The Issue The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department of Health, Board of Dentistry (Petitioner), against Miranda Smith, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this case, the Respondent was a licensed dentist in the State of Florida, holding license no. DN 15873, with an address-of-record at 17020 County Line Road, Spring Hill, Florida 34610, and operating a dental practice identified as "Smiles and Giggles Dentistry." On August 23, 2011, the Respondent performed a dental examination of S.W., a three-year-old female. This was S.W.'s first visit to the Respondent's office. Routine procedures at the Respondent's office included taking radiographs (x-rays) of every new patient. After checking in with the receptionist and waiting for a brief time, S.W. and her mother were called from the reception area by a dental assistant, who accompanied them to a type of x-ray machine called a "Panorex." Patients can remain in a standing position while x-rays are taken with a Panorex, and the images can be produced without requiring the insertion of x-ray film into a patient's mouth. Despite encouragement from her mother and the offer of various enticements by the dental assistant, S.W. refused to stand in the Panorex, and no x-rays were taken. After the attempt to use the Panorex failed, S.W. and her mother were taken into an examination room ("operatory"). Each operatory at the Respondent's practice contained a standard x-ray machine that required the insertion of film into a patient's mouth to produce images. The evidence fails to establish that there was any attempt to obtain images from S.W. using the x-ray machine in the operatory. After S.W. was taken into the operatory and seated, the dental assistant performed a routine cleaning ("prophylaxis") and then left the room. S.W. was cooperative during the prophylaxis. After the prophylaxis was completed, the Respondent entered the room with a different dental assistant and proceeded to perform a comprehensive oral evaluation using routine dental tools. S.W. was cooperative during the examination. The Respondent examined the condition of S.W.'s teeth and verbalized her observations to the dental assistant, who recorded the information by hand into the patient chart. According to the patient chart, the Respondent observed decay in the teeth designated as A, B, I, J, K, L, S and T. After the evaluation was completed, S.W.'s mother was advised that the Respondent had observed "eight cavities" in S.W.'s teeth. The evidence failed to establish whether the mother received the information from the Respondent or from the dental assistant. Thereafter, the dental assistant escorted S.W. and her mother to the "check out" desk, where the mother was advised to schedule a follow-up appointment for dental work related to the Respondent's observations of decay. The follow-up appointment was scheduled for November 17, 2011, and the mother was advised that sedation would be administered at that time. S.W. and her mother then left the Respondent's office. According to the patient chart, the Respondent proposed to treat the observed decay by performing resin-based composite restorations on the teeth. S.W. did not return to the Respondent's office for the follow-up appointment. The Respondent provided no further dental care to S.W. Concerned about the Respondent's evaluation of her child's teeth, S.W.'s mother spoke with a friend who had been employed as a dental assistant, and then decided to seek another opinion regarding the condition of S.W.'s teeth. On or about September 6, 2011, S.W. and her mother went to see Dr. Eva Ackley, a dentist practicing at the Ackley Dental Group, for an evaluation of the child's teeth. Dr. Ackley was aware that S.W.'s mother was seeking a second opinion of the child's dental health. S.W. was cooperative throughout her appointment with Dr. Ackley. S.W. submitted to being x-rayed at Dr. Ackley's office. Dr. Ackley examined the child's teeth and reviewed the x-ray images and observed that, although S.W. had one tooth that required follow-up observation for potential decay, there were no actual cavities requiring treatment. According to S.W.'s mother, the child has been evaluated by two other dentists since 2011, one of whom observed three cavities and the other of whom observed none. According to the mother, neither of the subsequent dentists took x-rays of S.W.'s teeth. At the hearing, the Respondent presented an "expanded functions dental assistant" employed by the Respondent, who testified as to office procedures routinely followed at the Respondent's practice. The witness was not personally involved with S.W. on August 23, 2011. The witness testified that it was sometimes difficult to obtain x-rays from younger patients and that, in such cases, x-ray images would be obtained during a follow-up visit. If required, sedation was administered to calm the patient and obtain the images. The witness testified that during the course of her employment with the Respondent, no restorative treatment had been