Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
The Issue Whether respondent's license to practice dentistry should be revoked or otherwise disciplined on grounds: (1) that he incompetently performed root canal surgery, and (2) that he accepted and performed professional responsibilities which he knew or should have known he was not competent to perform.
Findings Of Fact Respondent has been licensed to practice dentistry in Florida since January, 1977. At all times material to this proceeding, he practiced dentistry at his office located at 6221 Margate Boulevard, Margate, Florida. (Testimony of Sabroske; P-2, P-7.) II. On June 4, 1980, respondent performed root canal surgery on the lower left second molar (tooth No. 18) of his patient, Leon Seaver. (Testimony of Sabroske; P-1.) Root canal surgery is an endodontic procedure for removal of the diseased nerve or pulp of a tooth. Access to the pulp chamber is obtained by drilling a hole through the tooth's surface. The pulp chamber is then inspected and the root canals are located. The pulpal or nerve tissue is manually removed from the canals by twisting small files of increasing size. The nerve pulp has been removed when tooth filings are detected and the dentist feels increased resistance to the twisting of the file; moreover, an x-ray is taken which shows that the file has reached the apex of the root and completely filled the canal. The hollowed canals are then sterilized by medication and filled with gutta percha or silver point. Then the chamber access or opening is restored. (Testimony of Dixon.) In performing root canal surgery on Leon Seaver, respondent drilled too deeply into the tooth and perforated the floor of the pulp chamber between the two roots of tooth No. 18. He also failed to remove the pulpal tissue from the canal of the mesial root; diseased tissue thus remained in the mesial root canal. (Testimony of Dixon, Sabroske; P-4, P-6.) Seaver, complaining of continuous pain from the tooth, returned to respondent's office on June 16, 1980. Respondent took x-rays but failed to detect the perforation of the tooth floor and pulpal tissue remaining in the mesial canal. He then permanently filled the tooth with gutta percha point-- which filled the intraradicular area between the two roots instead of the mesial root canal, where the diseased pulpal tissue remained. (Testimony of Seaver, Dixon; P-1.) Seaver continued to experience pain and, eventually, the tooth had to be extracted. (Testimony of Seaver.) III. Respondent's performation of the tooth's pulpal floor, his failure to remove the pulpal tissue from the canal in the mesial root on June 4, 1980, and his failure to detect and correct the incomplete removal of the pulpal tissue on June 16, 1980, deviates from minimum dentistry standards of diagnosis and treatment which generally prevail among his professional peers. (Testimony of Dixon, Sabroske.) IV. Respondent graduated from dental school at Ohio State University in 1965. He was dismissed from dental school at the end of the spring quarter of 1963 because he had not met the clinical requirements for graduation. This was due, in part, to the fact that he was married and working part time while attending dental school. In the autumn quarter of 1964, he returned to school and successfully completed the courses required for graduation. (Testimony of Sabroske; P-7.) Although respondent is not a specialist in endodontics, he performs endodontic procedures. Endodontics is considered a part of the practice of general dentistry; dentists are trained to perform ordinary endodontic procedures. Endodontics is not a significant portion of respondent's practice. (Testimony of Dixon, Sabroske.) In the autumn quarter of 1962, respondent failed a course in endodontics at Ohio State University dental school. There was no evidence that he failed any of the seven other endodontics courses he took at dental school; he earned an A and B in two of those courses. (P-7.) Because of the difficulties he encountered in the endodontics procedure which he performed on Leon Seaver, respondent--on his own initiative-- took a continuing education course on endodontics offered by the University of Florida College of Dentistry in November, 1980. (Testimony of Sabroske; R-1.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine be suspended for one (1) month; That he be required to pay an administrative fine of $1,000; and That (following the one-month suspension) respondent be placed on probation for one (1) year, subject to the condition that, during that time, he successfully complete twenty-five (25) hours of recognized continuing education courses in endodontics. (For purposes of satisfying this condition, respondent should be given credit for the continuing education course he completed at the University of Florida on November 1, 1980.) DONE AND RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982. COPIES FURNISHED: Richard Sabroske, D.D.S. 6221 Margate Boulevard Margate, Florida 33063 Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent, Ralph Toombs, committed violations of Chapter 466, F.S., with regard to two dental patients, as alleged in two Administrative Complaints. If the violations are found, some disciplinary action must be recommended.
