The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a 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 prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001.
The Issue Whether the Petitioner should receive on the the clinical portion of the examination additional credit, which is sufficient to receive a passing grade on the December 1997 dental licensure examination.
Findings Of Fact Petitioner, Neda Raeisian, was a candidate for the dental licensure examination administered by the State of Florida in December 1997. The dental examination administered in December 1997 consisted of three parts: a "Florida Laws & Rules" part, an "Oral Diagnosis" part, and a "Clinical" part. The Petitioner received passing scores on the "Florida Laws & Rules" and "Oral Diagnosis" parts of the examination. Petitioner received a score of 2.95 on the Clinical part of the examination. A score of 3.00 was required on the Clinical part of the examination. The Petitioner failed the Clinical portion by .05 of a point, and, therefore, she failed the overall dental examination. Three examiners grade each candidate's clinical portion of the dental examination. Three examiners are used because by averaging the scores of the three examiners, the Respondent is more likely to capture the candidate's true score than by using one or two examiners. Before an examiner may be used for an examination, he or she must be recommended by an existing examiner or by a member of the Board of Dentistry. The proposed examiner may not have any complaints against his or her license and he or she must have been actively practicing and licensed for at least five years in the State of Florida. The examiner must complete an application that is sent to the Board of Dentistry examination committee, where it is then reviewed by the committee, and if approved, the examiner is entered into the pool of examiners. Before every examination, the Respondent conducts a standardization session, which is a process by which examiners are trained to grade using the same internal criteria. The Respondent uses assistant examiner supervisors who are appointed by the Board to train examiners on the different criteria that are used during the examination. The assistant examination supervisors go through and describe what a score of five would be, all the way down to a zero, the different criteria for each of those particular grades, and under what circumstances those grades should be given. After the examiners go through a verbal training, they are shown slides of teeth and told what the score on that procedure should be. After the standardization, there is a post- standardization exercise where the examiners are required to grade five mannequin models to make sure they have been able to internalize the criteria. After the post-standardization exercise, the Respondent evaluates the examiners to determine whether they are acceptable to use during the examination. There are also post-examination checks on the examiner, whereby the Respondent decides whether or not to use the examiners again. The Respondent runs the post-examination statistical checks to make sure that the examiners grade with consistency and reliability. There is generally a very high agreement rate between the examiners. Typically if there is an inconsistency in grading, it is usually the examiner who gives the higher grade that is incorrect because he or she missed an error; any error found by an examiner must be documented. The examiners grade the examination independently of each other; that is, they do not confer with each other while scoring the examination. The examination is also double-blind graded. Double- blind grading is the process through which examiners have no contact with the candidates. The examination is conducted in such a way that there is one clinic that is monitored by a licensed dentist in which the candidates actually perform the procedures. When the candidates are finished a proctor walks the patient over to another clinic where the examiners are located, and the examiners grade the examination. The candidates perform the patient portion of the examination on human beings that they are responsible for bringing in. If the patient has the necessary characteristics, the patient could serve for two different candidates or on two different examinations. The examination is a minimum competency examination. The grading system used during the clinical portion of the examination is as follows: A zero is a complete failure, a one is unacceptable dental procedure; a two is below minimally acceptable dental procedure; a three is minimally acceptable procedure, which is the minimum required to pass the clinical portion; a four is better than minimally acceptable dental procedure; and a five is outstanding dental procedure. An overall score is determine by averaging the three examiners' scores on the eight clinical procedures, putting different weights into a formula, and calculating the final grade. It is required in Board rule that the scores of the examiners be averaged. The Petitioner challenges the score given to her for her performance on Procedure 03, "Amalgam Final Restoration," of the Clinical portion of the examination. The Petitioner performed Procedure 03, the "Amalgam Final Restoration," on a live patient, Ms. Desiree Peacock. The Petitioner's performance on Procedure 03 was graded by three examiners: examiner number 290, identified as Dr. Richard Tomlin, of Pinellas Park, Florida; examiner number 299, identified as Dr. Haychell Saraydar, of Pinellas Park, Florida; and examiner number 176, identified as Dr. Leonard Britten, of Lutz, Florida. The Petitioner received a grade of 4 on a scale of 0-5 for her performance on Procedure 03 by examiner number 290; and a grade of 3 on a scale of 0-5 for her performance on Procedure 3 by examiner number 299. However, she received a grade of 0 on a scale of 0-5 for her performance on Procedure 03 by examiner number 176. The reason the Petitioner was given a score of 0 on procedure 03 by examiner number 176 was that the examiner felt that there was a lack of contact at the amalgam restoration site. The Respondent's dental expert, Jorge