Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1984.
The Issue The issue in this case is whether Colette Michele Gatward (Petitioner) should receive a passing score on the Florida Dental Hygiene Clinical Examination.
Findings Of Fact The Petitioner was a candidate for licensure as a dental hygienist by the State of Florida. All candidates for Florida licensure as dental hygienists are required to pass the Florida Dental Hygiene Clinical Examination. The Petitioner took the exam on November 5, 2010. Information and instructions related to the exam were provided to candidates through a "Candidate Information Booklet" (CIB) that was posted on the Respondent's Internet website approximately 60 days prior to the date of the exam. Candidates were expected to review the information contained in the CIB. The Petitioner was aware of the information in the CIB. Part of the exam required that each candidate perform certain clinical procedures to the teeth of a human patient. The CIB stated that each candidate was responsible for providing their own human patient upon whom the clinical procedures could be performed. A panel of three examiners reviewed and scored each candidate's performance of the clinical procedures. In relevant part, the CIB stated that each candidate must submit a patient with 12 surfaces of explorer-detectable moderate subgingival calculus. An explorer is a piece of equipment used in dental practice. The CIB stated that 6.5 points would be awarded for each of the 12 surfaces of subgingival calculus detected and removed by the candidate during the exam. The CIB also stated that failure to detect and remove a minimum of nine surfaces of moderate subgingival calculus would result in a candidate receiving less than a passing score on the exam. The CIB specifically stated that "[p]oor patient selection and management is a common reason for examination failure." The Petitioner brought her sister-in-law to the exam to serve as her patient. After the applicable portion of the exam was completed, the panel of three examiners evaluated the Petitioner's clinical performance. Two of the three examiners determined that the Petitioner had detected and removed subgingival calculus from only eight surfaces of her patient's teeth. There was no evidence presented to indicate that the Petitioner neglected to remove subgingival calculus from her patient's teeth. The Petitioner was aware at the time of the exam that her sister-in-law did not have sufficient subgingival calculus to meet the patient requirements for the clinical demonstration. The insufficient degree of subgingival calculus present in the Petitioner's patient prior to the clinical exam precluded the Petitioner from passing the exam. The Petitioner received a total deduction of 26 points (6.5 points deducted for each of the four surfaces upon which no subgingival calculus was detected) and failed the exam with a score of 74. The Petitioner offered no credible evidence that the panel of examiners improperly reviewed her performance on the exam or that the score she received on the November 5, 2010, administration of the exam was in any manner incorrect. At the hearing, the Petitioner testified that she is licensed as a dental hygienist in another state, that the examinations in both states were conducted by the same regional testing agency, and that the scores from the other state should be accepted by the Respondent for licensure of dental hygienists in Florida. Florida law does not provide for dental hygienist license reciprocity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petitioner's challenge to the scoring of the exam referenced herein. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: Morris Shelkofsky, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Colette Michele Gatward 2212 Margarita Court Kissimmee, Florida 34741 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 H. Frank Farmer, M.D., Ph.D., Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978. In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam. A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following: Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression Pin amalgam preparation Pin amalgam final restoration Endodontic anterior Endodontic posterior Cast gold preparation Cast gold restoration Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered. Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following: 0 = complete failure 1 = unacceptable dental procedure 2 = below minimal acceptable dental procedure 3 = minimal acceptable dental procedure 4 = better than minimally acceptable dental procedure 5 = outstanding dental procedure Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure. Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets. Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services. PROCEDURE NUMBER 5 Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure. Petitioner received the grades of 3, 2 and 2, for an overall score of 2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little. Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing. Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively. Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous." PROCEDURE NUMBER 6 Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability. The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous." PROCEDURE NUMBER 8 Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation. Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth. Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively. Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed. PROCEDURE NUMBER 9 Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish. Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6. The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry. PROCEDURE NUMBER 10 Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners. According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure. A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head. As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it. PROCEDURE NUMBER 11 Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld. Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Robert Dyer, Esquire Duckworth, Allen, Dyer and Pettis, P.A. 400 West Colonial Post Office Box 3791 Orlando, Florida 32802 Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal numerical value to each criterion; all other requests for relief should be DENIED. DONE and ENTERED this 9th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of December, 1982.