Findings Of Fact Ralph E. Toombs, D.D.S., is and at all relevant times has been licensed as a dentist in the State of Florida having been issued license number DN 0007026. At all times relevant to the allegations of the two complaints, Dr. Toombs practiced general dentistry in West Palm Beach, Florida, under the group which he owned, the Florida Dental Group. He has since left the West Palm Beach area, and resides in St. Cloud, Osceola County, Florida. In March 1984, patient A.K. was referred to Dr. Toombs for a problem with the joint in her jaw, the temporal mandibular joint (TMJ). She was given a mouth brace, but lost it. She also obtained general dentistry services. After she lost the mouth brace, she moved into orthodontic treatment by an orthodontist, Edward Sheinis, D.D.S., who was employed by the Florida Dental Group. This treatment, including the fitting and adjustment of braces, lasted about a year, until May 1985. At that time Dr. Sheinis left the group and opened his own office in Coral Springs, Florida. When he left, Dr. Sheinis informed his orthodontic patients where he was going. Under his contract with the Florida Dental Group, the patients and their records belonged to the group. His contract expired on May 31, 1985, but Dr. Toombs asked him to leave the day before his final day for treating patients. Dr. Sheinis felt that Dr. Toombs had the idea that he was trying to take patients away. After Dr. Sheinis left, no orthodontist replacement joined the group. Dr. Toombs' office continued making appointments for A.K. and she was treated by him in June, July and August. A. K.'s insurance company had paid for her orthodontic treatment plan in advance. She did not ask for return of the money, but neither was it offered. She did not want to travel to Dr. Sheinis' new office and she also felt that she had already paid the group for the services. She anticipated that a new orthodontist would be hired. Dr. Toombs claimed that the orthodontic patients were given the choice of going with Dr. Sheinis, being referred to another orthodontist, or staying with the group until another orthodontist was found. He claims that in some cases, money was refunded to patients who sought treatment elsewhere. He does not make those claims specifically with regard to A. K. and her testimony that the options and possibility of refund were never discussed with her is credible, consistent, and convincing. The orthodontic treatment rendered by Dr. Toombs to A. K. in June, July and August 1985, was primarily for maintenance, rather than to advance her treatment plan. Ligatures were replaced or re-tied and some parts of the appliances were repaired. A new scheme of elastics was developed in the August appointment, which could have advanced her treatment, but was also only intended for maintenance, according to Dr. Toombs. A September appointment was made, but was cancelled by Dr. Toombs' office and another appointment for October was made. That appointment was also cancelled by Dr. Toombs' office. By September or October the Florida Dental Group was in bankruptcy; the office was closed down and the patient files were in the hands of a trustee. Some records are still inaccessible. A. K. attempted to contact the office, but there was no answer. She heard from a friend that Dr. Toombs had left. She called the American Dental Association and was told they did not know his whereabouts. She then returned for treatment to the dentist who had originally referred her for the TMJ treatment, David Feuer, D.D.S., an orthodontist. A primary purpose of orthodontic treatment is tooth movement. If a patient's treatment is simply maintained, but not advanced for two months, there may not be harm, but minimum acceptable standards of dental practice require that the patient be referred promptly when the treating dentist cannot continue the appropriate treatment plan. The evidence does not clearly establish Dr. Toombs's lack of competence to appropriately continue A. K.'s orthodontic treatment. Therefore, when Dr. Sheinis left, he had the choice of making a referral and transferring the payment, or pursuing the treatment himself. He did neither. By his own admission, in a response to DPR investigator, Charlene Willoughby (Petitioner's Exhibit #7-AK) Dr. Toombs did nothing more than maintain A. K. orthodontically, by changing ligature ties. His attempt at hearing to explain that course as necessary to undo substandard work by Dr. Shienis is unsupported by any competent evidence. Patient S.C. Between approximately February 1984, and October 1985, Ralph Toombs provided dental services to patient, S.C. Those services included, among others not pertinent to this proceeding, the fabrication, fitting, and delivery of a maxillary bridge and lower partial denture. In lay terms, this involved basic full mouth reconstruction. At the time that S.C. began seeing Dr. Toombs he had already had bridge work beginning in 1970. He first saw Dr. Toombs on an emergency basis when he had fractured part of that