The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Oakwood was licensed by Petitioner as a skilled nursing facility. Oakwood operates a 120-bed nursing home located in Eustis, Florida. From June 19 through July 1, 2002, Dorothy Mueller, who at the time was employed by AHCA as a Registered Nurse Specialist, conducted a complaint investigation at Oakwood. She received the complaint from Florida Protective Services of the Department of Children and Family Services (DCFS). Ms. Mueller is Surveyor Minimum Qualification Test (SMQT) qualified. She is currently licensed as a registered nurse in Florida but retired from AHCA in December 2002. Ms. Mueller began the complaint investigation on June 19, 2002. She announced her visit to the facility's administrator, observed residents, interviewed staff, and reviewed records. She requested a sampling of residents' records. The sample she reviewed included the record of Resident D.R. During the course of the complaint investigation, Ms. Mueller did not interview Resident D.R. as she had already been discharged from the facility. Ms. Mueller examined Resident D.R.'s care plans, assessments, nursing notes, and wound care. Nurse Mueller was specifically looking for whether anyone at Respondent's facility was actually looking at the skin of Resident D.R.'s heels because Resident D.R. was wearing TED hose. Because Resident D.R. was at risk for developing pressure sores, Ms. Mueller was concerned that she found no specific preventative measures taken by the facility to help prevent the development of pressure sores on Resident D.R.'s heels.1/ In determining her findings, Ms. Mueller took into consideration the findings of the person from DCFS who had filed the complaint that caused AHCA to send Ms. Mueller to investigate. Additionally, Ms. Mueller also took into consideration notes from Resident D.R.'s family physician and statements he made to her regarding the condition of Resident D.R.'s heels two days after her discharge from Oakwood.2/ Based on Ms. Mueller's findings during this complaint investigation, federal tag F224 was cited against Oakwood. Resident D.R. was admitted to Oakwood on February 24, 2002, following a four-day hospitalization for hip surgery due to a fall at her home which resulted in a hip fracture. Resident D.R.'s hospital records reveal the development of a skin ulcer in her sacral area the morning of February 23, 2002, and that the ulcer worsened before Resident D.R.'s discharge from the hospital on February 24, 2002. Upon admission to Oakwood, Resident D.R. was assessed by Dorothy Gilbert, a Registered Nurse employed by Oakwood. Nurse Gilbert's full skin assessment of Resident D.R. noted two skin ulcers on Resident D.R.'s sacral area with no other skin breakdown. Nurse Gilbert noted that Resident D.R.'s heels were "soft nonreddened." According to Nurse Gilbert, that notation meant that the skin on Resident D.R.'s heels was normal, intact, nonreddened and showed no deterioration. The nurse's assessment form contains a diagram of a person showing front and back with the following instruction: "Skin: Indicate on diagram below all body marks such as old or recent scar, bruise, discoloration, laceration, amputation, decubitus ulcer, and any other questionable marking(s) considered other than normal." Nurse Gilbert made detailed notations and drawings on the diagram indicating any and all skin breakdown of Resident D.R. The foot area of the diagram contained no notation or drawing indicating any skin breakdown on Resident D.R.'s feet upon admission to Oakwood. Another page of the nurse's assessment form is entitled "Braden Scale-For Predicting Pressure Sore Risk." Nurse Gilbert gave Resident D.R. a score of 14 which identified her to be at moderate risk for pressure sores or ulcers. She was at risk for skin breakdown over her entire body, not just her heels, and her care plan accounted for this. Resident D.R. was wearing TED hose at the time of admission and wore them throughout her stay. TED hose are anti- embolism stockings typically used following surgery to enhance blood flow and prevent clotting. Resident D.R. was a petite, elderly woman weighing 83 pounds. Appropriate assessments and interdisciplinary care plans were developed for Resident D.R., including for her existing skin ulcers also referred to as sores or wounds. During Resident D.R.'s stay at Oakwood, one of her existing sacral skin wounds improved and the other wound healed. She received daily wound treatment by the nurses on duty and the wound care nurse measured her ulcers and assessed her skin each Thursday. Cynthia Burbey is an Licensed Practical Nurse employed by Oakwood. She observed Resident D.R.'s heel condition usually every day when she gave her treatment for wound care on her coccyx, and on her shower days which occurred twice a week. While the Certified Nurses Assistants (CNAs) give showers to the residents, the nurses follow the bathing of the resident with a body check/body assessment. Nurse Burbey never saw any skin deterioration on Resident D.R.'s heels, including the day Resident D.R. was discharged. At the time of the discharge, Nurse Burbey did a body assessment from head to toe of Resident D.R. and did not observe any skin deterioration on Resident D.R.'s heels. The CNAs at Respondent's facility play a significant role in observing skin condition and are to report any change in skin condition to the nurses. In addition to their role in observing skin condition at bath time, the CNAs repositioned Resident D.R. every two hours and assisted her in and out of bed each day. She was completely dressed and undressed each day by her attending CNAs who would remove her TED hose and change them. Pressure on skin over bony areas is a primary cause of pressure ulcers or bed sores. Resident D.R. received a variety of services and devices during her stay at Oakwood aimed at reducing the likelihood of bed sores, including knee wedges for both her bed and wheelchair, calf pads for her wheelchair, a pressure reducing mattress, and physical therapy. Because of her petite size, the knee wedge used for her bed resulted in Resident D.R.'s heels being "floated" off her mattress. Resident D.R., also received physical therapy services including range of motion exercises while at Oakwood. The range of motion exercises for her lower extremities would have provided her therapists and restorative aids an opportunity to detect evidence of skin breakdown on her heels, because her heels were touched by the therapists or aides during these exercises. While Resident D.R. wore socks for these therapies, the therapists and aides saw no evidence of staining on her socks, which often happens from drainage from a heel wound, or any evidence that their touching her heels resulted in any pain to Resident D.R. The restorative aides provided Resident D.R. with range of motion exercises six days a week, including the day before her discharge from Respondent's facility. The initial nursing assessment indicating "heel soft, nonreddened" raised Ms. Mueller's concerns that there was no care specifically directed toward Resident D.R.'s heels. However, there is no competent evidence that Resident D.R. had heel wounds either upon admission or which developed during her stay at Oakwood. Accordingly, there was no reason for Oakwood to have a skin care plan specifically addressing Resident D.R.'s heels, particularly in light of the fact that Oakwood had a skin care plan in place for Resident D.R. which was followed. Further, during cross examination, when asked whether the phrase "heel soft nonreddened," was an indicator that Resident D.R. had a problem with her heel, she acknowledged, "I would have to answer yes and no to that." AHCA 's charge of failure to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers is based solely on hearsay evidence. AHCA's sole witness, the surveyor who conducted the complaint investigation, never observed Resident D.R. at any time, either in Respondent's facility or after her discharge. The evidence presented does not establish that Oakwood failed to have due diligence to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for bilateral pressure sores. There is no competent proof that any heel sore developed on Resident D.R.'s heels while a resident at Oakwood. Moreover, the evidence shows that the nursing staff appropriately addressed the skin care needs of Resident D.R.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Oakwood Center. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2003.