The Issue The issues to be resolved in this proceedings concern whether the Petitioner is entitled to receive a passing score on the December 1999 dental licensure examination.
Findings Of Fact The Petitioner, Carlo Coiana, was an unsuccessful candidate for the December 1999 dental licensure examination. He failed to pass several procedures of that licensure examination, according to the Department's graders and grading method. The December 1999 dental licensure examination consisted of two parts: (1) The clinical, and (2) The laws and rules section. The clinical portion consists of nine different procedures of which the Petitioner challenged six. The Department, in is scoring method, selects three examiners to grade each candidate's performance. The average of the three scores from each examiner, produces the overall grade for that procedure. Rather than having only one examiner score, the Department allows for three examiner scores because this provides a more fair, reliable indication of the candidate's competency and true score. Each examiner must be a licensed dentist for a minimum of five years and have no complaints or negative actions on his or her licensure record. Each examiner must also attend and successfully complete a standardization session which trains each examiner to use the same internal grading criteria. The examiners who graded the Petitioner's examination successfully completed the standardization session and training. During the administration of the dental examination the Department requires the use of monitors who are also licensed dentists. The monitor's role is to preserve and secure the integrity of the examination. The monitor also gives instructions to each candidate as to what to expect. The monitor has no part in the grading of the candidate's performance on the examination but acts as a messenger between the candidate and the examiner since there is a "double-blind" grading of the examination. The Petitioner contested the score he received on the Class II Composite Restoration on a model. The Class II Composite Restoration Portion of the examination is a procedure involving restoring a cavity (Class II) preparation with a tooth-colored filling. The procedure was done by the Petitioner with a comment by the examiners that there was a discrepancy in the resulting shape of the tooth and proper contact to the adjacent tooth. There was also a marginal discrepancy and a "gingival overhang." The margin is where the tooth and filling meet and there was a discrepancy felt there, a bump or a catch when the junction of the two surfaces should be smooth. A gingival overhang is in the area between the tooth where a non- smooth transition between the filling and the tooth is detected. This can be a damning area which will collect plaque and lead to re-current decay. The Respondent's expert, Dr. John Joffre, concurred with the overall findings of the examiners and felt that this procedure should not be accorded a passing score but rather the score accorded by the examiners. The Petitioner also contested the score for procedure number four of the examination, the Endodontic procedure. The Endodontic procedure of the examination is referred to as a "root canal." This procedure involves removal of the nerve and blood vessels inside a tooth in order to clean out that area. It then requires the shaping of the canal and, finally, filling it with an inert material to rid the body of the infected area in question. This procedure is performed on an extracted tooth. The minimum of the working length the Department required in order to receive a passing score for the filled material in the tooth in question was two millimeters. The Petitioner's expert had the working length of the filled area in the root canal or Endodontic procedure done by the Petitioner measured. It measured closer to three millimeters which is totally unacceptable according to Dr. Joffre. Even in accordance with the literature that the Petitioner relied upon in this case it is not provided that three millimeters short of the working length is an accepted working length, which is why the Petitioner received less than a passing score. All three examiners and the expert witness Dr. John Joffre were in agreement about this scoring. Three millimeters short of the required working length will cause the procedure to definitely fail sometime in the future and renders the procedure useless. An Endodontically treated tooth that is three millimeters short will fail clinically, and that justifies a failing grade on this procedure. The next procedure contested by the Petitioner as to score was the Amalgam Restoration done with a model. This procedure is similar to the Class II Composite Restoration. However, the difference between the two procedures is that the Amalgam is referred to as a silver filling containing mercury, silver, etc., as opposed to the Composite material in the above- referenced procedure which is a "tooth-colored" restoration. Although the Composite and the Amalgam serve the same function, they require different tasks and different procedures on how they are to be handled in their installation in the mouth. The major problem found with the Petitioner's performance on this procedure concerned an overhang. As referenced above, a gingival overhang at the margin of where the filling and the tooth meet results in a less than smooth transition and can be an area where food accumulates and decay can start anew. All three examiners also noted a problem with the proximal contour of the Amalgam restoration which has to do with the shape of the filling in terms of how it meets the tooth next to it. The