Findings Of Fact Frank A. Velez, Jr., D.D.S. has been registered with the Florida State Board of Dentistry since 1967. His latest address on file with the Board is 4640 Orange Blossom Trail, Orlando, Florida. The records of the Board show no licensed hygienist with the same address as Velez or that any licensed personnel are employed by Velez. In November, 1973 Mrs. Margaret B. Laursen went to Dr. Velez for professional services. Velez performed a root canal and took impressions for a partial plate. When the patient returned for the bridge work to be inserted in her mouth Velez removed a tooth before putting in the plate. When the plate was inserted it did not fit and despite several visits to Dr. Velez for adjustment, the plate could not be worn because of the pain and discomfort caused with the plate in place. Finally, in August, 1974, she went to Dr. Barnes. Upon examination Dr. Barnes observed a large root tip which had been left in the cavity from which the tooth was extracted. This root tip was visible without x- ray. The root tip that had been removed and the x-ray showing the root tip were admitted into evidence as Exhibits 5 and 6. After extracting the root tip and adjusting the partial plate Dr. Barnes could not make the partial plate fit, largely because an extension had been added to the plate to take care of the space caused by the extraction of the molar from which the root tip had been left. Dr. Barnes further found that the crown which had been placed on the tooth used to anchor the partial plate had been cracked and the plate could not be securely attached thereto. Since the partial was sitting on top of the root tip at the time it was being fitted by Dr. Velez, the pain would not allow the partial to fit comfortably. Mrs. Estella Livermore saw a brochure from Dr. Velez on a bulletin board in the trailer park where she resided. Therein it said that he would make a full set of upper and lower dentures for $98. Needing dentures she visited Velez in January, 1976. Upon arrival she talked to Velez and the secretary who showed her two sets of teeth; one the $98 set and the deluxe version at $150. As a result of the conversation she authorized Velez to make her a $150 set. At this time Mrs. Livermore had been wearing dentures for about 30 years. On her initial visit impressions were taken and about a week later she went back when the plates were ready. When the new dentures were placed in her mouth she couldn't eat, drink, or talk with them. At Velez's insistence she tried to wear them, but couldn't even drink water with the teeth in. After complaining to Velez he stated that he would make another set. When the other set was prepared they appeared to fit worse than the first set. They were impossible to wear. She called Velez and he stated he couldn't do anything about it. Telephone calls to his office were answered by a recording. Subsequently, she and her husband went by his office to wait him out. When he appeared he was angry because she had not called for an appointment and wanted to know if she wanted him to take some material off the plates. When Mrs. Livermore replied that she didn't know, he took the teeth into his lab for a short while and when he returned shoved them in her mouth and escorted her out. His nurse told her if she came back he would charge her $10 per visit. The teeth still could not be used by Mrs. Livermore and when she complained to the dental society she was referred to Dr. Waldheim, Assistant Secretary Treasurer of the State Board of Dentistry. In February, l976 Dr. Waldheim examined Mrs. Livermore and found the dentures to be oversized with a poor occlusion. The dentures were inadequate for the patient and could not be adjusted to fit. Mrs. Georgia McCampbell visited Dr. Velez in late November, 1975 to have teeth pulled and dentures made. He took impressions of her teeth and approximately one week later when she returned several teeth were extracted and both upper and lower dentures were inserted. The lowers fit badly and would not stay in place. Her next appointment was one week later. During this period of time the dentures were burning and hurting very badly and when she went back for her appointment she did not see Dr. Velez, but was seen only by an assistant. By this time her gums inflamed and abscessed. She told the assistant she had an appointment with Dr. Velez, but was advised that since she was late for her appointment with Velez she could not see him. One of the assistants attempted to fit the dentures by putting them in, but they were hurting too much for her to wear. A few days later she went to Dr. Ford. When Dr. Ford examined Mrs. McCampbell he found the incision extended from second molar to second molar across the lower front part of her jaw. The wound was open and the jawbone was exposed. A pus-like material was observed in the gum. Her temperature was slightly elevated at 99.2 F. He treated her with antibiotics. Mrs. McCampbell advised Dr. Ford that she had teeth removed ten days before and had been back on three occasions but was unable to see the dentist. She could only see a dental assistant. Dr. Ford expressed the opinion that where six or eight teeth in a row are removed sutures would normally be indicated. Three days later upon her return she was beginning to heal and he removed some bone fragments from the jaw. The incision made when the teeth were removed healed in about three weeks. His examination of the dentures that had been made for Mrs. McCampbell showed they were too large and the jaw would not properly close with the dentures in the mouth. Dr. George A. Woodruff, D.O.S., in Titusville knew Dr. Velez when he was practicing in Titusville some two and a half to three years ago and had patients in common with Velez. One of these patients, Sue Flenniken, visited his office in May, 1972 with gum abscess. She advised him that Velez had proposed to treat her with a root canal. In Dr. Woodruff's opinion