work. When reconstruction is done, it is necessary to provide a structure to support the bridge, where the existing teeth are incapable of that support on their own. Two methods of support are a post and core, and pins. Pins are used when there is more existing structure; they are screwed into a tooth. The post and core is used generally when teeth have been endodontically treated (root canal therapy). The post is inserted through the central canal area into the tooth. The post provides more stability. A tooth that has been treated endodontically is devitalized, dry and fragile. The use of pins in such teeth is likely to cause crazing (small multiple cracks) or fractures; the support is weakened, and either it fails or causes failure in another site in the structure. In S.C.'s reconstruction, Dr. Toombs extensively used pins in devitalized teeth, in some instances as many as four or five pins in a single tooth. Dr. Toombs installed a bridge, but it cracked, and he replaced it. Later, shortly after Dr. Toombs closed his office in September or October 1985, S.C. returned to his prior dentist, Steven E. Kiltau, DDS, with a complaint that the porcelain had fractured and that his lower bridge work kept falling out. Dr. Kiltau found the bridge work loose and fractured. There were also bulky margins and open margins, or spaces between the original tooth and the crown, allowing the accumulation of food debris. Dr. Kiltau also suspected that some of the pins had perforated the sides of the teeth. Dr. Kiltau and other dentists who treated S.C., both before and after Dr. Toombs, as well as experts retained by Petitioner, attributed the failure of the structure provided by Dr. Toombs to his inappropriate use of pins. The testimony of these witnesses established uneqivocally that this aspect of the treatment violated minimum standards of performance. Petitioner did not, however, establish that the bulky and open margins were caused by Dr. Toombs' negligence. Some evidence of decay was apparent in S.C.'s teeth and the witnesses were reluctant to conclude that this was the result, and not the cause of the margins.
Recommendation Based on the foregoing, it s hereby RECOMMENDED: That the Board of Dentistry enter a final order, finding Respondent guilty of violations of Sections 466.028(1)(u) and (y), F.S., assessing an administrative fine of $3,000.00, and placing Respondent on probation for two years, with the requirement that he also attend such continuing education courses as the Board finds appropriate. Although this recommended penalty is less than that suggested by counsel for Petitioner, it is still within the guidelines of the Board in Rule 21G-13.005, F.A.C. DONE and ORDERED this 23rd day of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Adopted in Paragraph 6. Adopted in Paragraphs 6 and 7. 7 through 10. Rejected as statements of testimony, rather than findings of fact. 11. Adopted in Paragraph 6. 13. through 15. Rejected as statements of testimony rather than findings of fact. Respondent, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Rejected as inconsistent with the weight of the evidence. Her continuation was not entirely voluntary; she had paid for the treatment and was not given an alternative. Rejected as unsupported by credible evidence. Rejected as contrary to the evidence. Adopted in Paragraph 5. Rejected as contrary to the weight of evidence. through 15. Rejected as immaterial. Petitioner, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 10, except that, according to the record, S.C.'s and treatment by Dr. Toombs began in 1984. Adopted in Paragraph 13. through 11. Rejected as statement of testimony, rather than findings of fact. Rejected as immaterial. Other competent evidence established the existence of decay. and 14. Rejected as statements of testimony. Adopted in Paragraph 13. Rejected as a statement of testimony. through 22. Rejected as unnecessary or a statement of testimony. The margins were proven; their cause was not proven. Respondent, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. and 4. Adopted in Paragraph 10, except the record establishes that treatment commenced in 1984. 5. through 8. Rejected as unnecessary or immaterial. Rejected to the extent that the finding implies that failure was not due to Respondent's negligence. Adopted in Paragraph 14. through 19. Rejected as unnecessary. 20. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: John Namey, Esquire Department of Professional Regulation 1520 East Livington Street Orlando, Florida 32803 Ronald M. Hand, Esquire 241 East Ruby Avenue Waterfront Square, Suite A Kissimmee, Florida 32741 William Buckhalt Executive Director Dept. of Professional Regulation Board of Dentistry 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is the appropriate penalty to be imposed upon Dr. Carroll for two admitted violations of the Dental Practice Act: (1) performing root canal treatment which was below acceptable standards, and (2) practicing beyond the scope of dentistry.
