good sanitary conditions, writing a prescription for a ficticious patient, and using what appeared to be substandard materials or equipment, petitioner's expert opined that respondent was operating a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community. This opinion has been accepted by the undersigned. Adequacy of written records Since the detectives could find no records of "Nikki Lewis" during their search of the premises on July 7, 1992, it can be reasonably inferred that none were maintained for this patient. As to patient S. H. S., her records were offered into evidence but are partially illegible. Even so, there are no entries in the records concerning the six prescriptions given to the patient between July 30 and October 14, 1991, nor for the valium prescription which respondent says he gave her in May 1991. As to those seven prescriptions, and the ones given to "Nikki Lewis", it is found that the records did not justify the course of treatment of those patients. Mitigation After the execution of the search warrant, respondent and his office manager were arrested on July 8, 1992. On January 28, 1993, all charges were dropped against them in return for respondent agreeing not to practice dentistry for eighteen months retroactive to his date of arrest and to never prescribe any medication in the future. Accordingly, by the terms of this agreement, respondent cannot practice dentistry until on or about January 8, 1994, and he will never again be able to prescribe "medications." Although not stated on the record, exhibit 17 suggests that respondent's license to practice dentistry was suspended by the Board on the date of his arrest and will remain suspended pending the outcome of this proceeding. Except for these offenses, respondent has never been disciplined by the Board during his lengthy tenure as a dentist. Further, the matter of his competence is not in issue. Respondent has not practiced dentistry since this matter arose, and he has been financially devastated to the extent he was unable to hire counsel to represent him in this proceeding. The practice of dentistry is respondent's only livelihood. In recent years, respondent's practice has been restricted to a limited area (extractions and dentures), and he has focused on serving the lower-income, uninsurable segment of the community, or in respondent's words, "the bottom of the barrel" type of dental patients. He denies he ran a "prescription mill" as alleged in the complaint, and this is partially confirmed by entries in S. H. S.'s records, which show respondent would not give her a prescription on several occasions unless she visited the office, and his twice refusing to write a prescription for "Nikki Lewis" without an office visit. It should also be noted that respondent assisted the Jacksonville Sheriff's Office in having S. H. S. arrested for fraudulently obtaining drugs. As to the unsanitary conditions in his office, respondent pointed out that he used a Pelton autoclave on a daily basis to sterilize all instruments. He also says that Dr. Holloway (the lessor) refused to make any repairs and he (respondent) had insufficient funds to correct any of the building's deficiencies. Further, it may be inferred that financial limitations prevented respondent from upgrading the old equipment leased from Dr. Holloway. As to his failure to obtain a current DEA license, respondent acknowledges that the license had expired through inadvertence, but he instructed his office manager to renew it after the DPR investigator brought this to his attention. For some reason she placed the money order and application in a file drawer and neglected to sent them to the DEA regional office in Miami. While conceding he did not run an "ivory-tower practice", respondent says his clinic was providing a low-cost service to members of the public who could not afford expensive dental treatment. Finally, he recognizes that he may never again be able to practice dentistry on his own, but he does wish to practice in some capacity in the future, perhaps in an institution under another dentist's direct supervision.
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 respondent guilty of the violations set forth in paragraphs 33 and 34, dismissing the charges in Count I, and suspending respondent's license for one year to be followed by five years' probation under such conditions as the Board deems to be appropriate. DONE AND ENTERED this 10th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 10th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7363 Petitioner: Partially adopted in finding of fact 1. Partially adopted in findings of fact 4 and 5. Partially adopted in finding of fact 5. Partially adopted in finding of fact 23. 5-6. Partially adopted in finding of fact 8. 7. Partially adopted in findings of fact 8-12. 8-10. Partially adopted in finding of fact 13. 11-13. Rejected as not being based on credible testimony. Partially adopted in finding of fact 14. Rejected as not being based on credible testimony. 16-19. Partially adopted in finding of fact 16. Partially adopted in finding of fact 17. Partially adopted in finding of fact 18. Partially adopted in finding of fact 19. Partially adopted in findings of fact 14 and 20. Partially adopted in finding of fact 25. Partially adopted in finding of fact 24. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, subordinate, not supported by the more credible evidence, a conclusion of law, or unnecessary. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Albert Peacock, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Dr. Morley F. Vail 2471 Sage Court Middleburg, FL 32068
Findings Of Fact On February 21, 1992, Peggy Angle wrote a letter to Respondent stating that Petitioner allowed his six-month old son "to roam" (presumably, crawl) through patient treatment areas in Petitioner's dental office, which Ms. Angle described as unclean on "several occasions." Ms. Angle raised additional complaints in her letter and requested an investigation. Upon receiving the complaint, one of Respondent's investigators performed an unannounced inspection of Petitioner's office on June 4, 1992. The investigator found the office to be "messy and cluttered." Based on the investigator's findings, Respondent retained an expert to make an unannounced inspection with one of Respondent's investigators. The inspection took place on June 18, 1992. At the time of the unannounced inspection, Petitioner, his wife, and their child were on vacation. They had purchased the trip at the last moment at a reduced rate, so they had not been able to plan extensively for their departure. The record is unclear as to how long Petitioner had been gone when the inspection took place. He had been gone for at least several days. In any event, at the time of the June 18 inspection, the office smelled musty and the carpeting was discolored. There was also debris on the floor, although this was due to the presence of the woman (and her child) whom Petitioner had asked to stay at the office and answer the phone. At the time of the inspection, the expert and investigator found several handpieces and metal-tipped syringes out on the counter, rather than sanitized and bagged. Likewise, they found x-ray rings unsanitized. Surplus scalers were in drawers, also unbagged, but they were not used on patients. The expert and investigator noticed several other relatively insignificant items. Petitioner intended to sanitize the above-described equipment upon his return. Likewise, he intended to repair other equipment at the office before reopening it. Based upon his inspection, the expert advised Respondent's counsel by letter dated June 22, 1992, of the above- described conditions and concluded that "I can state the office in general has a dirty, unsanitary appearance and is in violation of 466.028(1)(v), Failure to provide and maintain reasonable sanitary facilities and conditions . . .." He noted other violations, including breaches of various rules requiring sterilization of instruments. On September 17, 1992, the probable cause panel met and determined that probable cause existed to charge Petitioner with a violation of Section 466.028(1)(bb)(v), Florida Statutes, which involves the failure to maintain proper sterilization and disinfection procedures. On October 26, 1992, Respondent filed an Administrative Complaint against Petitioner, alleging that the above-described conditions constituted violations of various statutes and rules requiring the provision and maintenance of sanitary conditions. By Order entered September 10, 1993, the hearing officer allowed Respondent to amend the Administrative Complaint to make a minor addition to the charging allegations. Following the hearing, the hearing officer entered a recommended order finding that, despite the above-described conditions, Respondent had failed to prove by clear and convincing evidence the grounds on which Respondent had proposed to discipline Petitioner. The recommended order concluded that the amended administrative complaint should be dismissed against Petitioner. The Board of Dentistry subsequently entered a final order adopting the recommended order and dismissing all charges against Petitioner. At the meeting to consider the recommended order, one member of the Board of Dentistry questioned the wisdom of a prosecution based on a closed office without patients and expressed his opinion that the probable cause panel should not have directed the filing of an administrative complaint in the case. Understandably, Petitioner argues in his proposed final order that an inspection of a closed office--without a dentist or patients--cannot support a finding of probable cause. This is untrue. The unspoken assumption in Respondent's disciplinary case was that one could reasonably infer that Petitioner failed to follow sanitary practices, given the condition of the closed office while Petitioner was gone. The inference sought by Respondent in the disciplinary case was strengthened somewhat by the conditions noted two weeks earlier by the first investigator while the office was open. The inference was weakened by Respondent's failure to address much else besides what the second investigator found during his visit to the closed office. Facts evidently left unaddressed in the investigation include how long Petitioner had been gone at the time of the second inspection and the condition of the office when he left. On balance, though, Respondent had a reasonable basis in fact and law to proceed against Petitioner. Respondent legitimately proceeded in the hope of prevailing based on the inference. The above-described facts justified the prosecution, especially in view of the importance of the alleged violations, which involved provisions intended to ensure that infectious diseases not be transmitted between patients or between a dentist and his patients.
