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 The issues to be resolved in this proceedings concern whether the Petitioner is entitled to receive a passing score on the December 1999 dental licensure examination.
Findings Of Fact The Petitioner, Carlo Coiana, was an unsuccessful candidate for the December 1999 dental licensure examination. He failed to pass several procedures of that licensure examination, according to the Department's graders and grading method. The December 1999 dental licensure examination consisted of two parts: (1) The clinical, and (2) The laws and rules section. The clinical portion consists of nine different procedures of which the Petitioner challenged six. The Department, in is scoring method, selects three examiners to grade each candidate's performance. The average of the three scores from each examiner, produces the overall grade for that procedure. Rather than having only one examiner score, the Department allows for three examiner scores because this provides a more fair, reliable indication of the candidate's competency and true score. Each examiner must be a licensed dentist for a minimum of five years and have no complaints or negative actions on his or her licensure record. Each examiner must also attend and successfully complete a standardization session which trains each examiner to use the same internal grading criteria. The examiners who graded the Petitioner's examination successfully completed the standardization session and training. During the administration of the dental examination the Department requires the use of monitors who are also licensed dentists. The monitor's role is to preserve and secure the integrity of the examination. The monitor also gives instructions to each candidate as to what to expect. The monitor has no part in the grading of the candidate's performance on the examination but acts as a messenger between the candidate and the examiner since there is a "double-blind" grading of the examination. The Petitioner contested the score he received on the Class II Composite Restoration on a model. The Class II Composite Restoration Portion of the examination is a procedure involving restoring a cavity (Class II) preparation with a tooth-colored filling. The procedure was done by the Petitioner with a comment by the examiners that there was a discrepancy in the resulting shape of the tooth and proper contact to the adjacent tooth. There was also a marginal discrepancy and a "gingival overhang." The margin is where the tooth and filling meet and there was a discrepancy felt there, a bump or a catch when the junction of the two surfaces should be smooth. A gingival overhang is in the area between the tooth where a non- smooth transition between the filling and the tooth is detected. This can be a damning area which will collect plaque and lead to re-current decay. The Respondent's expert, Dr. John Joffre, concurred with the overall findings of the examiners and felt that this procedure should not be accorded a passing score but rather the score accorded by the examiners. The Petitioner also contested the score for procedure number four of the examination, the Endodontic procedure. The Endodontic procedure of the examination is referred to as a "root canal." This procedure involves removal of the nerve and blood vessels inside a tooth in order to clean out that area. It then requires the shaping of the canal and, finally, filling it with an inert material to rid the body of the infected area in question. This procedure is performed on an extracted tooth. The minimum of the working length the Department required in order to receive a passing score for the filled material in the tooth in question was two millimeters. The Petitioner's expert had the working length of the filled area in the root canal or Endodontic procedure done by the Petitioner measured. It measured closer to three millimeters which is totally unacceptable according to Dr. Joffre. Even in accordance with the literature that the Petitioner relied upon in this case it is not provided that three millimeters short of the working length is an accepted working length, which is why the Petitioner received less than a passing score. All three examiners and the expert witness Dr. John Joffre were in agreement about this scoring. Three millimeters short of the required working length will cause the procedure to definitely fail sometime in the future and renders the procedure useless. An Endodontically treated tooth that is three millimeters short will fail clinically, and that justifies a failing grade on this procedure. The next procedure contested by the Petitioner as to score was the Amalgam Restoration done with a model. This procedure is similar to the Class II Composite Restoration. However, the difference between the two procedures is that the Amalgam is referred to as a silver filling containing mercury, silver, etc., as opposed to the Composite material in the above- referenced procedure which is a "tooth-colored" restoration. Although the Composite and the Amalgam serve the same function, they require different tasks and different procedures on how they are to be handled in their installation in the mouth. The major problem found with the Petitioner's performance on this procedure concerned an overhang. As referenced above, a gingival overhang at the margin of where the filling and the tooth meet results in a less than smooth transition and can be an area where food accumulates and decay can start anew. All three examiners also noted a problem with the proximal contour of the Amalgam restoration which has to do with the shape of the filling in terms of how it meets the tooth next to it. The testimony of Dr. Joffre, which is accepted, shows that the examiners comments and grades and Dr. Joffre's opinion itself justifies the scoring on this procedure. Dr. Joffre agrees with the examiners' scoring. The last procedures in question are called the "Patient Amalgam." These procedures, two and three, involve cutting of the tooth before the filling is actually placed into it ("cutting the box"). Procedure three is the actual filling, involving scoring what the filling is like after the filling procedure is completed. The criticism found by both examiner 304 and 346, as to the first part of the procedure, the cutting part, was ". . .did not break the gingival contact, subject to recurrent decay." The gingival contact down in the box cut for the filling must be cut deep enough to reach the point where there is a separation between the edge of the box and the adjacent tooth. Halfway down the tooth, towards the gum, the teeth are still touching. As one progresses further down toward the gum, the teeth separate because they naturally get narrower toward the gum line. A dentist needs to cut the box that the filling should be placed in down far enough toward the gum line so that he gets to the point where the teeth are no longer touching. Both dentists 306 and 346, examiners, found that he did not cut the box low enough so that he "didn't break gingival floor contact with the molar" (meaning the adjacent tooth). Thus, these examiners gave the Petitioner the lowest grade of "one" on that part of the procedure. The filling or restoration portion of the procedure failed. The filling was not adequately carved or shaped so that it was protruding too high above the adjacent tooth surfaces. This caused the patient to break the filling very shortly after it was finished and he was biting downward and putting pressure on it. Indeed it broke while the third examiner was examining the procedure. The reason why the fracture in the filling occurred was because it protruded too high. The Petitioner did not adequately reduce the size or height of the filling, so when the teeth came together the tooth below it or above it was hitting too hard against that one spot and caused the metal to break before the patient, on whom the procedure was done, ever left the building. The Respondent's expert, Dr. Joffre, who agreed with examiners comments and score, found that the Petitioner had failed to properly perform these procedures and that his score had been appropriately arrived at by the examiners. The Petitioner contested the score he received on the Fixed Partial Denture Procedure. The Department ultimately conceded that he should be awarded additional points on that procedure, however, even with the additional points awarded the Petitioner still failed to score adequately on the overall examination for passage, although he came close, with a score of 2.92 out of a minimal score of 3.00 required for passage of the examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition challenging to the grades assigned the Petitioner for the December 1999 Dental Licensure Examination and finding that the Petitioner failed to pass that examination. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Carlo Coiana N1 Via Delle Coccinelle Cagliari, Italy 09134 Cherry A. Shaw, Esquire Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Respondent committed the violations set forth in the Administrative Complaint dated August 27, 1999, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes (1997). Pursuant to the authority of Section 20.43(3)(g), Florida Statutes (1997), the Department has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. Dr. Williams is, and has been at all times material to this case, a licensed dentist in the State of Florida, having been issued license number DN 0004042. Dr. Williams has been licensed for over 35 years, and he has not been the subject of any previous disciplinary action. Dr. Williams is a board-certified general dentist and a certified and credentialed member of the American Academy of Implant Dentistry. His practice involves complex prosthetic dentistry such as dentures, crowns, bridges, and dental implants, with a strong emphasis on implants. He also does the restorative work once the implants are in place; that is, he fits the prostheses containing the "fake teeth" in the patient's mouth. Dental implants are metal devices that are inserted into or on top of bone in the upper and lower jaws and act as anchors on which to attach a prosthetic device replacing missing teeth. There are three major types of dental implants: plate blade implants, which are placed in the bone; root form implants, which are also placed in the bone; and subperiosteal implants, which are inserted into the gum and over the bone. Dr. Williams is a multi-modal dentist who uses all three types of implants in his practice, and he chooses the appropriate implant based on the needs of the patient. Dr. George Williams Patient M.S. presented herself to Dr. Williams in August 1995 for an initial consultation about dental implants. She was in excellent general health and had a complete upper denture and a partial lower denture, with seven natural teeth remaining on the lower jaw. Dr. Williams and M.S. discussed several different options for eliminating M.S.'s need to wear dentures. The options discussed were blade implants and subperiosteal implants. M.S. was given literature explaining the dental implant options, and she decided she wanted implants placed into bone. Dr. Williams took panoramic radiographs to determine the general character and height of the bone, and he palpitated the bony ridge to determine the width of bone. Dr. Williams determined that blade implants would be appropriate for M.S. because the bone in her upper (maxillary) arch and lower (mandibular) arch 3/ was narrow and because the height and quality of the bone were good. Dr. Williams advised M.S. that, if she were to choose root form implants, she would need bone grafts from her hip to provide sufficient bone to secure the implants. M.S. chose to have blade implants. A blade implant has length and height and is very thin, like a razor. There are vents in the metal blade, and, when the implant is placed inside the bone, the bone will grow through the implant vents over a period of six to nine months and lock the implant into the bone, a process that is known as osseointegration. There are two types of blade implants, fixed- head implants and implants with screw-on heads. With implants with screw-on heads, healing caps are screwed into place over the implant heads immediately after surgery and are left in place for several months. They are then replaced with screw-on implant heads, which fit flush with the implant. It is very rare to place six implants with the heads perfectly parallel, so the screw-on heads are trimmed and shaped while the prosthesis is being fitted. If the screw-on heads are turned, loosened, or not screwed-down properly, the prosthesis will not fit properly. On September 21, 1995, before Dr. Williams placed the blade implants in M.S.'s mouth, she signed a dental consent form in which she was advised of the risks of the procedure, including the risks of bone fracture; nasal or sinus penetration; infection; tissue discoloration; and numbness of the lip, tongue, chin, cheek, or teeth, which could last indefinitely. Dr. Williams discussed the consent form with M.S. before she signed it, and M.S. was told that there was no way to estimate the time it would take for the bone to heal after the placement of the implants. Dr. Williams performed the first surgical procedure on M.S. on September 21, 1995. He placed the implants in the lower arch, the mandible, to make sure that M.S. tolerated the procedure well. Dr. Williams placed one double-post implant on the lower left side. This implant was a fixed-head implant. He intended to use the existing anterior teeth and the one posterior tooth as natural