H. Miyares, D.D.S., testified that a score of 4 is given on Procedure 3 when, in the judgment of the examiner, there are only minor errors present which will not jeopardize the procedure; that a score of 3 is given on Procedure 03 when, in the judgment of the examiner, the procedure is completed at entry level; and that a score of 0 on Procedure 03 is mandatory if there is a total lack of contact. The examiners are taught and trained to check for contact when grading a candidate's performance on Procedure 03, as a lack of contact is a very significant error that jeopardizes the integrity of the amalgam restoration. There are two different types of contact involved in a Class II Restoration. The type of contact that was referenced by Examiner 176 in his grade documentation sheet is proximal contact. Proximal contact is when a tooth is restored, the proximal tooth next to it must be touching the tooth that has been prepared. Contact is something that either does or does not exist between two teeth. Contact is checked visually and by running a piece of dental floss between the teeth to see if there is resistance. Examiners 290 and 299 would have been required to give the Petitioner a grade of 0 on Procedure 03 if they had found a lack of contact. The findings of examiners 290 and 299 during their review of the Petitioner's performance on Procedure 03 were inconsistent with the findings of examiner 176 (lack of contact) during his review of the Petitioner's performance on Procedure 03. The inconsistency between the findings of examiners 290 and 299 and the findings of examiner 176 during their review of the Petitioner's performance on Procedure 03 were statistically unusual. Respondent performed Procedure 03 on the patient Desiree Peacock. Following the exam, Peacock used dental floss on the affected area and she believed she felt resistance. Although the grading on Procedure 03 of the clinical portion of the examination is inconsistent, the Respondent followed its standard testing procedures for the December 1997 dental examination. The evidence is insufficient to prove that the Respondent's examiner acted arbitrarily or capriciously or with an abuse of discretion in refusing to give the Petitioner a passing grade on procedure 03 of the clinical examination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petitioner's challenge to the grade assigned her for the clinical portion of the December 1997 dental licensure examination. DONE AND ENTERED this 22nd day of September, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: Anne Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399 Dr. Neda Raeisian 2161 Lake Debra Drive Apartment 1726 Orlando, Florida 32835 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast Bin A-02 Tallahassee, Florida 32399-1703
Findings Of Fact Frank A. Velez, Jr., D.D.S. has been registered with the Florida State Board of Dentistry since 1967. His latest address on file with the Board is 4640 Orange Blossom Trail, Orlando, Florida. The records of the Board show no licensed hygienist with the same address as Velez or that any licensed personnel are employed by Velez. In November, 1973 Mrs. Margaret B. Laursen went to Dr. Velez for professional services. Velez performed a root canal and took impressions for a partial plate. When the patient returned for the bridge work to be inserted in her mouth Velez removed a tooth before putting in the plate. When the plate was inserted it did not fit and despite several visits to Dr. Velez for adjustment, the plate could not be worn because of the pain and discomfort caused with the plate in place. Finally, in August, 1974, she went to Dr. Barnes. Upon examination Dr. Barnes observed a large root tip which had been left in the cavity from which the tooth was extracted. This root tip was visible without x- ray. The root tip that had been removed and the x-ray showing the root tip were admitted into evidence as Exhibits 5 and 6. After extracting the root tip and adjusting the partial plate Dr. Barnes could not make the partial plate fit, largely because an extension had been added to the plate to take care of the space caused by the extraction of the molar from which the root tip had been left. Dr. Barnes further found that the crown which had been placed on the tooth used to anchor the partial plate had been cracked and the plate could not be securely attached thereto. Since the partial was sitting on top of the root tip at the time it was being fitted by Dr. Velez, the pain would not allow the partial to fit comfortably. Mrs. Estella Livermore saw a brochure from Dr. Velez on a bulletin board in the trailer park where she resided. Therein it said that he would make a full set of upper and lower dentures for $98. Needing dentures she visited Velez in January, 1976. Upon arrival she talked to Velez and the secretary who showed her two sets of teeth; one the $98 set and the deluxe version at $150. As a result of the conversation she authorized Velez to make her a $150 set. At this time Mrs. Livermore had been wearing dentures for about 30 years. On her initial visit impressions were taken and about a week later she went back when the plates were ready. When the new dentures were placed in her mouth she couldn't eat, drink, or talk with them. At Velez's insistence she tried to wear them, but couldn't even drink water with the teeth in. After complaining to Velez he stated that he would make another set. When the other set was prepared they appeared to fit worse than the first set. They were impossible to wear. She called Velez and he stated he couldn't do anything about it. Telephone calls to his office were answered by a recording. Subsequently, she and her husband went by his office to wait him out. When he appeared he was angry because she had not called for an appointment and wanted to know if she wanted him to take some material off the plates. When Mrs. Livermore replied that she didn't know, he took the teeth into his lab for a short while and when he returned shoved them in her mouth and escorted her out. His nurse told her if she came back he would charge her $10 per visit. The teeth still could not be used by Mrs. Livermore and when she complained to the