Findings Of Fact Respondent was licensed as a dentist in Florida at all times pertinent to this proceeding. He specializes in oral surgery and restricts his dental practice to that specialty. Dr. James Spurling, who practices general dentistry, examined Stephen Rice on March 21, 1980. At that time, Rice mentioned an irritation to his lingual frenum (the tissue which connects the front of the tongue to the floor of the mouth). Spurling diagnosed this condition as ankyloglossia (tongue-tie), and advised Rice that he would refer him to Respondent for consultation. Spurling did not contact Respondent directly, but asked his secretary to complete the referral. Spurling's secretary then called Respondent's secretary who noted the referral as "frenectomy" on her records, but did not specify "lingual frenectomy" which is the procedure to correct the tongue-tie condition. On March 26, 1980, Spurling and Respondent along with several other Melbourne area dentists had lunch together. Spurling mentioned the tongue-tie patient to Respondent at that time and they briefly discussed this condition. Respondent saw Rice on April 4, 1980, for the consultation recommended by Spurling, and determined that Rice required a maxillary labial frenectomy. This procedure involves cutting connective tissue between the upper lip and the upper jaw. Respondent noted that Rice did have ankloglossia, but did not consider a lingual frenectomy necessary. Respondent made an appointment for Rice to have the maxillary labial frenectomy on April 11, 1980. Rice kept the appointment and Respondent performed the maxillary labial frenectomy on that date. Respondent introduced ample evidence to establish that the maxillary labial frenectomy he performed on Rice was beneficial to prevent Rice's front teeth from separating. Similarly, Respondent demonstrated that his reservations regarding the lingual frenectomy in Rice's case were reasonable since Rice did not suffer from a speech impediment. Respondent testified credibly that he explained the maxillary labial frenectomy to Rice in lay terminology and offered to answer any questions Rice had. Respondent did not, however, seek Rice's view on this matter or the error would have immediately become apparent. Rice had confidence in Respondent, who had removed his wisdom teeth several years earlier. Thus, he asked no questions in the belief that Respondent would carry out the procedure for which he had been referred by Spurling. Throughout the consultation and the surgery, Rice believed he was receiving the procedure to correct his tongue-tie condition, and did not realize an entirely different procedure had been performed until he left Respondent's office. This lack of awareness established that he avoided focusing his attention on either the discussion of the surgery or the surgery itself. Thus, Rice is partly responsible for the failure of communication. However, this failure of communication became possible initially because Respondent did not know or did not remember that the consultation referral was specifically for a lingual frenectomy and not merely a frenectomy. Because of this, he did not explain to Rice that the lingual frenectomy was, in his view, inappropriate. Rather, he explained the maxillary labial frenectomy which he believed was required, and which Rice erroneously assumed was the tongue-tie surgery he sought.
Recommendation From the foregoing it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 466.028(1)(p), Florida Statutes (1979), substantially as charged in Count II of the Administrative Complaint. It is further RECOMMENDED that the Petitioner issue a reprimand as provided in Subsection 466.028(2)(d), Florida Statutes (1979). DONE and ENTERED this 23rd day of July, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1982. COPIES FURNISHED: Benjamin Y. Saxon, Esquire Saxon and Richardson, P.A. 111 South Scott Street Melbourne, Florida 32901 Salvatore A. Carpino, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Honorable Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent was a dentist authorized to practice dentistry in the State of Florida, with offices located at 7900 Red Road, Miami, Florida. In her practice, Respondent specialized in pedodontics and orthodontics. At various times during her practice, Respondent employed Annabelle Winnan, Sandra Novotney, Mary Ellen Pelaez and Tonya Fogg as dental assistants. Duties and responsibilities allegedly delegated by Respondent to these employees are the subject matter of the allegations contained in Count I of the Administrative Complaint filed herein. Annabelle Winnan was employed in Respondent's dental office from October 11, 1966 through January 1, 1969, and again from July 15, 1974 through July 1, 1977. During the terms of her employment, Ms. Winnan received on-the- job training from Respondent, and in September of 1974, Ms. Winnan attended a formal training course for expanded duties for dental auxiliaries at Lindsay Hopkins Technical Education Center in Miami, Florida. In September of 1974, Ms. Winnan received a certificate from Lindsay Hopkins certifying her to perform expanded duties as a dental auxiliary. However, at no time prior to or during the terms of her employment with Respondent did Ms. Winnan ever receive any formal education as a dental hygienist, nor was she ever certified or licensed as a dental hygienist in the State of Florida. The allegations in Count I of the Administrative Complaint dealing with duties performed by Ms. Winnan relate solely to her second term of employment with Respondent from July 15, 1974 through July 1, 1977. In the Administrative Complaint, Petitioner alleges that Ms. Winnan, at the direction of Respondent, routinely "scaled" and polished patients' teeth; took alginate impressions for both study models and appliances; was directed to place and adjust these applicances in patients' mouths; was directed to fit and cement orthodontic bands for patients and to recement loose bands, even in the absence of an emergency; and routinely took dental X-rays, including cephalostat, cephalogram, panorex, and regular X-rays. Ms. Winnan left Respondent's employ January 1, 1969, because Respondent closed her practice due to ill health. When Respondent reopened her practice in July of 1974, Ms. Winnan returned to work for her, and was, for a time, Respondent's only employee. During the period of time from July 15, 1974 through September, 1974, when Ms. Winnan obtained her expanded duties certificate, Ms. Winnan, at Respondent's direction, routinely took both panorex X-rays and bite-wing radiographs of Respondent's patients. (T. 440). In addition to taking the X-rays, Ms. Winnan would develop those X-rays and submit them to Respondent for reading. In addition, during the period between July, 1974, and September, 1974, when Ms. Winnan received her expanded duties certificate, at the direction of Respondent she cleaned and polished the clinical crowns of the teeth of many of Respondent's patients, for the purpose of removing stains and other foreign matter. In addition, during this period Ms. Winnan used a metal instrument known to her as a "scaler" in the course of her cleaning and polishing patients' teeth. Ms. Winnan's use of the "scaler" was limited to the clinical crown of the patient's teeth, or that area above the gum line of the tooth. It is unclear from the record whether Ms. Winnan's activities in this regard constituted "scaling", as that term is commonly used in the dental profession. It is, however, clear that she used the instrument frequently at Respondent's direction. Ms. Winnan's activities with respect to the taking of X-rays, and cleaning and polishing the teeth of Respondent's patients continued, in the fashion indicated above, from the time Ms. Winnan received her expanded duties certificate through the time she left Respondent's employ in July of 1977. It appears from the record in this proceeding that Ms. Winnan also took alginate impressions of the mouths of Respondent's patients for study and diagnostic models both before and after she received her expanded duties certificate in September of 1974. However, although Ms. Winnan also testified that she took alginate impressions from which "Hawley" appliances were made for Respondent's patients, she was unable to identify the names of any such patients, the dates the impressions were taken, or the circumstances surrounding the taking of the impressions. Further, there is no showing in the record in this proceeding that any casts taken by Ms. Winnan were used for the fabrication of a Hawley appliance or any other appliance designed to be worn in the human mouth. Significantly, there is no showing in the record of Respondent's office practice during this period concerning how the impression was handled after it was taken to corroborate Ms. Winnan's assertion that impressions taken by her were ultimately fabricated into appliances for Respondent's patients. In addition, although the evidence establishes that Ms. Winnan took impressions for mouth study casts of Respondent's patients prior to receiving her expanded duties certificate, there is insufficient evidence on which to base a finding that these impressions were taken without the direct supervision of Respondent, or that the Respondent did not examine the patient's mouth prior to and following the taking of the impressions. Count