abutments for the prosthesis, and he prepared three of the lower anterior teeth to receive the prosthesis. The remaining teeth had been prepared for crowns by another dentist, and, because these teeth had been previously shaped to receive the crowns, Dr. Williams did not alter the shape of these teeth. Finally, Dr. Williams determined that endodontic treatment was necessary for only one of the remaining teeth in M.S.'s lower arch, and he did a root canal on the molar in the right posterior of M.S.'s lower arch. Dr. Williams next saw M.S. on September 25, 1995, when he performed the surgical procedure to place the implants in M.S.'s upper arch. At that time, the tissues on M.S.'s lower arch looked normal after four days of healing, and the sutures were in place. M.S. did exhibit a "postoperative response" around the tooth on which he had performed the root canal, but such a response is not uncommon. On September 25, 1995, Dr. Williams placed six blade implants in M.S.'s upper arch. He placed two double-post implants in the posterior areas of the upper arch and four single-post implants in the anterior area. These implants had screw-on heads, and healing caps were put on after the surgery. The surgical procedure to place the implants in M.S.'s upper arch was routine. Dr. Williams's did not use splints to immobilize the implant heads inserted in the upper arch because he used two- stage implants in which healing caps are used for several months before the actual implant heads are screwed onto the implant. Because of this, the use of splints would have been totally inappropriate. In Dr. Williams's experience, maximum bone integration around blade implants is achieved when there is no stress placed on the implants during the healing period. Dr. Williams next saw M.S. on September 28, 1995, for a post-operative check-up. M.S.'s mouth was healing quite well, in Dr. Williams's opinion. Dr. Williams saw M.S. regularly over the next several months. In Dr. Williams's opinion, she progressed extraordinarily well during the post-operative period, given that she had had extensive surgery. M.S. had swelling, tenderness, and redness, which Dr. Williams considered natural under the circumstances; the tenderness and redness of the gums diminish over time. M.S. had no problems with the implant in her lower arch. She did, however, develop problems with the two single- post implants in the front upper arch. Dr. Williams was concerned about these implants because the bone in the area the implants were placed was very thin. Dr. Williams left these two implants in for about five months in the hope that they would integrate. Because they did not heal properly and were mobile, Dr. Williams removed them. The other implants in the upper arch healed properly. While M.S.'s implants were healing, the prostheses were being fabricated in the technical laboratory in Dr. Williams's office. The base of the prosthesis used with implants is metal, with holes designed to fit snugly over the implant heads to hold the bridge in place. Porcelain crowns are then constructed over the metal base. The prostheses required by M.S. were roundhouse bridges for the entire upper and lower arches; a roundhouse bridge is one solid bridge that extends the entire length of the arch. Construction of roundhouse bridges is very complex because they are quite large. In addition, because of the complexity, quite a few fittings are required to ensure that the prostheses are stable. The lower prosthesis for M.S. was fabricated and fitted first, since the upper implants would take longer to heal than the lower implant. Dr. Williams began fitting M.S.'s lower prosthesis in late October 1995, and M.S. made several visits for fittings of the lower prosthesis between October 23, 1995, and December 18, 1995. In a letter dated January 15, 1996, M.S. expressed her frustration that the lower prosthesis had not been fitted to her satisfaction. She identified the following concerns in the letter and stated her expectation that they would be addressed during her next appointment: Left side remains lower than the right, still lower in the front, and a significant amount in the rear. The rear of two front teeth have porcelain added, the others need to match. There is a ridge of the metal frame near tooth #19 that is wider than the gum line, you can feel it with your finger, imagine how it feels to my tongue. Gaps under both sides in rear need to fit properly, food particles are constantly wedged under the teeth.(not one single "model" shown to me displayed gaps.) M.S. was, nonetheless, pleased with the color and general appearance of the teeth in the prosthesis. During M.S.'s visit to his office on January 22, 1996, Dr. Williams decided to remake the metal case for the lower prosthesis. Fittings were done during office visits on February 12, 1996, and February 23, 1996, after which there is no mention of the lower prosthesis in Dr. Williams's records. Dr. Williams began preparations for M.S.'s upper prosthesis during an office visit April 8, 1996. During that visit, he also removed the two upper anterior single-post implants, which had concerned him because they were not healing properly. During an office visit on April 22, 1996, Dr. Williams tried the metal framework for the upper prosthesis; he was not pleased with the fit and decided to recast the framework. During an office visit on May 16, 1996, the upper prosthesis was fixed in M.S.'s mouth with temporary cement. The following is noted in Dr. Williams's records of an office visit by M.S. on June 3, 1996: Patient feels maxillary anterior interfering with speech pattern. Dr. George told patient she needs to leave space for cleaning and floss. Implants very tender on the upper arch. Patient feels maxillary anterior are not centered. Dr. George said that is the way things fall with no teeth. Dr. Williams decided to make changes in the upper prosthesis, and he arranged an appointment for M.S. on the following day, June 4, 1996, for a fitting of the prosthesis. During the June 4, 1996, office visit, Dr. Williams replaced the upper prosthesis in M.S.'s mouth. It was noted in his office records that patient still feels saliva & air to [sic] much space - still efecting [sic] speech. Dr. Williams made additional modifications to the upper prosthesis during the June 4 visit, and he fixed the prosthesis in M.S.'s mouth with a soft temporary cement. M.S.'s June 4, 1996, office visit was the last visit she made to Dr. Williams. Because she did not return to his office for further fittings, Dr. Williams did not complete the adjustments to M.S.'s prostheses necessary to ensure a proper fit or fix the prostheses in place permanently. If a prosthesis of the type Dr. Williams prepared for M.S.'s upper arch is not permanently placed and is removed from the mouth, the screw-on implant heads can loosen. If the implant heads are not screwed back on properly, there will either be a gap between the implant and the head or the parallelism of the heads will be altered. If either of these things happens, the prosthesis will not fit properly. When she left Dr. Williams's care, M.S.'s implants were not loose, and, in Dr. Williams's opinion, were properly placed into the bone. Dr. Williams was very concerned that he had not been able to complete the fitting of M.S.'s prostheses, including the correction of any malocclusion that might exist. It is always necessary to correct the occlusion when fitting prostheses. Correcting a malocclusion is a simple matter of grinding down the porcelain crowns until the teeth meet properly. On June 6, 1996, M.S. consulted Dr. Loui Franke, a periodontist practicing in Key West, where M.S. resided. In her examination, Dr. Franke noted that M.S. had firm pink tissues on the maxillary arch and mild to moderate inflammation associated with the natural teeth on the mandibular arch. She observed that probing depths "averaged 1mm to 3mm on the mandibular arch and 2mm to 5mm on the maxillary arch." Dr. Franke also noted that, from the radiograph she took on June 6, 1996, there appeared to be bone loss in the two single-post implants in the maxillary arch and that there was an open margin on the crown of the molar in the mandibular arch. Dr. Franke referred M.S. to Dr. Alan Stoler, whose practice is limited to implantology. Dr. Stoler does not do restorative work fitting the prostheses that are attached to the implant heads. Dr. Alan Stoler Dr. Stoler saw M.S. on July 12, 1996, and again on September 27, 1996; he did an extensive examination of M.S. on July 12, 1996. He observed that M.S. was very emotional and unhappy with the treatment she had received from Dr. Williams and complained specifically that the prostheses kept coming loose and that she had difficulty maintaining oral hygiene. Dr. Stoler conducted a clinical examination of M.S., and he took several photographs of M.S.'s upper and lower arches, without the prostheses, which revealed the implant heads and the existing teeth in the lower arch. When he examined M.S., Dr. Stoler noted that the upper prosthesis did not fit and "literally fell out into my hands." The abutment heads screwed into the implants in the upper arch were loose, and two of the heads did not screw down all the way. Dr. Stoler observed that the implant heads in M.S.'s upper arch were not parallel but were tending outward on both the right and left sides of the arch. It appeared to Dr. Stoler that the implant heads for the right side had been screwed into the implants on the left side, and vice versa. Dr. Stoler probed around the implant heads and found that the probing depth was eight to ten millimeters. When Dr. Stoler inserted the upper prosthesis into M.S.'s mouth, he observed that two of the crowns in the upper arch did not fit properly on the implant heads, so that the top of the head was visible and a probe could be inserted between the crown and the implant head. He observed that another crown in the upper prosthesis overlapped the gum tissue. Dr. Stoler consulted the radiographs of M.S.'s mouth taken by Dr. Franke on June 6, 1996, and determined that the back corner of one of the double-post implants was not inserted completely into the bone of the upper arch. Dr. Stoler easily removed the lower prosthesis with his fingers. He observed that the tissue surrounding the six teeth M.S. had remaining in the anterior portion of the lower arch was red and inflamed. He also observed that the teeth had been prepared in a conical shape rather than in a reasonably parallel shape with flat tops. Dr. Stoler questioned whether the root canal in the molar in the posterior of the right lower arch had been completed properly. He referred M.S. to an endodontist, who submitted a report indicating that the root canal in the molar should be retreated and that five of the remaining six teeth should be treated endodontically before any restorative work was done. The endodontist, Dr. Dennis Neilson, did not offer any basis for his recommendations in his report. Dr. Stoler found that the crown in the right posterior of M.S.'s lower arch was significantly higher than the rest of the crowns in the prosthesis, causing malocclusion. Occlusion is the term used to describe the manner in which the teeth in the upper and lower jaws meet when they come together in various positions. Malocclusion refers to the misalignment of the teeth so that the teeth do not come together properly when the jaws are closed. Dr. Stoler also observed that the crown in the prosthesis did not fit the prepared tooth so that there was no retention. As a result, Dr. Stoler expected that there would be recurrent decay, failure, and loss of the whole tooth. Dr. Stoler concluded that M.S. had failing implants and failing prosthetics. He advised M.S. that she had three options. The first option was to leave everything alone. He explained that, if she chose this option, [t]he bone destruction would be rampant. She would loose [sic] most of the bone of her upper jaw and when it did fail in the near future we would have a massive surgical reconstruction of her maxilla to bring her back to some degree of reasonable function and aesthetics. The longer she waited the more bone destruction would go on making the problem worse and worse the longer she waited. 4/ Dr. Stoler's prognosis for M.S. with the option was poor. that The second option Dr. Stoler presented to M.S. was we could go in there and try to save some of the implants by cutting the bad parts out and trying to save what was left. Getting rid of the infection but trying to save as many or all of the implants as possible and then rebuilding her new prosthesis. 5/ Dr. Stoler's prognosis for M.S. with the option was poor to fair. The third option Dr. Stoler presented to M.S. and the option he considered to be the best treatment plan was to remove the failing implants, reconstruct her upper jaw with grafting of bone to rebuild her upper jaw, place new implants in and a new prosthetic reconstruction both of the upper and lower arches. 6/ As part of this third treatment plan, Dr. Stoler also intended to refer M.S. to an endodontist for endodontic therapy on the natural teeth in M.S.'s lower arch. Dr. Stoler's prognosis for M.S. with the option was fair to good. In Dr. Stoler's opinion, "if her [M.S.'s] problem is not corrected now, a total disaster might occur in the near future. 7/ M.S. never received treatment from Dr. Stoler, and, at the time of the hearing, continued to wear Dr. Williams's implants and prosthesis. 