The Issue The issues in this case are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2003),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency in Florida charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Dr. Thompson has been a licensed physician in the State of Florida, having been issued license number ME 44112. Dr. Thompson is board-certified by the American Board of Obstetrics and Gynecology with a General Certificate in Obstetrics and Gynecology. On July 18, 2003, T.C., a 41-year-old female, presented to Dr. Thompson with complaints of very heavy menstrual bleeding with clots lasting four days. She was requesting a hysterectomy. T.C. had been a patient of Dr. Thompson for 17 years. She had been complaining of heavy menstrual bleeding for two years, and Dr. Thompson had prescribed birth control pills, which seemed to help at first, but by July 18, 2003, were no longer relieving the symptoms of heavy bleeding. Dr. Thompson ordered a vaginal ultrasound, which revealed two uterine fibroids that were submucous in location. The fibroids were the likely cause of T.C.’s heavy bleeding. On August 12, 2003, T.C. returned to Dr. Thompson’s office for a surgical consult. Dr. Thompson discussed the alternative of a laparoscopic hysterectomy rather than an abdominal hysterectomy. Dr. Thompson also discussed alternatives to a hysterectomy to resolve T.C.’s problems, including a hysteroscopy, a dilation and curettage (D&C), a thermal ablation, a myomectomy, an Essure procedure, and a bilateral tubal ligation with laparoscopy. The thermal ablation involves the injection of a liquid material into the uterus and the heating of the liquid to cauterize the lining of the uterus. A myomectomy is the removal of the fibroids. The Essure procedure was to provide permanent birth control. T.C. chose to have the hysteroscopy, the D&C, the ablation, the myomectomy, and the Essure procedure. The procedures were scheduled for September 11, 2003, at the Naples Day Surgery, which is a freestanding surgical ambulatory center. T.C. went to see Dr. Thompson on September 9, 2003, to fill out the paperwork for the surgical procedures and to again discuss the options available to her. Dr. Thompson did discuss the options available to her and signed the consent form in the presence of T.C., indicating that he had discussed the reasonable alternatives with T.C. and that she had been informed about the foreseeable risks and benefits of the procedures that she had chosen. Around 8:00 a.m. and 9:00 a.m. on September 11, 2003, Dr. Thompson was informed that one of his obstetrical patients (obstetrical patient) was in labor with her first child at The Birth Place at North Collier Hospital, which is across the street from the Naples Day Surgery. Dr. Thompson examined the obstetrical patient. Dr. Thompson had arranged for Dr. Beckett to provide coverage for his patients, including the obstetrical patient, while Dr. Thompson was performing surgery on T.C. at the Naples Day Surgery. At approximately 11:40 a.m., on September 11, 2003, T.C. presented at the Naples Day Surgery for the procedures. Again, Dr. Thompson reviewed the procedures with T.C. and discussed alternatives and the risks and benefits of the procedures that were to be done. Prior to beginning surgery on T.C., Dr. Thompson was notified by the nurses at The Birth Place that the obstetrical patient’s labor was progressing. Dr. Thompson prescribed some pain medication for the obstetrical patient and advised the nurses that he was going into surgery and that Dr. Beckett would be covering for him with the obstetrical patient. Dr. Thompson began surgery on T.C. and performed the hysteroscopy and D&C. During the hysteroscopy, it was noticed that there was a problem with the hysteroscope being used and that it would not fit the Essure device that would be used later. Prior to Dr. Thompson beginning the thermal ablation procedure, he was informed by telephone that the obstetrical patient was making rapid progress and that Dr. Beckett was stuck in traffic and probably would not get to The Birth Place in time to deliver the baby. Dr. Thompson instructed the nurse at The Birth Place to find any available physician because he was in surgery. Dr. Thompson performed the thermal ablation. At the end of the procedure, it was determined that the instrument necessary to perform the Essure procedure was not in the operating room and that the instruments needed for the myomectomy were not sterile. It was necessary that the instrument needed for the Essure procedure be located and that the instruments for the myomectomy be flash sterilized, which would take about 15 minutes. While in the operating room, Dr. Thompson received another telephone call from The Birth Place. The nurse advised Dr. Thompson that no physician was available in-house to deliver the baby and that no other physician could be located quickly enough to get to The Birth Place in time to deliver the baby. The essence of the telephone call to Dr. Thompson was that if a physician did not get to The Birth Place quickly that the baby would be delivered without an attending physician. At the time Dr. Thompson received the last telephone call from The Birth Place, T.C. was in stable condition and nothing further could be done until the instruments for the myomectomy were sterilized and an appropriate scope was located for the Essure procedure. Dr. Thompson made the decision to leave T.C. with the anesthetist and go across the street to deliver the baby. He informed the surgical team that he was going to deliver the baby and would be back as quickly as possible. Since The Birth Place is directly across the street from the Naples Day Surgery, it took Dr. Thompson about one or two minutes to get to the delivery room at The Birth Place. He left the operating room at the Naples Day Surgery at 13:35. He delivered the baby without complications and returned to the operating room at the Naples Day Surgery by 13:50. At that time, the instruments were sterilized for the myomectomy, and the proper scope had been located for the Essure procedure. Dr. Thompson performed the myomectomy and the Essure procedure without complications. The head nurse at the Naples Day Surgery advised Dr. Thompson that she would prepare a variance report that noted his absence from the operating room from 13:35 to 13:50. Dr. Thompson’s physical presence during the delivery was noted in the records of The Birth Place. It is not uncommon for a physician to leave the operating room during a procedure to use the restroom or get a drink of water. It also is not uncommon during an operation for a physician to have to wait for the results of a frozen section biopsy, which can take 30 minutes, or to have to wait during a procedure while a new instrument is obtained to replace a broken instrument. While Dr. Thompson was at The Birth Place, the operating room personnel at the Naples Day Surgery knew where Dr. Thompson was, what he was doing, and how to reach him. There were multiple means of communications between both locations including cell telephones, cordless telephones, and hard-wired telephones. Dr. Thompson did not notify T.C. that he left the operating room and the building between performing surgical procedures on her. Jose H. Cortes, M.D., testified as an expert witness on behalf of the Department. Dr. Cortes has been licensed to practice in Florida since 1979. He is board-certified by the American Board of Obstetrics and Gynecology. Dr. Cortes currently specializes in gynecology with the Cleveland Clinic in Weston, Florida. From 2001 to 2006, he served as an assistant professor of Clinical Obstetrics and Gynecology for the University of Miami. It is Dr. Cortes’ opinion that Dr. Thompson fell below the standard of care when he left T.C. in the operating room to go to another building to deliver a baby. His opinion is based on Dr. Thompson's having no way of knowing when he left T.C. if the delivery would be complicated and would delay his return to the operating room. Dr. Cortes opined that Dr. Thompson should have cancelled the remaining procedures for T.C. and gone to deliver the baby. Dr. Cortes also opined that Dr. Thompson fell below the standard of care by not documenting in his medical notes his absence during the delivery of the baby and by not telling T.C. that he had left the building to deliver a baby while T.C. was in the operating room. It was his opinion that T.C. should have been made aware of the delay between her procedures because the increased time under anesthesia could result in possible complications at a later time. During his practice of medicine, Dr. Cortes has had to wait for the results of a frozen section during an operation and the delay has been as long as 20 to 30 minutes. Dr. Cortes opined that as long as the patient was stable it was within the standard of care for the physician to leave the operating room during this delay. He did not indicate whether in the case of waiting for the results of a frozen section, the physician was required to note in the medical records the delay and tell the patient of the delay after the operation. Lawrence R. Antonucci, M.D., testified as an expert witness for Dr. Thompson. Dr. Antonucci has been practicing as a physician since 1983 and is board-certified in obstetrics and gynecology. It is Dr. Antonucci’s opinion that Dr. Thompson was faced with very unusual circumstances because he had to make a decision on which patient needed him the most. Based on the circumstances, Dr. Antonnuci opined that Dr. Thompson met the standard of care when he left the operating room to deliver the baby. The operation with T.C. was delayed while the instruments were being sterilized and a scope was being located. T.C. would have remained under anesthesia during the delay regardless if Dr. Thompson had left the operating room or stayed. Once Dr. Thompson got to The Birth Place he could assess the situation, and, if necessary, he could call the Naples Day Surgery and cancel the additional procedures for T.C. Dr. Antonucci also opined that Dr. Thompson did not depart from the standard of care when he did not put in his medical notes that he had left the operating room to go across the street to deliver a baby. He was of the opinion that the medical records were adequate to advise future health care providers of the procedures that were done. It was also his practice not to put in the medical notes when there was a delay due to waiting for the results of a frozen section. Dr. Antonucci opined that Dr. Thompson’s failure to tell T.C. that he had been absent from the operating room for 15 minutes did not fall below the standard of care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Thompson did not violate Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 31st day of October, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 31st day of October, 2007.
