The Issue The issue is the appropriate penalty to be imposed upon Dr. Carroll for two admitted violations of the Dental Practice Act: (1) performing root canal treatment which was below acceptable standards, and (2) practicing beyond the scope of dentistry.
Findings Of Fact Findings Concerning Liability The following findings of fact are based upon the paragraphs or subparagraphs of the Administrative Complaint which Dr. Carroll admits: Inadequate Root Canal Therapy Dr. Carroll treated Sylvia Lankheim. He performed root canal therapy on Ms. Lankheim's lower left second bicuspid (tooth #20) and provided a post and crown for the tooth. Dr. Carroll's endodontic treatment and post and crown restoration of tooth #20 were inadequate, and subsequently failed. Practicing Beyond the Scope of Dentistry Dr. Carroll neither admits nor denies the following allegations found in the Administrative Complaint, but agrees that they make out a prima facie case for the charge of practicing beyond the scope of dentistry: On or about October 31, 1983, Dr. Carroll made a presentation at a local condominium association concerning the purported hazards of mercury poisoning resulting from amalgam restorations in teeth. His presentation included films, testimonies by two former patients, and paraphernalia used to test for mercury toxicity. As the result of this presentation, Ms. Sylvia Lankheim scheduled an appointment with him on about November 3, 1983. When Dr. Carroll saw Ms. Lankheim on November 3, he took full mouth x-rays and made an impression of her teeth for study models. On or about November 8, 1983, Dr. Carroll's dental assistant conducted a Mercury Patch Test on Ms. Lankheim to determine her sensitivity to mercury. The test involves placing a solution of mercury chloride on a band- aid, placing the band-aid on the forearm, removing the band-aid 24 hours later and interpreting the patient's dermatological response to the test. Use of a patch test to determine an allergic response or sensitivity to mercury is not within the scope of the practice of dentistry as defined in Section 466.003, Florida Statutes (1985). The patch test used by Dr. Carroll to determine an allergic response or sensitivity to mercury is not reliable and its use is unproven. Based upon these facts, Dr. Carroll has agreed he is guilty of the charge of practicing beyond the scope of dentistry, in violation of Section 466.028(1)(z), Florida Statutes (1985), as alleged in paragraph 13(d) of the Administrative Complaint. Findings Pertaining to Penalty Penalty guidelines have been adopted by the Board of Dentistry in Rule 21G-13.005, Florida Administrative Code. The penalty for incompetence in the practice of dentistry is prescribed under Rule 21G-13.005(2)(bb) as follows: Being guilty of incompetence. The usual action of the Board shall be to impose a period of probation, restriction of practice, suspension and/or revocation. The usual penalty for practicing beyond the scope of dentistry is stated in Rule 21G-13.005(2)(dd) as follows: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform. The usual action of the Board is to impose a period of probation, restriction of practice, and/or suspension. The Board may deviate from these penalties in an individual case based upon the following aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses or number of patients involved; The length of time since the violation; The number of times the licensee has been previously disciplined by the Board; The length of time the licensee has practiced; The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage; The deterrent effect of the penalty imposed; The effect of the penalty upon the licensee's livelihood; Any efforts of rehabilitation by the licensee; The actual knowledge of the licensee pertaining to the violation; Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation; Related violations against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served; Penalties imposed for related offenses... Rule 21G-13.005(4)(a)-(n), Florida Administrative Code. Dr. Carroll relies on a number of recent cases decided by the Board of Dentistry to argue that the appropriate penalty in this case is a fine of no more than $1,000, and a requirement that he attend 20 to 25 hours of additional training in endodontics in addition to the continuing education required of dentists to maintain their licensure. He maintains that no probation is necessary, as rehabilitation or as punishment. In the case of Board of Dentistry v. Norman A. Fenichel, reported at 10 FALR 6745 (Board of Dentistry, 1988) the Board imposed an administrative fine of $1,500 and placed the dentist on probation for two years, with a requirement that he attend 36 hours of continuing education in crown and bridge work, 36 hours in endodontics and 12 hours in the laws and rules relating to the practice of dentistry or ethics. The penalty was based upon findings made after a formal hearing that the dentist had performed inadequate root canal therapy, and that after the patient had stopped payment on the check for that dental work due to pain and the improper seating of the crown. Fenichel had failed to forward her file to a subsequent treating dentist. Dr. Carroll also relies on other discipline cases of the Board of Dentistry to support the penalty he advocates, where there were stipulated dispositions in somewhat similar circumstances. The case of Board of Dentistry v. Daniel B. Baldridge, DPR Case 0066648 (Board of Dentistry 1987) involved a charge of a feeble attempt to perform endodontic therapy on tooth #3. The stipulated disposition was a fine of $1,000, a reprimand, and probation far one year during which Dr. Baldridge was required to complete 20 hours of continuing education in endodontics. No portion of the Baldridge stipulation included an agreement that Baldridge was guilty of any violation, which is a significant difference from the present case. In the case of Board of Dentistry v. Vance Bishop, Case 0068343 (Board of Dentistry 1988), Dr. Bishop neither admitted nor denied the allegations of an Administrative Complaint which charged that he had provided incomplete endodontic filling of a tooth on which he placed a crown and that two other crowns were poorly done. A fine of $1,500 was imposed, Dr. Bishop was reprimanded, placed on probation for a year and required to complete 15 hours of continuing education in endodontics and another 15 hours in the area of crown and bridge work, endodontics and another 15 hours in the area of crown and bridge work. In the case of Board of Dentistry v. David Murrin, Board of Dentistry Case 0066593 (Board of Dentistry 1988), Dr. Murrin entered into a stipulation without admitting any of the facts in the Administrative Complaint. According toe the complaint, Murrin had performed a root canal and installed a crown on a mandibular left first molar (tooth #19), but subsequent examination showed that the root canal procedure had never been concluded because there was only partial removal of pulp tissue from the tooth, and no filling material had been used. His records failed to show any therapy had been attempted. Murrin was charged with making untrue representations in the practice of dentistry in violation of 466.028(1)(l), Florida Statutes; malpractice, in violation of 466.028(1)(y), Florida Statutes; exploiting a patient for financial gain in violation of 466.028(1)(m), Florida Statutes; and fraud and deceit in the practice of dentistry, in violation of Section 466.028(1)(u), Florida Statutes. According to the stipulation he paid administrative costs of $1,000, and received a reprimand but no period of probation. In the case of Board of Dentistry v. Frederick Newton, Board of Dentistry Case 0070984 (Board of Dentistry 1988), Dr. Newton entered into a settlement stipulation in which he admitted the allegations of fact contained in the Administrative Complaint (with a small correction of those facts). According to the admitted facts, Dr. Newton provided root canal therapy on tooth #3 and amalgam restorations on teeth #3, 14, 19 and 30. The root canal therapy on tooth #3 was inadequately filled and sealed, Johnson did not record on the patient's chart the use of a rubber dam, did not record the canal length of tooth #3, chart the measurements for the endodontic files he used, or take a post-operative x-ray showing the completed root canal therapy. He was therefore charged with malpractice in violation of Section 466.028(1)(y), Florida Statutes, and failing to keep records justifying the course of treatment in violation of section 466.028(1)(m), Florida Statutes. The Board's final order imposed an administrative fine of $1,500, reprimanded him and placed him on probation for a period of twelve months, in which time he was required to complete 20 hours of endodontic continuing education and one course in recordkeeping.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final order be entered by the Board of Dentistry finding Dr. Carroll guilty of violation of Sections 466.028(1)(y), Florida Statutes (1985) and 466.028(1)(z), Florida Statutes (1985), that an administrative fine in the amount of $1,500 be imposed, that he be reprimanded, and that his license be placed on probation for a period of one year, during which he shall complete 25 hours of continuing education in endodontics in addition to any other education required to keep his licensure current. DONE and ORDERED this 9th day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William Buckhalt, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399 =================================================================
Findings Of Fact Introduction At all times relevant hereto, respondent, Philip B. Okun, was a licensed dentist having been issued license number DN 0005278 by petitioner, Department of Professional Regulation, Board of Dentistry (Board). He has been licensed in Florida since 1971. He also holds a license in the State of New York where he graduated from the New York University School of Dentistry in 1967. Respondent presently practices dentistry at 8269 West Sunrise Boulevard, Plantation, Florida. The genesis of this action lies in respondent's treatment of a patient in November 1982 and January 1983. Ultimately, a complaint was filed with the Board on behalf of the patient, and this culminated in the issuance of an administrative complaint on June 6, 1986, or more than three years after the treatment occurred. The complaint alleges generally that respondent failed to conform to minimum standards of performance in four respects while performing root canal therapy on the patient in question. More specifically, the complaint alleges that Dr. Okun erred by (a) initially allowing the patient to leave his office with the tooth "open," (b) permanently closing and overfilling the tooth without antibiotics and in too short a time, (c) failing to open the periapical tissue and removing the root, filling and apical granulomatous tissue after noting the "severe" overfill, and (d) placing an endodontic post in the overfilled tooth thereby blocking access to the canal space. The Board's action resulted in the instant proceeding. A Basic Primer on Root Canals Endodontics is a specialty within the field of dentistry. It involves the treatment of the root canals of the teeth and their surrounding structure. A root canal (PC) is an endodontic procedure and involves the sterile filling of the interior of a tooth. Its purpose is to save the tooth for further