11-005793PL Department Of Health, Board Of Dentistry vs. Joseph Gaeta, D.D.S. Status: Closed Recommended Order on Tuesday, June 12, 2012.

Summary: Respondent failed to maintain adequate dental records regarding his treatment of a patient by failing to record type and dosage of anesthetic drug used. Dental care rendered was not shown to fall below minimum standards of performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Petitioner, )

) Case No. 11 - 5793PL

vs. )

)

JOSEPH GAETA, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

February 28 - 29, 2012, at sites in Tallahassee and Miami,

Florida.

APPEARANCES

For Petitioner: Geoffrey F. Rice, Esquire

Way ne Mitchell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

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 - 4529

STATEMENT OF THE ISSUES

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 stan dards of performance, as Petitioner alleges. If

Respondent committed any of these offenses, it will be necessary

to determine an appropriate penalty.

PRELIMINARY STATEMENT

On March 20, 2009, Petitioner Department of Health issued a

two - count Amended A dministrative Complaint ("Complaint") against

Respondent Joseph Gaeta, D.D.S. In April 2009, Dr. Gaeta timely

requested a formal hearing, and on November 10, 2011, the

Department referred the matter to the Division of Administrative

Hearings. The undersi gned scheduled a multiday hearing to begin

on February 28, 2012.

Both parties were represented by counsel at the hearing,

which went forward as planned. The Department's witnesses were

Dr. Gaeta and Dr. Victor Spiro. Received in evidence during the

De partment's case were Petitioner's Exhibits 1 - 6, 8 1 , 9(b), 9(d),

and 9(e). Dr. Gaeta called Dr. Robert Fish as a witness and

testified on his own behalf. Respondent's Exhibits 1, 4 - 7, and

10 were admitted.

The final hearing transcript, comprising four v olumes, was

filed on March 16, 2012. Motions to enlarge the time for filing

proposed recommended orders were granted, resulting in a

deadline of April 9, 2012. Each party timely filed a Proposed

Recommended Order, and these have been considered.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

Introduction

1. At all times relevant to this case, Respondent Joseph

Gaeta, D.D.S., was licensed to practice dentistry in the state

of Florida.

2. 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.

3. 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 ov er a five - month period from

November 15, 2002, through April 11, 2006. In Count II,

Dr. Gaeta was charged with incompetence or negligence ÏÏ again

vis - à - vis R.S. ÏÏ allegedly by failing to meet the minimum

standards of performance in diagnosis and treatm ent when

measured against generally prevailing peer performance , an

offense under section 466.028(1)(x).

The Material Historical Facts

4. The events giving rise to this case began on

November 15, 2005, when R.S., a retired septuagenarian who spent

win ters in Florida but considered Michigan ÏÏ where he resided the

rest of the year ÏÏ to be his home, arrived at Dr. Gaeta's office

with an acute problem, namely a loose tooth. The tooth ÏÏ #24, an

incisor located in the lower jaw, center - left ÏÏ 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."

5. 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, cen ter - 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 whe n probed. These issues

were recorded in R.S.'s dental record.

6. 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.

7. 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 oth erwise memorialize the

substance of their discussion, nor did he obtain written consent

to treatment from R.S.

8. After agreeing on a course of treatment, R.S. paid in

advance for the procedures he had orally authorized Dr. Gaeta to

perform. Thereafte r, 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. F inally, 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 Nov ember 15, 2005, was noted

in R.S.'s chart.

9. 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 1 5, 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 sub stance 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.

10. 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 - ra y 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 sens itive (a

symptom noted in the chart), Dr. Gaeta determined that tooth #9

needed root canal therapy and documented his conclusion in the

chart.

11. Dr. Gaeta performed a root canal on tooth #9. The

Department has alleged that Dr. Gaeta failed to measure t he 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 recor d,

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,

includ es 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.

12. Dr. Gaeta gave R.S. Septocaine ® to produce local

anesthesia d uring 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.

13. 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.

14. During the visit on April 11, 2006, Dr. Gaeta learned

that R.S.'s tooth #29, which had been crow ned 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 w as 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.

15. 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 a nd 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.

16. 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 ÏÏ a course of treatment that would spar e 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 tha t

he gave little or no thought to the question of whether the

tooth could support a crown, as charged.

17. To be sure, the Department's expert witness,

Dr. Spiro, testified that, in his opinion, tooth #29 should have

been pulled because, he "be lieve[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 ÏÏ based on generally prevaili ng peer performance ÏÏ 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.

18. 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 v isit 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 r equired

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

dete rmining 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

19. T he 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 mal practice, 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).