Findings Of Fact Findings Concerning Liability The following findings of fact are based upon the paragraphs or subparagraphs of the Administrative Complaint which Dr. Carroll admits: Inadequate Root Canal Therapy Dr. Carroll treated Sylvia Lankheim. He performed root canal therapy on Ms. Lankheim's lower left second bicuspid (tooth #20) and provided a post and crown for the tooth. Dr. Carroll's endodontic treatment and post and crown restoration of tooth #20 were inadequate, and subsequently failed. Practicing Beyond the Scope of Dentistry Dr. Carroll neither admits nor denies the following allegations found in the Administrative Complaint, but agrees that they make out a prima facie case for the charge of practicing beyond the scope of dentistry: On or about October 31, 1983, Dr. Carroll made a presentation at a local condominium association concerning the purported hazards of mercury poisoning resulting from amalgam restorations in teeth. His presentation included films, testimonies by two former patients, and paraphernalia used to test for mercury toxicity. As the result of this presentation, Ms. Sylvia Lankheim scheduled an appointment with him on about November 3, 1983. When Dr. Carroll saw Ms. Lankheim on November 3, he took full mouth x-rays and made an impression of her teeth for study models. On or about November 8, 1983, Dr. Carroll's dental assistant conducted a Mercury Patch Test on Ms. Lankheim to determine her sensitivity to mercury. The test involves placing a solution of mercury chloride on a band- aid, placing the band-aid on the forearm, removing the band-aid 24 hours later and interpreting the patient's dermatological response to the test. Use of a patch test to determine an allergic response or sensitivity to mercury is not within the scope of the practice of dentistry as defined in Section 466.003, Florida Statutes (1985). The patch test used by Dr. Carroll to determine an allergic response or sensitivity to mercury is not reliable and its use is unproven. Based upon these facts, Dr. Carroll has agreed he is guilty of the charge of practicing beyond the scope of dentistry, in violation of Section 466.028(1)(z), Florida Statutes (1985), as alleged in paragraph 13(d) of the Administrative Complaint. Findings Pertaining to Penalty Penalty guidelines have been adopted by the Board of Dentistry in Rule 21G-13.005, Florida Administrative Code. The penalty for incompetence in the practice of dentistry is prescribed under Rule 21G-13.005(2)(bb) as follows: Being guilty of incompetence. The usual action of the Board shall be to impose a period of probation, restriction of practice, suspension and/or revocation. The usual penalty for practicing beyond the scope of dentistry is stated in Rule 21G-13.005(2)(dd) as follows: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform. The usual action of the Board is to impose a period of probation, restriction of practice, and/or suspension. The Board may deviate from these penalties in an individual case based upon the following aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses or number of patients involved; The length of time since the violation; The number of times the licensee has been previously disciplined by the Board; The length of time the licensee has practiced; The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage; The deterrent effect of the penalty imposed; The effect of the penalty upon the licensee's livelihood; Any efforts of rehabilitation by the licensee; The actual knowledge of the licensee pertaining to the violation; Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation; Related violations against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served; Penalties imposed for related offenses... Rule 21G-13.005(4)(a)-(n), Florida Administrative Code. Dr. Carroll relies on a number of recent cases decided by the Board of Dentistry to argue that the appropriate penalty in this case is a fine of no more than $1,000, and a requirement that he attend 20 to 25 hours of additional training in endodontics in addition to the continuing education required of dentists to maintain their licensure. He maintains that no probation is necessary, as rehabilitation or as punishment. In the case of Board of Dentistry v. Norman A. Fenichel, reported at 10 FALR 6745 (Board of Dentistry, 1988) the Board imposed an administrative fine of $1,500 and placed the dentist on probation for two years, with a requirement that he attend 36 hours of continuing education in crown and bridge work, 36 hours in endodontics and 12 hours in the laws and rules relating to the practice of dentistry or ethics. The penalty was based upon findings made after a formal hearing that the dentist had performed inadequate root canal therapy, and that after the patient had