performed on a patient without x-ray images having been obtained prior to treatment. Her testimony was credible and convincing, and it has been accepted. The witness also testified that, in cases where no x-rays were taken at an initial evaluation, the routine procedure at the Respondent's office was to document the need to obtain x-rays at a follow-up appointment in the patient's file. Although the patient records of S.W.'s evaluation by the Respondent on August 23, 2011, state that the patient "would not do any x-rays," the records do not specify that they were to be taken at the follow-up appointment. The witness testified that the failure to document the need to obtain the x-ray images in the patient records was contrary to routine office procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Amended Administrative Complaint at issue in this case. DONE AND ENTERED this 3rd day of October, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2013. COPIES FURNISHED: Susan Foster, Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Christopher Claude Torres, Esquire Casey and Torres, LLC Suite 200 1240 Thomasville Road Tallahassee, Florida 32303-8707 Adrienne C. Rodgers, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265
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.
The Issue The issue posed for decision herein is whether or not the Respondent, a licensed dentist, should be disciplined based on conduct which will be set forth hereinafter in detail allegedly violative of Subsection 464.24(3)(a)(m), Florida Statutes, and Chapter 100-56.637(3) and (4)(a), Florida Administrative Code.
Findings Of Fact Max R. McConnell, D.D.S., is a licensed dentist who holds license No. 2743, and as such is authorized to practice dentistry in the State of Florida under the jurisdiction of Chapter 466, Florida Statutes. During times material, Dr. McConnell, Respondent, was engaged in the practice of dentistry and maintained a dental office located at 3606 South Manhattan Avenue, Tampa, Florida. On April 15, 1977, a representative with the Department of Health and Rehabilitative Services conducted a routine inspection of Petitioner's X-ray equipment. On this occasion, it was discovered that Respondent's X-ray machine, a Weber 6RS/M 6R3967, which is located in the rear room of his dental office, was found to be in noncompliance with the requirements of Chapter 1856, Florida Administrative Code, to-wit, the timer on the machine did not correctly terminate the exposure. Chapter 10D-56.637(3), Florida Administrative Code, provides in pertinent part that: Timers. Means shall be provided to ter- minate the exposure at a preset time inter- val, preset product of current and time, or a preset number of pulses or a preset radiation exposure to the Image receptor. In addition, Termination of exposure shall cause automatic resetting of the timer to its ini- tial setting or to zero. (h) It shall not be possible to make an exposure when the timer is set to a zero or off position if either position is provided. X-ray Control (Exposure Switch) (a) A control shall be incorporated into each x-ray system such that an exposure can be terminated at any time. This switch shall be of the dead-man type. During the April 15, 1977, routine inspection by Petitioner, the Respondent was advised of the nonconformance of the X-ray machine and he agreed to correct the machine within ninety days. Thereafter, during a subsequent inspection on March 9, 1978, the subject machine was again inspected and again found to be in noncompliance because of the faulty timer, and Respondent was mailed a letter dated March 13, 1975, requesting the necessary corrections be completed as soon as possible. Subsequent visits to Respondent's office on October 12, 1978, and April 25, 1979, revealed that the subject X-ray machine was still found not to be in compliance because the timer failed to terminate the exposure as required in Chapter 10D-56.637(3) and (4)(a), Florida Administrative Code. The Respondent testified that the subject machine was merely used by himself as a supplemental machine and that the primary machine which he uses correctly terminates the exposure as required by the foregoing chapter. In this regard, two of Respondent's former dental aides who were employed during the times in question testified that the Respondent does not always operate the machine and, while it may be true that he knows how to operate the machine in such a manner as to correctly terminate the exposure, the two dental aides testified that they are called upon to utilize the machine at times. For this reason, it is concluded that the Respondent continues to operate an X-ray machine in his office which he knows to be in noncompliance with Chapter 10D- 56.637(3) and(4)(a), Florida Administrative Code. I shall so retend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby, RECOMMENDED: That the Respondent Max R. McConnell, D.D.S., repair the above-described Weber 6R X-ray machine with Serial Number 6R3967, within ten (10) days of the date of the Board's final order or remove such machine from his office within the above-stated period. Additionally, it is recommended that the Respondent, Max R. McConnell, D.D.S., be issued a written reprimed for engaging in the above conduct. RECOMMENDED this 16th day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Max R. McConnell, D.D.S. 3606 South Manhattan Avenue Tampa, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA BOARD OF DENTISTRY FLORIDA BOARD OF DENTISTRY, Petitioner, vs. CASE NO. 79-1755 MAX McCONNELL, D.D.S., Respondent. /