20. The allegations in paragraphs 27 and 31 are largely

paral lel 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 a ct "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 reco rd, thereby violating the recordkeeping

requirements.

21. 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 recordin g 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.)

22. On the other hand, if Dr. Gaeta in fact did X and

failed to note in R.S.'s chart having done X, then ÏÏ if the law

required Dr. Gaeta to document the performance of X ÏÏ he w ould 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 th e 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 cha rged Dr. Gaeta.

23. 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

examp le, paragraph 31 k) of the Complaint is shown in the table

as paragraphs 31 k.1) and 31 k.2). An empty cell ÏÏ e.g., column

B, row 10 (hereafter, "B10") ÏÏ denotes the absence of a

corresponding allegation. Text which has been stricken through,

as in B12, re flects 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.

24. The Department charges Dr. Gaeta as follow s:

A B

Count II, ¶ 31: Alleged Count I, ¶ 27: Alleged

Standard - of - Care Violations Recordkeeping Violations

1 a) [F]ail[ing] to provide a a.1) [F]ailing to record an

comprehensive diagnosis with overall comprehensive written

adequate radiographs, study diagnosis, with periodontal

models or impressions, depth probe and tooth charting,

periodontal depth probe failing to document a written

chartin g, tooth charting and comprehensive treatment

a comprehensive treatment plan . . . .

plan prior to initiating root

canal treatment and

crown/bridge placement . . .

.

2 k.1) [F]ail[ing] to provide i. 1) [F]ailing to record an

adequate diagnosis, including adequate diagnosis, symptoms,

symptoms, with an and accompanying treatment plan

accompanying treatment plan for Patient R.S. prior to

for Patient R.S. prior to initiating root canal treatment

initiating root canal of tooth number 9 . . . .

treatment of tooth number

9 . . . .

3 k.2) Respondent failed to i.2) Respondent failed to

record adequate exam results record adequate exam results

and/or perform a complet e and/or perform a complete

diagnosis in support of his diagnosis in support of his root

root canal treatment for canal treatment for Patient R.S.

Patient R.S.

4 c) [F]ail]ing] to fully a.2) [F]ailing to document

determine th rough diagnostic whether teeth numbers 22 and 26

exam results whether teeth were appropriate abutm ent teeth

numbers 22 and 26 were for a five - unit bridge and why

appropriate abutment teeth an anterior lower five - unit

for a five - unit bridge and bridge was needed[.]

why an anterior lower five -

unit bridge was needed[.]

5 e) [F]ail[ing] to formulate c) [F]ailing to document

and/or present treatment presenting treatment options

options with explanation of with explanation of

risks/benefits to, and risks/benefits to, or obtaining

fail[ing] to obtain informed informed consent from, Patient

consent from, Patient R.S. R.S. prior to initiating any of

pr ior to initiating any of the treatments provided[.]

the treatments provided[.]

6 f) [F]ail[ing] to fully d) [F]ailing to notate where

determine through diagnostic the amalgam filling was located

exam results where the on tooth number 29 and why it

amalgam filling was located came loose as observed during

on tooth number 29 and why it the initial November 15, 2005,

came loose as observed during visit and failing to provide a

the initial November 15, wr itten diagnosis to justify

2005, visit and fail[ing] to seating of a crown on the tooth

provide adequate diagnosis to in lieu of restoring the filling

justify sea ting of a crown on . . . .

the tooth in lieu of

restoring the filling . . . .

7 g) [F]ail[ing] to provide e) [F]ailing to record in the

post - op instructions or treatment notes that post - op

discussions for Patient R.S. instructions or discussions for

following procedures Patient R.S. were provided

performed November 15, 2005, appropriately following

January 3, 2006, and/or for procedures performed November

any other treatment visits 15, 2005, January 3, 2006,

notated[.] and/or for an y other treatment

visits notated[.]

8 l) [F]ailing to take a j) [F]ailing to record a

diagnostic working length diagnostic working length

radiograph, and/or use of an radiograph, and/or use of an

apex locator, and/or take a apex locator, and/or tak[e] a

post - op fill radiograph post - op fill radiograph during

during the root canal the root canal treatment

treatment provided on or provided on or about January 3,

about January 3, 2006[.] 2006[.]

9 m) [F]ail[ing] to use a k) [F]ailing to record that a

rubber dam was used during rubber dam was used in the

the Janu ary 3, 2006, root January 3, 2006, root canal

canal procedure, and/or procedure, and if it was not,

indicate why it was not why it was not employed[.]

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[.]