stopped payment on the check for that dental work due to pain and the improper seating of the crown. Fenichel had failed to forward her file to a subsequent treating dentist. Dr. Carroll also relies on other discipline cases of the Board of Dentistry to support the penalty he advocates, where there were stipulated dispositions in somewhat similar circumstances. The case of Board of Dentistry v. Daniel B. Baldridge, DPR Case 0066648 (Board of Dentistry 1987) involved a charge of a feeble attempt to perform endodontic therapy on tooth #3. The stipulated disposition was a fine of $1,000, a reprimand, and probation far one year during which Dr. Baldridge was required to complete 20 hours of continuing education in endodontics. No portion of the Baldridge stipulation included an agreement that Baldridge was guilty of any violation, which is a significant difference from the present case. In the case of Board of Dentistry v. Vance Bishop, Case 0068343 (Board of Dentistry 1988), Dr. Bishop neither admitted nor denied the allegations of an Administrative Complaint which charged that he had provided incomplete endodontic filling of a tooth on which he placed a crown and that two other crowns were poorly done. A fine of $1,500 was imposed, Dr. Bishop was reprimanded, placed on probation for a year and required to complete 15 hours of continuing education in endodontics and another 15 hours in the area of crown and bridge work, endodontics and another 15 hours in the area of crown and bridge work. In the case of Board of Dentistry v. David Murrin, Board of Dentistry Case 0066593 (Board of Dentistry 1988), Dr. Murrin entered into a stipulation without admitting any of the facts in the Administrative Complaint. According toe the complaint, Murrin had performed a root canal and installed a crown on a mandibular left first molar (tooth #19), but subsequent examination showed that the root canal procedure had never been concluded because there was only partial removal of pulp tissue from the tooth, and no filling material had been used. His records failed to show any therapy had been attempted. Murrin was charged with making untrue representations in the practice of dentistry in violation of 466.028(1)(l), Florida Statutes; malpractice, in violation of 466.028(1)(y), Florida Statutes; exploiting a patient for financial gain in violation of 466.028(1)(m), Florida Statutes; and fraud and deceit in the practice of dentistry, in violation of Section 466.028(1)(u), Florida Statutes. According to the stipulation he paid administrative costs of $1,000, and received a reprimand but no period of probation. In the case of Board of Dentistry v. Frederick Newton, Board of Dentistry Case 0070984 (Board of Dentistry 1988), Dr. Newton entered into a settlement stipulation in which he admitted the allegations of fact contained in the Administrative Complaint (with a small correction of those facts). According to the admitted facts, Dr. Newton provided root canal therapy on tooth #3 and amalgam restorations on teeth #3, 14, 19 and 30. The root canal therapy on tooth #3 was inadequately filled and sealed, Johnson did not record on the patient's chart the use of a rubber dam, did not record the canal length of tooth #3, chart the measurements for the endodontic files he used, or take a post-operative x-ray showing the completed root canal therapy. He was therefore charged with malpractice in violation of Section 466.028(1)(y), Florida Statutes, and failing to keep records justifying the course of treatment in violation of section 466.028(1)(m), Florida Statutes. The Board's final order imposed an administrative fine of $1,500, reprimanded him and placed him on probation for a period of twelve months, in which time he was required to complete 20 hours of endodontic continuing education and one course in recordkeeping.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final order be entered by the Board of Dentistry finding Dr. Carroll guilty of violation of Sections 466.028(1)(y), Florida Statutes (1985) and 466.028(1)(z), Florida Statutes (1985), that an administrative fine in the amount of $1,500 be imposed, that he be reprimanded, and that his license be placed on probation for a period of one year, during which he shall complete 25 hours of continuing education in endodontics in addition to any other education required to keep his licensure current. DONE and ORDERED this 9th day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William Buckhalt, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399 =================================================================