a root canal would not have helped in her case, as the gum was abscessed. Some two months later the tooth flared up again and extraction was required. Another client shared with Dr. Velez was one Hazel Todd. She was experiencing problems with a Velez-constructed bridge held by three teeth on which root canals had been done by Dr. Velez. Upon examination Dr. Woodruff found the root canal treatment inadequate. One was underfilled just short of the tip of the root, the other two overfilled with the filling sticking out of the end of the root. This was clearly visible in the x-ray. Dr. Woodruff opined, that the three root canals done at the same time on three teeth in a row was contraindicated. Normally when a patient has sensitivity in an area proper treatment would be to narrow down the sensitivity and then do a root canal on the tooth most suspect to see if that cured the problem before proceeding to treat the other teeth. Mrs. Amelia Thomas visited Dr. Velez in June, l976 for replacement dentures. After she paid half of the quoted price a dental assistant took the impressions from which the new dentures were made. On this visit Dr. Velez did not take any impressions. When she returned a week or ten days later to pick up the teeth she was advised that she had to pay the balance of the amount owed on the teeth prior to having the teeth fitted. When she questioned paying for the teeth before trying them Dr. Velez told her abruptly that is the way that he did it. After she made the balance of the payment the teeth were tried in her mouth. They did not fit well and she could not bite comfortably. Velez took part of the material off the teeth and told her to try them out and come back a week or so later for an adjustment. Although she tried to wear the teeth she couldn't talk or eat with them. She considered they were too large and her jaws would not properly close. When she went back to Dr. Velez with her complaint he told her that he had made the teeth to fit and that she was going to have to wear them. She offered to pay him more if he would make another set that did fit but he declined. Velez then brought in another man who checked her teeth and took them out to the lab to work on. About an hour later Velez advised her that he would make her another set of plates and he took impressions to do so. He also asked for her old plate to be left there for a couple of days which she declined to do because she felt she could not get along without them. She did not return for the second set of teeth because she had become uneasy about the work Dr. Velez had done and stopped payment on her second check. Mrs. Thomas has worn dentures for approximately 40 years and this is the first time a dentist had asked her to leave her old dentures for a pattern. Alfred W. Langley saw Dr. Velez in January, 1976 to have a set of dentures made. Dr. Velez took the impressions and when Langley returned approximately one week later for fitting, the teeth fit so badly that Velez would not let Langley out of the office with them. Velez took a second set of impressions but when Langley returned those teeth fit no better and a third impression was taken. When the third set of teeth was made, Langley took those home with him but they did not fit. They wouldn't stay in place and he could not talk with them. Subsequently he visited the consumer protection agency and obtained a letter from the dental board and from the consumer protection agency. When he confronted Dr. Velez with these letters Velez returned the money he had paid for the teeth. These letters from Dr. Waldheim and from the State Attorney's office were received into evidence as Exhibits 7 and 8. Mrs. Louise Rodgers visited Dr. Velez in February, 1976 experiencing problems with her teeth. Another dentist had wanted to do root canals on some twenty-odd teeth but she didn't feel she could afford the approximately $4,000 she had been advised that treatment would cost. She visited Dr. Velez to see if extraction and dentures would be cheaper. Dr. Velez took x-rays and impressions prior to extracting the teeth. On March 4, 1976 Dr. Velez extracted 23 teeth and put in the plates that he had constructed from the earlier impressions. She immediately inquired if the upper plate was supposed to be as loose as the one in her mouth appeared to be. Under instructions she kept the plate in all afternoon but had to hold her finger on the plate for 3 or 4 hours until the swelling was sufficient to hold the plate in place. Later when she took them out to clean her mouth she couldn't get the plate back in because of the large bone in the way. The following Monday she called the office and was advised to come in on the 11th, some 7 days after the extractions. Dr. Velez was not there and one of the girls in the office tried to put the teeth in but couldn't. Mrs. Rodgers returned the following day and saw Dr. Velez who removed the bone fragment that was in the way. He tried to put the teeth back in but there was too much swelling and the upper part of the jaw was very irritated. When she returned on the 18th of March her gums were still tender but there was no longer any bleeding. On that visit Dr. Velez did some grinding on the teeth so they could be put in her mouth; however, they would not stay in place. Velez advised her to get something gummy and sticky to hold them in. She tried to wear the teeth but they felt too big and would not stay up. She went back on the 23rd of March complaining about her teeth not staying up. She was advised she had to get used to them but he would remake them if she would pay an additional fee of $78. When she called on April 22nd and asked to talk to Dr. Velez the girl said he was extremely busy and couldn't come to the phone. The receptionist advised that she would make her another appointment but she should wait for three weeks. During this time she was still trying to wear the dentures but couldn't eat with them, talk with