The Issue Whether Respondent Richard S. Bach, D.D.S., license #5512, has violated Section 466.38, Florida Statutes, by permitting a dental hygienist under his supervision and control to perform acts constituting the practice of dentistry and not permitted by law to be performed by a dental hygienist. Whether Respondent Carol Ann Bach, R.H.D., license #2371, has violated Section 466.38, Florida Statutes, by performing acts constituting the practice of dentistry and not permitted by law to be performed by a dental hygienist.
Findings Of Fact The Respondent, Dr. Richard S. Bach, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, and engages in the practice of dentistry in his office, located at 999 North Krome Avenue in Homestead, Florida. Dr. Bach was practicing dentistry during the month of September, 1978. The Respondent, Carol Ann Bach, is a dental hygienist licensed to practice dental hygiene under the laws of the State of Florida, Chapter 466, Florida Statutes. She is employed by Dr. Richard S. Bach at his office, located at 999 North Krome Avenue in Homestead, Florida, and was so employed during the month of September, 1978. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Dr. Bach and Respondent Carol Bach which was sworn to and subscribed on October 24, 1978. The accusation alleged that Dr. Bach had permitted a dental hygienist under his supervision and control to perform acts constituting the practice of dentistry in violation of Section 466.38, Florida Statutes. The administrative accusation also alleged that Carol Bach had administered an anesthetic by oral injection into the gums of a patient, Dorothy Moore, and that such was an act constituting the practice of dentistry prohibited by Section 466.38, Florida Statutes. Both Respondents requested an administrative hearing. Ms. Dorothy Moore sought the dental services of Respondent Dr. Bach in September of 1977. After treating Ms. Moore, Dr. Bach told her that she was developing a severe pyorrhea gum infection and suggested that she make an appointment with his dental hygienist. An appointment was made and x-rays taken, and thereafter, on September 19, 1977, Respondent Carol Bach cleaned Ms. Moore's teeth. Respondent Carol Bach injected into the upper portion of Ms. Moore's mouth approximately fifteen (15) injections of a local anesthesia before performing a curettage procedure. Subsequently, on September 26, 1977, Carol Bach injected a local anesthesia into the lower portion of Ms. Moore's mouth prior to performing the curettage procedure. Respondents Richard S. Bach and Carol Ann Bach are husband and wife, and were married at the time of the incident involved in this hearing. Carol Bach was employed in the office of Richard Bach as the only dental hygienist employed in the office. During the time of the cleaning of Ms. Moore's teeth, and during the time in which anesthesia was injected into her gums, the door of the room in which these incidents occurred remained open, both on September 19, and on September 26, 1977. There is no evidence that Respondent Carol Bach hid or intended to hide the fact that she administered an anesthesia by way of injection to the patient. The door was open, and the activity therein was easily visible. Respondent Carol Bach had told Ms. Moore that she was going to anesthetize Ms. Moore's mouth in order that the work would be less painful. It was undisputed that Respondent Carol Bach gave injections of anesthesia to Ms. Moore. Respondent Dr. Bach did not deny or attempt to justify the acts of his hygienist, and there was no showing that her activities were unknown to Dr. Bach or that he had instructed her to not perform such operations. He knew, or should have known, of her acts. When Ms. Moore was informed that she needed additional fillings, she became concerned about costs and sought the services of another dentist. Thereafter, she wrote a letter to the Petitioner giving details of her appointments with the Respondents. Both parties submitted proposed findings of fact and memoranda of law, and both made response to the proposals submitted. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted or are inconsistent with factual findings in this Order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Suspend the license of Respondent Carol Ann Bach for a period not exceeding one year. Suspend the license of Respondent Richard S. Bach for a period not exceeding one year. DONE and ORDERED this 22nd day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302
Findings Of Fact Respondents Respondent, John A. Rowe, D.D.S., received his license to practice dentistry in the State of Florida on or about July 30, 1982 and has been so licensed continuing to the present under license #DN 009364. Since 1977, Dr. Rowe has been board-certified in oral and maxillofacial surgery and he practices in that specialty. Dr. Rowe's license to practice dentistry in the State of Tennessee was suspended on or about October 3, 1983, and was reinstated on or about September 28, 1984. He neglected to inform the State of Florida Board of Dentistry of that disciplinary action, although he did provide to the Board a copy of the civil complaint when he applied for licensure in Florida. In early 1985, Dr. Rowe moved his practice from Tennessee to central Florida and began working with Dr. Frank Murray. During the time that he treated the patients at issue in this proceeding, Dr. Rowe was a salaried employee and part owner of a clinic, Central Florida Dental Association, in Kissimmee, Florida. He now has his own practice in Kissimmee. Ralph E. Toombs, D.D.S., has at all times relevant to this proceeding been licensed to practice dentistry in the State of Florida under license #DN 007026. During the period in question, 1988, Dr. Toombs was an associate at Central Florida Dental Association. The Clinic and its Procedures During the relevant period, 1988-89, Central Florida Dental Association, P.A., was owned by a group of dentists who actively practiced at the clinic. Dr. Frank Murray was the majority shareholder and President. Dr. Rowe was a shareholder; Dr. Toombs owned no interest and was an associate. The dentist/owners were under employment contracts and received salaries. By all accounts, Dr. Murray made the operational decisions affecting the clinic and its patients. He admitted that shareholders' votes were based on percentage of ownership. (Tr.-p.114) Dr. Murray set the fees for billing and reviewed patients' files. The procedures for billing were computerized. Clerical staff in the insurance department filled out claim forms that were signed in blank by the dentists, or they signed the dentists' names to the forms. Around 1987 or 1988, Dr. Murray acquired computerized diagnostic equipment for the clinic. At first Dr. Toombs, who was trained and familiar with the equipment, performed the testing. Later, Dr. Murray hired Maggie Collins to operate the equipment. Maggie Collins administered the diagnostic tests to the patients at issue in this proceeding. By the time Dr. Rowe left Central Florida Dental Association in 1989, his relationship with Dr. Murray had deteriorated, giving rise to acrimonious litigation. Patient Records After Dr. Rowe left, he had no further access to, or control over the dental records for the eight patients at issue in this proceeding. These Central Florida Dental Association records were at all times maintained under the case, custody and control of Dr. Murray and his employees. When the records were subpoenaed by the Department of Professional Regulation, copies of the records were provided and the clinic employees certified that the records provided were complete. They were, in fact, not complete, as approximately 426 additional pages were included in the originals subpoenaed by counsel for Dr. Rowe, which pages had not been provided to DPR. Many of the documents not copied for DPR related to billings. In some instances Dr. Rowe's daily reports or consultations were missing from the original records and from the copies. And, in at least one case the original record contains an entirely different version of a specific radiology consultation conducted by Dr. Rowe on 5/3/89. (Compare Rowe Exhibit #2 with Pet. Exh. #5-1). No evidence was provided to conclusively explain the discrepancies, and the records themselves are an unreliable source of evidence with regard to the allegations that Dr. Toombs failed to maintain adequate records for patient J.T. Her file contains only one X-ray from Central Florida Dental Association, and no explanation of tests, diagnoses or the continuing contacts she remembers with Dr. Toombs. The patient specifically remembers more than one X-ray being done at the clinic. The