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
The Issue The issues to be determined are whether Respondent committed a violation of section 466.028(1)(x), Florida Statutes (2002-2004)1/, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the regulation of the practice of dentistry pursuant to section 20.43 and chapters 456 and 466, Florida Statutes. Respondent, Richard Moffett, D.M.D., is a licensed dentist in the state of Florida, having been issued license DN 10580. His current address of record is 1776 Tamiami Trail, Venice, Florida 34293. Respondent provided dental care and treatment to Patient C.D. beginning on or about March 12, 2003. On or about March 12, 2003, C.D. presented to Respondent as a new patient. Although there is some indication that Respondent saw C.D. around 1990, there are no records regarding any treatment rendered at that time, and any treatment given in or around 1990 is not relevant to this proceeding. The last time C.D. received actual treatment from Respondent was September 15, 2003, although he provided her a consultation on March 23, 2005. C.D. presented to Respondent on March 12, 2003, complaining of swelling and pain in the lower left side of her mouth. C.D. signed a consent form indicating that she understood that she was having an emergency examination pertaining to an isolated problem, and she needed to return for a full mouth examination. Respondent diagnosed an abscess on tooth number 29 and recommended either extraction or root canal treatment. He began root canal treatment, for which C.D. signed a consent form. The root canal was completed on March 20, 2003. On March 20, 2003, C.D. returned to Respondent's office, and Respondent conducted a comprehensive evaluation and took x-rays of C.D.'s mouth. As part of his evaluation Respondent performed periodontal pocket depth probing and charted the results. C.D. had a probing depth range from 3mm to 7mm. Readings over 3mm are an indication of periodontal disease. C.D. did not present as an average patient. The problems existing in her mouth at the time of the comprehensive exam included missing teeth, widespread decay, a TMJ problem, and periodontal disease. Specifically, C.D. had moderate to advanced periodontal disease, and caries (areas of decay) at teeth numbers 2, 3, 11, 14, 18, 20, 21 and 22 and perhaps others. At the March 20, 2003 visit, Respondent finished the root canal for tooth number 29 and focused on the problems identified in the lower left quadrant of her mouth, because that was the area that was bothering her. Tooth number 19 was missing, and tooth number 14, positioned over tooth number 19, had moved down into the space where tooth number 19 should have been. Tooth 18 was tipped forward into the space that should have housed tooth 19, and tooth 20 had broken off at the gum line from the constant impact from tooth 14, above it. C.D. had TMJ issues on the left side of her mouth, and teeth 20 and 21 had cavities as well. At this visit, Respondent proposed a treatment plan to C.D. that included a bridge spanning teeth numbers 18-20 and a bridge spanning teeth numbers 29-31. He advised C.D. regarding what was needed; and that crowns alone on teeth 20 and 21 would not suffice, and that temporary crowns would break down. He also, however, recommended gross debridement, root planing and curettage, which are methods of cleaning the teeth and providing periodontal treatment. As is discussed more fully below, C.D. did not follow Dr. Moffett's recommendations regarding any sort of periodontal treatment or even basic dental hygiene. C.D. had not had her teeth cleaned since at least 1989. She claimed that prior to 1990, the dentist she saw, as opposed to staff within the dentist's office, had cleaned her teeth twice a year; that her routine of brushing, using a Sonicare and Water-Pic was sufficient; and that she saw little problem with her dental hygiene. She admitted to shaving ten years off of her age in her medical records, but did not consider recording her birth date at 1947 (as opposed to 1937) to be a lie. C.D.'s testimony, provided by deposition, was less then credible. On April 2, 2003, Respondent examined tooth number 29, prepared it for a crown and reviewed the treatment plan with C.D. On May 27, 2003, C.D. returned to Respondent's office for a previously scheduled visit. At that time, C.D.'s chief complaint was that teeth 20 and 21 were bothering her. Respondent noted that C.D.'s bite was slightly sensitive at tooth number 29. Respondent indicated that teeth numbers 20 and 21 were scheduled for restorations at C.D.'s next visit, and that Respondent would re-evaluate tooth number 29 for possible fracture in three months. Respondent's treatment notes for this day state: "wants to start with #20, 6/9 @10am, Just Lower Left right now." C.D.'s patient records for this date also indicate the need for gross debridement and oral hygiene instruction. On June 9, 2003, C.D. presented to Respondent for