them, and the uppers kept falling down. When she did return for her final appointment he advised she was just going to have to wear them until she could get used to them. After complaining to the Dental Board Mrs. Rodgers was advised to visit Dr. Waldheim. When Dr. Waldheim examined Mrs. Rodgers in June, 1976 he found that her gums had healed but the teeth did not fit. The occlusial relationship was badly off and the teeth could not be adjusted to fit. Dr. Waldheim further opined that extracting 23 teeth at one time and not seeing the patient until 10 days thereafter was very poor dental practice. In his opinion the patient should always be seen the following day if as many as 23 teeth were extracted. Mrs. Sarah Gier visited Dr. Velez in February, 1976 to have new dentures made. Velez advised her that she could have the $98 set or the $150 deluxe set, but that the $150 teeth were worth approximately $600. She selected the $150 set. At this visit Dr. Velez took impressions and when she returned on February 19 for the teeth the upper dentures appeared all right. Dr. Velez acknowledged that the bottom dentures were wrong and would have to be made over. He then took impressions for the lower plate but when she returned for them they didn't fit. Dr. Velez instructed her to try and wear them. She tried but couldn't wear them because they hurt too badly. When she returned on March 1, a boy in the office removed her teeth, took them back to the lab to work on them. When he returned they still did not fit and he made a second adjustment. When Dr. Velez appeared he advised her that she would probably have to use powder and that it may be several weeks before she would get used to the teeth. Inasmuch as each visit was now costing $10 she didn't feel that she could make more visits. On March 4th Mrs. Gier called and asked for her money back. Initially the receptionist said all right, but called back and advised that Dr. Velez had changed his mind and could not give her money back. Subsequently when she and her husband stopped by to see Velez he told her if she didn't leave he would call the police. Later she visited Dr. Waldheim, to whom she had been referred by the Dental Board. Dr. Waldheim found the dentures did not fit as they were too large and the jaws could not close to their natural position. Using the witness as a model Dr. Waldheim had her insert the teeth at the hearing. It was clearly evident that the jaws were extended by the teeth and the lips would not close. In Dr. Waldheim's opinion those teeth could never be made to fit. In February, 1976 Mr. Joseph Marrone visited Dr. Velez to have dentures made. He had heard that Dr. Velez was reasonable and the next door neighbor had recommended Dr. Velez. He had a partial plate held by three teeth on the, bottom that needed to be pulled. When Dr. Velez examined him Marrone was advised it would be better to pull the bottom and top teeth and make a full set of dentures. On the first visit Dr. Velez made impressions for the lower plate. On Mr. Marrone's second visit the lower plate was ready and was placed in his mouth. Although the receptionist told him not to take them out they hurt so badly that he had to. When he returned a few days later two girls in the office examined his teeth and made adjustments on them. However, the teeth never fit and were causing bruises and sores in the gums. He could not eat with them. Thereafter Dr. Velez made a second full set of teeth, but they too did not fit. After several adjustments were made Velez advised this would be the last time he could adjust them and if they didn't work he could do nothing more about it. Mr. Marrone then asked him to return his money `and he would go to a dentist who could prepare him a set of dentures he could wear. When Marrone subsequently complained to the dental board he was referred to Dr. Waldheim. Dr. Waldheim's examination of the dentures showed the lower plate extended and it could not be corrected to fit. Mr. Marrone was then referred to another dentist who was able to adjust the upper plate that had been made by Dr. Velez to fit but it was necessary to make a new lower plate for Mr. Marrone. With respect to the various patients of Dr. Velez that had been seen by Dr. Waldheim due to improperly fitting dentures, Dr. Waldheim expressed the opinion that the most probable cause of the ill-fitting dentures was in the manner in which the impressions were taken or in the material used in taking the impressions. If improper impression material was used it could have changed from the time the impression was taken until the time it was used for the mold for the dentures. None of the dentures made for the patients of Dr. Velez that were seen by Dr. Waldheim could have been adjusted so they would fit. Connie Bragdon and Marie Minzenberger worked in Dr. Velez's office in 1975 and 1976. Both had received training from Dr. Velez, both worked as Dr. Velez's assistants, both took impressions from which dentures were made, and both adjusted dentures. They were instructed to give a copy of the letter, admitted into evidence as Exhibit 9, to all patients. These letters contained a map showing the location of the office on the back and advised the prices that the doctor charged for various services. Letters similar to those in Exhibits 2, 4 and 9 were mailed to patients who called and requested information. Rebecca Velez, wife of Dr. Velez, testified over the objection of the attorney for Respondent, who objected on grounds of the husband and wife privilege. Mrs. Velez had worked in the office for approximately one and one half years in 1975 to early 1976. She too had received no previous training. She acknowledged that Exhibits 2 and 4 were very similar to those that were in the office and were given to all patients who visited the office. Dr. Henry Gagliardi, D.D.S. is a dental educator who established a dental hygiene school at the Florida Junior College in Jacksonville. Dr. Gagliardi