use rather than lose it by extraction. The center of a tooth contains nerves and arteries. This area is susceptible to invasion by bacteria (decay). If decay is present, it will show up on an X-ray in the form of a periapical radiolucency (a dark circle). Once the nerve has been invaded by bacteria, the tooth must be extracted or given PC therapy. In a noncomplicated PC, which is the type involved in this case, certain procedures are normally followed by the prudent dentist. They include (a) removing the decay, (b) enlarging the canal with filing tools, (c) removing the debris, (d) sterilizing the inside of the canal, and (e) filling the inside of the tooth with a permanent filling. Decay in a tooth is normally removed by drilling. Once the drilling is completed, the inside of the tooth should be sterilized with a recognized medicament and temporarily closed (until the PC therapy is performed) to prevent the introduction of bacteria into the canal. However, there are circumstances when a tooth can be left open to "drain." The most common are when the patient experiences pain or when exudate (pus, blood and similar fluids) is present. In addition, there may be other circumstances which justify leaving a tooth open. For example, if a patient will be taking a trip by airplane immediately after the decay is removed, but before RC therapy can be completed, an endodrain (a small piece of plastic sponge) may be installed in the tooth to avoid pain and discomfort caused by expanding gases due to changes in atmospheric pressure. If the tooth is left closed, the trapped gases have no way to escape and can cause a blowup in the tooth area. However, before leaving the tooth open under these circumstances, the dentist must observe some sensitivity or tenderness in the tooth area, and the X-rays should reflect a radiolucent area around the tooth. The patient should also be advised that he runs the risk of having bacteria introduced into the canal space and that prompt, follow-up care will be required. As a general rule, an unclosed tooth should be monitored by a dentist and, if conditions permit, closed within the next few days. However, if the tooth is left open for several weeks, the introduction of microorganisms into the canal does not mean the area will automatically become infected. Finally, when removing decay, a dentist must take care to eliminate the decay without pushing it through the apex (the bottom of the tooth next to the gum) and into the gum. If this occurs, the patient risks having an infection in the bone area which, prior to the RC, was not contaminated. After the decay is removed, the endodontic treatment is begun. This involves the filing or reaming of the canal with precision tools that vary in size. Filing is normally begun with the smallest file and gradually increased to the desired size. 3/ The intent is to file or ream the walls of the canal so as to remove any irregularities, decay, nerves and arteries that are present. The walls are made into a narrowing, tapered cylinder shaped hole with the narrowest point being closest to the gum. After each step of the reaming is completed, the tooth is lavaged (washed out) with sterile solutions so as to remove the filing debris and sterilize the inside of the tooth. After drying the tooth with sterile paper points, a medicament is placed inside the tooth to kill bacteria. The most common medicaments are camphorated monochlorophenol (CPNC), formacreosol and calcium hydroxide. Thereafter, the tooth is temporarily sealed with a soft, putty-like substance to prevent bacteria from entering the canal. There is conflicting testimony concerning the length of time that must elapse after the foregoing procedures are completed but before the tooth is permanently closed. All witnesses agreed that a RC can be started and completed in the same visit so long as no bacteria is present and the tooth is kept sterile. They disagree on whether a tooth can be temporarily sealed on one day and permanently filled the next, particularly when the tooth has been left open for up to six weeks. The more persuasive and credible evidence is that, as long as the tooth is "comfortable," "dry," properly "shaped" and has "no fistulas," there is no set waiting period between installing the temporary and permanent fillings. Put another way, unless the dentist observes some contraindication, he may make a permanent closure on the day after the temporary seal has been installed. On the visit when the permanent closure is made, the temporary filling or seal is first removed, and a paper point is placed in the canal to ascertain if any exudate is present. If the canal is clear, it is lavaged and dried. After a medicament is placed in the canal, it is permanently filled with guttapercha (inert rubber material) or cement to prevent the entry of bacteria. A dentist generally seeks to fill the canal approximately one-half to one millimeter short of the radiographic apex of the tooth since it is better to fill the canal short than long. When permanently sealing a tooth, it is not uncommon for a dentist to overfill a RC. In the words of one expert, "(overfilling) occurs with a great deal of frequency." Overfilling means that too much guttapercha has been placed in the canal, and the filling has penetrated the periodontal ligament and entered the periapical space above the apex. However, the filling material is resorbed over time by the body, and an overfilling does not result automatically in an endodontic failure. Indeed, most overfilled canals are successful. Further, an overfill is not objectionable as long as the overfill does not impinge on vital structures such as blood vessels and nerves. If overfilling occurs, two options are available to the dentist. First, if necessary, he may surgically remove the filling material by cutting into the gum and cleaning out the area. This procedure is known as a periapical curettage. If surgery is required, the dentist must cut laterally into the bone above the apex area. Therefore, if the guttapercha has been pushed beyond the apex area, the fact that a post has been placed into the tooth is immaterial since it does not block surgical access to the filling. The second and more desirable alternative is for the dentist to simply monitor the patient's condition through future office visits to see if the problem resolves itself through the resorption process. If the overfill resolves itself, and no pain or swelling occurs, surgery is not required. Finally, antibiotics need not be prescribed to a patient with an overfilled tooth unless symptoms of an infection are present. Once a broken-down, anterior tooth is endodontically filled, it is normal practice for a dentist to place a post two-thirds of the way into the RC as a support for anchoring the crown. This is because the inside of the root is the only place where retention for the appliance can be obtained. The Patient's Visit In November 1982 one George Roderman, then a California resident and around sixty eight years of age, visited his son, Barry, in the Fort Lauderdale area for a few days. Because Barry was a patient and friend of Dr. Okun, respondent agreed to see George Roderman on an emergency basis. Roderman's primary complaint was that he needed repairs on a temporary bridge on teeth numbers 4-11. Roderman's initial visit to respondent was on November 23. After removing the temporary bridge, respondent examined Roderman's teeth and found Roderman had not followed good dental hygiene practices and that his teeth were in poor condition. Respondent learned that the patient had not seen a dentist since the temporary bridge was made some two years earlier. Although Roderman did not complain of any pain, the front part of the bridge was broken, there was inflammation and infection around the gums, and he had a great deal of recurrent decay on many margins of the bridge. After taking panoramic X-rays, Dr. Okun observed a rarefaction (a radiolucent area at the apex of the tooth) and recurrent decay in tooth number 11. The tooth was nonvital (dead) and had pulp exposure. However, there was no pus or oozing, and the area of the tooth was dry. Respondent initially removed the decay from tooth 11, medicated the tooth and inserted a temporary filling. After mending the bridge, the patient was advised that a RC had been initiated, that he needed a permanent bridge fabricated after the canal was completed and that a post would be placed in tooth 11. He was also instructed to resume good oral hygiene practices. Finally, primary impressions to fabricate a new temporary crown and a custom tray were taken. A second appointment was scheduled on November 26, or three days later. In his records, Dr. Okun noted that a twelve unit appointment (twelve blocks of 15 minutes each) would be set up for continued RC therapy when Roderman returned to Florida. The appointment contemplated other work as well, including the fabrication of a new bridge which generally took a month or so to complete. According to respondent, these appointments were a courtesy to Barry Roderman since he did not know specifically when Barry's father would return to Florida. On November 26 Roderman returned to Dr. Okun's office so that respondent could monitor his condition. Respondent did not observe any exudate, and the tooth was dry. The patient had no complaints of pain. However, after learning that Roderman was returning by airplane that evening to California, Dr. Okun percussed tooth 11 and found the patient experienced a slight tenderness and sensitivity due to inflamed fibers supporting the tooth. Based on this clinical observation, and the presence of a radiolucent area on the patient's X- ray, Dr. Okun reopened the tooth, removed the temporary stopping and medication and installed an endodrain. He did this because he was concerned that the pressure change from the airplane might cause a buildup of gases in the tooth resulting in discomfort and pain. Respondent believed that Roderman had felt no discomfort on his flight from California to Florida because Roderman had a natural passageway (by virtue of the extensive decay in the canal) for bacteria and gases to escape from the tooth. Doctor Okun advised the patient that he was more at risk by leaving the tooth open and that he must see a California dentist to have the root canal therapy completed. This advice was consistent with respondent's normal practice of having a patient with an open tooth return within 24 to 48 hours for further evaluation and treatment. Roderman was also given a four or five day prescription for antibiotics as a precautionary measure and his full mouth series of X-rays for use by the California dentist. When the patient left, respondent assumed he would see a dentist in California for further treatment. On January 13, 1983, or a day earlier than his scheduled appointment, Roderman telephoned respondent's office and was told to come over that afternoon. Respondent expected to see Roderman with a completed RC and the series of X-rays in his possession. However, to Dr. Okun's surprise, Roderman had neither. Since Roderman left his X-rays in California, it was necessary that he take another series. Respondent proceeded with the RC therapy by completely irrigating and drying the canal in tooth 11, filing it to a number 60 file, sterilizing it with CPNC and applying a temporary filling. These steps were in conformity with generally accepted and prevailing standards for dentists. On January 14, 1983, the patient