Patients At various times during 1987, 1988 and 1989, Dr. Rowe was consulted by these patients: H.W., E.M., M.Z., R.P.V., H.D., R.M. and S.R. Each had been involved in an automobile accident or other traumatic injury and each complained of headaches, pain, dizziness, and other symptoms. After examination and throughout a course of testing and treatment, these various diagnoses of TMJ disorders by Dr. Rowe were commonly found in the above patients: trismus, closed lock, and mandibular atrophy. While other diagnoses were made in the individual cases, the evidence at hearing and Petitioner's proposed recommended order address only these. Patient J.T. first consulted Dr. Toombs in August 1988, after suffering headaches which she understood from her regular dentist and her physician might be caused by dental overbite. She had a friend who had some work done by Dr. Toombs, so she looked him up in the yellow pages under "orthodontics" and made an appointment. After testing and X-rays and a brief consultation with Dr. Rowe, J.T. understood that Drs. Toombs and Rowe were suggesting jaw joint replacement, removal of some teeth and braces. She was advised to get another opinion and she returned to a prior treating physician. She did not follow up with treatment from Dr. Toombs or Rowe. Testing In addition to being administered X-rays, the above patients were tested on myotronics equipment at Central Florida Dental Association by Maggie Collins, a trained diagnostic testing operator hired by Dr. Frank Murray. Myotronics is electronic equipment developed by a Seattle, Washington company over the last twenty years. The equipment is used in diagnosis and sometimes treatment of TMJ functions, and includes sonography, which records the vibration of sound; electromyography (EMG), which measures the electrical activities of the muscles of the face; and computerized mandibular scanning (CMS), which measures a range and velocity of mandibular movement, i.e., the opening and closing of the jaw. Myotronics can also include a device like a TENS unit used for pulsating. The machines produce printouts which are available for interpretation later by the appropriate professional. On each occasion of administering the myotronics tests to the patients at issue, Maggie Collins was alone, undirected by Dr. Toombs, Dr. Rowe or other clinic staff. She utilized testing procedures she had been taught and had used in her prior dental clinic experience and which she continues to use in the clinic where she now works. In some cases, Ms. Collins administered the same tests twice on a single visit. In those cases, after the first series, the patient was pulsated with a TENS before the series was administered again to measure the effectiveness of the pulsating. This is a standard practice. The full testing takes two and a half to three hours. Diagnoses The TMJ, or temporomandibular joint of the jaw, is between the temporo bone and the mandible. A disc is between the condyle (bone) and the fossa (socket). As the mouth is opened, the bone moves and the disc moves slightly at first, until the mouth is opened wider and the disc rotates around the axis of the condyle. According to Respondent Rowe's TMJ expert witness, John Biggs, D.D.S., and as evidenced by the testimony of all of the experts in this proceeding, terminology in TMJ is open to interpretation and there is not a complete union of agreement on every single thing in the field of TMJ. (tr.-p.790) "Closed lock" can legitimately mean that the disc is out of place and is not recaptured as the mouth is closed. The term, "closed lock", can also be applied to the mandible, meaning the jaw does not open normally because it meets resistance from muscle spasm or tissue impediment from the disc. An acute closed lock would impede the opening more than a chronic condition, as the mandible may, over time, stretch the ligaments. An acute closed lock could limit the mandibular opening to 21, 25 or even 27 mm; whereas a chronic closed lock might allow an opening of up to 40 mm, and sometimes more, according to Petitioner's expert, Dr. Abdel-Fattah (rebuttal deposition, 12/2/92, p.71). The patients' files in evidence reveal findings of limited mandibular openings from a variety of sources, including manual and electronic measurement. Those openings are well within the ranges described above for closed lock and most are within the "acute closed lock" range. Another term for "closed lock" is "anterior displacement of the disc without reduction". This means the disc is not recaptured on the condyle. When a sonogram reflects sounds or clicking in the joint, analysis of those sounds is helpful in diagnosing TMJ disorders. Literature appended by Petitioner to the rebuttal deposition of its expert supports Dr. Moretti's opinion that the presence of clicks can still mean that a closed lock exists. (Pet. #3 to deposition of Reba A.Abdel-Fattah, pp. 1 and 3, figure 5 Rowe Ex. #10, p.18) Trismus is more appropriately designated a symptom rather than a diagnosis. It means spasm of the muscles of mastication. The pain of the symptom often interferes with the opening of the mandible, and for that reason, trismus is sometimes used to also denote "limited opening". It is apparent from the patient records that Dr. Rowe used the term interchangeably, and for that reason, findings of trismus where a patient is able to open to 40 mm are not inconsistent. Moreover, trismus as a symptom may be more or less pronounced under a variety of circumstances on different occasions with the same patient. For example, the patient may experience severe trismus upon rising in the morning and find that it subsides later. Mandibular atrophy is indicated by bone loss. Reviewing the same X- rays for patient E.M., Petitioner's and Respondent Rowe's experts came to opposite conclusive opinions as to whether Dr. Rowe's diagnosis of this condition in E.M. was proper. Mandibular atrophy was also diagnosed in patient S.R., but Dr. Fattah did not find a problem with that diagnosis. Treatment Dr. Rowe's treatment of the patients in issue included closed manipulation and the insertion of orthodic splints. Both are noninvasive, conservative procedures. Petitioner alleges that closed manipulation was unnecessary in the absence of closed lock, and that the method of insertion of the splints by Dr. Rowe was improper. Closed manipulation of the mandible, sometimes called "closed reduction", is manual manipulation to attempt to recapture the disc. The procedure can be done several ways, one of which is to approach the patient from the back, place the hands on the mandible and relax the mandible to where it can be opened, moving the disc into place. The patient is in a supine, or reclined, position in the dental chair. Once the disc is manually repositioned, it is important to keep the patient from closing back on his posterior teeth and losing the disc again. To avoid this, an orthodic splint is inserted and fitted in the patient's mouth. Even when manipulation does not unlock the mandible, the practitioner might want to place the splint for support. The splint can be placed with the patient sitting erect or reclined. Dr. Rowe generally places the splint while the patient is reclined in the dental chair. Adjustments may be made after the splint is initially placed and the patient is sometimes seen twice on the same day or on a weekly basis. Because it is important for the patient to be relaxed, the supine or reclining position is preferred. Insurance Claims Insurance claims at Central Florida Dental Association were handled by clerical staff in a separate department. Claim forms were commonly signed by those staff for the treating dentist, but there is no evidence that the signatures were authorized for any specific claim. Another wholly inappropriate practice at the clinic was to have the dentists sign blank forms to be filled out later. Dr. Rowe testified that Dr. Murray required that they do this, and that he did sign blank forms. Those forms include this printed statement over the signature line: NOTICE: Under penalty of perjury, I declare that I have read the foregoing, that the facts alleged are true, to the best of my knowledge and belief, and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. (Pet. Ex. 12) There is no evidence that Dr. Rowe or Dr. Toombs filled out the claim forms in issue, or were involved in the ultimate decisions as to how much and when to bill an insurance company. In several instances, the forms reflect that tests were billed twice on the same day. As found above, tests were commonly administered twice in one day, for valid reasons. Whether the billing for such was proper was simply not addressed by any competent testimony