Findings Of Fact The Respondent is a licensed veterinarian in the State of Florida, license number VM 0000372. He has practiced veterinary medicine in Tampa since 1953 and has not been the subject of any administrative complaint. In October 1987, the Respondent was practicing at the Dale Mabry Animal Hospital in Tampa. At approximately 9:30 on the morning of October 14, 1987, a client named Julie Veitia brought her cat, Tuppence, to the hospital. The Respondent's partner, Dr. Chad Hall, was the veterinarian who normally saw Tuppence, but he was not in. In Dr. Hall's absence, the Respondent saw the animal. Following standard office procedure, the hospital's receptionist ran a computer printout identifying Veitia and Tuppence, as well as a computer- generated summary of past visits. As per standard office procedures, the Respondent would use the blank space at the bottom of the form to make notes on the visit of October 14, 1987. These notes are also maintained and are made available to the treating veterinarian on subsequent visits. On this occasion, for example, the Respondent had available a jacket folder containing all of Dr. Hall's notes on previous visits. (The Department does not contend that Dr. Hall's notes and the other records of previous visits are inadequate.) Veitia reported to the Respondent that she had let Tuppence outside in the backyard the previous night as usual. When she got ready to go to bed, she called her cat in, but the animal did not return. The next morning, friends who had been staying the night at Veitia's home and had awaken earlier let the cat in and, noticing that it was crying more than usual, left a note for Veitia to check on her cat. When she did at about 8:30 a.m., Veitia noticed that the cat was limping and that its left rear leg was sensitive to her touch. On the computer printout on which he wrote his notes of the visit, the Respondent summarized what Veitia had told him as follows: "Hind legs - crying - OK last nite, came home this a.m. this way. Holds up L.R. (left rear) leg." The last sentence in the note referred to in the preceding paragraph could have been a note on the Respondent's observation on examination of the animal. Tuppence also was pale and in apparent shock. It could not stand up. At first, the Respondent thought that the cat had been hit by a car. The Respondent attempted to palpate the cat's left rear leg, but it was too sensitive to the touch. Veitia then found a small raised knot on the leg, and the Respondent was able to squeeze a droplet of blood from the leg, and he cut a dime-sized area of hair with scissors to reveal slight swelling and a small puncture wound. The Respondent did not use electric clippers to clip a larger area around the puncture wound because the animal was fighting him and was in shock. After seeing the puncture wound, the Respondent thought that Tuppence may have been bitten by another cat or a dog or had been shot, but he was not sure. Veitia asked if it could be a snake bite. The Respondent answered that there would be a second puncture if it had been a snake bite, but he made no effort to look for a second puncture. The Respondent's notes (in addition to the last sentence in the note referred to in paragraph 5, above) indicate only that there was an open small hole in the left rear leg and that the animal had suffered trauma of unknown cause. The Respondent gave the cat a standard dosage injection of penicillin for infection and meticortin, a steroid, for stress. His notes and the subsequently computer-generated medical records reflect the injections. They do not specify that the dosages are standard or what the standard dosages were. But that information was available elsewhere in the hospital and could be cross- referenced if necessary. The Respondent also applied Merthiolate to the puncture wound. This is not recorded in his notes. The Respondent chose not to initiate any further treatment until the animal came out of shock. Veitia, who had assumed all along that the Respondent would hospitalize Tuppence, asked to be notified when treatment was started. The Respondent asked if Veitia would not be bringing the cat back in. Surprised at this question, Veitia sought and got confirmation that the Respondent wanted her to take Tuppence home with her and bring the cat back when it came out of shock. They then discussed what kinds of symptoms Veitia should look for and when she should plan to bring the cat back. Since no treatment plan was initiated at the conclusion