8/ Dr. David Beverly Dr. David Beverly is a dentist practicing in North Florida, who testified for the Department as an expert in periodontics, with an emphasis in implants. Dr. Beverly has practiced dentistry for 35 years, and he placed one blade implant in the year prior to the final hearing; 99.9 percent of his practice is devoted to placement of root form implants, which he prefers over blade implants. In his career, Dr. Beverly has placed between 15 and 20 blade implants. Dr. Beverly did not examine M.S. but based his opinions on his review of the Department's investigative report; Dr. Williams's treatment files; copies of radiographs; a letter written to Dr. Williams by M.S.; and the reports of M.S.'s treating physicians, including the report of Dr. Stoler and the photographs Dr. Stoler took of M.S.'s mouth during her office visit on July 12, 1996. Dr. Beverly first reviewed the file regarding M.S.'s complaint in April 1998. Dr. Beverly found that there was no indication in the materials he considered that Dr. Williams used the same pre- operative procedures that Dr. Beverly used in his practice, such as preparing a dental mold or radiographs with BB's affixed to the gum to show the exact placement of the implants. Dr. Beverly agreed with Dr. Stoler's assessment that Dr. Williams "over-prepared" the teeth in M.S.'s lower arch, so that there would be very little retention for the prosthesis. He did not, however, have any criticism of the implants in the mandibular arch. Dr. Beverly concluded that the post-operative radiograph taken by Dr. Williams on September 25, 1995, showed a "big dark area around the blade" inserted in the left upper arch that Dr. Beverly attributed to a lack of bone, leading Dr. Beverly to conclude further that Dr. Williams ground away the bone when he inserted the implant. 9/ This dark area was not, however, identified by Dr. Stoler in his exhaustive examination of the radiographs taken of M.S.'s upper arch. Dr. Beverly also testified that it appeared from the post-operative radiograph taken by Dr. Williams on September 25, 1995, that the two single-post blade implant inserted into M.S.'s right and left anterior upper arch appeared to overlap the double-post blade implant inserted on the right and left sides of the upper arch, although he admitted that the appearance of an overlap could have been the result of a shift in the machine. 10/ Dr. Beverly found that the single-post implant in the left upper arch appeared to have "little, if any, bone support around it," 11/ finding that was not supported by Dr. Stoler's examination and evaluation. Dr. Beverly found nothing of concern in the radiograph of the other single-post implant. 12/ Dr. Beverly testified that the single-post implant in M.S.'s right anterior upper arch appears to penetrate the sinus. Q. How can you tell that from this radiograph? A. Well, I can't, but that's what I said, given the parameters. This is a two dimensional view of a three dimensional situation, but it's overlapping the radiolucent areas of the sinus. It could be in front of it. It could be behind it or it could be in it. 13/ Dr. Beverly is not convinced that blade implants belong in the upper jaw, and he would not have used a blade implant in the maxilla of this patient. He based this conclusion on training he received from Dr. Don Masters in a series of seminars he attended in 1984, before he placed his first implant, and on his experience that "the maxillary bone quality is never strong enough to support the forces of mastication with a thin blade implant." 14/ Dr. Beverly based his opinion that the use of blade implants for M.S. was "questionable" on unspecified "literature that can support a higher failure rate in the maxilla." 15/ In Dr. Beverly's opinion, it is okay for a blade implant to get just slightly mobile because they are able to survive with a fibro-osseous integration as opposed to a root form implant that cannot and must have only osseous integration. . . . A detectable mobility on a blade implant with a healthy gingival cuff, no bleeding, no exudate, no pain, I don't think would be a problem. In fact, I know it's not a problem. Mobility that creates discomfort every time the patient closes their mouth, exudate, pus, if you will, that would be coming from the neck of the implant every time it's pushed upon or probed with a periodontal probe, plastic probe, that's an indication of implant failure. The shear [sic] fact that there is a detectable mobility on a blade implant doesn't spell failure. 16/ According to Dr. Beverly, an implant can be stabilized by splinting, and he noted that, even though the implants were splinted at the time Dr. Williams fixed the prostheses into place, Dr. Williams failed to splint the blade implants when they were first inserted. In Dr. Beverly's opinion, the failure to splint blade implants at the time they are placed "is going to potentially move the implants, so that they never have a chance to totally osseointegrate if there is any mobility in them during the healing period." 17/ Dr. Beverly stated that he would have thought that splints should have been placed immediately to support blade implants in the maxilla, yes. My understanding in talking, in the past, long before this ever came up, in the early implant seminars that I attended that in full arch cases, if one was to choose to do blades, which weren't the treatment of choice anyway, but if one were to choose to do that, that they should be splinted for immediate primary stability. 18/ Dr. Beverly found that tooth number 32, which is the last molar on the lower right arch, appeared to be high, with a mesial tilt. In Dr. Beverly's opinion, this would cause malocclusion and, potentially, lead to temporomandibular joint syndrome; that is, pain in the temporomandibular joint. Dr. Beverly also testified that Dr. Williams used silver points to fill the root cavity when he performed the root canal by Dr. Williams on the molar in M.S.'s posterior lower right arch and that the placement of the silver points was not normal. Although Dr. Beverly often examines radiographs showing root canals, he has not practiced endodontics since 1975. Dr. Beverly concluded from looking at the radiographs taken by Dr. Franke on June 6, 1996, that the prostheses looked "terribly unhygienic" because there was no evidence of embrasure spaces, which are the spaces between the teeth, that would allow M.S. to pass floss between her teeth. Dr. Beverly concluded on the basis of the radiographs taken by Dr. Franke on June 6, 1996, that the double-post blade implant in M.S.'s right posterior upper arch was not completely submerged in the bone, so that bone was not covering the neck of the second head of the implant. Dr. Beverly found that, based on the radiographs, the prostheses Dr. Williams made for M.S. were "very unaesthetic and unhygienic," and he concluded that the prosthetic design was not adequate "from that standpoint. 19/ Dr. Beverly stated that, in his opinion, Dr. Williams practiced dentistry below the standard of care. He also testified that Dr. Williams's examination and protocol in M.S.'s case were good and that the implants were inserted properly, as a matter of surgical technique. Dr. Charles M. Weiss Dr. Charles M. Weiss, a dentist in general practice with a focus on implantology and restoration of implant cases, examined M.S. on February 27, 1998, on behalf of Dr. Williams. Between 30 and 40 percent of Dr. Weiss's practice is devoted to inserting implants and doing the corresponding restorative work of fabricating and fitting the prostheses which are affixed to the implants. Dr. Weiss observed that M.S. was "a well-groomed, friendly, loquacious, lovely, intelligent, active young woman. She was at all times alert, without negative attitude and fully responsive to the requirements of the examination." 20/ Dr. Weiss examined M.S. with regard to her appearance, her speech, M.S.'s comfort level with the prostheses, and her ability to chew and enjoy food. He also examined her to determine if she had any infection. Dr. Weiss observed that M.S.'s features were symmetrical and that she had a pleasant appearance and appealing smile. Her teeth appeared very realistic, and her smile line was compatible with her lips. Dr. Weiss observed that M.S.'s speech patterns were excellent, and the vowels and consonants were clear. He did not notice any lisp, slurring, or salivary spray. M.S. talked at a normal and rapid rate without conscious effort. M.S. admitted to Dr. Weiss that she had had a great deal of difficulty with speech initially and that it had taken her a long time to adjust her speech. This is to be expected when a patient goes from a removable full upper denture, where the palate is completely covered with plastic, to a fixed roundhouse bridge with a normal open palate. Dr. Weiss examined M.S.'s comfort level with her implants and prostheses by observing her appearance, by using a depth probe to determine if there were any pockets in the gums, and by digitally manipulating the prostheses. His examination revealed no abnormality in the temporomandibular joint, and M.S. did not exhibit or report any pain during Dr. Weiss's manipulation of her jaw. He did not observe any malocclusion. Dr. Weiss's examination revealed no abnormality in the molar in the posterior of M.S.'s right lower arch, on which Dr. Williams did a root canal. He probed the gum around the tooth and found that the pocket was within normal range; there was no bleeding, swelling, or inflammation around the tooth. He pressed hard on the tooth and did not observe any movement or any evidence that M.S. experienced pain. He also inserted a probe into the gum alongside the root of the tooth and found no tenderness or any evidence that M.S. experienced pain. Dr. Weiss took radiographs of the three mandibular incisors that Dr. Williams had prepared for the prosthesis and determined that there was no problem with the teeth. Had the teeth needed root canal therapy at the time the implants were inserted, Dr. Weiss would have expected to see tenderness or mobility two-and-one-half years after the root canal was performed. Dr. Weiss also examined M.S.'s maxillary implants. M.S. exhibited no pain or discomfort when she bit down and clenched her teeth or when she moved her teeth forward and side- to-side or when she ground her teeth together. The maxillary fixed bridge was completely immobile and functioned as it was intended to function. M.S. told Dr. Weiss that, shortly before he examined her, the prosthesis had been removed by another dentist, who had manipulated the implants themselves and found that there was movement. Dr. Weiss accepted the findings of the other dentist that the individual implants moved. He agreed with Dr. Beverly that there was no problem with the implants even though they had some mobility when manipulated. The implants inserted by Dr. Williams were not intended to be rigid to succeed. They were fibro-osseointegrated; that is, they were integrated in the bone in the same way that natural teeth are. Some movement of the implants is to be expected, although the range of movement decreases over time. The important thing, in Dr. Weiss's opinion, was that the prosthesis itself was immobile and functioned as it was intended to do. Dr. Weiss observed that M.S.'s mouth was very clean and hygienic. The gingiva was pink, and there was no bleeding or tenderness to pressure or probing. He found no infection, purulence, or inflammation anywhere in M.S.'s oral cavity. Finally, M.S. told Dr. Weiss that she ate a well-rounded diet in comfort. In Dr. Weiss's opinion, the type of implant used by Dr. Williams was appropriate, although he could have made another choice. Although there is a slightly higher failure rate for blade implants inserted in the maxillary arch than for blade implants inserted into the mandibular arch or for root form implants inserted in the maxillary arch, the use of blade implants in the maxillary arch is accepted by the American Association of Dentistry. Dr. Weiss often uses blade implants successfully in the maxillary arch. Dr. Weiss's clinical examination and study of the radiographs he took that day revealed no infection, no abnormal bone loss, no inflammation, and no bleeding; M.S. had normal peri-implant ligaments. He considered this an ideal result. In his opinion, Dr. Williams's treatment of M.S. was within the acceptable standard of care. Dr. Beverly received a copy of Dr. Weiss's report and of the transcript of his deposition in early September 1998. He reviewed these materials and found no reason to change his opinion that Dr. Williams practiced dentistry "below the standard of care." Summary The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Williams fell below the minimum standards of care on the ground that he "[i]mproperly selected the type of implant to use on M.S." The only testimony to this effect was that of Dr. Beverly, who stated that, based on the training he received in 1984 and on his own experience, he was not convinced that blade implants should be used in the upper jaw because the maxillary bone is not as dense as the mandibular bone. Dr. Beverly's experience with blade implants is very limited because virtually 100 percent of the implants he inserts are root form implants. Dr. Stoler did not mention the choice of blade implants in his testimony, and Dr. Weiss agreed with Dr. Williams that blade implants, while not the only choice, were a good choice for M.S. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that "[b]lade implants in maxilla have a higher failure rate than root form implants." This evidence is not, however, sufficient to establish that Dr. Williams fell below the minimum standards of care by choosing to insert blade implants in M.S.'s maxillary arch. Indeed, the uncontradicted testimony of Dr. Weiss establishes that the use of blade implants is approved by the American Dental Association, and Dr. Weiss routinely and successfully inserts blade implants in the maxilla. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Williams fell below the minimum standards of care on the ground that he "[i]mproperly inserted the implants such that they became loose and were above the level of their proper location." In fact, although Dr. Weiss did not challenge the assertion by M.S. that another dentist had determined that the implants moved, the Department presented no evidence to establish that the implants inserted in M.S.'s mouth were "loose." In addition, the testimony of Dr. Weiss and Dr. Beverly established that mobility in blade implants is not a problem as long as the prosthesis is immobile and functional when it was properly affixed to the implants. There was no evidence presented by the Department to establish that the implants were "above the level of their proper location." The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Williams fell below the minimum standards of care on the ground that he "[f]ailed to use splints for the stability of the implants." Dr. Beverly's opinion that Dr. Williams should have splinted the implants immediately after they were surgically inserted into M.S.'s mouth is based on the information Dr. Beverly received "in the early implant seminars" that he attended. There is no evidence to establish that Dr. Beverly was aware that the implants used by Dr. Williams were two-stage implants, in which healing caps were used during the first months after surgery to allow the implants to heal and be integrated into the bone without stress being placed on the implants themselves. In addition, as noted above, there was insufficient evidence to establish the implants were "loose." The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Williams fell below the minimum standards of care on the grounds that "[r]oot canal treatment was inadequate and incomplete"; that he "[f]ailed to advise the patient that additional root canals should be performed before the implant surgery"; and that "[s]ilver point root canals are not the treatment of choice." Dr. Stoler does not practice endodontics, but he was concerned that the root canal done by Dr. Williams in the molar in the posterior right lower arch had not been done properly, so he referred M.S. to an endodontist. The only evidence submitted by the Department from a practicing endodontist consists of nothing more than Dr. Neilson's unsubstantiated conclusion that all but one of the natural teeth in M.S.'s lower arch need to be treated endodontically. Dr. Beverly, who has not practiced endodontics since 1975, testified only that the silver points in the root cavity were "squiggly" and not straight or gently curved as in a normal root canal. Dr. Weiss observed that M.S. had no problem with the teeth in the lower arch when he examined her in September 1998, three years after the root canal was performed by Dr. Williams, and Dr. Weiss specifically found that the molar in question was totally asymptomatic when he examined M.S. There was no evidence presented to establish that the use of silver points in root canals is improper; rather, Dr. Weiss uncontradicted testimony establishes that the use of silver points is approved by the American Dental Association. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Williams fell below the minimum standards of care on the ground that "[t]he prosthetic design was substandard." First, this allegation is extraordinarily vague, and there was no evidence describing a "standard" prosthetic design and comparing the design of the prostheses Dr. Williams prepared for M.S. with a prosthesis of the "standard" design. To the extent that this allegation refers to the fitting anomalies identified by Dr. Stoler, the evidence establishes that M.S. left Dr. Williams's care at a time when he had just begun the process of fitting and adjusting the prosthesis in the upper arch. Accordingly, Dr. Williams never had the opportunity to finish the prosthesis and affix it permanently in M.S.'s mouth. Additionally, because the prosthesis was affixed with only temporary cement, it probably loosened and could have been removed subsequent to M.S.'s last visit to Dr. Williams; the screw-on heads for the implant could well have loosened or the heads could have been removed entirely and then screwed on again, causing the prosthesis to fit poorly and expose the implant heads. Nonetheless, in September 1998, Dr. Weiss observed that the prostheses in M.S.'s mouth fit well, with no gaps, and Dr. Beverly testified that he did not find any problem with the prosthesis Dr. Williams prepared for M.S.'s lower arch. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Williams fell below the minimum standards of care on the ground that "[t]he prosthetic appliances are not aesthetic, not hygenic [sic] and cause temporomandibular joint (TMJ) pain." First, there is no evidence that M.S. ever experienced temporomandibular joint pain; Dr. Stoler testified only that there was the potential for such pain if the malocclusion he identified in the posterior lower right arch were not corrected. In fact, in September 1998, Dr. Weiss concluded on the basis of extensive physical manipulation of M.S.'s jaw that she did not experience temporomandibular joint pain. Likewise, in September 1998, Dr. Weiss observed that M.S.'s mouth was very clean and that the gums were normal, with no sign of bleeding or tenderness. Dr. Beverly's conclusion that the prostheses were "unaesthetic" was based solely on his review of the radiographs taken by Dr. Franke on June 6, 1996, because he did not examine M.S. On the other hand, Dr. Weiss found from his examination of M.S. in September 1998 that the prostheses were very attractive and natural-looking and that M.S.'s features were symmetrical. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Williams fell below the minimum standards of care on the ground that he "[f]ailed to correct a malocclusion." Dr. Stoler observed a malocclusion caused by the elevation of the crown on the molar in the posterior lower arch of the prosthesis. Because Dr. Williams was not given the opportunity to complete fitting M.S.'s prostheses, it cannot be inferred that he would have failed to correct the malocclusion had he completed the fitting and adjustment of M.S.'s prostheses. In addition, Dr. Weiss did not notice any malocclusion during his examination of M.S. in September 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order dismissing the Administrative Complaint against Dr. George L. Williams. DONE AND ENTERED this 30th day of June, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2000.
The Issue This is a license discipline case in which the Respondent has been charged in a Corrected Administrative Complaint with a violation of Section 466.028(1)(m), Florida Statutes.
Findings Of Fact At all times material to this proceeding, the Respondent, Dr. Merle N. Jacobs, has been licensed to practice dentistry in the State of Florida. He currently holds license number DN 0005940. During the period from January 22, 1993, through March 27, 1995, T. C. was a patient of the Respondent. During that period of time, the Respondent performed various dental services for T. C., including the making and fitting of a partial denture. The Respondent prepared and kept dental records and medical history records of his care of patient T. C. The Respondent's records of such care are sufficient to comply with all relevant statutory requirements. The Respondent's records of such care do not include any notations specifically identified or captioned as a treatment plan. The records do, however, include marginal notes of the course of treatment the Respondent intended to follow in his care of patient T. C. Those marginal notes describe the treatment the Respondent planned to provide to patient T. C.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998.
The Issue The issues in this case are whether Respondent, a dentist, failed to maintain adequate records regarding his treatment of patient R.S. and/or provided R.S. dental care that fell below minimum standards of performance, as Petitioner alleges. If Respondent committed any of these offenses, it will be necessary to determine an appropriate penalty.
Findings Of Fact Introduction At all times relevant to this case, Respondent Joseph Gaeta, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Gaeta. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Gaeta committed two such offenses. In Count I of the Complaint, the Department charged Dr. Gaeta with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named R.S., whom Dr. Gaeta saw six times over a five-month period from November 15, 2002, through April 11, 2006. In Count II, Dr. Gaeta was charged with incompetence or negligence——again vis-à-vis R.S.——allegedly by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, an offense under section 466.028(1)(x). The Material Historical Facts The events giving rise to this case began on November 15, 2005, when R.S., a retired septuagenarian who spent winters in Florida but considered Michigan——where he resided the rest of the year——to be his home, arrived at Dr. Gaeta's office with an acute problem, namely a loose tooth. The tooth——#24, an incisor located in the lower jaw, center-left——had recently been knocked loose when R.S. bit into a cashew. Dr. Gaeta's office had scheduled R.S. for an immediate visit when he had called for an appointment, advising that they would "work [him] in." Upon being seen, R.S. informed Dr. Gaeta that he would be leaving in a couple of days for a cruise, and that, consequently, he wanted the bare minimum amount of dental treatment. Dr. Gaeta performed a comprehensive examination of R.S.'s mouth and took X-rays, including periapical X-rays of front tooth #9 (upper jaw, center-left) and tooth #24 . The examination revealed multiple problems besides the loose tooth, including lingual and buccal decay, bone loss, periodontal disease, and a loose amalgam filling in tooth #29 (lower right bicuspid), which filling popped out when probed. These issues were recorded in R.S.'s dental record. Dr. Gaeta prepared a treatment plan in accordance with R.S.'s desire to have as little dental work done as possible. Dr. Gaeta proposed to extract tooth #24, which was noted to have class III mobility (meaning it was quite loose as a result of bone loss caused by periodontal disease), and, in place of the absent tooth, substitute an artificial tooth known as a pontic, which would be supported by a five-unit bridge using the adjacent teeth (##22-23 and ##25-26) as abutment teeth. He proposed to place a crown on tooth #9 due to lingual decay, and another on tooth #29, from which the amalgam filling had fallen out. This treatment plan was documented in R.S.'s chart. Dr. Gaeta informed R.S. of his diagnoses, explained the treatment options, and obtained verbal consent to proceed with the prescribed course of treatment (described above). Dr. Gaeta noted in R.S.'s dental record that he "gave pt [patient] tx [treatment] plan," but did not otherwise memorialize the substance of their discussion, nor did he obtain written consent to treatment from R.S. After agreeing on a course of treatment, R.S. paid in advance for the procedures he had orally authorized Dr. Gaeta to perform. Thereafter, an anesthetic drug known by its brand name, Septocaine®, was injected to numb R.S.'s mouth, and Dr. Gaeta pulled tooth #24. He also "prepped" tooth #9, tooth #24, and the abutment teeth (##22-23 and ##25-26) and seated temporary crowns on them. Finally, Dr. Gaeta installed a temporary bridge, which would remain in R.S.'s mouth until the arrival and placement of a custom-made fixture from a dental laboratory. All of this dental work (including the use of the anesthetic), which was performed on November 15, 2005, was noted in R.S.'s chart. The evidence is in conflict as to whether Dr. Gaeta gave R.S. "post-operative" instructions following the provision of any dental treatments, including but not limited to the procedures performed on November 15, 2005. Dr. Gaeta testified that he did provide such instructions, as necessary, but did not note having done so in R.S.'s chart (which is undisputed) because in his opinion the recordkeeping laws do not require dentists to document the occurrence or substance of such routine dentist-patient communications (a legal point with which the Department disagrees). R.S. testified (via deposition) that Dr. Gaeta never provided any instructions. Neither witness is more believable than the other on this issue. As a result, the undersigned is unable to determine without hesitancy that Dr. Gaeta failed to provide post-operative instructions, as the Department alleged. The evidence offered in support of this allegation, in sum, is legally insufficient because it is not clear and convincing. R.S. next saw Dr. Gaeta on January 3, 2006. This appointment was for the purpose of making final impressions for the crowns, but R.S. presented with a new problem, which was that tooth #9 was painful. A panoramic X-ray was taken and the fact noted in R.S.'s record. Based on that X-ray plus the previous pariapical X-ray of tooth #9, which radiographs showed significant decay and a large filling in the tooth, together with the patient's complaint that the tooth was sensitive (a symptom noted in the chart), Dr. Gaeta determined that tooth #9 needed root canal therapy and documented his conclusion in the chart. Dr. Gaeta performed a