treatment, and Respondent prepared teeth numbers 20 and 21 for crowns, which included addressing the caries for those teeth. Respondent placed a temporary crown on tooth number 20 and/or For the next visit, Respondent noted the need for "prophy OHI (oral hygiene instruction) ASAP." Although scheduled for July 8, 2003, C.D. did not present for teeth cleaning, gross debridement, or root planning, all procedures recommended by Dr. Moffett, at any time during his treatment of her. On July 8, 2003, Respondent reviewed C.D.'s treatment plan regarding the bridge for teeth 18-20. He again noted the need for oral hygiene instruction as soon as possible. Notes regarding plans for the next visit state the following: Adjust occlusal length of 14 - Prep/buildup 18 -impress 18/20 bridge, 21 crown -bond 23, 26 -redo 24/25 crowns? -review treatment needs per treatment plan 3,2,4, 5? -- prophy/ASAP/OHI On August 14, 2003, C.D. presented for treatment, and Respondent reduced the occlusion for tooth 14, addressed the deep caries on tooth 18 and performed the buildup and preparation for that tooth. He also took alginate impressions for a temporary bridge. On September 3, 2003, it appears that Respondent seated the temporary bridge for teeth numbers 18-20. Respondent also took impressions for fabricating a permanent bridge. Although Respondent sent the mold to the laboratory to create the dental models for a permanent bridge, no permanent bridge was ever seated. Respondent's office charged C.D. and her insurance company for a permanent bridge. C.D. brought the charge to his attention several years later, and he refunded the insurance company the difference between the cost of a permanent bridge and a temporary bridge, adjusted charges for permanent crowns to temporary crowns, and deleted existing interest charges on her account.2/ On September 15, 2003, C.D. presented to Respondent for treatment. At this visit, C.D. told Respondent that she wanted to conserve treatment within insurance coverage limits, and wanted fillings as opposed to crowns, or temporary crowns only. Respondent reviewed her treatment needs with C.D., and advised that he did not think teeth numbered 4 and 5, which were scheduled for restoration, were structurally sound enough to support fillings. At the patient's request, Respondent placed new fillings in teeth numbers 4 and 5 instead of crowning them. The patient note for the September 15, 2003, visit, consistent with prior notes, indicated the need for gross debridement and root planing. There is also a note for a referral for periodontal surgery. On October 30, 2003, C.D. received a letter from Sherri Moffett, who served as the bookkeeper for the office, regarding her outstanding balance. The letter stated in part, "we are working with the laboratory to complete your crown and bridge work in the next few weeks." Ms. Moffett, however, did not testify and Dr. Moffett neither wrote nor knew about the letter. The statements contained in the letter provide no persuasive information regarding Dr. Moffett's intentions for C.D.'s course of treatment, or whether he would have placed the permanent bridge before the patient's periodontal condition was addressed. C.D. did not return to see Respondent again until March 23, 2005. At that time, she wanted a new temporary crown for tooth number 29. Respondent advised her she needed a permanent crown on the tooth, which she did not choose to have. The Department presented the testimony of James W. Jackson, D.D.S. Dr. Jackson graduated from Northwestern University Dental School and was in private dental practice in Clearwater, Florida, from 1966 to 2009. Since that time, Dr. Jackson has volunteered weekly at a local dental clinic. Dr. Jackson's primary concern was that it did not appear to him that Respondent had ever presented to C.D. a treatment plan addressing all of her dental situation, with options of treating those disease processes, and the fees involved for the options presented.3/ He also took issue with Respondent beginning the fabrication of the fixed bridge and the crown on the lower left side before any of the periodontal disease and active decay processes were resolved. Dr. Jackson opined that the proper sequence of dental treatment is 1) to get to know the patient; 2) if the patient is in pain, to do whatever is necessary to alleviate the pain; 3) to perform an examination if the patient is to become a patient of record; 4) to make a diagnoses from the examination to determine what difficulties are present for the patient; and 5) propose a treatment plan to the patient and decide with the patient how to proceed. In addition to his criticism that Respondent did not present a comprehensive treatment plan, he opined that it was improper to begin a permanent bridge for C.D. without first addressing her periodontal disease and addressing the caries in her mouth. Respondent presented the expert testimony of Dr. James E. Haddix, D.M.D. Dr. Haddix graduated from the