of the first visit on October 14, 1987, the Respondent did not write one down in his notes. Instead, he wrote only that the owner wanted to take the cat home and bring it back when it came out of shock. When Veitia left with her cat, the Respondent took the jacket folder to the receptionist and told her not to re-file it yet because he expected the client to be back soon. Less than two hours later, Veitia saw what she thought was a worsening of Tuppence's condition and, quite upset, carried the animal back to the hospital. She reported this to the Respondent, who noted the client's observations on a second computer-generated printout made for the second visit. The Respondent himself observed that the cat appeared to be calmer but pale and in worse shock. His notes say: "Appears better but still in shock." (Later, probably after the Respondent was contacted by a Department investigator on December 1, 1987, the Respondent added the word "bad" to this sentence in his notes.) The Respondent also took the cat's temperature, which was normal, and recorded the temperature in his notes. On observation and physical examination, the Respondent observed that the animal's eyes were dilated (not noted in the record), that the pupils did not respond to light (noted) and that the cat now was open-mouth breathing (also noted). The Respondent again palpated the injured leg. This time a second droplet of blood formed. He again clipped the area with scissors and found a second puncture wound about one and a quarter inches away from the first. He again treated the puncture with Merthiolate (again not recorded in his notes). This time he diagnosed snake bite. (The evidence was not clear if this diagnosis was accurate, but there was no evidence that the diagnosis, if wrong, was negligent or incompetent, and the Department does not allege that it was.) The Respondent's notes say only: "Found second bite wound. Apparent snake bite." By this point, Veitia had become even more upset. The Respondent discussed the possibility of using antivenom, including the negative side effects, and recommended against its use in this case. (This discussion is not recorded in the Respondent's notes.) While other veterinarians might disagree, this recommendation was not negligent or incompetent. The use of antivenom could worsen the shock the cat was in, even itself causing the death of the animal. In addition, the drug is not officially approved for cats and, even for dogs, is significantly less effective when administered more than an hour after the bite. When the Respondent told Veitia his judgment, from the one and a quarter inch space between the puncture wounds, that the snake was large and that Tuppence probably would not survive, Veitia became even more upset. Veitia asked if a transfusion would save her cat's life. The Respondent answered that he did not think he could do a transfusion. The Respondent again told Veitia that there was little he could do for the cat until it came out of shock. He again told her to go home with the cat and bring it back in the afternoon when the cat no longer was in shock. Veitia then left the premises, taking her cat with her. The Respondent did not note the discussion about a transfusion or any treatment plan but again noted: "Owner wants to take home. Ret[urn] p.m." (Later, again probably after December 1, 1987, the Respondent added the word "sure" to the last notation.) Before Veitia even got home, Tuppence's condition seriously deteriorated, and she returned to the hospital. By the time she got there, Tuppence had collapsed, and Veitia was extremely upset and loud. Veitia was allowed to go directly to an examining room to wait for the Respondent. When the Respondent came to the door and saw the cat's condition--collapsed, pale and eyes dilated--he stated: "The cat's dying now." Veitia screamed that the cat had stopped breathing and demanded that the Respondent do something. The Respondent thought that Veitia was acting hysterically and refused to do anything until she calmed down. She soon did, and he had her bring the cat to another room where he administered an injection of epinephrine. They then went to another room where he had her help him administer oxygen. When the Respondent returned about five minutes later, Veitia asked him to check the cat's heart. The Respondent told her that the heart had stopped and that Tuppence had died. Veitia screamed and cried for several minutes, causing the Respondent to become concerned for her well-being. After the Respondent was contacted by the Department investigator, he prepared a detailed report of the case, signed it, and submitted it to the Department on December 7, 1987. Ordinarily, when a case is extraordinary (for example, when an animal dies), as in this case, the Respondent would go back to his notes and prepare such a report within a day or two after the case is concluded. But in this case, the Respondent was out of the office for most of November 1987, and he did not get around to preparing the report in the usual time-frame. If