Findings Of Fact Respondent is a licensed dentist in the State of Florida, having been issued license number DN 0009725. Respondent's last known address is 1521 Powell Court, Huntington, West Virginia, 25701. The minimum standard of care for treatment of any patient with periodontal disease who anticipates orthodontic treatment requires either that the underlying periodontal disease be resolved prior to orthodontic treatment or that the periodontal disease be controlled through frequent and regular periodontal care administered concurrently with the orthodontic treatment. Orthodontic treatment can exacerbate existing periodontal disease in any patient. Adequate, frequent, and regular periodontal care is especially important for adults who typically have less bone turnover and cell repair than that found in younger patients. Responsibility for monitoring and supervising the periodontal health of a patient is shared by the orthodontist, on the one hand, and either the general dentist or the periodontist, on the other. Respondent provided dental services and treatment to Michael J. Doherty, an adult male, from November 7, 1983, until sometime in June, 1985. The dental services and treatment provided by Respondent consisted of the extraction of 4 bicuspids and the application of an orthodontic appliance. Respondent first saw Mr. Doherty on November 7, 1983, at the Omni Dental Clinic (the "Clinic"). Respondent was not the dentist of record for Mr. Doherty. The dentist of record was a general dentist who was also employed at the Omni Dental Clinic. Mr. Doherty was diagnosed by the dentist of record as having early periodontal disease. The dentist of record prescribed treatment for Mr. Doherty's periodontal disease before Respondent began orthodontic treatment. The treatment for Mr. Doherty's periodontal disease consisted of: a gross scaling of Mr. Doherty's entire mouth on November 30, 1983; a prophylaxis cleaning for approximately one hour on December 14, 1983; and a periodontal scaling of the entire mouth on January 9, 1984. The patient was also instructed to increase the frequency of his brushing and other home health care. The patient was released for orthodontic treatment, and Respondent began such treatment on January 23, 1984. During Respondent's orthodontic treatment, the patient received two more prohylaxis cleanings in August, 1984, and on December 27, 1984. The diagnostic studies and periodontal treatment for Mr. Doherty prior to and during Respondent's orthodontic treatment of the patient were inadequate. Adults with existing periodontal disease should receive adequate periodontal care and monitoring every six weeks. The care required to properly treat the periodontal disease may range from basic scaling all the way to surgical procedures. Mr. Doherty received two prohylaxis cleanings during Respondent's orthodontic treatment. Responsibility for the periodontal health of a patient during orthodontic treatment is shared by the orthodontist. The condition of Mr. Doherty's periodontal disease deteriorated significantly during Respondent's orthodontic treatment. The patient consulted another orthodontis, Dr. David Kornbluth, on December 5, 1985. Dr. Kornbluth was concerned over the fact that the patient's teeth were very loose and that there was considerable pocketing in and around the teeth. Dr. Kornbluth questioned whether continued orthodontic treatment was appropriate and referred Mr. Doherty to a general dentist, Dr. Alan Burch. Dr. Burch examined Mr. Doherty on December 6, 1985, and concluded that the patient needed immediate periodontal and endodontic evaluation. Dr. Burch referred the patient to a periodontist, Dr. Leonard Garfinkel. 3/ Dr. Garfinkel examined Mr. Doherty on December 23, 1985, and diagnosed the patient as having severe periodontal disease with gross soft tissue inflammation and significant osseous loss. 4/ The condition of the patient's lower anterior teeth was poor. He had generalized pockets and excessive mobility in his teeth. The patient was instructed to discontinue orthodontic treatment and was placed on periodontic treatment consisting of three visits of deep scaling and curettage in conjunction with plaque control. The patient was also placed on a Hawley retainer to adjust his bite. 5/ The orthodontic appliance was subsequently removed and periodontic treatment in the form of deep scaling was repeated on March 27 and May 16, 1986. The patient's prognosis improved from poor to guarded. Respondent failed to meet the minimum standards of care in the practice of dentistry by applying orthodontic appliances without an accurate diagnosis of Mr. Doherty's periodontal condition. Respondent failed to meet the minimum standards of care in the practice of dentistry by providing orthodontic treatment without adequate care of the patient's underlying periodontal disease. Respondent was found guilty of negligence in the services provided to Michael J. Doherty. The adjudication of negligence was entered on January 1, 1988, in the Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida. Respondent did not fail to keep adequate medical records. The Omni Dental Clinic was not operated or controlled by Respondent. Respondent was an independent contractor of the clinic. Records for Mr. Doherty were kept by both Respondent and the patient's general dentist and were maintained by the Clinic. The Clinic went out of business and disposed of the records in a manner that made them unavailable to Respondent. Records that otherwise would have been available to the parties in this proceeding were in the possession of counsel for the plaintiffs in the civil negligence action. The records produced in this proceeding did not comprise all of the records of Respondent.
Recommendation Based upon the foregoing facts and conclusions of law, it is recommended that Petitioner enter a final order finding Respondent guilty of violating Section 466.028(1)(y), Florida Statutes, impose a $5,000 administrative fine, and suspend Respondent's license for 3 months. The final order should provide that, upon reinstatement, the Respondent's license shall be placed on probation for a period of 2 years. During the period of probation, Respondent should be required to complete 30 hours of continuing education in diagnosis and treatment planing, 30 hours of continuing education in periodontics, and 18 hours of continuing education in risk management. All continuing education should be in compliance with Florida Administrative Code Rule 21G-12. RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of July, 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991.
