The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Petitioner, Jennifer Lee Brown, D.M.D., should receive a passing grade on the December 1997 Florida dental licensure examination.
Findings Of Fact Petitioner, Jennifer Lee Brown, D.M.D., is a graduate from the University of Florida College of Dentistry. Respondent, the Department of Health (hereinafter referred to as the "Department"), is responsible for the licensure of dentists in the State of Florida. In December 1997 the Florida Department of Business and Professional Regulation, on behalf of the Department, administered the Florida dental licensure examination which persons wishing to practice dentistry in the State were required to pass. Dr. Brown took the December 1997 dental examination (hereinafter referred to as the "Examination"). The Examination consisted of clinical, Florida laws and rules, and oral diagnosis parts. The clinical portion of the Examination consisted of 8 procedures: procedures 1-3 and 5-9. Each procedure was graded by three separate examiners. The scores awarded by the three examiners on each procedure were averaged, resulting in a truer score. Each procedure had standardized "comments" concerning a candidate's performance on the procedure which examiners could note. Examiners were selected from individuals recommended by existing examiners or members of the Board of Dentistry (hereinafter referred to as the "Board"). Prospective examiners could not have any complaints against their license and they were required to have actively practiced dentistry and to be licensed as a dentist in Florida for a minimum of five years. Prospective examiners were required to file an application with the Board's examination committee. Prior to the Examination, a "standardization" session was conducted for the examiners selected. During the session, examiners were trained how to grade the Examination using the same internal criteria. The standardization session was conducted by assistant examiner supervisors appointed by the Board. After completion of the standardization session, and before the Examination, examiners were required to grade five mannequin models in order to evaluate the examiners' understanding of the grading criteria. Each examiner's performance was evaluated to determine whether the examiner should be used during the Examination. The examiners who graded Dr. Brown's clinical part of the Examination were designated as Examiners 168, 176, 195, 207, 264, 290, 298, and 299. All of these examiners completed the standardization session and the post-standardization evaluation. During the clinical part of the Examination, the examiners were required to grade each procedure independently, without conferring with each other. The clinical part of the Examination was "double blind" graded. Examiners did not see the candidates they were grading or watch their work. The test procedures were performed in a clinic in the presence of a licensed dentist. After the procedure was completed, the patient or tooth was taken to another clinic where the examiners reviewed the work performed on the patient and graded the procedure. The examiners had no direct contact with any candidate. Candidates were permitted to use "monitor-to-examiner" notes to convey information to the examiners that a candidate wanted the examiners to take into consideration when grading a procedure. Any such notes were read by the examiners and initialed "SMN" (saw monitor note) before they actually looked at the patient or tooth. For the clinical part of the Examination the following grading system was used: Zero: complete failure; One: unacceptable; Two: below minimally acceptable. Three: minimally acceptable. Four: better than minimally acceptable. Five: outstanding. After the Examination was graded, all examiners underwent a post-examination evaluation. Grades awarded by each examiner were compared to other examiners for consistency. All of the examiners who graded Dr. Brown's clinical part of the Examination were found to have performed acceptably. Dr. Brown was subsequently informed that she had failed to obtain the minimum passing grade of 3.00 for the clinical part of the Examination. Dr. Brown was informed that she had been awarded a score of 2.67. Dr. Brown was also informed that she passed the other two parts of the Examination. Dr. Brown challenged the scores she had been awarded on the clinical part of the Examination for procedures 2, 5, 6, 7, 8, and 9. The procedures challenged were graded by examiners 176 (graded all the challenged procedures), 195 (graded procedures 5- 9), 207 (graded procedure 2), 298 (graded procedure 2), and 299 (graded procedures 5-9). The Department conceded that the scores awarded Dr. Brown on procedures 7 and 8 were incorrect. As a result, the Department agreed that Dr. Brown's overall score for the clinical part of the Examination should be raised to 2.82. The evidence failed to prove that Dr. Brown should have received a higher score on procedures 7 and 8. Procedure 2 consisted