The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint filed by the Department of Health (Petitioner) against Alexander Gaukhman, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed dentist in the State of Florida, holding license number DN 15657. The Respondent's mailing address of record was 400 Hanchey Drive, Nokomis, Florida 34275. Beginning on February 28, 2006, and continuing through January 10, 2007, the Respondent, or persons in his dental office, provided dental care and treatment to Patient S.K. (Patient), a female approximately 46 years of age. According to the Respondent's records, the woman presented to the Respondent as a new patient complaining of "severe pain" on February 28, 2006. On that date, the Respondent's records indicate that he performed a limited examination that included taking diagnostic x-rays. A limited oral examination is appropriate under emergent circumstances where the presenting complaint is severe pain. The Respondent's records contain no written documentation of the Respondent's findings based on his examination of the patient and no written diagnosis of oral pathology or disease. The Respondent performed root canal treatment on the Patient's teeth numbered 8 and 9 and placed crowns on the two teeth. The Respondent's records contain no written treatment plan related to root canal treatment provided to the patient. The Administrative Complaint alleged that the Respondent's treatment notes failed to identify the type or amount of anesthetic used during the root canal treatment. The evidence fails to establish that the Respondent administered anesthetic to the Patient during the root canal treatment. In addition to the emergency root canal treatment performed on February 28, 2006, the Respondent also placed veneers on the Patient's teeth numbered 6, 7, 10, and 11. Placement of prosthetic dental veneers is a cosmetic, not an emergent, procedure. The Respondent's records contain no written record of an examination related to placement of the cosmetic prosthetic dental veneers, no diagnosis or other information establishing the rationale for placement of the veneers, and no written follow-up plan related to the veneers. The Patient presented for prophylaxis (cleaning) on March 16, 2006, and again on October 10, 2006. The cleaning was performed by a dental hygienist working for the Respondent. According to the Respondent's records, the Respondent examined the patient on those dates. Such an examination would have included periodontal probing to determine the Patient's dental health. The Respondent's records fail to contain any record of a periodontal probing on March 16, 2006, or on October 10, 2006. Other than notation of pockets related to the root canal procedure, the Respondent's records fail to contain any indication that the Respondent performed periodontal probing on the Patient. Such probing is a basic and routine part of an examination to determine dental health. Because the Respondent was providing dental health services to the Patient, it is reasonable to presume that the Respondent performed the probing, but failed to document the process in his records. The Respondent has been previously disciplined by the Petitioner in an unrelated matter that was resolved in 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding the Respondent in violation of section 466.028(1)(m) and imposing the following penalty: Imposition of a fine of $2,500. Successful completion of an educational course related to dental record-keeping and passage of the Florida Board of Dentistry Laws and Rules Exam. The Board of Dentistry shall designate the educational course and shall establish the deadlines related to imposition of this penalty. DONE AND ENTERED this 31st day of October, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921- 6847www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2011.
The Issue Whether Respondent Tessler has violated Florida Statute Section 466.24(3)(a), (c) and (d) and is guilty of misconduct, malpractice, or willful negligence in the practice of dentistry. Whether Respondent is guilty of receiving compensation because of a false claim intentionally submitted. Whether Respondent has failed to treat a patient according to acceptable dental standards and procedures.
Findings Of Fact Dr. Stephen W. Tessler, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, engaged in the practice of dentistry in his office located at 1245 NW 190th Street, North Miami, Florida. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Tessler, which was sworn to and subscribed in July, 1978. The accusation contained two counts, and the Respondent requested an administrative hearing. The hearing was first scheduled for October 20, 1978, but was continued upon motion of the Petitioner to January 10, 1979, and rescheduled upon motion of the Respondent to March 8, 1979. During the months of January, 1977, through mid-June, 1977, Ms. Rachel Dixon was a dental patient of Respondent Tessler. Ms. Dixon is a 32-year-old woman with a history of severe tooth and gum problems. She had prosthetic appliances and six (6) anterior crowns placed in her mouth ten (10) to fifteen (15) years ago in Pennsylvania. She had engaged a dentist, a Dr. Snyder in Hollywood, Florida, but had not seen him for some two (2) years prior to making an appointment with the Respondent for relief from pain and gum irritation, and for cosmetic improvement. Ms. Dixon is an unhappy dental patient with an inordinate fear of dentists, and her home dental hygiene care is inadequate. At the time Ms. Dixon engaged Respondent Tessler, she was in need of dental treatment for full-mouth gross peridontal inflammation and infected root canals in tooth number 30. She employed the Respondent for the purpose of providing dental treatment for peridontal disease, endodonic care of tooth number 30, recapping to the anterior teeth, and restoration of an upper right bridge on teeth number 3, 4 and 5. Ms. Dixon was referred to Dr. Hirschfield, an orthodontist in Respondent's office, for x-rays. Costs were discussed, a payment made, and a schedule of appointments planned. Thereafter, Ms. Dixon kept numerous scheduled and unscheduled appointments with the Respondent. Respondent Tessler replaced existing crowns on six (6) anterior teeth (number 6, 7, 8, 9, 10 and 11) with six (6) anterior foil porcelain jackets. In the presence of peridontal disease, Respondent attempted to replace an upper right bridge on teeth number 3, 4 and 5. Respondent was dissatisfied with the "final restoration" but used it instead of making a temporary one. He placed it in Ms. Dixon's mouth because it was better than a temporary restoration. Respondent had told Ms. Dixon that he would satisfy her and would redo the temporary restoration on her front teeth. He did the restoration a second time. Initially, Ms. Dixon was pleased, but later she was not satisfied because she felt pain upon contact with food, drink, or air that was either hot or cold. At the time of hearing no further work had been done in this area of her mouth, and she still complained of pain. On the second or third visit, within two (2) weeks of Ms. Dixon's initial visit, Respondent treated tooth number 30 by performing three (3) root canal treatments. After a number of weeks, Ms. Dixon continued to experience pain in this tooth. Respondent treated tooth number 30 again, reopening two (2) root canals to permit drainage and prescribing an antibiotic. During the course of the endodonic treatment on tooth number 30 an existing lower right bridge on teeth number 28, 29, 30 and 31 was damaged. Ms. Dixon did not return to Respondent for treatment, although she was in pain and attempted for two (2) or three (3) days to reach Respondent by telephone calls to his office. Thereafter, a week or ten (10) days later, Ms. Dixon sought the services of Dr. Marvin Levinson. She indicated to Dr. Levinson that