root canal on tooth #9. The Department has alleged that Dr. Gaeta failed to measure the root canal length using either an X-ray or, alternatively, an instrument called an apex locator. Dr. Gaeta testified credibly that he used an apex locator to determine that the canal length was 15 millimeters. This measurement is noted in R.S.'s record, and Dr. Gaeta's testimony regarding the use of an apex locator is credited. The Department further alleged that Dr. Gaeta failed to take a post-operative X-ray to determine whether the root canal had been completely filled. The record, however, includes such an X-ray. Finally, the Department alleged that Dr. Gaeta failed to use a rubber dam when performing the root canal procedure on tooth #9. But based on Dr. Gaeta's credible testimony, the undersigned finds that Dr. Gaeta did, in fact, use a rubber dam. Dr. Gaeta did not note in R.S.'s record the use of an apex locator or rubber dam; he denies having an obligation to document the use of common dental implements in a patient's chart. Dr. Gaeta gave R.S. Septocaine® to produce local anesthesia during the root canal procedure. He did not note this fact, or the strength and dosage of the anesthetic drug administered, in R.S.'s chart. Dr. Gaeta maintains that there is no legal requirement to record such information in the patient's dental record. R.S. saw Dr. Gaeta four more times, on February 7, March 27, March 31, and April 11, 2006. Over the course of these visits, excluding the final one in April, Dr. Gaeta placed permanent crowns on tooth #9 and tooth #29 and completed the dental work required to install the permanent bridge spanning tooth #22 and tooth #26. The details of these visits are largely irrelevant, except as set forth below. During the visit on April 11, 2006, Dr. Gaeta learned that R.S.'s tooth #29, which had been crowned earlier that year, had broken near the gum line. The Department did not allege that Dr. Gaeta's treatment of tooth #29 caused the tooth to fracture, but rather charged that Dr. Gaeta: (a) placed the crown without first determining whether the tooth was strong enough to support it; and (b) failed to determine, in April 2006, why the tooth had broken. The Department failed to prove these allegations by clear and convincing evidence, as explained below. Regarding the first of these allegations, it must be observed, initially, that Dr. Gaeta is charged with failing to determine whether tooth #29 could support a crown, not with making an improper determination as measured against the standard of care. Consequently, unless the evidence shows clearly and convincingly that Dr. Gaeta placed the crown despite having not made up his mind one way or the other about the strength of tooth #29, Dr. Gaeta must be found not guilty. Indeed, strange as it sounds, Dr. Gaeta would be not guilty even if the evidence showed that he determined tooth #29 was not strong enough to support a crown and proceeded to place one anyway, for the charge, again, is failing to make a determination, not making a mistaken determination. That said, it is undisputed that the only reasonable alternative to placing a crown on tooth #29 was extraction. Contrary to the Department's allegation, the evidence suggests that Dr. Gaeta did, in fact, determine that tooth #29 might be saved with a crown——a course of treatment that would spare R.S. the loss of yet another tooth. Without more than is present in the instant record, the mere fact that tooth #29 later broke is insufficient to prove, clearly and convincingly, that Dr. Gaeta's judgment fell below the standard of care, much less that he gave little or no thought to the question of whether the tooth could support a crown, as charged. To be sure, the Department's expert witness, Dr. Spiro, testified that, in his opinion, tooth #29 should have been pulled because, he "believe[s]," the "crown to root ratio" was too high. Putting aside that Dr. Gaeta was not actually charged with violating the standard of care by crowning a tooth that could not support a crown, Dr. Spiro did not give an opinion——based on generally prevailing peer performance——as to what an acceptable crown-to-root ratio would be, nor did he (or anyone else) testify about what the crown-to-root ratio of R.S.'s tooth #29 actually was, making it impossible for the undersigned to determine independently whether the latter ratio was too high relative to the standard of care. Thus, Dr. Spiro's belief that Dr. Gaeta violated the standard of care in placing a crown on tooth #29 was an unpersuasive "net opinion" that was, moreover, plainly personal in nature as opposed to being evidently grounded on an objective standard deduced from knowledge of the prevailing practices of dentists as a group. For these reasons, Dr. Spiro's testimony in this regard is not accepted as clear and convincing evidence in support of the allegation that Dr. Gaeta failed to determine whether tooth #29 could support a crown. As for the allegation that Dr. Gaeta failed to determine why tooth #29 broke, the evidence shows otherwise. It is noted in R.S.'s chart that during the visit on April 11, 2006, Dr. Gaeta explained to R.S. that he (R.S.) was "placing extreme force" on tooth #29, which was the patient's "only posterior tooth on [the] lower right" jaw. Even assuming for argument's sake, therefore, that the standard of care required Dr. Gaeta to make a determination as to why the tooth had broken, the evidence fails to prove that he did not do so. Further, the Department neither alleged nor proved that Dr. Gaeta erred, or otherwise violated the standard of care, in determining that tooth #29 had broken apart because, being R.S.'s only lower right rear tooth, it was exposed to extreme force when R.S. chewed his food. This particular allegation, in sum, was not proved by clear and convincing evidence. The Charges The charges against Dr. Gaeta are set forth in the Complaint under two counts. In Count I, the Department accused Dr. Gaeta of failing to keep adequate dental records, an offense disciplinable pursuant to section 466.028(1)(m). The Department alleged that, in the course of treating R.S., Dr. Gaeta violated the recordkeeping requirements in 13 separate instances, which are identified in paragraph 27, subparagraphs a) through m) of the Complaint. In Count II, the Department charged Dr. Gaeta with dental malpractice, which is punishable under section 466.028(1)(x). Fifteen separate instances of alleged negligence in the treatment of R.S. are set forth in paragraph 31, subparagraphs a) through o). The allegations in paragraphs 27 and 31 are largely parallel to one another, so that, when aligned side-by-side, they can be examined in logical pairs. Generally speaking, the Department's theory in relation to each allegation-pair can be expressed as follows: Where the circumstances required that the dental act "X" be done for R.S. to meet the minimum standards of performance as measured against generally prevailing peer performance, Dr. Gaeta failed to do X, thereby violating the standard of care. Dr. Gaeta also failed to record doing X in the patient's record, thereby violating the recordkeeping requirements. The parallel propositions comprising each allegation- pair are mutually exclusive. For example, if Dr. Gaeta did not, in fact, do X, then he might be found to have violated the standard of care, if the Department were successful in proving, additionally, that, under the circumstances, X was required to be done to meet the minimum standards of performance. If Dr. Gaeta did not do X, however, he obviously could not be disciplined for not recording in R.S.'s chart that he actually performed X.2 (If a dentist were to write in the patient's chart that he performed X when in fact he had not performed X, he would be making a false record; that would be a recordkeeping violation, but it is not the sort of misconduct with which the Department has charged Dr. Gaeta.) On the other hand, if Dr. Gaeta in fact did X and failed to note in R.S.'s chart having done X, then——if the law required Dr. Gaeta to document the performance of X——he would be guilty of a recordkeeping violation. But if Dr. Gaeta performed X, then (with one exception) he could not simultaneously be found guilty, here, of a standard-of-care violation, even if he performed X negligently. This is because nearly all of the standard-of-care allegations against Dr. Gaeta involve omissions, i.e., alleged failures to act, which means that the Department's burden was to prove that Dr. Gaeta did not do X when the circumstances required that X be performed. Such a violation of the standard of care (namely, not doing X when X should have been done) is quite different from performing X negligently; the latter would be a disciplinable offense, but (with one exception) it is not the type of wrongdoing with which the Department has charged Dr. Gaeta. The specific charges against Dr. Gaeta are reproduced in the table below, which places the corresponding allegation- pairs side-by-side in separate rows. The standard-of-care violations set forth in Count II are located in column A, while the recordkeeping violations charged in Count I are listed in column B. For ease of presentation, the undersigned has reordered the allegations to some extent. Further, in several instances a subparagraph has been divided into two parts. For example, paragraph 31 k) of the Complaint is shown in the table as paragraphs 31 k.1) and 31 k.2). An empty cell——e.g., column B, row 10 (hereafter, "B10")——denotes the absence of a corresponding allegation. Text which has been stricken through, as in B12, reflects allegations that the Department either withdrew at hearing or conceded in its Proposed Recommended Order. These allegations were not proved and will not be discussed further in this Recommended Order. The Department charges Dr. Gaeta as follows: A Count II, ¶ 31: Alleged Standard-of-Care Violations B Count I, ¶ 27: Alleged Recordkeeping Violations 1 a) [F]ail[ing] to provide a comprehensive diagnosis with adequate radiographs, study models or impressions, periodontal depth probe charting, tooth charting and a comprehensive treatment plan prior to initiating root canal treatment and crown/bridge placement . . . . a.1) [F]ailing to record an overall comprehensive written diagnosis, with periodontal depth probe and tooth charting, failing to document a written comprehensive treatment plan . . . . 2 k.1) [F]ail[ing] to provide adequate diagnosis, including symptoms, with an accompanying treatment plan for Patient R.S. prior to initiating root canal i.1) [F]ailing to record an adequate diagnosis, symptoms, and accompanying treatment plan for Patient R.S. prior to initiating root canal treatment of tooth number 9 . . . . treatment of tooth number 9 . . . . 3 k.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. i.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. 4 c) [F]ail]ing] to fully determine through diagnostic exam results whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five- unit bridge was needed[.] a.2) [F]ailing to document whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five-unit bridge was needed[.] 5 e) [F]ail[ing] to formulate and/or present treatment options with explanation of risks/benefits to, and fail[ing] to obtain informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] c) [F]ailing to document presenting treatment options with explanation of risks/benefits to, or obtaining informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] 6 f) [F]ail[ing] to fully determine through diagnostic exam results where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and fail[ing] to provide adequate diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . d) [F]ailing to notate where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and failing to provide a written diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . 7 g) [F]ail[ing] to provide post-op instructions or discussions for Patient R.S. following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] e) [F]ailing to record in the treatment notes that post-op instructions or discussions for Patient R.S. were provided appropriately following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] 8 l) [F]ailing to take a diagnostic working length radiograph, and/or use of an apex locator, and/or take a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] j) [F]ailing to record a diagnostic working length radiograph, and/or use of an apex locator, and/or tak[e] a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] 9 m) [F]ail[ing] to use a rubber dam was used during the January 3, 2006, root k) [F]ailing to record that a rubber dam was used in the January 3, 2006, root canal canal procedure, and/or indicate why it was not employed[.] procedure, and if it was not, why it was not employed[.] 10 b) [F]ail[ing] to either fully diagnose and/or properly treat the periodontal condition [that was] noted in Patient R.S.'s mouth during the initial exam November 15, 2005, before embarking upon complex restorative treatments including root canal and crown and bridge restorations[.] 11 n.1) [S]eat[ing] a crown on tooth number 29 in early 2006, which broke off with the tooth at the gum line[,] without first determining if tooth number 29 was strong enough to support a crown . . . . 12 n.2) [F]ail[ing] to diagnose and determine why the crown seated a few months earlier at tooth number 29 broke off with the tooth[.] m.1) [F]ailing to record in treatment notes for Patient R.S.'s April 6, 2006, visit, why the crown seated a few months earlier at tooth number 29 broke off with the tooth at the gum line . . . . 