dental society she was referred to Dr. Waldheim, Assistant Secretary Treasurer of the State Board of Dentistry. In February, l976 Dr. Waldheim examined Mrs. Livermore and found the dentures to be oversized with a poor occlusion. The dentures were inadequate for the patient and could not be adjusted to fit. Mrs. Georgia McCampbell visited Dr. Velez in late November, 1975 to have teeth pulled and dentures made. He took impressions of her teeth and approximately one week later when she returned several teeth were extracted and both upper and lower dentures were inserted. The lowers fit badly and would not stay in place. Her next appointment was one week later. During this period of time the dentures were burning and hurting very badly and when she went back for her appointment she did not see Dr. Velez, but was seen only by an assistant. By this time her gums inflamed and abscessed. She told the assistant she had an appointment with Dr. Velez, but was advised that since she was late for her appointment with Velez she could not see him. One of the assistants attempted to fit the dentures by putting them in, but they were hurting too much for her to wear. A few days later she went to Dr. Ford. When Dr. Ford examined Mrs. McCampbell he found the incision extended from second molar to second molar across the lower front part of her jaw. The wound was open and the jawbone was exposed. A pus-like material was observed in the gum. Her temperature was slightly elevated at 99.2 F. He treated her with antibiotics. Mrs. McCampbell advised Dr. Ford that she had teeth removed ten days before and had been back on three occasions but was unable to see the dentist. She could only see a dental assistant. Dr. Ford expressed the opinion that where six or eight teeth in a row are removed sutures would normally be indicated. Three days later upon her return she was beginning to heal and he removed some bone fragments from the jaw. The incision made when the teeth were removed healed in about three weeks. His examination of the dentures that had been made for Mrs. McCampbell showed they were too large and the jaw would not properly close with the dentures in the mouth. Dr. George A. Woodruff, D.O.S., in Titusville knew Dr. Velez when he was practicing in Titusville some two and a half to three years ago and had patients in common with Velez. One of these patients, Sue Flenniken, visited his office in May, 1972 with gum abscess. She advised him that Velez had proposed to treat her with a root canal. In Dr. Woodruff's opinion a root canal would not have helped in her case, as the gum was abscessed. Some two months later the tooth flared up again and extraction was required. Another client shared with Dr. Velez was one Hazel Todd. She was experiencing problems with a Velez-constructed bridge held by three teeth on which root canals had been done by Dr. Velez. Upon examination Dr. Woodruff found the root canal treatment inadequate. One was underfilled just short of the tip of the root, the other two overfilled with the filling sticking out of the end of the root. This was clearly visible in the x-ray. Dr. Woodruff opined, that the three root canals done at the same time on three teeth in a row was contraindicated. Normally when a patient has sensitivity in an area proper treatment would be to narrow down the sensitivity and then do a root canal on the tooth most suspect to see if that cured the problem before proceeding to treat the other teeth. Mrs. Amelia Thomas visited Dr. Velez in June, l976 for replacement dentures. After she paid half of the quoted price a dental assistant took the impressions from which the new dentures were made. On this visit Dr. Velez did not take any impressions. When she returned a week or ten days later to pick up the teeth she was advised that she had to pay the balance of the amount owed on the teeth prior to having the teeth fitted. When she questioned paying for the teeth before trying them Dr. Velez told her abruptly that is the way that he did it. After she made the balance of the payment the teeth were tried in her mouth. They did not fit well and she could not bite comfortably. Velez took part of the material off the teeth and told her to try them out and come back a week or so later for an adjustment. Although she tried to wear the teeth she couldn't talk or eat with them. She considered they were too large and her jaws would not properly close. When she went back to Dr. Velez with her complaint he told her that he had made the teeth to fit and that she was going to have to wear them. She offered to pay him more if he would make another set that did fit but he declined. Velez then brought in another man who checked her teeth and took them out to the lab to work on. About an hour later Velez advised her that he would make her another set of plates and he took impressions to do so. He also asked for her old plate to be left there for a couple of days which she declined to do because she felt she could not get along without them. She did not return for the second set of teeth because she had become uneasy about the work Dr. Velez had done and stopped payment on her second check. Mrs. Thomas has worn dentures for approximately 40 years and this is the first time a dentist had asked her to leave her old dentures for a pattern. Alfred W. Langley saw Dr. Velez in January, 1976 to have a set of dentures made. Dr. Velez took the impressions and when Langley returned approximately one week later for fitting, the teeth fit so badly that Velez would not let Langley out of the office with them. Velez took a second set of impressions but when Langley returned those teeth fit no better and a third impression was taken. When the third set of teeth was made, Langley took those home with him but they did not fit. They wouldn't stay in place and he could not talk with them. Subsequently he visited the consumer protection agency and obtained a letter from the dental board and from the consumer protection agency. When he confronted Dr. Velez with these letters Velez returned the money he had paid for the teeth. These letters from Dr. Waldheim and from the State Attorney's office were received into evidence as Exhibits 7 and 