Findings Of Fact The Petitioner premised the prosecution of its case upon certain oral testimony presented in the course of the hearing and certain tangible items of evidence presented in the course of the hearing. The Respondent presented a case in the form of oral testimony, to include testimony by the Respondent, and certain tangible evidence offered in the course of the hearing. The Respondent's presentation was conditioned on the possible rejection by the hearing officer and/or the Florida State Board of Podiatry Examiners, of the Respondent's motion to dismiss or in the alternative motion for more definite statement directed to count (2) of the administrative complaint, and the Respondent's motion which was in the form of a request for directed verdict addressing both counts in the administrative complaint, such motion being made at the close of the Petitioner's presentation. The first witness for the Petitioner was Irma Chanter, who is a dietary supervisor in a local hospital in Palm Beach County. The witness testified that she had been a patient of the Respondent for 3 or 4 years and during that time had received palliative care for her feet. One of the particular areas which was treated by Dr. Perry was the toenails of the patient, Irma Chanter. In connection with that foot problem the witness stated that Dr. Perry indicated that an operation was needed to remove the ingrown toenails and that Dr. Perry suggested that if this operation was not performed the patient would be crippled. The witness was not certain when in time the subject of the operation was discussed with the Respondent; however, it was developed in the course of her testimony that she had bean seeing Dr. Perry since June, 1969. This date was suggested to the witness as being the date of the initial visit to the Respondent and the witness did not take issue with the date. She also indicated that she had checked her income tax records and they showed that she had been Dr. Perry's patient for 4 or 5 years. By way of response to Dr. Perry's suggestion that surgery was necessary, the witness indicated that she wanted time to think about it, and it was also solicited from her that she could not afford such an operation at the beginning of her treatment by the Respondent. The witness did not know if the condition got progressively worse or better during the palliative care stages, but a decision was made by the witness to have an operation performed to remove the toenails and portions of the toenails that were providing problems for her. This operation was eventually performed on July 22 and July 23, 1974, in the office of the Respondent. Mrs. Chanter wasn't particularly satisfied with the Respondent's care, but she said he was never rude, or otherwise objectional before the operation in July of 1974. After that date complaints against the doctor were made, complaints about matters arising in the course of the operation and the post operative treatment, as alleged by the witness in her affidavit attached to the administrative complaint which is Exhibit "A" in that complaint. The witness also seemed to indicate that there were other areas of dissatisfaction. One of the areas was an assertion by the witness that the respondent had over charged for certain X-ray procedures, in that the charge was $250.00 and the witness thought that this was excessive. Additionally the witness complained that the Respondent had charged $75.00 for certain appliances (arch supports) which were allegedly tailored for her purposes and in fact could have been purchased at any retail drug store. The witness brought the above items with her to the hearing and showed them to the hearing examiner. The items were two metal apparatus which appear to be arch supports with the trade name, Dr. Scholls, affixed. In alluding to the complaints which the witness had about the operation, the initial area of consideration is the cost of the operation. The witness seemed to state that she was told the price of certain procedures to be performed was in the amount of $1,275.00 which is the amount stated in her deposition before the hearing. The witness, however, seemed concerned that the Respondent had not indicated the specific cost of the process of the operation which was performed on July 22 and July 23, 1974, as opposed to giving a quotation which would include certain procedures involving bunions and callouses on her feet, as well as the toenail treatment. It was noted later in the course of the hearing, that charges for the procedures effected on July 22 and July 23, 1974, were in the amount of around $580.00, which was in compliance with the insurance rates of Blue Cross Blue Shield's analysis of proper payment by an insurance carrier for such procedures. Of that quoted amount of $580.00, the witness testified that $243.00 was paid by the Blue Cross - Blue Shield and that $219.00 which was tendered under a separate section of the policy was spent by the witness for matters other than payment of the Respondent. In further testimony about the cost of the operation, the witness indicated that she had been unduly put upon about the payment of her bill to the extent of threats directed from the Respondent about her bill. She said she had not paid the bill because she had contracted staph infection following the operation and consequently did not pay anything out of her pocket for the cost of the operation. The operation itself was a radical matricetomy, in which the toenails on the three lesser toes of both feet were completely removed and portions of the toenails of the great toe and the toe adjacent to the great toe were removed from both feet. The process utilized by the Respondent in the operation was a phenol alcohol technique, by the application of carbolic acid. The witness indicated that something was injected into her toes as an anesthetic and that anesthetic was later identified as being xylocaine with epinephrine, 1-200,000. The witness testified that when the toenails were being removed, she said, "it hurt like sam hill when he started digging in." Nevertheless, she never told him to stop the process during the first day's operation * * NOTE: Page 5 is missing from the Original Recommended Order on file with DOAH and is therefore not available in this ACCESS document. any odor at that time. She doesn't know how many days after the operation it was, that she saw the doctor in the office but she does remember going to work the same day she saw Dr. Perry for the visit. She said she made no further follow ups with the Respondent because she contracted staph infection, as diagnosed by Dr. Donald R. Alkema, a local podiatrist. On the Thursday before her initial examination by Dr. Alkema, the witness said that there was a certain excretion which she characterized as being puss, emanating from the area of the feet where the operation had been performed. On Sunday morning the witness notified Dr. Alkema of her problem and the doctor saw her in the office. At the time she went to see Dr. Alkema on Sunday morning there was an excretion from the area where the operation had been performed and her feet were extremely odoriferous, and the odor was nauseating. The witness testified that Dr. Alkema cleaned her feet and prescribed medicine for her. Since that time Dr. Alkema has been her attending physician as it relates to her foot problem. The witness says that she still has pain in her toes and that she can't perform her work as well as before the operation, and that she takes two aspirin for discomfort associated with her present problem. She said that her right large toe in the nail area aches and throbs. Furthermore, she said that on the toe which is immediately adjacent to the left small toe, the toenail has come back and that the right small toenail has come back, when it was her understanding that none of the last three toenails on the toes of her feet would come back. The Petitioner called Dr. Joseph Castronuovo, a specialist in internal medicine. Dr. Castronuovo has been Mrs. Chanter's treating physician and has treated her for high blood pressure and cardiac problems. The cardiac problems mentioned by the doctor were not identified as major problems. The doctor indicated that his contact with Mrs. Chanter around the time of the operations, as performed by the Respondent in July, 1974, was to the extent of seeing the patient on July 29, 1974 after such operation had been performed. This office visit was after being called by Dr. Alkema. At the time of the office visits the blood pressure was 180/102, when the norm in that time sequence had been 140/80. The feet of the patient, Chanter, appeared inflamed but not particularly infected and the witness testified that he did not treat her feet, although Mrs. Chanter had indicated that he did treat the alleged infection. The doctor further stated that he was not aware of the procedure involved in a radical matricetomy, nor was he aware of the normal post operative appearance of a patient's feet. The Petitioner attempted to solicit testimony from the witness to the effect that the failure of the Respondent to notify the witness at a time when the operation was contemplated was unprofessional conduct on the part of the Respondent, because of the patient's high blood pressure and minor cardiac problem. This testimony was objected to and not allowed as acceptable evidence for deliberation by the hearing officer because the hearing officer was of the opinion that the Respondent was not duly noticed of such a claim by the Petitioner to allow the Respondent to adequately defend against it. It should also be noted that the witness indicated that these standards of notification apply to the medical profession of which the witness is a practitioner and not specifically to the canons prescribed for practicing podiatrists. One comment was made by the witness that he felt that application of anesthetic which had as a part the substance known as ephinephrine was not advisable in the case of Mrs. Chanter. However, later testimony by the Respondent indicated that the percentage of ephinephrine in the xylocaine applied to the patient was one half the normal strength. Further, development of the testimony offered by the doctor concerning the question of the alleged unprofessional conduct for failing to notify the witness of the proposed operation will be developed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Petitioner next tried to produce testimony through a witness Ayn Dupay. Ayn Dupay had been a patient of Dr. Perry in the Spring of 1974, and had had heavy callouses and ingrown toenails. Additionally, she was operated