1 1 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 m.1) [F]ailing to record in

and determine why the crown treatment notes for Patient

seated a few months earlier R.S.'s April 6, 2006, visit, why

at tooth number 29 broke off the crown seated a few months

with the tooth[.] 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 g) [F]ailing to take and/or

diagnostic (preferably interpret in the treatment notes

periapical) radiograph of a diagnostic (preferably

Patient R.S.'s tooth number 9 periapical) radiograph of

prior to initiating root Patient R.S.'s tooth number 9

canal treatment of the tooth prior to initiating root canal

. . . . treatment of the too th . . . .

15 j) [F]ail[ing] to perform h) [F]ailing to record the

any thermal, pulp, or bite results of any thermal, pulp, or

percussion tests performed on bite percussion test s performed

Patient R.S. prior to on Patient R.S. prior to

initiating root canal initiating root canal treatment

treatment on tooth number on tooth number 9[.]

9[.]

16 d) [F]ail[ing] to fully b) [F]ailing to clarify why an

determine through diagnostic extraction of tooth number 24

exam results why an was required and why a five - unit

extraction of tooth number 24 bridge was being fabricated

was required and why a five - instead of a three - unit bridge

unit bridge was being or some other restorative option

fabricat ed instead of a in the treatment notes [dated]

three - unit bridge or some November 15, 2005, which

other restorative option [on] indicate that Respondent

November 15, 2005, during extra cted tooth number 24 and

which Respondent extracted then prepared for a five unit

tooth number 24 and then bridge from tooth sites 22 - 26 to

prepared for a five - unit replace the extracted tooth[.]

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 present ed on patient presented on December 9,

December 9, 2005, complaining 2005, complaining on numbness in

on numbness in the lingual the lingual area p roximate 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

po ssible referral to an oral needed[.]

surgeon if 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

25. 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 mar ginally damaging to Dr. Spiro's

credibility, but not as devastating as Dr. Gaeta has argued.

26. 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 sta ndard 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 suff icient 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 ÏÏ from

one practitioner's ideas about how the profession should

perform ÏÏ 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 de ductive

reasoning, based demonstrably upon an informed understanding 7 of

what the dental community, as a whole, generally does in a given

situation. 8

27. Here, Dr. Spiro did not convincingly articulate

minimum standards of performance against which th e 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

u ndersigned 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.

28. 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

29. The evidence p resented 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 perf ormance 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 t he 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.

30. 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 examinat ions 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 t he 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

ch art. 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.

31. Contrary to the allegations in A 4, 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 convi ncingly 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).

32. 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 wr ite 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.

33. With regard to A5, the evidence is insu fficient 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 reaso n

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

s eparate 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.

34. As just mentioned, providing dental ser vices 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

in formed 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.

35. 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 replacin g 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 -

vio lation alleged in A6.

36. 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.

37. There is credible evidenc e 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 standar d - of - care violation.

38. 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 ÏÏ and noting in the record the giving of ÏÏ 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 cours e 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.

39. 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 c harge.

40. 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

viol ation alleged in B8.

41. 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 us e this

common dental implement, as alleged in A9. Dr. Gaeta is not

guilty of this alleged standard - of - care violation.

42. Section 466.028(1)(m) does not demand that a patient's

record reveal that the dentist used common dental tools in the

customary fash ion. 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. ÏÏ an absurd result. Therefore, although Dr.

Gaeta did not documen t 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.

43. The evidence shows that Dr. Gaeta diagnosed R.S.'s

periodontal condition. The evidence does not clearly and

convincingl y 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.

44. 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.

45. The evidence shows that Dr. Gaeta made a determination

concerning the cause of t ooth #29's collapse. He is therefore

not guilty of the standard - of - care violation charged in A12.

46. 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 conten ds 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 commonl y 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 record keeping violation

charged in B13. He has, moreover, been found guilty of, and

been disciplined for, recordkeeping violations on two previous

occasions. 13

47. 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 D r. Gaeta is not

guilty of this alleged recordkeeping violation.

48. 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 cann ot 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.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has personal

and subject ma tter jurisdiction in this proceeding pursuant to

sections 120.569, and 120.57(1), Florida Statutes.

50. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Fla. Real Es tate Comm'n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Dr. Gaeta by clear and

convincing evidence. Dep't of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of

Medicine , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

51. Regarding the standard of proof, in Slomowitz v.

Walker , 42 9 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

cle ar and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. 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.

Id. The Florida Supreme Court later adopte d the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standar d of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omi tted).

52. Disciplinary statutes and rules "must be construed

strictly, in favor of the one against whom the penalty would be

imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep't

of Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because th e statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.");

see also , e.g. , Griffis v. Fi sh & Wildlife Conserv. Comm'n , 57

So. 3d 929 (Fla. 1st DCA 2011)(statu t es imposing a penalty must

never be extended by construction).

