Findings Of Fact The Parties stipulated to the fact that Dr. Moore was a dentist, licensed by the State Board, holding license number 1464, issued by the State Board. The Parties further stipulated that the facts alleged in the Board's complaint were accurate as of the date of filing. Dr. Ackel testified concerning professional practices. It is a part of the professional services of a dentist to fill out forms necessary for insurance coverage, although they may charge a fee for the time required to do so. The time required to fill out such forms, which are in the main prepared by clerical personnel in the dentist's office, varies from fifteen to forty-five minutes, to include the dentist's time taken to review the entries. The failure to prepare the forms results in nonpayment or delayed payment of insurance claims to the patient. Dr. Moore had delayed over a year the preparation and submission of the forms on the patients involved in this complaint. Dr. Ackel said this was the first such complaint that the Broward County Dental Association has had in his eight-year association with the Association's board which investigates patient complaints. Dr. Moore, having been cautioned about his rights in this case, took the stand and testified that he had had multiple personal problems beginning in 1973. These problems included within a two-year period a personal bankruptcy, a son who flunked out of medical school at the halfway point and subsequently was critically ill with ulcers, another son who suffered a mental depression which resulted in his hospitalization, a reduction in his office staff, and a separation from his wife who also worked in his office. While Dr. Moore acknowledged his ultimate responsibility for the failure to process the insurance forms involved, he did request the Board to consider the foregoing facts in mitigation. Dr. Moore's office is currently a one-man office with one receptionist who has been with the Doctor for twenty-two (22) years. There has been an increase recently in dental insurance claims; and Dr. Moore, who is an older dentist who had a good professional reputation in the community until these incidents, has apparently not adjusted his office administration to keep pace with the changes. This, together with his various personal problems, prevented him from attending to these important matters. Dr. Ackel stated that Dr. Moore had been suspended from the County Association for ninety (90) days as a result of its investigation and findings; however, that this suspension did not cause Dr. Moore to submit the forms. Dr. Moore apologized to all the parties concerned, indicated that he was acting immediately to hire additional personnel in his office, and that all the insurance forms in his office would be filled out and submitted immediately. The Hearing Officer notes, however, that the statements of Dr. Moore's patients indicate he had made similar assurances to his patients.
Recommendation The Dental Board's interest in this case is apparently twofold: To rectify the existing situation and enable Dr. Moore's patients to obtain reimbursement, and To prevent any further failures of this type by Dr. Moore. The Hearing Officer would recommend the following Board action based upon the Findings of Fact and Conclusions of Law: Dr. Moore's license be suspended for three to six months, said suspension or a portion thereof to be held in abeyance or suspended upon Dr. Moore's doing the following: Immediately filing the insurance forms involved here, with copies to the Board, and Permitting and reimbursing, if necessary, a representative or designee of the Dental Board with a reputation for effective office management within the profession to inspect Dr. Moore's office and make a written report to Dr. Moore and the Board suggested ways of improving his office management to prevent a recurrence of this type of failure. DONE and ORDERED this 4th day of September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 605 Florida Theatre Building 128 East Forsyth Street Jacksonville, Florida 32202 Castles W. Moore, D.D.S. 852 N. E. 20th Avenue Fort Lauderdale, Florida 33304
The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent on charges set out in an Amended Administrative Complaint filed by the Petitioner.
Findings Of Fact The Respondent is a licensed dentist in the state of Florida, having been issued license DN 14819. The Respondent was employed by the Collier County Health Department (CCHD) from 2001 to February 10, 2010. She began her employment as a dental assistant, worked as a dentist when she became licensed in Florida, and eventually became the director of the CCHD’s dental clinic. Prior to June 2008, the Respondent received training in providing “pre-orthodontic appliance therapy.” This therapy used appliances to move teeth to create and maintain space in the mouths of pediatric patients to facilitate future orthodontic therapy. The Respondent provided pre-orthodontic appliance therapy, and the CCHD billed Medicaid for reimbursement. As Respondent was starting to provide these services, Medicaid notified the CCHD that Medicaid would pay for them only if provided by an orthodontist or pediatric dentist. The Respondent’s billings would not be paid. When the CCHD was told this, its administrator, Stephanie Vick, told the Respondent and instructed her not to provide pre-orthodontic appliance therapy because Medicaid would not pay for it. Ms. Vick allowed the Respondent to complete cases already begun but not to initiate any new pre-orthodontic appliance therapy. After the conversation between the Respondent and Ms. Vick, Ms. Vick was told that the Respondent was prescribing new orthodontic appliances for patients, contrary to her instructions to the Respondent. On July 15, 2008, Ms. Vick gave the Respondent a written reprimand for “[p]oor performance” and “[v]iolation of law or agency rules.” The reprimand cited the use of orthodontic appliances for the dual purposes of maintaining space and actively moving teeth and other dental structures. It also stated that these appliances were being billed to Medicaid improperly as space maintainers. Ms. Vick discussed the reprimand with the Respondent. After the reprimand, Ms. Vick thought the Respondent was complying with her instructions. Her quarterly reviews of CCHD documentation seemed to corroborate her beliefs. However, at some point, Ms. Vick was told by dental clinic employees that the Respondent persisted in the conduct described in the reprimand. Ms. Vick investigated by reviewing additional documentation, including invoices from the E.P. Orthodontic Laboratory (the lab), which filled the CCHD’s prescriptions for dental appliances, and by interviewing clinic employees. The lab’s invoices led Ms. Vick to believe that the Respondent was