The Issue Whether Respondent committed various violations of Chapter 466, Florida Statutes, as alleged in the Administrative Complaints.
Findings Of Fact That on or about July 18 1984, patient P.F. presented herself to Respondent's dental center for dental services. At all times material to the allegations contained in the Administrative Complaint, the Respondent was the dentist of record for the patient, P.F. On or about Jul ,8, 1984, Joan Chen, D.D.S., at the direction or request of Respondent, began crown preparation on patient P.F.'s teeth number 18, number 19, number 30 and number 1, during the initial visit. The treatment rendered by Respondent consisted of root canal therapy on teeth number 19 and number 30, and placement of crowns on teeth number 18, number 19, number 30 and number 31. Treatment provided P.F. by Respondent as the dentist of record failed to meet the minimum standards of diagnosis and treatment by failure to complete endodontic treatment on patient's teeth number 19 and number 30. The patient indicated that at the time of her initial visit she was told she would need two root canals, one on each side. Dr. Delk had told the patient of this need and gave the patient an estimate for services. A person with a "certificate" started the drilling for the root canal, and Dr. Delk completed it. After the teeth were drilled, Dr. Delk offered to extract the teeth for the stated reason that her mouth was too small to accommodate them. The endodontic treatment on teeth number 19 and number 30 were never completed. The failure to complete endodontic treatment was beneath the standard of care in the community. It enhanced the possibility of tooth loss due to the involvement of the bifurcation. A permanent crown was placed over tooth number 19, which was fractured. Tooth number 19 had a violation of the bifurcation which showed "absolutely no dental skill at all". There was junk "piled" down to the bifurcation and a permanent crown placed over it. Tooth number 30 was also perforated. According to the pre-operative x-ray, this was a good healthy tooth. No treatment called for a permanent crown to be placed, and the tooth was left in that condition. The chart did not reflect the patient was ever informed of the perforation and that the minimal acceptable practice would be to inform the patient. The capping of the tooth after perforation was beneath the minimal standard of care. The patient first learned of the perforation of the tooth from Dr. Buljevic, a subsequent treating dentist in Chile. There was a level of awareness by both the Respondent and his staff of the perforation of at least one of the teeth according to the testimony of Jacqueline Hansen on July 18, 1984. Dr. Delk was aware of the perforations which were done in this case. Dr. Delk did not note in his chart the perforations or any attempt to notify the patient of the perforations.
Conclusions Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.208(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance by: Failing to complete endodontic treatment on patient's tooth number 19. Failing to complete endodontic treatment on patient's tooth number 30. Placement of a permanent crown over fractured tooth number 19. Perforation of tooth number 30. By failing to inform the patient of the condition or to note it in his chart. It is further found that the Respondent cannot avoid responsibility for his actions in light of Section 466.018, Florida Statutes, which provides that each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patient regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary rendering such treatment at the direction or request of or under the supervision of such dentist of record. Dr. John W. Delk was the dentist of record for patient P.F. when the treatment was rendered. Any attempt to disclaim responsibility based on the performance of services by another dentist is unsupported by the record, but even if, assuming arguendo, it was supported by the record, it does not excuse Dr. Delk's actions based upon Section 466.018, Florida Statutes, which places responsibility on the dentist of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the, Department of Professional Regulation, Board of Dentistry, enter its final order finding Respondent guilty of Count I and not guilty of Count II as to Case Nos. 89-0646; guilty of the allegations contained in Case Nos. 89-0647 and 89-3313; imposing a fine of $500 each for Case Nos. 89- 0646 and 0647 and a fine of $1000 for Case No. 89-3313; suspending the Respondent's license for two years; and placing Respondent on probation for 24 months subsequent to the expiration of the suspension period, conditioning reinstatement of Respondent's license to practice dentistry to such reasonable conditions as the Board may require. The suspension period reflects the consideration of Rule 21G-13.005, Florida Administrative Code, which provides the following be considered: (a) the severity of the offense, (b) the danger to the public, (c) the number of repetitions of offenses or number of patients involved, (d) the length of time since the violation, (e) the number of times the licensee has been previously disciplined by the Board, (f) the length of time the licensee has practiced, (g) the actual damage, physical or otherwise caused by the violation and the irreversibility of the damage, (h) the deterrent effect of the penalty imposed, (i) the effect of the penalty upon the licensee's livelihood, (j) any efforts of any rehabilitation by the licensee, (k) the actual knowledge of the licensee pertaining to the violation, (l) the attempts by the licensee to stop or correct the violation or refusal by the licensee to correct or stop the violation, (m) related violations against licensee in another state, including findings of guilty or innocence penalties imposed and penalties served, (n) penalties imposed for related offenses under Sections 2 and 3 above, and (o) any other relevant mitigating or aggravating factor under the circumstances. The offenses are severe since they have harmed three different patients, and Dr. Delk has previously been disciplined for improper delegation. The record does not indicate any efforts of rehabilitation by the Respondent, and he denied actual knowledge of the damage caused to P.F. in spite of, the fact that it was apparent. DONE AND ENTERED this 26th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact As to Case No. 89-0646 Accepted: Paragraphs 1,2,3,4,5 (in substance), 6 (in substance), 8, 9 (in substance), 10, 15 (in substance),17, 18, 19, 20, 21(1) (in part), 21(2)(in substance), 22 (in substance) ,23 (in substance), 24 (in substance), 26 (in substance), 27 (in substance), 28, 29 (in part) Rejected as not proven by clear and convincing evidence: paragraphs 7, 11, 12, 13, 14, 16 (argument), 21(1) (in part), 25 (in part) As to Case No. 89-0647 Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 9, 14, 15 (in substance) Rejected as not proven by clear and convincing evidence: paragraphs 8, 10, 11, 12, 13, 16 and 17, 18, 19, 20 and 21 (duplication) As to Case No. 89-3313 Accepted: 1, 2, 3, 4, 5, 6 (in substance), 7 (in substance), 8, 9, 10, 11, 12, 13, 14, 15, 16-34 (incorporated in substance), 35 (in substance), 36, 37, 38, 39, 40, 41, 42 (in substance), 43, 44, 45, 46, 47 Respondent's Proposed Findings of Fact As to Case No. 89-0646 Respondent's recommended findings contained in 169 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation of the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-0647 Respondent's recommended findings contained in 129 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-3313 Respondent's recommended findings contained in 248 numbered paragraphs (followed by a summary of the facts numbered A through Y) have been carefully reviewed and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. COPIES FURNISHED: John Namey, Esquire 1520 Livingston Street Orlando, FL 32803 Thomas Gordon, Esquire 320 North Magnolia Avenue Suite 5-B Orlando, FL 32801 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact At all times material hereto, Respondent has been a licensed dentist in the State of Florida, having been issued license number DN 0004795. On April 30, 1981, Fay Ackret, an 84-year-old female with arthritis, consulted Respondent seeking both full upper and full lower dentures, since she had broken the set that she had been using for the last twenty years. Because Ackret's lower ridge was almost non-existent, Respondent recommended a lower cushion denture. Ackret advised Respondent she wanted porcelain teeth. On July 16, 1981, Ackret returned. Respondent examined her, and preliminary impressions were taken for the full upper and full lower dentures to be constructed with porcelain anterior teeth, and acrylic posterior teeth. Final impressions were taken on July 23, 1981; additional measurements and a bite block impression were taken on July 30, 1981; a try-in was done on August 5, 1981; and the dentures were delivered on August 12, 1981. Thereafter, Ackret returned for adjustments on August 18, 1981; August 31, 1981; November 12, 1981; November 18, 1981; December 15, 1981; January 6, 1982; January 11, 1982; January 19, 1982; February 2, 1982; February 15, 1982; February 24, 1982; March 2, 1982; March 8, 1982; and March 23, 1982. One of those visits involved, according to Respondent's records, a "major adjustment" and on one visit, her dentures were sent back to the lab for rearticulation. On June 3, 1982, Dr. Marshall A. Brothers examined Ackret on behalf of Petitioner. Ackret complained to him of pain and of not being able to function with her dentures or to retain them in her mouth during functioning. However, Ackret was wearing the dentures when she was seen by Brothers. Based upon his examination of Ackret and her dentures, Brothers concluded that the dentures Ackret got from Respondent failed to meet minimum acceptable standards due to numerous defects. The opinion of Brothers fails to take into account the numerous adjustments made to the dentures in an attempt to make Ackret comfortable with her new dentures. The number and kind of adjustments render the denture seen by Brothers to be substantially different than the denture originally fabricated by Respondent. Additionally, Ackret's lower denture had undergone a hard reline by the time she was seen by Brothers. Although Ackret had complained to Brothers that she could not eat with her new dentures and could not function with them, she in fact was wearing them for her visit to Brothers, and Brothers noted that food had collected on them, indicating that Ackret was in fact using her dentures for eating. On December 7, 1982, Ackret appeared at the dental office of Dr. Harry B. Gaulkin. She advised Gaulkin that her upper denture gave her no problems at all, but that her lower denture was not comfortable. She further advised that she could not chew well with the lower denture, and that it was loose. She then requested that Gaulkin make a new set of dentures for her, both full upper and full lower. Gaulkin initially suggested to Ackret that she simply consider a soft reline on the lower denture since the upper denture was not problematic. After Gaulkin discussed with her her various options and the prices thereof, Ackret left his office to think about what she wanted to have done. She has never returned. Gaulkin is not able to identify Ackret's exact complaints regarding her lower denture and did not note any defects in the set of dentures. A few months prior to the final hearing in this cause, Ackret appeared at Respondent's office complaining that she had broken a tooth off her denture.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed against Respondent herein. DONE and ORDERED this 20th day of January, 1985, in Tallahassee, Florida. LINDA M. RIGOT 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 20th day of January, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, NJ 07201