returned for his regularly scheduled visit. He was first "reeducated" on proper oral hygiene and given a stimulator and gum brush. Dr. Okun next examined tooth 11 and the apical area and found the patient had no symptoms of discomfort, pain or abscess. There was no clinical sign of infection. In view of this, respondent decided to fill the canal with a permanent filling. After removing the temporary filling, respondent observed that the tooth was dry and clean, did not smell and had no exudate. Accordingly, he filled the canal with guttapercha and paste. A periapical X-ray taken after the filling revealed that there was a slight overfill of guttapercha. However, this did not appear to be unusual, excessive or severe, and it did not impinge on any vital structures. Respondent advised Roderman the canal was "a little overfilled" and that, if Roderman intended to return to California, he must get "immediate attention" if he experienced any discomfort. Roderman was told further that when he returned to respondent's office, respondent would monitor the tooth to ensure no problems occurred. Doctor Okun also decided to place a post into the canal on tooth 11 as an anchor for a new crown. Finally, the patient was given a new temporary bridge for teeth numbers 3-14. On January 17, 1983, Roderman returned to Dr. Okun's office and was given the final prep and impression for a new twelve-unit fixed porcelain to metal cantilever bridge. The patient was also given Tylenol with codeine and was told to rinse and massage his gums because of a slight gum irritation caused by the bridge fitting. On January 20, Roderman made a final visit to respondent's office. A color selection (shade) for the bridge was taken and Roderman took a bite registration. The bridge was thereafter sent to the laboratory to be fabricated. However, Roderman left for California and never returned to respondent's office to pick up his permanent bridge. At no time during any visits in January 1983 did Roderman complain of pain or discomfort regarding tooth 11. Root Canal Therapy or Heresy? Three experts testified concerning the level of skill and treatment exercised by respondent while treating Roderman. The Board expert concluded that Dr. Okun did not conform to minimal, acceptable standards. Conversely, respondent's two experts reached the opposite conclusion. The pertinent findings relative to this testimony are set forth below. To support its allegation that Dr. Okun violated various statutory provisions while treating Roderman, the Board presented the testimony of Dr. Jerry W. Zimmerman, a general dentist in North Miami Beach, Florida, since 1970 and who has performed "hundreds" of endodontic procedures during his career. Before reaching an opinion, Dr. Zimmerman reviewed the pertinent patient records in question and "did copious research into books, journals (and) magazines" because of the "complex nature of the case." He acknowledged later the case was not complex and involved a relatively simple endodontic procedure. According to Dr. Zimmerman, Dr. Okun fell "far short" of the minimum standards of performance in the treatment of Roderman. As to Dr. Okun leaving Roderman's RC open after the November 26, 1982, visit, Dr. Zimmerman noted that, because of the likelihood of bacteria being introduced into the tooth, he would not leave the tooth open unless the patient was experiencing extreme pain and had a large amount of exudate. Even then, the witness suggested the tooth should be resealed within the next 24 to 48 hours. Unlike respondent, Dr. Zimmerman did not believe an imminent airplane trip was justification to leave the tooth open. In reaching this conclusion, the witness assumed the patient had no pain or exudate and that the tooth was not sensitive or tender when percussed. He assumed further, albeit incorrectly, that the patient was not instructed to see a dentist as soon as he got to California. Doctor Zimmerman believed that respondent erred by continuing the RC therapy on January 13, 1983, and promptly closing it the following day. This conclusion was based on the assumption that the tooth was infected after being open for six weeks and that a minimum of three visits would be necessary to completely eradicate the bacteria and sterilize the canal. It was also based upon technical literature which suggested that a comparable waiting period was appropriate. It should be noted, however, that other technical literature of record supports the practice of instrumenting and closing in the same session abscessed teeth that had been left open for drainage. The state's expert opined further that Dr. Okun was negligent and incompetent by failing to prescribe antibiotics for Roderman on January 14, 1983. This opinion was predicated upon a belief that the canal space could not be adequately sterilized in the one visit on January 13, and that by overfilling the canal on January 14, bacteria would have been pushed through the apex of the tooth. Doctor Zimmerman characterized the degree of overfilling by respondent as "gross" and contended (incorrectly) that guttapercha cannot be resorbed by the body. However, he later conceded the material could be resorbed. The witness stated that he would have removed the excess guttapercha in a nonsurgical manner by simply melting it with a chemical. The witness added that respondent complicated matters by placing a post in the canal which prevented the use of this nonsurgical technique. However, as pointed out in other findings, the melting procedure was unavailable in this case due to the location of the overfill and the hazardous nature of the chemical. Finally, the expert concluded that Dr. Okun was incompetent in his work by failing to clean the canal with any lavages after it was reamed. He based this conclusion on the records which indicated that the canal was simply "filed to number 60 and closed." Testifying on behalf of respondent was Dr. Harry Blechman, a board certified endodontist and presently the professor and chairman of the Department of Endodontics at the New York University School of Dentistry and onetime dean of the school from 1967 through 1975. After reviewing the patient records and X-rays, and interviewing respondent, Dr. Blechman concluded that respondent's care and treatment of the patient were in conformity with the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. According to Dr. Blechman, it was acceptable for respondent to leave Roderman's tooth open after removing the decay on November 26, 1982. This was because the patient was about to embark on a lengthy airplane trip, was experiencing tenderness after having the tooth percussed, had been given a precautionary supply of antibiotics, and had access to a dentist in the state to which he was traveling. The witness suggested that, by leaving with his tooth closed, the patient would risk a "blowup" and possible serious complications. As to the charge that Dr. Okun erred by permanently closing and overfilling the tooth without the use of antibiotics in too short a period of time, Dr. Blechman responded first that, if the tooth is asymptomatic (free of symptoms), comfortable and dry, there is no time sequence for a permanent filling of a RC. Concluding those circumstances were present, the witness found it was acceptable for respondent to permanently close the tooth on January 14 after filing the tooth on January 13, even though the tooth had been left open previously for six weeks. Secondly, the witness noted that overfills occur "with a great deal of frequency," and while a concern, do not constitute "a risk to the health" of the patient. In this case, he found the overfill did not put Roderman at risk. He added that an overfill by itself is within acceptable standards for a dentist. Finally, the expert observed that antibiotics were not necessary since there was no sign of infection. Doctor Blechman found nothing improper by respondent's failing to open the periapical tissue and removing the guttapercha after learning the tooth had been overfilled. Indeed, the witness opined that Dr. Okun exercised good judgment by opting to see if the situation would resolve itself through the resorption process rather than resorting to a surgical procedure, particularly since the tooth was asymptomatic. He disagreed also with Dr. Zimmerman's conclusion that, without a post in the canal, the guttapercha could be safely removed by a nonsurgical procedure. Also testifying on behalf of respondent was Dr. Rupert C. Bliss, a general dentist in Jacksonville, Florida, and licensed since 1956. Doctor Bliss is a former chairman of the Board of Dentistry and still serves under contract as a part-time consultant to the Board. He concluded that, based upon a review of the records and X-rays and a discussion of the matter with respondent, respondent adhered to minimum standards of performance for a dentist while treating Roderman. According to Dr. Bliss, respondent's decision to leave Roderman's tooth open on November 26 was strictly a clinical judgment. Based upon the expert's knowledge of the facts of the case, this witness would have also left Roderman's tooth open. Doctor Bliss opined that there is no set time between temporarily and permanently closing a tooth and that the one-day interval used by respondent was permissible. He also pointed out that the medication applied to the tooth on January 13 was sufficient to sterilize and clean the tooth for permanent closure on January 14. Since there was no indication of an infection present in the tooth when Roderman returned to respondent's office on January 13, 1983, he concluded that antibiotics were not required. The expert did not characterize the degree of overfill in this case as being objectionable or unusual since it did not impinge on any vital structures. As to the allegation that respondent erred by not opening the periapical tissue and removing the overfill, Dr. Bliss observed that surgery is not required unless the overfill fails to resolve itself through the resorption process. The witness suggested further that the use of a nonsurgical procedure, as suggested by witness Zimmerman, was not practical here since the guttapercha extended slightly beyond the confines of the canal, and under these circumstances the use of chloroform to melt the material would be a very risky procedure. Finally, Dr. Bliss opined that the placement of a post in an overfilled tooth was in conformity with minimal recognized standards since it did not impede surgical access to the overfill material and was necessary to anchor the crown. The undersigned has resolved the conflicts in the above testimony in respondent's favor. In doing so, the undersigned finds respondent's experts to be more credible and persuasive, particularly since the testimony of the Board's witness was grounded on certain erroneous assumptions. Accordingly, it is found that respondent met the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance while treating patient Roderman.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed against respondent be DISMISSED, with prejudice. DONE AND ORDERED this 19th day of August 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 19th day of August, 1988.
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 Has Dr. Steinberg been guilty of malpractice; willful negligence; or misconduct in his business affairs which could bring discredit upon the dental profession contrary to the provisions of Section 466.24, Florida Statutes, (Supp. 1978).
