11-002030PL Department Of Health, Board Of Dentistry vs. Alexander Gaukhman, D.D.S. Status: Closed Recommended Order on Monday, October 31, 2011.

Summary: Respondent failed to maintain record justifying the course of treatment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2030PL

)

ALEXANDER GAUKHMAN, D.D.S. , )

)

Respondent . )

)

RECOMMENDED ORDER

On August 26, 2011, an administrative hearing was conducted

by video teleconference in Sarasota and Tallahassee, Florida,

before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: George A. Black, Esquire

Wayne Mitchell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent: Max R. Price, Esquire

Law Offices of Max R. Price, P.A.

6701 Sunset Drive, Suite 104

Miami, Florida 33143

STATEMENT OF THE ISSUE S

The issue s in this case are whether the allegations set

forth in the Administrative Complaint filed by the Department of

Health (Petitioner) against Alexander Gaukhman, D.D.S.

(Respondent) , are correct, and, if so, what penalty should be

i mposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated February 15, 2008, the

Petitioner alleged that the Respondent violated s ection

466.028(1)(m), Florida Statutes (2005 & 2006) , 1 / and Florida

Administrative Code Rule 64B5 - 17.002(1) , related to records

maintained during the provision of dental treatment to a

patient. The Respondent denied the allegation and requested an

administrative hearing. The Petitioner forwarded the dispute to

the Division of Administrative Hearings , which scheduled and

conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

one witness by deposition and had Exhibits 1 through 3, 5

through 8, 10 , and 23 admitted into evidence. The Respondent

did not attend the hearing, but was represented by counsel who

presented the testimony of one witness. The parties had Joint

Exh ibit 1 admitted into evidence.

A T ranscript of the hearing was filed on Septemb er 8, 2011 .

Both parties filed Proposed Recommended Orders that have been

considered in the preparation of this Recommended Order. A pre -

hearing stipulation filed by the parties contained stipulations

of fact that have been incorporated herein as necessa ry.

As presented at the hearing, the Petitioner's evidence,

including the testimony by deposition, addressed matters related

to dates other than those specified in the Administrative

Complaint. At the commencement of the hearing, the Respondent

objected to consideration of matters not specifically alleged in

the Administrative Complaint, and the objection was sustained.

The Findings of Fact set forth herein correspond to the

allegations set forth in the Administrative Complaint and are

based on the evide nce presented at the hearing that was relevant

to those allegations.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a licensed dentist in the State of Florida, holding license

number DN 15657. The Respondent's mailing address of record was

400 Hanchey Drive, Nokomis, Florida 34275.

2. Beginning on February 28, 2006, and continuing through

January 10, 2007, the Respondent, or persons in his dental

office, provided dental care and treatment to Patient S.K.

(Patient), a female approximately 46 years of age.

3. According to the Respondent's records, the woman

presented to the Respondent as a new patient complaining of

"severe pain" on February 28, 2006.

4. On that date, the Respondent's records indicate that he

performed a limi ted examination that included taking diagnostic

x - rays. A limited oral examination is appropriate under

emergent circumstances where the presen ting complaint is severe

pain.

5. The Respondent's records contain no written

documentation of the Respondent's findings based on his

examination of the patient and no written diagnosis of oral

pathology or disease .

6. The Respondent performed root canal treatment on the

Patient's teeth numbered 8 and 9 and placed crowns on the two

teeth .

7. The Respondent's reco rds contain no written treatment

plan related to root canal treatment provided to the patient.

8. The Administrative Complaint alleged that the

Respondent's treatment notes failed to identify the type or

amount of anesthetic used during the root canal tre atment. The

evidence fails to establish that the Respondent administered

anesthetic to the Patient during the r oot canal treatment.

9. In addition to the emergency root canal treatment

performed on February 28, 2006, the Respondent also placed

veneers on the Patient's teeth numbered 6, 7 , 10 , and 11.

Placement of prosthetic dental veneers is a cosmetic, not an

emergent, procedure.

10. The Respondent's records contain no written record of

an examination related to placement of the cosmetic prosthetic

den tal veneers, no diagnosis or other information establishing

the rationale for placement of the veneers, and no written

follow - up plan related to the veneers.

11. The Patient presented for prophylaxis (cleaning) on

March 16, 2006 , and again on October 10, 2006. The cleaning was

performed by a dental hygienist working for the Respondent.

According to the Respondent's records, the Respondent examined

the patient on those dates. Such an examination would have

included periodontal probing to determin e the Pa tient's dental

health.

12. The Respondent's records fail to contain any record of

a periodontal probing on March 16, 2006 , or on October 10, 2006.

Other than notation of pockets related to the root canal

procedure, the Respondent's records fail to contai n any

indication that the Respondent performed periodontal probing on

the Patient. Such probing is a basic and routine part of an

examination to determine dental health. Because the Respondent

was providing dental health services to the Patient, it is

re asonable to presume that the Respondent performed the probing,

but failed to docume nt the process in his records.

13. The Respondent has been previously disciplined by the

Petitioner in an unrelated mat ter that was resolved in 2003.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla . Stat . (2011).

15. In this case, the Petitioner is seeking to impose

discipline against the Respondent's license. In order to

prevail, the Petitioner must demonstrate the truthfulness of the

allegations in the Administrative Complaint by clear and

convincing evidence. Dep ' t of Banking & Fin . v. Osborne Stern &

Co . , 670 So. 2d 932 (Fla. 1996); Ferris v. Turl ington , 510 So.

2d 292 (Fla. 1987). In order to be "clear and convincing," the

evidence must be "of such weight that it produces in the mind of

the trier of fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations sought to be

established." See Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983). In this case, the burden has been met.