she was not going to return to Respondent Tessler, that she suffered from pain, and that she was concerned about her appearance. Dr. Levinson examined her and referred her to Dr. Satovsky, an endodontist, for immediate relief of pain for a dental abscess, and to Dr. Garfinkle, a peridontist, for a complete peridontal work-up. It was Dr. Garfinkle's opinion that the caps placed by Respondent Tessler in the mouth of Ms. Dixon were placed in the presence of peridontal disease or that the caps caused the disease. He could not determine which came first. Dr. Garfinkle stated that Ms. Dixon was prone to peridontal disease and that she was an unhappy dental patient. Dr. Garfinkle could not comment on the condition of Ms. Dixon's mouth at the time of the treatment given by Respondent, inasmuch as he had not seen her until some eight (8) months had passed. Dr. Satovsky stated that on tooth number 30, which he treated subsequent to the root canal treatment done by Respondent Tessler, the canals were inadequately cleaned and enlarged. He stated that there were three (3) canals on the tooth, two (2) of which had the rods removed, and that he removed the third. He retreated the three (3) canals and alleviated the pain of Ms. Dixon. Dr. Satovsky could not state whether he thought the work of Respondent was negligent, inasmuch as he could not state what the tooth looked like when Respondent first saw it. Dr. Marshall Brothers, the Secretary/Treasurer of the State Board of Dentistry, found that the permanent type of restoration was adequate but not good for a temporary restoration. Upon his examination of Ms. Dixon's mouth, he found her general peridontal condition to be poor. Dr. Brothers could not determine whether her condition was a result of the restoration or existed prior to the restoration. He assumed the condition to be the one or the other because of the recency of the restoration. Respondent Tessler is a licensed dentist and a general practitioner, and is licensed to perform the dental work involved in this case. His charges for this work were substantial, but there was no evidence submitted that said charges were excessive or that Ms. Dixon misunderstood them. Alternative methods of treatment were discussed. The testimony and the evidence in this case show that Respondent worked within his ability as an average dentist. There was no showing of willful negligence, although Respondent's judgment may have been poor, and probably he should have referred Ms. Dixon to specialists. Affixing a bridge and crown work in the presence of gum disease is not the acceptable standard of care within the dental profession, and Respondent admits to that fact; however, he felt that it would improve the overall condition, and he had not released Ms. Dixon as a patient. Ms. Dixon was not pleased with Respondent's work or his charges ad, after attempting to make an appointment, left Respondent Tessler for another dentist. Ms. Dixon was insured through her husband's employer by a policy issued by Aetna Casualty and Surety Company. On January 31, 1977, Respondent Tessler submitted a pre-treatment estimate for work to be done consisting of porcelain-to-gold restorations on anterior teeth number 7, 8, 9, 10 and 11, and for a fixed bridge on teeth number 28, 29, 30 and 31, plus additional treatment in the amount of $2,420.00. The insurance company refused to pay for all treatment except for the fixed bridge on teeth number 28 through 31. On April 27, 1977, Respondent submitted the customary insurance treatment form to Aetna certifying that the bridgework had been performed and completed on April 27, 1977. Based on Respondent's representation, Aetna paid Respondent $649.50. The bridgework had in fact not been done, nor were the anterior crowns porcelain-to-gold restorations. Approximately one year later, Respondent refunded the overage to Aetna upon the request of the insurance company. Both parties submitted proposed findings of fact and memoranda of law, and Respondent submitted a proposed order. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order, they have been specifically rejected as being irrelevant or not having boon supported by the evidence.
Recommendation Based upon the violation as established, it is recommended that the license of Stephen W. Tessler, D.D.S., be suspended for a period of time not exceeding one year from the date of the Final Order. DONE and ORDERED this 12th day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Stephen Mechanic, Esquire Suite 200 1125 NE 125th Street North Miami, Florida 33161
The Issue The central issue in this cause is whether the Respondent is guilty of the violations alleged in the Administrative complaint dated June 11, 1987; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, the Department of Professional Regulation, Board of Dentistry, is the appropriate state agency charged with regulating the practice of dentistry in Florida. Respondent, Norman A. Fenichel, D.D.S., is, and has been at all times material to this case, licensed to practice dentistry in Florida (license number 008157). From September, 1984 through December 11, 1984, Respondent treated a patient named Sandy Friedel. During the course of this treatment, Respondent attempted to perform root canal therapy and to place a permanent cast restoration (crown) on Friedel's maxillary right second molar. The crown was cemented December 11, 1984, and Friedel immediately complained that the crown did not fit properly and that pain in the tooth continued. Friedel stopped payment on her check on December 12, 1984, after Respondent refused to correct or review the work. Friedel was concerned the work should be corrected before the bond was totally set. Friedel did not return to Respondent's office. In July, 1985, Friedel's dental plan referred her to another participating dentist, Dr. James Makowski, who examined her, cleaned her teeth, and took x-rays. At the initial visit Friedel complained of pain in the area where the root canal had been performed. Dr. Makowski observed food trapped between the teeth but could not find that the root canal had been completed. Dr. Makowski recommended that the crown be removed, the decay be removed, a root canal be performed, and that a post with crown be reinstalled. After the visit with Dr. Robert Makowski, Friedel requested her dental records from Respondent. Friedel wanted to obtain the x-rays taken before the root canal so that Dr. Makowski could compare them with his. Respondent refused to release the records since Friedel had stopped payment on her check. Eventually the Department obtained the x-rays and forwarded them to Dr. Williams. At the Department's request, Dr. Williams interviewed Friedel and performed an examination of the dental work in question in January, 1986. After hearing the patient's history and symptoms and having examined her and the x- rays, Dr. Williams determined that the root canal treatment had failed and that the restoration was defective. Dr. Williams discovered a fistula which led to the incomplete root canal treatment. Dr. Williams considered the root canal improper or incomplete because it did not extend to within a millimeter or so of the apex of the tooth. Additionally, Dr. Williams determined that the root canals had not been sufficiently widened to assure that the pulp tissue causing infection had been removed. With regard to the crown, Dr. Williams found it to be defective since at the distal margin of the restoration there was an unacceptable gap. This open margin between the tooth and crown collected decay which Dr. Williams was able to scoop out. Dr. Lubell subsequently retreated the root canal. From his examination and work he was able to determine that the root canal performed by Respondent did extend to within an acceptable distance of the apex of the tooth. However, Dr. Lubell found that the canals had not been sufficiently widened to provide proper treatment. Dr. Lubell also noted that the crown did not fit the tooth in that it fell 4 or 5 millimeters short at the end of the tooth. Friedel's crown which had been placed on December 11, 1984, at Respondent's office was not replaced until approximately May, 1986 when Dr. Lubell retreated the root canals. Dr. Lubell is a licensed endodontist familiar with the standard of practice in the Lake Worth community.