I of the Administrative Complaint also charges, in part, that Respondent directed Ms. Winnan " . . . to place and adjust . . . appliances in . . . patients' mouth[s] ." Although there is some testimony in the record to show that Ms. Winnan on occasion "placed" appliances in patients' mouths, there is no showing that the simple act of "placing" such an appliance requires any special expertise, nor is there any showing that the doctor was not present and directly supervising Ms. Winnan's activities in this regard. With regard to the alleged "adjustment" of appliances by Ms. Winnan, there is no testimony to indicate the nature of these alleged "adjustments", nor is there any testimony to show that Respondent was not present and supervising any such activity, even assuming that it did occur. Although Respondent did no major orthodontics work until some time during 1977, she did engage in some isolated orthodontic work during the time of Ms. Winnan's employment. This orthodontic work included the utilization of orthodontic bands to accomplish movement in patients' teeth. The process of installing bands on patients' teeth included "pre-sizing", or selecting the appropriate band size, "contouring" or festooning" the band to fit the contour of the tooth, placing cement in the band and, finally, placing the band on the tooth. The evidence establishes that during her second period of employment from 1974 through 1977, Ms. Winnan "pre-sized" orthodontic bands, at times when Respondent was in another room, placed cement in the bands, and placed the bands on the patients' teeth. After the bands were installed by Ms. Winnan, the Respondent would customarily check Ms. Winnan's work before discharging the patient. During a period in the months of June and July, 1977, Respondent took leave from her dental office to vacation in Spain. During Respondent's absence from her office, Ms. Winnan was assigned by Respondent to dispense orthodontic appliances to Respondent's patients, which appliances had earlier been prescribed by Respondent. In addition, Ms. Winnan was directed to dispense elastics for, use with orthodontic appliances to certain of Respondent's patients. However, during Respondent's absence from her office Ms. Winnan resigned her position with Respondent without having dispensed any orthodontic appliances or elastics. After Respondent returned from vacation and discovered that Ms. Winnan had resigned, Respondent filed a lawsuit against Ms. Winnan for breach of an alleged oral employment contract. This lawsuit was eventually resolved in favor of Ms. Winnan. However, Ms. Winnan testified that she would probably not have complained to the Board of Dentistry about Respondent's delegation of duties to her in the absence of the lawsuit. Sandra Novotney was employed in Respondent's dental office from October 10, 1976 through June, 1977; again during the months of August and September of 1977; and, finally, from December of 1978 through June of 1979. At various times Miss Novotney's duties included both secretarial work and chair- side assistance to Respondent. Miss Novotney has never received any formal training as either a dental hygienist or dental auxiliary, either prior to or during the time of her employment with Respondent, nor has she ever received licensure or certification as a dental hygienist or a dental auxiliary. Count I of the Administrative Complaint, in part, charges that while Ms. Novotney was employed with Respondent, Respondent directed her to " . . . routinely [take] impressions for both study casts and appliances that were used for patients . . ." and " . . . routinely [adjust] and [fit] orthodontic bands for patients, and [place] arch wires on patients." During her second period of employment with Respondent, Ms. Novotney took alginate impressions of the mouths of certain of Respondent's patients. In her testimony at the final hearing Ms. Novotney was unable to recall the names of any patients from whom she took impressions or the dates that those impressions were taken. It appears from the record that orthodontic appliances made from impressions taken of Respondent's patients' mouths were not fabricated in Respondent's office, but that impressions were mailed to a laboratory for fabrication of appliances. Accordingly, absent a demonstrated knowledge of the office procedures concerning the handling of these impressions once taken, it would be difficult, if not impossible, to determine the purpose for which these impressions were used. In this connection, Ms. Novotney gave no testimony concerning the handling of the impressions taken by her after they were removed from the mouths of the patients, instead flatly stating that the impressions were used for the fabrication of appliances. Given Ms. Novotney's testimony, which was uncorroborated by any other evidence and was denied by Respondent, there is insufficient evidence in the record in this proceeding upon which to base a conclusion that any impressions taken by Ms. Novotney were used to fabricate appliances to be worn in the human mouth. In addition, Ms. Novotney's testimony concerning the taking of impressions failed to establish that impressions taken for study casts were taken without the direct supervision of Respondent, or that the Respondent did not examine the patient's mouth prior to and following the taking of the impressions. During her third period of employment with Respondent, Respondent would, on occasion, allow Ms. Novotney to "pre-size" orthodontic bands by placing them on a patient's tooth. In addition, Ms. Novotney, at Respondent's direction, cemented orthodontic bands on a patient's tooth by placing the band on the tooth and having the patient bite down on a flat instrument in order to correctly seat the band. Ms. Novotney accomplished this procedure only with Respondent's presence in the office, although Respondent would, on occasion, not be physically present in the operatory when Ms. Novotney was actually cementing the band. However, Respondent routinely checked the patients on whom Ms. Novotney cemented bands before the patient was discharged. Although it is alleged in the Administrative Complaint that Ms. Novotney routinely "adjusted" orthodontic bands at Respondent's direction, it is clear from the testimony in this proceeding that Ms. Novotney never made any adjustment to orthodontic bands. Orthodontic bands are often connected by arch wires in order to provide the torque necessary to achieve the desired tooth movement. After bands are placed on a patient's teeth, an arch wire must be pre-sized and cut to fit the patient's mouth, and then must be threaded through brackets located on the orthodontic bands and finally secured. It appears from the evidence in this proceeding that Ms. Novotney, at Respondent's direction, placed arch wires in patients' mouths and secured them in place by putting an elastic band around the arch wire and around the orthodontic band cemented to the tooth. Ms. Novotney's duties with respect to placing and securing arch wires occurred during her third period of employment with Respondent. In addition to her other duties outlined above, it also appears from the record that Ms. Novotney polished or cleaned the clinical crowns of patients' teeth, and polished at least one amalgam restoration during her employment by Respondent. Respondent was not, however, charged in the Administrative Complaint with allowing Miss Novotney to perform these procedures, and no action will, therefore, be recommended against Respondent in this Recommended Order in connection with this activity. Mary Ellen Pelaez was employed in Respondent's dental office from August of 1977 through March of 1979. During her employment with Respondent, Ms. Pelaez attended the expanded duties course at Lindsay Hopkins Technical Education Center. Ms. Pelaez received her extended duties certificate from Lindsay Hopkins in August of 1978. At no time material hereto was Ms. Pelaez ever licensed or certified as a dental hygienist in the State of Florida. In the Administrative Complaint, Petitioner charges that Ms. Pelaez, while not under the direct supervision of Respondent, ". . . routinely took impressions for study casts and appliances; polished, cleaned, and scaled teeth; selected, pre-sized, and cemented-orthodontic bands." During the time she was employed by Respondent, Ms. Pelaez, at Respondent's direction, took alginate impressions of Respondent's patients' mouths for the purpose of making study casts, retainers and appliances. Ms. Pelaez would pour the impressions, cut them down, and Respondent would mark the impression for fabrication of an appliance or a retainer, and the impression would then be mailed to a laboratory for fabrication. After Ms. Pelaez had taken the impression, and after Respondent had marked it appropriately, a note would be placed with the impression indicating whether Respondent wished a retainer or an appliance made for the patient from the impression. During the time she was employed by Respondent, Ms. Pelaez both before and after she received her expanded duties certificate, cleaned and polished the clinical crowns of the teeth of many of Respondent's patients for the purpose of removing stains and other foreign matter. To accomplish this task, Ms. Pelaez used an electronically-run instrument and applied pumice paste to the teeth with a rubber cup. In