16. Section 466.028 provides , in relevant part , as

follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(m) Failing to keep written dental records

and medical history records justifying the

course of treatment of the patient

including, but not limited to, patient

histories, examination resu lts, test

results, and X rays, if taken.

17. Rule 64B5 - 17.002(1) provides as follows:

For the purpose of implementing the

provisions of subsection 466.028(1)(m),

F.S., a dentist shall maintain written

records on each patient which written

records shall c ontain, at a minimum, the

following information about the patient:

(a) Appropriate medical history;

(b) Results of clinical examination and

tests conducted, including the

identification, or lack thereof, of any oral

pathology or diseases;

(c) Any radiographs used for the diagnosis

or treatment of the patient;

(d) Treatment plan proposed by the dentist;

and

(e) Treatment rendered to the patient.

(f) Whenever patient records are released

or transferred, the dentist releasing or

transferrin g the records shall maintain

either the original records or copies

thereof and a notation shall be made in the

retained records indicating to whom the

records were released or transferred.

However, whenever patient records are

released or transferred dire ctly to another

Florida licensed dentist, it is sufficient

for the releasing or transferring dentist to

maintain a listing of each patient whose

records have been so released or transferred

which listing also includes the dentist to

whom such records were released or

transferred. Such listing shall be

maintained for a period of 4 years.

18. As set forth herein, the evidence established that the

Respondent violated s ection 466.028 and r ule 64B5 - 17.002(1).

The evidence established that the Respondent fail ed to contain

written documentation justifying the course of treatment

provided to the Patient. The records contained no written

documentation of exam findings, no written diagnosis of

pathology or disease, and no written treatment plan.

19. The evidence also established that the Respondent's

records failed to contain "HIPPA" forms signed by the patient.

Such forms are related to privacy of medical information and are

required by the federal Health Insurance Portability and

Accountability Act of 1996. A lthough the Administrative

Complaint alleged that the failure to maintain the forms was a

violation of the statute and rule cited herein, neither the

statute nor the rule require s that HIPPA forms be maintained as

par t of a patient medical record.

20. The Respondent has asserted that the presence of X -

rays in the Patient's records was sufficient to diagnose and

identify the underlying pathology and to document the course of

treatment provided to the patient. However, the rule clearly

states that the X - rays are only a portion of the minimum

documentation that is required, and , in this case, the

Respondent's records are insufficient to meet even th e minimal

standards set forth.

21. The Respondent has also asserted that , because the

Patient presented to h im on an emergent basis on February 28,

2006, the record - keeping requirements were somehow lessened.

There is nothing in the rule that indicates that the clear

record - keeping requirements are inapplicable when treatment is

provided on an emergent basis. And further, the treatment

provided by the Respondent on that date was not limited to the

emergent root canal procedure, but included placement of

cosmetic veneer s.

22. Florida Administrative Code Rule 64B5 - 13.005 sets

forth the disciplinary guidelines re levant to this proceeding.

Pursuant to r ule 64B5 - 13.005(1)(m), the penalty for a first

offense violation of s ection 466.028(1)(m) ranges from a minimum

fine of $500 to a maximum fine of probation with conditions and

a fine of $7,500. Rule 64B5 - 13.005 pro vides , in further

relevant part , as follows:

(2) Based upon consideration of aggravating

or mitigating factors, present in an

individual case, except for explicit

statutory maximum and minimum penalty

requirements, the Board may deviate from the

penalties recommended in subsections (1)

above and (3) below. The Board shall

consider as aggravating or mitigating

factors the following:

(a) The danger to the public;

(b) The number of specific offenses, other

than the offense for which the licensee is

being punished.;

(c) Prior discipline that has been imposed

on the licensee;

(d) The length of time the licensee has

practiced;

(e) The actual damage, physical or

otherwise, caused by the violation and the

reversibility of the damage;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of the penalty upon the

licensee;

(h) Efforts by the licensee towards

rehabilitation;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by the licensee to correct or

stop the violation or refusal by the

licensee to correct or stop the violation;

and

(k) Any other relevant mitigating or

aggravating factor under the circumstances.

23. There is no evidence that the Respondent presents a

danger to the public. There are no allegations related to

record - keeping other than those involved in this case. The

Respondent has been licensed since 2001. There is no evidence

that there was any actual damage caused by t he violation

addressed herein.

24. The Resp ondent has a prior disciplinary incident on a

matter unrelated to record - keeping. There is no evidence that

the licensee has been rehabilitated, that the licensee

understands the violation , or that there was any attempt to

correct the violation. To the c ontrary, the Respondent asserted

that the record - keeping was appropriate and met the requirements

of the statute and the rule, when the plain English of the rule

clearly indicates the contrary. The deterrent effect of a

penalty i n this case would be presu med.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Dentistry enter a

f inal o rder finding the Respondent in violation of

s ection 466.028(1)(m) and imposing the following penalty:

1. I mpos ition of a fine of $2,500.

2. Successful completion of an educational course related

to dental record - keeping and passage of the Florida Board of

Dentistry Laws and Rules Exam. The Board of Dentistry shall

designate the educational course and shall estab lish the

deadlines related to imposition of this penalty.

DONE AND ENTERED this 31st day of October , 2011 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 -

6847 www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October , 2011 .

ENDNOTE

1/ References to Florida Statutes are to Florida Statutes (2005

& 2006), unless otherwise indicated.

COPIES FURNISHED :

George A. Black, Esquire

Wayne Mitchell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Max R. Price, Esquire

Law Offices of Max R. Price, P.A.

6701 Sunset Drive, Suite 104

Miami, Florida 33143

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Susan Foster, Executive Di rector

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.