University of Florida College of Dentistry in 1977, and has been licensed in Florida since 1978. He has served on the faculty of the College of Dentistry since 1991, and is currently an associate professor and assistant dean for continuing dental education, and director of the comprehensive dentistry continuing education program. Dr. Haddix continues to practice dentistry through the University's Academic Enrichment Fund, which is a faculty practice clinic. In Dr. Haddix's opinion, Respondent did not fail to meet the appropriate standard of care. He did not believe that stabilizing an area of the mouth with a temporary bridge falls below the standard of care, and in his words, "you have to start somewhere, and he started in the area of the patient's chief complaint." Dr. Haddix also stated that a dentist cannot treat all areas of the mouth simultaneously, and it was permissible for him to treat one quadrant of the mouth at a time. Dr. Haddix's opinion did not change in light of the fact that Dr. Moffett took impressions for a permanent bridge. Dr. Moffett testified that he agreed that the periodontal disease in C.D.'s mouth needed to be treated before a permanent bridge could be placed. He consistently recommended periodontal treatment in the form of gross debridement, followed by root planing as necessary as a part of his treatment plan, and the patient continued to put if off. He testified that he planned to keep C.D. in the temporary bridge as long as necessary to stabilize her occlusion and her TMJ, and to address to the periodontal issues. If the patient continued to refuse to address the periodontal issues, then he would not have placed the permanent bridge, and ultimately did not do so. Dr. Moffett acknowledged that there was a good chance that once the periodontal treatment was completed and the TMJ addressed, new impressions would have to be taken for the permanent bridge, but testified that it was his policy not to charge the patient if a new impression was required. He agreed in principle with the sequence of treatment advocated by Dr. Jackson, but stated that his treatment was consistent with that sequence in that his stabilization of the lower left quadrant was designed to address her area of pain. After careful review of all of the evidence presented, the testimony of Dr. Moffett and Dr. Haddix is credited, and it is found that Dr. Moffett's treatment of patient C.D. did not fail to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Dentistry enter a Final Order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 31st day of January, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2012.
Findings Of Fact At all times material hereto, Respondent was licensed to practice dentistry in the State of Florida, having been issued license number DN-0000975. Respondent has been licensed to practice dentistry in this State since 1944, and there is no evidence in the record to indicate that he has previously been the subject of a complaint, investigation or license disciplinary action. Respondent was a participant in the Medicaid program, at all times material hereto. He executed a provider agreement with the Department of Health and Rehabilitative Services, under the terms of which Medicaid paid a total of $300 for a set of upper and lower dentures, and he was allowed to bill the patient for a 5% co-payment in addition to the amount paid by Medicaid. Participants in the program specifically agreed to accept the Medicaid-payment in lieu of their usual and customary charges, and not to bill or accept payments from patients, with the sole exception of the 5% co-payment for dentures. Billings to Medicaid could only be made after services were rendered. The Medicaid program reimbursed providers $8.00 for a single surface amalgam restoration, $16.00 for two surfaces, and $24.00 for three of more surfaces. The maximum allowable fee under the Medicaid program for a complete upper set of dentures was $150.00, and for a complete lower set, $150.00. Alveolectomies were reimbursed at $35.00 per quadrant. Between November 4, 1983 and December 15, 1983, Respondent rendered dental services to Geraldine Jones, for which he subsequently billed, and was paid by, Medicaid. The billings were for extracting fifteen teeth, performing three alveolectomies, and fitting the patient with complete upper and lower dentures. Respondent did not perform any of these services for Jones. Therefore, the $423 paid to him by Medicaid was an overpayment, and a payment for services not performed. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Velma Mondy between May 11, 1983 and June 16, 1983. The billings were for restoration of a total of eighteen tooth surfaces. On or about June, 1985, an examination of Mondy's teeth by Dr. Charles Kekich, dental consultant with the Department of Health and Rehabilitative Services, who was accepted as an expert in dentistry, revealed that she had a total of only six surfaces restored. Therefore, Respondent billed and received an overpayment from Medicaid in the amount of $96.00 for services not rendered to this patient. Dental services which were allegedly rendered to Bridget Bryant by Respondent between September 12 and 26, 1983, were billed to Medicaid, and Respondent received payment for restoring twelve teeth, with a total of thirty surfaces. On or about June, 1985, an examination of Bryant by Dr. Kekich revealed that no more than fifteen restorations had been performed, resulting in an overpayment from Medicaid to Respondent of at least $120.00. Respondent billed and was subsequently paid by Medicaid for services rendered to Joyce Johnson between December 22, 1983 and January 1, 1984. These billings were for extracting three teeth and restoring ten, with a total of twenty surfaces. During June, 1985, Dr. Kekich examined Johnson and found that none of the work billed by Respondent had been performed. Therefore, an overpayment of $184.00 was made by Medicaid for services billed, but not rendered by the Respondent. Between January 25, 1984 and March 21, 1984, Respondent performed certain dental work on Ernest Macon, for which he billed and was paid by Medicaid for extracting two teeth and restoring nine teeth, with a total of twenty-three surfaces. Dr. Kekich's examination of Macon during June, 1985, revealed that only one tooth had been extracted and no more than four surfaces had been restored. Therefore, Respondent over billed and received payment from Medicaid for services not rendered to Macon in the amount of $159.00 Respondent billed and was subsequently paid by Medicaid for dental services rendered to Derrick Ealy between March 15 and 27, 1984. These billings were for restoring four teeth, with a total of eleven surfaces. An examination of Derrick Ealy by Dr. Kekich in June, 1985, revealed that only two surfaces had been restored, resulting in an overpayment by Medicaid of $72.00 for services billed, but not rendered. An examination of Kimberly Ealy in June, 1985, revealed that none of the dental services for which Respondent had billed and been paid by Medicaid had, in fact, been performed. Respondent had billed Medicaid for extracting one tooth and restoring a total of thirteen surfaces on five teeth between March 13 and 22, 1984. Therefore, an overpayment of $114 was made by Medicaid for services billed, but not rendered to Kimberly Ealy. Respondent performed dental services for Corey Oliver between March 27, 1984 and May 6, 1984, and in connection therewith, he billed Medicaid for extracting one tooth and restoring seven teeth with a total of seventeen surfaces. An examination of Oliver by Dr. Kekich in June, 1985, revealed that roots of the tooth supposedly extracted by Respondent remained, and that eleven of the surfaces for which bills had been submitted had not been restored. Therefore, an overpayment of at least $95.00 was made by Medicaid for services billed, but not rendered to this patient. From April 16, 1984 to August 7, 1984, Respondent extracted twenty- seven teeth from Lillian Corouthers, and fitted her for a full set of dentures. He billed Medicaid for a total of $1,215 for these services, and received payment from Medicaid of $620.35. In addition thereto, he billed and received from this patient a total of $269. This co-payment exceeds the allowable 5% co- payment under the Medicaid program by $236.35. There is no evidence that Respondent ever refunded any portion of this overpayment to Corouthers. Although Respondent billed and was paid by Medicaid for services performed on Shawn Smith between July 11 and 24, 1984, which allegedly consisted of restoring eight teeth with a total of twenty-one surfaces, an examination of this patient by Dr. Kekich in May, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $168 was made by Medicaid for services not rendered by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Allan Smith between July 6 and 23, 1984. The billings were for extracting two teeth and restoring a total of seventeen surfaces. Dr. Kekich's examination in May, 1985, revealed that only one extraction had been performed, and no restorations. As a result, an overpayment of $146 was made by Medicaid for services not rendered to Allan Smith. Respondent pulled one tooth and provided a complete set of dentures to Mose Tobias in July, 1984. For these services Respondent billed Medicaid for a total of $490, and received payment from Medicaid in the amount of $321.10. He also billed and received payment from this patient in the amount of $119, which exceeds the co-payment allowable under the Medicaid program by $112.11. Between July 6 and August 14, 1984, Respondent performed dental services for Angela Pleas, and in connection therewith, he billed and was subsequently paid by Medicaid for two extractions and sixteen surface restorations. During a June, 1985, examination of Pleas, it was revealed that no more than one extraction and nine restorations had been