Findings Of Fact Dr. Edward M. Steinberg is licensed by the Board of Dentistry to practice dentistry in `he State of Florida. He has been so licensed since February 1973. Mrs. Elizabeth Betzler Mrs. Betzler was a dental patient of Dr. Steinberg between October 1978 and July 20, 1979. During that time he performed a variety of dental treatments for her including equilibration, two cores, an extraction, periodontal care, and the construction and placement of a 3-unit temporary acrylic bridge. This treatment extended over at least 10 to 12 long office visits. The 3-unit acrylic bridge was cemented in the patient's mouth on May 14, 1979. Mrs. Betzler was led to believe by Dr. Steinberg that the acrylic bridge was the permanent bridge for which she had paid $800.00. 1/ At the final hearing Dr. Steinberg testified that he never told Mrs. Betzler that tie acrylic bridge was permanent. This testimony is not accepted as credible. While Dr. Steinberg and Mrs. Betzler had originally agreed that he would construct for her a 5-unit porcelain on on gold bridge, Dr. Steinberg later told her that the acrylic bridge was even stronger and more satisfactory than the gold one. Subsequent to its installation, Mrs. Betzler's bridge broke numerous times. She had to frequently return to Dr. Steinberg to have it repaired. Acrylic bridges are not of a permanent nature. They are used to cover teeth previously prepared for the later installation of a permanent bridge. An acrylic bridge is an interim measure until the permanent one is prepared by a laboratory. This preparation usually takes no longer than one month. Even though Dr. Steinberg installed Mrs. Betzler's temporary bridge in May of 1979, by July, 1979, when she last saw him, he still had not constructed a permanent bridge for her. Mrs. Betzler ceased going to Dr. Steinberg for treatment in July, 1979, because of what she believed to have been rude treatment of her daughter Ms. Mary Jo Holland by Dr. Steinberg and his receptionist. For all of her treatment by Dr. Steinberg, Mrs. Betzler paid a total of $1,115.00. Three hundred fifteen dollars was for the cores, equilibration, periodontal treatment, etc., and $800.00 was for her permanent bridge. Dr. Steinberg told Mrs. Betzler that he would not install her bridge until she paid him in full for it. She made the last payment on May 14, 1979. Dr. Steinberg's request that a patient pay his full fee in advance before the patient's treatment would be concluded is contrary to the general practice of dentistry in the Fort Lauderdale area where Dr. Steinberg has his office. Mary Jo Holland Ms. Mary Jo Holland was a patient of Dr. Steinberg's during the same time he treated her mother. She was initially diagnosed by Dr. Steinberg to need a root canal on tooth number 20 and a crown on tooth number 19. Because the prescribed treatment was more than she could afford to pay at once, she and Dr. Steinberg agreed to treat tooth number 20 first. It was excavated and a temporary filling was installed. An appointment to place a permanent filling in that tooth was made for sometime in July 1979. Shortly before that scheduled appointment, the temporary filling chipped and Ms. Holland secured a special appointment on July 17, 1979 to have it repaired. This special appointment was scheduled through Dr. Steinberg's mother, who is also his receptionist. Mrs. Steinberg never informed Dr. Steinberg on July 17, 1979, what treatment Ms. Holland wanted, and apparently he never inquired. Upon her being seated in the dental chair Dr. Steinberg began to treat Ms. Holland without inquiring of her what treatment she required. Instead, he assumed that she was there to have the crown placed on tooth number With that aim in mind, Dr. Steinberg excavated tooth number 19 in preparation for its crown. During the course of the appointment Ms. Holland learned that the chipped filling on tooth number 20 was not being repaired. This discovery lead to an argument between her and Dr. Steinberg and Mrs. Steinberg. Because of the argument Ms. Holland fled Dr. Steinberg's office in tears. The chip on tooth number 20 was never repaired by Dr. Steinberg.
Recommendation Based on the foregoing findings of fact and Conclusions of Law, it is RECOMMENDED: That the Board of Dentistry find the Respondent guilty of unprofessional conduct as set forth above and enter a final order suspending his license to practice dentistry in the State of Florida for a period of two (2) years; provided however; that the last year and 11 months of the suspension be stayed under the following conditions: that Dr. Steinberg return the $800.00 fee to Mrs. Betzler which she paid him for a 5-unit porcelain on gold bridge, that Respondent during the next two (2) years from the date of the final order complete at least 48 hours of continuing dental education. The Respondent shall propose a schedule of courses to the Board in order to obtain its prior approval for such courses, that Dr. Steinberg appear before the Board at its meeting immediately prior to the conclusion of his probationary period to certify that he has complied with the terms of the Board's final order. DONE and RECOMMENDED this 4th day of February, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1981.
The Issue Whether respondent's license to practice dentistry should be revoked or otherwise disciplined on grounds: (1) that he incompetently performed root canal surgery, and (2) that he accepted and performed professional responsibilities which he knew or should have known he was not competent to perform.
Findings Of Fact Respondent has been licensed to practice dentistry in Florida since January, 1977. At all times material to this proceeding, he practiced dentistry at his office located at 6221 Margate Boulevard, Margate, Florida. (Testimony of Sabroske; P-2, P-7.) II. On June 4, 1980, respondent performed root canal surgery on the lower left second molar (tooth No. 18) of his patient, Leon Seaver. (Testimony of Sabroske; P-1.) Root canal surgery is an endodontic procedure for removal of the diseased nerve or pulp of a tooth. Access to the pulp chamber is obtained by drilling a hole through the tooth's surface. The pulp chamber is then inspected and the root canals are located. The pulpal or nerve tissue is manually removed from the canals by twisting small files of increasing size. The nerve pulp has been removed when tooth filings are detected and the dentist feels increased resistance to the twisting of the file; moreover, an x-ray is taken which shows that the file has reached the apex of the root and completely filled the canal. The hollowed canals are then sterilized by medication and filled with gutta percha or silver point. Then the chamber access or opening is restored. (Testimony of Dixon.) In performing root canal surgery on Leon Seaver, respondent drilled too deeply into the tooth and perforated the floor of the pulp chamber between the two roots of tooth No. 18. He also failed to remove the pulpal tissue from the canal of the mesial root; diseased tissue thus remained in the mesial root canal. (Testimony of Dixon, Sabroske; P-4, P-6.) Seaver, complaining of continuous pain from the tooth, returned to respondent's office on June 16, 1980. Respondent took x-rays but failed to detect the perforation of the tooth floor and pulpal tissue remaining in the mesial canal. He then permanently filled the tooth with gutta percha point-- which filled the intraradicular area between the two roots instead of the mesial root canal, where the diseased pulpal tissue remained. (Testimony of Seaver, Dixon; P-1.) Seaver continued to experience pain and, eventually, the tooth had to be extracted. (Testimony of Seaver.) III. Respondent's performation of the tooth's pulpal floor, his failure to remove the pulpal tissue from the canal in the mesial root on June 4, 1980, and his failure to detect and correct the incomplete removal of the pulpal tissue on June 16, 1980, deviates from minimum dentistry standards of diagnosis and treatment which generally prevail among his professional peers. (Testimony of Dixon, Sabroske.) IV. Respondent graduated from dental school at Ohio State University in 1965. He was dismissed from dental school at the end of the spring quarter of 1963 because he had not met the clinical requirements for graduation. This was due, in part, to the fact that he was married and working part time while attending dental school. In the autumn quarter of 1964, he returned to school and successfully completed the courses required for graduation. (Testimony of Sabroske; P-7.) Although respondent is not a specialist in endodontics, he performs endodontic procedures. Endodontics is considered a part of the practice of general dentistry; dentists are trained to perform ordinary endodontic procedures. Endodontics is not a significant portion of respondent's practice. (Testimony of Dixon, Sabroske.) In the autumn quarter of 1962, respondent failed a course in endodontics at Ohio State University dental school. There was no evidence that he failed any of the seven other endodontics courses he took at dental school; he earned an A and B in two of those courses. (P-7.) Because of the difficulties he encountered in the endodontics procedure which he performed on Leon Seaver, respondent--on his own initiative-- took a continuing education course on endodontics offered by the University of Florida College of Dentistry in November, 1980. (Testimony of Sabroske; R-1.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine be suspended for one (1) month; That he be required to pay an administrative fine of $1,000; and That (following the one-month suspension) respondent be placed on probation for one (1) year, subject to the condition that, during that time, he successfully complete twenty-five (25) hours of recognized continuing education courses in endodontics. (For purposes of satisfying this condition, respondent should be given credit for the continuing education course he completed at the University of Florida on November 1, 1980.) DONE AND RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982. COPIES FURNISHED: Richard Sabroske, D.D.S. 6221 Margate Boulevard Margate, Florida 33063 Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent, a dentist, failed to maintain adequate records regarding his treatment of patient R.S. and/or provided R.S. dental care that fell below minimum standards of performance, as Petitioner alleges. If Respondent committed any of these offenses, it will be necessary to determine an appropriate penalty.