on by the Respondent in July, 1974. This witness' testimony was objected to since it was the contention of the Respondent, that the Respondent had not been duly apprised of any allegations pertaining to this witness, notwithstanding the fact that the Petitioner had subpoened the records of this patient to be produced at the hearing. This objection by the Respondent was sustained because the requirement for notice was felt to be lacking as it relates to testimony by Ayn Dupay and because there appeared to be no other basis for allowing that testimony. A more complete examination of the objections and the reasons for sustaining the objections will be addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Nathan Johnson, a representative of Blue Cross - Blue Shield was called to the stand. He had with him a report rendered by G. M. Perry about the patient, Irma Chanter. This report referred to the procedures which were performed on Mrs. Chanter as being a radical matricetomy. The witness further identified himself as a person who has had a long standing association with people in the field of podiatry, as it relates to the processing of certain insurance claims in this field. Moreover, the witness though not a medical practitioner, has studied the literature on the procedures in the field of podiatry. Based upon the witness' ability and expertise in the field of insurance, the Petitioner tried to establish the witness' opinion on whether or not the toenail should have come back on toes where a total matricetomy had been performed. This testimony was objected to by the Respondent and the objection was sustained on the question of the witness' expertise to determine the reasonable result of a total radical matricetomy. A more complete discussion of the objection and ruling will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Rosemary Colvin, Director of Medical Records, Palm Beach Gardens Hospital, Palm Beach Gardens, Florida, was called to the stand. She produced the records of the patient identified as Albert Frankel, deceased. This patient had been admitted in the Palm Beach Gardens Hospital in the past. Albert Frankel had been a patient of the Respondent, and the purpose of introducing the facts pertaining to Albert Frankel was identified by the Petitioner's counsel as a showing of impropriety on the part of the Respondent pertaining to matters about Albert Frankel. This testimony was objected to because of the lack of notice to defend against matters pertaining to Albert Frankel. Because of such problems with the notice and an insufficient showing of any other reason to justify the introduction of such evidence, the evidence was deemed improper for consideration by the hearing officer in the deliberation of the matters in this case. A more complete discussion of the reasons will be set forth in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Donald Alkema took the stand. Dr. Alkema is a practicing podiatrist who has been in the profession for five years and is licensed in the State of Florida to practice. A stipulation was entered into concerning the expertise of the witness to testify about matters relating to the treatment of Irma Chanter's foot problems. The witness testified that he first saw Irma Chanter on July 28, 1974, at which time he debrided certain necrotic tissue associated with the operation performed by Dr. Perry, and that he drained the puss and applied a cleansing agent. The witness provided certain slides of photographs taken of the condition, the first two slides showing the right and left foot on Sunday morning, July 28, 1974, was depicting, according to the witness, infection and an abscess on the left great toe. Slides three and four were taken on August 1, 1974, which the witness indicated showed an improvement because of an antibiotic which had been prescribed. Slides five and six were taken August 19, 1974, which showed further improvement of the condition. The witness testified that in his opinion the procedure which had been utilized in the treatment of Irma Chanter was a phenol technique involving carbolic acid, which is an application of that substance to the matrix of the nail. The witness further stated that the procedure involved was a total matricetomy of the three smallest nails of the left and right foot, and a partial matricetomy of the remaining toenails on both feet. The diagnosis by Dr. Alkema of the infection was acute infection of the left foot, first and second toes; and right foot, first and third toes, with the remainder of the toes showing subacute infection. The appearance of Mrs. Chanter's feet at the time of examination revealed that the feet were clean in terms of the overall condition; however, there was a certain purulent discharge with associated odor, which the witness deemed to be some form of staphylococcus bacteria. Based upon the visual observation of the patient and the fact that the witness' mind time was of the essence, the witness said that he did not request laboratory analysis of the excretion from Mrs. Chanter's feet, in the way of a culture workup, but prescribed a broad spectrum antibiotic known as tetracycline hydrochloride. The witness felt that the antibiotic, as prescribed helped to defeat the infection. At present Mrs. Chanter is still under the treatment of Dr. Alkema and the patient still has problems with ingrown toenails. To the witness' recollection, Mrs. Chanter still has some pain associated with the great toe of the left foot and the fifth toe of the right foot, but not with the great toe of the right foot, as testified by Mrs. Chanter. In discussing the technique utilized by Dr. Perry in performing the operation on Mrs. Chanter, the witness testified that he does not utilize the process, but uses another process called SNT-1 which is a method of extraction by surgical instrument. His direct knowledge of the phenol process is to the extent of involvement four times as a student and two dozen observations. Nevertheless, the witness testified that in his estimation the phenol technique was relatively simple, although he agreed that that technique would be more effective if the practitioner had done it more. The witness said that he was unable to comment on the effectiveness of the operation since he was not in attendance at that operation. In response to questions about the outcome of the operation, the witness stated that Mrs. Chanter came to him and was complaining of pain in her toes radiating into her foot, and as related before, that in his estimation there was infection present in all ten toes. Based upon this observation, it was felt by the witness that the prescription of aspirin for treatment of the pain was insufficient. In support of this position the witness indicated that xylocaine is a prescribed anesthetic for the phenol technique and that when the effects of the xylocaine wear off that 10 percent of the patients experience pain and 1 to 2 percent experience excruciating pain, and that percentage may rise according to the number of toes involved in the operation. These statistics were based upon a certain medical text referred to by the witness, which was not authored by the witness. In the witness' opinion there is a certain risk of infection in any surgery and he agreed that the staphylococcus infection is common in many places to include the soil. In discussing the history of the situation with Mr. Chanter on July 29, 1974, the witness indicated the history only involved the history of the surgery and not the history of the patient's activities following the surgery. Although the witness felt that discussion of the technique involved in the performance of the phenol process was better stated by a person who had administered this technique on more numerous occasions, the witness felt that he was qualified, certainly as qualified as the practitioner utilizing the phenol technique in discussing the post operative procedures. In the witness' mind the post operative techniques employed by the Respondent were not acceptable in that, to his knowledge, the Respondent had prescribed the use of garamycin antibiotic ointment and this ointment was felt to be improper because it tended to cap the infection. The witness indicated that he has an office that is located essentially 100 yards away from the office of the Respondent, but that the Respondent and he are in no respect in competition for business, and the witness expressed his resentment to the characterization of his profession in those terms. In a related area an effort was made by the Petitioner's counsel to introduce through the witness, certain matters pertaining to surgery performed on Albert Frankel and Ayn Dupay, who have been previously mentioned in the course of the Findings of Facts, and this testimony was objected to based upon the lack of notice of such claims against the Respondent. The objection was sustained and will be more fully addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Finally, the witness indicated that the podiatrist's ethics call for consulting a treating physician who is a medical doctor when appropriate since the podiatrist may only treat a situation for which he has expertise, and the witness seemed to indicate that this should have been done by the Respondent in treating Mrs. Chanter. Furthermore, the witness did notify Dr. Castronuovo of the condition which he observed upon examining Mrs. Chanter on July 28, 1974. Dr. James Vance, who is a specialist in internal medicine, was called to the stand. Dr. Vance indicated the treatment of Albert Frankel, deceased, while in the Palm Beach Gardens Hospital. The witness indicated that there were some entries on the chart of Albert Frankel which he did not make, nor the urological service that was treating the patient and that were later discovered to have been made by the Respondent, who was not authorized to practice in the Palm Beach Gardens Hospital. An objection was made to the offering of such testimony on the basis of lack of notice on the part of the Respondent to contentions of this sort, concerning the treatment of Albert Frankel and that objection was sustained. A more complete examination of the objection will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Vance was the last witness on behalf of the Petitioner and at the close of the Petitioner's case a motion for directed verdict was made by the Respondent, in that the Respondent contended that insufficient proof had been established to show violations of either Count 1 or 2 of the Administrative Complaint, whether the standard be one of preponderance of evidence or a standard of clear and convincing