13 l) [F]ailing to record the types and amounts of anesthetic used during the January 3, 2006, root canal procedure[.] 14 i) [F]ail[ing] to take a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . g) [F]ailing to take and/or interpret in the treatment notes a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . 15 j) [F]ail[ing] to perform any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] h) [F]ailing to record the results of any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] 16 d) [F]ail[ing] to fully determine through diagnostic exam results why an extraction of tooth number 24 was required and why a five- unit bridge was being fabricated instead of a three-unit bridge or some b) [F]ailing to clarify why an extraction of tooth number 24 was required and why a five-unit bridge was being fabricated instead of a three-unit bridge or some other restorative option in the treatment notes [dated] November 15, 2005, which other restorative option [on] November 15, 2005, during which Respondent extracted tooth number 24 and then prepared for a five-unit bridge from tooth sites 22-26 to replace the extracted tooth[.] indicate that Respondent extracted tooth number 24 and then prepared for a five unit bridge from tooth sites 22-26 to replace the extracted tooth[.] 17 h) [F]ail[ing] to inform f) [F]ailing to note informing Patient R.S. that temporary Patient R.S. that temporary or or permanent parathesia is a permanent parathesia is a known known risk of extractions risk of extractions when the when the patient presented on patient presented on December 9, December 9, 2005, complaining 2005, complaining on numbness in on numbness in the lingual the lingual area proximate to area proximate to the the extraction/bridge prep site. extraction/bridge prep site. Respondent further failed to re- Respondent further failed to check the parathesia and note re-check the parathesia and progress at subsequent note progress at subsequent appointments, and/or fail[ed] to appointments, and/or failed advise Patient R.S. of possible to advise Patient R.S. of referral to an oral surgeon if possible referral to an oral surgeon if needed[.] needed[.] 18 o) [F]ail[ing] to provide m.2) [F]ailing to record adequate diagnostic results diagnostic results to justify a to justify a proposed plan to proposed plan to seat crowns at seat crowns at tooth numbers tooth numbers 27 and 28, along 27 and 28, along with placing with placing implants at tooth implants at tooth numbers 29 numbers 29 and 30. and 30, after the crown seated on tooth number 29 broke off with the tooth at the gum line. The Expert Testimony The Department presented the testimony of Victor Spiro, D.D.S., on issues relating to the standard of care. Dr. Spiro was shown to have formulated his opinions without the benefit of some potentially relevant information available to the Department, e.g., the deposition of R.S., which he had not read, and some of the X-rays Dr Gaeta had taken. In addition, he misunderstood certain facts, such as the length of the dentist-patient relationship between Dr. Gaeta and R.S., which was about six months, not many years as Dr. Spiro believed. These considerations were marginally damaging to Dr. Spiro's credibility, but not as devastating as Dr. Gaeta has argued. The real problems with Dr. Spiro's testimony go to the heart of what an expert opinion must contain to be credited as evidence of a standard-of-care violation. To be convincing, the opinion needs to establish clearly the existence of a standard of care in the profession and explain how such standard applies to the facts of the case.3 As the statute plainly specifies, the standard of care must be a minimum standard of performance, not the optimal standard or best practice.4 The standard, moreover, must be based on "generally prevailing peer performance", that is, be "recognized as necessary and customarily followed in the community."5 It is therefore not sufficient for the standard-of- care expert (who likely has a keen interest in seeing his views "recognized as being 'correct' and 'justifiable'") merely to declare his personal opinions or practices and invite the fact- finder, either implicitly or explicitly, to extrapolate——from one practitioner's ideas about how the profession should perform——a generally applicable, minimum standard for all practitioners.6 Instead, to be credited, an expert's opinion on the standard of care must result from a process of deductive reasoning, based demonstrably upon an informed understanding7 of what the dental community, as a whole, generally does in a given situation.8 Here, Dr. Spiro did not convincingly articulate minimum standards of performance against which the undersigned, as fact-finder, can independently measure Dr. Gaeta's conduct. In addition, Dr. Spiro did not establish that his criticisms of Dr. Gaeta were based on a comparison of Dr. Gaeta's conduct to that which generally prevails in the relevant peer group. Indeed, the undersigned is not persuaded, much less convinced, that Dr. Spiro is familiar with the generally prevailing peer practices, if any, relevant to the charges in this case. In sum, a thorough review of Dr. Spiro's testimony leaves the undersigned with the distinct impression that Dr. Gaeta failed to measure up to Dr. Spiro's standards of performance. This is not a factually sufficient basis for the imposition of discipline. Because the Department failed to meet its burden of proof with regard to establishing the applicable minimum standards of care, it is unnecessary to make findings based on the testimony of Dr. Fish, whose opinions Dr. Gaeta offered to rebut those of Dr. Spiro. Ultimate Factual Determinations The evidence presented with regard to A1, A2, and A3 does not clearly and convincingly demonstrate that Dr. Gaeta "failed" to provide a "comprehensive diagnosis" inasmuch as the existence of a standard of care defining and requiring such a diagnosis was not proved and, in any event, Dr. Gaeta did diagnose and treat multiple problems in R.S.'s mouth. The evidence does not prove that Dr. Gaeta improperly diagnosed any of the conditions he treated. The evidence fails to establish convincingly any minimum standards of performance requiring the diagnostic tests that Dr. Gaeta allegedly failed to perform. There is, on the other hand, evidence that Dr. Gaeta performed diagnostic work on R.S., including periodontal depth probing. The evidence fails to establish convincingly the existence of a standard of care requiring (or defining) the provision of a "comprehensive treatment plan." There is, however, evidence that Dr. Gaeta developed a treatment plan for R.S., consistent with the patient's desires, which was implemented. Dr. Gaeta is not guilty of the charges reproduced in A1, A2, and A3 of the table above. The evidence fails to prove clearly and convincingly that Dr. Gaeta failed to record or include in R.S.'s chart any of the diagnoses he made, the results of examinations performed, or the X-rays taken. A dispute exists between the parties regarding whether the Department possessed all of the records comprising R.S.'s chart. The evidence suggests, as Dr. Gaeta maintains, that some materials might be missing. Given the many years that elapsed between the time Dr. Gaeta treated R.S. and the commencement of this proceeding, during which period Dr. Gaeta sold the dental practice in which R.S. had been seen and, as a result, surrendered exclusive control over R.S.'s chart, it is easy to accept that a few documents or X-rays have gotten lost or been misplaced. Dr. Gaeta was not charged, however, with failing to preserve dental records he had made, but rather with failing to enter certain required information upon R.S.'s chart.9 Therefore, he is not subject to discipline in this case for losing materials originally contained in R.S.'s chart.10 In sum, Dr. Gaeta is not guilty of the charges set forth in B1, B2, and B3 in the table above. Contrary to the allegations in A4, the evidence shows that Dr. Gaeta did, in fact, make a determination based on diagnostic examination results, including X-rays, that a five- unit bridge spanning tooth #22 and tooth #26 was appropriate. The evidence thus fails to prove clearly and convincingly that Dr. Gaeta gave little or no thought to the propriety of a five- unit bridge. He is not guilty of violating the standard of care as alleged in A4, even if his determination were wrong (which the evidence does not clearly establish either). Dr. Gaeta documented in R.S.'s chart the plan to install a five-unit bridge as a means of replacing tooth #24 with a false tooth. In doing so Dr. Gaeta clearly manifested his determination that the abutment teeth were appropriate. Although he did not write a detailed explanation of why a five- unit bridge was needed, Dr. Gaeta did prepare a dental record that justifies this course of treatment; thus he is not guilty of the recordkeeping violation alleged in B4. With regard to A5, the evidence is insufficient to prove clearly and convincingly that Dr. Gaeta failed to present treatment options, explain risks and benefits, and obtain informed consent before treating R.S., for there is credible evidence suggesting that he did those things. For that reason alone, Dr. Gaeta is not guilty of this alleged standard-of-care violation. Further, the failure to obtain informed consent is a disciplinable offense under section 466.028(1)(o) and thus is not punishable under section 466.028(1)(x), which defines the separate offense (dental malpractice) that Dr. Gaeta has been accused of committing.11 For this additional and independent reason, Dr. Gaeta cannot be found guilty of the standard-of-care violation alleged in A5. As just mentioned, providing dental services without first obtaining the patient's informed consent is an offense punishable under section 466.028(1)(o). Dr. Gaeta was not charged pursuant to that statute. Moreover, presenting treatment options, explaining risks and benefits, and obtaining informed consent do not justify the course of treatment; doing them does not transform an improper diagnosis into a correct one, nor does failing to do them deprive dentally necessary treatment of justification. Dr. Gaeta is not guilty of the recordkeeping violation as charged in B5. Contrary to the allegations in A6, the evidence shows that Dr. Gaeta provided a diagnosis for tooth #29 which supported his determination that the tooth might be saved with a crown. The evidence is undisputed that replacing the filling was not a reasonable option; the only alternative treatment was extraction. The evidence fails to establish that Dr. Gaeta was required, in meeting minimum standards of performance, to determine why the amalgam filling came loose from tooth #29. The evidence fails to prove that Dr. Gaeta was unaware of the location of the filling in tooth #29; to the contrary, there is credible evidence that he dislodged the loose filling while probing it. Dr. Gaeta is not guilty of the standard-of-care- violation alleged in A6. The notes and materials in R.S.'s chart justify Dr. Gaeta's treatment of tooth #29. No more than that is legally required. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B6. There is credible evidence that Dr. Gaeta provided post-operative instructions to R.S. In light of such evidence, the allegation that he failed to do so, as charged in A7, is not established by clear and convincing proof. Dr. Gaeta is therefore not guilty of this alleged standard-of-care violation. While the failure to give post-operative instructions might in some circumstances be shown to fall below minimum standards of performance, the failure to record in the patient's chart the giving of such instructions does not make an appropriate course of treatment unjustified, any more than giving——and noting in the record the giving of——post-operative instructions would justify an inappropriate course of treatment. The purpose of section 466.028(1)(m) is not to ensure that every dentist-patient communication is noted, every tool or instrument used listed, all actions taken, however routine, described in detail; nor is it to obligate the dentist to defend in writing his every diagnosis, treatment decision, exercise of professional judgment, and therapeutic act against potential criticism, as a sort of preemptive rebuttal to a possible future malpractice claim. Rather, the statute is designed, more modestly, to ensure that patient records contain information showing that every course of treatment has a rational basis in dentally relevant facts. Dr. Gaeta was not legally required to document his discussions with R.S. regarding post-operative instructions, and therefore he is not guilty of the recordkeeping violation as alleged in B7. The evidence shows that Dr. Gaeta used an apex locator to measure the canal length of R.S.'s tooth #9. Consequently, the allegation in A8 that he failed to do so is not established by clear and convincing evidence. Dr. Gaeta is not guilty of this charge. R.S.'s record contains X-rays and reflects the fact that Dr. Gaeta determined the canal length of tooth #9. The minimum statutory requirements were satisfied with respect to these particulars. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B8. There is credible evidence, which the Department failed sufficiently to overcome, showing that Dr. Gaeta used a rubber dam when he performed a root canal on R.S. Thus, the evidence is not clear and convincing that he failed to use this common dental implement, as alleged in A9. Dr. Gaeta is not guilty of this alleged standard-of-care violation. Section 466.028(1)(m) does not demand that a patient's record reveal that the dentist used common dental tools in the customary fashion. If the statute were held to require that level of detail, the dentist would need to note, e.g., the routine use of scalers and currettes, periodontal probes, latex gloves, drills, etc.