Findings Of Fact Introduction At all times relevant to this case, Respondent Joseph Gaeta, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Gaeta. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Gaeta committed two such offenses. In Count I of the Complaint, the Department charged Dr. Gaeta with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named R.S., whom Dr. Gaeta saw six times over a five-month period from November 15, 2002, through April 11, 2006. In Count II, Dr. Gaeta was charged with incompetence or negligence——again vis-à-vis R.S.——allegedly by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, an offense under section 466.028(1)(x). The Material Historical Facts The events giving rise to this case began on November 15, 2005, when R.S., a retired septuagenarian who spent winters in Florida but considered Michigan——where he resided the rest of the year——to be his home, arrived at Dr. Gaeta's office with an acute problem, namely a loose tooth. The tooth——#24, an incisor located in the lower jaw, center-left——had recently been knocked loose when R.S. bit into a cashew. Dr. Gaeta's office had scheduled R.S. for an immediate visit when he had called for an appointment, advising that they would "work [him] in." Upon being seen, R.S. informed Dr. Gaeta that he would be leaving in a couple of days for a cruise, and that, consequently, he wanted the bare minimum amount of dental treatment. Dr. Gaeta performed a comprehensive examination of R.S.'s mouth and took X-rays, including periapical X-rays of front tooth #9 (upper jaw, center-left) and tooth #24 . The examination revealed multiple problems besides the loose tooth, including lingual and buccal decay, bone loss, periodontal disease, and a loose amalgam filling in tooth #29 (lower right bicuspid), which filling popped out when probed. These issues were recorded in R.S.'s dental record. Dr. Gaeta prepared a treatment plan in accordance with R.S.'s desire to have as little dental work done as possible. Dr. Gaeta proposed to extract tooth #24, which was noted to have class III mobility (meaning it was quite loose as a result of bone loss caused by periodontal disease), and, in place of the absent tooth, substitute an artificial tooth known as a pontic, which would be supported by a five-unit bridge using the adjacent teeth (##22-23 and ##25-26) as abutment teeth. He proposed to place a crown on tooth #9 due to lingual decay, and another on tooth #29, from which the amalgam filling had fallen out. This treatment plan was documented in R.S.'s chart. Dr. Gaeta informed R.S. of his diagnoses, explained the treatment options, and obtained verbal consent to proceed with the prescribed course of treatment (described above). Dr. Gaeta noted in R.S.'s dental record that he "gave pt [patient] tx [treatment] plan," but did not otherwise memorialize the substance of their discussion, nor did he obtain written consent to treatment from R.S. After agreeing on a course of treatment, R.S. paid in advance for the procedures he had orally authorized Dr. Gaeta to perform. Thereafter, an anesthetic drug known by its brand name, Septocaine®, was injected to numb R.S.'s mouth, and Dr. Gaeta pulled tooth #24. He also "prepped" tooth #9, tooth #24, and the abutment teeth (##22-23 and ##25-26) and seated temporary crowns on them. Finally, Dr. Gaeta installed a temporary bridge, which would remain in R.S.'s mouth until the arrival and placement of a custom-made fixture from a dental laboratory. All of this dental work (including the use of the anesthetic), which was performed on November 15, 2005, was noted in R.S.'s chart. The evidence is in conflict as to whether Dr. Gaeta gave R.S. "post-operative" instructions following the provision of any dental treatments, including but not limited to the procedures performed on November 15, 2005. Dr. Gaeta testified that he did provide such instructions, as necessary, but did not note having done so in R.S.'s chart (which is undisputed) because in his opinion the recordkeeping laws do not require dentists to document the occurrence or substance of such routine dentist-patient communications (a legal point with which the Department disagrees). R.S. testified (via deposition) that Dr. Gaeta never provided any instructions. Neither witness is more believable than the other on this issue. As a result, the undersigned is unable to determine without hesitancy that Dr. Gaeta failed to provide post-operative instructions, as the Department alleged. The evidence offered in support of this allegation, in sum, is legally insufficient because it is not clear and convincing. R.S. next saw Dr. Gaeta on January 3, 2006. This appointment was for the purpose of making final impressions for the crowns, but R.S. presented with a new problem, which was that tooth #9 was painful. A panoramic X-ray was taken and the fact noted in R.S.'s record. Based on that X-ray plus the previous pariapical X-ray of tooth #9, which radiographs showed significant decay and a large filling in the tooth, together with the patient's complaint that the tooth was sensitive (a symptom noted in the chart), Dr. Gaeta determined that tooth #9 needed root canal therapy and documented his conclusion in the chart. Dr. Gaeta performed a root canal on tooth #9. The Department has alleged that Dr. Gaeta failed to measure the root canal length using either an X-ray or, alternatively, an instrument called an apex locator. Dr. Gaeta testified credibly that he used an apex locator to determine that the canal length was 15 millimeters. This measurement is noted in R.S.'s record, and Dr. Gaeta's testimony regarding the use of an apex locator is credited. The Department further alleged that Dr. Gaeta failed to take a post-operative X-ray to determine whether the root canal had been completely filled. The record, however, includes such an X-ray. Finally, the Department alleged that Dr. Gaeta failed to use a rubber dam when performing the root canal procedure on tooth #9. But based on Dr. Gaeta's credible testimony, the undersigned finds that Dr. Gaeta did, in fact, use a rubber dam. Dr. Gaeta did not note in R.S.'s record the use of an apex locator or rubber dam; he denies having an obligation to document the use of common dental implements in a patient's chart. Dr. Gaeta gave R.S. Septocaine® to produce local anesthesia during the root canal procedure. He did not note this fact, or the strength and dosage of the anesthetic drug administered, in R.S.'s chart. Dr. Gaeta maintains that there is no legal requirement to record such information in the patient's dental record. R.S. saw Dr. Gaeta four more times, on February 7, March 27, March 31, and April 11, 2006. Over the course of these visits, excluding the final one in April, Dr. Gaeta placed permanent crowns on tooth #9 and tooth #29 and completed the dental work required to install the permanent bridge spanning tooth #22 and tooth #26. The details of these visits are largely irrelevant, except as set forth below. During the visit on April 11, 2006, Dr. Gaeta learned that R.S.'s tooth #29, which had been crowned earlier that year, had broken near the gum line. The Department did not allege that Dr. Gaeta's treatment of tooth #29 caused the tooth to fracture, but rather charged that Dr. Gaeta: (a) placed the crown without first determining whether the tooth was strong enough to support it; and (b) failed to determine, in April 2006, why the tooth had broken. The Department failed to prove these allegations by clear and convincing evidence, as explained below. Regarding the first of these allegations, it must be observed, initially, that Dr. Gaeta is charged with failing to determine whether tooth #29 could support a crown, not with making an improper determination as measured against the standard of care. Consequently, unless the evidence shows clearly and convincingly that Dr. Gaeta placed the crown despite having not made up his mind one way or the other about the strength of tooth #29, Dr. Gaeta must be found not guilty. Indeed, strange as it sounds, Dr. Gaeta would be not guilty even if the evidence showed that he determined tooth #29 was not strong enough to support a crown and proceeded to place one anyway, for the charge, again, is failing to make a determination, not making a mistaken determination. That said, it is undisputed that the only reasonable alternative to placing a crown on tooth #29 was extraction. Contrary to the Department's allegation, the evidence suggests that Dr. Gaeta did, in fact, determine that tooth #29 might be saved with a crown——a course of treatment that would spare R.S. the loss of yet another tooth. Without more than is present in the instant record, the mere fact that tooth #29 later broke is insufficient to prove, clearly and convincingly, that Dr. Gaeta's judgment fell below the standard of care, much less that he gave little or no thought to the question of whether the tooth could support a crown, as charged. To be sure, the Department's expert witness, Dr. Spiro, testified that, in his opinion, tooth #29 should have been pulled because, he "believe[s]," the "crown to root ratio" was too high. Putting aside that Dr. Gaeta was not actually charged with violating the standard of care by crowning a tooth that could not support a crown, Dr. Spiro did not give an opinion——based on generally prevailing peer performance——as to what an acceptable crown-to-root ratio would be, nor did he (or anyone else) testify about what the crown-to-root ratio of R.S.'s tooth #29 actually was, making it impossible for the undersigned to determine independently whether the latter ratio was too high relative to the standard of care. Thus, Dr. Spiro's belief that Dr. Gaeta violated the standard of care in placing a crown on tooth #29 was an unpersuasive "net opinion" that was, moreover, plainly personal in nature as opposed to being evidently grounded on an objective standard deduced from knowledge of the prevailing practices of dentists as a group. For these reasons, Dr. Spiro's testimony in this regard is not accepted as clear and convincing evidence in support of the allegation that Dr. Gaeta failed to determine whether tooth #29 could support a crown. As for the allegation that Dr. Gaeta failed to determine why tooth #29 broke, the evidence shows otherwise. It is noted in R.S.'s chart that during the visit on April 11, 2006, Dr. Gaeta explained to R.S. that he (R.S.) was "placing extreme force" on tooth #29, which was the patient's "only posterior tooth on [the] lower right" jaw. Even assuming for argument's sake, therefore, that the standard of care required Dr. Gaeta to make a determination as to why the tooth had broken, the evidence fails to prove that he did not do so. Further, the Department neither alleged nor proved that Dr. Gaeta erred, or otherwise violated the standard of care, in determining that tooth #29 had broken apart because, being R.S.'s only lower right rear tooth, it was exposed to extreme force when R.S. chewed his food. This particular allegation, in sum, was not proved by clear and convincing evidence. The Charges The charges against Dr. Gaeta are set forth in the Complaint under two counts. In Count I, the Department accused Dr. Gaeta of failing to keep adequate dental records, an offense disciplinable pursuant to section 466.028(1)(m). The Department alleged that, in the course of treating R.S., Dr. Gaeta violated the recordkeeping requirements in 13 separate instances, which are identified in paragraph 27, subparagraphs a) through m) of the Complaint. In Count II, the Department charged Dr. Gaeta with dental malpractice, which is punishable under section 466.028(1)(x). Fifteen separate instances of alleged negligence in the treatment of R.S. are set forth in paragraph 