violating her instructions regarding pre- orthodontic care and treatment while attempting to conceal her actions. On February 10, 2010, Ms. Vick confronted the Respondent with the results of her investigation and discussed the matter. After the discussion, the Respondent resigned from her employment. She did not admit to wrongdoing. On February 12, 2010, Ms. Vick made a notation in the Respondent’s personnel file that included: “The results of this review [of dental patient records from July 2009] supported that Dr. Aranda has continued to engage in improper charting of services, incorrect/legal billing code use and practices regarding interceptive orthodontic treatment and the need for signed protocol structures.” The notation continued to say that the Respondent was disciplined for the same issues in July 2008 and was persisting in those practices; that these matters were discussed; and that the Respondent chose to resign. The notation mentioned nothing about improper delegation. However, it appears that Ms. Vick came to believe during the course of her investigation of the Respondent that the Respondent was having a dental assistant named Paul Beingolea scale teeth and cement appliances, which he was not qualified to do. Ms. Vick confronted Mr. Beingolea with her belief. He denied it but chose to resign his employment. After the Respondent and Mr. Beingolea resigned, Ms. Vick notified the Agency for Health Care Administration (AHCA), which runs Florida’s Medicaid program, that the CCHD improperly billed and collected payment for pre-orthodontic therapies. AHCA and CCHD agreed to repayment to Medicaid for the resulting overpayments. Count I Deceptive, Untrue or Fraudulent Representations Count I is based on the Respondent’s dental care and treatment for eight Medicaid patients: M.B.; J.C.; K.E.; D.G.; M.G.; M.M.; T.N.-D.; and P.M. Specifically, Count I alleges that the Respondent prescribed pre-orthodontic active appliances for patients, made impressions to be used to fabricate the appliances, ordered them, fit them, and adjusted them. These appliances included Schwartz appliances, rapid palate expanders (RPEs), and anterior bite/inclined planes. These appliances are considered to be “active” because they move teeth and dental structures when “activated” by turning a screw or expanding loops. After the desired space is obtained through use of the appliances, it is common to leave the appliance in temporarily to maintain the space until the bone fills in and solidifies. In this mode, the appliance becomes “passive” and functions as a temporary retainer, but it is still considered to be an “active” appliance. Count I alleges essentially that the Respondent made deceptive, untrue or fraudulent representations in the patient’s charts, and in documents used to bill Medicaid for their dental care and treatment, by disguising pre-orthodontic care and treatment using active appliances, which was not covered by Medicaid, as non-orthodontic care and treatment using passive retainers that Medicaid would cover and pay. It is clear that the Respondent did not benefit financially from Medicaid’s payment of the care and treatment at issue. The Respondent was on a straight salary. She did not work overtime and got no bonuses. No actual Medicaid bills were in evidence. Instead, the Petitioner introduced documentation from the CCHD’s “HMS” system. The HMS system recorded patient demographics, personal information, insurance and billing information, and services provided. The HMS billing information was used by the clerical staff of the CCHD to bill Medicaid. The Respondent did not enter the billing information into the HMS system. This also was done by the clerical staff based on documentation referred to as a “super bill.” The CCHD’s dental practitioners, including the Respondent, created super bills based on their dental care and treatment of patients. After super bill information was entered into the HMS system, the super bill was discarded. None were in evidence. No member of the CCHD’s clerical staff testified, and there was no evidence about the Respondent’s actual entries on the super bill. There was no clear and convincing evidence as to what part the Respondent played in the generation of HMS billing information or the actual billing of Medicaid by the CCHD. Some of the entries in the patient’s charts probably could be attributed to the Respondent based on handwriting (although no witness identified the Respondent’s signature or handwriting). Some entries in the charts were followed by a stamp of a practitioner’s printed name and what appears to be her signature. Sometimes, a number of a day’s worth of charting (up to 30 or more patients) was done at one time in a collaborative fashion by several practitioners. Sometimes there was confusion and mix-ups. Sometimes, one practitioner mistakenly would stamp and/or sign an entry for another practitioner’s work. The charts in evidence included copies of prescriptions that appear to have been written by the Respondent for fabrication by the lab. At the CCHB, the prescription was written on a form called a “Retainers Prescription” that generated a carbonless copy when used. Typically, the white original (top) of the prescription form was sent to the lab, and the yellow carbonless copy was retained in the patient’s chart. Although the exhibits offered in evidence were copies, and all appeared to be white, the witnesses were able to tell the difference between the original (top) of the prescription forms and the bottom carbonless copies of the forms. As part of the investigation conducted by Ms. Vick, copies of what appear to be the lab’s invoices to the CCHD, and copies of what appear to be the original (top) of prescription forms, were obtained from the lab. Ms. Vick believed there were incriminating discrepancies between the documents she got from the lab and some of the carbonless copies of prescriptions in some of the patient charts. However, the documents obtained from the lab were excluded from evidence in this case and cannot support a finding that discrepancies existed. See Preliminary Statement and Endnote 3. The Respondent does not dispute that she prescribed Schwartz appliances, RPEs, and inclined planes for children who needed to regain a little space lost after baby teeth fell out and then maintain the lost space for permanent teeth that were coming in. She denies trying to hide what she was doing by making deceptive, untrue or fraudulent representations. The evidence as a whole supports the Respondent’s position. Patient M.B. The chart for M.B. indicates that the Respondent took upper and lower impressions on June 25, 2009, and wrote a prescription for a “Schwartz to regain space for # A. or space maintainer with loops.” M.B.’s chart referred to the appliance as a space