testimony of Dr. Joffre, which is accepted, shows that the examiners comments and grades and Dr. Joffre's opinion itself justifies the scoring on this procedure. Dr. Joffre agrees with the examiners' scoring. The last procedures in question are called the "Patient Amalgam." These procedures, two and three, involve cutting of the tooth before the filling is actually placed into it ("cutting the box"). Procedure three is the actual filling, involving scoring what the filling is like after the filling procedure is completed. The criticism found by both examiner 304 and 346, as to the first part of the procedure, the cutting part, was ". . .did not break the gingival contact, subject to recurrent decay." The gingival contact down in the box cut for the filling must be cut deep enough to reach the point where there is a separation between the edge of the box and the adjacent tooth. Halfway down the tooth, towards the gum, the teeth are still touching. As one progresses further down toward the gum, the teeth separate because they naturally get narrower toward the gum line. A dentist needs to cut the box that the filling should be placed in down far enough toward the gum line so that he gets to the point where the teeth are no longer touching. Both dentists 306 and 346, examiners, found that he did not cut the box low enough so that he "didn't break gingival floor contact with the molar" (meaning the adjacent tooth). Thus, these examiners gave the Petitioner the lowest grade of "one" on that part of the procedure. The filling or restoration portion of the procedure failed. The filling was not adequately carved or shaped so that it was protruding too high above the adjacent tooth surfaces. This caused the patient to break the filling very shortly after it was finished and he was biting downward and putting pressure on it. Indeed it broke while the third examiner was examining the procedure. The reason why the fracture in the filling occurred was because it protruded too high. The Petitioner did not adequately reduce the size or height of the filling, so when the teeth came together the tooth below it or above it was hitting too hard against that one spot and caused the metal to break before the patient, on whom the procedure was done, ever left the building. The Respondent's expert, Dr. Joffre, who agreed with examiners comments and score, found that the Petitioner had failed to properly perform these procedures and that his score had been appropriately arrived at by the examiners. The Petitioner contested the score he received on the Fixed Partial Denture Procedure. The Department ultimately conceded that he should be awarded additional points on that procedure, however, even with the additional points awarded the Petitioner still failed to score adequately on the overall examination for passage, although he came close, with a score of 2.92 out of a minimal score of 3.00 required for passage of the examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition challenging to the grades assigned the Petitioner for the December 1999 Dental Licensure Examination and finding that the Petitioner failed to pass that examination. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Carlo Coiana N1 Via Delle Coccinelle Cagliari, Italy 09134 Cherry A. Shaw, Esquire Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether or not on or before January 7, 1978, the Respondent, James P. Haas, was offering to practice dentistry, and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center, in violation of Sections 466.24(3)(n) and 466.36, Florida Statutes. Whether or not on or before January 7, 1978, the Respondent, James P. Haas, maintained a telephone listing whereby he offered to practice dentistry as D.A.D. Denture Center at 101 Palm Springs Drive, Longwood, Florida, and whether or not he continues to maintain said listing, in violation of Sections 466.24(3)(g) and 466.27(5), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, one Bernie Morlock has been employed by the Respondent, James P. Haas, to perform dental services at a time when the said Bernie Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida. Further, whether or not Bernie Morlock, while employed by the Respondent, practiced dentistry as defined in Section 466.04, Florida Statutes, to the extent of: Taking impressions of the human teeth and jaws. Placing dentures and dental appliances in patients' mouths and adjusting or attempting to adjust same. Diagnosing or professing to diagnose the physical condition of the teeth and jaws of patients. Finally, whether or not the Respondent knowingly allowed the practice of dentistry by Bernie Morlock in violation of Section 466.02, Florida Statutes, and in further violation of Section 466.24(3)(d) and (e), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, the Respondent, James P. Haas, has employed unlicensed personnel to perform dental services for patients, to-wit: orthodontic treatment, which services constitute the practice of dentistry under Section 466.04, Florida Statutes. Further, whether or not if these services were performed by unlicensed persons, were they performed with the full knowledge and consent of the Respondent, thereby constituting a violation on the part of the Respondent of Sections 466.24(3)(d) and (e), Florida Statutes. (The Amended Accusation which charges the Respondent contained a certain Count III; however, no testimony was offered in support of that allegation and at the conclusion of the formal hearing, the Petitioner, through its counsel, voluntarily withdrew that count from consideration. This voluntary dismissal was unopposed by the Respondent.)