addition, Ms. Pelaez used an instrument known to her as a "scaler", to assist in removing foreign matter from patients' teeth. Respondent often would not be in the operatory with Ms. Pelaez and the patient while the cleaning and polishing of the patient's teeth was occurring, but Respondent would, in most instances, check the patient's mouth after the procedure was performed by Ms. Pelaez. At some point after she received her expanded duties certificate, Ms. Pelaez advised Respondent that she felt that she could not legally continue to "scale" teeth. Respondent replied that as long as Ms. Pelaez was working for her she would do as she was instructed. In addition to the aforementioned duties, during her employment with Respondent, both before and after she received her expanded duties certificate, Ms. Pelaez, at the direction of Respondent, selected, pre-sized, and cemented orthodontic bands on the teeth of many of Respondent's patients. In many cases, while Ms. Pelaez was selecting and cementing these orthodontic bands, Respondent was not physically present in the operatory with her to directly supervise these activities. However, it appears from the evidence, that Respondent routinely examined these patients after the bands were cemented by Ms. Pelaez. Ms. Pelaez was discharged by Respondent in March of 1979. Ms. Pelaez filed a claim for unemployment compensation, which claim was contested by Respondent, who claimed that Ms. Pelaez was fired for "insubordination." The unemployment compensation claim was apparently resolved in favor of Ms. Pelaez. Tonya Fogg was employed in Respondent's office from January 2, 1979 through October 31, 1979. At no time, either prior to or during her employment with Respondent, did Ms. Fogg receive any formal training either as a dental auxiliary or a dental hygienist, nor was she ever licensed or certified as a dental auxiliary or a dental hygienist in the State of Florida. Count I of the Administrative Complaint charges, in part, that Ms. Fogg, at Respondent's direction, ". . . routinely took impressions for study casts and appliances, selected, pre-sized, and inserted orthodontic bands; and adjusted and placed arch wires . . ." The evidence in this proceeding establishes that, during the period of her employment in Respondent's office, Ms. Fogg, at Respondent's direction, took alginate impressions of the teeth of many of Respondent's patients for the purpose of making study models and for the fabrication of retainers or positioners. After Ms. Fogg took these impressions, she would place them in a box for mailing to a laboratory for fabrication, and was directed by Respondent to write a prescription for inclusion with the impression asking that either a retainer or positioner be prepared by the laboratory. Ms. Fogg was also on numerous occasions directed by Respondent to select, contour and cement orthodontic bands on the teeth of many of Respondent's patients. Respondent had instructed Ms. Fogg and other dental assistants employed in her office in the use of a "Mizzy stone," a heatless stone used to contour or "festoon" orthodontic bands to fit a patient's tooth. Procedures of this nature performed by Ms. Fogg were often accomplished without the presence of Respondent in the operatory. In addition, Ms. Fogg, and other dental assistants employed in Respondent's office, selected, pre-sized, installed and removed arch wires used in the mouths of some of Respondent's patients. These procedures were performed by Ms. Fogg at Respondent's direction, and included making the proper determination as to arch form and symmetry, and the performance of final adjustments on the arch wire. Ms. Fogg is apparently a close personal friend of Ms. Pelaez. As indicated above, Ms. Pelaez filed an unemployment compensation claim after she was discharged from Respondent's employ Ms. Fogg resigned from her position with Respondent on October 31, 1979, and the next day appeared as a witness on behalf of Ms. Pelaez at a hearing on Ms. Pelaez' unemployment compensation claim. In Count II of the Administrative Complaint, Respondent is charged with various types of physical mistreatment of the following patients: John (last name and age unspecified); Jeff Heggins (age 4); Craig Beggins (age 10); Edwin Rivera (age 3-1/2); Shana Hornwhite (age unspecified) Terry Ruiz (age unspecified) ; Eric Lumkin (age unspecified); Gregory Roberts (age 7); Catherine Gruber (age 12); and Gary Andrews (age unspecified). The incidents involving these patients are alleged to have occurred during a period from "approximately" October of 1976 through October of 1979. At all times material hereto, Respondent's cumary office practice was to have parents of her children patients wait in the office reception area while procedures were performed on the patients in an operatory separated from the reception area by a locked door. As a result, the only potential eye witnesses to most instances of alleged physical mistreatment of patients were the patients themselves, Respondent's dental assistants, and the Respondent. None of the patients who were allegedly mistreated by Respondent were called as witnesses. Respondent categorically denied having in any way mistreated the patients as alleged in the Administrative Complaint, instead contending that the most that had ever occurred was the use of "behavioral management" techniques commonly recognized in the dental profession. However, Ms. Winnan, Ms. Pelaez and Ms. Fogg each testified that they had personally observed various of the alleged incidents of physical mistreatment. Ms. Winnan testified that at some time between June of 1976 and July of 1977, during the course of Respondent's treatment of a patient named "John", whose last name Ms. Winnan could not remember, the child began to cry. In an effort too stop the child from crying, Ms. Winnan testified that Respondent placed her hand over the child's nose and mouth until he stopped crying, but that when Respondent removed her hand, the child again began to cry, whereupon Respondent slapped him across the face. When the child still persisted in crying, Ms. Winnan testified that Respondent stuck her finger down the child's throat and that when Respondent removed her finger it was covered with blood. Ms. Winnan did not report this incident to the parents of the child, nor to the Board of Dentistry until two to three years after it had occurred. Respondent denies that the incident ever occurred and, given Ms. Winnan's inability to more fully identify the child or the date on which the incident is alleged to have occurred, it is hard to conceive how Respondent could do much more than that to defend against these allegations. Although Ms. Winnan's testimony regarding this incident is not incredible, it is no more credible than Respondent's denial of the incident. Accordingly, there is insufficient evidence in the record of this proceeding on which to base a finding of fact that the incident occurred as alleged. On December 1, 1978, Respondent was treating a patient named Jeffrey Beggins. In the course of her treatment of this patient, Respondent slapped Jeffrey Beggins' face with sufficient force to leave a reddened handprint. The reason or reasons for Respondent having slapped the child are not clear from the record. This incident was witnessed by Ms. Pelaez. On the same day that this incident occurred, Respondent advised Ms. Pelaez that Respondent had received a call from Jeffrey Beggins' mother complaining about the slapping incident. Respondent advised Ms. Pelaez that the child's mother had been invited to come to the office for a conference, and that when the child's mother came into the office, Ms. Pelaez should advise the mother that the slapping incident had never occurred. The child's mother did not keep the office conference with Respondent, but did not return her children to Respondent for treatment thereafter. Mrs. Beggins' testimony at the final hearing in this cause regarding her telephone conversation with Respondent is consistent with Respondent's recollection of the subject matter discussed between them. There is insufficient credible evidence in the record in this proceeding to establish that Respondent physically mistreated or abused Craig Beggins, Shana Hornwhite, Terry Ruiz, Eric Lumkin, Catherine Gruber or Gary Andrews. There was no testimony elicited at the final hearing in this cause concerning the allegations in Count II of the Administrative Complaint with respect to mistreatment or abuse of patients Edwin Riviera or Gregory Roberts. Respondent possesses an extraordinary record of academic accomplishment in the field of dentistry. In addition, she enjoys a very good reputation in both the medical and dental communities in Dade County, Florida. There were numerous and profound conflicts in the testimony of several of the witnesses testifying in this proceeding. In attempting to resolve these conflicts, the Hearing Officer took into account the appearance, demeanor and manner of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, and the consistency of their testimony with the testimony of other witnesses regarding the facts at issue herein. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that these proposed findings of fact have not been incorporated in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as being irrelevant to the issues decided herein.