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since December 31, 1973, a dentist licensed to practice dentistry in the State of Florida. His license number is DN 0005300. E.L. is a 70-year old man. He has had extensive dental work done for him by various dentists over the years. Respondent is among the dentists who have treated E.L. E.L. first presented to Respondent in 1977. He made subsequent visits to Respondent's office, but he also went to other dentists for treatment. In June of 1989, E.L. was seen by Dr. John Fishman, a periodontist. He was referred to Dr. Fishman by Respondent. Dr. Fishman noted in his records of E.L.'s initial visit that E.L. had "extensive, rampant subgingival decay," E.L.'s gums were "severely hypertrophic" possibly as the result of medication he was taking 3/ and the prognosis for teeth number 3, number 5, number 12, number 13, number 15 and number 31 was "guarded." Dr. Fishman established a treatment plan to treat E.L.'s periodontal disease. The plan had three components: "review oral hygiene" with E.L.; "temporization [of the] upper/lower [arches]" in conjunction with "caries control;" and "periodontal surgery." E.L. received treatment in accordance with the plan. He remained under Dr. Fishman's care, receiving periodontal therapy, until July of 1992. After not having been seen by Respondent for a period of time, E.L., while still under Dr. Fishman's care, returned to Respondent's office in or about September of 1990, more than a year after he had first started receiving periodontal therapy from Dr. Fishman. From approximately September of 1990, to April of 1992 (hereinafter referred to as the "treatment period"), Respondent provided dental services to E.L. Such services included root canal therapy and crown and bridge work. At the time he provided such services, Respondent was familiar with E.L.'s medical and dental history. 4/ Respondent consulted with Dr. Fishman throughout the treatment period. The dental services Respondent provided E.L. during this period were provided in accordance with Dr. Fishman's suggestions, recommendations and requests. Before rendering such services, Respondent went over with E.L. the treatment plan that had been devised, with Dr. Fishman's input, for E.L. Respondent advised E.L. that E.L. was cavity-prone and that it was critical to the success of the treatment plan that E.L. practice good oral hygiene. In addition, to supplement the training E.L. had received from Dr. Fishman, Respondent reviewed with E.L. proper oral hygiene techniques. On or about January 15, 1991, Respondent prepared E.L.'s teeth number 3 through number 14 for an upper fixed bridge. Before doing so, Respondent did not take full-mouth x-rays of E.L. inasmuch as E.L. had told him that another dentist, Dr. Caesar Sabates, had taken such x-rays two or three months earlier. Instead, Respondent relied on information Dr. Fishman provided him. 5/ On or about February 13, 1991, Respondent temporarily cemented the upper fixed bridge. The bridge was temporarily, rather than permanently, cemented in accordance with Dr. Fishman's request. Dr. Fishman wanted to be able to remove the bridge in the event it was necessary to do so to facilitate E.L.'s periodontal therapy. On or about May 13, 1991, Respondent extracted E.L.'s tooth number 14 and recemented (again temporarily) the bridge. Respondent noted during this visit that the gums in the area of tooth number 4 were in "very poor condition." On or about June 4, 1991, Respondent removed the bridge to initiate root canal therapy on E.L.'s tooth number 10. About one week later he recemented (again temporarily) the bridge. On or about July 10, 1991, Respondent noted that E.L. had several cervical cavities. On or about July 30, 1991, Respondent prepared E.L.'s teeth number 29 and number 30 for crowns. On or about August 6, 1991, Respondent performed restorations on E.L.'s teeth number 22, number 23, number 25 and number 27. On or about August 15, 1991, Respondent cemented splinted crowns on E.L.'s teeth number 29 and number 30. On or about August 26, 1991, E.L.'s upper fixed bridge was removed due to looseness and Respondent made impressions for a temporary bridge. On several occasions during the treatment period, Respondent had to reline and recement (temporarily) E.L.'s upper fixed bridge due to its poor fit. 6/ On or about August 3, 1992, pursuant to the instructions of his attorney, E.L. presented to another dentist, Dr. Thomas Ward, for examination. Dr. Ward's examination revealed that teeth number 4, number 7, number 13 and number 14 were missing and that there were open margins 7/ at teeth number 3, number 5, number 8, number 9,, number 10, number 11 and number 12.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Dentistry enter a final order dismissing the Administrative Complaint issued against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of September, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1995.