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Dentistry enter a Final Order finding Respondent guilty of the violations alleged in the Administrative Complaint, imposing an Administrative fine of $1500, placing Respondent on probation for a period of two years and requiring Respondent to attend such continuing education courses as may be deemed appropriate by the Board. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3289 Rulings on Petitioner's proposed Findings of Fact: 1. Paragraphs 1-12 are accepted. COPIES FURNISHED: William P. Doney, Esquire 1615 Forum Place, Suite 200 West Palm Beach, Florida 33401 Norman A. Fenichel, D.D.S. 7544 Lake Worth Road Lake Worth, Florida 33463 Pat Guilford, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto Respondent was licensed as a dentist by Petitioner. During the period between September 1978 and March 1979 Marcia Girouard was a patient of Respondent. Following consultation on September 15, 1978, Respondent and Ms. Girouard agreed that she would have three crowns and upper and lower partial dentures installed. The dentures were priced at $300 for the lower, $500 for the upper precision partial and the crowns were $200 each. Respondent installed two crowns for Ms. Girouard and made her lower and upper partial dentures. The bill for these services was $1200. While the temporary crown was on tooth 11 it came off a few times and was recemented by Respondent. When the precision partial was installed the permanent crown was in place. Ms. Girouard had no posterior teeth aft of the two number 3 teeth on the lower jaw and teeth 6 and 11 and the upper jaw (Exhibit 5). Accordingly, the upper partial plate was anchored to tooth 11. In view of the lack of teeth to which to anchor the upper partial denture, Respondent, after discussing it with Ms. Girouard, made precision partial dentures for the upper jaw. Tooth 11 was ground down and fitted with a crown to which the female part of the precision partial was attached. When the precision partial was completed and the crown installed Respondent put the upper precision partial in place and adjusted it. Shortly after the upper precision partial gas installed Ms. Girouard complained of pain in tooth 11 and Respondent performed root canal therapy on this tooth. As is customary with root canal therapy a temporary closure was made of the cavity drilled and filled where the root had been removed. From the time this root canal work was done on February 1, 1979, until Ms. Girouard's last visit to Respondent's office on March 12, 1979, Ms. Girouard continued to complain about some sensitivity in tooth 11. When the lower and upper partials were seated on December 14 and 27, 1978, Ms. Girouard was instructed in removing and reinstalling these dentures. The lower partial was attached by clasps and never presented any problem to Ms. Girouard. How- ever, the upper precision partial did present serious problems in that while at home Ms. Girouard had great difficulty and little success in removing this upper precision partial. During the period between the initial seating of the upper precision partial on December 27, 1978, Exhibit 5 indicates Ms. Girouard was in Respondent's office on January 24, 1979,to have the crown on tooth 11 reseated; on February 1, 1979, for root canal; on February 8 for reseating partial; on February 9 for recementing crown; and on February 15 for an impression to convert the upper precision partial to conventional clasps. On March 12, 1979, Ms. Girouard made her last visit to Respondent's office and on this occasion she had her teeth cleaned. A subsequent appointment some two weeks later Was cancelled by Ms. Girouard as she was unsatisfied with the dentures she had received from Respondent. When the precision upper partial was converted to clasps Ms. Girouard was able to remove the denture but it did not fit as snugly as had the precision partial. Ms. Girouard's testimony that Respondent had difficulty installing and removing the upper precision partial from Ms. Girouard's mouth and that on several occasions he had to resort to the use of a dental tool to remove the denture was contradicted by Respondent and several assistants who worked in the office during the period Ms. Girouard was a patient. Respondent acknowledged that when the upper precision partial was first installed it did fit tight and he may have resorted to a dental tool to remove it the first time but that after making standard and routine adjustments he had no further difficulty removing this partial. Several witnesses observed Ms. Girouard insert and remove the precision partial in the dental office and confirmed her testimony that she complained about being unable to remove the precision partial at home. Because of her inability to remove this precision partial Respondent replaced the male connectors on the precision partial with clasps so the partial could be removed by Ms. Girouard. The female connection was left on the crown in case Ms. Girouard subsequently went back to the precision connection. At the time of Ms. Girouard's last visit to Respondent's office on March 12, 1979, she was complaining about the looseness of the upper partial and the root canal hole had not been permanently sealed. Respondent intended to permanently seal this tooth after the pain stopped and further treatment of this tooth would be unnecessary. Believing that she had been treated unfairly by Respondent Ms. Girouard in April 1979, contacted an attorney to institute a malpractice action against Respondent. This attorney sent her to Dr. Steve Hager for a dental examination. On April 25, 1979, when examined by Dr. Hager, Ms. Girouard had both upper and lower partials in her mouth. Hager's examination indicated no evidence that the work performed on Ms. Girouard by Respondent was below acceptable community standards or that anything was wrong with the work performed by Respondent (Exhibit 8). By letter of April 30, 1979, (Exhibit 9) Ms. Girouard was advised of Dr. Hager's findings. Nevertheless, by letter dated June 5, 1979, the attorney advised Respondent of Ms. Girouard's dissatisfaction with the work done and suggested a monetary settlement to Ms. Girouard of the money she paid for the partial dentures would deter her from filing a complaint with the Florida Board of Dentistry. In reply thereto Respondent, by letter dated June 8, 1979 (Exhibit 7), advised Ms. Girouard he did not feel the partials were improperly constructed or fitted but he would make further adjustments if it would help her. After Ms. Girouard was examined by Dr. Hager, Mr. Girouard returned the partials to Respondent's office. He does not recall with whom he left the dentures and none of Respondent's employees recall receiving these dentures. The fact that these dentures were returned was not disputed. On March 21, 1979, Mr. Girouard wrote a letter to Governor Graham complaining about the treatment his wife had received from Respondent and requested something be done about it. Girouard was referred to the Department of Professional Regulation and an investigation was initiated. In November 1981, Ms. Girouard was examined by a board-appointed dentist. She had received no dental treatment between her last visit to Respondent on March 12, 1979, and November 1981. At this time the permanent closure had not been placed on the root canal and Ms. Girouard did not have any of her partial dentures. This board-appointed witness testified that the work done by Respondent was below minimally