Findings Of Fact Dr. Farah is a candidate for licensure by the Board of Dentistry, having taken the dental clinical examination in June 1985. The examination covers ten domains of dental knowledge and practice; each is separately graded, and then weighted according to an algorithm. Rule 21G-2.13(3), Florida Administrative Code. A weighted grade of 3.0 is required to pass the clinical dental examination. Rule 21G-2.13(2)(c), Florida Administrative Code. Dr. Farah received a grade of 2.96. The June 1985 examination was Dr. Farah's second attempt to pass the clinical examination. The grading scale for each procedure is established in Rule 21G- 2.13(1), Florida Administrative Code, as follows: complete failure unacceptable dental procedure below minimal acceptable dental procedure 3- minimal acceptable dental procedure better than minimally acceptable dental procedure outstanding dental procedure An examiner is required to record a comment in support of any grade below 5. Examiners for the dental examination are experienced licensed Florida dentists. Rule 21G-2.20(4), Florida Administrative Code. They are trained by the completion of 8 to 10 hours of standardization exercises. During the standardization exercises the examiners receive examination grading criteria, grade identical procedures, discuss any grade variance and attempt to eliminate any discrepancies in interpretations of the grading criteria in order to bring the examiners to a consensus on grading. In the periodontal portion of the examination there are five criteria which are accorded equal importance in grading. These are: (a) presence of stain on the assigned teeth, (b) presence of supra-gingival calculus on assigned teeth, (c) presence of sub-gingival calculus on assigned teeth, (d) root roughness on the assigned teeth, (e) improper management of tissue such as gums which may have been lacerated during the procedure. Rule 21G-2.13(4)(b), Florida Administrative Code. The grading is holistic and each examiner assigns a grade based on the examiner's evaluation of the overall procedure. Three examiner's grades are averaged to obtain a final grade score for the individual procedure. Rule 21G- 2.17(1), Florida Administrative Code. The score for that procedure is then weighted and added with the other weighted scores to obtain the overall grade on the clinical examination. As a standardization technique in grading the periodontal exercise, an examiner marks off for root roughness when use of an explorer on treated teeth reveals a tactile roughness but the examiner is unable to visually confirm the presence of sub-gingival calculus. Use of an explorer reveals the presence of root roughness or calculus below the gum level (i.e., calculus which is sub- gingival). Dr. Farah was assigned teeth number 2, 3, 4, 12, 13, l4 and 15 on her periodontal patient. A prior candidate (Candidate 20057) had treated the same patient in her periodontal exercise, and had been assigned some of the same teeth as Dr. Farah, viz., teeth 2, 3, 4, 5, 6, 7 and 8. Candidate 20057 received individual holistic grades of 4, 4 and 5, which average to a grade of 4.33 for the periodontal procedure. Dr. Farah received grades of 1, 2 and 3, which average to a grade of 2.00 for the procedure. (Petitioner's Exhibit 8) Examiner #006 graded both Dr. Farah and Candidate 20057 on their periodontal treatment. That examiner gave Candidate 20057 a holistic grade of 4 (better than minimally acceptable), noting a deduction for "root roughness," but there is no indication on the grade sheet of the tooth or teeth on which roughness was found. Examiner #015 also gave Candidate 20057 a grade of 4, and noted "root roughness" on the mesial side of tooth number 7, which was not one of the teeth later treated by Dr. Farah. The third examiner gave Candidate 20057 a grade of 5 with no comments. (All comments are found on Respondent's Exhibit 3.) After Dr. Farah's treatment of the patient, which occurred two days after the treatment provided by Candidate 20057, Examiner #006 gave Dr. Farah a grade of 3, and recorded that he found sub-gingival calculus on the mesial side of tooth number 3. Calculus is a mineral deposit on teeth which does not form in 48 hours; Examiner #006 missed the calculus on tooth 3 when grading Candidate 20057 (perhaps because it was obscured by the inflammation and bleeding of the gums which the patient testified about at the hearing) or the calculus was on a tooth other than tooth 3, and the wrong tooth was noted by Examiner #006 on Dr. Farah's grade report. Examiner #005 gave Dr. Farah a grade of 2, finding root roughness and sub-gingival calculus on the distal side of tooth number 12, a tooth not treated by Candidate 20057. Examiner #048 gave Petitioner a grade of 1, commenting on "several" instances of sub-gingival calculus on teeth treated by Dr. Farah, as well as the presence of root roughness. (All comments are found on Petitioner's Exhibit 4.) Examiner #006 gave Dr. Farah the highest of her grades on the periodontal procedure, which was that it was minimally acceptable. The other examiners determined that Dr. Farah's treatment left sub-gingival calculus, and was below minimally acceptable standards (the grade of 2) or was unacceptable (the grade of 1). At the hearing Dr. Farah agreed that if calculus remained the appropriate grade would be 2 or lower. There is no reason to adjust the grades assigned on the periodontal exercise. Dr. Farah also prepared a cast class II restoration onlay wax up on a posterior tooth on a stone mannequin of a lower jaw. She received grades of 5, 3 and 2, which average to 3.33. Examiner #080 assigned a grade of 2, wrote on the grading form "undercuts," and also noted that the procedure had a marginal surface finish. Examiner #133 assigned a grade of 3, and noted "poor outline form" but added no comment concerning an undercut. The third examiner, #048, made no deductions and assigned a grade of 5. An "undercut" is an improper preparation of a tooth surface which is to support a crown. During the preparation of the assigned tooth, the center portion of the tooth was reduced to create a trapezoidal shape, similar to an equilateral triangle, the top of which has been cut by a plane parallel to its floor. A wax model of the crown is then prepared. If the side walls of the trapezoid, when the prepared surface is viewed from the top, do not slope downward and slightly outward, when the wax cast is removed, the wax deforms, and the crown made from it will not seat correctly on the tooth. This may cause the crown to fail, and is a serious error. When a curved dental explorer is placed against the base of the tooth and against the surface of the tooth vertically, one may observe whether there is an angular displacement outward from the vertical at the top, indicating an undercut. On Dr. Farah's preparation this test reveals an undercut. The testimony of Dr. Farah's expert, Dr. Robert Murrell, was that a "surveyor" is the proper instrument to use to evaluate a tooth preparation surface for an undercut. Dr. Murrell did so and determined there was no undercut on the Petitioner's work. There are two difficulties in determining whether there is an undercut using the surveyor. The surveyor's rod is fixed in a vertical position and cannot reflect whether it is actually up against the base of the tooth or not, and viewing the rod from the top down does not give visual confirmation whether the top edge is wider than the bottom; neither can one visually inspect the vertical alignment from the side because the remaining portion of the tooth would prevent one from viewing the alignment from the side position. Secondly, as the expert for the Department, Dr. Theodor Simkin, testified, the surveyor is not a proper instrument for determining undercuts on a mannequin, but is meant to be used on castings and other bridge or denture work done outside the patient's mouth. Logic supports Dr. Simkin's assessment, because a surveyor simply cannot be inserted into a patient's mouth. Dr. Simkin's testimony is also more persuasive because he has been, for several years, an experienced dental examiner and examination grading consultant. Dr. Murrell, while certainly a well-qualified dentist, has never been trained to grade the Florida clinical dental examination. Laying aside the question whether the surveyor or the explorer is the better instrument for assessing whether there is an undercut on a tooth, the other method for determining an undercut explained by Dr. Simkin is persuasive. If no undercut is present, when the stone mannequin of the mouth on which Dr. Farah worked is viewed from directly above, it should be possible to view all four bottom corners of the preparation surface at the same time; if there is an undercut, the undercut bottom corner will be hidden when all of the other corners are viewed. Visual examination confirms the presence of an undercut in the front right corner of Dr. Farah's preparation.