31, subparagraphs a) through o). The allegations in paragraphs 27 and 31 are largely parallel to one another, so that, when aligned side-by-side, they can be examined in logical pairs. Generally speaking, the Department's theory in relation to each allegation-pair can be expressed as follows: Where the circumstances required that the dental act "X" be done for R.S. to meet the minimum standards of performance as measured against generally prevailing peer performance, Dr. Gaeta failed to do X, thereby violating the standard of care. Dr. Gaeta also failed to record doing X in the patient's record, thereby violating the recordkeeping requirements. The parallel propositions comprising each allegation- pair are mutually exclusive. For example, if Dr. Gaeta did not, in fact, do X, then he might be found to have violated the standard of care, if the Department were successful in proving, additionally, that, under the circumstances, X was required to be done to meet the minimum standards of performance. If Dr. Gaeta did not do X, however, he obviously could not be disciplined for not recording in R.S.'s chart that he actually performed X.2 (If a dentist were to write in the patient's chart that he performed X when in fact he had not performed X, he would be making a false record; that would be a recordkeeping violation, but it is not the sort of misconduct with which the Department has charged Dr. Gaeta.) On the other hand, if Dr. Gaeta in fact did X and failed to note in R.S.'s chart having done X, then——if the law required Dr. Gaeta to document the performance of X——he would be guilty of a recordkeeping violation. But if Dr. Gaeta performed X, then (with one exception) he could not simultaneously be found guilty, here, of a standard-of-care violation, even if he performed X negligently. This is because nearly all of the standard-of-care allegations against Dr. Gaeta involve omissions, i.e., alleged failures to act, which means that the Department's burden was to prove that Dr. Gaeta did not do X when the circumstances required that X be performed. Such a violation of the standard of care (namely, not doing X when X should have been done) is quite different from performing X negligently; the latter would be a disciplinable offense, but (with one exception) it is not the type of wrongdoing with which the Department has charged Dr. Gaeta. The specific charges against Dr. Gaeta are reproduced in the table below, which places the corresponding allegation- pairs side-by-side in separate rows. The standard-of-care violations set forth in Count II are located in column A, while the recordkeeping violations charged in Count I are listed in column B. For ease of presentation, the undersigned has reordered the allegations to some extent. Further, in several instances a subparagraph has been divided into two parts. For example, paragraph 31 k) of the Complaint is shown in the table as paragraphs 31 k.1) and 31 k.2). An empty cell——e.g., column B, row 10 (hereafter, "B10")——denotes the absence of a corresponding allegation. Text which has been stricken through, as in B12, reflects allegations that the Department either withdrew at hearing or conceded in its Proposed Recommended Order. These allegations were not proved and will not be discussed further in this Recommended Order. The Department charges Dr. Gaeta as follows: A Count II, ¶ 31: Alleged Standard-of-Care Violations B Count I, ¶ 27: Alleged Recordkeeping Violations 1 a) [F]ail[ing] to provide a comprehensive diagnosis with adequate radiographs, study models or impressions, periodontal depth probe charting, tooth charting and a comprehensive treatment plan prior to initiating root canal treatment and crown/bridge placement . . . . a.1) [F]ailing to record an overall comprehensive written diagnosis, with periodontal depth probe and tooth charting, failing to document a written comprehensive treatment plan . . . . 2 k.1) [F]ail[ing] to provide adequate diagnosis, including symptoms, with an accompanying treatment plan for Patient R.S. prior to initiating root canal i.1) [F]ailing to record an adequate diagnosis, symptoms, and accompanying treatment plan for Patient R.S. prior to initiating root canal treatment of tooth number 9 . . . . treatment of tooth number 9 . . . . 3 k.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. i.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. 4 c) [F]ail]ing] to fully determine through diagnostic exam results whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five- unit bridge was needed[.] a.2) [F]ailing to document whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five-unit bridge was needed[.] 5 e) [F]ail[ing] to formulate and/or present treatment options with explanation of risks/benefits to, and fail[ing] to obtain informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] c) [F]ailing to document presenting treatment options with explanation of risks/benefits to, or obtaining informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] 6 f) [F]ail[ing] to fully determine through diagnostic exam results where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and fail[ing] to provide adequate diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . d) [F]ailing to notate where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and failing to provide a written diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . 7 g) [F]ail[ing] to provide post-op instructions or discussions for Patient R.S. following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] e) [F]ailing to record in the treatment notes that post-op instructions or discussions for Patient R.S. were provided appropriately following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] 8 l) [F]ailing to take a diagnostic working length radiograph, and/or use of an apex locator, and/or take a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] j) [F]ailing to record a diagnostic working length radiograph, and/or use of an apex locator, and/or tak[e] a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] 9 m) [F]ail[ing] to use a rubber dam was used during the January 3, 2006, root k) [F]ailing to record that a rubber dam was used in the January 3, 2006, root canal canal procedure, and/or indicate why it was not employed[.] procedure, and if it was not, why it was not employed[.] 10 b) [F]ail[ing] to either fully diagnose and/or properly treat the periodontal condition [that was] noted in Patient R.S.'s mouth during the initial exam November 15, 2005, before embarking upon complex restorative treatments including root canal and crown and bridge restorations[.] 11 n.1) [S]eat[ing] a crown on tooth number 29 in early 2006, which broke off with the tooth at the gum line[,] without first determining if tooth number 29 was strong enough to support a crown . . . . 12 n.2) [F]ail[ing] to diagnose and determine why the crown seated a few months earlier at tooth number 29 broke off with the tooth[.] m.1) [F]ailing to record in treatment notes for Patient R.S.'s April 6, 2006, visit, why the crown seated a few months earlier at tooth number 29 broke off with the tooth at the gum line . . . . 13 l) [F]ailing to record the types and amounts of anesthetic used during the January 3, 2006, root canal procedure[.] 14 i) [F]ail[ing] to take a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . g) [F]ailing to take and/or interpret in the treatment notes a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . 15 j) [F]ail[ing] to perform any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] h) [F]ailing to record the results of any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] 16 d) [F]ail[ing] to fully determine through diagnostic exam results why an extraction of tooth number 24 was required and why a five- unit bridge was being fabricated instead of a three-unit bridge or some b) [F]ailing to clarify why an extraction of tooth number 24 was required and why a five-unit bridge was being fabricated instead of a three-unit bridge or some other restorative option in the treatment notes [dated] November 15, 2005, which other restorative option [on] November 15, 2005, during which Respondent extracted tooth number 24 and then prepared for a five-unit bridge from tooth sites 22-26 to replace the extracted tooth[.] indicate that Respondent extracted tooth number 24 and then prepared for a five unit bridge from tooth sites 22-26 to replace the extracted tooth[.] 17 h) [F]ail[ing] to inform f) [F]ailing to note informing Patient R.S. that temporary Patient R.S. that temporary or or permanent parathesia is a permanent parathesia is a known known risk of extractions risk of extractions when the when the patient presented on patient presented on December 9, December 9, 2005, complaining 2005, complaining on numbness in on numbness in the lingual the lingual area proximate to area proximate to the the extraction/bridge prep site. extraction/bridge prep site. Respondent further failed to re- Respondent further failed to check the parathesia and note re-check the parathesia and progress at subsequent note progress at subsequent appointments, and/or fail[ed] to appointments, and/or failed advise Patient R.S. of possible to advise Patient R.S. of referral to an oral surgeon if possible referral to an oral surgeon if needed[.] needed[.] 18 o) [F]ail[ing] to provide m.2) [F]ailing to record adequate diagnostic results diagnostic results to justify a to justify a proposed plan to proposed plan to seat crowns at seat crowns at tooth numbers tooth numbers 27 and 28, along 27 and 28, along with placing with placing implants at tooth implants at tooth numbers 29 numbers 29 and 30. and 30, after the crown seated on tooth number 29 broke off with the tooth at the gum line. The Expert Testimony The Department presented the testimony of Victor Spiro, D.D.S., on issues relating to the standard of care. Dr. Spiro was shown to have formulated his opinions without the benefit of some potentially relevant information available to the Department, e.g., the deposition of R.S., which he had not read, and some of the X-rays Dr Gaeta had taken. In addition, he misunderstood certain facts, such as the length of the dentist-patient relationship between Dr. Gaeta and R.S., which was about six months, not many years as Dr. Spiro believed. These considerations were marginally damaging to Dr. Spiro's credibility, but not as devastating as Dr. Gaeta has argued. The real problems with Dr. Spiro's testimony go to the heart of what an expert opinion must contain to be credited as evidence of a standard-of-care violation. To be convincing, the opinion needs to establish clearly the existence of a standard of care in the profession and explain how such standard applies to the facts of the case.3 As the statute plainly specifies, the standard of care must be a minimum standard of performance, not the optimal standard or best practice.4 The standard, moreover, must be based on "generally prevailing peer performance", that is, be "recognized as necessary and customarily followed in the community."5 It is therefore not sufficient for the standard-of- care expert (who likely has a keen interest in seeing his views "recognized as being 'correct' and 'justifiable'") merely to declare his personal opinions or practices and invite the fact- finder, either implicitly or explicitly, to extrapolate——from one practitioner's ideas about how the profession should perform——a generally applicable, minimum standard for all practitioners.6 Instead, to be credited, an expert's opinion on the standard of care must result from a process of deductive reasoning, based demonstrably upon an informed understanding7 of what the dental community, as a whole, generally does in a given situation.8 Here, Dr. Spiro did not