in this proceeding. Patients' insurance companies were also billed for TENS units. H.W. was given this equipment at the clinic and he testified that he still has it. There is no evidence that any billing for TENS units was fraudulent or improper. Advertising In 1988, the Osceola County telephone directory Yellow Pages listed Dr. Toombs under "Dentists-Orthodontics". There is no evidence that anyone other than Dr. Murray was involved with the placement of that listing. Dr. Toombs is a general dentist who practices orthodontics. He is a member of various orthodontic societies. Petitioner's expert witness, Dr. Lilly, confirmed that a general practitioner of dentistry may practice some orthodontics. There is no evidence that Dr. Toombs has held himself out or limited his practice to being an orthodontist. Weighing the Evidence and Summary of Findings Competent reasonable experts testified on behalf of both Petitioner and Respondent Rowe. It is clear that, as Dr. Biggs observed, terminology in the field of TMJ is not as precise and uniform as Dr. Fattah would suggest. Some of the differences in opinion are attributed to that imprecision, and perhaps to quirks in Dr. Rowe's narratives which portray a surgical setting for a nonsurgical procedure, for example, "draping the patient" or "surgical splint". Dr. Rowe, as an oral surgeon, nonetheless, proceeded reasonably in his sequence of diagnosis and treatment; that is, he attempted conservative, noninvasive modalities before going to more invasive procedures such as arthoscopy and surgery. Other differences in opinion and in the way the computerized test results are interpreted are more difficult to resolve. Dr. Rowe contends that Dr. Fattah misread the printed data, confusing vertical with horizontal readings. Dr. Fattah uses myotronic equipment, but not the older model that was used for the tests at issue. The greater weight of evidence supports Respondent Rowe's diagnoses of the patients at issue. Since the allegations of inappropriate and unnecessary treatment are based on allegations of misdiagnosis, Petitioner's proof fails here as well. The further testing, the closed manipulation and insertion of the splints were appropriate follow up for the findings of TMJ disorders by Dr. Rowe. With one exception, it was the insurance companies and not the patients who complained. The records from Central Florida Dental Association reflect substantial billings and insurance form submittals for Dr. Rowe's and Dr. Toombs' patients, but no evidence of these Respondents' responsibility or involvement in the process. The clinic functions were performed in discrete departments under the overall management and control of Dr. Murray. There was no evidence that either Dr. Rowe or Dr. Toombs exercised influence over any patient so as to exploit the patient for personal financial gain.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Respondent Rowe be found guilty of violating Section 466.028(1)(b), (1983), and a fine of $250.00 be imposed; and that the remaining charges as to Respondents Rowe and Toombs be dismissed. DONE AND RECOMMENDED this 2nd day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 2nd day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-3213, 91-6022 AND 91-5362 The following constitute specific rulings on the findings of fact proposed by the parties. Adopted in paragraph 1. 2.-3. Adopted in paragraph 2. 4. Rejected as unnecessary. The statute is addressed in the Conclusions of Law. 5.-6. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 9.-13. Rejected as contrary to the weight of evidence. 14.-15. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 18.-23. Rejected as contrary to the weight of evidence. 24.-25. Adopted in summary in paragraph 13. 26. Adopted in summary in paragraphs 16 and 26. 27.-30. Rejected as contrary to the weight of evidence. 31. Adopted in paragraph 27. The referenced exhibit #33 is Dr. Lilly's resume and does not support the proposed finding. 32.-34. Rejected as contrary to the weight of evidence. 35.-36. Adopted in summary in paragraph 13. 37. Adopted in summary in paragraphs 16 and 26. 38.-42. Rejected as contrary to the weight of evidence. 43.-44. Adopted in summary in paragraph 13. 45. Adopted in summary in paragraphs 16 and 26. 46.-49. Rejected as contrary to the weight of evidence. 50.-51. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 54.-58. Rejected as contrary to the weight of evidence. The reference to exhibit #33 is incorrect. 59.-60. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 63.-67. Rejected as contrary to the weight of evidence. 68. Adopted in paragraph 4. 69.-70. Adopted in paragraph 14. Adopted in part in paragraph 34, otherwise rejected as to Respondent's involvement in the advertisement. Adopted in paragraph 35. 73.-74. Rejected as unnecessary. 75.-77. Rejected as unnecessary or unsupported by competent evidence as the absence of these records does not support the finding of a violation under the circumstances. Findings Proposed by Respondent Rowe Adopted in paragraph 1. Adopted in paragraph 3. 3.-4. Adopted in paragraph 9. 5.-7. Adopted in paragraph 10. 8.-9. Adopted in paragraph 11. Adopted in paragraph 10. Rejected. The testimony of J.T. is inconclusive in this regard. Adopted in paragraph 8. Rejected as unnecessary. Rejected as overbroad. The records received were reliable for a limited purpose. 15.-16. Rejected as unnecessary. Rejected as immaterial. Respondent admitted the violation. Adopted in part in paragraph 2, otherwise rejected as immaterial (see paragraph 17, above) Adopted in paragraph 32, in substance. Adopted in substance in paragraph 6. Rejected as unnecessary. Rejected in part as unsubstantiated by the record (as to whether Rowe received any benefit other than salary), otherwise adopted in paragraph 6. 23.-24. Adopted in paragraph 6. 25. Adopted in paragraph 41. 26.-27. Adopted in paragraph 37. Adopted in paragraph 41. Adopted in paragraph 29. Adopted in substance in paragraph 21. Adopted in paragraph 23. Adopted in paragraph 20. Adopted in paragraph 24. 34.-37. Rejected as unsupported by conclusive evidence. The witness was at times confused in his haste. He does not know this particular equipment but it is not clear from the record that he was reading the data wrong. Adopted in paragraph 24. Adopted in paragraph 23. Adopted in paragraphs 37 and 38. Adopted in paragraph 33. Rejected in part, adopted in part (see conclusions of law). Finding of Fact Recommended by Respondent Toombs Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 14. 4.-5. Rejected as unnecessary. Adopted in paragraph 36. Adopted in paragraph 34. Adopted in paragraph 35. 9.-11. Rejected as unnecessary. 12. Adopted in paragraph 5. 13.-18. Rejected as unnecessary. 19. Adopted in paragraph 12. 20.-26. Rejected as unnecessary. 27. Adopted in paragraph 41. COPIES FURNISHED: William Buckhalt, Executive Director Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Albert Peacock, Sr. Atty. Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Kenneth Brooten, Jr. 660 W. Fairbanks Avenue Winter Park, FL 32789 Ronald Hand 241 E. Ruby Ave., Ste. A Kissimmee, FL 34741
Findings Of Fact In the November 27, 1985 edition of The Florida Administrative Weekly, Volume 11, Number 48, the Board noticed Proposed Rules 21G-14.001(7) and 21G-14.005(1), Florida Administrative Code, which were timely challenged by petitioner and which provide as follows: 21G-14.001 Definitions. * * * (7) Office team approach - A methodology employed by a dentist in the administration of general anesthesia and parenteral conscious sedation whereby the dentist may use one or more qualified anesthetic auxiliaries who, working under the direct supervision of the dentists assist the dentist, and assist in emergency care of the patient. 