performed, resulting in an overpayment by Medicaid of $82.00 for services billed but not rendered to Pleas by the Respondent. Callie Wilson was treated by the Respondent between August 2 and 23, 1984, and in connection therewith, he billed Medicaid a total of $470.00 for an examination, x-rays, and a complete set of dentures. Respondent received payment from Medicaid in the amount of $162.45 for these services. In addition thereto, Respondent billed and received from Wilson an amount that exceeds the allowable 5% co-payment under the Medicaid program. The exact amount of this overpayment, however, cannot be determined, but it appears to have been an overpayment of between $45.00 and $95.00. Respondent billed and was subsequently paid by Medicaid for extracting one tooth and restoring twenty-two surfaces for Maruise Woods between September 4 and 25, 1984. An examination of Woods by Dr. Kekich in May, 1985, revealed that no surface restorations had been performed. Therefore, an overpayment of $172 was made by Medicaid for services not rendered. Between September 21 and 27, 1984, Respondent claims to have performed dental services for Sharon Woods, for which he then billed and subsequently received payment from Medicaid for the restoration of four teeth, with a total of twelve surfaces. In May, 1985, Dr. Kekich examined Sharon Woods, and found that none of this work had been performed. Therefore, Respondent overbilled Medicaid $96 for services not rendered to this patient. Respondent billed and was subsequently paid by Medicaid for dental services rendered to John Aberdeen between September 27 and November 21, 1984. These billings were for extracting fifteen teeth, and providing a complete set of dentures. A June, 1985 examination of this patient by Dr. Kekich revealed that only one tooth had been extracted. Respondent received an overpayment from Medicaid in the amount of $389.85 for services not rendered to Aberdeen. Bills were submitted to Medicaid and payment received for services Respondent claims to have performed on Mercedia Lanier between October 1 and 19, 1984. These billings were for restoring seven teeth, with a total of eighteen surfaces. Dr. Kekich's examination of Lanier in May, 1985, revealed that none of the work billed by Respondent had been performed. Therefore, an overpayment of $144.00 was made by Medicaid for services not rendered to Lanier by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Patricia Hall between November 20 and December 7, 1984. These billings were for seven extractions, and the restoration of five teeth with twelve surfaces. In June, 1985, Dr. Kekich examined Hall and found that no more than four extractions, and five surface restorations had been done. Medicaid made an overpayment of $83.00 in connection with services billed, but not rendered to Hall. Claims were submitted to Medicaid by Respondent in connection with services allegedly performed on Eugenie Perry between January 17 and February 11, 1985. These billing were for the restoration of twenty-two surfaces, but Dr. Kekich found in May, 1985, that none of these restorations had been performed. As a result, Medicaid made an overpayment to Respondent of $176.00 for services not rendered. Tessie McRae was a patient of Respondent's in 1985, and claims were filed with Medicaid by Respondent for services between February 5 and March 28, 1985, consisting of ten extractions, four alveolectomies, and a complete set of dentures. When Albert Ravenna, special agent for Medicaid fraud with the Auditor General's Office interviewed McRae in June, 1985, she still had her own teeth and did not have dentures. Respondent did provide her with dentures subsequent to payment for these services by Medicaid. However, an overpayment of $401.55 was made by Medicaid since the services for which billings were submitted by the Respondent had not been performed prior to the filing of these claims. Respondent billed Medicaid for a total of $600 in connection with services he provided to Cora Griffin between February 3 and 11, 1985. Specifically, these bills were for an exam, x-rays and a complete set of dentures. Medicaid paid Respondent $311.60 for these services, and in addition thereto, he billed and collected from Griffin a total of $180. This amount paid by the patient exceeds the allowable co-payment under the Medicaid program. Respondent billed and subsequently received payment from Medicaid for services rendered to Kenneth Gainer between January 25 and March 22, 1985. The billings were for restoring ten teeth with a total of twenty-six surfaces. An examination of Gainer by Dr. Kekich in June, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $208.00 was made by Medicaid for services not rendered. Billings were submitted to Medicaid by Respondent for services allegedly performed on Lawrence Harvey between March 14 and 19, 1985, and consisting of two extractions and eight surface restorations. Dr. Kekich found, upon examining