Recommendation It is recommended that the petition for regrading of the failing score assigned to Dr. Farah on the June 1985 clinical dental examination be DENIED. DONE AND ORDERED this 27th day of March 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, 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 27th day of March 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0235 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Findings of Fact (onlay) Rejected for the reasons stated in Findings of Fact 14 and 16. Accepted in Finding of Fact 15. Rejected for the reasons stated in Finding of Fact 15. Findings of Fact (periodontal)1 Generally accepted in Findings of Fact 1 and 8, except for the final sentence, which is rejected as argument. Rejected for the reasons stated in Findings of Fact 10 and 11. In addition, the question of whether the performance of Candidate 20057 was properly graded does not arise in this proceeding. If Candidate 20057 received high grades although three of the seven teeth treated had to be retreated 48 ours later by Dr. Farah, this does not address the central question in this case: Did the treatment provided by Dr. Farah meet minimum standards? [page 7] Rejected because there is no competent substantial evidence that Dr. Simkin was Examiner #015, but if he was, the proposal is argument, not a finding of fact. Rulings on Findings of Fact Submitted by Respondent Accepted in Findings of Fact 4, 5 and 6. Accepted in Finding of Fact 5. Accepted in Finding of Fact 4. Accepted in Finding of Fact 3. Accepted in Findings of Fact 3 and 7. Accepted in Finding of Fact 8, 9 and 10. Accepted in Finding of Fact 11. Accepted in Finding of Fact 12. Accepted, but clarified in Findings of Fact 13 and 14. Accepted in Finding of Fact 15. COPIES FURNISHED: Mr. Fred Varn Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dr. Mina Farah 21-32 Crescent Street #D-7 Astoria, NY 11105
Findings Of Fact The Respondent, James A. Ford, D.D.S., is the holder of license No. 5715, which is held with the State of Florida, State Board of Dentistry. A copy of this license may be found as Petitioner's Exhibit No. 1 admitted into evidence. At all times pertinent to the charges in this cause, Dr. Ford was the holder of the aforementioned license. On April 18, 1977, the administrative accusation which is the basis of this case was brought against Dr. Ford. Dr. Ford was duly apprised of that accusation and requested a formal hearing to challenge the administrative accusation. The administrative accusation may be found as a part of Petitioner's Composite Exhibit No. 2. The initial count in the administrative accusation pertains to the care and treatment of Mrs. Henry Good. Mrs. Good was also identified in the hearing as Gladys Good. Mrs. Good went to Dr. Ford's office for the purpose of being treated by a Dr. Foley who had semi-retired at the time she went for treatment. The purpose of going to the office was to have a maxillary full denture constructed. Dr. Foley was not working in the office at that time and the patient was seen by Dr. Ford. When she came to the office she had been a denture wearer for a period of 20 years and the last set of dentures had been fabricated 15 years prior to her office visit with Dr. Ford. The Respondent took impressions and asked Mrs. Good to return for a try-in of the actual dentures. The new dentures were painful to Mrs. Good and were difficult to retain, in that they kept falling down in her mouth. Dr. Ford advised her to keep trying to make the dentures work and to wear them day and night. At some point an argument ensued between Dr. Ford and the patient, Mrs. Good, at which point Dr. Ford explained to the patient that if she could not rely on his instructions and what he told her about the problem, then he would no longer treat her. The patient then demanded that her money be reimbursed and Dr. Ford refused and the patient did not return. Petitioner's Exhibits 14 and 15 are receipts given to Mrs. Good for the payment that she gave to Dr. Ford for the treatment. The dentures in question may be found as Petitioner's Exhibit 16, admitted into evidence. Mrs. Good tried to wear the dentures after leaving the care of Dr. Ford, but the dentures kept falling down. Finally, Mrs. Good made a complaint to the Broward County Dental Association and was eventually referred to the Petitioner for purposes of investigating her complaint. One of the aspects of the investigation of the complaint was to have other dentists review the history of the complaint, together with an inspection of the dentures and an examination of the patient. One of the doctors involved in the examination of Mrs. Good, for the benefit of Petitioner, was Dr. Mervyn J. Dixon, D.D.S. Dr. Dixon is a dentist licensed with the State of Florida and is a member of the Broward County Dental Association, the Atlantic Coast Dental Society, the Florida State Dental Society, the American Dental Association, the Academy of General Practitioners, and the Broward Research Clinic. He is also Secretary-Treasurer of the Broward County Dental Association. His knowledge and experience in the field of prosthetics began with four months practice while in the armed services. He is a member of the Prosthetics Section of the Research Group in Palm Beach County, Florida, which meets once a month and does only prosthetics. Dr. Dixon has also been involved in the administration of the Petitioner's State Board Exams, specifically, checking the setups in the portion of the examination dealing with prosthetics. This function was preformed in the summer of 1977. After his initial practice in the armed services he has continued to work in the field of prosthetics. His total experience in the construction of prosthetic appliances would number at least 1,000. Finally, Dr. Dixon is also an assistant Secretary- Treasurer for the Florida State Board of Dental Examiners of the State Board of Dentistry. Dr. Dixon saw Mrs. Good on March 16, 1977. Her complaint to him was that the upper denture would not stay up and that the denture was too big. Dr. Dixon reviewed the condition of the maxillary denture, which is Petitioner's Exhibit 16. One of the aspects of the examination, was to have the patient try the dentures in her mouth. When he observed the dentures in her mouth he found that they would not stay up, except when the patient bit down and held the dentures in position against the lower partial and lower natural dentition. When she opened the mandibular portion of her mouth the upper denture would fall down. The peripheral or outer border of the denture which had been fabricated by Dr. Ford was over extended in the canine area, to the extent that when you pushed up there was resistence or the denture would drop back down. The over extension was approximately 5 millimeters beyond where the roll of the sulcus is found. This caused an elastic reaction when he tried to push the tissue up. (This reaction is similar to the elasticity found in a rubber band.) A contraction then takes place and the dentures come down. The post-dam was not adequate the post-dam being an excessive acrylic in the posterior part of the denture. This caused a problem with retention. Dr. Dixon felt that the denture did not meet minimum acceptable standards of the community for prosthetic devices. In view of the observations by Dr. Dixon and the complaints by Mrs. Good, the Petitioner charged the Respondent with a number of violations which were reflected in the Issues section of this recommended order. Several of those provisions are set forth in Section 466.24(3)(a), (c) and (d), F.S. The language of those sections states the following: "Suspension or revocation of license certi- ficate for cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it establishes to its satisfaction that he: * * * (3) has been guilty of: (a) misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession; * * * malpractice; willful negligence in the practice of dentistry or dental hygiene" An examination of the facts in the case of Mrs. Good establishes misconduct in Dr. Ford's business that would bring discredit upon the dental profession. The facts spoken of include the fabrication of the highly unacceptable maxillary dentures and the insistance that the patient be required to accept them, and the further insistance that the patient be dismissed because of her unwillingness to accept the dentures. The same facts of Mrs. Good's case are so flagrant, that it would constitute malpractice within the meaning of Chapter 466, F.S. The act of constructing an inferior maxillary denture and causing the patient to wear that denture, in opposition to constructing a serviceable denture, constitutes willful neglect in the practice of dentistry as described in Section 466.24(3)(d), F.S. In count number eight of the accusation, the Respondent is charged with being grossly incompetent in violation of Section 466.24(2), F.S. This provision states: "Suspension or revocation of license certi- ficate of cause. - The Board shall suspend or revoke the license of any dentist or dental hygienist when it is established to its satisfaction that he: * * * (2) is grossly ignorant or incompetent" The treatment that Dr. Ford gave Mrs. Good constitutes gross incompetence, by the nature of the construction of the dentures themselves, and the insistance that those dentures be utilized by the patient. Count two of the administrative accusation pertains to the same statutory allegations as set forth in the case of Mrs. Good. This count deals with Yolande Breckley, for whom Dr. Ford constructed a prosthetic appliance: A maxillary full denture. Mrs. Breckley was a patient who had insisted that she needed to have her natural dentition removed and a prosthetic appliance substituted. To effect this end, she requested a Dr. King to remove the teeth and Dr. Ford was to make the denture. Her natural teeth were removed and Dr. Ford made a maxillary denture. Dr. Ford had questioned her decision to remove her natural teeth and had also indicated that the initial maxillary denture, i.e., prosthetic appliance might not function properly. Mrs. Breckley picked up the Ford dentures in an envelope and had those fitted by Dr. King. She was to return to Dr. Ford for further fittings. These dentures that Dr. Ford had made hurt her in the anterior area and in her lip. The latter area was discolored, "black and blue." She told Dr. Ford that the denture was painful. This conversation was held about a week after Dr. King had fitted the denture. She described the pain as being like a toothache. She could not eat with the dentures. The dentures did not match up well with her lower teeth. It was necessary that she remain on a soft diet. Two or three weeks after this, Dr. Ford relined the dentures and she then asked Dr. Ford for a new set of dentures. Where ensued a series of office visits in which every several weeks she would try to have Dr. Ford make an adjustment. The total time was approximately six months. Mrs. Breckley had paid Dr. Ford for the dentures as evidenced by Petitioner's Exhibit 8, admitted into evidence. Subsequent to that six month period, a second set of dentures were made by a Dr. Foley, who is in Dr. Ford's office, but who is not responsible to Dr. Ford. There was no charge for these dentures. They were made while Dr. Ford was on vacation. These dentures were unacceptable and a third set was made by Dr. Ford for which he charged the price of $100.00 and an additional $31.00 for two relines. This is reflected in Petitioner's Exhibit 9, admitted into evidence. This third set of dentures also gave the patient pain and she complained about the pain to Dr. Ford. Dr. Ford tried to persuade the patient that something was wrong with her, not the teeth, suggesting that the condition was perhaps psychosomatic. There were many visits to try to adjust the third set of dentures, and paste was placed on the dentures and they were ground. During the course of this treatment for the latter set of dentures, Mrs. Breckley went to Canada and was seen by a dentist who worked with the dentures. Eventually there was some falling out between Dr. Ford and Mrs. Breckley and Dr. Ford told her he did not wish to see her face again. In result of her confrontation with Dr. Ford, she wrote a letter of complaint which brought about the current accusation. The patient has seen three dentists after seeing Dr. Ford. The patient is still experiencing difficulty with the new set of dentures she now has, and has to have those dentures relined. In investigating the complaint Dr. Dixon saw Yolande Breckley. He saw the patient on December 13, 1976. She related the history that Dr. Ford had constructed two sets of dentures. The first of the two was delivered in July, 1975. When Dr. Dixon saw the patient she was wearing a new upper denture that was constructed by Dr. Burch. She also had the two sets of dentures that Dr. Ford had prepared