maintainer. There also was an entry on August 21, 2009, indicating that the patient was instructed to “come back for adjustment” to alleviate discomfort and one on February 10, 2010, indicating that the appliance was checked and adjusted. There was HMS documentation indicating that the CCHD billed Medicaid for “diagnostic casts” on June 25, 2009. Patient J.C. The Respondent took upper and lower impressions and did a wax bite registration of the teeth of patient J.C. on May 14, 2009. The chart included two undated prescriptions. One was for a lower bilateral space maintainer. (The chart included two copies of this prescription.) The other was for an upper and lower Schwartz and included a notation that the upper Schwartz was to address “[r]ight side cross bite.” The patient chart referred to the delivery of a “lower bilateral space maintainer (modified)” on July 9, 2009, but there also were notes in the chart referring to orthodontic bands. There were two HMS entries dated July 9, 2009. One indicated “DEN SPACE MAINTAINER-FIX” was provided. The other indicated that a Medicaid bill was initiated. Patient K.E. The patient K.E. began receiving dental treatment at the CCHD dental clinic on September 8, 2005. On May 28, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant for upper and lower impressions, a bite registration, and orthodontic bands. Below the Respondent’s signature is an added entry by the Respondent stating, “note: B.S. Maintainer (RPE).” The Respondent also wrote and signed an undated prescription for an “upper RPE.” On August 18, 2009, the Respondent signed and stamped a dental assistant’s clinical notes in the patient’s chart indicating that a space maintainer was cemented using Fuji brand permanent cement. On September 30, 2009, the Respondent signed and stamped a dental assistant’s clinical notes in the patient’s chart indicating that the patient came to the clinic with a loose space maintainer that was re-cemented. There was HMS documentation indicating that the CCHD provided “diagnostic casts” for the patient K.E. on May 28, 2009; provided “DEN SPACE MAINTAINER-FIX” on August 18, 2009; provided “DEN RE-CEMTATION [sic] OF SPACE” on September 30, 2009; and initiated billing of Medicaid on those dates (but indicates there was no charge to Medicaid for re-cementing the appliance on September 30, 2009. Patient D.G. The patient D.G. began receiving dental treatment at the CCHD dental clinic on May 17, 2005. On August 19, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating: that a bilateral space maintainer was fitted and delivered to the patient D.G.; that the patient’s father was instructed in how the patient should wear, clean, adjust and clean it; and that the adjustments were to be performed once a week. On October 7 and December 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient presented with a loose space maintainer. On both occasions, the parent was instructed in how to take care of the appliance. The patient chart for D.G. is missing the carbonless copy of the prescription for the appliance. There was no evidence as to why it was missing or what it said. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on August 19, 2009; provided “DEN RE-CEMTATION [sic] OF SPACE” on October 7 and December 2, 2009; and initiated billing of Medicaid on those dates (but indicates there was no charge to Medicaid for any of those dates. Patient M.G. The patient M.G. began receiving dental treatment at the CCHD dental clinic on November 26, 2008. On April 23, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant for a diagnostic cast and a bite registration for an inclined plane. The chart also has the carbonless copy of the prescription written by the Respondent for an inclined plane. On June 25, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that a “space maintainer appliance” was delivered and that the family was given instruction on how to use it. On July 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient’s mother was adjusting the appliance (identified in the note as an “upper RPE”) once a week. On August 6, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the appliance (identified in the note as an “inclined plane”) was “working fine” and that the appliance was “trimmed today to improve the bite.” On October 20, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient’s teeth were “corrected of crossbite.” There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on June 25, 2009, and initiated billing of Medicaid on that date (but indicates there was no charge to Medicaid). Patient M.M. The patient M.M. began receiving dental treatment at the CCHD dental clinic on April 27, 2004. On March 17, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an existing space maintainer was removed, impressions were taken and bands, and bite separators were placed. The patient’s chart confirms that a space maintainer was provided for the patient about two years earlier, when the patient was six years old. No copy of a prescription for a new appliance is in the patient’s chart. On April 21, 2009, clinical notes were made by a dental assistant in the patient’s chart indicating that an appliance was received from the lab. On May 21, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper bilateral space maintainer was cemented and that the patient’s mother was explained how to adjust it. The Respondent struck the words “FAN appliance” and “use” and wrote the words “upper bilateral space maintainer” and “adjust” (respectively) above the stricken words. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on May 21, 2009, and initiated billing of Medicaid on that date. Patient T.N-D. The patient T.N-D. began receiving dental treatment at the CCHD dental clinic on July 8, 2008. On August 27, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper and lower bilateral space maintainer was modified, fitted, and delivered. On September 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the upper and lower bilateral space maintainers were modified and adjusted and that the patient’s mother was instructed to open the appliance once a week and have the patient use it whenever not in school. Under the Respondent’s signature and stamp was a note in her handwriting: “modify space maintainer to regain lost space.” There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on August 27, 2009, and initiated billing of Medicaid on that date. Patient P.M. The patient P.M. began receiving dental treatment at the CCHD dental clinic on August 22, 2002. On July 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that upper and lower impressions were taken and bands were placed. The chart also has a copy of a prescription written by the Respondent for an upper RPE and a lower space maintainer. A clinical note