of an amalgam (filling)n preparation on a human patient. Dr. Brown was required to select a tooth and, after the selected tooth was checked by an examiner, complete preparation for the amalgam. Dr. Brown wrote three monitor-to-examiner notes during procedure 2. All three examiners wrote "SMN" on all three notes. Dr. Brown received an average score on procedure 2 of 3.66. Dr. Brown was awarded the following individual scores for her performance on procedure 2: Examiner Score 176 4 207 4 298 3 Examiners 176 and 298 noted the following comment concerning Dr. Brown's performance on procedure 2: "Depth Prep." Examiner 298 also noted the following comment: "Marginal Finish." Examiner 207 noted the following comment: "Retention Form." Dr. Brown admitted that her performance on procedure 2 was not ideal, but expressed concern that she was graded down for matters dealt with in the monitor-to-examiner notes. Dr. Shields opined that it was possible for the examiners to have reduced the score awarded to Dr. Brown on procedure for depth preparation, marginal finish, and retention form and not have graded her down for the monitor-to-examiner notes. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 2 of the clinical part of the Examination. Dr. Brown received a fairly consistent score from all three graders. Procedure 5 was a "class IV composite restoration." This procedure involved the selection of a tooth by Dr. Brown which she was then required to make a slice cut on to replicate a fracture. Dr. Brown was then required to restore the simulated fractured tooth to its normal contour and function. The procedure was performed on a mannequin. Dr. Brown received an average score of 1.66 on procedure 5. Dr. Brown was awarded the following individual scores for her performance on procedure 5: Examiner Score 176 3 195 0 299 2 Examiners 176 and 195 noted the following comment concerning Dr. Brown's performance on procedure 5: "Proximal Contour." Examiners 176 and 299 noted the following comment concerning Dr. Brown's performance on procedure 5: "Margin." Finally, the following additional comments were noted by the examiners: Examiner Comment: 195 Functional Anatomy Mutilation of Adjacent Teeth 289 Gingival Overhang Dr. Brown's challenge to her score for procedure 5 was essentially that Examiner 199 had given her such a low score on this procedure and procedures 7 through 9 when compared to the scores awarded by Examiners 176 and 298. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 5. Dr. Shields' opinion was based generally upon his 21 years of experience as a dentist. More specifically, Dr. Shields based his opinion upon his examination of the actual tooth that Dr. Brown performed procedure 5 on. Dr. Shields found excess material left at the gingival or gum portion of the tooth. Dr. Shields also found that Dr. Brown attempted to polish the material off and had flattened some of the surface of the tooth. Apparently, based upon Examiner 195's comment notes, Examiner 195 was the only examiner to catch these deficiencies in Dr. Brown's performance on procedure 5. Dr. Shields also found slight damage on the mesial, the approximating surface of the lateral incisor, the tooth next to the tooth that was restored. The evidence failed to prove that Dr. Shields' opinions concerning Dr. Brown's performance on procedure 5 were not reasonable and accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 5 of the clinical part of the Examination. Procedure 6 required that Dr. Brown perform an Endodontic Evaluation of the Maxillary First Premolar. Dr. Brown was required to select an extracted tooth, a maxillary tricuspid, examine x-rays of the tooth, and then perform a root canal on the tooth. The tooth had two roots. The root canal involved creating an opening in the tooth and removing the pulpal tissue from the two nerve canals of the tooth (a debridement). The canals were to be shaped for an obturation or the filling of the canal. A final x-ray of the tooth was taken after the procedure was completed. Dr. Brown received an average score on procedure 6 of 1.00. Dr. Brown was awarded the following individual scores for her performance on procedure 6: Examiner Score 176 3 195 0 299 0 All three examiners noted the following comment for Dr. Brown's performance on procedure 6: "Proper Filling of Canal Spaces with Gutta Percha." Gutta Percha is the material that was used by Dr. Brown to fill the canal of the roots after she completed the debridement. Examiner 195 noted the following additional comment for Dr. Brown's performance on procedure 6: "Access Preparation." Examiner 299 noted the following additional comment: "Shaping of Canals." Dr. Brown's challenge to her score for procedure 6 was based in part on her concern that Examiners 199 and 299 had given her a score of 0 on this procedure while Examiner 176 had given her a score of 3. Dr. Brown admitted that she had caused the gutta percha to extrude through the apex of the canals. She argued, however, that gutta percha is reabsorbed by the patient. Therefore, Dr. Brown suggested that her performance was "clinically acceptable." Dr. Brown questioned how one examiner, Examiner 176, could conclude that her performance was in fact clinically acceptable, while the other two examiners concluded it was not. The difficulty with Dr. Brown's position with regard to procedure 6 is that she assumes that the only deficiency with her performance was the extrusion of gutta percha and that it was not a significant deficiency. The evidence failed to support this position. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 6. His opinion was based upon the fact that the extrusion of gutta percha was very significant on one of the canals: it extended a millimeter and a half. On the other canal it was a half of a millimeter. Filling the canal one half millimeter to a millimeter is considered ideal. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. During the standardization session, examiners were told that extrusion of gutta percha more than a half millimeter through the apex was to be considered an error of major consequence. Candidates who extruded guttal percha more than a half millimeter were not to receive a grade higher than one. In light of the instructions during the standardization session, it was more likely that Examiner 176 gave Dr. Brown too high of a score on procedure 6. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 6 of the clinical part of the Examination. Procedure 9 was a pin amalgam final restoration. Although this procedure involved, in a lay person's terms, a filling, what exactly was involved in this procedure was not explained during the formal hearing. Dr. Brown received an average score on procedure 9 of 1.66. Dr. Brown was awarded the following individual scores for her performance on procedure 9: Examiner Score 176 4 195 0 299 1 All three examiners noted the following comment concerning Dr. Brown's performance on procedure 9: "Functional Anatomy." Examiners 195 and 299, who both graded Dr. Brown below minimal acceptability, also noted the following comments: "Proximal Contour," "Contract," and "Margin." Dr. Brown failed to present any evidence to support her claim that she should have received a higher score for procedure Dr. Brown simply questioned the fact that Examiner 195 had graded her low on all the clinical procedures. Dr. Shields opined that Dr. Brown should not receive a higher score on procedure 9. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 9 of the clinical part of the Examination. Dr. Brown's challenge in this case was based largely on the fact that Examiner 195 had graded her performance on procedures 5, 6, and 9 as a zero, procedure 7 as a one, and procedure 8 as a two. Other than the fact that Examiner 195's scores were consistently low, the evidence failed to prove that Examiner 195 improperly graded Dr. Brown except as conceded by the Department on procedures 7 and 8. Comparing the scores awarded by Examiner 195 to Examiner 176 does raise some question as to why there was such a discrepancy in the two examiners' scores. When the scores on procedures 5, 6, and 9 of all three examiners are compared, however, Examiners 195 and 298 generally were consistently below acceptable, while Examiner 176's scores were generally higher on these three procedures: Examiner Procedure 5 Score Procedure 6 Score Procedure 9 Score 176 3 3 4 195 0 0 0 299 2 0 1 This simple mathematical comparison, however, is not sufficient to conclude that Examiner 195 scored too low or that Examiner 176 scored too high. Other than a simple comparison of the scores of the three examiners, the only evidence concerning whether Examiner 195 graded too low based upon the scores alone was presented by Ms. Carnes, an expert in psychometrics. Ms. Carnes opined that Examiner 195's performance was acceptable, except with regard to procedures 7 and 8. The evidence failed to refute Ms. Canres' opinion. Based upon the weight of the evidence, Dr. Brown's score for the clinical portion of the Examination, as adjusted by the Department during the final hearing of this case, was reasonable and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health, Board of Dentistry, dismissing Dr. Brown's challenge to the amended grade awarded for the clinical part of the December 1997 Dental Examination. DONE AND ENTERED this 14th day of September, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1998. COPIES FURNISHED: Jennifer Brown Post Office Box 39 Starke, Florida 32091-0039 Anna Marie Williamson, Esquire Office of the General Counsel Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 William Buckhalt, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001.
The Issue The issue to be resolved in this proceeding concerns whether Joseph M. Pelle, the Petitioner should be issued a dental teaching permit in conjunction with his duties as Dean of the Jacksonville University Dental School of Orthodontists (dental school) in accordance with the authority cited and treated below.