considered part of the medical record on the case, the detailed report submitted on December 7, 1987, would be adequate documentation of the case. (The Department does not contend that it is not.) However, the facts are not accurate. Even more so than his notes, the report attempts to blame Veitia for taking her cat home against the Respondent's recommendation. The evidence proved that the Respondent was negligent or incompetent in failing to find the second puncture wound on the first visit. A veterinarian ordinarily will use electric clippers to clip the area of a wound. Whether electric clippers or hand scissors are used, it is mandatory, as the Respondent told Veitia, to look for a second puncture wound to determine whether the puncture signifies a snake bite. There are standard, accepted protocols for treatment of shock and snake bites in cats (other than the question whether antivenom should be administered to a cat.) These protocols were not followed in the case of Tupprence. Standard shock treatment should have been initiated, or at least recommended, on the first and second visits. On the second visit, when the Respondent diagnosed snake bite, he should have initiated, or at least recommended, standard snake bite treatment. His advice that the owner take the cat home and come back when it was out of shock was negligent and incompetent. In the Petitioner's Proposed Recommended Order, the Department proposed that the appropriate penalty to be imposed in this case is one year of probation and a $1,000 administrative fine.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Veterinary Medicine enter a final order finding the Respondent guilty of violating both Section 474.214(1)(o), Florida Statutes (1987), and F.A.C. Rule 21x-18.002, placing him on probation for six months and imposing a $1,000 administrative fine. RECOMMENDED this 5th day of December 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December 1988. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-1993 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact. 1-5. Accepted and incorporated to the extent necessary and not subordinate. 6. Rejected as not proven by the evidence. 7-29. Accepted and incorporated to the extent necessary and not subordinate. 30. Rejected as being conclusion of law. 31-32. Accepted and incorporated to the extent necessary and not subordinate. Respondent's Proposed Findings Of Fact. (For purposes of these rulings, the Respondent's unnumbered proposed findings of fact are assigned consecutive numbers for each paragraph.) 1-2. Accepted and incorporated to the extent necessary and not subordinate. With the following exceptions, accepted and incorporated to the extent necessary and not subordinate: the Respondent did not "clip" the cat in that electric clippers were not used. The conflicting testimony is subordinate in part to facts found and in part to facts contrary to those found. It was very difficult to resolve the diametrically opposed testimony on the crucial factual issue whether the Respondent sent Veitia home with her cat on the first two visits or whether Veitia chose to leave before the Respondent could initiate or recommend treatment. The evidence did not lead to a finding that both were telling the truth (and there was a miscommunication.) Nor were there many clues in the evidence from which to deduce who was telling the truth. But, as reflected in the Findings Of Fact, I became convinced that the conflict in the testimony of the Respondent and Veitia should be resolved in favor of Veitia's version of the facts primarily (1) because of the unlikelihood that Veitia would bring her pet to the hospital and then choose to take it home again and again without treatment, (2) because there was no apparent motive for her to lie, and (3) because of the conflict between the Respondent's own testimony that Veitia walked out without a word at the end of the second visit and the note he wrote at the end of the second visit indicating that he was expecting her to return in the afternoon. With the following exceptions, accepted and incorporated to the extent necessary and not subordinate: the last sentence is rejected as contrary to the greater weight of the evidence and the facts found. As to the conflicting testimony, see 3., above. First two sentences, accepted and incorporated; second two sentences, rejected as contrary to the greater weight of the evidence and facts found. 6-7. Subordinate in part to facts found and in part to facts contrary to those found. Any apparent conflict in the various opinions was easily resolved once the difficult factual conflicts between the testimony of the Respondent and Veitia on crucial points was resolved in favor of Veitia's version of the facts. 8. Rejected as being conclusion of law. 9-10. Accepted and incorporated to the extent necessary and not subordinate. Rejected as being subordinate to conclusions of law or as argument. Accepted and incorporated to the extent necessary and not subordinate. Rejected as being conclusion of law and unnecessary. Accepted and incorporated to the extent necessary and not subordinate. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lewis H. Hill, III, Esquire Hill, Hill and Dickenson, P.A. Post Office Box 21428 Tampa, Florida 33622 Linda Biedermann, Executive Director Board of Veterinary Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner's proposed treatment, fluoroscopic radiofrequency thermoneurolysis, is experimental.