convincingly articulate minimum standards of performance against which the undersigned, as fact-finder, can independently measure Dr. Gaeta's conduct. In addition, Dr. Spiro did not establish that his criticisms of Dr. Gaeta were based on a comparison of Dr. Gaeta's conduct to that which generally prevails in the relevant peer group. Indeed, the undersigned is not persuaded, much less convinced, that Dr. Spiro is familiar with the generally prevailing peer practices, if any, relevant to the charges in this case. In sum, a thorough review of Dr. Spiro's testimony leaves the undersigned with the distinct impression that Dr. Gaeta failed to measure up to Dr. Spiro's standards of performance. This is not a factually sufficient basis for the imposition of discipline. Because the Department failed to meet its burden of proof with regard to establishing the applicable minimum standards of care, it is unnecessary to make findings based on the testimony of Dr. Fish, whose opinions Dr. Gaeta offered to rebut those of Dr. Spiro. Ultimate Factual Determinations The evidence presented with regard to A1, A2, and A3 does not clearly and convincingly demonstrate that Dr. Gaeta "failed" to provide a "comprehensive diagnosis" inasmuch as the existence of a standard of care defining and requiring such a diagnosis was not proved and, in any event, Dr. Gaeta did diagnose and treat multiple problems in R.S.'s mouth. The evidence does not prove that Dr. Gaeta improperly diagnosed any of the conditions he treated. The evidence fails to establish convincingly any minimum standards of performance requiring the diagnostic tests that Dr. Gaeta allegedly failed to perform. There is, on the other hand, evidence that Dr. Gaeta performed diagnostic work on R.S., including periodontal depth probing. The evidence fails to establish convincingly the existence of a standard of care requiring (or defining) the provision of a "comprehensive treatment plan." There is, however, evidence that Dr. Gaeta developed a treatment plan for R.S., consistent with the patient's desires, which was implemented. Dr. Gaeta is not guilty of the charges reproduced in A1, A2, and A3 of the table above. The evidence fails to prove clearly and convincingly that Dr. Gaeta failed to record or include in R.S.'s chart any of the diagnoses he made, the results of examinations performed, or the X-rays taken. A dispute exists between the parties regarding whether the Department possessed all of the records comprising R.S.'s chart. The evidence suggests, as Dr. Gaeta maintains, that some materials might be missing. Given the many years that elapsed between the time Dr. Gaeta treated R.S. and the commencement of this proceeding, during which period Dr. Gaeta sold the dental practice in which R.S. had been seen and, as a result, surrendered exclusive control over R.S.'s chart, it is easy to accept that a few documents or X-rays have gotten lost or been misplaced. Dr. Gaeta was not charged, however, with failing to preserve dental records he had made, but rather with failing to enter certain required information upon R.S.'s chart.9 Therefore, he is not subject to discipline in this case for losing materials originally contained in R.S.'s chart.10 In sum, Dr. Gaeta is not guilty of the charges set forth in B1, B2, and B3 in the table above. Contrary to the allegations in A4, the evidence shows that Dr. Gaeta did, in fact, make a determination based on diagnostic examination results, including X-rays, that a five- unit bridge spanning tooth #22 and tooth #26 was appropriate. The evidence thus fails to prove clearly and convincingly that Dr. Gaeta gave little or no thought to the propriety of a five- unit bridge. He is not guilty of violating the standard of care as alleged in A4, even if his determination were wrong (which the evidence does not clearly establish either). Dr. Gaeta documented in R.S.'s chart the plan to install a five-unit bridge as a means of replacing tooth #24 with a false tooth. In doing so Dr. Gaeta clearly manifested his determination that the abutment teeth were appropriate. Although he did not write a detailed explanation of why a five- unit bridge was needed, Dr. Gaeta did prepare a dental record that justifies this course of treatment; thus he is not guilty of the recordkeeping violation alleged in B4. With regard to A5, the evidence is insufficient to prove clearly and convincingly that Dr. Gaeta failed to present treatment options, explain risks and benefits, and obtain informed consent before treating R.S., for there is credible evidence suggesting that he did those things. For that reason alone, Dr. Gaeta is not guilty of this alleged standard-of-care violation. Further, the failure to obtain informed consent is a disciplinable offense under section 466.028(1)(o) and thus is not punishable under section 466.028(1)(x), which defines the separate offense (dental malpractice) that Dr. Gaeta has been accused of committing.11 For this additional and independent reason, Dr. Gaeta cannot be found guilty of the standard-of-care violation alleged in A5. As just mentioned, providing dental services without first obtaining the patient's informed consent is an offense punishable under section 466.028(1)(o). Dr. Gaeta was not charged pursuant to that statute. Moreover, presenting treatment options, explaining risks and benefits, and obtaining informed consent do not justify the course of treatment; doing them does not transform an improper diagnosis into a correct one, nor does failing to do them deprive dentally necessary treatment of justification. Dr. Gaeta is not guilty of the recordkeeping violation as charged in B5. Contrary to the allegations in A6, the evidence shows that Dr. Gaeta provided a diagnosis for tooth #29 which supported his determination that the tooth might be saved with a crown. The evidence is undisputed that replacing the filling was not a reasonable option; the only alternative treatment was extraction. The evidence fails to establish that Dr. Gaeta was required, in meeting minimum standards of performance, to determine why the amalgam filling came loose from tooth #29. The evidence fails to prove that Dr. Gaeta was unaware of the location of the filling in tooth #29; to the contrary, there is credible evidence that he dislodged the loose filling while probing it. Dr. Gaeta is not guilty of the standard-of-care- violation alleged in A6. The notes and materials in R.S.'s chart justify Dr. Gaeta's treatment of tooth #29. No more than that is legally required. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B6. There is credible evidence that Dr. Gaeta provided post-operative instructions to R.S. In light of such evidence, the allegation that he failed to do so, as charged in A7, is not established by clear and convincing proof. Dr. Gaeta is therefore not guilty of this alleged standard-of-care violation. While the failure to give post-operative instructions might in some circumstances be shown to fall below minimum standards of performance, the failure to record in the patient's chart the giving of such instructions does not make an appropriate course of treatment unjustified, any more than giving——and noting in the record the giving of——post-operative instructions would justify an inappropriate course of treatment. The purpose of section 466.028(1)(m) is not to ensure that every dentist-patient communication is noted, every tool or instrument used listed, all actions taken, however routine, described in detail; nor is it to obligate the dentist to defend in writing his every diagnosis, treatment decision, exercise of professional judgment, and therapeutic act against potential criticism, as a sort of preemptive rebuttal to a possible future malpractice claim. Rather, the statute is designed, more modestly, to ensure that patient records contain information showing that every course of treatment has a rational basis in dentally relevant facts. Dr. Gaeta was not legally required to document his discussions with R.S. regarding post-operative instructions, and therefore he is not guilty of the recordkeeping violation as alleged in B7. The evidence shows that Dr. Gaeta used an apex locator to measure the canal length of R.S.'s tooth #9. Consequently, the allegation in A8 that he failed to do so is not established by clear and convincing evidence. Dr. Gaeta is not guilty of this charge. R.S.'s record contains X-rays and reflects the fact that Dr. Gaeta determined the canal length of tooth #9. The minimum statutory requirements were satisfied with respect to these particulars. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B8. There is credible evidence, which the Department failed sufficiently to overcome, showing that Dr. Gaeta used a rubber dam when he performed a root canal on R.S. Thus, the evidence is not clear and convincing that he failed to use this common dental implement, as alleged in A9. Dr. Gaeta is not guilty of this alleged standard-of-care violation. Section 466.028(1)(m) does not demand that a patient's record reveal that the dentist used common dental tools in the customary fashion. If the statute were held to require that level of detail, the dentist would need to note, e.g., the routine use of scalers and currettes, periodontal probes, latex gloves, drills, etc.——an absurd result. Therefore, although Dr. Gaeta did not document the use of a rubber dam, he was not legally required to do so. Dr. Gaeta is not guilty of the recordkeeping charge found in 9B. The evidence shows that Dr. Gaeta diagnosed R.S.'s periodontal condition. The evidence does not clearly and convincingly establish any minimum standards of performance that Dr. Gaeta failed to meet, under the facts of this case, in addressing the periodontal condition. As a result, Dr. Gaeta is not guilty of the standard-of-care violation alleged in A10. The evidence shows that Dr. Gaeta made a determination regarding tooth #29's ability to support a crown. He is therefore not guilty of the standard-of-care violation charged in A11. The evidence shows that Dr. Gaeta made a determination concerning the cause of tooth #29's collapse. He is therefore not guilty of the standard-of-care violation charged in A12. It is undisputed that Dr. Gaeta did not record in R.S.'s chart the type and amount of anesthetic used during the root canal procedure. Dr. Gaeta contends that producing local anesthesia with Septocaine® is not "treatment" and therefore need not be noted in the dental record. This argument is rejected; the use of medicine to control pain and anxiety is surely a form of "treatment" as that term is commonly used and understood. Consequently, section 466.028(1)(m) requires that the patient record contain justification for the use of anesthetic agents, which means that the drugs and dosages administered must be documented.12 Dr. Gaeta is guilty of the recordkeeping violation charged in B13. He has, moreover, been found guilty of, and been disciplined for, recordkeeping violations on two previous occasions.13 Credible evidence, which the Department failed rebut with clear and convincing evidence, shows that Dr. Gaeta took X- rays of R.S.'s tooth #9 before initiating root canal therapy. The X-rays and other information in R.S.'s chart justified that course of treatment. The allegations in B14 are not supported by clear and convincing evidence, and thus Dr. Gaeta is not guilty of this alleged recordkeeping violation. The evidence does not demonstrate clearly and convincingly that Dr. Gaeta performed any thermal, pulp, or bite percussion tests before initiating root canal therapy. Therefore, he cannot be punished for failing to record in R.S.'s chart the results of such tests, as charged in B15. Dr. Gaeta is not guilty of this alleged recordkeeping violation.