8. Mrs. Louise Rodgers visited Dr. Velez in February, 1976 experiencing problems with her teeth. Another dentist had wanted to do root canals on some twenty-odd teeth but she didn't feel she could afford the approximately $4,000 she had been advised that treatment would cost. She visited Dr. Velez to see if extraction and dentures would be cheaper. Dr. Velez took x-rays and impressions prior to extracting the teeth. On March 4, 1976 Dr. Velez extracted 23 teeth and put in the plates that he had constructed from the earlier impressions. She immediately inquired if the upper plate was supposed to be as loose as the one in her mouth appeared to be. Under instructions she kept the plate in all afternoon but had to hold her finger on the plate for 3 or 4 hours until the swelling was sufficient to hold the plate in place. Later when she took them out to clean her mouth she couldn't get the plate back in because of the large bone in the way. The following Monday she called the office and was advised to come in on the 11th, some 7 days after the extractions. Dr. Velez was not there and one of the girls in the office tried to put the teeth in but couldn't. Mrs. Rodgers returned the following day and saw Dr. Velez who removed the bone fragment that was in the way. He tried to put the teeth back in but there was too much swelling and the upper part of the jaw was very irritated. When she returned on the 18th of March her gums were still tender but there was no longer any bleeding. On that visit Dr. Velez did some grinding on the teeth so they could be put in her mouth; however, they would not stay in place. Velez advised her to get something gummy and sticky to hold them in. She tried to wear the teeth but they felt too big and would not stay up. She went back on the 23rd of March complaining about her teeth not staying up. She was advised she had to get used to them but he would remake them if she would pay an additional fee of $78. When she called on April 22nd and asked to talk to Dr. Velez the girl said he was extremely busy and couldn't come to the phone. The receptionist advised that she would make her another appointment but she should wait for three weeks. During this time she was still trying to wear the dentures but couldn't eat with them, talk with them, and the uppers kept falling down. When she did return for her final appointment he advised she was just going to have to wear them until she could get used to them. After complaining to the Dental Board Mrs. Rodgers was advised to visit Dr. Waldheim. When Dr. Waldheim examined Mrs. Rodgers in June, 1976 he found that her gums had healed but the teeth did not fit. The occlusial relationship was badly off and the teeth could not be adjusted to fit. Dr. Waldheim further opined that extracting 23 teeth at one time and not seeing the patient until 10 days thereafter was very poor dental practice. In his opinion the patient should always be seen the following day if as many as 23 teeth were extracted. Mrs. Sarah Gier visited Dr. Velez in February, 1976 to have new dentures made. Velez advised her that she could have the $98 set or the $150 deluxe set, but that the $150 teeth were worth approximately $600. She selected the $150 set. At this visit Dr. Velez took impressions and when she returned on February 19 for the teeth the upper dentures appeared all right. Dr. Velez acknowledged that the bottom dentures were wrong and would have to be made over. He then took impressions for the lower plate but when she returned for them they didn't fit. Dr. Velez instructed her to try and wear them. She tried but couldn't wear them because they hurt too badly. When she returned on March 1, a boy in the office removed her teeth, took them back to the lab to work on them. When he returned they still did not fit and he made a second adjustment. When Dr. Velez appeared he advised her that she would probably have to use powder and that it may be several weeks before she would get used to the teeth. Inasmuch as each visit was now costing $10 she didn't feel that she could make more visits. On March 4th Mrs. Gier called and asked for her money back. Initially the receptionist said all right, but called back and advised that Dr. Velez had changed his mind and could not give her money back. Subsequently when she and her husband stopped by to see Velez he told her if she didn't leave he would call the police. Later she visited Dr. Waldheim, to whom she had been referred by the Dental Board. Dr. Waldheim found the dentures did not fit as they were too large and the jaws could not close to their natural position. Using the witness as a model Dr. Waldheim had her insert the teeth at the hearing. It was clearly evident that the jaws were extended by the teeth and the lips would not close. In Dr. Waldheim's opinion those teeth could never be made to fit. In February, 1976 Mr. Joseph Marrone visited Dr. Velez to have dentures made. He had heard that Dr. Velez was reasonable and the next door neighbor had recommended Dr. Velez. He had a partial plate held by three teeth on the, bottom that needed to be pulled. When Dr. Velez examined him Marrone was advised it would be better to pull the bottom and top teeth and make a full set of dentures. On the first visit Dr. Velez made impressions for the lower plate. On Mr. Marrone's second visit the lower plate was ready and was placed in his mouth. Although the receptionist told him not to take them out they hurt so badly that he had to. When he returned a few days later two girls in the office examined his teeth and made adjustments on them. However, the teeth never fit and were causing bruises and sores in the gums. He could not eat with them. Thereafter Dr. Velez made a second full set of teeth, but they too did not fit. After several adjustments were made Velez advised this would be the last time he could adjust them and if they didn't work he could do nothing more about it. Mr. Marrone then asked him to return his money `and he would go to a dentist who could prepare him a set of dentures he could wear. When Marrone subsequently complained to the dental board he was referred to Dr. Waldheim. Dr. Waldheim's examination of the dentures showed the lower