The Issue The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
The Issue Whether disciplinary action should be taken against Respondent's medical license, number ME 0043028, based upon violations of the Medical Practice Act, Chapter 458, Florida Statutes, as alleged in the three Administrative Complaints filed against Respondent in these consolidated proceedings.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, and Chapters 455 and 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0043028. Respondent was selected for a residency program in general surgery at Mount Sinai Hospital, which is a five year program. Respondent's participation in the general residency program at Mount Sinai was terminated during his third year of the program. Senior surgical residents in the Mount Sinai program are selected from among fifth year residents. Respondent did not attain the status as a senior surgical resident. Respondent has no formal training in plastic or cosmetic surgery. Respondent is not a plastic surgeon and is not qualified to practice plastic or reconstructive surgery. FACTS RELATED TO COUNTS 1-3 OF DOAH CASE NO. 92-5795 On or about January 23, 1990, patient J. M., a twenty-six (26) year old female, presented to Respondent's office for consultation. Respondent performed a physical examination of J. M. and made a diagnosis of breast hypoplasia. Breast hypoplasia is a general term used to describe small breasts. Respondent failed to obtain a thorough initial medical evaluation and medical history for patient J. M. On or about January 26, 1990, Respondent performed a bilateral augmentation mammoplasty on patient J. M. A bilateral augmentation mammoplasty is a procedure in which the surgeon dissects a pocket behind the breast tissue or behind the muscle that sits under the breast tissue and implants a prosthesis in the pocket in order to augment a patient's breasts. Respondent failed to make a descriptive operative report of the procedure he performed on J. M. Postoperatively, scar tissue developed around the prosthesis that had been implanted in J. M.'s right breast, and her right breast hardened. On March 6, 1990, Respondent performed a closed capsulotomy on patient J. M.'s right breast. A closed capsulotomy is a procedure that exerts pressure on a women's breast that has an implant in it in order to try to fracture the scar around the implant and thereby release the spherical capsular contracture (hard breast). This was an acceptable procedure and resolved J. M.'s complaint. On or about September 4, 1990, Respondent performed a bilateral mastopexy and abdominal liposuction on patient J. M. A mastopexy is a breast lift procedure in which excess skin is removed in order to raise the breast and the nipple areola complex to a preferred position. Respondent failed to make a descriptive operative report of these procedures. Respondent failed to order the appropriate laboratory studies prior to these procedures. On or about October 12, 1990, patient J. M. presented to Respondent complaining of a scab peeling off of her breast with the implant being visibly exposed. Respondent treated patient J. M. with Neosporin ointment and Duricef. Respondent then sutured the wound closed. Neosporin is a local bacterial ointment used to treat local wound infections. Duricef is an oral antibiotic. Respondent should have obtained a culture of the wound, removed patient J. M.'s implant, irrigated the wound, administered antibiotics, and then closed the wound. After a culture was obtained, Respondent should have placed the patient on antibiotics, and then after receiving the culture report, modified the antibiotic as necessary. Respondent failed to practice medicine with an acceptable level of care in regards to patient J. M., in that Respondent failed to recognize that patient J. M. had developed a serious infection and failed to appropriately treat the infection. Respondent is not trained to perform mastopexy, augmentation, or liposuction procedures. Respondent performed breast implantation surgery and liposuction procedures on patient J. M. without having adequate training. FACTS RELATED TO COUNTS 4-8 OF DOAH CASE NO. 92-5795 A. M. S. is a female who was 34 years old at the time of the formal hearing. On or about January 25, 1991, A. M. S. presented to Respondent's office. Patient A. M. S. desired fuller lips. Respondent's medical records lists the "Paris Lips" procedure as the reason for her visit. "Paris Lips" is a procedure performed by Respondent during which liquid silicone is injected into the patient's lips. In the early 1970s, Dow Corning sought a new drug application from the United States Food and Drug Administration (FDA) for use of silicone as an injectable substance for use in human tissue. Silicone occurs in either solid or liquid form. A study was authorized by the FDA which allowed eight physicians, seven plastic surgeons and a dermatologist, to carry out injections in certain types of human subjects, primarily in the face. After these studies, the doctors involved issued a statement which concluded that the risk and dangers of liquid silicone injections far outweighed the benefits, and the new drug application was withdrawn. At the times pertinent to this proceeding, the use of liquid silicone was under FDA control. In 1991, liquid silicone was considered to be an experimental substance. Now it has been banned from use completely. The injection of liquid silicone is not an accepted procedure in the medical community. The use of liquid silicone without an Investigational Device Exemption is a violation of Federal law. Respondent has never had authorization from the FDA for the use of liquid silicone for facial or soft tissue augmentation. Patient A. M. S. paid Respondent $500.00 for the "Paris Lips" procedure. On or about January 31, 1991, Respondent injected 2 cc's of liquid silicone into the lips of patient A. M. S. Neither Respondent nor his staff performed any physical examination on patient A. M. S. prior to the injections. Respondent's medical records indicate that he explained the benefits and risks of silicone to patient A. M. S. and that patient A. M. S. agreed to the procedure. Respondent told patient A. M. S. that there would not be any side effects, just a little swelling and some bruising. The testimony of A. M. S. established that Respondent did not adequately discuss the risks or benefits of liquid silicone injections with patient A. M. S. Following the procedure, patient A. M. S. noted that her lips were very swollen and red. Approximately 2-3 weeks after the procedure, patient A. M. S. presented to Respondent's office complaining that he had placed too much silicone in her lips and that her lips were uneven and appeared deformed. In response to these complaints, Respondent injected additional liquid silicone into patient A. M. S.'s lips on February 8, 1991, and March 4, 1991, in an effort to even out the lips. After these additional injections of silicone, patient A. M. S. felt her appearance was horrendous and it affected her job as a court reporter. Patient A. M. S. expressed her dissatisfaction to Respondent. Subsequently, patient A. M. S. sought additional opinions from other plastic surgeons, including the opinion of Dr. Harold Norman. Dr. Norman took pictures of patient A. M. S. and told her to return in two months. Patient A. M. S. sought the opinion of Dr. Anthony Wolfe. Dr. Wolfe told patient A. M. S. that nothing could be done for her condition, in that there is no easy way to remove liquid silicone. Patient A. M. S. then sought the opinion of Ernest DiGeronimo, M.D. Dr. DiGeronimo performed four surgeries in an effort to correct the effects of Respondent's liquid silicone injections on patient A. M. S. Each surgery by Dr. DiGeronimo cost patient A. M. S. $800.00. Respondent inappropriately injected liquid silicone into the lips of patient A. M. S. Respondent exploited patient A. M. S. for financial gain. Respondent committed gross malpractice in his treatment of patient A. M. S. by injecting her lips with liquid silicone. FACTS RELATED TO COUNTS 9-11 OF DOAH CASE NO. 92-5795 At all times material hereto, on numerous and diverse occasions, Respondent has performed on male patients a procedure he calls the "Circumferential Autologous Penile Engorgement," hereinafter "CAPE". The CAPE procedure is used to enlarge the girth of the penis by taking fat from one part of the body and injecting it into the walls of the patient's penis. The CAPE procedure was developed by Respondent. Respondent is not trained to perform the CAPE procedure, and the procedure is not recognized as being a medically acceptable procedure. On or about November 19, 1991, DPR Investigator Thomas Daniels, presented to Respondent's office in an undercover capacity using an assumed name, that of patient T. M. Mr. Daniels discussed the CAPE procedure surgery with Respondent and scheduled an appointment with Respondent to undergo the CAPE procedure on or about December 3, 1991. Respondent indicated that the CAPE procedure was a very low risk procedure. In fact, the CAPE procedure has potentially serious complications including, but not limited to, hematoma, infection, loss of the patient's penis, necrosis, functional problems, and scar tissue. The statements made by Respondent to Mr. Daniels regarding the CAPE procedure were deceptive, fraudulent, and untrue. On or about December 5, 1991, Petitioner issued subpoena number A023965 to Respondent in order to obtain Respondent's complete medical records of Patient T. M. (Mr. Daniels.) The records of Mr. Daniels' undercover visit of November 19, 1991, state in part the following: "Rectal exam requested by patient, no abnormalities." Neither Respondent, nor his staff, conducted a rectal examination on Mr. Daniels. FACTS RELATED TO COUNTS 12-13 OF DOAH CASE NO. 92-5795 Pursuant to Section 455.24, Florida Statutes, in any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider licensed under Chapter 458, Florida Statutes, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. Around October 1991, Respondent placed an advertisement in The Miami Herald newspaper for a procedure he defined in the advertisement as "The Closed Neck Lift," and described it as "an exciting new procedure" which leaves "no scar." The aforementioned advertisement also offered a free consultation and video imaging. The aforementioned advertisement failed to include the disclaimer noted in Section 455.24, Florida Statutes. In a letter to a DPR investigator dated November 20, 1991, Respondent