and Dr. Dixon attempted to try these dentures in her mouth. The patient placed the dentures in her mouth, but when she opened her mouth the dentures fell down. This refers to the maxillary dentures that had been constructed by Dr. Ford. He also observed a very sharp boney ridge with much pendulous tissue in the maxila. This is felt to have occurred because of abnormal bone resorption, which occurred after the extractions of the upper teeth, leaving boney ridges leading to the ensuing pendulous tissue. This made it extremely difficult to get the denture stable because it would shake like "jello." This would cause the dentures to slip and slide. Dr. Dixon feels that he would not have attempted to make dentures until such time the patient had been referred to an oral surgeon to have some of the tissue trimed and the boney ridges smoothed down. This type of difficulty was easily observable by the treating dentist. In addition the lower rehabilitation work had been done in such a way that the cuspation of the teeth and of the crowns and bridges was about 20 percent and therefore similar to the remaining natural dentition in the mandibular area. The upper appliance was flatplane; therefore, the inner digitation of the cusp was deficient, causing problems with chewing. In summary, Dr. Dixon felt that the condition of the patient was one which it would be difficult to treat and oral surgery seemed indicated before trying to make the dentures. The dentures that Dr. Ford had made were felt to be below minimum standards because they could not be retained. Measured against the allegations, Dr. Ford's treatment of Mrs. Breckley shows gross incompetence within the meaning of Section 466.24(2), F.S., due to his failure to recommend surgical intervention. This would also constitute misconduct in his business, which would bring discredit upon the dental profession. In addition, the poor construction of the dentures would tend to discredit the dental profession. Furthermore, this conduct constitutes malpractice and willful negligence in the practice of dentistry. The subsequent findings establish violations of Section 466.24(a), (c) and (d), F.S. The third count of the accusation pertains to the same statutory allegations found in the first and second counts. The treatment involved Jacob Klapper who received a prosthetic appliance, namely full maxillary and mandibular dentures. Mr. Klapper did not give testimony in the hearing and the description of his case was given by the Respondent and Dr. Dixon. Mr. Klapper was a man of considerable age, who was terminally ill at the time that Dr. Ford saw him in August, 1976. Mr. Klapper had been wearing a full upper denture for 22 years prior to that time. His principal complaint to Dr. Dixon was that Dr. Ford had relined the upper dentures, but he still had looseness and that Dr. Ford had instructed the patient to wear those dentures until they welt in the patient's mouth. Dr. Dixon noted that Mr. Klapper had an extremely poor lower ridge and the centric relation was not correct, in that the mandible or the condyle of the mandible was not in the most superior position in the fossa. This means the position in which all teeth touch simultaneously. After achieving the centric position with the patient, the teeth did not make very acceptable contact. The molars did not contact at all. These dentures prepared by Dr. Ford had over extensions in the set, particularly in the retromolar pad and the mylohyoid ridge. There was a reverse curve of spee. The patient also complained to Dr. Dixon that Dr. Ford had a lack of compassion and that Dr. Ford had instructed him to insert the dentures in the restroom and leave before seeing how the dentures looked. Dr. Dixon did not feel that the dentures met the minimum standards of the community, in fact the dentures would not stay in the patient's mouth and there were some very sore areas in the patient's mouth evidenced by the redness in the tissue when the dentures were inserted. Furthermore, the over extensions of the lower and retromolar pad and mylohyoid area contributed to the fact that the dentures could not be retained. Every time the patient opened his mouth the lower denture jumped up. Dr. Ford claimed that the patient got angry in his office which led to their disagreement and the patient's not coming back. Dr. Ford stated that the patient wrote a threating letter which is Respondent's Exhibit 2. This letter had been addressed to Dr. Foley, the other dentist in the office. Dr. Ford also stated that he had prepared two sets of dentures for Mr. Klapper and questioned which dentures Dr. Dixon's testimony referred to. The dentures which Dr. Dixon had examined from Mr. Klapper were not presented in the hearing. There is therefore, some conflict on the question of which dentures that had been fabricated by Dr. Ford were at issue. In view of Mr. Klapper's non-attendance at the hearing it is hard to tell what really transpired between the Respondent and he, concerning any misunderstanding about the trying of the dentures. No matter which dentures Dr. Dixon looked at, those dentures which had been fabricated for Mr. Klapper demonstrated gross incompetence on the part of Dr. Ford, within the meaning of Section 466.24(2), F.S. There has been insufficient showing to demonstrate that Dr. Ford was guilty of misconduct in his business, such to bring discredit upon the dental profession or guilty of malpractice or guilty of willful negligence in the practice of dentistry while involved with the patient Mr. Klapper, all within the meaning of Section 466.24(3), F.S. The fourth count in this cause concerns the treatment and care of Robert R. Whittaker. Again this count has the same violations alleged for the other patients in this case. The dispute arose over the preparation of full maxillary and mandibular dentures. Robert Whittaker was first seen by Dr. Ford on November 9, 1976. He went there to have a full upper and lower set of dentures constructed. He had been wearing full upper and lower dentures for 20 years. When Dr. Ford looked at the patient's mouth he stated that the dentures that Whittaker was wearing needed replacing. Whittaker requested that the dentures be made in the same style and color as the old dentures. The fee for this work was $220.00. Impressions were taken and try-ins were made on November 15, 17 and 19, 1976. The actual dentures were received on November 23, 1976. The dentures, according to Whittaker, did not fit in that the rails were too high. At first the dentures would not fit his gums and Ford told his assistant to have them altered. They were altered and the dentures were returned to the patient, but they still did not feel right and were sore in the upper quadrant. Dr. Ford made no further attempt at that time to correct the dentures and told Mr. Whittaker to take them home and try to eat and get used to them. Mr. Whittaker went home and wore the dentures but still experienced a great deal of pain and could not eat with the dentures, because they slid around in his mouth both in the upper and lower, but mostly in the upper. The patient went back to Dr. Ford approximately November 29, 1976 because of the continued discomfort. Dr. Ford's assistant got mad at the patient when she saw that he wasn't wearing the dentures. Dr. Ford came in and the patient complained to him that the dentures hurt, were the wrong style, and protruded. In that regard, Petitioner's Exhibit 19, admitted into evidence, is a depiction of the prior dentures and those that were prepared by Dr. Ford, and the photograph clearly shows that the dentures prepared by Dr. Ford did protrude. In addition, the prior dentures had not given the patient any problem and did not protrude. Dr. Ford then tried the dentures he made in the patient's mouth and told the patient he would have to pay another $220.00 if he wanted additional dentures made. The patient told Dr. Ford that he would have to consider legal action and that was the last time he saw Dr. Ford. The dentures themselves may be found as Petitioner's Exhibit 5, admitted into evidence. The checks for payment are Petitioner's Exhibits 6 and 7, admitted into evidence. Dr. Dixon saw Mr. Whittaker on December 8, 1976. At that time Mr. Whittaker was wearing the old dentures which had been constructed 12 years prior to that time. He complained of Dr. Ford's dentures and said that the dentures hurt especially in the upper right quadrant, and that he could not eat and that the dentures were loose. Dr. Dixon's clinical observations were that the vertical dimension of the new dentures was increased by 5 millimeters, which is too much of an increase for a single increment of change in the dentures. When the patient was placed in centric he was a half tooth forward. The periphery of the dentures constructed by Dr. Ford is over extended. In the retromolar pad area, there was a tendency for the teeth to pop up when the teeth were opened. These teeth were also over extended in the maxillary area and the mylohyoid. There was a poor retention of both the upper and lower dentures. The upper and lower dentures were mismatched in terms of their dimensions. This caused an inefficiency in the utilization of the teeth. In Dr. Dixon's mind this construction violated the minimum acceptable standards of the profession. In review of the testimony concerning Dr. Ford's care and treatment of Mr. Whittaker, that testimony demonstrates that the construction of the dentures indicated gross incompetence on the part of Dr. Ford within the meaning of Section 466.24(2), F.S. The act of the poor construction and the attempt to charge further for a second set of dentures is misconduct in his business, by Dr. Ford, which would bring discredit upon the dental profession and constitutes malpractice, all within the meaning of Section 466.24(3)(a) and (c), F.S. The facts do not demonstrate any willful negligence in Dr. Ford's care and treatment of Mr. Whittaker, as defined in Section 466.24(3)(d), F.S. Count number five of the accusation, involves the patient Violet B. Arnst and contains the same allegations found in prior counts. Mrs. Arnst had Dr. Ford prepare a prosthetic appliance, a full maxillary and mandibular denture. Mrs. Arnst had been seen by Dr. Foley, the working associate of Dr. Ford, a number of years before her visit to Dr. Ford. She called to make an appointment with Dr. Foley but was told that he only came in when Dr. Ford was out. Therefore she was seen by Dr. Ford in July or August, 1975. Dr. Ford told the patient that her lower teeth were receding and that she needed a lower set of dentures for that reason and that the more appropriate approach was to make an upper and lower set of dentures. She paid Dr. Ford $200.00 for the services of fabricating prosthetic appliances; maxillary and mandibular. This is verified by Petitioner's Exhibits 10 and 11 which are the cancelled checks for the services. When she went to pick up the teeth and try them on she told Dr. Ford that the teeth did not look right or feel right and that she could not see her teeth when she smiled. This is borne out by Petitioner's Exhibit 18, which was admitted into evidence and is a series of photographs showing the dentures that were prepared by Dr. Foley prior to the dentures prepared by Dr. Ford, as compared to the Ford dentures. It can be seen in the photographs that the Foley dentures allow a smile line, in that the maxillary dentures are showing, whereas in the Ford dentures the maxillary dentures are completely covered by her upper lip. Mrs. Arnst had another initial complaint that the teeth hurt her in the gum area and the gums felt sore when she tried to bite. The dentures were also loose and she could not eat with them. She continued to see Dr. Ford after the initial try-ins and Dr. Ford advised that she was impatient and would have to become accustomed to wearing the dentures. She saw Dr. Ford for five or six times and returned two weeks after the dentures were prepared and said that the dentures still hurt and didn't look right. The last time Mrs. Arnst saw Dr. Ford, Dr. Ford told her to make an appointment for a reline of the dentures and then became angry with the patient and told his office personnel that he did not want to see Mrs. Arnst again. Mrs. Arnst then wrote a letter to Dr. Foley complaining of the situation with Dr. Ford and also wrote a complaint letter to the authorities who regulate Dr. Ford's practice of dentistry. Petitioner's Exhibit 3, admitted into evidence are the dentures made by Dr. Ford which are the subject of discussion. At present the patient is using the dentures prepared by Dr. Foley, which are those prepared immediately before Dr. Ford's. This patient was also seen by Dr. Dixon in the investigative phases of the accusation. Dr. Dixon found that the patient was a person approximately 65 years old who had been wearing full dentures since the age of 16. Dr. Dixon found that the patient had