evidence. Ruling on that motion was reserved until such time as the facts in this matter were considered by way of deliberation and the Respondent elected to present a case based upon the hearing officer's desire to reserve ruling and upon the possibility that the Petitioner would overturn a decision adverse to its position when it examined the Recommended Order entered by Hearing Officer. After hearing the testimony offered by the Petitioner, the Motion for Directed Verdict against Count 2 of the Administrative Complaint would seem well taken, for reasons more completely discussed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent, in the presentation of its case first called Dr. Arthur Binkowitz, D.P.N. Dr. Binkowitz has been a podiatrist for five years and it was stipulated to between the parties that the witness was qualified to give testimony in the area of podiatry. The witness testified that a matricetomy is an excision at the matrix cells which produce nail plates. The witness also testified that the method he utilizes to accomplish this is the phenol technique and that he utilizes that technique 99 percent of the time. These excisions are accomplished under local anesthesia. In addressing the terms total or partial matricetomy the witness said that these procedures are the same in that they are both radical procedures, one designed to excise the total nail and the other designed to excise part of the nail. The witness said he has done hundreds of these excisions under the phenol technique, and that this technique is not a learning situation. The witness was shown the slides as produced by Dr. Alkema in his testimony, and stated that this is the first viewing of those slides by the witness. After establishing the underlying facts by way of a hypothetical depiction of the slides, the witness offered testimony. Looking at slides 1 and 2 he felt that the depiction was normal and that inflammation present was as in phenol operations but that there was no indication of infection. In looking at the slides, he said he did not see any unusual redness. He said the item in number 2 which had been described as an abscess by Dr. Alkema, in his mind was a condition caused by a drop phenol, perhaps. Slides 3 and 4 looked normal to him, with slight inflammation and the alleged abscess as shown on 4 looked like a phenol burn. Slides 5 and 6 looked normal to him. Describing the pain associated with the process he felt that the process was relatively painless and that he usually prescribes aspirin for his patients. He said that he feels that garamycin, the antibiotic, or HCB cream among others are acceptable antibiotics to utilize in the post operative treatment where the phenol process had been utilized. He also indicated that utilization of the phenol technique is a technique in which infection is less likely. When shown the appliances which were brought by Mrs. Chanter he said that these appliances might have been utilized but they don't do anything to assist, and that they are not normally prescribed. Furthermore, these appliances could be bought at any drug store. Finally he indicated to prescribe such appliances would be a disservice to the patient. The witness indicated that he is a friend of Dr. Perry, but indicated that he could be objective. Under questioning about the regrowth of a nail which had been totally excised by a radical matricetomy, he felt that this nail should not return but that because of certain permeability problems associated with certain patients that the procedure is not always 100 percent effective and that this effectiveness percentage cannot be predetermined. He further elaborated on the use of analgesic, stating that he prescribed a heavier analgesic as necessary. The post operative condition of the normal patient according to the witness was one that would allow the patient to stand on their feet as long as they continued to apply soaks. In addressing the high blood pressure problem associated with Mrs. Chanter he said that this was not of itself sufficient in his mind to consult a medical doctor before operating. In the matter related to the pain associated with the process of the operation he indicated that the pain is relatively free after the phenol compound goes to work in the prescribed area. When shown the patient's feet in the course of the hearing he felt that the process was most likely a phenol technique that the first two toes on both feet including the largest toe were partial matricetomies and that the third, fourth, and fifth toes of both feet were total matricetomies and that there appeared to be no problem with the outcome of the operation. Under examination of the hearing officer the witness felt that the improvement shown in slides 3, 4, 5, and 6 was not due to the application of the antibiotic tetracycline hydrochloride. He also stated to the hearing officer's questions, that there is a certain odor associated with the post operative condition when the phenol process is used. The Respondent next called Dr. Bruce Neal Kramer, D.P.N., licensed since 1967 and licensed in the State of Florida since 1971. A stipulation was entered into concerning this witness' ability to offer testimony in the field of podiatry. Dr. Kramer testified much in the same way as Dr. Binkowitz with several additional observations. One of the observations was to the effect that the appearance of Mrs. Chanter's feet upon his examination during the course of the hearing showed a growth on the lesser toe of the left foot which could have been a callous or possibly a regrowth of a toenail. He also indicated that if there was odor associated with the feet that the odor could mean some infection, but not staphlococcus infection. Finally the doctor indicated that if there was some purulent discharge associated with the post operative condition of the feet, that he would have ordered a culture (laboratory culture) made of the substance to determine the nature of the bacteria. The witness' overall description of the slides, prepared by Dr. Alkema, was to the effect that the condition was a normal post operative appearance. The Respondent took the stand and testified that he had been licensed to practice podiatry in the State of Florida. He first saw the patient Irma Chanter on June 27, 1969 and treated her for callouses, bunions, corns and ingrown toenails. The initial treatment was palliative in nature, but from the beginning he recommended more than palliative care after viewing the x-rays which showed a problem, that in his mind could be alleviated by operations. The charge for those x rays was $20.00. The Respondent indicated that Mrs. Chanter did not want the surgery performed because she could not afford it and he continued to treat her on a monthly basis and to remove the corners of the toenails that were presenting problems. In response to the appliances which were produced by Mrs. Chanter, the witness stated that these appliances were not in fact the appliances that he had prescribed for her. He had prescribed a leather device because metal was not the technique used on adult patients. Moreover, he indicated that the metal apparatus had been shown to him on the initial visit. The charge for the appliances prescribed by the witness was $75.00 for examination, molding and the device itself. The witness recommended the phenol technique for the problem that Mrs. Chanter was having with her ingrown toenails and also some surgical procedure to be applied for the bunion problem. He quoted a fee for hospital work to include the bunions, toenails and other procedures. The fee quoted was $1,125.00 for all work. He explained all surgery, to include the surgery for removing the toenails which was performed on July 22 and July 23, 1974. The reasons for splitting the days of the surgery was as an accommodation for Mrs. Chanter because of her nervousness about the operation. At the end of the first day's operation on July 22, 1974, he sent Mrs. Chanter back to work without a day off for the procedures. In describing the technique employed in the removal of the toenails he indicated the preparation of scrubbing of the patient's feet and the application of the phenol until the tissue turned gray and then he flushed the surface with alcohol. There was no indication of pain by the patient except on the injection of the xylocaine, although his office assistant did hold Mrs. Chanter's hand because of her nervousness. He prescribed nothing for pain except to say to take an aspirin but he told the patient to call if she experienced any pain. There was no call or complaints the night of the 22nd, nor any complaints on the 23rd of July, at which time the procedure was completed. On the second day of the surgical procedure, again Mrs. Chanter was nervous and the office assistant held her hand, although there was no pain beyond the moment of the injection of the xylocaine. The instructions given to the patient at the close of both days was to soak the feet in domboro solution; to apply garamycin cream; and to bandage the toes with a particular bandaid which was shown to the patient, Mrs. Chanter. Mrs. Chanter was also provided with a list of instructions which is similar to Respondent's Exhibit 1 (that Exhibit being a part of the record) When the patient came back to the doctor's office on July 25th, she had the wrong bandaids and plastic wedge closed shoes, and her feet were not clean. The doctor made corrections in these matters and noted that although there was a dirty appearance of the feet, that there was not any infection. After leaving on the 25th the patient called the doctor's office and said that she would not be coming back and in response to the efforts of the Respondent to contact Mrs. Chanter by phone, the phone was hung up by Mrs. Chanter. The doctor feels that the reason for the disagreement concerned a fee dispute in which he had indicated that he would be willing to work with her on some basis to pay for the operation but his office personnel had asked for some token payment and Mrs. Chanter had become offended by this matter. The doctor said he saw Mrs. Chanter's feet at the time of her deposition in this matter which was October 9, 1975, and again at the hearing, and felt that the appearance of the feet was acceptable. He knew of the high blood pressure condition but did not contact Dr. Castronuovo because he felt that the condition was within his ability to control. In that pursuit he used the xylocaine with 1/200,000 parts epinephrine, as opposed to the normal 1/100,000 parts epinephrine. An effort was attempted on the part of the counsel for the Petitioner to consider the