Findings Of Fact Petitioner, Douglas J. Phillips, Jr., D.D.S. (Dr. Phillips), is a licensed dentist in the State of Florida. Sometime in January, 1993, Dr. Phillips proposed using the procedure, fluoroscopic radiofrequency thermoneurolysis to treat a patient. This procedure involves destruction of tissue by the application of high heat, at approximately two hundred degrees Fahrenheit. A probe or cannula (insulated needle) is placed through skin, subcutaneous tissue and muscle to reach into where the tendon or ligament inserts to the bone or to where there is a small nerve root. An electrode goes through the insulated needle. Heat is then applied at approximately two hundred degrees. The treatment causes a small scar on the bone or destroys the nerve. The purpose of the procedure is to treat head and facial pain. The patient has been diagnosed with the degeneration of the temporomandibular joint on the left side, advanced degenerative osteoarthritis, and fibrous ankylosis with osteroarthritis of the left temporomandibular joint. She experiences head and facial pain. Dr. Phillips had performed fluoroscopic radiofrequency thermoneurolysis on the patient in September, 1991. CIGNA approved and paid for the procedure. The patient experienced relief from the pain for almost two years after the procedure was done. The patient is now experiencing pain again, and Dr. Phillips proposes to treat her again with fluoroscopic radiofrequency thermoneurolysis. By letter dated January 29, 1993, Intervenor CIGNA, informed Dr. Phillips that his request to perform the proposed treatment was not authorized. CIGNA'S basis for denial of approval was that the procedure was experimental and was not recognized by the American Dental Association. On or about August 27, 1993, Dr. Phillips requested that Respondent, the Department of Labor and Employment Security, Division of Workers' Compensation (Division), review the procedure pursuant to Section 440.13(1)(d), Florida Statutes (1993) and Rule 38F-7.0201, Florida Administrative Code. On November 22, 1993, the Division issued a determination that fluoroscopic radiofrequency thermoneurolysis was experimental. Dr. Phillips was taught the proposed procedure eight years ago by Dr. Ernst, a dental practitioner in Alabama. Dr. Phillips spent four days observing Dr. Ernst in Dr. Ernst's office and one week of training in a hospital under the direction of Dr. Ernst. The first procedure performed by Dr. Phillips was two years after his training with Dr. Ernst. Prior to performing the procedure, Dr. Phillips also attended a one hour lecture on the procedure given by another dentist. No other dentist in Florida practices this procedure. The American Dental Association has not endorsed the procedure. Radiofrequency thermoneurolysis is not on the American Dental Association's list of approved dental therapeutic modalities. It is not taught in any dental school or school of oral surgery. Dr. Phillips is not aware of any mention of the proposed procedure in any dental or oral surgical textbooks. Only four other dentists in the United States practice this procedure. There is no published written protocol regarding this procedure except for an article written by Dr. Wilk, which consists of a two paragraph treatment of the subject. Fluoroscopic radiofrequency thermoneurolysis is not listed in the American Dental Association's Current Dental Terminology, nor does the proposed treatment have a code assigned to it. Donna M. Reynolds is a supervisor of the policy section in the Rehabilitation and Medical Services Unit of the Division. When she received the request from Dr. Phillips to review the proposed procedure, she contacted three consultants for the Division: Dr. Richard Joseph, Dr. Martin Lebowitz and Dr. Davis. She received responses from Drs. Joseph and Lebowitz indicating that they considered the procedure to be experimental. Dr. Davis did not respond to her request. Dr. Joseph is a board certified oral and maxillofacial surgeon. When asked by the Division to review the proposed treatment, he reviewed all the documentation submitted by the Division, which included the documentation that Dr. Phillips had submitted in support of his request. Dr. Joseph also did a medline search. Medline is a computerized medical library search that is commonly performed by physicians to research or review all of the current medical literature. The medline search of 301,000 articles revealed only two or three articles relating to the use of radiofrequency thermoneurolysis. Dr. Joseph also consulted with Dr. Gremillion, the chairman of the Department of Facial Pain