signed by a dental assistant indicated that the clinic received an appliance for the patient on August 24, 2009. On October 28, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper space maintainer was cemented using Fuji cement. On February 5, 2010, there are notes in the patient’s chart signed by another dentist that seem to indicate that the patient’s occlusion was adjusted. There was no testimony to explain the meaning of this, or other notes made by the dentist regarding “optibands” and removal of “canes(?).” On February 10, 2010, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that a lower bilateral space maintainer was fitted and adjusted with Fuji cement. There also were notes regarding care for the appliance. One note, written by the dental assistant, said: “Aunt was taught how to take care of appliance, she’ll be doing it twice a week.” That note was stricken and under the Respondent’s signature was a note in her handwriting: “Space maintainer needs to only observe for the properly works [sic].” See Finding 73, infra. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on October 28, 2009, and February 10, 2010, and initiated billing of Medicaid on those dates. Summary The Petitioner did not prove by clear and convincing evidence that the Respondent made deceptive, untrue or fraudulent representations in the charts for these patients. The charts would suggest that, to the contrary, the Respondent was not disguising the nature of her care and treatment of these patients (or was doing a poor job of it if she was trying to). The documentary evidence used to support the charges generally was unclear, confusing, and not well explained. The Respondent may have been insubordinate in providing pre-orthodontic care and treatment to patients against the instructions of her supervisor, which may have been grounds to terminate her employment, and the clinical notes in the patient charts may have been subject to criticism for being less than clear and completeness, but those were not the charges against the Respondent in this case, and no such charges were tried or proven in this case. Count II Improper Delegation Count II alleges that the Respondent delegated tasks to her dental assistant, Paul Beingolea, that he was not qualified to do. Patient F.C. On January 15, 2010, the Respondent signed and stamped a clinical note made in the chart of the patient F.C. It appears that some of the notes were made by a dental assistant named Irma Pineros and indicated that the patient received an examination and “prophy (Hygienist).” It appears that someone else wrote some of the notes in F.C.’s chart for that day, including notes saying “soft tissue inflamed,” “calculus present,” “localized gingivitis,” and “hand scaling.” From the handwriting, it appears that the Respondent may have written some, if not all of the notes that do not appear to be written by Irma Pineros. However, there was no testimony from her, the Respondent, or anyone else as to who wrote what part of the notes. Another dentist at the clinic named Laurie Housworth testified that she saw the Respondent examine the patient F.C. on January 15, 2010, and call in a dental assistant, named Paul Beingolea, who performed work on the patient for another 30 minutes or so. However, Dr. Housworth testified that she could not see exactly what Mr. Beingolea was doing at the time, and she did not observe the patient continuously for the full 30 minutes. It is possible that the Respondent returned to the examination room unbeknownst to Dr. Housworth. Dr. Housworth later pulled the chart to review the clinical notes and interpreted the chart to be indicating that hand-scaling was performed by a hygienist. Since there was no hygienist available at the clinic on that day, she believed the work was done by Mr. Beingolea. The Respondent and Mr. Beingolea denied that he performed hand-scaling on the patient F.C. on January 15, 2010. The Respondent testified that she never instructed a dental assistant to perform hand-scaling. Dr. Housworth did not confront the Respondent or either dental assistant at the time with her suspicion that hand-scaling was performed by Paul Beingolea. Nor did she report any improprieties to Ms. Vick at the time. During the investigation of the Respondent by Ms. Vick, Dr. Housworth related to her the incident concerning the patient F.C. on January 15, 2010. Patient P.M. On February 10, 2010, Dr. Housworth came to work early and observed Mr. Beingolea seating patient P.M. while the Respondent was working in another room with a different patient. Dr. Housworth testified that she saw that Mr. Beingolea had Fuji permanent cement and looked to her like he was placing something in the patient’s mouth. After that, she saw Mr. Beingolea release the patient. Later, she checked the chart and saw that Mr. Beingolea had made a clinical note saying: “Lower bi- lateral space maintainer fitted, and adjusted with fuji L.” He had then written: “Aunt was taught how to take care of appliance, she’ll be doing it twice a week (unreadable). Follow up 2 weeks.” The second part of the note was stricken, and it appears that the Respondent wrote: “Space maintainer needs to only observe for the properly works [sic].” Mr. Beingolea’s signature appears after the first two entries; the Respondent’s stamp and signature appears under the amendment to the notes. From what she had observed and these entries in the patient chart, Dr. Housworth believed that Mr. Beingolea was cementing a space maintainer in the patient’s mouth. Mr. Beingolea and the Respondent denied that he cemented the space maintainer. He testified that he placed the cement in the bands for the Respondent, she placed the space maintainer in the patient’s mouth and left, and he removed excess cement from the space maintainer. The Respondent testified that she never instructed a dental assistant to perform cement space maintainers or any appliances in a patient’s mouth using permanent cement. Dr. Housworth did not confront the Respondent or Mr. Beingolea at the time with her suspicion that Mr. Beingolea cemented a space maintainer in P.M.’s mouth using permanent cement. Instead, she reported it to Ms. Vick because she thought it was relevant to Ms. Vick’s investigation of the Respondent and Mr. Beingolea. Summary The Petitioner did not prove by clear and convincing evidence that the Respondent delegated to Mr. Beingolea the tasks of hand-scaling F.C.’s teeth or cementing a space maintainer in P.M.’s mouth using permanent cement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order dismissing the charges against the Respondent. DONE AND ENTERED this 24th day of May, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 24th day of May, 2016.