described the aforementioned closed neck lift procedures as performed by the use of liposuction. The aforementioned procedure has been practiced in the United States for approximately the past ten (10) years and is not "new." The aforementioned procedure leaves a small scar. On or about October 16, 1991, Respondent placed an advertisement in The Fort Lauderdale Sun-Sentinel which offered a free consultation and video imaging session. The October 16, 1991, advertisement failed to include the disclaimer statement required by Section 455.24, Florida Statutes, when free or discounted medical services are being offered. Respondent failed to include the disclaimer required by Section 455.24, Florida Statutes, in regards to the October 1991 Miami Herald and the October 1991 Fort Lauderdale Sun-Sentinel advertisement. FACTS RELATED TO DOAH CASE NO. 92-5794 On or about January 7, 1992, patient C. M. R., a 47 year old male, presented to Respondent's office for a first consultation. Approximately twenty years prior to his visit to Respondent, Patient C. M. R. had undergone aortic valve replacement and the insertion of a pacemaker. He had been on the drug Coumadin for approximately twenty years. Respondent's medical records for patient C. M. R. fail to reflect that patient C. M. R. had a pacemaker. Respondent knew that patient C. M. R. had been taking Coumadin for the past twenty years. Coumadin is an anticoagulant drug used to prevent the development of blood clots. A recognized effect of Coumadin is that it causes patients who are taking it to bleed following any surgical procedure. Respondent's plan for patient C. M. R. included liposuction of the face and neck. Patient C. M. R. was to also undergo a CAPE procedure. Respondent's medical records for patient C. M. R. fail to reflect that Respondent obtained the patient's cardiology records, or as an alternative, obtained a cardiology consult prior to allowing patient C. M. R. to undergo elective cosmetic surgery. Respondent should have obtained medical clearance from a cardiologist or internist prior to patient C. M. R.'s surgery. On April 23, 1992, patient C. M. R. returned to Respondent's office to schedule surgery. Patient C. M. R.'s blood was drawn and pre-operative blood tests included a thyroid test, electrolytes, bone, renal, ferritin studies, a complete blood count, and an HIV test. No protime, prothrombin time, or clotting time was obtained by Respondent. A prothrombin time is a test that measures the level of the blood's anticoagulation. On the evening of May 1, 1992, patient C. M. R. presented to Respondent's clinic for surgery. Patient C. M. R.'s wife, L. M. R., dropped him off at Respondent's clinic at approximately 8:00 p.m. on May 1, 1992. Patient C. M. R. was prepared for surgery. An intravenous solution of 1,000 cc's of lactate of ringers was administered. Papaverine 30 milligrams was injected into the penis, and 3 cc's of Xylocaine 1 percent with Epinephrine (a topical anesthetic) were used for local anesthesia. Respondent extracted 100 cc's of fat from the patient's abdomen and neck. Respondent performed the CAPE procedure using 60 cc's of the fat extracted from the abdomen. Respondent placed a pressure dressing on the neck and placed packing in the buccal space of patient C. M. R.'s cheeks. Respondent's medical records for patient C. M. R. indicated that during the early morning hours on May 2, 1992, C. M. R. began oozing blood from his right cheek while in recovery and was taken back to the operating room. At approximately midnight, Respondent informed L. M. R., who had previously returned to Respondent's clinic, that patient C. M. R. was suffering bleeding complications from one of his cheeks. At approximately 1:30 a.m., Respondent called a Dr. Zufi and requested a consultation. Dr. Zufi arrived at Respondent's clinic at approximately 2:00 a.m. and went directly to the operating room to consult with Respondent. Digital pressure and Epinephrine were used to control the oozing from patient's C. M. R.'s right cheek. Patient C. M. R. was then returned to recovery. L. M. R. asked Respondent if it was necessary to transport C. M. R. to a hospital. Respondent informed L. M. R. that it was not necessary to transport the patient to a hospital, and C. M. R. remained in the recovery room at Respondent's clinic. On May 2, 1992, at 11:30 p.m., a sublingual pill of Nitroglycerin was given because patient C. M. R. complained of midline discomfort. On May 3, 1992, at approximately 1:10 a.m., Respondent was awakened by the monitor alarm with the monitor reading oxygen saturation at 80 percent and the pulse at 90. Respondent found patient C. M. R. unresponsive and his pupils dilated. Respondent called "911" and Dr. Zufi for assistance. The Emergency Medical Technicians (EMTs) arrived at approximately 1:16 a.m. The EMTs entered Respondent's clinic and observed patient C. M. R. The EMTs observed a pulse meter, but did not observe a blood pressure monitor or crash cart. Respondent was attempting to suction the patient when the EMTs arrived. Patient C. M. R. was very discolored, bruised, and was suffering a lot of edema. Patient C. M. R. had bandages wrapped around his face. When questioned about the patient's discoloration, Respondent indicated that the patient had been taking Coumadin. The EMTs placed patient C. M. R. on a cardiac monitor. The cardiac monitor revealed the patient to be in full cardiopulmonary arrest. At this time, patient C. M. R. had a idioventricular rate of approximately 20. An idioventricular rate is an electrical impulse in the ventricles only, where the heart is in the last death stages with no pulse. The EMTs made two unsuccessful attempts to intubate C. M. R. The EMTs eventually successfully intubated the patient with a computube. A computube has two lumens (openings). One lumen is a breathing passage and the other is a blind passage. A computube is a foolproof intubation system. The construction of the computube allows it to function in either the trachea or the esophagus. Patient C. M. R.'s heart rhythm remained idioventricular. The EMTs changed the patient's IV and administered medication to the patient. Patient C. M. R. remained unresponsive despite the medications and other efforts to revive him. Respondent indicated to the EMTs that the patient was hypovolemic and needed to go to the emergency room. Patient C. M. R. was then transported to Mercy Hospital where he was pronounced dead at approximately 1:56 a.m. on May 3, 1992. At approximately 9:15 a.m. on May 3, 1992, J. David Charlesworth, M.D., the Associate Medical Examiner at the Dade County Medical Examiner's Department, performed an autopsy on patient C. M. R. The autopsy report indicates, among other things: extensive purple-red contusions surrounding the incision in the lower abdomen, extending down to, and involving the scrotum; extensive blue-purple contusion covering the right flank and anterior abdominal wall; blue-purple contusion covering the anterior neck up to and including the jaws; contusion extending up to the ear lobes and onto both cheeks; upper eyelids of both eyes suffused with extravasated blood; soft tissues of both sides of the neck suffused with extravasated blood extending from the jaw line down to the prevertebral fascia and down to the clavicles; hemorrhagic and fat globules seen in blood pool collected in the pelvic area; and large abdominal wall hematoma. The cause of death was reported as cardiorespiratory arrest following liposuction and other plastic surgery procedures, with interstitial hemorrhages of the face, neck, abdomen, and legs. The patient suffered interstitial hemorrhages (bleeding into tissues). The computube in patient C. M. R.'s esophagus did not contribute to the patient's death. A cardiac pathological examination of patient C. M. R.'s heart revealed that the heart was slightly larger than normal, had scars covering the heart, and had a prosthetic aortic valve. Neither his prosthetic aortic valve or his pacemaker caused C. M. R.'s death. Respondent failed to adequately assess patient C. M. R.'s condition, in that Respondent failed to obtain a prothrombin time (PT), or a partial thromboplastin time (PTT) preoperatively. Respondent failed to practice medicine with an acceptable level of care in regard to patient C. M. R. in that Respondent should have discontinued the use of Coumadin prior to proceeding with this elective surgery. In general, patients who are anticoagulated with Coumadin who require surgery are admitted to a hospital and weaned off of Coumadin prior to surgery. Surgery is performed with the patient in a normal hemostatic status. Within 24 hours following surgery, anticoagulation medication is reinstituted. Respondent did not have any hospital staff privileges from 1988 to the present. Hospital staff privileges are obtained after an application is made to a hospital following the physician's completion of his training in order to be credentialed by that hospital to practice his specialty at that hospital. Because Respondent did not have hospital privileges, he did not have access to a hospital to admit C. M. R. so that he could continue his treatment after the complications occurred. It is highly unusual for a surgeon to practice his profession without hospital privileges. Despite postoperative bleeding complications, Respondent failed to refer Patient C. M. R. to a hospital emergency room in a timely, and appropriate manner. Even without hospital privileges, Respondent could have referred patient C. M. R. to a hospital emergency room. Respondent's failure to timely refer patient C. M. R. significantly contributed to the patient's death. Respondent failed to practice medicine with an acceptable level of care in regards to patient C. M. R. in that Respondent failed to: perform a thorough initial evaluation and history of the patient; preoperatively obtain a prothrombin time (PT), or a partial thromboplastin time (PTT); discontinue the use of Coumadin and/or take other precautions before proceeding with cosmetic surgery; and failed to refer the patient to a hospital emergency room in a timely and appropriate manner when C. M. R. began to ooze blood immediately after the surgery. Respondent failed to properly diagnose all medical and surgical problems of patient C. M. R. prior to the performance of surgery and failed to properly manage the postsurgical care of patient C. M. R. Respondent committed gross malpractice in regards to patient C. M. R. FACTS RELATED TO DOAH CASE NO. 92-6588 Respondent