acceptable standards because the root canal hole had not been closed with a permanent seal. Upon cross-examination he acknowledged that the six weeks from the time the root canal was done until Ms. Girouard's last visit to Respondent's office was not necessarily too long to wait for permanently closing the root canal opening and that if the patient refused to cooperate with the dentist the latter could not install the permanent seal. This witness also acknowledged under cross-examination that it was difficult to determine that dentures do not fit properly if the dentures are not seen in the patient's mouth. Expert witnesses called by Respondent testified that it was proper to leave the temporary filling on a root canal until the pain was gone or its cause ascertained and that this period could take upwards of six months. These witnesses further concurred that without seeing the dentures in the patient's mouth it is difficult to determine whether they fit properly. They also concurred that precision partial dentures should easily be removable by patients and that adjusting these precision partials is not a difficult process. The fact that the upper partial had to be attached to an anterior tooth and the lack of natural posterior teeth created greater pressure on the tooth to which this partial was attached. The increased leverage on this tooth due to the length of the partial would also create more torque and could lead to potential problems.
The Issue The issue is whether Respondent violated Section 466.028(1)(x), Florida Statutes, and if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of dentistry in Florida pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 466, Florida Statutes. Respondent received his license to practice dentistry in Florida on August 1, 1975. He has actively maintained his license and practiced general dentistry in Tallahassee, Florida, since that time. Respondent began employment with Coast Dental Services, P.A. (Coast Dental) in 1987 when it purchased a dental practice owned by Dr. Travis Goss. Coast Dental assumed Respondent's employment contract with Dr. Goss. After the contract expired, Respondent continued working for Coast Dental pursuant to the same terms until early 2001. At that time, Coast Dental proposed a new employment contract that included a non-compete agreement. Respondent was unwilling to sign the new agreement unless Coast Dental gave him increased control over the facility's operations and staffing. M.K. is a Registered Nurse and an Advanced Registered Nurse Practitioner. She admits that she is conscious of cost and does not like to spend money unnecessarily. At all times relevant here, Respondent accommodated M.K.'s reluctance to spend money by providing conservative treatment that was economical for her means. M.K.'s cost-consciousness clearly impacted her decisions regarding her care and treatment in this case. M.K. was Respondent's patient for about 10 to 12 years, from early 1992 until April 2002. She was satisfied with his services until he performed root canal treatment on Tooth 15 in 2001. Tooth 15 is the upper left second molar, the tooth next to the upper left wisdom tooth known as the maxillary second molar. Tooth 15 typically has three roots and three root canals: the distal canal, the palatal canal, and the mesiobuccal canal. However, Tooth 15 can have as few as two root canals or as many as four or five root canals. As one ages, or if there is decay in or trauma to a tooth, the pulp chamber recedes and the root canals get smaller. In such a case, the root canals may become calcified, making it much more difficult to access the root canal during treatment. A dentist performs a root canal treatment by drilling through the enamel and dentin and accessing the chamber part of the pulp anatomy, or the pulp cavity. The dentist then uses a small instrument/file to penetrate into each root canal to remove the tissue. After shaping the canal, the dentist fills it. The standard of care for performing a root canal treatment remains the same regardless of whether a general dentist or a specialist, such as an endodontist, performs the treatment. The only variable is the tooth being treated. If the root canals are fairly straight, a general dentist may decide to perform the treatment. If the root canal is not so straight, a general dentist may decide to refer the patient or attempt the procedure and refer the patient to an endodontist if complications, such as anatomical problems, develop. On June 25, 2001, M.K. had an appointment in Respondent's office for a routine dental cleaning and dental examination. At that time, Respondent informed M.K. that she had a deep cavity in Tooth 15 and that it needed to be filled. On June 30, 2001, M.K. had an appointment with Respondent. At that time, Respondent filled the deep cavity in Tooth 15. M.K. experienced pain in Tooth 15 after it was filled. She tolerated the pain for a few days then called Respondent's office for another appointment. On August 5, 2001, M.K. presented at Respondent's office complaining of heat, cold, and pressure sensitivity to Tooth 15. Respondent evaluated the situation and referred M.K. for a root canal treatment. M.K. did not accept the root canal referral at least in part because of the cost involved. On August 7, 2001, M.K. returned to Respondent's office complaining of pain associated with Tooth 15. Respondent took an X-ray of Tooth 15. Respondent's records indicate that the X-ray was of the whole tooth, root and crown. During the August 7, 2001, appointment, Respondent once again informed M.K. that she needed root canal treatment on Tooth 15. Respondent explained the procedure, including the need for a pulpectomy, and, with M.K.'s permission, performed a pulpectomy on Tooth 15. Respondent placed formocresol and an IRM filling in the tooth and prescribed an antibiotic and a pain reliever. A pulpectomy is palliative/emergency treatment that relieves pain. It is usually the first step in performing a root canal treatment when the patient has acute pain. Respondent recorded on August 7, 2001, that M.K. complained of pain associated with Tooth 15. He did not specifically diagnose the source of the pain or the need for root canal treatment as being pulpitis, abscess, trauma, or decay. However, it is apparent from the record as a whole that Tooth 15 had a filling due to a deep cavity. During the August 7, 2001, office visit, Respondent referred M.K. to another general dentist in his office to complete the root canal treatment. The other dentist's schedule would have permitted sooner completion of the treatment. The cost of services by the other dentist would have been covered by M.K.'s dental plan. M.K. refused that referral, requesting that Respondent complete the treatment. She did not want someone she did not know to treat her. M.K. did not experience any pain in Tooth 15 after the pulpectomy. On September 11, 2001, M.K. returned to Respondent's office. At that time, she was not experiencing any pain and did not believe she needed further treatment on Tooth 15. After being informed for the second time that further treatment was necessary following a pulpectomy, M.K. once again refused a referral to another general dentist in Respondent's office, insisting that Respondent proceed with the treatment. After removing the temporary filling and the medication, Respondent located the distal and palatal canals, determined their length, and penetrated them. Respondent believed that the mesiobuccal canal existed in Tooth 15, but he could not penetrate it due to calcification. On September 11, 2001, Respondent informed M.K. that he could only penetrate two canals. At some point during the office visit, Respondent advised M.K. that she might only have two root canals, unlike the average person who has three root canals in Tooth 15. He also advised her that he could not find the third canal because he could