defined a dental auxiliary as an individual working with or for a dentist. This person can be either a dental assistant or a hygienist; however, the latter requires a license and two years training. A dental assistant may be employed with no preparation or training. A hygienist can scale teeth, use instruments in the mouth, and take impressions. A person not licensed by the dental board may not legally take impressions from which a prosthetic device will be made, but they may take impressions for diagnostic purposes only. A dental assistant may not alter a prosthetic appliance (denture). If an extension on a prosthetic device causes problems to the patient the diagnosis and correction of this problem must be done by a dentist. Since the determination of the accuracy of the bite on a prosthetic device is very important, this is another task that must be done by the dentist and not by an auxiliarist. Dentures are often placed into the oral cavity immediately after extraction and when so done they act as a splint until the cavities heal. In the normal process gums will shrink following extraction of teeth and thereafter the dentures will require adjustment. Improperly fitting dentures can cause lack of equilibrium in the jaws, sore gums, and sores in the mouth. In December, 1973 Mrs. Norma Laursen, daughter-in-law of Margaret B. Laursen, visited Dr. Velez on an emergency basis to have a broken tooth repaired. Dr. Velez was unable to take her case at that time. Several months later she and her husband received an envelope in the mail containing a letter which was introduced into evidence as Exhibit 2. The introduction of Exhibit 2 was objected to on the grounds that there was no evidence that it was signed by Dr. Velez or sent by Dr. Velez. Ruling on this motion was deferred at that time. Since subsequent exhibits indicate that this letter was one of many of a similar kind that were distributed to various individuals, the objection is overruled and Exhibit 2 is admitted into evidence. Robert E. Laursen corroborated the testimony of his wife, Norma. James E. Stone, of Titusville visited Dr. Velez while Velez was practicing in Titusville some two and one half to three years ago. He had chipped a tooth over the week-end and went in to see Dr. Velez for emergency repairs on a following Monday. Dr. Velez took x-rays, filed the tooth down, and advised Mr. Stone that in the future he may need a root canal. Dr. Velez was never his family dentist. Some months later he received in the mail a letter which was offered into evidence as Exhibit 4. Mrs. Stone corroborated the testimony of Mr. Stone with respect to the receipt of Exhibit 4 in the mail. Exhibit 4 was objected to on the same grounds as Exhibit 2 and at the time the ruling on the objection was deferred. For the same reasons given above, Exhibit 4 is now admitted into evidence. Six witnesses, Susan Weiler, Daryl DeVevc, Gustav Jicha, Daisy Smith, Robert B. Smith, and Janice Sidley testified on behalf of Dr. Velez. All had received treatment from Dr. Velez and considered him to be an excellent dentist who did very fine work for each of them. Some had experienced difficulties with dentures made by other dentists, but those prepared by Dr. Velez were excellent. A series of commendatory letters addressed to Dr. Velez were admitted into evidence as Exhibit 13. Attached thereto is an affidavit signed by some 57 former patients to the effect that Dr. Velez had performed dental work on them and they were completely satisfied with his service, his professional conduct and competence as a dentist. Copies of various certificates held by Dr. Velez were admitted into evidence as Composite Exhibit 14.
The Issue The issues in this case are whether Respondent, a dentist who owns a multidentist practice, (a) failed to keep dental records and medical history records justifying the course of a patient's treatment; (b) billed a patient for dental services that were not actually rendered, thereby committing fraud, deceit, or misconduct; or (c) caused a dental office to be operated in such a manner as to result in substandard dental treatment. If Respondent committed any of these offenses, it will be necessary to determine an appropriate penalty.
Findings Of Fact At all times relevant to this case, Respondent Francisco Fonte, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Fonte. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Fonte committed three such offenses. In Count I of the Administrative Complaint, the Department charged Dr. Fonte with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named J.S. In Count II, Dr. Fonte was charged with committing fraud, deceit, or misconduct in the practice of dentistry, an offense under section 466.028(1)(t). In support of this charge, the Department alleged that, as part of a systematic scheme to defraud patients, Dr. Fonte had sought payment from J.S. for services not actually rendered, and had done the same to "Patients P.W., J.M., E.T., A.C., A.H., F.C., M.S., D.L. and/or as many as 500 additional patients " In Count III, the Department charged Dr. Fonte with having caused a dental office to be operated in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community, which is an offense defined in section 466.028(1)(ff). The events giving rise to this case began in the summer of 2008, when a young adult named J.S. went to the offices of Advanced Dental Innovations, P.A. ("ADI") for treatment of a painful tooth. ADI, which was owned by Dr. Fonte, operated a dental clinic in Royal Palm Beach, Florida. Several dentists practiced in ADI's premises——but not Dr. Fonte himself. He was employed by the Florida Department of Corrections as a Senior Dentist and worked at the Everglades Correctional Institution in Miami, where he treated the inmates. Dr. Fonte was not actively involved in the daily business or professional operations of ADI. To manage the clinic, ADI hired Martha Somohano, who