plate extended and it could not be corrected to fit. Mr. Marrone was then referred to another dentist who was able to adjust the upper plate that had been made by Dr. Velez to fit but it was necessary to make a new lower plate for Mr. Marrone. With respect to the various patients of Dr. Velez that had been seen by Dr. Waldheim due to improperly fitting dentures, Dr. Waldheim expressed the opinion that the most probable cause of the ill-fitting dentures was in the manner in which the impressions were taken or in the material used in taking the impressions. If improper impression material was used it could have changed from the time the impression was taken until the time it was used for the mold for the dentures. None of the dentures made for the patients of Dr. Velez that were seen by Dr. Waldheim could have been adjusted so they would fit. Connie Bragdon and Marie Minzenberger worked in Dr. Velez's office in 1975 and 1976. Both had received training from Dr. Velez, both worked as Dr. Velez's assistants, both took impressions from which dentures were made, and both adjusted dentures. They were instructed to give a copy of the letter, admitted into evidence as Exhibit 9, to all patients. These letters contained a map showing the location of the office on the back and advised the prices that the doctor charged for various services. Letters similar to those in Exhibits 2, 4 and 9 were mailed to patients who called and requested information. Rebecca Velez, wife of Dr. Velez, testified over the objection of the attorney for Respondent, who objected on grounds of the husband and wife privilege. Mrs. Velez had worked in the office for approximately one and one half years in 1975 to early 1976. She too had received no previous training. She acknowledged that Exhibits 2 and 4 were very similar to those that were in the office and were given to all patients who visited the office. Dr. Henry Gagliardi, D.D.S. is a dental educator who established a dental hygiene school at the Florida Junior College in Jacksonville. Dr. Gagliardi defined a dental auxiliary as an individual working with or for a dentist. This person can be either a dental assistant or a hygienist; however, the latter requires a license and two years training. A dental assistant may be employed with no preparation or training. A hygienist can scale teeth, use instruments in the mouth, and take impressions. A person not licensed by the dental board may not legally take impressions from which a prosthetic device will be made, but they may take impressions for diagnostic purposes only. A dental assistant may not alter a prosthetic appliance (denture). If an extension on a prosthetic device causes problems to the patient the diagnosis and correction of this problem must be done by a dentist. Since the determination of the accuracy of the bite on a prosthetic device is very important, this is another task that must be done by the dentist and not by an auxiliarist. Dentures are often placed into the oral cavity immediately after extraction and when so done they act as a splint until the cavities heal. In the normal process gums will shrink following extraction of teeth and thereafter the dentures will require adjustment. Improperly fitting dentures can cause lack of equilibrium in the jaws, sore gums, and sores in the mouth. In December, 1973 Mrs. Norma Laursen, daughter-in-law of Margaret B. Laursen, visited Dr. Velez on an emergency basis to have a broken tooth repaired. Dr. Velez was unable to take her case at that time. Several months later she and her husband received an envelope in the mail containing a letter which was introduced into evidence as Exhibit 2. The introduction of Exhibit 2 was objected to on the grounds that there was no evidence that it was signed by Dr. Velez or sent by Dr. Velez. Ruling on this motion was deferred at that time. Since subsequent exhibits indicate that this letter was one of many of a similar kind that were distributed to various individuals, the objection is overruled and Exhibit 2 is admitted into evidence. Robert E. Laursen corroborated the testimony of his wife, Norma. James E. Stone, of Titusville visited Dr. Velez while Velez was practicing in Titusville some two and one half to three years ago. He had chipped a tooth over the week-end and went in to see Dr. Velez for emergency repairs on a following Monday. Dr. Velez took x-rays, filed the tooth down, and advised Mr. Stone that in the future he may need a root canal. Dr. Velez was never his family dentist. Some months later he received in the mail a letter which was offered into evidence as Exhibit 4. Mrs. Stone corroborated the testimony of Mr. Stone with respect to the receipt of Exhibit 4 in the mail. Exhibit 4 was objected to on the same grounds as Exhibit 2 and at the time the ruling on the objection was deferred. For the same reasons given above, Exhibit 4 is now admitted into evidence. Six witnesses, Susan Weiler, Daryl DeVevc, Gustav Jicha, Daisy Smith, Robert B. Smith, and Janice Sidley testified on behalf of Dr. Velez. All had received treatment from Dr. Velez and considered him to be an excellent dentist who did very fine work for each of them. Some had experienced difficulties with dentures made by other dentists, but those prepared by Dr. Velez were excellent. A series of commendatory letters addressed to Dr. Velez were admitted into evidence as Exhibit 13. Attached thereto is an affidavit signed by some 57 former patients to the effect that Dr. Velez had performed dental work on them and they were completely satisfied with his service, his professional conduct and competence as a dentist. Copies of various certificates held by Dr. Velez were admitted into evidence as Composite Exhibit 14.
The Issue Should Respondent's license as a dentist in Florida be disciplined because of the matters alleged in the Administrative Complaint filed herein?