Findings Of Fact The Petitioner is Dr. Joseph M. Pelle. His business address is 2800 University Boulevard North, Jacksonville University, Jacksonville, Florida. The Petitioner is not licensed to practice dentistry in Florida, but is licensed in three other states. His licensure is current and in good standing in those states. The Respondent is the Florida Board of Dentistry (Board). It is an agency of the State of Florida charged with regulating the licensure standards and practice standards for those engaged in the practice of dentistry in all its facets in the State of Florida. Its authority includes the authority, under the law cited below, to issue teaching permits in limited circumstances for professionals engaged in the teaching of clinical aspects of dentistry, at accredited institutions, offering advanced education to post-graduate dentists in Florida. The Petitioner filed an application for a teaching permit pursuant to Section 466.002, Florida Statutes, and Florida Administrative Code Rule 64B5-7.005, with the Respondent Board. The application is dated March 25, 2003. The teaching permit was proposed to be used at the Jacksonville University Dental School of Orthodontists in Jacksonville, Florida (Dental School). On June 25, 2003, the Board entered an order denying the application for the teaching permit. The Petitioner is the Dean of the Dental School of Orthodontics. The Petitioner is not currently licensed as a dentist in the State of Florida, but is licensed in Texas, Pennsylvania, and Ohio with all those licenses being in good standing. The Petitioner has practiced orthodontics since 1971, and has been the chairman of dental programs at the University of Pittsburgh and at West Virginia University. He has a board specialty from the American Board of Orthodontics. Jacksonville University is a private, non-profit, accredited, liberal arts university in Jacksonville, Florida, that confers degrees at the undergraduate and graduate levels. It also offers advanced professional education programs. The Dental School of Orthodontics offers advanced education in orthodontics to post-graduate dentists that have already completed their dental program to receive the DMD or DDS degree. The dental school currently has four full-time faculty, eleven part-time faculty, and adjuncts, both outside and inside the Jacksonville University. There are fourteen students currently enrolled in the program. The advanced program offered consists of approximately 3700 hours of formal intense instruction over a twenty-four month period. The program results in conferring a certificate of advanced education in orthodontics on successful students. The Petitioner's duties as Dean of the Dental School of Orthodontics, are divided between administrative and teaching duties. Approximately 75 percent of his duties are attributable to administrative matters and 25 percent to teaching. If the teaching permit is issued, the Petitioner will participate in clinical instruction at the Dental School of Orthodontics. The accreditation body for dental programs in the United States is the Commission on Dental Accreditation of the American Dental Association (the Commission). The Commission is a specialized programmatic accrediting agency recognized by the United States Department of Education. It conducts all aspects of the accreditation process for the more than 1300 programs for dental, allied dental, and advanced dental education in the Untied States. The accreditation is for the program itself, and not for the sponsoring institution. The Petitioner, on behalf of the Dental School of Orthodontics, applied to the Commission for accreditation and personally participated in the accreditation review process. The Commission's accreditation standards are set forth in a document entitled "Accreditation Standards for Advanced Specialty Education Programs in Orthodontics and Dentofacial Orthopedics" that was introduced in Petitioner's Exhibit Two in evidence. The accreditation process requires compliance with six standards contained in that document. The standards address institutional commitment and program effectiveness, the program director and teaching staff, the facilities and resources, the curriculum and program duration, the advanced education student selection, and research. The Commission concluded that the Dental School of Orthodontics is in compliance with all accreditation standards. See Petitioner's Exhibit Four in evidence. The curriculum for the Dental School was developed in accordance with the self-study guide of the Commission on Dental Accreditation of the American Dental Association. As a result of the accreditation process and evaluation, the Commission sent a letter dated August 5, 2003, to David L. Harlow, President of Jacksonville University, containing the following passage: The program in orthodontics and dentofacial orthopedics is accredited by the Commission on Dental Accreditation [and has been granted the accreditation status of 'initial accreditation.'] The Commission is a specialized accrediting body recognized by the United States Department of Education. That letter from the Commission also contains the following passage: Based upon all the information presented, the Commission concluded that the program is in compliance with the Accreditation Standards, including Standard 1-1 regarding financial support from entities outside of the institution. Accordingly, the Commission adopted a resolution changing the accreditation classification of the educational program from 'preliminary provisional approval' to 'initial