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 Dr. Gaeta guilty of the recordkeeping violation alleged in paragraph 27 l) of the Complaint (failure to record types and amounts of anesthetic agents used); finding Dr. Gaeta not guilty of the remaining violations; and imposing the following penalties: suspension from practice for three months, followed by probation for 18 months with conditions reasonably related to the goal of improving Dr. Gaeta's recordkeeping skills; and a fine in the amount of $2,500. DONE AND ENTERED this 12th day of June, 2012, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 12th day of June, 2012.
Findings Of Fact The Respondent, Peter Kurachek, was a licensed dentist at all times relevant to the allegations contained in the Administrative Complaint, having been issued license number 0005429, and was so licensed at the time of hearing. On January 19, 1981, Clarence Nicholson consulted the Respondent at the Sheppard Dental Center in Clearwater, Florida, regarding a dental problem. The Respondent performed a root canal treatment on Nicholson's tooth number six, a cuspid, and prepared the tooth to receive a crown. On January 31, 1981, the Respondent installed the permanent crown, which he had had prepared. In August 1981, the crown fell out, and Nicholson returned to the Sheppard Dental Center. Nicholson did not see the Respondent on this visit, and the crown was recemented by Dr. Christopher Clarke. In November 1981, the crown fell out a second time. Nicholson returned to the Sheppard Dental Center. On this occasion, Nicholson did not see Respondent, and the crown was recemented in place by Dr. Clarke. Dr. Clarke made no gross alterations to the crown on either of the appointments; however, he did clean the crown in preparation for recementing it on both occasions. Shortly after Dr. Clarke recemented the crown the second time, Nicholson saw Respondent and requested that he correct the crown. The Respondent advised Nicholson that he would be happy to replace the crown and redo the work if the crown became loose again. Respondent feared that forcefully removing the crown in order to prepare a new one might damage Nicholson's tooth. Because he would be responsible if the tooth were broken while removing the crown, the Respondent elected to deal with Nicholson's problem if the crown became loose again of its own accord. In April 1982, more than a year after Respondent did the work for Nicholson, and after the crown had been recemented twice by another dentist, Nicholson was examined by Dr. Paul Hounchell, a dental consultant for the Petitioner. As a result of his examination, Dr. Hounchell opined that the treatment provided by the Respondent did not meet the minimal accepted standards of practice in the community. (Tr. 81.) However, Dr. Hounchell indicated that his opinion was based upon the fact that Nicholson was unable to have the crown fixed to his satisfaction. Dr. Hounchell stated, "The only unprofessional thing is that we run this man around, you know, for a half a year, a year or something like that." (Tr. 121.) The record reflects that Nicholson only saw the Respondent one time after the Respondent installed the crown, and that on that occasion the Respondent told Nicholson that he would replace the crown to Nicholson's satisfaction if the crown became loose again. The record further reflects that Nicholson never tried to see the Respondent thereafter. The tooth in question was a nonvital tooth as a result of the root canal therapy. Such a tooth is more brittle and may fracture more easily. However, the tooth had a good-sized large root which was adequate to support a longer post. The various dentists disagree concerning whether it would have been appropriate for the Respondent to have removed the crown when he saw Nicholson after Dr. Clarke had recemented the crown in place. The treatment provided by the Respondent to Nicholson met minimum acceptable standards of practice in the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the charges against the Respondent, Peter Kurachek, D.D.S., be dismissed. DONE and RECOMMENDED this 25th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Peter Kurachek, DDS 703 Tropical Circle Sarasota, Florida 33581 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, a licensed dentist, on the basis of alleged violations of paragraphs (m) and (x) of Section 466.028(1), Florida Statutes. The alleged violations are set forth in a two-count Amended Administrative Complaint.
Findings Of Fact Stipulated facts2 The Respondent, Jack Saban, D.D.S., is now, and was at all material times, licensed as a dentist in the State of Florida, having been issued license number DN 8257. The Respondent's address of record is 150 North University Drive, Suite 100, Plantation, Florida. The Respondent is not board- certified in any specialty. The Respondent provided dental care to Patient A.S. from April 3, 2000, to August 6, 2001. On or about June 14, 2001, Patient A.S., then a 41-year-old female, presented to Respondent for emergency treatment of severe pain in her tooth number 31, a lower right molar. On or about June 14, 2001, the Respondent began root canal therapy on Patient A.S.'s tooth number 31. The Respondent was able to treat the distal canal of Patient A.S.'s tooth number 31, but he could not enter the mesial canals of that tooth and he referred Patient A.S. to a specialist. On or about June 22, 2001, Patient A.S. returned to the Respondent for treatment, and the Respondent again attempted to enter the mesial canals by drilling on Patient A.S.'s tooth number 31. Facts based on evidence at the final hearing On June 14, 2001, Patient A.S. presented to the Respondent's office experiencing severe pain in a lower right molar, tooth number 31. On that date the Respondent began root canal therapy on tooth number 31. The Respondent was able to treat the distal canal of tooth number 31, but he could not enter the two mesial canals. The Respondent's drilling produced bleeding, which he noted as "mesio-lingual canal pulpitis." The Respondent believed that the subject tooth was hypercalcified; that is, that it contained excess dental tissue that closed off the root canals. During the treatment session on June 14, 2001, the Respondent sealed tooth number 31 with a temporary filling. Because of the secondary and tertiary reparative dentin which resulted from previous treatment of Patient A.S.'s tooth number 31, the Respondent believed the required endodontics were beyond his skill.3 Accordingly, the Respondent referred Patient A.S. to a specialist in endodontics. On June 15, 2001, Patient A.S. presented at the office of the endodontist (Dr. Green) to whom the Respondent had referred her, but she did not see Dr. Green. Later that same day, Patient A.S. presented to another endodontist, Dr. Kaplan. On that occasion, Dr. Kaplan performed a clinical examination and made an x-ray of the subject tooth. On the basis of the examination and the x-ray, Dr. Kaplan concluded that the floor of the pulp chamber of Patient A.S.'s tooth number 31 was very thin and was perhaps even perforated. Dr. Kaplan discussed his conclusions with Patient A.S. and discussed treatment possibilities with her, but Dr. Kaplan did not perform any treatment. On June 18, 2001, the Respondent spoke with Dr. Kaplan. Dr. Kaplan told him that Patient A.S.'s tooth number 31 was near perforation or was perforated, and that the patient had chosen not to be treated by Dr. Kaplan. On June 22, 2001, Patient A.S. returned to the Respondent's office with her husband and requested that the Respondent treat her tooth number 31. With Patient A.S.'s husband present, the Respondent discussed the treatment options which had previously been explained to the patient by Dr. Kaplan, and also reviewed the risks associated with treatment of the subject tooth. Patient A.S. and her husband insisted that the Respondent complete the root canal therapy on tooth number 31. Against his better judgment, the Respondent yielded to their requests and embarked upon further endodontic treatment of the subject tooth. During the Respondent's attempt to access the hypercalcified mesial canals, a perforation occurred in the furcation area.4 The Respondent again urged Patient A.S. and her husband to seek endodontic treatment of her tooth number 31 from an endodontic specialist. Instead of seeking treatment by an endodontic specialist, Patient A.S. returned to the Respondent's office on June 29, 2001, and again implored him to continue treating the subject tooth. On June 29, 2001, the distal canal was sealed, but entry into the mesial canals was not possible. On July 13, 2001, Patient A.S. again presented at the Respondent's office, and again he attempted to treat her tooth number 31. On that date, one last unsuccessful effort was made to enter the mesial canals. Each time Patient A.S. requested that the Respondent treat her tooth number 31, the Respondent recommended that she seek treatment from an endodontic specialist. The Respondent did not at any time advise Patient A.S. that he had perforated her tooth number 31. The Respondent's records of his treatment of Patient A.S. do not contain any mention of a perforation of the subject tooth prior to the notations on August 6, 2001, regarding the Respondent's conversation with Dr. Baker in which Dr. Baker told the Respondent that Patient A.S.'s tooth number 31 was perforated. When a dentist perforates a patient's tooth, the dentist should promptly inform the patient of the perforation, should promptly note in the treatment records that a perforation occurred, and should promptly refer the patient to a specialist to initiate reparative measures.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Adopting all of the Findings of Fact in this Recommended Order, Adopting all of the Conclusions of Law in this Recommended Order, Dismissing the portion of Count One of the Administrative Complaint that is based on allegations regarding the lack of a treatment plan. Concluding that the Respondent is guilty of a violation of Section 466.028(1)(m), Florida Statutes, by reason of his failure to include in his treatment records that he had perforated the patient's tooth. Concluding that the Respondent is guilty of the violations of Section 466.028(1)(x), Florida Statutes, charged in Count Two of the Amended Administrative Complaint. Imposing the following penalties:7 Administrative fines in the total amount of $7,500.00; Probation for a period of one year on terms to be determined by the Board of Dentistry; and A requirement that the Respondent attend a course in dental record-keeping. DONE AND ENTERED this 31st day of January, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2004.