matters involving Albert Frankel and Ayn Dupay in certain law suits in the interest of those parties. These attempts were objected to and the objection was sustained on the basis that the Respondent was not duly noticed of these potential allegations prior to the hearing. A more complete description of the reason for disallowing that testimony will be set forth in the section entitled CONCLUSIONS OF LAW. Based upon the facts as presented in the course of the testimony at the hearing, the hearing officer is convinced that the Respondent did not overcharge Mrs. Chanter for the performance of the operation. The infection, if any, was not caused by any procedures involved with the operation or post operative treatment afforded by the Respondent. It is established that as of July 25, 1974, according to the Respondent and Mrs. Chanter, the infection was not present. It has also been established that the opportunity existed for infection to set in beyond the control of the Respondent and Mrs. Chanter removed herself from the Respondent's treatment after July 25, 1974, such that he would not have been aware if such infection had set in. Dr. Alkema testified that in his opinion, infection was present on July 28, 1974, but his analysis was not followed up by any laboratory confirmation and was contradicted by Dr. Binkowitz and Dr. Kramer. The contradiction by the latter was on the basis of their statement that a visual observation of the purulent discharge would not, and in their estimation could not, label the infection as staphylococcus. Moreover, the only reasonable way they felt to effect an identification was by laboratory analysis. Again such a staphylococcus infection according to Dr. Kramer was not best treated by tetracycline hydrochloride. Dr. Binkowitz and Dr. Kramer also felt that from the examination of the slides as prepared by Dr. Alkema, that infection probably was not present and that the appearance of the slides indicated a normal recovery for the phenol process, a process that they were more familiar with than Dr. Alkema. In considering the possible contention that the operation was not successful as it relates to the lesser toe of the left foot, there is some dispute as to whether or not the recurrence is one of a toenail or some callous, which appears in the area of the toenail. Nevertheless, assuming that the substance is a toenail, accepting the statement of Dr. Binkowitz as to the possibility that a toenail will reappear even with the best efforts of the physician, because of a problem with permeability of a patient's toe, it would not appear that the operation was unsuccessful because of any willful negligence or incompetence on the part of the Respondent, nor any unprofessional conduct in performing the treatment. The contention was made that the Respondent was unprofessional in failing to notify Dr. Castronuovo of the impending operation on Mrs. Chanter, knowing that Mrs. Chanter was a patient of Dr. Castronuovo. Accepting the fact that Mrs. Chanter was a patient of Dr. Castronuovo, and keeping in mind the ruling that the Respondent was not duly noticed of such a charge of unprofessional conduct, nevertheless, it would appear that under the circumstances of the testimony set forth In the course of the Findings of Fact, it was not unprofessional on the part of the Respondent to fail to notify Dr. Castronuovo. It was suggested in the course of the hearing that there was a failure on the part of the Respondent to prescribe adequate analgesic for pain. From the testimony offered by doctors Perry, Binkowitz and Kramer, it would appear that the prescription of aspirin as a beginning analgesic was appropriate and the Respondent did not act in a willfully negligent or incompetent manner or unprofessional manner in failing to prescribe any stronger analgesic. Dr. Alkema's testimony on the question of the proper analgesic did not seem to contradict this position, in that he only suggested that he would prescribe a stronger analgesic if the condition warranted, and in this instance Mrs. Chanter did not sufficiently indicate to the Respondent that she desired a stronger analgesic. It was also brought out in the course of the hearing that the Respondent utilized the wrong anesthetic, in prescribing xylocaine with epinephrine. However, he did utilize a solution in which the epinephrine had been reduced and the testimony did not show any ill effects from the use of any anesthetic which had as a part of the solution the substance epinephrine.
Recommendation It is therefore recommended that the Respondent, Gerson M. Perry, be released from all charges brought under this Administrative Complaint. DONE and ENTERED this 28th day of January, 1976, In Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence M. Kukey, Esquire 507 North Olive Avenue P. O. Box 3466 West Palm Beach, Florida, 33402 John S. Miller, Jr., Esquire P. O. Box 10137 Tallahassee, Florida 32301 For the Board
The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent on charges set out in the Administrative Complaint in Agency for Health Care Administration (AHCA) Case No. 91-011671. The Administrative Complaint charged the Respondent with a violation of Section 466.028(1)(y), Florida Statutes, for incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It alleged: that the Respondent treated a patient identified by the initials V. G. for temporomandibular joint (TMJ) dysfunction from August 14, 1986, through July, 1991; that the treatment included maxillary brackets and other orthodontic treatment from August, 1987, through May, 1991; that the patient's TMJ problems recurred during the orthodontic treatment; that the length of time of the Respondent's orthodontic treatment was excessive, resulting in the recurrence of the TMJ problems; that the Respondent utilized an inappropriate circuitous method to accomplish tooth movement (i.e., moving teeth back and forth); that the Respondent's orthodontic treatment had to be corrected by a subsequent treating dentist; and that the "Respondent failed to provide written documentation informing the patient . . . of expected results "
Findings Of Fact The Respondent, Ralph Garcia, D.D.S., is a licensed dentist in the State of Florida, having license number DN000324. On August 14, 1986, a patient identified by the initials V. G. presented to the Respondent with complaints including jaw popping and discomfort in the jaw area. The patient, who was approximately 34 years of age, gave a history of extraction of her bicuspids and subsequent orthodontic treatment in her teen years and extraction of her third molars in her early twenties. The Respondent's examination revealed an impaired range of motion in her mouth. She could only open her mouth 43 millimeters. (Normal is 50.) She also could move her jaw only 7 millimeters to the left. (Normal is 12.) The patient's condition was further complicated by compromised dentition, poorly inclined teeth, unparallel roots, stretched ligaments, and a cervical condition. Transcranial x-rays revealed that, when the patient's teeth were together, both condyles compressed backward in the fossa, compressing tissues and causing pain. The Respondent correctly diagnosed the patient as having mandibular dislocation, myalgia, myofascitis, coronoid tendinitis, stretched ligaments, and headache. These are all conditions associated with temporomandibular joint (TMJ) dysfunction. The Respondent's treatment plan was: (1) to use an oral repositioning appliance (a splint) to treat the dislocation; (2) to use physical therapy to treat the myalgia and myofascitis; (3) to use trigger point injections to treat the coronoid tendinitis; and (4) to use orthopedics, orthodontics and possibly prosthetics to achieve functional occlusion. The Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It was not necessary at that point to more precisely describe planned tooth movements and mechanics. The Respondent advised the patient of his diagnosis, treatment goals, and proposed treatment plan. He also advised her of treatment options, the plan to use splint therapy in treatment, the plan to treat the patient in phases, and the potential complications of treatment. There was no evidence that minimum standards of performance when measured against generally prevailing peer performance required the Respondent to provide the advice described in the Finding 10 (or 17, below) in written form or to document the advice in writing. It would, however, be prudent to do so to preclude charges that the Respondent did not given the patient informed consent. From August 14, 1986, through July 14, 1987, the Respondent treated the patient's TMJ condition and resulting pain with splint therapy, physical therapy, and trigger point injections. (This was the first phase of treatment.) The splint therapy increased the space in the jaw joint by moving the lower jaw forward. This relieved the pressure on the joint. X-rays taken on July 9, 1987, show that the patient's jaw joint had moved forward on both sides, which decompressed the tissues of the joint. Contrary to the patient's allegations (and the understanding the patient gave to the AHCA expert), the relative positioning of the patient's upper and lower jaw did not create a "bulldog" Class Three Prognathic position (underbite). Rather, the positioning of the patient's upper and lower jaw created an approximate "open bite." (An "open bite" occurs when the front teeth meet.) At worst, the patient's lower jaw was slightly (3.5 millimeters) behind the upper jaw, i.e., in a Class One or Class Two underbite position. It was not proven that this positioning was inappropriate or failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. As a result of the first phase of treatment, the patient's TMJ problems were alleviated. In July, 1987, the Respondent discussed with the patient the next phases of treatment. What remained to be done for the patient was more than just realigning her teeth using brackets and wires ("traditional orthodontics"). For one thing, the patient's upper jaw was too narrow and too constricted to provide proper occlusion. This caused the patient to have a cross-bite on the right side of the jaw. The Respondent recommended the use of a four-screw appliance, which he designed, to expand the two halves of the upper jaw, or maxilla. He then planned to use a retainer to hold the expansion. Next, the molars in the patient's lower jaw had to be moved back on the jaw bone through use of a modified splint. Use of the modified splint allowed the jaw to be held in position while the molars were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. The