held a Florida dental radiographer license and was purportedly experienced in running dental offices. Dr. Fonte trusted Ms. Somohano to manage the business competently and protect his investment in ADI. One of the dentists who saw patients for ADI was Dr. Idalmis Ramos-Abelenda. She worked in ADI's offices one day per week from around April 2008 to April 2009.2 Although J.S. was seen by at least one other dentist at ADI's clinic, Dr. Ramos- Abelenda became his treating dentist of record. Dr. Fonte never saw or treated J.S. During a five-month period, from July through November 2008, Dr. Ramos-Abelenda performed extensive dental work on J.S., which is documented in handwritten progress notes that ADI maintained in its records. Based on the opinion of the Department's expert witness, which was not disputed, the undersigned finds that the dental work which J.S. received met or exceeded the applicable minimum standards of performance. The bills for this dental work eventually totaled around $26,000. There is no evidence that this amount exceeded the fair market value of the services rendered.3 Initially, J.S. paid for his treatment using a regular credit card, rapidly incurring a debt of $4,685. Then, J.S. established a credit card account with CareCredit®, a credit service of GE Money Bank which provides financing for health related costs. Through CareCredit®, ADI was paid $21,429 for dental services rendered to J.S.4 A separate CareCredit® account was opened in the name of J.S.'s mother, D.S. The evidence fails to establish clearly the extent to which ADI submitted J.S.'s charges to D.S.'s CareCredit® account for payment, although there is evidence suggesting that this happened. More important, however, are the Department's allegations that D.S. never applied for a CareCredit® credit card, and that someone at ADI forged her signature on the application. The accusation that Dr. Fonte or his agent stole D.S.'s identity and fraudulently established a line of credit in her name is a very serious one, to be sure, but the undersigned is far from convinced of its veracity. The proof consists largely, if not exclusively, of D.S.'s testimony——an awfully thin evidential ground for this sort of wrongdoing, which should have left an incriminating paper trail. Further, the Department did not call a forensic document examiner to testify, for example, that a questioned document examination had established that the signature on the CareCredit® application is not D.S.'s, or to give an opinion that the application can be traced to another known source, e.g., Ms. Somohano. Thus, even if the undersigned were able to find based on clear and convincing evidence that D.S.'s signature had been forged on a credit application (which he is not), there is insufficient evidence to determine who was responsible for the purported fraud, and no basis for finding that Dr. Fonte was involved in——or even aware of——the alleged misdeed. Much of the Department's case against Dr. Fonte rests on a "Single Patient Ledger" (the "Ledger") that ADI maintained in the ordinary course of business, which showed the debits and credits entered upon J.S.'s account. Recorded on the Ledger are the dates on which dental services were rendered to J.S., a brief description of each service, the charge for each service, payments received, and J.S.'s current balance. The Ledger is clearly not a dental record or medical history record; it is, rather, a business record——and most likely was prepared primarily for internal purposes, as part of ADI's book of accounts. The Department alleges that the Ledger lists services that were not rendered to J.S. Plainly, the services shown on the Ledger are more extensive than those described in the handwritten progress notes, which are the dental records made by J.S.'s treating dentists. Based on the opinion of the Department's expert witness, which was credible in this regard, the undersigned finds that the Ledger identifies services that could not reasonably have been performed in J.S.'s mouth. The undersigned further finds, based primarily on the testimony of Dr. Ramos-Abelenda, that where the progress notes and the Ledger are in conflict, the progress notes are the accurate record of the dental services rendered to J.S. That the Ledger lists services not actually rendered to J.S. does not necessarily mean, however, that a fraud was committed, as the Department alleges. For one thing, the evidence does not clearly and convincingly establish that someone knowingly falsified the Leger with intent to deceive. The Ledger's inaccuracies, for instance, might have been the result of incompetence instead of malice. There is, moreover, insufficient evidence to identify clearly the person or persons who prepared the Ledger. The signs point to Ms. Somohano, who reportedly exercised tight control over the accounting systems at ADI. The evidence fails, however, to convince the undersigned that she was the only person who might have accessed the Ledger. More important, there is no persuasive (much less clear and convincing) evidence that Dr. Fonte had anything to do with the Ledger. Even assuming that Ms. Somohano or some other employee of ADI knowingly falsified the Ledger, there is not a sufficient evidential basis for finding that Dr. Fonte authorized, ratified, acquiesced to, or even knew about such wrongdoing, which affected only a single patient.5 Although the Department alleged that Dr. Fonte had "engaged in an organized scheme to systematically bill for dental services that were never rendered," there is no persuasive evidence that J.S. or any other patients were "defrauded." Besides J.S., only two patients——A.H. and O.R.