accreditation.' No additional information is requested at this time. See Petitioner's Exhibit Four in evidence. Petitioner's Exhibit Three consists of the listing of from the American Dental Association of all Florida programs currently accredited by the Commission. The School of Orthodontics is included on that list. The Petitioner has never failed the Florida Dental Licensure Examination. The Petitioner is also a full-time faculty member at the Dental School of Orthodontics at Jacksonville University. The Petitioner has agreed not to engage in the practice of dentistry pursuant to the teaching permit if it is issued, except under the programs of the Dental School of Orthodontics. The Petitioner has also agreed that if the teaching permit is issued, all records pertaining to the teaching practice shall be subject to review and available to the Board of Dentistry. The Petitioner has also agreed that if the teaching permit is issued, information requested by the Board of Dentistry will be submitted for the purpose of allowing the Board to evaluate compliance with applicable laws regulating the practice of dentistry. The Petitioner has provided proof of current CPR certification to the Board of Dentistry. The Board of Dentistry does not issue or grant accreditation to dental programs in the State of Florida. Rather, the Board defers to the Commission as to its accreditation decisions. As shown by Respondent's Composite Exhibit One in evidence (letter of May 12, 2003, from attorney Bruce D. Lamb to the Executive Director of the Board of Dentistry) the Commission voted to discontinue awarding preliminary provisional approval status as to accreditation. According to that letter the United States Department of Education does not consider preliminary provisional approval to constitute accreditation. In fact, the Commission Communications Update of Fall 2002 indicates that the Commission has a firm policy that a program is strongly encouraged not to enroll students/residents until "initial accreditation" status has been obtained. If a program enrolled students or residents without first having been granted "initial accreditation" status, the Commission will notify all students or residents enrolled of the possible ramifications of enrollment in a program operating without accreditation. Thus, at least implicitly, the Commission and the U.S. Department of Education considers "initial accreditation" status, conversely, to constitute accreditation, at least for purposes of admission of students and residents to such a program.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that the Respondent enter a Final Order determining that the Petitioner is in compliance with the above- referenced statute and Rule, relating to the issuance of a teaching permit and that the application of the Petitioner for the teaching permit at issue be granted. DONE AND ENTERED this 15th day of March, 2004, in Tallahassee, Leon County, Florida. S 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 Clerk of the Division of Administrative Hearings this 15th day of March, 2004. COPIES FURNISHED: Lawrence Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810 Ann Cocheu, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue At issue in this proceeding is whether petitioner's challenge to the grading of his dental manual skills examination should be sustained.
Findings Of Fact Background Petitioner, Jorge Jose Velis, sat for the dentistry manual skills examination pursuant to Section 466.006(3)(c)3, Florida Statutes (1991), in November 1991. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 2, 7 and 8. The respondent sustained petitioner's challenge to the grading of procedure number 7 and had such procedure regraded, but such regrading failed to raise the overall grade awarded for the procedure. Respondent denied petitioner's challenge to the grading of procedures 2 and 8. In turn, petitioner filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to contest the respondent's grading of procedures number 7 and 8. The examination procedure During the course of the examination at issue in this proceeding, the candidates were called upon to exhibit manual skills by performing various procedures on a laboratory model. The quality of the candidate's performance was then graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the particular procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, and a grade of "5" represented outstanding dental procedure. See Rule 21G-2.013, Florida Administrative Code. Each of the examiners who participated in both the original grading of petitioner's model and the regrade had been licensed by the Florida Board of Dentistry for at least five years, and had participated in a day-long standardization training session the day before the examination was offered. Based on their previous performance as graders and their performance at the November 1991 examination, these examiners demonstrated a statistically acceptable grade variation range. Petitioner's examination results and review. Petitioner received a final grade of 2.97 on the examination, which was below the minimum passing grade of 3.0. Pertinent to this case, respondent received a grade of 2.66 for procedure 7, based on scores of 1, 3 and 4 from the individual examiners, and a grade of 2.66 for procedures 8, based on scores of 3, 1 and 4 from the individual examiners. Dr. Theodor Simkin, the respondent's consultant, upon petitioner's request for a regrade, examined petitioner's models and the evaluations of the examiners with regard to procedures