not penetrate it. On September 11, 2001, Respondent told M.K. that her options were re-medication of the tooth with a later attempt to penetrate the third canal, referral to an endodontist, filling the two canals and monitoring the tooth, or as a last alternative, extraction of the tooth. M.K. chose not to see an endodontist, but to treat the tooth conservatively. Consistent with M.K.'s decision, Respondent re- medicated and sealed the tooth. Respondent hoped that the medicine in the tooth would help to soften any calcification in the third canal, making it easier to penetrate on the next visit. Respondent scheduled a follow-up appointment. On September 11, 2001, Respondent documented that he intended to find the third root canal on M.K.'s next visit. He did not document that he believed the third canal existed but could not penetrate it due to calcification. He did not document his discussions with M.K. regarding her options. On October 11, 2001, M.K. returned to Respondent's office. Respondent was once again unable to penetrate the third canal and discussed this with M.K. Respondent provided M.K. with the options of filling the two canals and monitoring the third for symptoms, sending her to an endodontist, or extracting the tooth. M.K. again chose to take the wait-and-see approach by filling the two canals and monitoring the third canal for symptoms. Respondent filled the two canals with Thermafil, a material approved by the American Dental Association (ADA) for filling canals. Respondent then closed the tooth. Respondent was unable to fill one of the root canals to the end of the root due to calcification. Respondent filled the canal within one millimeter of the ideal length. If a canal is partially calcified, it may not be possible to fill it to the end of its root. In such a case, a general dentist could refer the patient to an endodontist or treat the canal to the extent possible and wait to see if complications develop. If a canal is fully calcified, it may not be possible to penetrate and fill it at all. A fully calcified canal usually never causes a problem; thus, it is appropriate to either refer the patient to an endodontist or to close the tooth and wait to see if the tooth continues to be symptomatic. For the October 11, 2001, office visit, Respondent noted in his records that he had finished the root canal treatment, meaning only that he had filled the two canals and closed the tooth. Respondent should have documented his inability to penetrate and fill the third canal, his discussion with M.K. about the untreated third canal, and M.K.'s decision to take the wait-and-see approach. Respondent also noted that that he would place a post and crown on M.K.'s next visit. Respondent did not document the type of material that he used to fill the two root canals. At no time during the root canal treatment did Respondent use a rubber oral dam in M.K. mouth. During a root canal treatment, use of a rubber dam is not required provided that the tooth being treated is properly isolated using another method, such as cotton rolls. In this case, Respondent did not document the method of isolation. M.K. began experiencing pain in Tooth 15 after the anesthesia wore off. She returned to Respondent's office on October 15, 2001, complaining of pain. Respondent told M.K. the pain could be associated with her gingival tissue, though he did not document that diagnosis. Respondent also told M.K. that it was not unusual to experience some discomfort within four days after completion of a root canal. He prescribed a seven-day course of antibiotic treatment. On October 15, 2001, Respondent documented that M.K. needed to wait two weeks and that he would re-treat, refer to an endodontist, or extract if Tooth 15 was not better. After completing the antibiotic treatment, M.K. no longer experienced pain in Tooth 15. On December 11, 2001, M.K. had a routine dental cleaning in Respondent's office. She did not see Respondent during the visit. She did not complain of pain or sensitivity associated with Tooth 15. On January 31, 2002, M.K. had an appointment with Respondent. He prepared Tooth 15 for a crown but did not place a post, which would have made it more difficult to retreat the tooth if such re-treatment became necessary. During the visit, M.K. did not complain of any pain or discomfort with Tooth 15. On March 20, 2002, M.K. returned to Respondent's office. At that time, Respondent seated a crown on Tooth 15. The placement of the permanent crown was necessary because temporary fillings last only a few weeks or months; they are not designed to last a long time. M.K. did not report that she continued to have pain or discomfort with the tooth during her March 20, 2002, office visit. The seating of the crown completed permanent restoration of Tooth 15, barring further symptoms of discomfort. The seating of the permanent crown would not prevent treatment of the third canal if such became necessary. On March 28, 2002, M.K. returned to Respondent's office, complaining of pain on the upper left side of her mouth. Although he initially thought the pain was related to Tooth 15, upon further examination, Respondent determined that the pain was due to problems with Tooth 16, the upper left wisdom tooth next to Tooth 15. This was the last treatment that Respondent provided to M.K. On March 28, 2002, Respondent prescribed a course of antibiotic treatment for M.K. Respondent documented that he would extract the Tooth 16 if the pain continued. He had intended to extract Tooth 16 at some point in time, regardless of the outcome on Tooth 15. Respondent would not have recommended an extraction for Tooth 15, which he planned to continue to monitor. Contract negotiations between Respondent and Coast Dental stalled in April 2002. Respondent gave Coast Dental two weeks notice of his intent to resign. A week later, Coast Dental terminated Respondent's employment during the middle of patient care, told him to get his personal items, and ushered him out of the office. He was not permitted to talk to the staff or take any records, including patient lists. Thus, Respondent was unable to directly contact his former patients, including M.K. Within three weeks of his discharge, Respondent obtained office space from another dentist and began his private practice. To obtain patients, Respondent advertised in the newspaper, established contacts with various dental plans, obtained his own provider number, notified dental plans that he would accept new patients, and obtained permission for his former patients to transfer to him from Coast Dental. In order to transfer and be treated by Respondent, former patients had to individually contact their insurance provider and change their designated provider to Respondent. Respondent estimates that he treats approximately 80-90 percent of the patients he originally treated while at Coast Dental. Sometime before April 10, 2002, M.K. began waking up at night with pain. She believed that the pain originated in Tooth 15. She decided to seek a second opinion from another dentist. M.K. made an appointment with Richard Chichetti, D.M.D., on April 11, 2002. Dr. Chichetti is a general dentist who practices in Tallahassee, Florida. On April 11, 2002, M.K. presented with pain to the upper right side and the upper left side of her mouth. Dr. Chichetti took four X-rays and performed a clinical examination to determine the origin of M.K.'s pain. Dr. chichetti suspected that M.K.'s upper right wisdom tooth, Tooth 1, had a pulpal inflammation. He also suspected that M.K.'s Tooth 15 had a pulpal inflammation. Dr. Chichetti determined that there were three roots in Tooth 15, that only two of them had been filled, and that the unfilled root canal could be one of M.K.'s problems. Dr. Chichetti referred M.K. to Russell Paul, D.D.S, an endodontist in Tallahassee, Florida, for evaluation and treatment of Tooth 15 and Tooth 1. Dr. Chichetti