Findings Of Fact The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Division of Professions, Board of Dentistry, is an agency of the state created for the purposes of protecting the public health, safety and welfare of the citizens of the State of Florida, to the extent that practice of dentistry in the state and dental hygiene are subject to the regulation and control of the Petitioner in the public interest. The authority for such regulation is set forth in Chapter 466, Florida Statutes, and those rules of the Florida Administrative Code related thereto. The Respondent, James P. Haas, is licensed by the Florida State Board of Dentistry to practice dentistry in the State of Florida. The Petitioner, by an Amended Accusation, has charged the Respondent, James P. Haas, with various violations of provisions of Chapter 466, Florida Statutes, and the Respondent has requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, which request has been granted and a hearing held on February 15 and 16, 1979. The first of the allegations states that on or before January 7, 1978, the Respondent was offering to practice dentistry and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center. The facts reveal that Dr. Haas made an arrangement with an organization known as Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky, wherein he agreed to coordinate the placement of advertisements for the benefit of that corporation and in turn the corporation agreed to refer patients to Dr. Haas for his treatment. The advertising spoken of consisted of an ad in the Winter Park, Florida, telephone directory yellow pages and certain newspaper advertising through the Orlando Sentinel of Orlando, Florida. The advertising in the telephone directory was placed in the fall of 1977 and a copy of that yellow page advertising may be found as Petitioner's Exhibit No. 2 admitted into evidence. The Petitioner's Exhibit No. 1 admitted into evidence contains a copy of the format for the telephone yellow page advertising, as contemplated by Dr. Haas through his agreement with Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky. The listing of the telephone number was of the number in Harredsberg, Kentucky, and those individuals at that number in turn made the referrals to Dr. Haas's office located at 101 Palm Springs Drive, Longwood, Florida. An example of the newspaper advertising may be found in the Petitioner's Exhibit No. 3 admitted into evidence at page 161-I, a copy of the Sentinal Star Progress Edition of December 18, 1977. In that advertising the same number is given as indicated in the aforementioned telephone telephone ad, with the difference being that Delivering Affordable Dentistry, Inc., is given as the trade name as opposed to D.A.D. Denture Center, which was found in the telephone advertisement. Dr. Haas maintained a separate checking account for D.A.D. Denture Center, the name of his affiliation with Delivering Affordable Dentistry, Inc. The payments for services made by those patients referred through the D.A.D. Denture Center process, were placed into the D.A.D. Denture Center operating account of Dr. Haas. Those persons authorized to make withdrawals from that account were Dr. Haas and his employee, Bernie Morlock, and checks were drawn from that account under the authority of Dr. Haas. The overall income and expanses of D.A.D. Denture Center, operated by Dr. Haas, and of his general practice in the name of James P. Haas-sole proprietor, were combined and were under the control and authority of Dr. Haas. The dental office located in Longwood, Florida, was identified as the office of James P. Haas, D.D.S., and also by a placard indicating the office to be a D.A.D. Denture Center. Finally, those patients who called for service under D.A.D. Denture Center were charged by different fee structure and were listed in a separate appointment book, than that appointment hook for the Respondent through his general practice, James P. Haas, D.D.S. The Respondent was knowledgeable of the arrangement to treat patients under the assumed name of D.A.D. Denture Center at the address in Longwood, Florida, and in fact practiced dentistry under that assumed name and at that location as alleged in Count I of the Amended Accusation. This constituted a violation of Section 466.36, Florida Statutes, which states: "Practicing dentistry under assumed name; penalties.