53. Due process prohibits an agency from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument. See §

120.60(5), Fla. Stat. (" No revocation, suspension, annulment, or

withdrawal of any license is lawful unless, prior to the entry

of a final order, the agency has served, by personal service or

certified mail, an a dministrative complaint which affords

reasonable notice to the licensee of facts or conduct which

warrant the intended action . . . ."); see also Trevisani v.

Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined fo r an offense not charged in

the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg. , 753

So. 2d 745, 746 - 747 (Fla. 3d DCA 2000); Delk v. Dep't of Prof'l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct

proved must legally fall within the stat ute or rule claimed [in

the administrative complaint] to have been violated.").

54. In Count I of the Complaint, the Department charged

Dr. Gaeta under section 466.028(1)(m), which provides in

pertinent part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action . . . :

* * *

(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, exam ination results, test

results, and X rays, if taken.

55. In connection with this charge, the Department alleged

further that Dr. Gaeta had not complied with rule 64B5 - 17.002,

which provides, in relevant part, as follows:

64B5 - 17.002 Written Dental Recor ds; Minimum

Content; Retention.

(1) 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 contain, at a minimum, the

following information abo ut 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 pa tient;

(d) Treatment plan proposed by the dentist;

and

(e) Treatment rendered to the patient.

56. The Department reads the statutory phrase, "justifying

the course of treatment," to mean, in effect, "proving that the

course of treatment met the standa rd of care." 14 Under the

Department's interpretation of section 466.028(1)(m) , the

dentist must keep a detailed diary of all his interactions with

the patient, writing a narrative that includes, among other

things, a record of dentist - patient communication s; an

explication of the dentist's analysis of (and rationale for)

each treatment choice; an explanation of why alternative

treatments were rejected; a nd a list of instruments used.

Patient records of the sort the Department envisions would be a

treasure trove of tempting targets for criticism, nit - picking,

and second - guessing. It is therefore understandable that

Department prosecutors ÏÏ not to mention civil trial lawyers ÏÏ

would appreciate having access to records containing such

information. The Departme nt frankly acknowledges, however, that

its position depends on an expansive interpretation of section

466.028(1)(m) , under which obligations not expressly stated in

the statute would be imposed on the profession.

57. Therein lies the problem with the D epartment's

position. The law requires that disciplinary statutes be

strictly construed, not liberally expanded. Considering that

even dentists who have been accused of committing malpractice do

not have the burden to prove that they met the standard of care,

it would be anomalous if the recordkeeping statute required all

dentists routinely to create patient records sufficient in

themselves to demonstrate the exercise of reasonable care under

the circumstances. 15 Accordingly, unless and until the

legislat ure enacts a statute clearly imposing such a

recordkeeping burden, the minimum obligation under section

466.028(1)(m) , narrowly construed, is to document information

sufficient to show that the course of treatment had a rational

basis in dentally relevant facts. 16

58. As found above, the undersigned has determined that,

with one exception, Dr. Gaeta created a patient record for R.S.

that conforms to the requirements of section 466.028(1)(m).

Dr. Gaeta's failure to record the use of an anesthetic agent in

connection with the root canal procedure constitutes the sole

recordkeeping violation proved in this case. Although the

Department proved just one recordkeeping deficiency, Dr. Gaeta's

disciplinary history shows that he is a recidivist with regard

to section 466.028(1)(m) ÏÏ a fact that will affect the penalty

recommendation which follows.

59. In Count II of the Complaint, the Department charged

Dr. Gaeta under section 466.028(1)(x), which provides in

pertinent part as follows :

(1) The following act s constitute grounds

for denial of a license or disciplinary

action . . . :

* * *

(x) Being guilty of incompetence or

negligence by failing to meet the minimum

standards of performance in diagnosis and

treatment when measured against generally

p revailing peer performance, including, but

not limited to, the undertaking of diagnosis

and treatment for which the dentist is not

qualified by training or experience or being

guilty of dental malpractice.

60. As found above, the Department did not suc ceed in

proving by clear and convincing evidence that Dr. Gaeta failed

to meet the minimum standards of performance in treating R.S.,

as charged in the Complaint.

61. The Board of Dentistry imposes penalties upon

licensees in accordance with the discipl inary guidelines

prescribed in Florida Administrative Code Rule 64B5 - 13.005. The

range of penalties for a third offense involving section

466.028(1)(m), which is set forth in rule 64B5 - 13.005(1)(m), is

from probation with conditions and a $2,500 fine to r evocation

and a $10,000 fine.