noticed spaces between crowns, which could contribute to M.K.'s discomfort if she was packing food in the spaces. Dr. Chichetti recommended that M.K. return to Respondent to correct any problem with the spaces between the crowns. On May 7, 2002, M.K. had an appointment with Dr. Paul. M.K. was not experiencing acute pain with Tooth 15 at the time of the visit. Dr. Paul performed a percussion test on Tooth 15, confirming that it was sensitive. He also took an X-ray of the tooth using equipment that was not available to Respondent. Dr. Paul determined that Tooth 15 did not require immediate treatment. Dr. Paul informed M.K. that Respondent had treated only two of three root canals in Tooth 15. He recommended that the third root canal be treated if it continued to cause discomfort. Dr. Paul recommended that the two treated root canals be retreated because it appeared to him that the palatal canal had not been treated to the end of its root. Dr. Paul gave M.K. the option of waiting to see if Tooth 15 continued to cause discomfort. Dr. Paul sent Dr. Chichetti a letter dated May 8, 2002. The letter stated as follows in pertinent part: I saw [M.K.] on May 7 2002, regarding the two teeth mentioned above. The patient stated she was having some slight discomfort with tooth No. 15. She was concerned about the results of the endodontic treatment that was recently performed by Dr. Bob Barr. My observation is the canal(s) in the mesiobuccal root had not been treated. This is obviously a case where a high degree of mineralization has taken place. I would also question whether the palatal canal has been prepared and obdurated to the apical area of that root. [M.K.] has an increased response to occlusal percussion of No. 15 as compared to the surrounding teeth. My recommendation to her was if this tooth gave her enough of a problem such that it was uncomfortable, then I would proceed with retreatment. I feel it is probably a matter of time as to when this tooth will become more acute. M.K. had an appointment with Respondent's office on June 11, 2002, for routine dental cleaning. She intended to speak to Respondent at that time about Dr. Paul's recommendation. Prior to the office visit, M.K. saw an announcement in the newspaper announcing the opening of Respondent's practice at another location. The day before her appointment, M.K. called Coast Dental to get Respondent's new telephone number. M.K. called Respondent's office. She was informed that Respondent could not see her that day and that she would have to contact her insurance company to change her dental care provider from Coast Dental to Respondent. M.K. left a message for Respondent to call her. Respondent did not return M.K.'s call because, for whatever reason, his staff never gave him the message. When M.K. did not receive a call from Respondent, she sent him a certified letter dated June 8, 2002. M.K. had intended to give Respondent a copy of the letter on June 11, 2002. In the letter, M.K. threatened to sue Respondent if he did not pay her the following costs: (a) for having a root canal treatment on Tooth 15 by Dr. Paul; for having two crowns replaced by Dr. Chichetti; and (c) for consultations with Drs. Chichetti and Paul. Respondent did not reply to the letter, which he considered threatening. M.K. wrote a letter dated September 1, 2002, to Petitioner, complaining about Respondent's services. She attached the letter to a formal complaint that she filed with Petitioner on or about September 16, 2002. M.K. did not seek further treatment for Tooth 15 until she returned to Dr. Paul's office on April 8, 2003. At that time, Dr. Paul conducted a re-evaluation of M.K.'s teeth. M.K. reported intermittent pain associated with Tooth 15. It had been approximately one year and a-half since Respondent performed the root canal procedure. Dr. Paul once again determined that treatment was not immediately necessary. On July 7, 2003, Dr. Paul retreated the two root canals formerly treated by Respondent. Dr. Paul could not remove all of the material placed in the root canals by Respondent. Dr. Paul also located and treated the third root canal. In both instances, Dr. Paul used a softer material to fill the root canals. He performed the treatment and re- treatment through the crown seated by Respondent. During this procedure, Dr. Paul had the advantage of using a lighted miniature microscope to assist in penetrating the calcified third canal. In September 2003, M.K. returned to Dr. Paul's office complaining of pain on the upper left side of her mouth. M.K. described the pain as "uncomfortable but is not painful." M.K.'s complaint was similar to her prior complaints after Respondent's root canal treatment. Dr. Paul determined that any discomfort was related to problems with the erosion of the gingival tissue surrounding Tooth 13 and not from Tooth 15. In December 2003, Petitioner's investigator interviewed Respondent at his office. During the interview, Respondent asked the investigator to inform M.K. that he would be happy to see her, at his cost, to look at her complaints, and determine what, if anything could be effectuated. The investigator delivered the message to M.K. on December 4, 2003. M.K. indicated that she would consider his offer. As of the time of the hearing, M.K. had not had the crown on Tooth 15 refitted or replaced by any dentist. She had at least seven additional office visits with Dr. Chichetti after Dr. Paul completed his treatment in September 2003. On one of the visits, Dr. Chichetti extracted Tooth 1. On another visit, Dr. Chichetti put a permanent alloy filling in Tooth 15. Dr. Paul saw M.K. for the last time in May 2004. M.K. was still complaining of intermittent sensitivity that she associated with Tooth 15. She was not having acute pain but was aware that it was there. Dr. Paul advised M.K. that he believed her problem was non-endodontically related. Expert Testimony Petitioner presented the expert testimony of Victoria Bong-Krueger, D.D.S. Dr. Bong-Krueger is licensed as a general dentist. She has not maintained a practice since 1994. She has never practiced dentistry in Tallahassee, Florida. Prior to her retirement, Dr. Bong-Krueger routinely performed and documented root canal treatments. At the time of her testimony, Dr. Bong-Krueger provided dental and clinical consulting to her husband, a licensed practicing dentist. Dr. Bong-Krueger and her husband are co-owners of a dental practice known as Krueger and Bonb-Krueger, P.A. Dr. Bong-Krueger reviews and teaches proper documentation in her dental office. She has remained current on the standards of care relative to patient documentation and root canal therapy. Dr. Bong-Krueger was accepted as an expert in the area of record documentation relative to root canal treatment. Early in 2003, Petitioner retained Dr. Bong-Krueger to review the relevant records in this case. On February 6, 2003, Dr. Bong-Krueger issued a written opinion, finding that Respondent had violated Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records to justify the course of treatment. Dr. Bong-Krueger specifically found that Respondent and M.K. discussed the problems with the root canal treatment on September 11, 2001, and October 11, 2001, but that Respondent failed to document the problems or the options discussed. Dr. Bong-Krueger did not find that Respondent had violated the standard of care contrary to Section 466.028(1)(X), Florida Statutes, in regard to his treatment of M.K.'s Tooth 15. On December 12, 2003, Petitioner's Probable Cause Panel decided to charge Respondent with a violation of Section 466.028(1)(x), Florida Statutes. The Probable Case Panel made a specific decision not to charge Respondent with a record-keeping violation pursuant to Section 466.028(1)(m), Florida Statutes. In December 2003, Petitioner requested Dr. Bong- Krueger to render another written opinion related specifically to whether Respondent