a moderate lower ridge, and still had bone left and for that reason he found her to be an ideal denture patient. Dr. Dixon also noted that there were no second molars on the dentures that were fabricated by Dr. Ford, although there were second molars fabricated by Dr. Foley. From Dr. Dixon's point of view he felt that there was sufficient room to have accommodated the second molars especially on the right side, when Dr. Ford prepared the new set of dentures. Because of the missing second molars this cut down on the efficiency of the utilization of the dentures because there was a lesser number of posterior teeth. These teeth are used for purposes of grinding. He found that the lower molars were not over the crest of the ridge, meaning the highest point of the lower boney ridge. This caused unnecessary tipping and upsetting of the denture when going through the occlusal pattern of chewing. Dr. Dixon also observed a three millimeter buckle to buckle difference in the width of the original upper denture prepared by Dr. Foley and that prepared by Dr. Ford. The buckle to buckle dimension is the outside dimension, that is to say cheek to cheek cuspation of the molars. The retention of the upper dentures prepared by Dr. Foley was fair, but there was no retention of the lower denture in the patient Mrs. Arnst. Dr. Dixon found that the post-dam was fair to poor. He also noted that there was a reverse curve of spee, meaning that gentle slopping curve in the second molar down to the cuspid, that conforms to the curvature of the fossa in the temporal-mandibular joint. This reverse curve caused a lack of continuous contact or occlusion of the teeth. Dr. Dixon also noted that the "smile line" was extremely poor. He, in fact, prepared the photographs which have been referred to before. In Dr. Dixon's opinion the maxillary dentures were set too far up toward the nose or maxila to show. Dr. Dixon felt that Dr. Ford should have seen the problem of the "smile line" at the time the teeth were tried in. In summary, Dr. Dixon felt that both the maxillary and mandibular dentures in the patient Violet Arnst would not meet minimum acceptable standards of the dental profession, due to the lack of retention and due to the fact that the lower teeth are not over the crest of the ridge. In Dr. Dixon's opinion this caused an inability in the patient to chew her food. The patient Violet Arnst was also seen by Dr. Richard A. Saul, D.D.S. Dr. Saul is licensed to practice dentistry in the State of Florida and has been so licensed since 1956. He is a member of the American Dental Association, Florida Dental Association, and the Broward County Dental Association. He has practiced dentistry continuously since his graduation in 1956. Dr. Saul sees approximately 50 to 60 appointments a week. Dr. Saul has continued to take courses in prosthetics since his graduation and in his practice Dr. Saul repairs full or partial dentures. In examining Violet Arnst, he agreed with Dr. Dixon that the chief complaint of the patient was one of aesthetics. He found that the upper anteriors did not show in her mouth, because the lip covered them. This is referring to the teeth that were prepared by Dr. Ford. He found that the borders of the full upper and lower dentures were over extended. He noted that the lower anterior region had a knife like ridge and when he palpated the patient, this caused a great deal of pain to her. In his opinion the patient's situation could have been better treated had the lower ridge been flattened out, removing the knife like appearance of the bone. The over extension of the dentures into the musculature was believed to cause ultimate dislodgement of the dentures. Dr. Saul noted that only two of four teeth on one side were in centric. He felt that this was inadequate and would cause the dentures to skid, and cause movement of the denture in the patient's mouth. He observed that the patient at his interview was experiencing some pain. Saul did not feel that the dentures constructed by Dr. Ford for the patient Violet Arnst met the minimum standards of the community for acceptable dental practice. This examination of Mrs. Arnst took place on July 22, 1977. Based upon the quality of the construction of the dentures for Mrs. Arnst, and the abrupt dismissal of the patient, Dr. Ford has been guilty of misconduct in his business which would bring discredit upon the dental profession, in violation of Section 466.24(3)(a), F.S. This conduct on the part of Dr. Ford also shows malpractice and willful negligence in the treatment of Mrs. Arnst, as defined in Section 466.24(3)(c) and (d), F.S. Finally, this quality of treatment of Mrs. Arnst constitutes gross incompetence as set forth in Section 466.24(2), F.S. Count number six of the administrative accusation pertains to the patient Joseph Jenkins. This patient was seen by Dr. Ford in August of 1975, based upon the patient's referral by persons who had been treated by the Respondent. It was necessary to make extractions of the natural teeth prior to the preparation of full maxillary and mandibular dentures. These extractions began in August, 1975 and the patient received the teeth in November, 1975. (The extractions were not done by Dr. Ford.) The format of the treatment of the patient by Dr. Ford was to make impressions, then to try-in the teeth; then the actual dentures were given to the patient. The patient observed that the teeth appeared too large and the upper dentures kept falling out. When the patient would take a bite the teeth would "jump up". Dr. Ford told the patient to keep the dentures in his mouth and to line the dentures with denture powder. Additionally, he indicated to the patient that once the gums had "shrunk", and the teeth were relined, they would fit. The patient was not experiencing trouble with the mandibular teeth, his main problem was with the maxillary teeth. The maxillary dentures rubbed against the top of his mouth and caused him to gag. The patient saw Dr. Ford three or four times in December, 1975 and again in January 1976 at which point the dentures were relined. In February, 1976, the lower dentures were relined. During February and after February, 1976 the patient saw Dr. Ford five or six times. In the course of these visits, Dr. Ford would correct the problem of the rubbing dentures. In the course of treatment prescribed by Dr. Ford he told the patient Joseph Jenkins to use sandpaper to relieve the discomfort, but the dentures still did not fit, meaning the maxillary dentures. In March, 1976, the patient's wife tried to get an understanding of the problem from Dr. Ford and Dr. Ford hung the phone up and did not talk to her. At that point the patient ceased to see Dr. Ford and the patient is not wearing any dentures at this point. The dentures in question may be found as the Petitioner's Exhibit 17, admitted into evidence. For the total services the patient paid Dr. Ford $560.00. In accordance with the investigation of the accusation the patient was seen by Dr. Dixon on December 8, 1976. At that time the patient was complaining of the poor fit of the maxillary dentures. He did not have a complaint about the mandibular dentures. Dr. Dixon observed that the patient gagged excessively when the dentures were placed in his mouth, to the extent of having to use a local topical anesthetic on the palate to allow the patient to keep the dentures in for a sufficient period of time to be observed. Dr. Dixon observed a poor retention of the maxillary denture, in that it kept falling out while the doctor was trying to examine it. There was no post-dam whatsoever. The maxillary dentures were grossly over extended in the area of the soft palate, about five or six millimeters beyond the vibrating line. This is why the gaging occurred. Dr. Dixon felt that in view of the number of visits that the patient had with Dr. Ford, the problem with the post-dam and the gaging should have been observable by Dr. Ford, and been corrected. In view of the lack of retention, Dr. Dixon did not feel that the dentures met minimum acceptable standards of the community. In addition, Dr. Dixon felt that there was no necessity to have to use denture powder, in view of the fact that the dentures had just been fabricated for the patient, as opposed to having been utilized for a period of five or six years. The use of denture powder was not a good technique in Dr. Dixon's mind because the gum could not receive proper circulation causing a destruction of the tissue and bone. Dr. Dixon also felt that it would be improper for Dr. Ford to prescribe the use of sandpaper to relieve soreness. Dr. Saul examined Joseph Jenkins in July or August, 1976. At that point Mr. Jenkins' complaint to Dr. Saul was that the denture was ill fitting. Dr. Saul observed that the borders of the dentures were grossly over extended, especially in the areas of the soft palate and the patient was found to be complaining and gaging. Dr. Saul noted that the maxillary tended to drop when being used. In Dr. Saul's mind, this extension into the soft palate, made by the maxillary dentures, made it difficult for the patient to speak and eat. In Dr. Saul's opinion the over extension of the dentures caused them to fail to meet the minimum acceptable standards of the dental community. In view of the testimony offered by the investigating dentists, it is clear that Dr. Ford has been guilty of misconduct in his business, such that it would bring discredit to the dental profession, as set out in Section 466.24(3)(a), F.S. This is based upon the poor preparation of the maxillary dentures and the failure to correct that prosthetics over a long period of time of innumberable visits. These facts also establish that Dr. Ford is guilty of malpractice and willful negligence in the treatment of Mr. Jenkins, as prohibited by Section 466.24(3)(c) and (d), F.S. Dr. Ford was also grossly incompetent in the preparation of the Jenkins maxillary dentures, as defined by Section 466.24(2), F.S. Count seven of the administrative accusation pertains to the care and treatment given by Dr. Ford to the patient Edith Wenke. In January, 1976 Mrs. Wenke went to Dr. Ford for the purpose of having him prepare a prosthetic appliance, in this instance, full maxillary and mandibular dentures. The patient had worn dentures for 25 years prior to being seen by Dr. Ford. The initial set of dentures by Dr. Ford were prepared before February 3, 1976. These dentures gave the patient a great deal of pain in the gum area and the teeth were not straight and were somewhat misaligned. Another problem that the patient had with Dr. Ford's dentures was the inability to eat because of pain. She made another appointment with Dr. Ford and complained about the first set of teeth. Dr. Ford told her that she had some problem with a "trick" jaw which caused a difficulty in making the dentures. In fact, the patient did not have the problem with a "trick" jaw. Subsequently, a second set of dentures were prepared by Dr. Ford, these too were uncomfortable, and the patient continued to go back as much as twice a week, to try to rectify the problem. Mrs. Wenke is not certain but there may have been a third set of dentures made and the offering by Dr. Ford to make a fourth set or to give the money back. Whether or not Dr. Ford offered to give the money back after completing two or three sets of teeth is uncertain, but it is established that he did offer to refund the money. The patient thought about the offer of a refund over the course of a weekend and elected to have the money refunded. At that point Dr. Ford said that he had changed his mind and would refund only a portion of the money, namely $100.00. The patient later went to another dentist who told her to put in the dentures she had been wearing prior to seeing Dr. Ford. After that date she has had a new set of dentures prepared by a dentist other than Dr. Ford and has experienced no pain or poor quality prosthesis that was found in the dentures that had been prepared by Dr. Ford. Upon consideration of the testimony of Mrs. Wenke, in view of the general opinions stated by Dr. Saul and Dr. Dixon, it is clear that the dentures prepared for Mrs. Wenke were below community standards as to their construction. The dentures were so substandard as to indicate gross incompetence on the part of Dr. Ford as set forth in Section 466.24(2), F.S. Dr. Ford was also guilty of misconduct in his business which would bring discredit upon the dental profession, by his poor construction of the dentures for Mrs. Wenke and his agreement to make a refund to her, which was unreasonably rescinded. This misconduct was a violation of Section 466.24(3)(a), F.S. Dr. Ford's treatment of Mrs. Wenke also demonstrated malpractice, within the meaning of Section 466.24(3)(c), F.S. There is no indication that this conduct with Mrs. Wenke constituted willful negligence in the practice of dentistry as defined in Section 466.24(3)(b), F.S.