the patient in June, 1985, that none of this work had been performed. Therefore, an overpayment of $84.00 was made by Medicaid for services not rendered. Respondent billed and was subsequently paid by Medicaid for services rendered to Brian Harvey between March 13 and 29, 1985. These billings were for restoring six teeth with a total of twelve surfaces. Respondent did not perform these services, and, therefore, the payment of $96.00 which he received for these services from Medicaid represents an overpayment for services not rendered. According to billings submitted by Respondent to Medicaid, he treated Felicia Harvey between March 21 and 29, 1985. These billings were for restoring four teeth, with a total of eight surfaces. An examination of this patient by Dr. Kekich in June, 1985, revealed that none of this work had been performed, and, therefore, an overpayment of $64.00 was made by Medicaid for services not rendered. On or about December 19, 1986, Respondent plead nolo contendere to seventeen counts of grand theft and five felony counts of public assistance fraud in violation of Sections 812.014 and 409.325, Florida Statutes, and was adjudicated guilty. The billings that Respondent signed and submitted to Medicaid, which are referenced in the above findings of fact, were prepared by his office receptionist, Ida Roundtree, who has been employed by him for twenty-two years, and who is responsible for the preparation and filing of all insurance claims based upon patient dental charts prepared by Respondent or his dental hygienist. Respondent testified that he does not consider it to be his responsibility to familiarize himself with the various requirements for insurance or Medicaid reimbursement. He relies entirely on Roundtree for this, and clearly does not consider the preparation of reimbursement or billing "paperwork" to be within the practice of dentistry. Roundtree admitted that she prepared Medicaid billings for work which was yet to be done in some cases. She would just fill in dates when the work supposedly had been done so that Medicaid would pay the claim. She testified she was unaware that Medicaid allowed a 5% co-payment only for dentures, and that no co-payment could be made for any other dental services under the program. Further, she admitted that she falsified billings by including services not performed so that Respondent would receive more money under the Medicaid program. The evidence does not establish that she was directed to falsify Medicaid billings by the Respondent or that she informed him of her practices, but it was established that he did not check, or in any way attempt to verify, the billings which she prepared before he signed them.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent's license for a period of THREE months, and imposing an administrative fine against Respondent in the amount of $6,000.00. DONE AND ENTERED this 24th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX (DOAH Case No. 88-2961) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Rejected as unnecessary. 6-8 Adopted in Finding of Fact 2. 9-16. Rejected as unnecessary. Adopted in Findings of Fact 30 and 31. Rejected as unnecessary and as legal argument. 19-25. Adopted in Findings of Fact 30 and 31, but otherwise rejected as simply a summation of testimony. 26. Rejected as unnecessary. 27-30. Adopted in part in Finding of Fact 4. 31-34. Adopted in part in Finding of Fact 5. 35-39. Adopted in part in Finding of Fact 3. 40-42. Adopted in part in Finding of Fact 6. 43-45. Adopted in part in Finding of Fact 7. 46-48. Adopted in part in Finding of Fact 8. 49-51. Adopted in part in Finding of Fact 9. 52-55. Adopted in part in Finding of Fact 10. 56-62. Adopted in part in Finding of Fact 11. 63-65. Adopted in part in Finding of Fact 12. 66-68. Adopted in part in Finding of Fact 13. 69-72. Adopted in part in Finding of Fact 14. 73-76. Adopted in part in Finding of Fact 15. 77-82. Adopted in part in Finding of Fact 16. 83-86. Adopted in part in Finding of Fact 17. 87-90. Adopted in part in Finding of Fact 18. 91-93. Adopted in part in Finding of Fact 19. 94-97. Adopted in part in Finding of Fact 20 98-100. Adopted in part in Finding of Fact 21. 101-103. Adopted in part in Finding of Fact 22. 104-109. Adopted in part in Finding of Fact 23. 110-116. Adopted in part in Finding of Fact 24. 117-119. Adopted in part in Finding of Fact 25. 120-122. Adopted in part in Finding of Fact 26. 123-127. Adopted in part in Finding of Fact 27. 128-130. Adopted in part in Finding of Fact 28. Rejected as unnecessary and duplicative. Adopted in Finding of Fact 29. (Note: In addition to adopting, in part, proposed findings of fact 27-130, as shown above, these proposed findings are otherwise rejected as unnecessary or as not based on competent substantial evidence.) Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 2. Rejected as irrelevant. 5-7. Adopted in Finding of Fact 30. 8. Rejected as irrelevant. 