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent violated Sections 466.028(1)(j), (l), (m), (n), (u), and (y), Florida Statutes (1988 Supp.), and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.165 and Chapters 455 and 466, Florida Statutes. Respondent, Michael Freedman (Dr. Freedman), is and has been at all times material to this proceeding a licensed dentist in the state of Florida, having been issued license number DN0010221. From June, 1988 through February, 1989, Dr. Freedman billed Medicare and received compensation for dental treatment of three elderly patients, L.S., E.K., and K.K., who resided in a nursing home, Meadowbrook Manor of Boca Cove (Meadowbrook). Patient L.S. At all material times to this proceeding, L.S. was a 93- year-old female who suffered from Alzheimer's disease. At the time of Dr. Freedman's treatment of L.S., Ms. Aurelia DaPra acted as L.S.'s legal guardian. She was also L.S.'s close personal friend and visited L.S. on a daily basis. During these visits Ms. DaPra would attend to L.S.'s personal needs. On or about July 7, 1988, patient L.S. was presented to Dr. Freedman for a consultation at the nursing home where L.S. resided. Dr. Freedman's examination revealed edentulism and/or prosthetic related problems. His recommendations included further diagnostic investigations, surgical procedures, and rehabilitative measures. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered. The "Next Patient Appointment/Service Record" contained in Dr. Freedman's records indicate that dental X-rays were taken of L.S. on July 25, 1988. On July 25, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 8, 1988, Dr. Freedman gave telephone orders to the staff at Meadowbrook to premedicate L.S. prior to Dr. Freedman's visit on the next day. On August 9, 1988, Dr. Freedman visited L.S. Other than rendering an X-ray report, the records do not indicate any other service performed by Dr. Freedman on that date. On August 9, 1988, Dr. Freedman billed $225.00 and was subsequently paid $108.80 by Medicare for X-rays and supplies for L.S. The Medicare category under which supplies are billed is entitled "supplies/prosthesis." Dr. Freedman's customary practice was to make the X-rays at the nursing home using a mobile X-ray machine and to develop the films in his office the next day. He rendered an X-ray report on the dental X-rays of L.S. on August 9, 1988. On August 17, 1988, Dr. Freedman visited L.S. and did a behavior adjustment evaluation. Premedication was given to L.S. on site. On August 17, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 26, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. The dental records of L.S. do not indicate that any service was provided to L.S. on August 26, 1988. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on August 26, 1988. Dr. Freedman billed $70.00 for office services on September 2, 1988, and was subsequently paid $34.88 by Medicare for such services. The records of Dr. Freedman include a draft letter to Dr. Janotta, L.S.'s physician, stating that L.S. needed to have intrabony lesions removed and would require premedication to facilitate the procedure. Notes in his records indicate that by September 18, 1988, Dr. Freedman had not heard from Dr. Janotta. Dr. Freedman billed $72.70 for supplies for L.S. on November 1, 1988, and was subsequently paid $43.88 by Medicare. On November 1, 1988, Dr. Freedman billed $374.00 and was subsequently paid $160.00 by Medicare for surgery on L.S. On November 1, 1988, Dr. Freedman performed a debridement procedure on L.S., which was surgical in nature and was not a routine cleaning of the teeth. Another behavior management evaluation was done on L.S. on November 1, 1988. On January 13, 1989, Dr. Freedman billed $133.00 and was subsequently paid $69.60 by Medicare for X-rays and supplies for L.S. Dr. Freedman's records did not indicate that any services were provided to L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on January 13, 1989. Dr. Janotta's progress notes concerning L.S. indicate that he was contacted by Dr. Freedman on February 5, 1989. On the same date, Dr. Janotta ordered that L.S.'s legal guardian be contacted to get L.S.'s private dentist to look at L.S.'s dental problems. After Ms. DaPra was informed that Dr. Janotta had left orders that L.S. should see a dentist, she told the nurse that she did not want Dr. Freedman to be used as the dentist. On January 26, 1989, Dr. Freedman's office called Dr. Janotta's office and stated that Dr. Freedman intended to do some minor dental work on L.S. and inquired whether the dental work should be done and whether L.S. should be premedicated. On February 10, 1989, Dr. Freedman billed $52.00 and was subsequently paid $22.72 by Medicare for office services for L.S. Dr. Freedman's records do not indicate that any services were performed for L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were performed for L.S. by Dr. Freedman on February 10, 1989. On February 13, 1989, Dr. Hagquist, a dentist, did an oral exam of L.S. and concluded that several of her teeth needed to be extracted. On February 28, 1989, Dr. Hagquist extracted six of L.S.'s teeth. On December 13, 1990, L.S. was examined by Dr. Robert W. Williams, Petitioner's dental expert. Dr. Williams' examination revealed a completely mutilated dentition with serious carious breakdown and several teeth in poor repair. He further discovered gross calcus and debris present with chronic gingival irritation, inflammation, and periodontal breakdown. No evidence was presented as to what dental care L.S. received from February 14, 1989 to December 13, 1990. Patient E.K. At all times material to this proceeding, E.K. was an 84-year-old female who suffered from Alzheimer's disease. On June 6, 1988, patient E.K. was presented to Dr. Freedman for consultation at the nursing home where she resided. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered on June 6, 1988. On July 12, 1988, Dr. Freedman made dental X-rays of E.K. The dental records do not contain either the x-rays or a report on the findings of the x-rays. On July 12, 1988, Dr. Freedman billed $238.