-- On and after the passage of this chapter, it shall be unlawful for any person or persons to practice or offer to practice dentistry under any name except his or her own proper name, which shall be the name used in his or her license certificate granted to him or her as a dentist as provided in this chapter, and unlawful to use the name of any company, association, corporation, clinic, trade name, or business name in connection with the practice of dentistry as defined in this chapter, provided, nothing herein contained shall be so construed as to prevent two or more licensed dentists from associating to- gether for the practice of dentistry, each in his or her own proper name. The violation of any of the provisions of this section by any dentist shall subject such dentist to suspen- sion or revocation of his or her license." The advertisement placed in the Winter Park, Florida, telephone directory, which is sham as Petitioner's Exhibit No. 2 admitted into evidence, was placed with the knowledge of the Respondent and with the intention by the Respondent that the advertisement be made. This advertisement pertained to the 1978 telephone directory for Winter Park, Florida. Under these facts, the Petitioner has charged the Respondent with a violation of Section 466.27(5), Florida Statutes. That provision reads: "466.27(5) Telephone listings shall be con- fined to the local telephone directories. Such listings shall be limited to the den- tist's name, dental degree, 'D.D.S.' or 'D.M.D.,' using the abbreviation only, the word 'dentist,' 'dentistry,' or 'general dentistry,' any specialty as approved by the board to which the dentist confines his practice exclusively, office location, resi- dence and office telephone numbers, and residence address and may include his member- ship in a local dental society if in accord with local customs." A review of the language of this section, in view of the fact that the advertising in the telephone directory inured to the benefit of the Respondent by the process of the referral system spoken of above, demonstrates that the telephone listing was for the benefit of Dr. Haas and was not in keeping with the requirements of this subsection. This constituted advertising professional services and the practice of dentistry in a manner not expressly authorized by Chapter 466, Florida Statutes, and was therefore in violation of Section 466.24(3)(g), Florida Statutes. One of the employees of the Respondent who worked in the office at 101 Palm Springs Drive, Longwood, Florida, was Bernie Morlock. Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida at any time relevant to the allegations in the Amended Accusation. Nonetheless, Morlock practiced dentistry as defined by Section 466.04, Florida Statutes, and did so in the office of the Respondent in Longwood, Florida, with the knowledge and consent of the Respondent. The arrangement which was condoned by the Respondent allowed for Morlock to have patients scheduled for him for the purpose of the preparation of dentures through the referral system, D.A.D. Denture Center, which was part of Dr. Haas's Longwood, Florida, office. (An example of the written schedules may be found in the Petitioner's Exhibit No. 5 admitted into evidence.) Dr. Haas had instructed that these patients be scheduled to be seen by Bernie Morlock. Some of these patients were being seen by Dr. Haas's office for the first time and were attended by Bernie Morlock from this initial visit to the conclusion of the case, at which time the patients were given their dentures. Morlock's involvement with patients included diagnosis of the physical condition of the teeth and jaws of the patients; taking impressions of patients' teeth, both algenate and working model impressions; the placement of dentures and other dental appliances in the patients' mouths and the adjustment to those dentures and dental appliances, and the discussion of the case with the patient. Most of the work that Morlock did was done at a time when Dr. Haas was not in attendance in the aforementioned office and was done without supervision from any licensed dentist. This process undertaxen by Bernie Morlock happened on numerous occasions. The patients were considered to be Morlock's patients and the patients only saw licensed dentists for the purpose of extracting teeth or other dental procedures unconnected with the fabrication and try-in and adjustment to the dentures. These actions on the part of Bernie Morlock took place during the time period alleged in Count IV of the Amended Accusation. By allowing Bernie Morlock to attend patients in the fashion that Morlock did, the Respondent