21G-14.005 Application for Permit. (1) No dentist shall administer or super- vise the administration of general anesthesia, or parenteral conscious sedation in a dental office for dental patients, unless such dentist possesses a permit issued by the Board. The dentist holding such a permit shall be subject to review and such permit must be renewed biennially. The cited statutory authority for these proposed rules includes Sections 466.004(3) and 466.017(3), Florida Statutes. Parenteral conscious sedation is defined by proposed Rule 210-14.001(6), which is not challenged in this case, as 21G-14.001 Definitions. * * * (6) Parenteral conscious sedation - A depressed level of consciousness produced by the parenteral administration of pharma- cologic substances, that retains the patient's ability to independently and continuously maintain an airway and respond appropriately to physical stimulation or verbal command. This modality includes administration of medications via all parenteral routes, that is: intravenous, intramuscular, subcutaneous, submucosal, or inhalation. A patient who is receiving parenteral conscious sedation will frequently slip in and out of consciousness, or a state of general anesthesia. General dentists do not receive adequate training in undergraduate dental school in the administration of general anesthesia and the treatment of medical emergencies which may result there from, and are not qualified to administer general anesthesia or treat resulting medical emergencies. The evidence is undisputed that a dentist who lacks the additional training in general anethesia and parenteral conscious sedation, which would be required under these rules, is not capable of competently and safely administering anesthesia or sedation himself, and does not possess the ability to competently assess all risks attendant to the administration of general anesthesia or parenteral conscious sedation. Additionally, such a dentist is not able to competently assess whether a patient is an acceptable risk for anesthesia or sedation, or to react to medical complications that may arise, such as respiratory obstruction and arrest, allergic or idiosyncratic reaction to drugs, cardiac arrest, miocardial infarction, seizures, and hypertensive crises. Since general dentists without further training in anesthesia are not qualified to administer general anesthesia in their dental office, or treat resulting medical emergencies, they are also not qualified to supervise the administration of general anesthesia in their office. The educational training received by undergraduate dentists in accredited dental schools in the United States and Canada offers only a brief didactic exposure to general anesthesia and parenteral conscious sedation of about 48 classroom hours. Clinical training is not offered. It is only at the graduate level of training, internship or residency programs that dental schools are required to offer training in dealing with medical emergencies. The general dentist does not maintain the equipment necessary to deal with medical emergencies and life threatening occurrences. Life threatening medical emergencies can develop while a patient is under general anesthesia, and a dentist administering or supervising the administration of general anesthesia must be able to deal with such emergencies. Undergraduate dental schools devote less than twenty-one hours in their entire program to the handling and treatment of medical emergencies and the evaluation of patients, and this does not prepare a general dentist without further training to deal with such emergencies. Certified registered nurse anesthetists (CRNA) are licensed by the Board of Nursing as advanced registered nurse practitioners. According to Nursing Board Rule 210-11.22, Florida Administrative Code, amended June 18, 1985: 210-11.22 Functions of the Advanced Registered Nurse. All categories of Advanced Registered Nurse Practitioner may perform functions listed in Section 464.012(3), F.S. The scope of practice for all categories of ARNPs shall include those functions which the ARNP has been educated to perform including the monitoring and altering of drug therapies, according to the established protocol and consistent with the practice setting. Specific activities which a CRNA may perform are enumerated in Section 464.012(4)(a), Florida Statutes (1984 Supplement). However, Section 464.012(3) specifies that these activities must be within the framework of an established protocol and that a licensed medical doctor, osteopathic physician or dentist shall maintain supervision for directing the specific course of medical treatment on any patient. Thus, a CPNA is not authorized to work independently on patients, but must operate within established protocols and under supervision. In order to become a CRNA, a registered nurse with at least one year's clinical experience in critical care nursing has to graduate from a two year accredited nurse anesthetist program comprised of approximately 425 contact hours, and also conduct 450 administrations of anesthesia consisting of 800 hours of actual anesthesia time. Thus, a CRNA has more training and experience in the administration of anesthesia than a general dentist receives in undergraduate dental school. The proposed rules in question were adopted to preclude a general dentist from employing a CRNA to administer anesthesia in his office unless he has received training beyond undergraduate dental school in anesthesia and has obtained a permit from the Board. As expressed in the Purpose and Effect portion of the notice for these proposed rules: The effect of the proposed amendment will be further assurance that those dentists who are using anesthesia, and related forms of sedation, have met minimal standards designed to protect the public's health, safety and welfare . . . * * * The purpose of the proposed rules is to implement the provisions of Section 466.017 (3)(e), F.S., as enacted by the 1985 Florida Legislature. The rules are designed to insure that those dentists who utilize general anesthesia or parenteral conscious sedation in a dental office for dental patients on an outpatient basis meet certain minimum qualifications. It is the opinion of the Board that dentists who administer or supervise the administration of general anesthesia or parenteral conscious sedation on an outpatient basis must satisfy certain training, equipment, and staffing requirements prior to engaging in such activity. The effect of the proposed rules is the establishment of a permitting procedure, as well as the requirement that adverse occurrences resulting from the use of nitrous- oxide inhalation analgesia, parenteral conscious sedation, general anesthesia be reported. These new procedures and require- ments should enhance the protection of the public from-licensees who are otherwise not competent to use general anesthesia, parenteral conscious sedation, or nitrous- oxide inhalation analgesia. The Economic Impact Statement (EIS) accompanying these proposed rules states, in pertinent part that: The proposed amendment will have some economic impact upon those licensees who are currently authorized to use general anesthesia and parenteral sedation. Upon the effective date of these rules, these individuals will be required to pay a permit application fee as well as expend those funds necessary to bring their training, equipment, and staffing level up to the requirements of the proposed rules. The precise number of dentists to be affected by the proposals and the precise impact upon them, other than the permit application fee, is not known at this time. * * * The proposed rules should have an economic impact upon those dentists who currently admin- ister or supervise the administration of general anesthesia and parenteral conscious sedation. Although the proposed rules do not in any way affect a dentist's ability to utilize general anesthesia or parenteral conscious sedation in a hospital or other medical facility, the rules will require the dentist to obtain a permit and to maintain his office at certain equipment and staffing level. Aside from the permit appli- cation feed the precise economic impact upon those dentists who currently utilize general anesthesia or parenteral sedation is not known at this time. It is anticipated that any additional costs to the practitioner will be passed on to the consumer. The fact that patient costs might increase as a result of these proposed rules was supported by Petitioner's witnesses Ira Gunn and Barbara Quick, but neither witness offered any more detailed information about the economic impact of these proposed rules than is contained in the Economic Impact Statement. Further, Petitioner offered no evidence to show that the proposed rules would affect persons other than those referenced in the Economic Impact Statement. It has not been demonstrated that the Economic Impact Statement is either inadequate, misleading or inaccurate. The evidence in the record is insufficient to support a finding that Petitioner is a non-profit corporation registered in Florida and is composed of a majority of the licensed nurse anesthetists in Florida, that it is the only Florida association of general membership representing nurse anesthetists, or that many of its members will be substantially affected by these rules. There is no evidence of Petitioner's legal status, its purposes as reflected in any by-laws, its membership, or the number of members who will be substantially affected by the rules. Thus, Petitioner has not proven the allegations in its petition regarding its standing in this matter.