Findings Of Fact At all times pertinent to the matter in issue herein, the Petitioner, Board, was the state agency responsible for the regulation and supervision of the dental profession and the licensing of dentists in Florida. Respondent was a licensed dentist holding license Number DN 0010500. At all times pertinent to the matters in issue herein, Respondent was actively engaged in the practice of dentistry at his office located at 1429 Kass Circle, Suite A, Spring Hill, Florida. In mid-January, 1990, Henrietta Pollio, then a 69 year old widow, had two teeth pulled by a Dr. Pikos, to whom she had been referred by her daughter, a patient. Dr. Pikos recommended she see Respondent for replacements for the pulled teeth, and on January 22, 1990, she saw Respondent in his office. At that time, Ms. Pollio told him she had had two teeth pulled and already wore a bridge. She initially wanted only her lower denture replaced, but Respondent suggested she replace both the lower and upper for a better fit. She agreed. In March, 1990, Mrs. Pollio went to the Respondent's office for impressions for the new dentures. In the interim, she continued to wear her existing dentures which she had worn for several years. When she got her first set of dentures from Respondent that same month, she didn't like how they looked or how they fit. She told him so, and he agreed to make her another set. When Respondent gave her her second set of dentures, she did not think they fit any better than the first set he had made for her. They were uncomfortable and she felt the lower denture was too loose. When she told him about this, he said that teeth were supposed to be placed on gums. She disagreed, saying she wanted them to be comfortable so she could chew. She claims he merely stated to her that this was the way they were to fit. He did, however, attempt to adjust both sets over the several times she saw him. Each time she went for an adjustment, Respondent would make some change to the dentures and allegedly said he would get them right even if it took 5 years. However, when he offered to reline the second set of dentures, as he had done to the first set, she refused because she didn't want a reline. She wanted the teeth to be made to fit properly. In all, Dr. Gibney performed 27 adjustments on Mrs. Pollio's dentures. According to Dr. Cadle, it is not routine for a dentist to provide a second set of denture for an unsatisfied patient but it is not unheard of. This fact and the numerous adjustment are, in his opinion, evidence that Respondent was trying to satisfy his patient. By December, 1990, Mrs. Pollio was still complaining to Respondent about the fit of the teeth he had made for her. Respondent claims she wanted a complete partial refund of the amount she had paid. He ultimately offered her a refund of $550.00 if she would sign a release and she decided to think about the offer. When she went back the next day, she claims the office was closed. She later again went to Respondent's office where his assistant, Ginger, handed her a letter terminating the doctor/patient relationship. It was after she received that letter that she agreed to accept the money Respondent had offered but she still refused to sign a release because of the "pain and suffering he had caused her." Dr. Donald I. Cadle, Jr., a dentist practicing in New Port Richey since 1971, former Chairman of the Board of Dentistry, and an expert in general dentistry, was retained by the Board to evaluate Respondent's performance in this case. He reviewed Respondent's records regarding his treatment of Mrs. Pollio including correspondence and x-rays, and the investigative report rendered herein. He also examined Mrs. Pollio on October 14, 1991 and on the basis of all the above had sufficient information on which to base an opinion of the Respondent's work. His review of the lab procedure authorization forms presented to him reveals a lack of finish date on many individual forms. This date is required so that the dentist will know when to arrange for the patient to come back for the dentures. He also noted than on several forms the description of the patient and her condition was minimal but probably enough to be acceptable. On one form the Respondent failed to state how he wanted the teeth set in the mold, (occlusion, spacing, etc.). On other forms, Respondent failed to specify the material used and on some, there was no direction as to contour. As to Respondent's patient records, used to keep all pertinent information regarding a patient in one area, both the statute and the rules say they should include such information as the results and findings of the doctor's initial examination of the patient; a written diagnosis; and a treatment plan. In evaluating Respondent's records relating to Mrs. Pollio, Dr. Cadle found that the treatment notes were adequate as to procedures performed, (what he did in day to day treatment) but that the examination findings and charting of existing conditions were, in his opinion, inadequate. This information would have been determined in the examination at the initial appointment. Respondent's entry is "Denture consult - advised new F/F denture because patient is unable to function with existing F/F denture." In Dr. Cadle's opinion, the Respondent's entry fails to show detailed examination findings which can be found no place else. Also, he claims, the patient history and the dental history forms are inadequate. There is no evidence shown of sores, irritants or other abnormalities and there should be some explanation in the history as to why the patient checked "yes" to questions asked regarding condition. There should also be a diagnosis which relates to the dental conditions in the patient's mouth. Problems had been identified in Dr. Pikos' records, but these are not diagnoses and Dr. Cadle is of the opinion it is lax practice to accept another dentists observations. Dr. Pikos indicated to Respondent by letter that he had discussed some problems and possible alternatives with Mrs. Pollio and this letter was a part of Respondent's records. Nonetheless, Dr. Cadle felt this was not enough. Respondent also should have discussed all alternatives with her. In rebuttal, Respondent asserts that the use of the term "consult" in the records covers his discussion of implants, adhesives and surgery even though they are not specifically noted. He also claims he discussed her pain and other problems when he read the dental history form filled out by Mrs. Pollio's daughter. While it is