was willfully negligent in the practice of dentistry within the moaning of Section 466.24(3)(d), Florida Statutes, and in addition was guilty of a violation of Section 466.24(e), Florida Statutes, which states: "Employing or permitting any unlicensed per- son or persons to perform any work in his office which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter." During the period of time alleged in Count V of the Amended Accusation, the Respondent employed dental hygienists Vic Simmons and Mary Simmons at his office in Longwood, Florida. Although they wore dental hygienists, these individuals were not licensed to practice dentistry or dental hygiene within the State of Florida. Notwithstanding this absence of a license, the Simmonses practiced dentistry in the Longwood office within the meaning of Section 466.04, Florida Statutes. This included having certain schedules set for them as indicated by Petitioner's Exhibit No. 5 admitted into evidence. This is an example of the schedule for the Simmonses under the title, "Ortho". This scheduling was with the knowledge of Dr. Haas, who had arranged for the Simmonses to come and treat orthodontic patients in his office. The Simmonses came to the location of the Respondent's office two days a month, of which Dr. Haas was in the Longwood office one of those days. These orthodontic patients would be seen initially by Dr. Haas and then treated for their condition by the Simmonses. Some of the patients first seen by the Simmonses arrived at the office without any form of braces in the mouth of the patient. The procedures that the Simmonses then performed were done without supervision by a licensed dentist. By that it is meant that the Simmonses were performing the dental services without the licensed dentist being in the room. The Simmonses, in the pursuit of orthodontic dental practice, placed bands and changed beads, cemented hands and placed arch wires; all with the knowledge and consent of the Respondent. Under the circumstances involved in the employment of the Simmonses, it has been demonstrated that the Respondent is guilty of willful negligence in the practice of dentistry as prescribed in Section 466.24(3)(d), Florida Statutes. The Respondent is also guilty of a violation of Section 466.24(3)(e), Florida Statutes, in that he employed and permitted unlicensed persons to perform work in his office which would constitute the practice of dentistry. The proposed findings of fact, conclusions of law and recommendation offered by the parties have been revied prior to the rendition of this Recommended Order. To the extent that the proposals conform to the findings herein, they have been utilized in developing the Recommended Order. To the extent that the proposals are inconsistent with the findings herein, they are rejected.
Findings Of Fact At all times relevant, Respondent, John W. Delk, held a license to practice dentistry, number DN 0005106, issued by the State of Florida, Department of Professional Regulation's Board of Dentistry. James Whisman was a patient at the Delk Dental Center from July 14, 1981 until May 22, 1984. Dr. John W. Delk was the dentist of record for James Whisman. On July 14, 1981, Dr. John W. Delk prepared teeth #6, 7, and 8 for crown and bridgework which included the placement of a post in tooth #8. On July 29, 1981, James Whisman returned to the Delk Dental Center to have the crowns on #6, 7, and 8 seated. On July 29, 1981, Don Berman seated permanent crowns on teeth #6, 7, and 8 for James Whisman using a permanent cement. Don Berman was a technician (dental assistant) for the Delk Dental Center and was not a licensed dentist or dental hygienist. He did not have an expanded duties certificate. On August 11, 1981, Respondent diagnosed a need, and had Berman prepare a treatment plan, for future dental work for James Whisman. During the establishment of Mr. Whisman's August 11, 1981 treatment plan, there was no documentation or oral advisement that an abnormality, such as a retained root tip or abscess, existed at tooth #10. Later, the bridge work on teeth #6, 7, 8 became loose, and Whisman called for an appointment with the Delk Dental Center. On September 21, 1981, the crowns on teeth #6, 7, and 8 were re-cemented with a permanent cement, zinc phosphate, by technician Don Berman. Dr. John W. Delk did not supervise Don Berman when he used the permanent cement to seat the crowns on teeth #6, 7, and 8 for a second time. From February 8, 1982 through February 25, 1982, Dr. James Costello