The Issue Whether Respondent violated Sections 466.028(1)(j), (l), (m), (n), (u), and (y), Florida Statutes (1988 Supp.), and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.165 and Chapters 455 and 466, Florida Statutes. Respondent, Michael Freedman (Dr. Freedman), is and has been at all times material to this proceeding a licensed dentist in the state of Florida, having been issued license number DN0010221. From June, 1988 through February, 1989, Dr. Freedman billed Medicare and received compensation for dental treatment of three elderly patients, L.S., E.K., and K.K., who resided in a nursing home, Meadowbrook Manor of Boca Cove (Meadowbrook). Patient L.S. At all material times to this proceeding, L.S. was a 93- year-old female who suffered from Alzheimer's disease. At the time of Dr. Freedman's treatment of L.S., Ms. Aurelia DaPra acted as L.S.'s legal guardian. She was also L.S.'s close personal friend and visited L.S. on a daily basis. During these visits Ms. DaPra would attend to L.S.'s personal needs. On or about July 7, 1988, patient L.S. was presented to Dr. Freedman for a consultation at the nursing home where L.S. resided. Dr. Freedman's examination revealed edentulism and/or prosthetic related problems. His recommendations included further diagnostic investigations, surgical procedures, and rehabilitative measures. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered. The "Next Patient Appointment/Service Record" contained in Dr. Freedman's records indicate that dental X-rays were taken of L.S. on July 25, 1988. On July 25, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 8, 1988, Dr. Freedman gave telephone orders to the staff at Meadowbrook to premedicate L.S. prior to Dr. Freedman's visit on the next day. On August 9, 1988, Dr. Freedman visited L.S. Other than rendering an X-ray report, the records do not indicate any other service performed by Dr. Freedman on that date. On August 9, 1988, Dr. Freedman billed $225.00 and was subsequently paid $108.80 by Medicare for X-rays and supplies for L.S. The Medicare category under which supplies are billed is entitled "supplies/prosthesis." Dr. Freedman's customary practice was to make the X-rays at the nursing home using a mobile X-ray machine and to develop the films in his office the next day. He rendered an X-ray report on the dental X-rays of L.S. on August 9, 1988. On August 17, 1988, Dr. Freedman visited L.S. and did a behavior adjustment evaluation. Premedication was given to L.S. on site. On August 17, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 26, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. The dental records of L.S. do not indicate that any service was provided to L.S. on August 26, 1988. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on August 26, 1988. Dr. Freedman billed $70.00 for office services on September 2, 1988, and was subsequently paid $34.88 by Medicare for such services. The records of Dr. Freedman include a draft letter to Dr. Janotta, L.S.'s physician, stating that L.S. needed to have intrabony lesions removed and would require premedication to facilitate the procedure. Notes in his records indicate that by September 18, 1988, Dr. Freedman had not heard from Dr. Janotta. Dr. Freedman billed $72.70 for supplies for L.S. on November 1, 1988, and was subsequently paid $43.88 by Medicare. On November 1, 1988, Dr. Freedman billed $374.00 and was subsequently paid $160.00 by Medicare for surgery on L.S. On November 1, 1988, Dr. Freedman performed a debridement procedure on L.S., which was surgical in nature and was not a routine cleaning of the teeth. Another behavior management evaluation was done on L.S. on November 1, 1988. On January 13, 1989, Dr. Freedman billed $133.00 and was subsequently paid $69.60 by Medicare for X-rays and supplies for L.S. Dr. Freedman's records did not indicate that any services were provided to L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on January 13, 1989. Dr. Janotta's progress notes concerning L.S. indicate that he was contacted by Dr. Freedman on February 5, 1989. On the same date, Dr. Janotta ordered that L.S.'s legal guardian be contacted to get L.S.'s private dentist to look at L.S.'s dental problems. After Ms. DaPra was informed that Dr. Janotta had left orders that L.S. should see a dentist, she told the nurse that she did not want Dr. Freedman to be used as the dentist. On January 26, 1989, Dr. Freedman's office called Dr. Janotta's office and stated that Dr. Freedman intended to do some minor dental work on L.S. and inquired whether the dental work should be done and whether L.S. should be premedicated. On February 10, 1989, Dr. Freedman billed $52.00 and was subsequently paid $22.72 by Medicare for office services for L.S. Dr. Freedman's records do not indicate that any services were performed for L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were performed for L.S. by Dr. Freedman on February 10, 1989. On February 13, 1989, Dr. Hagquist, a dentist, did an oral exam of L.S. and concluded that several of her teeth needed to be extracted. On February 28, 1989, Dr. Hagquist extracted six of L.S.'s teeth. On December 13, 1990, L.S. was examined by Dr. Robert W. Williams, Petitioner's dental expert. Dr. Williams' examination revealed a completely mutilated dentition with serious carious breakdown and several teeth in poor repair. He further discovered gross calcus and debris present with chronic gingival irritation, inflammation, and periodontal breakdown. No evidence was presented as to what dental care L.S. received from February 14, 1989 to December 13, 1990. Patient E.K. At all times material to this proceeding, E.K. was an 84-year-old female who suffered from Alzheimer's disease. On June 6, 1988, patient E.K. was presented to Dr. Freedman for consultation at the nursing home where she resided. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered on June 6, 1988. On July 12, 1988, Dr. Freedman made dental X-rays of E.K. The dental records do not contain either the x-rays or a report on the findings of the x-rays. On July 12, 1988, Dr. Freedman billed $238.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient E.K. Dr. Freedman's records indicate that on August 9, 1988, Dr. Freedman gave some medication as part of a procedure performed on E.K. in the maxilla area. The records do not indicate exactly what the procedure was; however based on the testimony of Dr. Bayloff, Respondent's expert witness, the procedure was not a routine cleaning. On August 9, 1988, Dr. Freedman billed $33.75 and was subsequently paid $10.72 by Medicare for supplies for patient E.K. According to Dr. Freedman's "Tissue Repair/Debridement/ Treatment Report", on November 1, 1988, Dr. Freedman performed the following on E.K. in the mandible area: "brush", "dentifrice," and "dentition." No evidence was presented to establish whether this procedure would not qualify as surgery for purposes of payment from Medicare. On November 1, 1988, Dr. Freedman billed $33.75 and was subsequently paid $14.00 by Medicare for supplies for patient E.K. The procedure performed on November 1 did require the use of some supplies. On November 1, 1988, Dr. Freedman billed $200.00 and was subsequently paid $80.00 by Medicare for surgery on patient E.K. Patient K.K. K.K. is an 85-year-old male who has been described as mentally alert, physically impaired as to sight, and well aware of his surroundings. On June 13, 1988, patient K.K. was presented to Dr. Freedman for a consultation at the nursing home where K.K. resided. Dr. Freedman made a preliminary evaluation. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for consultation services rendered to K.K. on August 13, 1988. It appears that the date which appeared on the Medicare payment report was a scrivener's error and should have read June 13, 1988. On June 20, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for K.K. This billing was for a trip by one of Dr. Freedman's staff to Meadowbrook to copy parts of K.K.'s records. On July 12, 1988, Dr. Freedman made dental X-rays of K.K. and rendered an X-ray report. On July 12, 1988, Dr. Freedman billed $283.