placed an advertisement in The Miami Herald on or about December 5, 1990, which purportedly offered a new technique in cosmetic surgery, specifically, lip augmentation. Respondent advertised lip augmentation, or "Paris Lips," as a "perfectly safe and painless procedure" which creates fuller, more sensuous lips. The advertisement does not indicate how Respondent's procedure creates fuller lips. Respondent's lip augmentation procedure is performed by injecting silicone into a patient's lips. Respondent's "Paris Lips" advertisement is false, deceptive, or misleading, in that it indicates the "Paris Lips" procedure is a "perfectly safe and painless" procedure. The dangers of silicone injections include infection bleeding, hematomas, permanency, and/or migration of the silicone. The use of liquid silicone for the augmentation of human tissue is tightly regulated by the Food and Drug Administration (FDA) and liquid silicone is only to be used by those physicians under FDA approval. Respondent does not have, nor has he ever had, FDA approval to perform augmentation of human tissue by use of liquid silicone. Respondent's "Paris Lips" advertisement is false, deceptive, or misleading, in that it fails to indicate that the "Paris Lips" procedure is performed by injecting liquid silicone into the patient's lips. Respondent's advertisement further offered the "Paris Lips" augmentation procedure "for a limited time only, for $500.00," and a free consultation and video imaging session. Respondent's "Paris Lips" advertisement fails to include the necessary disclaimer required by Section 455.24, Florida Statutes, when free or discounted services are being offered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which adopts the findings of fact and conclusions of law contained in this Recommended Order and which: Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count 2 of DOAH Case No. 92-5795. It is recommended that no separate penalty be imposed for this violation. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 3 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 4 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(q), Florida Statutes, as alleged in Count 5 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(n), Florida Statutes, as alleged in Count 6 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 7 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count 8 of DOAH Case No. 92-5795. It is recommended that no separate penalty be imposed for this violation. Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 9 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 10 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(k), Florida Statutes, as alleged in Count 11 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(d), Florida Statutes, as alleged in Count 12 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(g), Florida Statutes, as alleged in Count 13 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-5794. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-5794. It is recommended that no separate penalty be imposed for this violation. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 3 of DOAH Case No. 92-5794. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in Count 4 of DOAH Case No. 92-5794. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(d), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-6588. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(g), Florida Statutes, as alleged in Count 2 of DOAH Case No. 92-6588. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of December 1993. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. COPIES FURNISHED: Arthur B. Skafidas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Ricardo Samitier-Cardet 5831 Southwest 26th Street Miami, Florida 33155 Dorothy Faircloth, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
Findings Of Fact Petitioner, Dr. Gary Sloan, was an unsuccessful candidate for the dental examination in December, 1988. The dental examination is comprised of three portions: the written examination; the diagnostic skills examination; and the clinical (or practical) examination. A final grade of 75 is required on the written examination and the diagnostic skills examination. The minimum score required on the clinical examination is 3.0. Petitioner received scores of 88 and 77 on the written and diagnostic skills examinations, respectively. However, Petitioner received a score of only 2.80 on the clinical examination. Procedures performed in the clinical examination are graded by three examiners pursuant to a blind grading system. The grade for each procedure is determined by averaging the scores of the three examiners. Each procedure is graded in a holistic manner and not as a numeric point deduction for errors and mistakes. The highest and lowest scores an examiner can award for a particular procedure are 5 and 0, respectively. Each examiner may make comments on the score given for each procedure. Comments by an examiner are mandatory for any failing score and optional for any other score. Procedure Number 01 required Petitioner to perform a periodontal exercise on a live patient. The periodontal exercise involved a definitive debridement with a minimum of five teeth. Procedure Number 06 required Petitioner to perform an endodontic procedure on a mannequin. The endodontic procedure involved access preparation of a tooth including proper identification of canals. Petitioner was qualified as an expert in dental procedures. Petitioner is licensed in other states and has performed procedures similar to those required in Procedure Numbers 01 and 06 many times in private practice. Respondent expressly stated that it had no objection to Petitioner being qualified as an expert. Petitioner performed Procedure Numbers 01 and 06 properly. Petitioner satisfied each of the criteria for the definitive debridement required in Procedure Number 01. Petitioner left no supra-gingival or sub-gingival calculus on the patient's teeth. Any remaining root roughness was part of the patient's natural anatomy. Any remaining stain was non-removable stain. Petitioner satisfied each of the criteria for the access preparation required in Procedure Number 06 including proper identification of canals. The evidence presented by Petitioner was uncontroverted by Respondent. Respondent presented the grades and comments given by the examiners for Procedure Numbers 01 and 06 performed by Petitioner. However, Respondent did not call an examiner for either Procedure Numbers 01 or 06 as a witness in this proceeding. Respondent's expert witness was not an examiner for either Procedure Numbers 01 or 06. Therefore, Respondent presented no direct evidence to refute the evidence presented by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's request for a re-grade of his December, 1988, clinical examination be GRANTED and that Petitioner be given full credit for Procedure Numbers 01 and 06. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11 day of April 1990. DANIEL MANRY 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 11 day of April 1990.
The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent on charges set out in the Administrative Complaint in Agency for Health Care Administration (AHCA) Case No. 91-011671. The Administrative Complaint charged the Respondent with a violation of Section 466.028(1)(y), Florida Statutes, for incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It alleged: that the Respondent treated a patient identified by the initials V. G. for temporomandibular joint (TMJ) dysfunction from August 14, 1986, through July, 1991; that the treatment included maxillary brackets and other orthodontic treatment from August, 1987, through May, 1991; that the patient's TMJ problems recurred during the orthodontic treatment; that the length of time of the Respondent's orthodontic treatment was excessive, resulting in the recurrence of the TMJ problems; that the Respondent utilized an inappropriate circuitous method to accomplish tooth movement (i.e., moving teeth back and forth); that the Respondent's orthodontic treatment had to be corrected by a subsequent treating dentist; and that the "Respondent failed to provide written documentation informing the patient . . . of expected results "
Findings Of Fact The Respondent, Ralph Garcia, D.D.S., is a licensed dentist in the State of Florida, having license number DN000324. On August 14, 1986, a patient identified by the initials V. G. presented to the Respondent with complaints including jaw popping and discomfort in the jaw area. The patient, who was approximately 34 years of age, gave a history of extraction of her bicuspids and subsequent orthodontic treatment in her teen years and extraction of her third molars in her early twenties. The Respondent's examination revealed an impaired range of motion in her mouth. She could only open her mouth 43 millimeters. (Normal is 50.) She also could move her jaw only 7 millimeters to the left. (Normal is 12.) The patient's condition was further complicated by compromised dentition, poorly inclined teeth, unparallel roots, stretched ligaments, and a cervical condition. Transcranial x-rays revealed that, when the patient's teeth were together, both condyles compressed backward in the fossa, compressing tissues and causing pain. The Respondent correctly diagnosed the patient as having mandibular dislocation, myalgia, myofascitis, coronoid tendinitis, stretched ligaments, and headache. These are all conditions associated with temporomandibular joint (TMJ) dysfunction. The Respondent's treatment plan was: (1) to use an oral repositioning appliance (a splint) to treat the dislocation; (2) to use physical therapy to treat the myalgia and myofascitis; (3) to use trigger point injections to treat the coronoid tendinitis; and (4) to use orthopedics, orthodontics and possibly prosthetics to achieve functional occlusion. The Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It was not necessary at that point to more precisely describe planned tooth movements and mechanics. The Respondent advised the patient of his diagnosis, treatment goals, and proposed treatment plan. He also advised her of treatment options, the plan to use splint therapy in treatment, the plan to treat the patient in phases, and the potential complications of treatment. There was no evidence that minimum standards of performance when measured against generally prevailing peer performance required the Respondent to provide the advice described in