provided dental services to James Whisman, specifically preparing teeth #9-15 and teeth #1-5 for crowns and bridgework and seating the crowns and bridgework. Dr. Costello did not advise James Whisman that an abnormality, specifically a retained root tip or abscess, was present at tooth #10. The patient chart for James Whisman failed to document that tooth #10 had a retained root tip and abscess present. The failure to chart a retained root tip and abscess at tooth #10 is critical to diagnosis and treatment. Fourteen months later, James Whisman returned to the Delk Dental Center for continued dental work. Respondent on March 6, 1984, diagnosed the need, and had Berman prepare a treatment plan, for fixed bridge-splints on teeth #19-22 and #27- 30. On March 7, 1984, Dr. John W. Delk prepared teeth #19- 22 and #27-30 for crown and bridgework. On March 9, 1984, Don Berman cemented temporary crowns on teeth #27-30 without supervision from Dr. John W. Delk. On March 12, 1984, Don Berman re-cemented temporary crowns on teeth #27-30, using a permanent cement called Durelon, without supervision from Dr. John W. Delk. On April 19, 1984, Don Berman used a permanent cement, Durelon, to seat the crown and bridgework on teeth #19-22 and #27-30 without supervision from Dr. John W. Delk. On May 15, 1984, James Whisman returned to the Delk Dental Center complaining of loose teeth in the area of #7 and 8. On May 22, 1984, James Whisman returned to the Delk Dental Center continuing in his complaint that teeth #7 and 8 were loose. On May 22, 1984, Don Berman did an oral inspection of teeth #7 and 8 and with the aid of a dental instrument removed said teeth. Teeth #7 and 8 fractured off inside the crowns. On May 22, 1984, based on what Don Berman had reported to him, Respondent diagnosed the need, and had Berman prepare a treatment plan, for Mr. Whisman which encompassed an estimate for two crowns, one root canal filling and two pin and core build-ups for a total fee of $708.00. On May 22, 1984, Dr. John W. Delk did not examine Mr. Whisman nor did Dr. Delk supervise the actions of Don Berman. Don Berman re-cemented the crowns for teeth #7 and 8 using a permanent cement, Durelon, with no supervision from Dr. John W. Delk. James Whisman suffered from areas of sensitivity around the bridgework, poor dental work and an unnoticed abscess and retained root tip. James Whisman discontinued the dental work with the Delk Dental Center and sought a second opinion from Dr. Albert P. Hodges on June 7, 1984. After the services performed by Dr. Delk and/or his employees, an examination of James Whisman's teeth revealed dental work that fell below the standard of care as recognized by the prevailing peer community. The standard of care for crown and bridgework recognized by the prevailing dental peer community is as follows: No open or shy margins around the crowns; no active decay present; proper retention in multiple-unit splints; proper dowel lengths in crowns that are needed to support multiple unit bridges; proper occlusal contact and recognition; and treatment of any pathological condition prior to crown and bridge placement. Specifically, tooth #7 had margins that were open and shy, active decay was present and there was a distinct lack of retention to support the two-unit splint. The dental treatment provided on tooth #7 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #8 had margins that were open, active decay was present and the dowel length was totally inadequate for useful retentive support. The dental treatment provided on tooth #8 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically with tooth #10, Dr. Delk failed to diagnose and treat a retained root tip and a pathological condition which was visible and discoverable. The retained root tip and abscess were clearly visible radiographically as early as the July 14, 1981 visit to Dr. Delk's facility. James Whisman was not advised during the course of his treatment that a retained root tip existed and that the pathological condition should be treated prior to the placement of a crown over tooth #10. James Whisman's records, made at Dr. Delk's facility, failed to reflect the existence of the retained root tip and abscess at tooth #10. Failing to chart or notify the patient of the existence of a retained root tip and the accompanying cyst falls below the standard of care as recognized in the prevailing dental community. The dental treatment provided on tooth #10 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #20 had