number 7 and 8. In Dr. Simkin's opinion, which is credited, the original grade of 1 assigned to procedure 7 did not conform with the grading criteria since petitioner's error was not serious enough to warrant a grade of one. Accordingly, Dr. Simkin recommended a regrade of procedure number 7. With regard to procedure number 8, Dr. Simkin did not recommend a regrade because in his opinion, which is credited, the low grade of 1 was warranted because of a sever undercut made by petitioner on the tooth which would prevent any crown made up for the tooth from fitting properly. Accordingly, the assignment of a failing grade of 1 for procedure number 8 was appropriate under the grading criteria. Based on Dr. Simkin's conclusions, petitioner's procedure number 7 was regraded. In such regrading, petitioner's model was hand-delivered by a Department of Professional Regulations representative to three examiners, different from the original examiners, but all of whom participated in the standardization and grading of the November 1991 examination. In the regrade, petitioner received scores of 3, 3 and 2, for an average or final grade of 2.66, the same failing score he had previously received. The scores assigned by the examiners on regrading were, however, rendered in conformance with the grading criteria, and were an appropriate reflection of petitioner's performance. Here, the proof demonstrates that the regrade of procedure number 7 and the original grading of procedure number 8 were rendered in accordance with the grading criteria, and that petitioner's final grade of 2.97 was appropriately derived. Accordingly, petitioner failed to attain a minimum passing grade on the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of December 1992. WILLIAM J. KENDRICK 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 December 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1 & 2. Unnecessary detail. Addressed in paragraph 5. Addressed in paragraph 10. Addressed in paragraphs 2 and 5-8. Rejected as argument or addressed in paragraph 12. Respondent's proposed findings of fact are addressed as follows: 1 & 2. Addressed in paragraphs 1 and 10. 3. Addressed in paragraphs 3 and 5. 4-9. Addressed in paragraphs 5-8, otherwise unnecessary detail. 11-12. Addressed in paragraphs 3 & 4, otherwise unnecessary detail. 13. Addressed in paragraph 8. COPIES FURNISHED: Jose I. Perez, Esquire Grove 2000 Building Suite 100-D 2000 South Dixie Highway Miami, Florida 33133 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
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 Whether Respondent Tessler has violated Florida Statute Section 466.24(3)(a), (c) and (d) and is guilty of misconduct, malpractice, or willful negligence in the practice of dentistry. Whether Respondent is guilty of receiving compensation because of a false claim intentionally submitted. Whether Respondent has failed to treat a patient according to acceptable dental standards and procedures.
Findings Of Fact Dr. Stephen W. Tessler, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, engaged in the practice of dentistry in his office located at 1245 NW 190th Street, North Miami, Florida. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Tessler, which was sworn to and subscribed in July, 1978. The accusation contained two counts, and the Respondent requested an administrative hearing. The hearing was first scheduled for October 20, 1978, but was continued upon motion of the Petitioner to January 10, 1979, and rescheduled upon motion of the Respondent to March 8, 1979. During the months of January, 1977, through mid-June, 1977, Ms. Rachel Dixon was a dental patient of Respondent Tessler. Ms. Dixon is a 32-year-old woman with a history of severe tooth and gum problems. She had prosthetic appliances and six (6) anterior crowns placed in her mouth ten (10) to fifteen (15) years ago in Pennsylvania. She had engaged a dentist, a Dr. Snyder in Hollywood, Florida, but had not seen him for some two (2) years prior to making an appointment with the Respondent for relief from pain and gum irritation, and for cosmetic improvement. Ms. Dixon is an unhappy dental patient with an inordinate fear of dentists, and her home dental hygiene care is inadequate. At the time Ms. Dixon engaged Respondent Tessler, she was in need of dental treatment for full-mouth gross peridontal inflammation and infected root canals in tooth number 30. She employed the Respondent for the purpose of providing dental treatment for peridontal disease, endodonic care of tooth number 30, recapping to the anterior teeth, and restoration of an upper right bridge on teeth number 3, 4 and 5. Ms. Dixon was referred to Dr. Hirschfield, an orthodontist in Respondent's office, for x-rays. Costs were discussed, a payment made, and a schedule of appointments planned. Thereafter, Ms. Dixon kept numerous scheduled and unscheduled appointments with the Respondent. Respondent Tessler replaced existing crowns on six (6) anterior teeth (number 6, 7, 8, 9, 10 and 11) with six (6) anterior foil porcelain jackets. In the presence of peridontal disease, Respondent attempted to replace an upper right bridge on teeth number 3, 4 and 5. Respondent was dissatisfied with the "final restoration" but used it instead of making a temporary one. He placed it in Ms. Dixon's mouth because it was better than a temporary restoration. Respondent had told Ms. Dixon that he would satisfy her and would redo the temporary restoration on her front teeth. He did the restoration a second time. Initially, Ms. Dixon was pleased, but later she was not