—— gave testimony at the final hearing. There are no allegations of material fact in the Administrative Complaint which, if proved, would establish that Dr. Fonte defrauded either A.H. or O.R., the latter of whom was not even identified in the complaint.6 Pleading deficiencies aside, neither A.H. nor O.R. gave testimony that clearly and convincingly proved fraud, much less a fraudulent scheme similar to the one alleged (but not proved) to have been perpetrated against J.S. Each of them, it can fairly be said, is a disgruntled former patient of ADI. Broadly speaking, one or the other, or both, claim to have been overcharged for services rendered, provided unwanted services, given shoddy treatment, and administered controlled substances by someone other than a dentist. None of this was alleged in the Administrative Complaint. No dental or billing records concerning either of these patients were offered as evidence. No expert testimony was given concerning the treatment these patients received. Indeed, the only expert testimony offered at the final hearing concerning standards of performance came from the Department's expert, who testified that the treatment J.S. had received was "fine," and that he had no opinion regarding the care of any patient other than J.S. Thus, the evidence fails to establish that the operation of ADI resulted in dental treatment that fell below the minimum acceptable standards of performance for the community. Ultimate Facts The evidence is insufficient to prove that Dr. Fonte, as the owner of ADI, failed to maintain either the original or a duplicate of J.S.'s dental records; to the contrary, ADI maintained these records. It is a close question, however, whether the dental records made by J.S.'s dentist of record, Dr. Ramos-Abelenda, fully satisfied the minimum content requirements prescribed in Florida Administrative Code Rule 64B5-17.002(1). This question need not be decided, however, because (a) the owner dentist of a multidentist practice is not responsible for the content of dental records made by a dentist of record, and Dr. Fonte was not the dentist of record for J.S.; and, alternatively, (b) if an owner dentist is responsible for the content of other dentists' records, his responsibility in this regard extends only to "employee, associate or visiting dentists"——and the evidence fails to prove clearly and convincingly that Dr. Ramos-Abelenda was any of these. Consequently, Dr. Fonte is not guilty of committing an offense punishable under section 466.028(1)(m), Florida Statutes.7 The evidence fails to establish clearly and convincingly that anyone, much less Dr. Fonte, committed fraud, deceit, or misconduct in the practice of dentistry. Assuming such wrongdoing did occur in connection with the treatment and billing of J.S., however, it was clearly not done by Dr. Fonte himself, and there was no allegation, nor any persuasive evidence, that Dr. Fonte directed, approved, or should have known about an agent's misconduct. Accordingly, Dr. Fonte is not guilty of committing an offense punishable under section 466.028(1)(t). Finally, because there is no evidence that any patient of ADI received substandard dental treatment, Dr. Fonte is not guilty of causing a dental office to be operated in such a manner as to result in dental treatment that is below minimum acceptable standards of performance, which is a disciplinable offense under section 466.028(1)(ff).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Dr. Fonte not guilty of the charges set forth in the Administrative Complaint. DONE AND ENTERED this 23rd day of May, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2011.
Findings Of Fact The Petitioner, a candidate for licensure as a dentist, was administered the state Dental Examination in June 1988. A part of the exam, the clinical portion, requires that each candidate perform specified procedures on a human patient. The exam procedures are performed in a clinical setting. A floor monitor is present during the examination. After each procedure is performed, the monitor escorts the patient to a grading room. In the grading room, three examiners separately and independently review each candidate's performance. The examiners generally do not discuss or otherwise communicate their opinions or the grades awarded other than to note such on the grading sheet completed by each examiner. The examiners are Florida-licensed practicing dentists. Prior to the examination, the examiners participate in a training session designed to provide a standardized, uniform reference for grading the results of a candidate's performance on the clinical exam. Each examiner awards a numerical grade between 0 and 5 for each procedure. The grade for each procedure reflects an evaluation of the whole of a candidate's performance. Comments are made by each examiner on the grading sheet, either through marking in a computer-scored portion on the sheet, or by written notes outside the computer-scored area. The criteria for each possible grade is as follows: 0--complete failure 1--unacceptable dental procedure 2--below minimal acceptable dental procedure 3--minimal acceptable dental procedure 4--better than minimal acceptable dental procedure 5--outstanding dental procedure The three scores awarded by the examiners are averaged to provide the grade for each procedure. Each candidate is identified on the grading sheet by number so as to prevent an examiner from knowing the identity of the individual candidate being reviewed. Each examiner is also identified by number. Examiners are assigned to grade a candidate through a random selection process. The test monitor is responsible for collecting the grading sheets after each examiner has completed the review. After the grading process is complete, the patient is returned to the clinic for performance of the next procedure. The grading process is repeated for each step. The Petitioner challenges the scores awarded to two of the ten procedures performed as part of the clinical exam. Procedure number two on the exam, the amalgam cavity prep, provides for the preparation of a decayed tooth for filling. Procedure number three, the final amalgam restoration, provides for the filling of the prepared