the Finding 10 (or 17, below) in written form or to document the advice in writing. It would, however, be prudent to do so to preclude charges that the Respondent did not given the patient informed consent. From August 14, 1986, through July 14, 1987, the Respondent treated the patient's TMJ condition and resulting pain with splint therapy, physical therapy, and trigger point injections. (This was the first phase of treatment.) The splint therapy increased the space in the jaw joint by moving the lower jaw forward. This relieved the pressure on the joint. X-rays taken on July 9, 1987, show that the patient's jaw joint had moved forward on both sides, which decompressed the tissues of the joint. Contrary to the patient's allegations (and the understanding the patient gave to the AHCA expert), the relative positioning of the patient's upper and lower jaw did not create a "bulldog" Class Three Prognathic position (underbite). Rather, the positioning of the patient's upper and lower jaw created an approximate "open bite." (An "open bite" occurs when the front teeth meet.) At worst, the patient's lower jaw was slightly (3.5 millimeters) behind the upper jaw, i.e., in a Class One or Class Two underbite position. It was not proven that this positioning was inappropriate or failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. As a result of the first phase of treatment, the patient's TMJ problems were alleviated. In July, 1987, the Respondent discussed with the patient the next phases of treatment. What remained to be done for the patient was more than just realigning her teeth using brackets and wires ("traditional orthodontics"). For one thing, the patient's upper jaw was too narrow and too constricted to provide proper occlusion. This caused the patient to have a cross-bite on the right side of the jaw. The Respondent recommended the use of a four-screw appliance, which he designed, to expand the two halves of the upper jaw, or maxilla. He then planned to use a retainer to hold the expansion. Next, the molars in the patient's lower jaw had to be moved back on the jaw bone through use of a modified splint. Use of the modified splint allowed the jaw to be held in position while the molars were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. The Respondent recommended that the molars be moved slowly and carefully, one at a time, to minimize damage to the roots of the teeth and the jaw bone and to attempt to maintain the improvements in the patient's TMJ condition during treatment. Next, the second bicuspids had to be moved back on the patient's lower jaw through use of a modified Sved appliance. Use of the modified Sved allowed the jaw to be held in position while the bicuspids were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. Finally, the lower front teeth had to be moved back through the use of brackets and elastics. After the lower teeth were moved into their new positions in the new arch, they had to be "erupted," i.e., pulled up out of the jaw, to meet and have proper functional occlusion with the teeth in the upper jaw in the closed position. An appliance had to be used in conjunction with the brackets and elastics to hold the jaw in position while the lower teeth were being erupted so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. "Traditional orthodontics" (brackets, elastics and wires) would be utilized for finer adjustments to level, align and position the teeth to close gaps and for aesthetic purposes. The rest of the Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The Respondent discussed his treatment goals and proposed treatment plan in July or August, 1987. He also advised her of treatment options. He informed her that he would have to proceed carefully and deliberately and that it would be a slow process. He also informed her that the time of treatment would depend on many factors, including the patient's response to and compliance with treatment. The Respondent also discussed the cost of the remaining phases of treatment. To keep the fee for his orthopedic and orthodontic services under $4,000, the Respondent agreed to charge the patient a flat fee calculated based on his normal fee for 18 months of adjustments to appliances ($3,655), plus the cost of the orthopedic appliances. He did not intend to give the patient the impression that the orthopedic and orthodontic phases of treatment would be completed within 18 months. But his way of presenting his fee was potentially confusing and apparently contributed to the deterioration of the relationship between the Respondent and the patient later in treatment. The orthopedic phase of the treatment began with the use of the four- screw appliance in August, 1987. On September 29, 1987, the Respondent began the long, slow process of posteriorizing the molars and bicuspids on the patient's lower jaw. It was not completed until July 28, 1989. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method. Between July 28 and November 21, 1989, the Respondent used brackets and elastics to move the lower front teeth back. This phase of treatment also was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method. "Eruption" of the lower teeth was then accomplished between November 21, 1989, and October 22, 1990, using brackets and vertical elastics in a process known as "vertical development." The Respondent's method did not utilize wires, and the AHCA expert criticized the method used as not being "mainstream" orthodontics. But the expert defined "mainstream" orthodontics as being the methods taught in a majority of dental colleges. Under such a definition, a method which is out of the "mainstream" is not necessarily inappropriate. Notwithstanding the one expert's differing opinion as to the best way to erupt teeth, it was not proven that the method used by the Respondent to erupt the patient's lower teeth was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance. When the eruption process ended, "traditional" orthodontics began on October 22, 1990. During this phase, the Respondent placed brackets, bands and wires on the patient's teeth. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. During the Respondent's treatment of the patient, the patient's TMJ symptoms recurred from time to time. But TMJ is cyclical in nature. Recurrences during treatment (and even after treatment) are not unusual and do not prove that the Respondent's treatment was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance. In approximately April, 1991, the patient's TMJ symptoms recurred significantly. (They ceased during the course of completion of the treatment.) Although the symptoms were not much different from prior recurrences, by this time the patient was disillusioned with the Respondent due in part to the length of the process (even though, as a result of the flat fee arrangement, it was the Respondent who was "losing money" the longer the process took, not the patient) and in part to the Respondent's chairside manner and demeanor. The patient's "last straw" was when the Respondent ground uneven surfaces of the patient's front teeth (although the evidence was clear that this procedure was appropriate and met minimum standards of performance when measured against generally prevailing peer performance.) Instead of discussing the recurrence of the TMJ symptoms with the Respondent, the patient discontinued treatment with the Respondent on May 30, 1991, and sought the opinion of another dentist, Randy Feldman, D.D.S., on July 17, 1991. Feldman mentioned near the outset of his consultation with the patient that he could identify the patient's dentist without her telling him. Suspecting the worst of the Respondent, the patient thought Feldman was being critical of the quality of Respondent's work and became more convinced that the Respondent's work was below minimum standards of performance. In fact, Feldman only meant to say that he was familiar with the appliances and techniques used by the Respondent from having been invited to observe the Respondent's work in the Respondent's office and from having attended continuing education seminars conducted by the Respondent. Feldman also mentioned at one point during the consultation that the patient was fortunate to have had a flat fee contract for the Respondent's work since he knows patients who have paid thousands of dollars to the Respondent for his treatment. Again, suspecting the worst of the Respondent, the patient thought Feldman was implying that the Respondent's charges were inflated. In fact, Feldman only meant to state the fact that treatment by the Respondent often is complicated and expensive and that the patient seemed to have been fortunate not to have been charged more. Contrary to the allegations against the Respondent, Feldman did not have to "correct" the Respondent's work. He did not have to return teeth to prior positions (in the alleged "circuitous" manner). Rather, he advised the patient that it only was was necessary for her to complete the treatment which the Respondent had been providing. He tried to convince the patient that it would be in her best interest to return to the Respondent and let him finish the treatment, but the patient refused. Feldman did nothing more than finish the treatment which the patient had interrupted by leaving the Respondent's care. (He changed some of the brackets and appliances, but the evidence is not clear why.) Notwithstanding the duration of the Respondent's treatment, it was not excessive for what had to be accomplished. Each phase was a necessary part of the overall treatment, and no phase lasted an excessive period of time. Tooth movement occurs when pressure applied to the teeth and transmitted to the bone in which the teeth are rooted causes the bone to dissolve and allow the teeth to move. Then, the bone structure must reform behind the teeth being moved. This takes time. It takes longer in adults than in children or adolescents. The Respondent's decision to proceed cautiously and conservatively was in the patient's best interest. Trying to go faster would have increased the risk of damage to tooth roots and bone structure. The AHCA expert based his opinion in part on a misunderstanding as to when "traditional" orthodontic treatment began. In fact, it did not begin until October 22, 1990, when wires were attached to wires. Other aspects of treatment also did not last as long as the patient led the expert to believe. Elastics were used without wires starting on July 28, 1989; eruption lasted less than a year, not for "years," as alleged by the patient; teeth were not moved back and forth in a "circuitous" manner. It was not proven that the duration of treatment (whether or not excessive) "caused" TMJ symptoms to recur. See Finding 23., above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order dismissing the charges against the Respondent in this case. RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1142 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that maxillary brackets were placed as early as August, 1987. Also, a question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted-- through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. Rejected as not proven. 