satisfied because she felt pain upon contact with food, drink, or air that was either hot or cold. At the time of hearing no further work had been done in this area of her mouth, and she still complained of pain. On the second or third visit, within two (2) weeks of Ms. Dixon's initial visit, Respondent treated tooth number 30 by performing three (3) root canal treatments. After a number of weeks, Ms. Dixon continued to experience pain in this tooth. Respondent treated tooth number 30 again, reopening two (2) root canals to permit drainage and prescribing an antibiotic. During the course of the endodonic treatment on tooth number 30 an existing lower right bridge on teeth number 28, 29, 30 and 31 was damaged. Ms. Dixon did not return to Respondent for treatment, although she was in pain and attempted for two (2) or three (3) days to reach Respondent by telephone calls to his office. Thereafter, a week or ten (10) days later, Ms. Dixon sought the services of Dr. Marvin Levinson. She indicated to Dr. Levinson that she was not going to return to Respondent Tessler, that she suffered from pain, and that she was concerned about her appearance. Dr. Levinson examined her and referred her to Dr. Satovsky, an endodontist, for immediate relief of pain for a dental abscess, and to Dr. Garfinkle, a peridontist, for a complete peridontal work-up. It was Dr. Garfinkle's opinion that the caps placed by Respondent Tessler in the mouth of Ms. Dixon were placed in the presence of peridontal disease or that the caps caused the disease. He could not determine which came first. Dr. Garfinkle stated that Ms. Dixon was prone to peridontal disease and that she was an unhappy dental patient. Dr. Garfinkle could not comment on the condition of Ms. Dixon's mouth at the time of the treatment given by Respondent, inasmuch as he had not seen her until some eight (8) months had passed. Dr. Satovsky stated that on tooth number 30, which he treated subsequent to the root canal treatment done by Respondent Tessler, the canals were inadequately cleaned and enlarged. He stated that there were three (3) canals on the tooth, two (2) of which had the rods removed, and that he removed the third. He retreated the three (3) canals and alleviated the pain of Ms. Dixon. Dr. Satovsky could not state whether he thought the work of Respondent was negligent, inasmuch as he could not state what the tooth looked like when Respondent first saw it. Dr. Marshall Brothers, the Secretary/Treasurer of the State Board of Dentistry, found that the permanent type of restoration was adequate but not good for a temporary restoration. Upon his examination of Ms. Dixon's mouth, he found her general peridontal condition to be poor. Dr. Brothers could not determine whether her condition was a result of the restoration or existed prior to the restoration. He assumed the condition to be the one or the other because of the recency of the restoration. Respondent Tessler is a licensed dentist and a general practitioner, and is licensed to perform the dental work involved in this case. His charges for this work were substantial, but there was no evidence submitted that said charges were excessive or that Ms. Dixon misunderstood them. Alternative methods of treatment were discussed. The testimony and the evidence in this case show that Respondent worked within his ability as an average dentist. There was no showing of willful negligence, although Respondent's judgment may have been poor, and probably he should have referred Ms. Dixon to specialists. Affixing a bridge and crown work in the presence of gum disease is not the acceptable standard of care within the dental profession, and Respondent admits to that fact; however, he felt that it would improve the overall condition, and he had not released Ms. Dixon as a patient. Ms. Dixon was not pleased with Respondent's work or his charges ad, after attempting to make an appointment, left Respondent Tessler for another dentist. Ms. Dixon was insured through her husband's employer by a policy issued by Aetna Casualty and Surety Company. On January 31, 1977, Respondent Tessler submitted a pre-treatment estimate for work to be done consisting of porcelain-to-gold restorations on anterior teeth number 7, 8, 9, 10 and 11, and for a fixed bridge on teeth number 28, 29, 30 and 31, plus additional treatment in the amount of $2,420.00. The insurance company refused to pay for all treatment except for the fixed bridge on teeth number 28 through 31. On April 27, 1977, Respondent submitted the customary insurance treatment form to Aetna certifying that the bridgework had been performed and completed on April 27, 1977. Based on Respondent's representation, Aetna paid Respondent $649.50. The bridgework had in fact not been done, nor were the anterior crowns porcelain-to-gold restorations. Approximately one year later, Respondent refunded the overage to Aetna upon the request of the insurance company. Both parties submitted proposed findings of fact and memoranda of law, and Respondent submitted a proposed order. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order, they have been specifically rejected as being irrelevant or not having boon supported by the evidence.
Recommendation Based upon the violation as established, it is recommended that the license of Stephen W. Tessler, D.D.S., be suspended for a period of time not exceeding one year from the date of the Final Order. DONE and ORDERED this 12th day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Stephen Mechanic, Esquire Suite 200 1125 NE 125th Street North Miami, Florida 33161