met the standard of care in the treatment of M.K.'s Tooth 15. Petitioner did not provide Dr. Bong-Krueger with any new information to consider in her "supplemental opinion." In a report dated December 19, 2003, Dr. Bong-Krueger concluded that Respondent had violated the standard of care due to his failure to document certain actions with regard to Tooth Specifically, Dr. Bong-Krueger opined that "[t]here is no notation of finding a third canal, no notation of possible complication, no notation of an immediate or future referral to a specialist, and no notation that there were any problems with inadequate fill on the two canals, which were found." Dr. Bong- Krueger concluded that Respondent violated the standard of care because "the records do not indicate that he addressed the problems [with M.K.] while he was working on the tooth in September and October of 2001." In May of 2004, Petitioner requested Dr. Bong-Krueger to complete a third report with regard to standard of care. In a report dated May 28, 2004, Dr. Bong-Krueger reviewed the exact same records and stated as follows in relevant part: On 8/7/01, the patient presents complaining of pain of #15 and a periapical radiograph is taken. Then Dr. Barr recommends a root canal treatment and as treatment for the pain, he does a pulpotomy on the tooth, places an IRM temporary, prescribes antibiotics and pain medication, and refers to Dr. Waldeman for a root canal. All of this is within the standard of care and proper record keeping. On 9/11/01, the records indicate a root canal was done on #15 and two canals were found which Dr. Barr indicates were B and P (indicating buccal and palatal locations). The length of each canal is noted as well as the landmark used to measure. Written last is the note that "NV (next visit) Find M". This indicates that Dr. Barr knows there is at least one more canal to find in this tooth. At this point, ideally there should have been notes to indicate a conversation with the patient that a complication was occurring with this root canal. There is no notation to this effect. However, since there is to be at least one more visit to work on this complication, there is no strong violation of the standard of care at this point. On 10/11/01, there should be very detailed and concise notes regarding treatment rendered during the root canal, and any conversation now occurring with the patient about any possible complications if the work is being completed. Instead, very brief notations occur. "#15Finished RCT" and "N.V. (next visit) #15 P + Crown." There is nothing to indicate the third canal was located. There is nothing to indicate the patient was informed only two canals were located. There is nothing to indicate a referral or retreatment was necessary for this tooth. There is nothing to indicate what could happen if the extra canal(s) was not treated. This is below the standard of care if the patient was not informed that the tooth is susceptible to complication by not finding the canal(s) and what could be done to remedy the solution. It is also a records keeping violation if any conversation about complications did take place and was not recorded. In addition, there is no notation about what type of filler material was used to fill the two canals. This is a very obvious record keeping violation and practicing below the standard of care by not recording the filling material. It helps to know the filler material when re-treatment is necessary since different fillers are removed different ways. On 10/15/01 the patient shows up at the office 4 days after the fill and has an exam for pain with #15. Dr. Barr records a prescription for an antibiotic (Keflex) and records the patient is taking Tylenol. It then says "Wait 1-2 weeks. Retreat/refer to Endo/or extract if not better." The records indicate here is where a conversation occurred that something is wrong with #15. Dr. Barr appears to redeem himself for the omission 4 days earlier. Even though complications of not doing more work on this tooth are not recorded, Dr. Barr records the patients is given three choices with this tooth-retreat, refer to an endodontist, or extract the tooth. However, after a 12/11/01 visit with the hygienist where nothing is recorded about #15, two more visits occur with Dr. Barr which reaffirms treatment below the standard of care. On 1/31/02, Dr. Barr does a crown preparation on tooth #15. There is no discussion about the recommendations regarding the 10/15/01 visit where re- treatment, referral to an endodontist, or extractions were listed as the correct options. Dr. Barr did not do the re- treatment, and nothing is noted about a referral visit, instead the crown prep is just done. This is most definitely below the standard of care treatment to do a crown prep on a tooth with the intent to permanently cement a crown on a tooth that has an incomplete root canal fill. On 3/20/02 the permanent crown is seated on #15. During the final hearing, Dr. Bong-Krueger primarily testified about Respondent's inadequate record-keeping, which in her opinion was so severe as to amount to a violation of the standard of care. According to Dr. Bong-Krueger, patient documentation is an essential part of treatment and diagnosis because a second dentist who provides follow-up dental care needs to be aware of the following: (a) a prior diagnosis; (b) the type of treatment performed based on that diagnosis; (c) the type of materials used in a prior treatment/procedure; and (d) whether any complications developed during the treatment/procedure. Dr. Bong-Krueger's written opinions seemed to find more standard of care violations every time she reviewed the same records. In some respects, her testimony during the hearing contradicts her prior written opinions. For example, in her February 2003 written opinion, Dr. Bong-Krueger found no standard of care or record-keeping violations regarding M.K.'s August 7, 2001, office visit. In the December 2003 written opinion, Dr. Bong-Krueger once again found no fault with Respondent's treatment or record-keeping on August 7, 2001. In the May 28, 2004, written opinion, Dr. Bong-Krueger specifically stated that Respondent did not violate the standard of care and that he kept proper records for the August 7, 2001, office visit. These written opinions are contrary to her hearing testimony that Respondent violated the standard of care on August 7, 2001, because he did not document a specific diagnosis, explaining the need for the pulpectomy and root canal treatment. However, the crucial dates at issue here are the office visits in September and October of 2001. In her February 2003 report, Dr. Bong-Krueger did not find a standard of care violation related to documentation deficiencies on either date. In her December 2003 report, Dr. Bong-Krueger found a standard of care violation related to record-keeping on both dates. In her May 2004 report, Dr. Bong-Krueger found "no strong violation of the standard of care" for the September 2001 office visit, but an "obvious record keeping violation and practicing below the standard of care" for the October 2001 office visit. During the hearing, Dr. Bong-Krueger testified that Respondent's deficient record-keeping absolutely violated the standard of care on both dates. Dr. Bong-Krueger's opinion testimony is credible only as it relates to the October 2001 office visit, about which she has consistently found a record-keeping standard of care violation since writing her second report on December 19, 2003. Petitioner also offered the expert testimony of James Guttuso, D.D.S., a retired endodontist. Dr. Guttuso practiced endodontics from 1962 until 1996, first in New York and then Florida. Dr. Guttuso taught endodontics treatment at the State University of New York at Buffalo. From 1997 to 2004, Dr. Guttuso taught endodontics at Nova University in Florida. Dr. Guttuso was accepted an expert in endondontic treatment