Recommendation Having fully considered the testimony offered by the Petitioner and the Respondent, and being duly apprised of the aggravating and mitigating circumstances, it is the recommendation of the undersigned that the Respondent, James A. Ford, D.D.S., have his license to practice dentistry in the State of Florida revoked. DONE AND ENTERED this 20th day of January, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 James A. Ford, D.D.S. 1201 Sample Road Pompano Beach, Florida 33064
Findings Of Fact At all times relevant hereto Respondent was licensed as a dentist by Petitioner. During the period between September 1978 and March 1979 Marcia Girouard was a patient of Respondent. Following consultation on September 15, 1978, Respondent and Ms. Girouard agreed that she would have three crowns and upper and lower partial dentures installed. The dentures were priced at $300 for the lower, $500 for the upper precision partial and the crowns were $200 each. Respondent installed two crowns for Ms. Girouard and made her lower and upper partial dentures. The bill for these services was $1200. While the temporary crown was on tooth 11 it came off a few times and was recemented by Respondent. When the precision partial was installed the permanent crown was in place. Ms. Girouard had no posterior teeth aft of the two number 3 teeth on the lower jaw and teeth 6 and 11 and the upper jaw (Exhibit 5). Accordingly, the upper partial plate was anchored to tooth 11. In view of the lack of teeth to which to anchor the upper partial denture, Respondent, after discussing it with Ms. Girouard, made precision partial dentures for the upper jaw. Tooth 11 was ground down and fitted with a crown to which the female part of the precision partial was attached. When the precision partial was completed and the crown installed Respondent put the upper precision partial in place and adjusted it. Shortly after the upper precision partial gas installed Ms. Girouard complained of pain in tooth 11 and Respondent performed root canal therapy on this tooth. As is customary with root canal therapy a temporary closure was made of the cavity drilled and filled where the root had been removed. From the time this root canal work was done on February 1, 1979, until Ms. Girouard's last visit to Respondent's office on March 12, 1979, Ms. Girouard continued to complain about some sensitivity in tooth 11. When the lower and upper partials were seated on December 14 and 27, 1978, Ms. Girouard was instructed in removing and reinstalling these dentures. The lower partial was attached by clasps and never presented any problem to Ms. Girouard. How- ever, the upper precision partial did present serious problems in that while at home Ms. Girouard had great difficulty and little success in removing this upper precision partial. During the period between the initial seating of the upper precision partial on December 27, 1978, Exhibit 5 indicates Ms. Girouard was in Respondent's office on January 24, 1979,to have the crown on tooth 11 reseated; on February 1, 1979, for root canal; on February 8 for reseating partial; on February 9 for recementing crown; and on February 15 for an impression to convert the upper precision partial to conventional clasps. On March 12, 1979, Ms. Girouard made her last visit to Respondent's office and on this occasion she had her teeth cleaned. A subsequent appointment some two weeks later Was cancelled by Ms. Girouard as she was unsatisfied with the dentures she had received from Respondent. When the precision upper partial was converted to clasps Ms. Girouard was able to remove the denture but it did not fit as snugly as had the precision partial. Ms. Girouard's testimony that Respondent had difficulty installing and removing the upper precision partial from Ms. Girouard's mouth and that on several occasions he had to resort to the use of a dental tool to remove the denture was contradicted by Respondent and several assistants who worked in the office during the period Ms. Girouard was a patient. Respondent acknowledged that when the upper precision partial was first installed it did fit tight and he may have resorted to a dental tool to remove it the first time but that after making standard and routine adjustments he had no further difficulty removing this partial. Several witnesses observed Ms. Girouard insert and remove the precision partial in the dental office and confirmed her testimony that she complained about being unable to remove the precision partial at home. Because of her inability to remove this precision partial Respondent replaced the male connectors on the precision partial with clasps so the partial could be removed by Ms. Girouard. The female connection was left on the crown in case Ms. Girouard subsequently went back to the precision connection. At the time of Ms. Girouard's last visit to Respondent's office on March 12, 1979, she was complaining about the looseness of the upper partial and the root canal hole had not been permanently sealed. Respondent intended to permanently seal this tooth after the pain stopped and further treatment of this tooth would be unnecessary. Believing that she had been treated unfairly by Respondent Ms. Girouard in April 1979, contacted an attorney to institute a malpractice action against Respondent. This attorney sent her to Dr. Steve Hager for a dental examination. On April 25, 1979, when examined by Dr. Hager, Ms. Girouard had both upper and lower partials in her mouth. Hager's examination indicated no evidence that the work performed on Ms. Girouard by Respondent was below acceptable community standards or that anything was wrong with the work performed by Respondent (Exhibit 8). By letter of April 30, 1979, (Exhibit 9) Ms. Girouard was advised of Dr. Hager's findings. Nevertheless, by letter dated June 5, 1979, the attorney advised Respondent of Ms. Girouard's dissatisfaction with the work done and suggested a monetary settlement to Ms. Girouard of the money she paid for the partial dentures would deter her from filing a complaint with the Florida Board of Dentistry. In reply thereto Respondent, by letter dated June 8, 1979 (Exhibit 7), advised Ms. Girouard he did not feel the partials were improperly constructed or fitted but he would make further adjustments if it would help her. After Ms. Girouard was examined by Dr. Hager, Mr. Girouard returned the partials to Respondent's office. He does not recall with whom he left the dentures and none of Respondent's employees recall receiving these dentures. The fact that these dentures were returned was not disputed. On March 21, 1979, Mr. Girouard wrote a letter to Governor Graham complaining about the treatment his wife had received from Respondent and requested something be done about it. Girouard was referred to the Department of Professional Regulation and an investigation was initiated. In November 1981, Ms. Girouard was examined by a board-appointed dentist. She had received no dental treatment between her last visit to Respondent on March 12, 1979, and November 1981. At this time the permanent closure had not been placed on the root canal and Ms. Girouard did not have any of her partial dentures. This board-appointed witness testified that the work done by Respondent was below minimally acceptable standards because the root canal hole had not been closed with a permanent seal. Upon cross-examination he acknowledged that the six weeks from the time the root canal was done until Ms. Girouard's last visit to Respondent's office was not necessarily too long to wait for permanently closing the root canal opening and that if the patient refused to cooperate with the dentist the latter could not install the permanent seal. This witness also acknowledged under cross-examination that it was difficult to determine that dentures do not fit properly if the dentures are not seen in the patient's mouth. Expert witnesses called by Respondent testified that it was proper to leave the temporary filling on a root canal until the pain was gone or its cause ascertained and that this period could take upwards of six months. These witnesses further concurred that without seeing the dentures in the patient's mouth it is difficult to determine whether they fit properly. They also concurred that precision partial dentures should easily be removable by patients and that adjusting these precision partials is not a difficult process. The fact that the upper partial had to be attached to an anterior tooth and the lack of natural posterior teeth created greater pressure on the tooth to which this partial was attached. The increased leverage on this tooth due to the length of the partial would also create more torque and could lead to potential problems.
The Issue Whether Petitioner is entitled to a passing grade on the dental examination given on June 4-7, 2000.