margins that were open and shy, it was sensitive to probing, and it was out of occlusion because it had no contact with the opposing tooth when the mouth was in the closed position. The dental treatment provided on tooth #20 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #21 had margins that were open and shy. The dental treatment provided on tooth #21 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #22 had margins that were shy. The dental treatment provided on tooth #22 fell below the minimum, acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #27 had margins that were shy and the crown was over-contoured causing potential gum irritation and food impaction. The dental treatment provided on tooth #27 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #29 had margins that were open and shy. The dental treatment provided on tooth #29 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Cementing crowns with permanent cement is an irremediable procedure. Cementing temporary crowns with permanent cement is justified on a short-term basis but only if the procedure is done by a licensed dentist. To be within acceptable dental standards, a dentist must do a physical oral examination of a patient before developing a treatment plan. Failure to do a physical oral examination in the development of a treatment plan falls below the minimum standards as recognized in the prevailing peer community. An assistant with an expanded duties certificate may use temporary cement only to seat temporary crowns provided a licensed dentist provides direct supervision.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Board of Dentistry enter a final order: (1) holding the Respondent guilty on both counts of the Administrative Complaint; (2) fining Respondent $1000 for each count, said amount to be paid within 30 days from the signing of the final order or Respondent's license automatically to be suspended until the fine is paid; (3) suspending Respondent's license to practice dentistry for 6 months for each count of the Administrative Complaint, to run consecutively; (4) placing Respondent on probation for 12 months subsequent to the expiration of the suspension period; and (5) conditioning reinstatement of Respondent's license to practice dentistry on successful completion of 100 hours of university credit course work in crown and bridge restorations by the end of the probation period and on an appearance by Respondent before the Board to provide evidence of compliance with the final order. RECOMMENDED this 3rd day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1987. COPIES FURNISHED: Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Michael T. Hand, Esq. 230 East Marks Street Orlando, F1 32803 John W. Delk, D.D.S. 2918 North Pine Hills Drive Orlando, F1 32808 Pat Guilford Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Wings T. Benton, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 APPENDIX To comply with Section 120.59(2), Florida Statutes (1985), the following rulings are made on Petitioner's proposed findings of fact (Respondent did not submit proposed findings of fact): 1.-3. Accepted and incorporated. 4. Accepted but unnecessary. 5.-8. Accepted and incorporated. Accepted but unnecessary. Rejected as not proved. The evidence suggested that Respondent examined the patient and instructed Berman how to prepare the plan. 11.-15. Accepted and incorporated. 16. Rejected as not proved. Dr. Costello testified he seated the crowns and bridgework, and the office notes do not reflect that Berman was involved at all. Whisman's memory probably was in error on this point. 17.-20. Accepted and incorporated. 21. Rejected. See 10 above. 22.-29. Accepted and incorporated except the correct date in 24 is March 12, 1984, and the correct teeth in 25 are #19-22, not #19-20. 30. Rejected. See 10 above. 31.-56. Accepted and incorporated. Accepted but cumulative. Accepted and incorporated. Rejected as conclusion of law. 60.-61. Accepted but unnecessary. Accepted and incorporated. Accepted but cumulative. 64.-65. Accepted and incorporated.
The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1993.
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal numerical point value to each criterion; it should also regrade procedure 3 giving consideration only to the grades of examiners 038, 02 and 048; all other requests for relief should be DENIED. DONE and ORDERED this 10th day of January, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 10th day of January, 1983.