at the University of Florida, College of Dentistry. Based on his research, Dr. Joseph opined that the proposed procedure was experimental. It was Dr. Joseph's opinion that radiofrequency thermoneurolysis was outside the practice parameters in the general practice of dentistry. Dr. Lebowitz, an oral and maxillofacial surgeon and former co-director of the Facial Pain Clinic at the University of Florida, reviewed the documentation sent by the Division with its request to review the proposed treatment. The documentation included articles which had been supplied by Dr. Phillips to the Division. It was Dr. Lebowitz's opinion that none of the articles submitted by Dr. Phillips were scientifically acceptable based on the lack of blind studies, the quantity of patients being studied, and the lack of studies performed in different locations. In researching the issue, Dr. Lebowitz contacted Dr. Jim Ruskin, the head of the residency program in the Oral Maxillofacial Surgery Department at the College of Dentistry, University of Florida. Dr. Ruskin is considered a world authority on the management of facial pain. Dr. Lebowitz also spoke with Dr. John Gregg, a Virginia dental practitioner who previously ran the facial pain clinic at Chapel Hill at the University of North Carolina. Additionally, Dr. Lebowitz spoke with Dr. Castellano, an oral and maxillofacial surgeon in Tampa, Florida. Based on his research, Dr. Lebowitz concluded that radiofrequency thermoneurolysis was experimental. Dr. John Roland Westine is board certified in oral maxillofacial surgery and is a licensed dentist. He has studied the use of electrical energy in destroying tissue and has used electro-surgical equipment for thirty years. Dr. Westine is familiar with radiofrequency thermoneurolysis. Prior to the final hearing, he had reviewed the records of forty patients who had been treated with radiofrequency thermoneurolysis. It was his opinion that the proposed procedure was not safe and could cause the following problems: irreparable damage to vision, stroke, motor deficiencies, damage to facial nerves, nerve deficits, sensory deficits, abscess formations and parotid fistulas. Based on the preponderance of the evidence, Dr. Phillips has not demonstrated that the fluoroscopic radiofrequency thermoneurolysis is widely accepted by the practicing peer group, that the procedure is based on scientific criteria, or that the procedure is reasonably safe. Radiofrequency thermoneurolysis, including fluoroscopic radiofrequency thermoneurolysis, is an experimental procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that fluoroscopic radiofrequency thermoneurolysis is experimental and denying approval for the procedure. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-762 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Petitioner did not designate which portion of his proposed recommended order contained the proposed findings of fact and which portion contained the proposed conclusions of law; thus, I am unable to address the paragraphs which Petitioner may contend are his proposed findings of fact. Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraphs 6-7: Accepted that that is what the statutes and rule say. Paragraph 8: The first sentence is accepted in substance. The second sentence is accepted to the extent that the Division does submit the documentation to consultants. The evidence established that the proposed treatment is not for use in the aid or confirmation of a diagnosis; therefore, the Division would not be required to submit the documentation to four consultants based on Rule 38F-7.0201, F.A.C. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as constituting argument. Intervenors Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as unnecessary detail. Paragraphs 4: Accepted. Paragraph 5: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary detail. Paragraphs 8-9: Accepted to the extent that Dr. Phillips desires to use the proposed treatment. The remainder is rejected as unnecessary. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as unnecessary. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 18: Accepted in substance. Paragraph 19: The first four sentences are accepted in substance. The remaining is rejected as unnecessary. Paragraphs 20-21: Accepted in substance. Paragraphs 22-31: Rejected as unnecessary. Paragraphs 32-35: Accepted in substance. Paragraph 36: Rejected as unnecessary. Paragraphs 37-39: Accepted in substance. Paragraphs 40-41: Rejected as unnecessary. COPIES FURNISHED: Robert R. Johnson, Esquire Post Office Box 3466 West Palm Beach, Florida 33402 Michael Moore, Esquire Office of the General Counsel Department of Labor & Employment Security 2012 Capitol Circle Southeast, Suite S-307 Tallahassee, Florida 32399-2189 Nancy Lehman, Esquire Neil J. Hayes, P.A. 224 Datura Street, Suite 601 West Palm Beach, Florida 33401 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion Department of Labor and Employment Security General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