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient K.K. On July 29, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for patient K.K. Dr. Freedman's records indicate that his staff called Dr. McKay to inquire whether K.K. needed to have premedication prior to minor oral surgery and if so, what medication would be needed. MITIGATION Dr. Freedman had practiced dentistry at other nursing homes in the area and had not received any complaints concerning the services that he provided. Between 1985 and 1989, Dr. Freedman developed and maintained a practice exclusively limited to patients requiring special care. The majority of his patients resided in nursing homes or ACLF's and were frail and elderly. He was the Dental Director for 23 long-term care facilities and served 50 other facilities on a more limited basis. At any given time he was serving between 1000 to 2000 patients in a 150 mile area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Freedman did not violate Sections 466.028(1)(j)(l) and (u), Florida Statutes as alleged in Count I, finding that Dr. Freedman did violate Section 466.028(1)(m), Florida Statutes (1988 Supp.), in Count I as it related to the X-rays, dismissing Count II of the Administrative Complaint, dismissing the portions of Counts I and III alleging a violation of Section 466.028(1)(n), Florida Statutes (1988 Supp.), finding that Dr. Freedman did not violate Sections 466.028(1)(m) and (y), Florida Statutes (1988 Supp.), as alleged in Count III, finding that Dr. Freedman violated Section 466.028(1)(j) and (l), Florida Statutes (1988 Supp.), as alleged in Count III, imposing a $750 administrative fine and placing Dr. Freedman on probation for one year under the terms and conditions to be set forth by the Board of Dentistry. DONE AND ENTERED this 28th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3391 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted. Paragraph 11: Accepted except as to a prosthesis. The evidence showed that the Medicare category was supplies/prosthesis. Dr. Freedman was billing for supplies not for a prosthesis. Paragraph 12: Accepted. Paragraph 13: Rejected as to the amount billed. The evidence showed that Dr. Freedman billed $70.00. The remainder is accepted. Paragraph 14: Rejected that he billed for supplies and prosthesis. The records indicate that he billed for office services. Paragraph 15: Rejected that Dr. Freedman billed for a prosthesis. The remainder is accepted. Paragraph 16: Accepted. Paragraphs 17-18: Rejected as subordinate to the facts found. Paragraph 19: Rejected as subordinate to the facts found. There was no evidence presented to link the blank X-ray with the X-rays that were taken on July 25, 1988. Paragraphs 20-21: Rejected as subordinate to the facts found. Paragraph 22: Rejected as to billing for a prosthesis. The remaining is accepted. Paragraph 23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraphs 28-30: Rejected as unnecessary. Paragraphs 31-32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Paragraph 34: Accepted in substance. Paragraph 35: Rejected. The evidence does not support such an opinion. Paragraphs 36-38: Rejected as subordinate to the facts found. Paragraph 39: Rejected as not supported by the evidence. Paragraphs 40-41: Accepted. Paragraphs 42-43: Rejected as not established by clear and convincing evidence. Paragraph 44: Accepted. Paragraph 45: Rejected as unnecessary. Paragraphs 46-47: Accepted in substance. Paragraphs 48-50: Rejected as to the prosthesis. The remainder is accepted. Paragraph 51: Accepted. Paragraph 52: Rejected as subordinate to the facts found. Paragraph 53: Rejected. His conclusion is not supported by the evidence presented. Paragraph 54: Rejected as unnecessary and repetitious. Paragraph 55: Rejected as unnecessary. Paragraphs 56-57: Rejected as based on hearsay. Paragraph 58: Rejected as not supported by the evidence. Paragraphs 59-61: Rejected as not established by clear and convincing evidence. Paragraphs 62-66: Accepted. Paragraph 67: Rejected as to prosthesis. The remaining is accepted. Paragraph 68: Accepted. Paragraph 69: Rejected. The evidence established that K.K. was actually seen twice by Dr. Freedman. Paragraph 70: Rejected as not established by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: The third sentence is rejected as unnecessary. The remaining sentences are rejected as constituting argument. Paragraph 2: The first sentence is accepted. The remaining sentences are rejected as subordinate to the facts found. Paragraphs 3-10: Rejected as subordinate to the facts found. Paragraph 11: The first sentence is rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraphs 12-13: Rejected as subordinate to the facts found. Paragraph 14: The first two sentences are rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraph 15: The third sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. There was no paragraph 16. Paragraph 17: Rejected as subordinate to the facts found. Paragraph 18: Rejected as constituting argument. Paragraph 19: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraphs 20-22: Rejected as subordinate to the facts found. Paragraph 23: The first sentence is rejected as constituting argument. The last sentence is rejected as immaterial. Paragraph 24: The first two sentences and the last sentence are rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 25: The first and last sentences are rejected as constituting argument. Paragraph 26: Rejected as unnecessary. Paragraph 27: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. Sentences 4-13 and 42 are rejected as immaterial to the issues. Sentences 14, 29, 31, 38, and 40 are rejected as constituting argument. Sentence 15 is accepted in substance. Sentence 16 is rejected as not supported by the evidence presented. Sentences 17-28, 30, 32-37, 39, and 41 are rejected as subordinate to the facts found. Paragraph 28: Rejected as constituting argument. Paragraph 29(1): The first sentence is rejected as unnecessary. The second sentence is accepted. Sentences 3-8 are rejected as subordinate to the facts found that Dr. Williams was an expert. Sentence 9 is rejected as constituting argument. Sentences 10-13 and 15-18, are accepted in substance. Sentence 14 is rejected as subordinate to the facts found. The remaining sentences are rejected as constituting argument. Paragraph 29(2): Rejected as mere recitation of testimony. Paragraph 29(3): Sentences 1-11 are rejected as mere recitation of testimony. The remaining is rejected as constituting argument. Paragraph 30: Rejected as subordinate to the facts found and as constituting argument. Paragraph 31: Rejected as constituting argument. Paragraph 32: The last two sentences are rejected as constituting argument. The remainder is rejected as mere recitation of testimony and subordinate to the facts found. Paragraph 33: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 34: Rejected as constituting argument. Paragraph 35: Sentences 1, 2 6, 7, 12, 13, 56 are rejected as unnecessary. Sentences 3-5, 10, 23, 24, 32, 35, 36, 37, 52, 55, 58 and 59 are rejected as subordinate to the facts found. Sentences 8, 9, 11, 28, 30, 51, 71, 72 are rejected as constituting argument. Sentences 14-22, 25-27, 29, 31, 33, 34, 39-50, 53, 54, 60-63 are accepted in substance. Sentence 38 is rejected as not supported by the evidence. Sentence 57 is not a complete sentence. Sentences 64-70 are rejected as irrelevant. Paragraph 29 (Keene pg. 15 of PRO): The first sentence is rejected as unnecessary. Sentence 2(1) is accepted in substance. Sentence 2(2) is rejected as based on hearsay. Sentence 2(3) is accepted in substance. Sentence 2(4) is rejected to the extent that the opinion was not supported by the evidence. Sentence 3 is rejected to the extent the opinion is not supported by the record. Paragraph 30 (pg. 15 PRO): Sentences 1-3, 5, and 6 are rejected as based on hearsay. Sentences 4 and 27 are rejected as constituting argument. Sentences 7-10, 15, 23, and 24,are accepted in substance. Sentences 11-13 and 16 are rejected as subordinate to the facts found. Sentences 14, 17, 41, 42, are