found that Respondent engaged in the appropriate discussions with Mrs. Pollio, his records do not reflect that and, as such, are inadequate to clearly identify his diagnosis and treatment plan. Cadle found Respondent's treatment plan acceptable as such but other options which existed should have been discussed with the patient and noted in the records. None were so noted. Based on his review of all the available records, Dr. Cadle opined that Respondent's records failed to justify his treatment of Mrs. Pollio and did not meet the required standards as to examination findings and diagnosis. Dr. Cadle examined Mrs. Pollio on October 14, 1991 to evaluate the treatment provided by Respondent and the conditions existing in her mouth. In his report prepared after that examination he noted that the comparison between her old dentures, those she was wearing, and the new ones prepared for her by Respondent, (second set), showed a difference which related to her complaint. He found the maxilary portion of those done by Respondent to be inadequate as to the portion of the anterior teeth which were set differently in the old set, and this related to one of her problems. The "F" sound portion was too heavy and the "S" sound caused a slight whistle. The complaint that the anterior teeth were too long related to the way they were set - the inclination of the teeth. This gave her the feeling they were too big. All of this was visible in her mouth. He also believed the mandibular denture was inadequate because of an over-extension of the border. The edge of the denture extended beyond where it should stop. The reason for this was that the soft tissue in the area was attached higher on the ridge than would be expected. This could have been compensated for during the patient examination and diagnosis and noted in the treatment plan. The patient should have been advised of the condition and what its consequences could be. Respondent's records failed to show this was done. Taken together, Dr. Cadle was of the opinion that the dentures Respondent prepared were inadequate. There were actions he could have taken to correct this. At the initial examination and diagnosis he could have discussed the options available with the patient. Also, after construction of the dentures he could have corrected the maxilary denture by removing and resetting the six front teeth. He also could have reduced the mandibular borders. If that simple procedure had been done, according to Dr. Cadle, it might have resolved the problem. If he had contemplated doing this procedure, however, he would be required to warn Mrs. Pollio that to do it might reduce the strength of the denture and as a result, surgery might become a possibility. Dr. Cadle could find no evidence in the records that any of this was done except for a discussion toward the end of the doctor/patient relationship, but there was no notation as to what action he could take to correct any but one small part of the problem. None of the previous records showed any discussion of the problem or alternatives discussed. Based on the above, Dr. Cadle opined that Respondent's treatment of Mrs. Pollio failed to meet the minimum standards of performance as to both the maxillary and mandibular dentures. In that regard, the mental capacity of the patient should not enter into a determination of the standard of care to be provided. Dr. Ronald E. Myers practices dentistry in Spring Hill and is considered an expert in maxillofacial prosthodontics. He, too, reviewed the Respondent's records of his treatment of Mrs. Pollio and formed an opinion of Respondent's performance quite different from that of Dr. Cadle. He agrees with Cadle that Respondent's treatment records were acceptable for the treatment given but he opined, with regard to the lab requests, that there was sufficient data contained thereon to allow the lab technician to do what was required. A lab order is generally supplemented by either oral or written communications which permit the technician to know what is required. This has to be so since there is no way the dentist can write down all exact specifications on dentures. Here, the Respondent and the lab technician had an understanding of what the Respondent expected in each case as to types of acrylic, the base for the denture, and like matters, unless otherwise indicated. According to Mr. Eidenschink, the technician, he and Respondent had established certain basics as to materials and procedures to be used in all work done for Respondent. On the lab prescription, Respondent would specify what teeth he wanted, and frequently they would speak by phone about specific cases. This is, according to Myers, an accepted procedure. As to the lack of a return date, he admits they are lacking on the copies he saw. Evidence otherwise submitted indicates, however, that the slips examined by both experts, which came from the pad in the dentist's office, were duplicates whereas the original was given to the receptionist who set up a return appointment with the patient before sending that original, with a return date based on that appointment on it, to the lab. A substantial number of original lab slips, furnished by Respondent without objection by counsel for the Board subsequent to the hearing, all clearly reflected a finish date. As to the Respondent's chart dealing with Mrs. Pollio's existing condition, Dr. Myers admits the notes thereon are somewhat skimpy, but since Dr. Pikos' letter to Respondent indicated he had discussed the potential for surgery with Mrs. Pollio, Gibney could have relied on that. In any event, the diagnosis is there and the treatment plan evident is to fabricate complete new dentures. In his opinion, this is sufficient and meets standards. Based on all the above, Dr. Myers is of the opinion that Respondent's records, taken together, are adequate to meet the legal standards. Mrs. Pollio's undercut condition in her upper jaw did not contra- indicate full dentures. This condition does not always indicate the need for surgery. Here high tissue attachment in the front lower jaw can interfere with denture placement but a denture could be fabricated around it.. Psychologically, this can be a problem