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient E.K. Dr. Freedman's records indicate that on August 9, 1988, Dr. Freedman gave some medication as part of a procedure performed on E.K. in the maxilla area. The records do not indicate exactly what the procedure was; however based on the testimony of Dr. Bayloff, Respondent's expert witness, the procedure was not a routine cleaning. On August 9, 1988, Dr. Freedman billed $33.75 and was subsequently paid $10.72 by Medicare for supplies for patient E.K. According to Dr. Freedman's "Tissue Repair/Debridement/ Treatment Report", on November 1, 1988, Dr. Freedman performed the following on E.K. in the mandible area: "brush", "dentifrice," and "dentition." No evidence was presented to establish whether this procedure would not qualify as surgery for purposes of payment from Medicare. On November 1, 1988, Dr. Freedman billed $33.75 and was subsequently paid $14.00 by Medicare for supplies for patient E.K. The procedure performed on November 1 did require the use of some supplies. On November 1, 1988, Dr. Freedman billed $200.00 and was subsequently paid $80.00 by Medicare for surgery on patient E.K. Patient K.K. K.K. is an 85-year-old male who has been described as mentally alert, physically impaired as to sight, and well aware of his surroundings. On June 13, 1988, patient K.K. was presented to Dr. Freedman for a consultation at the nursing home where K.K. resided. Dr. Freedman made a preliminary evaluation. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for consultation services rendered to K.K. on August 13, 1988. It appears that the date which appeared on the Medicare payment report was a scrivener's error and should have read June 13, 1988. On June 20, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for K.K. This billing was for a trip by one of Dr. Freedman's staff to Meadowbrook to copy parts of K.K.'s records. On July 12, 1988, Dr. Freedman made dental X-rays of K.K. and rendered an X-ray report. On July 12, 1988, Dr. Freedman billed $283.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient K.K. On July 29, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for patient K.K. Dr. Freedman's records indicate that his staff called Dr. McKay to inquire whether K.K. needed to have premedication prior to minor oral surgery and if so, what medication would be needed. MITIGATION Dr. Freedman had practiced dentistry at other nursing homes in the area and had not received any complaints concerning the services that he provided. Between 1985 and 1989, Dr. Freedman developed and maintained a practice exclusively limited to patients requiring special care. The majority of his patients resided in nursing homes or ACLF's and were frail and elderly. He was the Dental Director for 23 long-term care facilities and served 50 other facilities on a more limited basis. At any given time he was serving between 1000 to 2000 patients in a 150 mile area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Freedman did not violate Sections 466.028(1)(j)(l) and (u), Florida Statutes as alleged in Count I, finding that Dr. Freedman did violate Section 466.028(1)(m), Florida Statutes (1988 Supp.), in Count I as it related to the X-rays, dismissing Count II of the Administrative Complaint, dismissing the portions of Counts I and III alleging a violation of Section 466.028(1)(n), Florida Statutes (1988 Supp.), finding that Dr. Freedman did not violate Sections 466.028(1)(m) and (y), Florida Statutes (1988 Supp.), as alleged in Count III, finding that Dr. Freedman violated Section 466.028(1)(j) and (l), Florida Statutes (1988 Supp.), as alleged in Count III, imposing a $750 administrative fine and placing Dr. Freedman on probation for one year under the terms and conditions to be set forth by the Board of Dentistry. DONE AND ENTERED this 28th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 28th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3391 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted. Paragraph 11: Accepted except as to a prosthesis. The evidence showed that the Medicare category was supplies/prosthesis. Dr. Freedman was billing for supplies not for a prosthesis. Paragraph 12: Accepted. Paragraph 13: Rejected as to the amount billed. The evidence showed that Dr. Freedman billed $70.00. The remainder is accepted. Paragraph 14: Rejected that he billed for supplies and prosthesis. The records indicate that he billed for office services. Paragraph 15: Rejected that Dr. Freedman billed for a prosthesis. The remainder is accepted. Paragraph 16: Accepted. Paragraphs 17-18: Rejected as subordinate to the facts found. Paragraph 19: Rejected as subordinate to the facts found. There was no evidence presented to link the blank X-ray with the X-rays that were taken on July 25, 1988. Paragraphs 20-21: Rejected as subordinate to the facts found. Paragraph 22: Rejected as to billing for a prosthesis. The remaining is accepted. Paragraph 23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraphs 28-30: Rejected as unnecessary. Paragraphs 31-32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Paragraph 34: Accepted in substance. Paragraph 35: Rejected. The evidence does not support such an opinion. Paragraphs 36-38: Rejected as subordinate to the facts found. Paragraph 39: Rejected as not supported by the evidence. Paragraphs 40-41: Accepted. Paragraphs 42-43: Rejected as not established by clear and convincing evidence. Paragraph 44: Accepted. Paragraph 45: Rejected as unnecessary. Paragraphs 46-47: Accepted in substance. Paragraphs 48-50: Rejected as to the prosthesis. The remainder is accepted. Paragraph 51: Accepted. Paragraph 52: Rejected as subordinate to the facts found. Paragraph 53: Rejected. His conclusion is not supported by the evidence presented. Paragraph 54: Rejected as unnecessary and repetitious. Paragraph 55: Rejected as unnecessary. Paragraphs 56-57: Rejected as based on hearsay. Paragraph 58: Rejected as not supported by the evidence. Paragraphs 59-61: Rejected as not established by clear and convincing evidence. Paragraphs 62-66: Accepted. Paragraph 67: Rejected as to prosthesis. The remaining is accepted. Paragraph 68: Accepted. Paragraph 69: Rejected. The evidence established that K.K. was actually seen twice by Dr. Freedman. Paragraph 70: Rejected as not established by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: The third sentence is rejected as unnecessary. The remaining sentences are rejected as constituting argument. Paragraph 2: The first sentence is accepted. The remaining sentences are rejected as subordinate to the facts found. Paragraphs 3-10: Rejected as subordinate to the facts found. Paragraph 11: The first sentence is rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraphs 12-13: Rejected as subordinate to the facts found. Paragraph 14: The first two sentences are rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraph 15: The third sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. There was no paragraph 16. Paragraph 17: Rejected as subordinate to the facts found. Paragraph 18: Rejected as constituting argument. Paragraph 19: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraphs 20-22: Rejected as subordinate to the facts found. Paragraph 23: The first sentence is rejected as constituting argument. The last sentence is rejected as immaterial. Paragraph 24: The first two sentences and the last sentence are rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 25: The first and last sentences are rejected as constituting