and its associated standard of care. In many ways, Dr. Guttuso's testimony supports a finding that Respondent did not violate the standard of care in performing a root canal procedure on M.K.'s Tooth 15. Dr. Guttuso stated that pain after the completion of a deep filling in a cavity is not a violation of the standard of care, but is normal, based on the pressure build-up created by the placing of the filling. Dr. Guttuso did not find a standard of care violation associated with Respondent's filling the cavity in Tooth 15. Dr. Guttuso further testified that as a person gets older, or after there has been decay to a tooth, the tooth's pulp chamber shrinks and becomes calcified, making it more difficult to penetrate the tooth. According to Dr. Guttuso, Respondent was unable to penetrate the mesiobuccal canal, "mainly because of the tremendous amount of calcification or mineralization that had occurred." Dr. Guttuso testified that failing to fill a canal is not the ideal means to treat a root canal. However, he agreed that there are situations in which a dentist in not able to accomplish what he intends. Dr. Guttuso opined that it was not below the standard of care per se for a dentist to "miss" a canal in a tooth or to subsequently place a crown on that tooth, but it was below the standard of care if the dentist did not inform the patient about the consequences of not having the third canal filled. In this case, the most persuasive evidence indicates that Respondent discussed the problem with M.K. and that she elected to take a wait-and-see approach. Dr. Guttuso agreed that a crown is needed following a root canal to protect the tooth. He agreed that a root canal treatment can be completed through a permanent crown. During direct examination, Dr. Guttuso opined that Respondent violated the standard of care. On cross-examination, Dr. Guttuso testified as follows: (a) if one finds only two canals, it is appropriate to fill the two canals and take a wait-and-see approach to monitor the tooth; (b) failing to treat a canal to the apex is not necessarily below the standard of care; (c) placing a permanent crown on a tooth does not prevent a dentist or endodontist from continuing root canal treatment on the tooth; and (d) placing a crown on M.K.'s Tooth 15 was of no consequence. Dr. Guttuso's testimony is not deemed credible, given its equivocal nature. In response to Petitioner's allegations, Respondent presented the expert testimony of Lewis Beall, D.D.S. Dr. Beall is a recently retired dentist who practiced general dentistry in Tallahassee, Florida for over 40 years. Dr. Beall obtained his license to practice dentistry in Florida in 1962. Dr. Beall's practice consisted of general dentistry, reconstruction, and cosmetics. During his career, Dr. Beall routinely performed root canals. He was accepted as an expert in general dentistry. Dr. Beall testified that a calcified canal is difficult to spot. Dr. Beall stated that a dentist can take a burr and cut to the spot where the root canal opens, but he has to be careful not to go too far. Dr. Beall explained that if a dentist goes out of the root, the tooth will be ruined and require extraction. Dr. Beall opined that Respondent used appropriate material and created a good seal when he filled two of the canals. Dr. Beall stated that one of the canals treated by Respondent did not extend to the end. According to Dr. Beall, it is not an uncommon occurrence and not below the standard of care to be unable to fill a canal to its absolute apex. Dr. Beall testified that Respondent was unable to penetrate the third canal due to calcification. Dr. Beall stated as follows: (a) if the canal is fully calcified, there is no need to penetrate the canal as it is not likely to cause a problem; and (b) if the canal is partially calcified, a dentist may attempt to drill further and risk problems, refer the patient to an endodontist, or leave the partially calcified canal alone and monitor for problems. Dr. Beall opined that it was more prudent to treat a partially calcified canal to the extent possible than to immediately refer the patient to an endodontist for the following reasons: (a) the endodontist may also fail to penetrate the canal to its apex; (b) there may be no further problems; and (c) one can always go back an retreat if problems develop later. Dr. Beall's opinion was that Respondent's wait-and-see approach was acceptable, was within the standard of care, and was what he personally would have done. Dr. Beall supported his opinion in part with the following facts: (a) it was a year and a-half before M.K.'s Tooth 15 needed to be filled; (b) a temporary crown or filling would not have lasted that long; and (c) a dentist can always continue root canal treatment through a permanent crown. As to the standard of care, Dr. Beall testified that waiting and not insisting that M.K. see an endodontist was conservative treatment in this case. Dr. Beall stated that the conservative approach was an attempt to save M.K. money and not below the standard of care. Additionally, Dr. Beall opined that if a dentist could not find all the canals for a given tooth, but filled only two, and the tooth is not symptomatic, it is above the standard of care to place a crown on the tooth without locating or treating the final canal. Finally, Dr. Beall did not believe Respondent had violated the standard of care because he did not use a rubber dam, as opposed to some other method to isolate the area being treated. Ultimately, Dr. Beall testified that Respondent provided M.K. with diagnosis and treatment that met the acceptable minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Dr. Beall's testimony provides the most credible and persuasive evidence that Respondent's root canal diagnosis and treatment did not violate the standard of care and that M.K. suffered no harm from Respondent care and treatment. Prior Disciplinary History The Board of Dentistry currently functions under the umbrella of the Department of Health. At times in the past, the Board of Dentistry has functioned as part of the Department of Business and Professional Regulation and the former Department of Professional Regulation. On November 29, 1983, the Board of Dentistry issued a Final Order in Department of Professional Regulation v. Robert H. Barr, D.D.S., DPR Case No. 0031230. The Final Order indicates that the Board of Dentistry conducted an administrative proceeding pursuant to Section 120.57(2), Florida Statutes (1983), finding that Respondent failed to make records available to a patient in a timely manner. The Board of Dentistry resolved the case by reprimanding Respondent and imposing an administrative fine in the amount of $1,000. The Board of Dentistry issued a Closing Order in Department of Professional Regulation Case No. 90-001989 on September 10, 1990. The Closing Order indicates that the Board of Dentistry resolved the case by issuing a letter of guidance to Respondent concerning his alleged failure to make records available to a patient in a timely manner. The Board of Dentistry issued a Final Order in Department of Business and Professional Regulation v. Robert H. Barr, D.D.S, DBPR Case No. 94-01828, on November 17, 1994. The Final Order adopts and incorporates a Stipulation. In the Stipulation, Respondent neither admits or denies the matters of fact alleged in the Amended Administrative Complaint, which charged a violation of Section 466.028(1)(y), Florida Statutes (1992). In the Stipulation, Respondent agreed to pay an administrative cost in the amount of $500, to receive a reprimand, and to be placed probation for one year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, reprimanding Respondent, requiring him to pay an administrative fine in the amount of $2,500, and requiring him to complete appropriate continuing education requirements. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of September, 2005.