for denture wearers, many of whom, like Mrs. Pollio dislike wearing dentures and yearn for the days when they didn't have them. This being so, and coupled with her testy personality and her apparent inability to clearly comprehend the situation, Mrs. Pollio appears to be a difficult dental patient. Dr. Myers examined Mrs. Pollio on February 5, 1993. She brought both sets of dentures made for her by Respondent to the examination and was wearing her old dentures. He had her insert both sets of dentures made for her by Respondent and did speech tests and measurements with both. Then he mixed uppers and lowers from the sets in different combinations and when he asked her to give him the first set Respondent made, she gave him the lowers from both sets. Obviously, she was confused and she could not tell which was which from the feel in her mouth. Dr. Myers found the dentures to be made of high quality materials and fabricated to the "pleasure curve" Mrs. Pollio had developed in the old teeth. He did not care for the fit of the first set but this may have been due to the appearance instructions Mrs. Pollio gave to Respondent at that time. He found the second set to be "fine", however - fitting even better than her old set. As to the lower, the anterior flange was overextended into the mouth. This, however, could have been corrected by a minor procedure. Generally, this type of problem can be corrected if the patient and the dentist work together. Here, Myers feels Mrs. Pollio's frustration with the situation precluded this. The teeth were in the proper place, however, and with a possible realignments, they would have fit. Had Mrs. Pollio worked more with Respondent, he could have made them fit. The fact that Mrs. Pollio would go back to her old dentures from time to time could materially effect the fit of the new dentures because such a practice inhibits tissue adaptation. The current looseness of the dentures is due to tissue damage occurring during the past two years since Mrs. Pollio last saw Respondent. Dr. Myers is of the opinion that Respondent did all he could to help Mrs. Pollio accommodate to her new dentures. Unfortunately, it appears, she manipulated him. From all the evidence he observed, Dr. Myers also concluded that Respondent treated the patient properly. He is of the opinion that Respondent met community standards in both his dental records and history and the treatment given.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered by the Board of Dentistry finding Respondent, James W. Gibney, D.M.D., not guilty of incompetence or negligence and not guilty of both preparing inadequate work orders and failing to list examination findings and to chart existing conditions in his records, but guilty only of failing to include an adequate written diagnosis and treatment plan in his records, in violation of Section 466.028(1)(m), Florida Statutes. It is further recommended that Respondent be reprimanded. RECOMMENDED this 19th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 19th day of April, 1993. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. & 3. Accepted and incorporated herein. & 5. Accepted and incorporated herein. Accepted but dissatisfaction basis is as alleged by Mrs. Pollio. Accepted and incorporated herein. Accepted as claimed by Mrs. Pollio. Accepted. Accepted. Rejected as not proven by clear and convincing evidence. Accepted and incorporated herein. Rejected as not proven by clear and convincing evidence. Accepted in part and rejected in part. FOR THE RESPONDENT: No Proposed Findings of Fact submitted by Respondent. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Louis Kwall, Esquire 133 N. Ft. Harrison Avenue Clearwater, Florida 34615 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978. In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam. A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following: Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression Pin amalgam preparation Pin amalgam final restoration Endodontic anterior Endodontic posterior Cast gold preparation Cast gold restoration Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered. Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following: 0 = complete failure 1 = unacceptable dental procedure 2 = below minimal acceptable dental procedure 3 = minimal acceptable dental procedure 4 = better than minimally acceptable dental procedure 5 = outstanding dental procedure Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure. Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets. Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services. PROCEDURE NUMBER 5 Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure. Petitioner received the grades of 3, 2 and 2, for an overall score of 2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little. Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing. Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively. Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous." PROCEDURE NUMBER 6 Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability. The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous." PROCEDURE NUMBER 8 Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation. Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth. Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively. Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed. PROCEDURE NUMBER 9 Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish. Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6. The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry. PROCEDURE NUMBER 10 Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners. According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure. A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head. As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it. PROCEDURE NUMBER 11 Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld. Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 29th day of October, 1981. COPIES FURNISHED: Robert Dyer, Esquire Duckworth, Allen, Dyer and Pettis, P.A. 400 West Colonial Post Office Box 3791 Orlando, Florida 32802 Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