argument. Paragraph 26: Rejected as unnecessary. Paragraph 27: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. Sentences 4-13 and 42 are rejected as immaterial to the issues. Sentences 14, 29, 31, 38, and 40 are rejected as constituting argument. Sentence 15 is accepted in substance. Sentence 16 is rejected as not supported by the evidence presented. Sentences 17-28, 30, 32-37, 39, and 41 are rejected as subordinate to the facts found. Paragraph 28: Rejected as constituting argument. Paragraph 29(1): The first sentence is rejected as unnecessary. The second sentence is accepted. Sentences 3-8 are rejected as subordinate to the facts found that Dr. Williams was an expert. Sentence 9 is rejected as constituting argument. Sentences 10-13 and 15-18, are accepted in substance. Sentence 14 is rejected as subordinate to the facts found. The remaining sentences are rejected as constituting argument. Paragraph 29(2): Rejected as mere recitation of testimony. Paragraph 29(3): Sentences 1-11 are rejected as mere recitation of testimony. The remaining is rejected as constituting argument. Paragraph 30: Rejected as subordinate to the facts found and as constituting argument. Paragraph 31: Rejected as constituting argument. Paragraph 32: The last two sentences are rejected as constituting argument. The remainder is rejected as mere recitation of testimony and subordinate to the facts found. Paragraph 33: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 34: Rejected as constituting argument. Paragraph 35: Sentences 1, 2 6, 7, 12, 13, 56 are rejected as unnecessary. Sentences 3-5, 10, 23, 24, 32, 35, 36, 37, 52, 55, 58 and 59 are rejected as subordinate to the facts found. Sentences 8, 9, 11, 28, 30, 51, 71, 72 are rejected as constituting argument. Sentences 14-22, 25-27, 29, 31, 33, 34, 39-50, 53, 54, 60-63 are accepted in substance. Sentence 38 is rejected as not supported by the evidence. Sentence 57 is not a complete sentence. Sentences 64-70 are rejected as irrelevant. Paragraph 29 (Keene pg. 15 of PRO): The first sentence is rejected as unnecessary. Sentence 2(1) is accepted in substance. Sentence 2(2) is rejected as based on hearsay. Sentence 2(3) is accepted in substance. Sentence 2(4) is rejected to the extent that the opinion was not supported by the evidence. Sentence 3 is rejected to the extent the opinion is not supported by the record. Paragraph 30 (pg. 15 PRO): Sentences 1-3, 5, and 6 are rejected as based on hearsay. Sentences 4 and 27 are rejected as constituting argument. Sentences 7-10, 15, 23, and 24,are accepted in substance. Sentences 11-13 and 16 are rejected as subordinate to the facts found. Sentences 14, 17, 41, 42, are rejected as unnecessary. Sentences 18-22, 28-40, and 43 are accepted in substance to the extent that X-rays were made. Sentences 25 and 26 are rejected as not credible given that Dr. Freedman was able to produce the records of the patients at issue. The testimony at the hearing dealt with his inablity to produce copies of the Medicare forms that he received from Medicare. Paragraph 31 (pg. 16 PRO): The first two sentences are rejected as subordinate to the facts found. The remaining is rejected as constituting argument. Paragraph 32 (pg. 17 PRO): Sentences 1-10 and 17-19 are rejected as irrelevant. The remaining is accepted in substance. Paragraph 33 (pg. 17 PRO): Rejected as subordinate to the facts found. Paragraph 34 (pg. 18 PRO): Sentences 1-10 are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 35 (pg. 18 PRO): The last three sentences are rejected as irrelevant. The remainder is accepted in substance to the extent that Dr. Bayloff was qualified as an expert witness. Paragraphs 36 (pg. 19 PRO): Rejected as irrelevant. Paragraph 37 (pg. 19 PRO): Sentences 1-2 are rejected as unnecessary. Sentences 3-7 are rejected as irrelevant. Sentences 8-10 are accepted in substance to the extent that L.S.'s file did contain adequate records. Sentences 11-14 are accepted to the extent that they apply to the records of L.S. and K.K. but not as to the records of E.K. as it relates to the X- rays. There were no X-rays or X-ray report in E.K.'s file. Paragraph 38 (pg. 19 PRO): Sentences 1-2 are accepted in substance as it pertains to L.S. Sentences 3-4 are rejected as irrelevant. Sentences 5-6 are accepted to the extent that the expert reviewed records which were present. There were no records for treatment of L.S. on August 26, 1988, January 13, 1989, and February 10, 1989. Dr. Bayloff did not render an opinion on whether services were provided on those dates. The remaining is rejected as constituting argument. COPIES FURNISHED: Natalie Duguid, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Freedman 421 Lakeview Drive, Suite 201 Fort Lauderdale, Florida 33326 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Dr. Clarence Embry Abell is a licensed dentist, License No. 2471 (Renewal certificate issued September 20, 1974), practicing in the State of Florida pursuant to Chapter 466 of the Florida Statutes, at 2306 Orange Avenue, Fort Pierce, Florida. (Stipulation, Tr 5). The Board prepared an accusation against Dr. Abell which is dated February 7, 1975. Dr. Abell requested a hearing before the Division of Administrative Hearings through a letter dated February 18, 1975. The final hearing was scheduled in accordance with a notice dated May 7, 1975. (Hearing Officer's Exhibit 1 and 2, Notice of Hearing). On December 5, 1973, Rhonda Hall, then 10 years of age, had a toothache. Her mother, Brenda Jean Hall, called several dentist's offices in Fort Pierce, and finally made arrangements to have Rhonda seem by Dr. Abell. Rhonda had no regular dentist in Fort Pierce. Rhonda and her mother arrived at Dr. Abell's office at approximately 9:30 a.m. Dr. Abell's receptionist, Mildred I. Jenkins, directed Rhonda from the reception room into the operatory. Mrs. Hall started to go with Rhonda to the operatory, but was instructed by Mrs. Jenkins to wait in the reception room. Mrs. Jenkins seated Rhonda in the dentist's chair. Dr. Abell asked Rhonda which tooth was giving her trouble. Rhonda showed him. Dr. Abell concluded that she had two abscessed teeth next to each other in her right lower jaw. He injected local anesthetic, and commenced to take an x-ray. The door of the operatory was opened, but Mrs. Jenkins had left the room. Dr. Abell asked Rhonda to bold the x-ray film between her teeth with her forefinger. He took the x-ray. Rhonda Hall testified that after he took the x-ray Dr. Abell jerked the film out of her mouth and hit her. She testified that she saw Dr. Abell's arm and hand pull back and saw his fist coming toward her. Dr. Abell testified that after he took the x-ray Rhonda began to holler. He did not recall her exact words. He testified that he hung the x-ray switch on the unit and