rejected as unnecessary. Sentences 18-22, 28-40, and 43 are accepted in substance to the extent that X-rays were made. Sentences 25 and 26 are rejected as not credible given that Dr. Freedman was able to produce the records of the patients at issue. The testimony at the hearing dealt with his inablity to produce copies of the Medicare forms that he received from Medicare. Paragraph 31 (pg. 16 PRO): The first two sentences are rejected as subordinate to the facts found. The remaining is rejected as constituting argument. Paragraph 32 (pg. 17 PRO): Sentences 1-10 and 17-19 are rejected as irrelevant. The remaining is accepted in substance. Paragraph 33 (pg. 17 PRO): Rejected as subordinate to the facts found. Paragraph 34 (pg. 18 PRO): Sentences 1-10 are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 35 (pg. 18 PRO): The last three sentences are rejected as irrelevant. The remainder is accepted in substance to the extent that Dr. Bayloff was qualified as an expert witness. Paragraphs 36 (pg. 19 PRO): Rejected as irrelevant. Paragraph 37 (pg. 19 PRO): Sentences 1-2 are rejected as unnecessary. Sentences 3-7 are rejected as irrelevant. Sentences 8-10 are accepted in substance to the extent that L.S.'s file did contain adequate records. Sentences 11-14 are accepted to the extent that they apply to the records of L.S. and K.K. but not as to the records of E.K. as it relates to the X- rays. There were no X-rays or X-ray report in E.K.'s file. Paragraph 38 (pg. 19 PRO): Sentences 1-2 are accepted in substance as it pertains to L.S. Sentences 3-4 are rejected as irrelevant. Sentences 5-6 are accepted to the extent that the expert reviewed records which were present. There were no records for treatment of L.S. on August 26, 1988, January 13, 1989, and February 10, 1989. Dr. Bayloff did not render an opinion on whether services were provided on those dates. The remaining is rejected as constituting argument. COPIES FURNISHED: Natalie Duguid, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Freedman 421 Lakeview Drive, Suite 201 Fort Lauderdale, Florida 33326 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43(3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative and prosecutorial services by the Division of Medical Quality Assurance, councils, or boards. Respondent is and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN0006759. Respondent's dental license has been delinquent since March 1, 2000. Respondent's last known address is 8081 Park Villa Circle, Cupertino, California 95014. On or about December 16, 1993, Respondent was convicted in a jury trial of one count of soliciting prostitution, five counts of sexual battery and two counts of false imprisonment in the County of Santa Clara, California. Respondent was sentenced to three years in prison. The sentence was suspended and Respondent was placed on felony probation for five years subject to the following conditions: that he serve one year in the county jail; that he pay fines and penalties; that he undergo psychiatric counseling; that he report his conviction to future employers; that he report to the California Dental Board; that he treat male patients only; and that he have no contact with the victims. The circumstances underlying Respondent's criminal convictions involved sexual battery of female employees in the dental office and of female patients during dental treatments in his office while he was engaged in the practice of dentistry. In or around January 1996, the California Board of Dentistry accepted Respondent's surrender of his California license to practice dentistry in case number AGN 1994-18, and allowing Respondent to apply for reinstatement after one year, subject to the terms and conditions of Respondent's criminal probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Board of Dentistry enter a final order adopting the foregoing findings of fact and conclusions of law and which revokes Respondent's license. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 9th day of February, 2001. COPIES FURNISHED: Rosanna M. Catalano, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 Houshang J. Dayan, D.D.S. 8081 Park Villa Circle Cupertino, California 95014 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Colette Michele Gatward (Petitioner) should receive a passing score on the Florida Dental Hygiene Clinical Examination.
Findings Of Fact The Petitioner was a candidate for licensure as a dental hygienist by the State of Florida. All candidates for Florida licensure as dental hygienists are required to pass the Florida Dental Hygiene Clinical Examination. The Petitioner took the exam on November 5, 2010. Information and instructions related to the exam were provided to candidates through a "Candidate Information Booklet" (CIB) that was posted on the Respondent's Internet website approximately 60 days prior to the date of the exam. Candidates were expected to review the information contained in the CIB. The Petitioner was aware of the information in the CIB. Part of the exam required that each candidate perform certain clinical procedures to the teeth of a human patient. The CIB stated that each candidate was responsible for providing their own human patient upon whom the clinical procedures could be performed. A panel of three examiners reviewed and scored each candidate's performance of the clinical procedures. In relevant part, the CIB stated that each candidate must submit a patient with 12 surfaces of explorer-detectable moderate subgingival calculus. An explorer is a piece of equipment used in dental practice. The CIB stated that 6.5 points would be awarded for each of the 12 surfaces of subgingival calculus detected and removed by the candidate during the exam. The CIB also stated that failure to detect and remove a minimum of nine surfaces of moderate subgingival calculus would result in a candidate receiving less than a passing score on the exam. The CIB specifically stated that "[p]oor patient selection and management is a common reason for examination failure." The Petitioner brought her sister-in-law to the exam to serve as her patient. After the applicable portion of the exam was completed, the panel of three examiners evaluated the Petitioner's clinical performance. Two of the three examiners determined that the Petitioner had detected and removed subgingival calculus from only eight surfaces of her patient's teeth. There was no evidence presented to indicate that the Petitioner neglected to remove subgingival calculus from her patient's teeth. The Petitioner was aware at the time of the exam that her sister-in-law did not have sufficient subgingival calculus to meet the patient requirements for the clinical demonstration. The insufficient degree of subgingival calculus present in the Petitioner's patient prior to the clinical exam precluded the Petitioner from passing the exam. The Petitioner received a total deduction of 26 points (6.5 points deducted for each of the four surfaces upon which no subgingival calculus was detected) and failed the exam with a score of 74. The Petitioner offered no credible evidence that the panel of examiners improperly reviewed her performance on the exam or that the score she received on the November 5, 2010, administration of the exam was in any manner incorrect. At the hearing, the Petitioner testified that she is licensed as a dental hygienist in another state, that the examinations in both states were conducted by the same regional testing agency, and that the scores from the other state should be accepted by the Respondent for licensure of dental hygienists in Florida. Florida law does not provide for dental hygienist license reciprocity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petitioner's challenge to the scoring of the exam referenced herein. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: Morris Shelkofsky, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Colette Michele Gatward 2212 Margarita Court Kissimmee, Florida 34741 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 H. Frank Farmer, M.D., Ph.D., Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