cavity. The two procedures account for 20% of the total points on the clinical examination, divided between procedure two (two-thirds) and procedure three (one-third). On procedure number two, the Petitioner received a grade of 3 from examiner 133, a grade of 4 from examiner 194, and a grade of 0 from examiner 192. Examiner 192 noted that caries remained present in the prepared tooth cavity. Neither examiner 133 nor examiner 194 noted remaining caries, although both identified other areas of concern regarding the candidate's performance. According to the examination rules of the Department, a grade of 0 is mandatory if caries remain after completion of the procedure. There was no evidence to indicate that the review and scoring by examiner 192 was erroneous, beyond the fact that other examiners did not note remaining caries. It is possible, according to expert testimony, for one examiner to identify remaining caries which other examiners fail to discover. The remaining decay can be dislodged by one examiner in reviewing the procedure and therefore not visible to subsequent examiners, or the decay, loosened by the procedure, can be otherwise displaced within the patient's mouth between examinations. On procedure number three, the candidate received a grade of 3 from examiner 101, a grade of 4 from examiner 052, and a 0 from examiner 192. Examiner 192 noted that the functional anatomy, proximal contour, and margin of the amalgam restoration were deficient, further noting that a cervical shoulder existed and that the prepared area was not filled. The evidence did not indicate that the grade awarded by examiner 192 for procedure number three was erroneous or mistaken. According to the evidence, including expert testimony based upon a review of x-rays taken subsequent to completion of the procedure, the grade awarded by examiner 192 was appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of dentistry enter a Final Order dismissing the Petitioner's challenge to the grading of the two clinical procedures on the June 1988 dental examination. DONE and RECOMMENDED this 7th day of July, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 7th day of July, APPENDIX CASE NO. 89-0588 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: Rejected. The evidence did not establish that procedure number two is weighted more than all other procedures, but did indicate that procedures performed within the oral cavity are more heavily weighted that procedures performed outside the cavity. Procedures two and three are both performed within the oral cavity. Procedure two is, and, totaled, constitute 20% of the clinical examination. Procedure two provides two-thirds of the 20%, with procedure three providing one-third of the 20%. Rejected, restatement of testimony. The appropriate criteria for the 0-5 grade scale is as stated in Rule 21G-2.013 Florida Administrative Code. Rejected, not supported by weight of evidence. Both examiners noted comments on the grading sheet, either through marking within computer-scored area or by writing additional comments on the grading sheet. Rejected. The evidence did not indicate that it was "customary" for examiners to pass notes through monitors to the candidate. The witness testified that, on occasion, he had passed notes to monitors when he gave a score below three on the referenced procedures. However, there is apparently no requirement that examiners inform candidates, through monitors, of problems which are found during the grading of the candidate's work. Rejected, irrelevant. There is no requirement that the candidate should have been informed of the acceptability of his work or of his scores during the procedure. Rejected, not supported by weight of the evidence. The fact that one examiner identifies specific problem areas which are not identified by other examiners does not indicate that the scores are erroneous or that the standardization process undergone by the examiners was deficient. Rejected, conclusion of law. 14-15. Rejected, goes to weight accorded testimony of referenced witnesses. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 4. Rejected, irrelevant. 9. Rejected, as to characterization of Petitioner's testimony. COPIES FURNISHED: James Sweeting, III, Esquire 2111 East Michigan Street, Suite 210 Orlando, Florida 32806 E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729
Findings Of Fact At all times relevant hereto, Respondent, Harold I. Odle, held dental license number DN 0004379 issued by Petitioner, Department of Professional Regulation, Board of Dentistry. Respondent is engaged in the practice of dentistry at 3900 South Broadway, Fort Myers, Florida. On or about August 13, 1980, Wilfred H. Bauer went to Respondent's dental office where Respondent extracted Bauer's tooth number 17. On or about August 21, 1980, Bauer returned to Odle's office for removal of sutures placed in his mouth in connection with the extraction performed on August 13. The removal procedure was performed by Julia Hover, an employee in Respondent's office. It was not disclosed whether Hover was licensed as a dentist or dental hygienist in the State of Florida. The complainant in this case (Bauer) died in August, 1982 and accordingly did not appear and testify at the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion for directed verdict be GRANTED and the administrative complaint against Respondent be DISMISSED. DONE and ENTERED this 29th day of September, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of September, 1982.