8.-10. Accepted and incorporated. 11.-14. Rejected as not proven. 15. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-22. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. 23.-24. Accepted and incorporated. A question of semantics whether the tooth movement through the use of the four-screw appliance constitutes orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. Accepted and incorporated. 27.-28. Not clear from the evidence whether the patient's upper jaw was expanded or just the bone holding the teeth flared out. Otherwise, accepted and incorporated. 29.-39. Accepted and incorporated to the extent not subordinate or unnecessary. 40. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. 41.-48. Accepted and incorporated to the extent not subordinate or unnecessary. 49. Accepted as to "traditional orthodontics" and incorporated. A question of semantics whether earlier methods constituted orthodontics, orthopedics, or both. 50.-63. Accepted and incorporated to the extent not subordinate or unnecessary. Not clear from the evidence necessarily as to all inconsistencies. As to some inconsistencies, accepted and subordinate to facts found. Accepted and incorporated. 66.-69. Accepted but subordinate and unnecessary. Accepted but unnecessary. "Well above" not clear from the evidence. "Above" accepted and incorporated. COPIES FURNISHED: Nancy Snurkowski, Esquire Chief Attorney Allied Health Section Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0782 Bruce D. Lamb, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 East Kennedy Boulevard Suite 1000 Tampa, Florida 33602 William Buckhalt Executive Director Board of Dentistry Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue This matter arose when the claimant applied for in line of duty disability retirement and was advised of the denial of his application of in line of duty disability benefits. The claimant was advised of his right to a hearing pursuant to Chapter 120, Florida Statutes, and filed a Petition for a hearing to determine whether he was entitled to disability in line of duty benefits. The matter was referred to the Division of Administrative Hearings for hearing pursuant to Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner, Pat Q. Trocci, is a 59 year old, white male, whose formal education is limited, and whose primary work experience outside military service in World War II was as a mechanic. The Petitioner was first injured on December 2, 1972, as hereinafter described. Between the date of his injury and 1974 he returned to work several times. During the period May 1973 to June 1974 the Petitioner returned to work on several occasions. The longest period which he worked continuously was six weeks, and during the entire period he worked 100 days. On December 2, 1972, Petitioner, Pat Q. Trocci, was installing a large hydraulic cylinder weighing approximately seven hundred (700) pounds in the back of a garbage truck. Trocci was attempting to push the cylinder into place when it shifted on the chain holding it, sheared the retaining bolt and struck Trocci in turn knocking him into other solid structures in the truck. Trocci, in fear, leaped from the truck and fell again striking himself on objects in the garage. Trocci continued to work, but later that evening began to experience pain. Trocci did not report for work for the next two days which were his regular days off. On the third day, he called in sick and went to the doctor. Dr. Talan administered a pain killing injection to Trocci and gave him oral pain killers. Trocci returned to his house, did some light work, such as watering the lawn, but later that evening experienced severe pain. Trocci was admitted to the hospital within several days suffering from back pain. The tentative diagnosis of the injury was a ruptured disc to Trocci's back with nerve root compression. Trocci was treated conservatively and released for bed rest at home. Thereafter, Trocci returned to work after a lengthy recuperation. Trocci was alternately at work and off work for the next year and a half. He would return to work and perform his duties, but eventually reinjure his back. From May 1973 until June 1974 Trocci worked 100 days of which the longest consecutive period on the job was six weeks. During this period, Trocci was in the care of Dr. Talan and thereafter Dr. Drucker. Trocci suffered primarily from his back ailment during that period. Dr. Drucker's deposition was presented in evidence and considered. Dr. Drucker, an orthopedic, had first seen Trocci in 1972 on referral from Dr. Talan. Dr. Drucker diagnosed Trocci's problem as am inflammation of the nerve root in the lower back. Dr. Drucker had treated Trocci until May 1974, but had last seem Trocci on February 1975. Trocci's medical history included Trocci's description of the accident. Dr. Drucker felt that the trauma was the result of Trocci's accident. Dr. Drucker stated that Trocci's condition was complicated by degenerative back disease, but that the disease was not the cause of Trocci's problems, but adversely affected his response to treatment and rehabilitation. Dr. Drucker indicated that Trocci's problems could be neurological rather than a nerve compression syndrome although he felt his diagnosis was accurate and the best he could make without the further tests to include a myelogram, which he had recommended but which to his knowledge Trocci had not had. Dr. Drucker stated his diagnosis was based on the fact Trocci had no neurological deficits which seemed to eliminate neurological damage. Dr. Drucker felt that Trocci's urological problems were due to extended bed rest, but that he would defer his opinion to the treating doctors. Dr. Drucker stated that in his opinion Trocci could not perform the duties he had performed prior to his injury because he could do no heavy lifting, could not bend, sit, or stand for long periods. Dr. Drucker did feel that Trocci could physically perform sedentary work, but was not aware of Trocci's educational background. Dr. Steinsnyder's report was introduced into evidence as Exhibit 1 and considered. Dr. Steinsnyder had first seem Trocci in August of 1974. At that time Trocci was hospitalized from August 15, 1974 until August 18, 1974 for back pain and bladder retention. Dr. Steinsnyder had treated Trocci from August 15, 1974 until February 12, 1975. The reports in Exhibit 1 indicate that Trocci had had a history of bladder retention during the period of Steinsnyder's treatment. Dr. Steinsnyder urged Trocci on January 22, 1975 to seek a fellow up on his nerve root compression with an orthopedic surgeon or neurelogic surgeon. Trocci was hospitalized on January 31, 1975 in Osteopathic General Hospital, North Miami Beach under Dr. Steinsnyder. Dr. Gonyaw was called in as a neurological consultant at that time. 10 Dr. Gonyaw had a myelogram performed on Trocci shortly after first seeing Trocci on February 2, 1975. Dr. Gonyaw expressed his opinion that at that date Trocci had reached maximum medical improvement. Based upon the results of the myelogram, Dr. Gonyaw eliminated nerve root compression resulting from a ruptured disc as a cause of Trocci's problems. This meant, in Dr. Gonyaw's opinion, that Trocci's problems were the result of a trauma of the spinal cord which had left Trocci with permanent damage. Dr. Gonyaw explained that such an injury is sometimes followed by a slow deterioration of the spinal cord which causes progressively severe symptoms. Dr. Gonyaw found that Trocci had impaired control of his legs, a continually worsening urological condition, and probably worsening neurological condition. Dr. Gonyaw felt that Trocci's real problem was neurological and not urological, but clearly indicated that in his condition Trocci could not perform any real work beyond some sort of hand piece work at his home. The deposition of Dr. Gilbert was also introduced into evidence and considered. Dr. Gilbert saw Trocci on August 22, 1973, at which time Trocci advised Dr. Gilbert of his earlier treatment by Drs. Drucker, Steinsynder, and Gonyaw. Dr. Gilbert stated that Trocci's symptoms were pains radiating from the lower back and buttocks into the legs and urinary retention and bladder infection. Dr. Gilbert's examination revealed that Trocci's movements were abnormally diminished, he exhibited bilateral sciatic tenderness, but that Trocci had had no sensory loss and his deep tendon reflexes were normal. Dr. Gilbert's medical opinion was that Trocci should not do any heavy lifting, no prolonged standing or sitting and no climbing. Because of his urological problems, Dr. Gilbert felt Trocci's ability to work is even more restricted. Dr. Gilbert's prognosis was one of continuing worsening of Trocci's condition, with the spread of infection eventually to his kidneys. The doctors involved have indicated in the fashion used in Workman's Compensation cases that the Petitioner is between 60 percent and 80 percent permanently partially disabled. They have all indicated that Trocci is not totally immobile and could do some light work with his hands. A listing of various job descriptions and positions was introduced by the Division as Exhibit 2 together with the affidavit of the head of the State's classification branch. The Hearing Officer finds having reviewed these descriptions and considered the obvious physical requirements of the various positions that the Petitioner could not perform any of these duties on a day in and day out basis based on the doctors' evaluations of his limitations.
Recommendation Based upon the preceding findings of fact and conclusions of law, it is recommended that the Petitioner receive disability in line of duty retirement benefits. DONE and ORDERED this 16th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Counsel for Respondent Albert E. Harum, Jr., Esquire Counsel for Petitioner