——an absurd result. Therefore, although Dr. Gaeta did not document the use of a rubber dam, he was not legally required to do so. Dr. Gaeta is not guilty of the recordkeeping charge found in 9B. The evidence shows that Dr. Gaeta diagnosed R.S.'s periodontal condition. The evidence does not clearly and convincingly establish any minimum standards of performance that Dr. Gaeta failed to meet, under the facts of this case, in addressing the periodontal condition. As a result, Dr. Gaeta is not guilty of the standard-of-care violation alleged in A10. The evidence shows that Dr. Gaeta made a determination regarding tooth #29's ability to support a crown. He is therefore not guilty of the standard-of-care violation charged in A11. The evidence shows that Dr. Gaeta made a determination concerning the cause of tooth #29's collapse. He is therefore not guilty of the standard-of-care violation charged in A12. It is undisputed that Dr. Gaeta did not record in R.S.'s chart the type and amount of anesthetic used during the root canal procedure. Dr. Gaeta contends that producing local anesthesia with Septocaine® is not "treatment" and therefore need not be noted in the dental record. This argument is rejected; the use of medicine to control pain and anxiety is surely a form of "treatment" as that term is commonly used and understood. Consequently, section 466.028(1)(m) requires that the patient record contain justification for the use of anesthetic agents, which means that the drugs and dosages administered must be documented.12 Dr. Gaeta is guilty of the recordkeeping violation charged in B13. He has, moreover, been found guilty of, and been disciplined for, recordkeeping violations on two previous occasions.13 Credible evidence, which the Department failed rebut with clear and convincing evidence, shows that Dr. Gaeta took X- rays of R.S.'s tooth #9 before initiating root canal therapy. The X-rays and other information in R.S.'s chart justified that course of treatment. The allegations in B14 are not supported by clear and convincing evidence, and thus Dr. Gaeta is not guilty of this alleged recordkeeping violation. The evidence does not demonstrate clearly and convincingly that Dr. Gaeta performed any thermal, pulp, or bite percussion tests before initiating root canal therapy. Therefore, he cannot be punished for failing to record in R.S.'s chart the results of such tests, as charged in B15. Dr. Gaeta is not guilty of this alleged recordkeeping violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Dr. Gaeta guilty of the recordkeeping violation alleged in paragraph 27 l) of the Complaint (failure to record types and amounts of anesthetic agents used); finding Dr. Gaeta not guilty of the remaining violations; and imposing the following penalties: suspension from practice for three months, followed by probation for 18 months with conditions reasonably related to the goal of improving Dr. Gaeta's recordkeeping skills; and a fine in the amount of $2,500. DONE AND ENTERED this 12th day of June, 2012, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2012.
The Issue The issue for determination in this proceeding is whether Respondent failed to include a fee disclaimer in an advertisement for a free consultation and caused the publishing of an advertisement that contained statements which were likely to be misleading or deceptive.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed dentist in the state, holding license number DN 0005278. Respondent caused an advertisement to be published in the Plantation Issue of The Community News on November 9, 1988. The advertisement contained headlines that, in relevant part, provided: Dr. Philip B. Okun, Oral Implantologist, Asks: "Are You Tired of Living Hand to Mouth?" [and] Dr. Philip B. Okun, D.D.S., the Oral Implantologist you've been meaning to call (emphasis added) The statements that Respondent is an oral implantologist were likely to be misleading or deceiving because in context they made only a partial disclosure of relevant facts. Oral implantology is not a recognized specialty by the Board of Dentistry or the American Dental Association. Use of the term "oral implantologist" in the advertisement without a disclosure that implantology was not a recognized specialty suggested that Respondent had a status that he does not actually possess. The statements that Respondent is an oral implantologist in reasonable probability would cause an ordinary prudent person to misunderstand or be deceived. Use of the term "oral implantologist" suggests that oral implantology is a recognized specialty by an appropriate rulemaking body and that Respondent is a member of such a specialty group. The potential for misunderstanding by a layman was increased by laudatory statements concerning Respondent's credentials in the field of implantology. The advertisement provided in relevant part: Dr. Okun is a Master and Fellow of the American Academy of Implant Prosthodontics,, [and] a Fellow of the International Congress of Oral Implantologists . . The advertisement contained fee information in the form of two solicitations for a free consultation without a disclaimer. The advertisement stated in relevant part: Come in for a free consultation and let's plan an effective course of action . . . To arrange a free consultation, telephone 472-2000. (emphasis added) No disclaimer was included in the advertisement. Respondent caused the advertisement to be published on only one occasion. Respondent was advised by the public relations firm that wrote the advertisement that it complied with applicable rules and relied upon that advice. Respondent withdrew the advertisement when he learned that the advertisement violated applicable rules and has not caused the advertisement to be published again. Respondent in fact performs dental implants in his practice and possesses substantial skill and experience in performing dental implants. Respondent has over 1,000 hours of continuing dental education pertaining to dental implants, and dental implants comprise approximately 50 percent of Respondent's practice.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent guilty of the allegations in the Amended Administrative Complaint and issuing a written reprimand against Respondent. DONE and ENTERED this 3rd day of September 1991, in Tallahassee, Leon County, Florida DANIEL MANRY 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 6th day of September, 1991.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Phillip Kibbee Parsons holds a dentist's license issued by petitioner, No. DN 0003193, Petitioner's Exhibit No. 1, and has at all pertinent times. Also at all pertinent times, he has been engaged in the private practice of dentistry in Keystone Heights, Florida. In May of 1986, Bruce Robert McHollan made his first visit to Dr. Parsons' office, to "have [his] teeth checked and to see if [he] needed any work done." T.10. Dr. Parsons caused radiographs to be taken, and Mr. McHollan's teeth were cleaned on this initial visit. When Dr. Parsons suggested replacing his fillings with "non-mercury amalgam fillings," (T.11), Mr. McHollan rejected the idea, and told Dr. Parsons he "was only interested in having decay . . . [and] any cavities . . . repaired." T.11. During two visits in September of 1986 Dr. Parsons placed or replaced nine fillings in Mr. McHollan's teeth. At the time, Mr. McHollan assumed this work was necessary to repair damage done by tooth decay, and the evidence did not establish otherwise. The following year and again on June 8, 1989, Mr. McHollan returned. He had his teeth cleaned on both occasions and, on June 8, 1989, Dr. Parsons who caused a second set of radiographs to be taken that day, advised Mr. McHollan that he needed additional fillings. Under the impression that these fillings were needed on account of decay that had developed since the earlier fillings, Mr. McHollan authorized Dr. Parsons to proceed. He submitted to six fillings on June 13, 1989, and another ten fillings on July 25, 1989. Eventually he noticed that his original fillings had all been replaced. Dr. Parsons' testimony at hearing that the original fillings all leaked and required replacement was uncontroverted. When Mr. McHollan returned to Dr. Parsons' office on August 1, 1989, to discuss his dental health, Dr. Parsons told him "that there w[ere] at least nine [more] areas where there was decay and needed to be filled, but he [Dr. Parsons] couldn't be sure of the total amount until he installed a rubber dam." T.15. Estimating the cost of additional restorations, Dr. Parsons continued, "Let's be conservative and let's say there are 12 more," id., then jotted down the following: ESTIMATE: 8/1/89 BRUCE McHOLLAN 12 90 1080 Petitioner's Exhibit No. 4. He wrote this estimate on a piece of paper on which his name and address are printed. At the time, Dr. Parsons charged $90 per filling. Suspicious about the need for additional fillings, Mr. McHollan went to his mother's dentist, George W. Boring, for a second opinion. On September 8, 1989, Dr. Boring examined Mr. McHollan's teeth and two bite-wing radiographs he had taken of them that day. He found no decay nor any evidence of decalcification or other demineralization. Later asked to compare radiographs taken in his office on September 8, 1989, with copies of those taken in Dr. Parsons' office on June 13, 1989, Dr. Boring concluded that they "basically looked the same." T.47. Cavities or carious conditions do not always show up on x-rays; in fact, "as often as not," (T.4a) they cannot be detected in this fashion. On December 7, 1989, Mr. McHollan sent Dr. Parsons a letter, the body of which began, "Send me my complete dental office records and all of my x-rays as soon as possible." Petitioner's Exhibit No. 5. He received x-rays taken in Dr. Parsons' office on June 13, 1989, but obtained no other records directly from Dr. Parsons' office. Later a collection agency sent Mr. McHollan copies of some, but not all, of the records Dr. Parson had maintained on him. In performing the restorations in the summer of 1989, Dr. Parsons had used rubber dams. A rubber dam permits isolation of a tooth surface so that the dentist can dry it for work (or observation) free of a film of saliva. Both Dr. Parsons and his assistant of twelve years, Pamela Slocumb, saw "white spots" on dry surfaces of Mr. McHollan's teeth, but neither saw carious lesions penetrating to the dentin. Expert testimony established that white spots on dry teeth evince demineralization. "[A]ccording to dental textbooks," (T.168E) demineralization constitutes active decay. In the early stages, demineralization usually is not very visible to the eye on a wet tooth, and either isolation with a rubber dam or isolation with cotton rolls, and then drying the tooth, would demonstrate this, whereas to the naked eye and, for that matter, even to the little sharp explorer, . . . if they were wet, they probably wouldn't be observable. T.190. Demineralization can lead to further decay, but it can also be a transitory condition: [C]ertain of the chemicals that are in the enamel are also dissolved in the saliva, and under certain circumstances . . . the calcium and other products in the saliva, will redeposit in these areas, and will actually build it back up. T.192. Remineralization can occur very rapidly, (T.193) and easily be completed over a period as long as that which elapsed between Dr. Parsons' last examination and the examination Dr. Boring performed. On October 29, 1990, some fourteen months after Dr. Parsons told him he needed at least nine fillings, Mr. McHollan's teeth had "moderate plaque and some stain," but not the kind of stain sometimes incorporated into the structure of the teeth in the course of remineralization. On October 29, 1990, a third dentist, Hugh B. Avant, examined Mr. McHollan's mouth as well as roentgenograms taken that day, bite-wing views from either side and three periapical views. On the cheek side of the upper left wisdom tooth, one of the places on which Dr. Parsons had seen white spots, Dr. Avant found a carious lesion of moderate size, which had penetrated the enamel into the dentin. He found no other carious lesions. In keeping with the standard of care for a general dentist practicing in Keystone Heights and elsewhere in that part of Florida, teeth require restoration by a dentist once a carious lesion penetrates the enamel into the dentin. Both Doctors Avant and Boring adhere to this standard. Filling a tooth which has demineralized but has no carious lesion would "not generally" be in conformity with the standard, at least the standard DPR's expert is "accustomed to." T.110. DPR's expert testified: "I don't think it's the standard of practice to start filling all areas like that, just because you think they are susceptible and they have some decalcification." T.112. But the patient's history may have a bearing. Dr. Bliss, a former member of the Board of Dentistry, testified for respondent, specifically with reference to Mr. McHollan and in light of his particular history, that "in a patient like this . . . it would not be below the standard to recommend that these [white-spotted] areas be cleaned and restored." T.189. He further testified that he had "had patients where I have identified these areas, and in my extreme conservatism, didn't do something, and within a month's time, it had gone into the dentin." T.200.