Findings Of Fact Shahmohamady took the clinical portion of the dental licensure examination on June 4-7, 2000. He received a failing score of 2.98. The clinical portion of the dental examination consists of nine parts: a written clinical, three patient procedures, and five mannequin procedures. The five mannequin procedures consist of the endodontic, preparation for a three- unit fixed partial denture, the Class IV composite, the Class II composite, and the Class II amalgam. Shahmohamady challenges the grades that he received for the preparation for a three-unit fixed partial denture and the Class IV composite. The Department retains examiners and monitors during the examination. The examiners actually grade the clinical procedures performed by the candidates during the examination. The monitors give instructions to the candidates, preserve and secure the integrity of the examination, and act as messengers between the examiners and candidates. The procedures are blind graded independently by three examiners. The examiners do not know the name of the candidates they are grading. Each examiner grades the procedures independently of the other examiners. Discussion among the examiners is not allowed. The three examiners' grades for each procedure are averaged for the overall grade for the procedure. Each examiner must attend and successfully complete a standardization course prior to the examination. The standardization session trains each examiner to use the same grading criteria. After the examination is concluded and the final grades are given, the Department performs an analysis of the examiners' grading to determine the reliability of each examiner's grading. Candidates and examiners do not have contact during the examination. If a candidate has a problem during the examination, he is to alert a monitor. Candidates may fill out a Monitor-To-Examiner Instruction form, advising the monitor of any problem experienced during the examination. The monitor will read the comments of the candidate, and if the monitor agrees with the comments the monitor will write his monitor number on the form and circle the number. The monitor will provide the comment forms to the examiners when they are grading the procedures. Each examiner is to read the comment forms. The examiner is to acknowledge that he has read the forms on the grade sheet by either writing SMN followed by the number of comment sheets he read for all the procedures or by writing under each procedure SMN followed by the number of comment sheets that he read for that particular procedure. Shahmohamady filled out a Monitor-to-Examiner Instructions form on June 6, 2000, for the preparation for a three-unit fixed partial denture procedure and wrote the following: Doctor, As I was prepping tooth #20 on the sital aspect, the gas torch of the Candidate sitting in front of me (one row over) suddenly burst into a 3 foot flame that caused everyone to yell out. I inadvertently looked up and saw the flame without knowing where it was coming from and paniked [sic] and my bur gouged the mesial aspect of #19 (area of box [sic] There is no disagreement among the parties that the incident involving the gas burner occurred and no disagreement that points should not have been deducted for the gouge of the adjacent tooth resulting from the gas burner incident. The clinical procedures are graded on a scale of zero to five, with five being the best score. If an examiner gives a score of less than five, the examiner is to list a comment number, which corresponds to a list of comments for each procedure. The examiner may also list a comment number for things that the examiner observes during the grading, but for which no points are deducted. For procedure 7, which is the preparation of a three-unit fixed partial denture, the comment list to be used by the examiner was as follows: Outline Form Undercut Insufficient Reduction Excessive Reduction Marginal Finish Unsupported Enamel Parrallelism Mutilation of Opposing or Adjacent Teeth Management of Soft Tissue X Additional Comments - Written For procedure 7, Shahmohamady received a score of 5 from Examiner 289, a score of 4 from Examiner 315, and a score of 3 from Examiner 366. Each of the examiners was given the Monitor-to Examiner Instructions form with the note from Shahmohamady concerning the Bunsen burner incident. Shahmohamady challenges the score that he received from Examiner 366. Examiner 366 put numbers 4, 5, and 8 on the comment portion of the grading sheet for procedure 7. Those comments referred to excessive reduction, marginal finish, and mutilation of opposing or adjacent teeth. He indicated that he had read the three comment sheets that were submitted for the mannequin procedures and so indicated by writing "SMN-3" on the grading sheet for Shahmohamady. Examiner 366 did not deduct points for the mutilation of the adjacent tooth due to the Bunsen burner explosion. The grade which Shahmohamady received for procedure 7 is correct and should not be increased. After a candidate receives his grades for the dental examination, he may request an administrative hearing if he fails the examination. When the Department receives a request for an administrative hearing, the Department will regrade the procedures done by that candidate. The top three examiners from the examination based on the post-examination analysis that is done by the Department are chosen to regrade the procedures which are being contested. In addition to regrading candidates who have failed the examination, the examiners also regrade some candidates who have successfully passed the examination in order to ensure the integrity of the regrading process. Shahmohamady challenged the grade he received on procedure 7 and procedure 4; thus his examination was regraded. Each of the grading sheets had the following comment listed on the grading sheet for procedure 7 prior to the regrading: "Ignore nicked adjacent tooth bunson [sic] burner explosion." Procedure 7 was regraded by three examiners, one of whom was Examiner 366. Examiner 366 again gave Shahmohamady a score of three and included comment 4 on the comment section. Examiner 298 gave Shahmohamady a score of 2 for the procedure, included comment 4, and wrote "overtapered" on the grading sheet. Examiner 316 gave Shahmohamady a score of 3 and included comments 1, 4, and 5. Comment 1 referred to outline form. On regrading, Shahmohamady received an overall lower score for procedure 7 than he did in the original grading. Procedure 7 was graded correctly, and Shahmohamady is not entitled to additional points for that procedure. Shahmohamady challenged the score that he received for the Class IV composite restoration. He received an overall score of 2.66. The Class IV composite restoration is a procedure that involves the candidate's ability to cut a section of the tooth off the corner of the biting edge of the front tooth below the level where it contacts the adjacent tooth. The candidate is required to restore the contact and the tooth structure to proper form and function in a tooth- colored material. Based on the expert testimony of the Department's witness, Dr. Dan Bertoch, the restoration done by Shahmohamady was not done properly and would fail prematurely. Examiner 366 opined that Shahmohamady did not appropriately restore the proximal anatomy and the proximal contour. Shahmohamady did not properly perform the Class IV composite restoration procedure and should not be given a passing score for that procedure. Petitioner claims that Examiner 366 consistently graded Shahmohamady lower than the other two examiners. Based on the post-examination statistical analysis performed by the Department, Examiner 366 tied for second place in reliability for scoring. On a scale of 100, he scored 96, which is considered to be excellent. The other two examiners who were grading Shahmohamady clinical procedures scored lower on reliability than Examiner 366. Examiner 366's was a reliable grader and correctly graded Shahmohamady's examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Shahram Shahmohamady failed the clinical portion of the June 4-7, 2000, dental examination with a score of 2.98. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 1st day of February, 2001. COPIES FURNISHED: Orlando Rodriquez-Rams, Esquire Lerenzo & Capua 9192 Coral Way, Suite 201 Miami, Florida 33165 Cherry Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-0792 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue The ultimate issues to be decided in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the practice of dentistry and, if so, whether his license should be revoked or suspended for a specified period, or whether other disciplinary action should be invoked. Petitioner contends that Respondent violated the provisions of Section 466.028(1)(y), Florida Statutes, in connection with his construction and adjustments of a set of upper and lower dentures for Sally Cohen, a former patient. Respondent disputes the allegation and contends that his diagnosis and treatment of Sally Cohen was proper.
Findings Of Fact Petitioner holds license No. 1808 issued by Petitioner and has been licensed to practice dentistry in the State of Florida since 1953. Prior to his being licensed in Florida, the Respondent practiced dentistry in other locations beginning in 1940. Since approximately 1963, the Respondent's practice has been solely in the area of fabricating, constructing, fitting, and adjusting complete and partial dentures. Sally Cohen was formerly a patient of the Respondent. The Respondent first saw her during October, 1978, with a broken lower denture. The Respondent repaired it and refit it in her mouth. The Respondent saw Ms. Cohen in October, 1980. She was complaining of her old dentures. The Respondent observed her dentures and noted that they were slipping. He recommended that she get new dentures, and he told her that he would be able to make the dentures for her. He saw her again in April, 1981, observed the same conditions, and made the same recommendations. Ms. Cohen requested that he fit her for a new set of dentures. The Respondent took impressions, developed models, and sent the models to his laboratory for processing into dentures. When the laboratory completed the manufacture of the new dentures, Ms. Cohen returned to the Respondent's office to have the dentures fitted. The Respondent placed the dentures in her mouth, checked for "occlusion," and observed the fit of the dentures. The term "occlusion" pertains to the manner in which the upper and lower dentures touch. With dentures, it is important that the occlusion is as uniform as possible so as to assure a proper fit and prevent slippage of the denture plates within a patient's mouth. The occlusion and fit of Ms. Cohen's dentures appeared appropriate. The Respondent explained to Ms. Cohen at the fitting that there would be an adjustment period, and he explained good oral hygiene procedures to her. Ms. Cohen's upper ridge was anatomically good, but her lower ridge was in poor shape; and it was difficult to accomplish a fit of the lower plate without "overextending" the denture borders so as to make the lower denture as stable as possible in the patient's mouth. The Respondent ordinarily likes to wait for approximately one week after dentures are fitted to make an adjustment. Ms. Cohen, however, returned to his office on the first day after the fitting, complaining of pain. It appears that Ms. Cohen has a low pain threshold. Respondent again explained proper oral treatment to her. He observed no sore spots of significance in her mouth. He again checked the occlusion and fit of the dentures and observed no problems. Several times thereafter, Ms. Cohen returned to the Respondent's office complaining of pain from the new dentures. Each time, the Respondent checked the occlusion and fit of the dentures. He made minor adjustments. He properly observed the occlusion and observed no problems. The Respondent last observed Ms. Cohen on June 12, 1981. He felt at that time that she was in good condition. The Respondent was going on vacation, and he informed Ms. Cohen that Michael Overleese, the dentist who shared office space with the Respondent, would be handling any adjustments while the Respondent was away. While the Respondent was on vacation from his practice, Ms. Cohen made several appointments to see Dr. Overleese. She continued to complain that the dentures hurt her mouth. She complained of generalized discomfort, but was generally unable to pinpoint a specific area of pain. Dr. Overleese made four adjustments of the patient's dentures during June and July, 1981. He properly observed the occlusion and fit of the dentures. He observed no problems. He felt that Ms. Cohen was not keeping the dentures in her mouth long enough to adjust to them. He did not observe any ulceration or irritation in places where Ms. Cohen indicated she was experiencing pain. Dr. Overleese did grind some spots on the patient's dentures in order to improve occlusion, but this is not an unusual occurrence. Occlusion of dentures can typically always be improved at least slightly. Dr. Overleese was somewhat frustrated with the situation. On her last visit, Ms. Cohen felt that Dr. Overleese told her that she would not be able to return for further adjustments. Dr. Overleese did not give instructions of that sort, but was misunderstood by Ms. Cohen. After the last visit, Ms. Cohen visited a lawyer. The attorney assisted her in filing a complaint with the Petitioner. The Petitioner conducted an investigation and