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.94, so he failed the clinical part of the examination. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, the score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. For both procedures, Petitioner challenges only the scores of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The two sections that are the subject of this case require the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For each section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communication between examiners and candidates is exclusively through monitor notes. For each section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner 394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate 0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3. The Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners 207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.
Recommendation It is RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License Examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue in this case is whether Petitioner should have received a passing score on the June 2001 Florida Dental Licensure Examination, notwithstanding Respondent’s determination that he failed the test.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Siegel, who graduated from dental school in 1999, took the June 2001 Florida Dental Licensure Examination (the “Exam”), which was administered by the Department on June 2 through June 5, 2001. The Exam had two parts, a Clinical Part and a Laws and Rules Part. The Clinical Part was further divided into ten sections, each of which consisted of a separate clinical procedure. The minimum passing score on the Laws and Rules Part was 75.00; on the Clinical Part, a minimum score of 3.00 was required to pass. As calculated by The Department, Siegel scored 70.00 and 1.49, respectively, on the two parts. Thus, according to The Department, Siegel failed both parts of the Exam. Each candidate’s performance on the Clinical Part of the Exam was scored independently by three examiners chosen by the Department.1 These examiners were not informed of any candidate’s identity, nor were the candidates told the examiners’ names; they were not permitted to speak directly to one another while the Exam was being administered. The examiners who graded Siegel’s clinical performance had successfully completed standardization training.2 Additionally, the Department determined, as part of a routine post-Exam statistical review of examiner performance, that these particular examiners were reliable in terms of their consistency in applying the proper grading criteria.3 To determine a candidate’s overall score on the Clinical Part of the Exam, the Department first computed the average of the three examiners’ raw scores for each individual procedure. Each average score was then adjusted using the percentages prescribed in Rule 64B5-2.013, Florida Administrative Code, to arrive at a weighted mean score. A candidate’s overall score on the Clinical Part was equal to the sum of his or her weighted mean scores for each section. At hearing, Siegel challenged just one clinical procedure, the Patient Amalgam Restoration.4 An amalgam restoration is a dental procedure that involves filling a cavity so that the affected tooth is restored to proper form and function. After this procedure, the treated tooth should closely resemble its original size and shape. Siegel’s raw scores on this procedure were very low. One of the examiners who testified at the hearing, a dentist with some 40 years’ experience, had awarded Siegel no points for the Patient Amalgam Restoration procedure because, after completion of the work, the restoration was fractured and the patient’s gingival margin was open. Another examiner, a dentist with 35 years of experience, explained at hearing that Siegel's work on the amalgam restoration was a failure; in this examiner’s opinion, the patient's tooth was actually in worse condition after Siegel had finished the procedure. The testimony of these examiners was credible and is accepted as being truthful and accurate. Accordingly, it is found that Siegel failed to perform the amalgam restoration with the minimum degree of skill and competence required for licensure as a dentist in this state. For his part, Siegel contended that one of the examiners (presumably the one who did not testify at hearing) had caused the restoration to fracture. Siegel based this theory on the account of his patient, Scott Graham, who testified that one of the examiners had "picked" at his tooth with a sharp instrument.5 (Mr. Graham is not a dentist.) Mr. Graham, however, had not complained about any alleged examiner misconduct at the time of the examination. Likewise, no examiner ever reported any such irregularity. In the absence of contemporaneous corroborating evidence, created before it became known that Siegel had failed the Exam, Mr. Graham’s testimony is simply not persuasive evidence of examiner misconduct. To be sure, it is theoretically possible that an examiner might damage a candidate’s work and then attempt to cover up his error by blaming the candidate. The evidence in this case, however, is not nearly sufficient to support such a finding. To underscore the point: Siegel’s theory is speculative at best. As for the remaining clinical procedures, while Siegel complained that his scores were not a reliable or accurate measure of his performance, he failed to introduce any persuasive evidence in support of this allegation. At bottom, the trier is not persuaded that the scores Siegel received were arbitrary, capricious, unfair, inconsistent, or otherwise objectionable. To the contrary, the evidence in the record demonstrates convincingly that the scores Siegel received on this Exam were reliable, correct, impartially rendered, and consistent with the grading practices used in scoring other candidates’ work.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department advise the Board Of Dentistry to enter a Final Order (a) holding that Siegel's administrative challenge to the scores he received on the June 2001 Florida Dental Licensure Examination is without factual and legal merit and (b) declaring that Siegel failed said examination. DONE AND ENTERED this 19th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 19th day of February, 2002.