The Issue The issues to be resolved in this proceedings concern whether the Petitioner is entitled to receive a passing score on the December 1999 dental licensure examination.
Findings Of Fact The Petitioner, Carlo Coiana, was an unsuccessful candidate for the December 1999 dental licensure examination. He failed to pass several procedures of that licensure examination, according to the Department's graders and grading method. The December 1999 dental licensure examination consisted of two parts: (1) The clinical, and (2) The laws and rules section. The clinical portion consists of nine different procedures of which the Petitioner challenged six. The Department, in is scoring method, selects three examiners to grade each candidate's performance. The average of the three scores from each examiner, produces the overall grade for that procedure. Rather than having only one examiner score, the Department allows for three examiner scores because this provides a more fair, reliable indication of the candidate's competency and true score. Each examiner must be a licensed dentist for a minimum of five years and have no complaints or negative actions on his or her licensure record. Each examiner must also attend and successfully complete a standardization session which trains each examiner to use the same internal grading criteria. The examiners who graded the Petitioner's examination successfully completed the standardization session and training. During the administration of the dental examination the Department requires the use of monitors who are also licensed dentists. The monitor's role is to preserve and secure the integrity of the examination. The monitor also gives instructions to each candidate as to what to expect. The monitor has no part in the grading of the candidate's performance on the examination but acts as a messenger between the candidate and the examiner since there is a "double-blind" grading of the examination. The Petitioner contested the score he received on the Class II Composite Restoration on a model. The Class II Composite Restoration Portion of the examination is a procedure involving restoring a cavity (Class II) preparation with a tooth-colored filling. The procedure was done by the Petitioner with a comment by the examiners that there was a discrepancy in the resulting shape of the tooth and proper contact to the adjacent tooth. There was also a marginal discrepancy and a "gingival overhang." The margin is where the tooth and filling meet and there was a discrepancy felt there, a bump or a catch when the junction of the two surfaces should be smooth. A gingival overhang is in the area between the tooth where a non- smooth transition between the filling and the tooth is detected. This can be a damning area which will collect plaque and lead to re-current decay. The Respondent's expert, Dr. John Joffre, concurred with the overall findings of the examiners and felt that this procedure should not be accorded a passing score but rather the score accorded by the examiners. The Petitioner also contested the score for procedure number four of the examination, the Endodontic procedure. The Endodontic procedure of the examination is referred to as a "root canal." This procedure involves removal of the nerve and blood vessels inside a tooth in order to clean out that area. It then requires the shaping of the canal and, finally, filling it with an inert material to rid the body of the infected area in question. This procedure is performed on an extracted tooth. The minimum of the working length the Department required in order to receive a passing score for the filled material in the tooth in question was two millimeters. The Petitioner's expert had the working length of the filled area in the root canal or Endodontic procedure done by the Petitioner measured. It measured closer to three millimeters which is totally unacceptable according to Dr. Joffre. Even in accordance with the literature that the Petitioner relied upon in this case it is not provided that three millimeters short of the working length is an accepted working length, which is why the Petitioner received less than a passing score. All three examiners and the expert witness Dr. John Joffre were in agreement about this scoring. Three millimeters short of the required working length will cause the procedure to definitely fail sometime in the future and renders the procedure useless. An Endodontically treated tooth that is three millimeters short will fail clinically, and that