9-10. Adopted in Finding of Fact 30. 11-17. Adopted in Findings of Fact 30 and 31. 18-19. Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 22-23. Adopted in Finding of Fact 31. 24. Rejected as irrelevant. 25-28. Adopted in Finding of Fact 31. 29-30. Adopted in Finding of Fact 30 and 31. 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 32-36. Rejected as irrelevant. 37. Adopted in Finding of Fact 29, but otherwise rejected as irrelevant. 38-47. Rejected as irrelevant. 48-49. Adopted in Finding of Fact 4, but otherwise rejected as irrelevant. 50-55. Rejected as irrelevant. 56-60. Adopted and Rejected in Finding of Fact 21, but otherwise rejected as irrelevant. Rejected as argument on the evidence, not a finding of fact. Rejected in Finding of Fact 3. Rejected in Finding of Fact 6. Rejected in Finding of Fact 9. Rejected in Finding of Fact 14. Rejected in Finding of Fact 16. COPIES FURNISHED: Bruce D. Lamb, Esquire 730 South Sterling Street, #313 Tampa, Florida 33609-4582 John A. Powell, Esquire Florida Federal Building One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint filed by the Department of Health (Petitioner) against Alexander Gaukhman, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed dentist in the State of Florida, holding license number DN 15657. The Respondent's mailing address of record was 400 Hanchey Drive, Nokomis, Florida 34275. Beginning on February 28, 2006, and continuing through January 10, 2007, the Respondent, or persons in his dental office, provided dental care and treatment to Patient S.K. (Patient), a female approximately 46 years of age. According to the Respondent's records, the woman presented to the Respondent as a new patient complaining of "severe pain" on February 28, 2006. On that date, the Respondent's records indicate that he performed a limited examination that included taking diagnostic x-rays. A limited oral examination is appropriate under emergent circumstances where the presenting complaint is severe pain. The Respondent's records contain no written documentation of the Respondent's findings based on his examination of the patient and no written diagnosis of oral pathology or disease. The Respondent performed root canal treatment on the Patient's teeth numbered 8 and 9 and placed crowns on the two teeth. The Respondent's records contain no written treatment plan related to root canal treatment provided to the patient. The Administrative Complaint alleged that the Respondent's treatment notes failed to identify the type or amount of anesthetic used during the root canal treatment. The evidence fails to establish that the Respondent administered anesthetic to the Patient during the root canal treatment. In addition to the emergency root canal treatment performed on February 28, 2006, the Respondent also placed veneers on the Patient's teeth numbered 6, 7, 10, and 11. Placement of prosthetic dental veneers is a cosmetic, not an emergent, procedure. The Respondent's records contain no written record of an examination related to placement of the cosmetic prosthetic dental veneers, no diagnosis or other information establishing the rationale for placement of the veneers, and no written follow-up plan related to the veneers. The Patient presented for prophylaxis (cleaning) on March 16, 2006, and again on October 10, 2006. The cleaning was performed by a dental hygienist working for the Respondent. According to the Respondent's records, the Respondent examined the patient on those dates. Such an examination would have included periodontal probing to determine the Patient's dental health. The Respondent's records fail to contain any record of a periodontal probing on March 16, 2006, or on October 10, 2006. Other than notation of pockets related to the root canal procedure, the Respondent's records fail to contain any indication that the Respondent performed periodontal probing on the Patient. Such probing is a basic and routine part of an examination to determine dental health. Because the Respondent was providing dental health services to the Patient, it is reasonable to presume that the Respondent performed the probing, but failed to document the process in his records. The Respondent has been previously disciplined by the Petitioner in an unrelated matter that was resolved in 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding the Respondent in violation of section 466.028(1)(m) and imposing the following penalty: Imposition of a fine of $2,500. Successful completion of an educational course related to dental record-keeping and passage of the Florida Board of Dentistry Laws and Rules Exam. The Board of Dentistry shall designate the educational course and shall establish the deadlines related to imposition of this penalty. DONE AND ENTERED this 31st day of October, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921- 6847www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2011.
The Issue 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