Respondent recommended that the molars be moved slowly and carefully, one at a time, to minimize damage to the roots of the teeth and the jaw bone and to attempt to maintain the improvements in the patient's TMJ condition during treatment. Next, the second bicuspids had to be moved back on the patient's lower jaw through use of a modified Sved appliance. Use of the modified Sved allowed the jaw to be held in position while the bicuspids were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. Finally, the lower front teeth had to be moved back through the use of brackets and elastics. After the lower teeth were moved into their new positions in the new arch, they had to be "erupted," i.e., pulled up out of the jaw, to meet and have proper functional occlusion with the teeth in the upper jaw in the closed position. An appliance had to be used in conjunction with the brackets and elastics to hold the jaw in position while the lower teeth were being erupted so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. "Traditional orthodontics" (brackets, elastics and wires) would be utilized for finer adjustments to level, align and position the teeth to close gaps and for aesthetic purposes. The rest of the Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The Respondent discussed his treatment goals and proposed treatment plan in July or August, 1987. He also advised her of treatment options. He informed her that he would have to proceed carefully and deliberately and that it would be a slow process. He also informed her that the time of treatment would depend on many factors, including the patient's response to and compliance with treatment. The Respondent also discussed the cost of the remaining phases of treatment. To keep the fee for his orthopedic and orthodontic services under $4,000, the Respondent agreed to charge the patient a flat fee calculated based on his normal fee for 18 months of adjustments to appliances ($3,655), plus the cost of the orthopedic appliances. He did not intend to give the patient the impression that the orthopedic and orthodontic phases of treatment would be completed within 18 months. But his way of presenting his fee was potentially confusing and apparently contributed to the deterioration of the relationship between the Respondent and the patient later in treatment. The orthopedic phase of the treatment began with the use of the four- screw appliance in August, 1987. On September 29, 1987, the Respondent began the long, slow process of posteriorizing the molars and bicuspids on the patient's lower jaw. It was not completed until July 28, 1989. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method. Between July 28 and November 21, 1989, the Respondent used brackets and elastics to move the lower front teeth back. This phase of treatment also was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method. "Eruption" of the lower teeth was then accomplished between November 21, 1989, and October 22, 1990, using brackets and vertical elastics in a process known as "vertical development." The Respondent's method did not utilize wires, and the AHCA expert criticized the method used as not being "mainstream" orthodontics. But the expert defined "mainstream" orthodontics as being the methods taught in a majority of dental colleges. Under such a definition, a method which is out of the "mainstream" is not necessarily inappropriate. Notwithstanding the one expert's differing opinion as to the best way to erupt teeth, it was not proven that the method used by the Respondent to erupt the patient's lower teeth was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance. When the eruption process ended, "traditional" orthodontics began on October 22, 1990. During this phase, the Respondent placed brackets, bands and wires on the patient's teeth. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. During the Respondent's treatment of the patient, the patient's TMJ symptoms recurred from time to time. But TMJ is cyclical in nature. Recurrences during treatment (and even after treatment) are not unusual and do not prove that the Respondent's treatment was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance. In approximately April, 1991, the patient's TMJ symptoms recurred significantly. (They ceased during the course of completion of the treatment.) Although the symptoms were not much different from prior recurrences, by this time the patient was disillusioned with the Respondent due in part to the length of the process (even though, as a result of the flat fee arrangement, it was the Respondent who was "losing money" the longer the process took, not the patient) and in part to the Respondent's chairside manner and demeanor. The patient's "last straw" was when the Respondent ground uneven surfaces of the patient's front teeth (although the evidence was clear that this procedure was appropriate and met minimum standards of performance when measured against generally prevailing peer performance.) Instead of discussing the recurrence of the TMJ symptoms with the Respondent, the patient discontinued treatment with the Respondent on May 30, 1991, and sought the opinion of another dentist, Randy Feldman, D.D.S., on July 17, 1991. Feldman mentioned near the outset of his consultation with the patient that he could identify the patient's dentist without her telling him. Suspecting the worst of the Respondent, the patient thought Feldman was being critical of the quality of Respondent's work and became more convinced that the Respondent's work was below minimum standards of performance. In fact, Feldman only meant to say that he was familiar with the appliances and techniques used by the Respondent from having been invited to observe the Respondent's work in the Respondent's office and from having attended continuing education seminars conducted by the Respondent. Feldman also mentioned at one point during the consultation that the patient was fortunate to have had a flat fee contract for the Respondent's work since he knows patients who have paid thousands of dollars to the Respondent for his treatment. Again, suspecting the worst of the Respondent, the patient thought Feldman was implying that the Respondent's charges were inflated. In fact, Feldman only meant to state the fact that treatment by the Respondent often is complicated and expensive and that the patient seemed to have been fortunate not to have been charged more. Contrary to the allegations against the Respondent, Feldman did not have to "correct" the Respondent's work. He did not have to return teeth to prior positions (in the alleged "circuitous" manner). Rather, he advised the patient that it only was was necessary for her to complete the treatment which the Respondent had been providing. He tried to convince the patient that it would be in her best interest to return to the Respondent and let him finish the treatment, but the patient refused. Feldman did nothing more than finish the treatment which the patient had interrupted by leaving the Respondent's care. (He changed some of the brackets and appliances, but the evidence is not clear why.) Notwithstanding the duration of the Respondent's treatment, it was not excessive for what had to be accomplished. Each phase was a necessary part of the overall treatment, and no phase lasted an excessive period of time. Tooth movement occurs when pressure applied to the teeth and transmitted to the bone in which the teeth are rooted causes the bone to dissolve and allow the teeth to move. Then, the bone structure must reform behind the teeth being moved. This takes time. It takes longer in adults than in children or adolescents. The Respondent's decision to proceed cautiously and conservatively was in the patient's best interest. Trying to go faster would have increased the risk of damage to tooth roots and bone structure. The AHCA expert based his opinion in part on a misunderstanding as to when "traditional" orthodontic treatment began. In fact, it did not begin until October 22, 1990, when wires were attached to wires. Other aspects of treatment also did not last as long as the patient led the expert to believe. Elastics were used without wires starting on July 28, 1989; eruption lasted less than a year, not for "years," as alleged by the patient; teeth were not moved back and forth in a "circuitous" manner. It was not proven that the duration of treatment (whether or not excessive) "caused" TMJ symptoms to recur. See Finding 23., above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order dismissing the charges against the Respondent in this case. RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1142 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that maxillary brackets were placed as early as August, 1987. Also, a question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted-- through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. Rejected as not proven. 8.-10. Accepted and incorporated. 11.-14. Rejected as not proven. 15. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-22. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. 23.-24. Accepted and incorporated. A question of semantics whether the tooth movement through the use of the four-screw appliance constitutes orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. Accepted and incorporated. 27.-28. Not clear from the evidence whether the patient's upper jaw was expanded or just the bone holding the teeth flared out. Otherwise, accepted and incorporated. 29.-39. Accepted and incorporated to the extent not subordinate or unnecessary. 40. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. 41.-48. Accepted and incorporated to the extent not subordinate or unnecessary. 49. Accepted as to "traditional orthodontics" and incorporated. A question of semantics whether earlier methods constituted orthodontics, orthopedics, or both. 50.-63. Accepted and incorporated to the extent not subordinate or unnecessary. Not clear from the evidence necessarily as to all inconsistencies. As to some inconsistencies, accepted and subordinate to facts found. Accepted and incorporated. 66.-69. Accepted but subordinate and unnecessary. Accepted but unnecessary. "Well above" not clear from the evidence. "Above" accepted and incorporated. COPIES FURNISHED: Nancy Snurkowski, Esquire Chief Attorney Allied Health Section Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0782 Bruce D. Lamb, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 East Kennedy Boulevard Suite 1000 Tampa, Florida 33602 William Buckhalt Executive Director Board of Dentistry Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