walked around behind the dentist's chair to take the film out of Rhonda's mouth. He testified that he turned the x-ray unit downward parallel to the chair and reached to take the film out of her mouth. She spun away and fell back in the chair. He stated that there was a momentary silence, that he took the film from her mouth, and that she then started hollering again. He lowered the chair and was going to ask her to leave when she ran out of the operatory. Dr. Abell testified that he does not restrain children, who are within the age of reason, in order to perform dental work on them. Dr. Abell was firm in his testimony that he did not strike Rhonda Hall. He felt that Rhonda may have struck her head against the x-ray machine when she hollered. He did not see her head strike the machine, but he felt that she was in a position to do that. Other than Dr. Abell and Rhonda Hall, there were no witnesses in the operatory. Having given due regard to the demeanor of the witnesses who testified at the final hearing, and to the competence and credibility of the witnesses, I find that Dr. Abell did not strike Rhonda Hall as alleged. It is apparent that Rhonda Hall sustained an unfortunate, but relatively minor injury to her eye while she was Dr. Abell's patient. This injury, however, was not the result of any action taken by Dr. Abell. It is possible that Rhonda is mistaken about what happened, or that she has placed herself in a position of feeling that she must testify falsely. Although Rhonda and her mother both testified that she was not nervous about going to the dentist, it is evident that at least her mother thought she was. Mrs. Barbara Lanzier was in the reception room when Rhonda was called by Mrs. Jenkins. Mrs. Lanzier testified that after Rhonda left the waiting area, Mrs. Hall stated, "They are going to have trouble with her, they always do. I always go in the room with her." After Rhonda was injured, she ran out of the dentist's office, through the reception room, and outside to her mother's automobile. Her mother brought her back into the office and confronted Dr. Abell. Dr. Abell explained what had happened, and told Mrs. Hall that he did not hit the child. Mrs. Hall then took Rhonda to Dr. Sims, who referred them to an eye specialist. Later that afternoon Mrs. Hall returned to Dr. Abell's office with Rhonda. She again discussed the matter with Dr. Abell. While these discussions were taking place Rhonda moved about the dentist's office, opening drawers and looking at things in the office. At one point she opened a drawer within one foot of where Dr. Abell was sitting. Third conduct, which was witnessed by Dr. Abell and by Mrs. Jenkins, indicates that Rhonda was not particularly afraid of Dr. Abell, despite the fact that he had supposedly hit her with his closed fist only hours earlier. Mrs. Hall denied that Rhonda was opening drawers, or that Rhonda was even with her when she met with Dr. Abell that afternoon. In view of the testimony of Dr. Abell, and his assistant, however, this testimony of Mrs. Hall is not believable. Mrs. Hall testified that she spoke with Mrs. Mattie Turner at the Community Action Organization about Dr. Abell. Dr. Abell does considerable work for children in the Headstart Program managed by the Community Action Organization. Mrs. Hall testified that Mrs. Turner told her over the telephone that she could give her a list of people who could make statements against Dr. Abell. In a later telephone conversation, Mrs. Turner told Mrs. Hall, according to Mrs. Hall, that she would not be able to prepare such a list because of her government position. Mrs. Turner testified at the final hearing that she had only one conversation with Mrs. Hall on the telephone and that she never told Mrs. Hall that she could give her a list of people who had complaints about Dr. Abell. She further testified that she has taken many children to see Dr. Abell, and that she has never had a complaint about his services. Dr. Abell's account of what happened in the operatory with Rhonda Hall, is not corroborated by any direct testimony. After the incident, however, it is apparent that Dr. Abell preceded to treat other patients, and that he did so in a calm, businesslike manner. Such conduct is not compatible with a person who has become so enraged as to strike a young child in the eye with his closed fist, without provacation. Dr. Abell's testimony respecting his normal procedure with uncooperative children and Mrs. Jenkins' testimony with respect to her fifteen years of experience working with Dr. Abell support Dr. Abell's account of the events. Four persons, who as young children had had dental work performed by Dr. Abell, testified as to their experiences. Sarah Nicholson, now twenty-three years old, was a patient in 1961 and 1962. Miss Nicholson testified that Dr. Abell was extremely rough with her. She testified that she was struck, but she does not remember where. On cross-examination, testimony that Miss Nicholson gave in a previous deposition were read to her. She had testified that she was "Slapped possibly - well, alright, we'll go with the technicalities, he was rough like, 'Sit still in the chair.'" She did not remember whether she was hit or slapped, but only that she was struck. Dr. Abell's records do not reflect anything extraordinary in his treatment of Sarah Nicholson. In view of the fact that the supposed incident occurred some thirteen years ago, and the fact that Sarah Nicholson's testimony about the incident is vague at best, the testimony cannot be regarded as competent or relevant. Regina Adams, is nine years old. She was five years old when she visited Dr. Abell in conjunction with the Headstart Program. She did not remember Dr. Abell's name. She testified that the dentist slapped her in the jaw and told her if she did not cry she would get some gum. She testified that the dentist missed with his drill, and that she had to go the doctor that night. The remoteness and vagueness of Regina Adam's testimony renders it incompetent and irrelevant. Regina's sister, Monique, who is now ten years old visited Dr. Abell when she was five or six years old. She did not recognize Dr. Abell at the hearing. She testified that she recalled being struck by Dr. Abell in the chest. She further testified, however, that she was going to state that she was struck in the face, but that at lunch her mother told her she was struck in the chest. In view of the remoteness of this supposed incident, the vagueness of the testimony, and the fact that the memory was gratuitously refreshed by her mother during the course of the hearing, the testimony cannot be regarded as competent or relevant. Andy McClendon, a nine year old, who saw Dr. Abell four or five years ago was called as a witness. He recalled nothing about the visit.