justifies a failing grade on this procedure. The next procedure contested by the Petitioner as to score was the Amalgam Restoration done with a model. This procedure is similar to the Class II Composite Restoration. However, the difference between the two procedures is that the Amalgam is referred to as a silver filling containing mercury, silver, etc., as opposed to the Composite material in the above- referenced procedure which is a "tooth-colored" restoration. Although the Composite and the Amalgam serve the same function, they require different tasks and different procedures on how they are to be handled in their installation in the mouth. The major problem found with the Petitioner's performance on this procedure concerned an overhang. As referenced above, a gingival overhang at the margin of where the filling and the tooth meet results in a less than smooth transition and can be an area where food accumulates and decay can start anew. All three examiners also noted a problem with the proximal contour of the Amalgam restoration which has to do with the shape of the filling in terms of how it meets the tooth next to it. The testimony of Dr. Joffre, which is accepted, shows that the examiners comments and grades and Dr. Joffre's opinion itself justifies the scoring on this procedure. Dr. Joffre agrees with the examiners' scoring. The last procedures in question are called the "Patient Amalgam." These procedures, two and three, involve cutting of the tooth before the filling is actually placed into it ("cutting the box"). Procedure three is the actual filling, involving scoring what the filling is like after the filling procedure is completed. The criticism found by both examiner 304 and 346, as to the first part of the procedure, the cutting part, was ". . .did not break the gingival contact, subject to recurrent decay." The gingival contact down in the box cut for the filling must be cut deep enough to reach the point where there is a separation between the edge of the box and the adjacent tooth. Halfway down the tooth, towards the gum, the teeth are still touching. As one progresses further down toward the gum, the teeth separate because they naturally get narrower toward the gum line. A dentist needs to cut the box that the filling should be placed in down far enough toward the gum line so that he gets to the point where the teeth are no longer touching. Both dentists 306 and 346, examiners, found that he did not cut the box low enough so that he "didn't break gingival floor contact with the molar" (meaning the adjacent tooth). Thus, these examiners gave the Petitioner the lowest grade of "one" on that part of the procedure. The filling or restoration portion of the procedure failed. The filling was not adequately carved or shaped so that it was protruding too high above the adjacent tooth surfaces. This caused the patient to break the filling very shortly after it was finished and he was biting downward and putting pressure on it. Indeed it broke while the third examiner was examining the procedure. The reason why the fracture in the filling occurred was because it protruded too high. The Petitioner did not adequately reduce the size or height of the filling, so when the teeth came together the tooth below it or above it was hitting too hard against that one spot and caused the metal to break before the patient, on whom the procedure was done, ever left the building. The Respondent's expert, Dr. Joffre, who agreed with examiners comments and score, found that the Petitioner had failed to properly perform these procedures and that his score had been appropriately arrived at by the examiners. The Petitioner contested the score he received on the Fixed Partial Denture Procedure. The Department ultimately conceded that he should be awarded additional points on that procedure, however, even with the additional points awarded the Petitioner still failed to score adequately on the overall examination for passage, although he came close, with a score of 2.92 out of a minimal score of 3.00 required for passage of the examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition challenging to the grades assigned the Petitioner for the December 1999 Dental Licensure Examination and finding that the Petitioner failed to pass that examination. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of February, 2001. COPIES FURNISHED: Carlo Coiana N1 Via Delle Coccinelle Cagliari, Italy 09134 Cherry A. Shaw, Esquire Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