Recommendation It is, accordingly, in keeping with Rule 21G-13.005(3)(v), Florida Administrative Code, RECOMMENDED: That the Board of Dentistry impose a fine of five hundred dollars ($500), reprimand respondent, and place him on probation for a period of three years. DONE and ENTERED this 28th day of October, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 17, 18, 19, 20, 24, 27, 28, 29, 30, 31, 32, 37, 38, 39, 40, 41, 42 and 44 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 13, whether Dr. Parsons had a recollection concerning the use of an explorer was not established. With respect to petitioner's proposed finding of fact No. 15, Dr. Parsons testified that he filled teeth when there was a history of severe decay and decalcification, and he felt further decay was likely, but he did not testify to any standard on page 180. Petitioner's proposed findings of fact Nos. 16 and 26 pertain to immaterial matters. Petitioner's proposed findings of fact Nos. 21, 22, 23, 33, 34, 35 and 36 pertain to subordinate matters. Petitioner's proposed findings of fact Nos. 25 and 43 have been rejected as unsupported by the evidence cited. Respondent's proposed findings of fact Nos. 1, 2, 3, 6, 7, 9, 10, 13, 14 and 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, the testimony was that "these decalcified areas" would not have been visible if wet. Respondent's proposed findings of fact Nos. 5 and 11 were not convincingly disproven. With respect to respondent's proposed finding of fact No. 8, there were nine, not twelve, surfaces. With respect to respondent's proposed finding of fact No. 12, there are other ways to dry teeth for observation. Respondent's proposed finding of fact No. 15 relates to a subordinate matter. COPIES FURNISHED: Anna Cam Fentriss, Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, FL 32303-6313 Salvatore A. Carpino, Esquire One North Dale Mabry, Suite 1010 Tampa, FL 33609 William Buckhalt, Executive Director Board of Dentistry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the Respondent's license to practice dentistry in Florida should be revoked, suspended, or otherwise disciplined, based upon the following allegations: that a diagnosis of patient P.U. was below the minimum acceptable standards; that the treatment recommended by the Respondent would have exploited the patient for financial gain.
Findings Of Fact At all times material to these proceedings, the Respondent, Russell Ernest Duke, D.D.S., was a licensed dentist in Florida, and held license number DN 0007124. The Respondent was employed as a dentist at sunbelt Dental Center. On or about July 2, 1986, at the sunbelt Dental Center located in Sarasota, Florida, the Respondent performed an examination on the teeth of P.U., a new patient who had responded to the Center's advertisement regarding a teeth cleaning and dental checkup for nine dollars and ninety-five cents. During the Center's promotion on cleanings and checkups, the Respondent maintained his regular patient schedule of eighteen patients a day. In addition, he performed examinations on patients who responded to the advertisement. X-rays were taken during the examination of the patient P.U. An explorer was used to probe and check the patient's teeth, along with the Respondent's visual examination. While the examination was being conducted, the Respondent would relate the result of his examination to his dental hygienist, Michelle Caldwell, who would chart the results on the patient record After the examination, the patient P.U. was told by the Respondent that she needed several fillings. An estimate of one hundred and eighty dollars (Petitioner's Exhibit A, Deposition of P.U.) was given to the patient. It was recommended that she obtain fillings in the following areas: tooth number 1 on the biting surface of the tooth occlusal; tooth number 3 on the occlusal and lingual areas; tooth number 16 on the occlusal surface; tooth number 17 on the occlusal surface; and tooth number 19 on the mesal, occlusal, distal and facial surfaces. On September 23, 1986, Kevin M. Larkin, D.D.S., examined the teeth of the patient P.U. During this examination, Dr. Larkin did not find any indication of carious lesions on any tooth other than tooth number 19. It was Dr. Larkin's opinion that the distal area of tooth number 19 had the start of a carious lesion. A watch was placed on this tooth, but a filling was not recommended at this stage in the patient's treatment plan. The patient was requested to return in six months for another examination, and a review of her treatment plan. During Dr. Larkin's initial examination, he noted that the patient had heavy staining from tobacco use. The patient chart, which is attached to Dr. Larkin's deposition, notes heavy staining in most of the same areas which had been indicated in the Respondent's examination as areas in need of fillings. Calculus deposits were also noted in Dr. Larkin's patient record during the patient's two visits. On October 19, 1987, David R. Smith, D.D.S., examined the patient P.U. at the request of the Department of Professional Regulation. During his examination, Dr. Smith found that there was surface stain on the occlusal pit on tooth number 1. There were little grooves on the biting surface of the tooth. During the visual examination, the stain in this area appeared to be caries. However, an exploration in the area with a fine-tipped explorer revealed that there was no indication of caries on this tooth. Tooth number 1 was merely pitted and stained, as reflected in the patient's record, which is Petitioner's Exhibit 4. Tooth number 3 had a small pit filling in the area described as in need of a filling by the Respondent. In Dr. Smith's opinion, there was no need for a new filling to be placed in that area. Tooth number 16 was found to be stained, but there was no decay. Tooth number 19 had a broken amalgam restoration. In Dr. Smith's opinion, this tooth was definitely defective, and the prior restoration needed replacement. The Respondent was correct in his diagnosis that a filling was needed by the patient P.U. in tooth number 19. The Respondent misdiagnosed tooth number 1, but the condition of the tooth gave all indications that caries existed in the area recorded by the Respondent. This was a "false cavity" which required the removal of soft matter within the tooth crevice, which was deeper than is normally expected. Discovery of the false cavity would require more inspection than what was completed during the general examination agreed upon by the dentist and patient during this initial visit. The Respondent's diagnosis of decay on tooth numbers 3, 16, and 17 which he determined were in need of restorative work, was the result of incompetence or negligence. The problem in these areas was staining, not tooth decay. The diagnosis was below the minimal acceptable standards of diagnosis for general practitioners of dentistry in Florida. The ability to properly diagnosis whether a tooth has decay or non-carious staining is a fundamental aspect of the practice of general dentistry. The Respondent's receptionist gave the patient P.U. a price quote for the treatment suggested by the Respondent. However, the treatment was never undertaken, and no exploitation of a patient for financial gain occurred. The problems in diagnosis in this case could have occurred as a result of a number of factors: an improper notation of stains as caries by the dental hygienist, a superficially performed initial examination, or the use of an explorer that was not sharp enough to confirm that the visual determination that caries existed was actually non-carious staining. There were no facts presented to demonstrate that the misdiagnosis was created to exploit the patient for the Respondent's financial gain. Dr. Smith, the Department of Professional Regulation's independent expert witness opined that the misdiagnosis was not done with the intention to defraud the patient. The Respondent was employed by sunbelt Dental Center on a salaried basis, and was not required to encourage treatment beyond what he deemed was necessary in his professional opinion as the examining dentist.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of Dentistry enter a Final Order finding that the Respondent, Russell Ernest Duke, D.D.S., is guilty of one violation of Section 466.028(1)(y), Florida Statutes (1986). That the penalties assessed against the Respondent include a mitigation of the penalties under Rule 21G-13.005, Florida Administrative Code. That the Respondent receive a reprimand and an administrative fine of $1,000.00. That the Board of Dentistry enter a finding that the Respondent is not guilty of a violation of Section 466.028(1)(n), Florida Statutes (1986). DONE and ENTERED this 27th day of June, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 27th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6004 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. Accepted. See HO #1 and #2. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #7. Accepted. See HO #6. Rejected as to tooth number one. Contrary to fact. See HO #13. The rest of paragraph 9 is accepted. See HO #14. Accepted. See HO #8. Reject that the diagnosis was consistent with Dr. Larkin's. See HO #6 and #12. Accept that Dr. Smith's diagnosis was different than the Respondent diagnosis. See HO #13 and #14. Accepted. Accepted. See HO #5 and #15. Rejected. Contrary to fact. See HO #17. Rejected. Speculative. Conjecture. Rejected. Speculative. Conjecture. Contrary to fact. See HO #17. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Russell Ernest Duke, D.D.S. 4125 South Cleveland Avenue Fort Myers, Florida 33907 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 William H. Buckhalt, Executive Director Florida Board of Dentistry 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0765