retained Richard A. Saal, D.D.S., to examine Ms. Cohen. Dr. Saal examined her in October, 1981, and observed that there was a premature occlusion. He observed that the first bicuspid on the upper and lower right dentures met prematurely. The premature occlusion was obvious to Dr. Saal. Such an occlusion would result in movement of the denture plates, resulting in pain. Dr. Saal concluded that the most logical explanation for the premature occlusion was improper manufacture and fitting of the dentures or an improper adjustment of the occlusion. While this may be the most common explanation, it is not the only one. Such a prematurity could result from structural problems in the patient's mouth and from changes in the structure. Tooth grinding on the part of the patient or any action that changes the contour of the lower ridge of a patient's mouth could result in such a prematurity. It is not uncommon for such prematurities to develop with dentures that displayed a proper occlusion and fit when first placed in the patient's mouth. Given the fact that the Respondent and Dr. Overleese properly observed the occlusion of Sally Cohen's dentures and observed no abnormalities of the sort observed by Dr. Saal, it is concluded that events which occurred after Ms. Cohen's last visit to Respondent's office resulted in the premature occlusion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Board of Dentistry, dismissing the Administrative Complaint that has been filed against the Respondent, Leonard Foley, D.D.S. RECOMMENDED this 1st day of November, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 1st day of November, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Mr. Samuel R. Shorstein Department of Professional Secretary, Department of Regulation Professional Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Patrick L. Bailey, Esquire Mr. Fred Varn Sullivan, Ranaghan, Bailey Executive Director & Gleason, P.A. Board of Dentistry 2335 East Atlantic Boulevard Department of Professional Post Office Box 549 Regulation Pompano Beach, Florida 33061 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent is guilty of incompetence or negligence and failing to keep adequate dental records and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed dentist, holding license number DN 0010415. He has been licensed continuously in Florida since 1985, and he practices in Naples. On February 13, 1992, M. D. presented to Respondent at Kings Lake Dental Services. M. D. complained of a loose three-unit fixed bridge, which had replaced tooth number 4, using teeth numbers 3 and 5 as abutments. Respondent performed a focused emergency examination. He found a decaying, loose bridge that was falling apart and coming out of M. D.'s mouth; tooth number 5 was decayed and had fractured off; and tooth number three was decayed around the abutment crown and post. Respondent took an x-ray and found root canals on teeth numbers 3 and 5. Based on these findings, Respondent recommended to M. D. that he have post and cores on teeth numbers 3 and 5 and a new bridge. Respondent noted in his dental records these findings during this initial visit and the limited nature of the examination. At the time of this initial examination, Respondent determined that teeth numbers 3 and 5 could serve as abutment teeth to support the bridge for tooth number 4. His determination was correct as tooth number 5, but the record suggests that his determination was questionable as to tooth number 3. However, Petitioner failed to prove by clear and convincing evidence that the suitability determination for tooth number 3 was incompetent or negligent. On M. D.'s next visit, which took place on February 26, 1992, Respondent prepared teeth numbers 3 and 5 for the new bridge by removing the existing post and core in tooth number 3 and preparing tooth number 5 for a post and core. Respondent installed a temporary bridge during this visit. A post and core is an appliance that is cemented into a tooth that has undergone previous endodontic treatment. A post goes into the residual root, and the core replaces the natural crown of the tooth. The post and core can then be prepared for a crown or, as in this case, a fixed bridge. The final result resembles the placement of a peg into a tooth on which additional material is built up. On M. D.'s third visit, which took place on March 4, 1992, Respondent re-cemented the temporary bridge, which had come loose. On M. D.'s fourth and final visit, which took place on March 13, 1992, Respondent installed the permanent fixed bridge. At no time did any blood collect in M. D.'s post preparations. At no time during the post-and-core work, including during the unanaestheticized installation procedure, did M. D. experience pain. As material to this case, a perforation would result from excessive drilling in the process of preparing the tooth for the post, so as to create an extra opening into the bone. The absence of blood during the post preparation is generally inconsistent with a post perforation. The absence of pain during the ensuing installation procedure also militates against a finding that Respondent inadvertently perforated the tooth. The crucial findings on the issue whether Respondent perforated the tooth are thus the absence of blood during the drilling attendant to the post-and-core procedure and the absence of pain during the ensuing installation procedure. These findings are based in part on the self-serving testimony of Respondent, but also are supported by other evidence. At the time of the incident, Respondent had practiced dentistry in Florida for over six years. It is likely that he would have known that an untreated perforation would eventually cause the restorative work to fail. Respondent had treated numerous patients, presumably including seasonal Naples residents, without this issue previously arising, even though excessive-drilling perforations themselves are not that uncommon. When M. D. later contacted Respondent and complained of the dental work, he made no mention of the pain that typically would have accompanied the installation of a core over a perforated tooth. M. D. was a winter resident of Naples. Fourteen months after his final visit to Respondent, a dentist in Massachusetts discovered a perforation of the root on tooth number 5 and an acute periodontal abscess on tooth number 3. An acute periodontal abscess occurs at the end of the root and is secondary to infection involving the dental pulp in the soft tissue part of the tooth. Periodontal abscesses occur around the supporting structures of the teeth. Petitioner has failed to prove by clear and convincing evidence that Respondent perforated M. D.'s tooth. Although excessive drilling may cause a perforation, decay, a root fracture, and rampant periodontal disease may also cause perforations. Given the considerable period of time between Respondent's treatment of M. D. and the discovery of the perforation, the likelihood of decay, a root fracture, and rampant periodontal disease increases as the cause of the perforation. Given the other factors, such as lack of blood during the post procedure or pain during the core procedure, Petitioner has failed to prove by clear and convincing evidence that Respondent's treatment of M. D. was incompetent or negligent. The record provides even less basis to find by clear and convincing evidence that Respondent's work caused the periodontal abscess 14 months later. Respondent's dental records are adequate in many respects. The records adequately describe the cast post and core technique; Petitioner has failed to prove by clear and convincing evidence that the failure to distinguish between the two types of cast post and core is material in this case. Petitioner has also failed to prove by clear and convincing evidence that the records fail to provide an adequate basis for another dentist to infer the removal of the old post and core. The x-ray is of extremely poor quality, but it is merely a duplicate. The original is not in the record, and the record provides insufficient basis for inferring the quality of the original. Petitioner has failed to prove by clear and convincing evidence that the actual x-ray was of such poor quality as to preclude reliance upon it. Respondent's records indicate that tooth number 5 is decayed and fractured off, that tooth number 3 is decayed, and that the x-rays reveal root canals on both these teeth. While adequately documenting these findings, the records do not document Respondent's evaluation of the suitability of teeth numbers 3 and 5 to serve as abutment teeth. Nor do the records document the "moderate" periodontal disease that Respondent testified that he also observed. Respondent's restorative work eventually failed. The most likely cause of failure was the perforation of tooth number 5. However, fourteen months later, tooth number 3 was no longer capable of serving as an abutment tooth. By inference, its condition at the time of Respondent's decision to use it as an abutment tooth at least warranted documentation in the dental records. Similarly, the acute periodontal abscess also evidences the need to document Respondent's finding of moderate periodontal disease. These omissions from Respondent's dental records are material due to the questionable suitability of tooth number 3 as an abutment tooth and the subsequent development of periodontal disease. On these facts, Respondent's records fail to document a thorough evaluation of M. D.'s oral structures involved in the restorative work and his overall dental condition. In these respects, Petitioner proved by clear and convincing evidence that Respondent failed to keep adequate dental records in that they fail to justify the course of Respondent's treatment of M. D. On March 30, 1992, S. T. presented to the Fort Myers Dental Service for an abscessed tooth at tooth number 3. One of the dentists at the office, Dr. Rubin, saw S. T. He recommended full mouth x-rays and study models and prescribed pain medication and an antibiotic. The dental records contain no indication of periodontal disease at this time. The Fort Myers Dental Service maintained a system of patient referral in which Respondent or Dr. Johnson saw patients requiring endodontic treatment and other dentists saw patients requiring periodontic treatment. Following her visit, Dr. Rubin referred S. T. to Respondent for endodontic work on April 2, 1992. The x-rays had revealed lesions on teeth numbers 3 and 4, so the referral was for an evaluation for root canals. On April 3, Respondent examined S. T.'s mouth and noted buccal swelling around teeth numbers 3 and 4 and broken- down, decayed teeth at teeth numbers 3, 4, and 5. However, his examination did not reveal any periodontal disease. Respondent recommended root canals for teeth numbers 3 and 4 followed by casts, posts, and cores for teeth 3 and 4 and a porcelain fuse metal crown for tooth number 5. Respondent commenced this dental treatment on April 10, 1992. During this visit, Respondent began a root canal on tooth number 4. On April 17, Respondent completed the root canal on tooth number 4. On April 24, Respondent began a root canal on tooth number 3. On May 22, Respondent completed the root canal on tooth number 4. On September 24, 1992, Respondent prepared teeth numbers 3, 4, and 5 for crowns. On October 8, Respondent installed crowns on these teeth and posts and cores on teeth numbers 3 and 4. Fourteen months later, on December 7, 1993, S. T. was examined by Dr. William McKenzie, a periodontist who practiced 33 years, primarily in Fort Myers, until his retirement prior to the hearing in this case. A general dentist in Fort Myers had referred S. T. to him. At the time of his examination, Dr. McKenzie found poorly fitting crowns on teeth numbers 3, 4, and 5 and open contacts between teeth numbers 2 and 3, 3 and 4, 4 and 5, and 5 and 6. In general, S. T.'s dental health was good, except for the area in which Respondent had worked. In this area, S. T.'s gums bled profusely upon probing by Dr. McKenzie. In part, Petitioner tried to prove that Respondent improperly proceeded with endodontic treatment despite unresolved periodontic problems. However, the record fails to sustain this allegation. To the contrary, as Dr. McKenzie testified, the poor-fitting and gapped crowns caused the periodontal condition that Dr. McKenzie encountered. The open contacts, which allowed food to pack between the teeth, led to infection, which caused the inflammatory process in the gums and bone deterioration that Dr. McKenzie also discovered in this area of S. T.'s mouth. As to the fit of the crowns, Dr. McKenzie described it as "horrible" and work of which a "freshman dental student" was capable. Petitioner proved by clear and convincing evidence that Respondent failed to meet the minimum standards of performance and treatment when measured against generally prevailing peer performance in the treatment of S. T.
Recommendation It is RECOMMENDED that the Board of Dentistry enter a final order suspending Respondent's license for six months and, following the expiration of the suspension, placing the license on probation for a period of 12 months. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 29th day of March, 1999. COPIES FURNISHED: Thomas E. Wright Senior Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 E. Raymond Shope, II 1404 Goodlette Road, North Naples, Florida 34102 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Bill Buckhalt, Executive Director Board of Dentistry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