62. Rule 64B5 - 13.005(2) provides that, in applying the

penalty guidelines, the following aggravating and mitigating

circumstances are to be taken into account:

(a) The danger to the public;

(b) The number of specific off enses, 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 violat ion;

(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 .

63. Subparagraphs (a), (b), (d), (e) s et forth relevant

mitigating factors in this case, while subparagraphs (c), (f),

(h), and (i) are aggravating factors. On balance, the

undersigned does not find compelling reasons to deviate from the

guidelines and therefore recommends that the Board of D entistry

impose a penalty that falls within the recommended range.

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 recordkeepin g 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 mon ths,

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, Flo rida.

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.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2012.

ENDNOTES

1 / Petit ioner's Exhibit 8 is the deposition of patient R.S.,

which was offered and received in lieu of his appearance and

testimony at hearing.

2 / With one exception, the Department did not allege that Dr.

Gaeta violated the recordkeeping requirements by failing to

document that he did not perform a particular dental act.

3 / See , e.g. , Brooks v. Serrano , 209 So. 2d 279, 280 (Fla. 4th

DCA 1968)

4 / See § 466.028(1)(x), Fla. Stat.

5 / Brooks , 209 So. 2d at 280.

6 / See Robinson v. Fla. Bd. of Dentistry, Dep't of Prof'l Reg. ,

447 So. 2d 930, 932 (Fla. 3d DCA 1984)("One professional's

opinion, without more, on a particular treatment is neither

substantial evidence of incompetence nor a measure of 'generally

prevailing peer performance.'").

7 / The expert should not be permitted to testify on direct

examination that his opinions regarding the standard of care

were based on consultations with colleagues or other experts

about the case, for that would improperly bolster the testifying

expert's credibility while prov iding a conduit for inadmissible

hearsay. See Linn v. Fossum , 946 So. 2d 1032, 1039 (Fla. 2006).

An informed understanding of prevailing professional standards

may be predicated, however, on the expert's own experiences in

comparable situations; the expe riences of other professionals as

made known to him before the incident giving rise to the

lawsuit; and professional principles, practices, and theories

learned in school, or from technical literature, "shop talk,"

seminars, etc. Id. at 1040 n.5 (citing a s distinguishable, and

with apparent approval, Jefferis v. Marzano , 696 P.2d 1087 (Or.

1985)).

8 / Cf. B.B.A. v. Dep't of Health & Rehab. Servs. , 581 So. 2d

955, 958 (Fla. 1st DCA 1991)(Zehmer, J., dissenting)(dissenting

judge cogently explains that unl ess an expert's views are stated

as being a reflection of the "generally accepted practice in the

medical profession," his testimony regarding the standard of

care "is effectively nothing more than his own personal opinion

that may or may not be recognized generally").

9 / Because Dr. Gaeta was not charged with failing to retain

patient records, which is a different shortcoming from that

charged here, namely failing to put sufficient information in a

patient's record, the Department's reliance on section

4 66.018(4) ÏÏ dealing with record retention ÏÏ is misplaced.

10 / See Trevisani v. Dep't of Health , 908 So. 2d 1108, 1109

(Fla. 1st DCA 2005)(doctor could not be disciplined for failing

to retain possession of patient records because administrative

complaint al leged only that doctor had failed to create or

complete the records).

11 / Cf. Barr v. Dep't of Health , 954 So. 2d 668 (Fla. 1st DCA

2007)(recordkeeping violations are not punishable as dental

malpractice because there is a "significant difference" betwe en

the two, and treating recordkeeping deficiencies as standard - of -

care violations would render "useless" the statute defining

inadequate recordkeeping as a disciplinable offense).

12 / Reinforcing this conclusion is rule 64B5 - 14.006, which

requires dentis ts to report adverse incidents arising from the

use of anesthesia to the Board of Dentistry. Such reports must

include, among other information, a "[l]ist of drugs and dosage

administered." Fla. Admin. Code R. 64B5 - 14.006(c).

13 / See Dep't of Health v. Gaeta , Case No. 2003 - 05087 (Fla. Bd.

of Dentistry Aug. 25, 2009); Dep't of Health v. Gaeta , Case No.

1999 - 61008 (Fla. Bd. of Dentistry Feb. 12, 2002).

14 / The Department does not articulate its position in these

terms. It writes, instead, that "the det ail [in the patient

record] should be enough to protect the patient from harm

. . . ." Pet.'s Prop. Rec. Order at 33. The undersigned

interprets the Department's argument as an assertion that the

patient record must be sufficiently detailed to show that the

dentist protected the patient from harm, i.e., exercised

reasonable care under the circumstances in accordance with the

minimum standards of performance. Elsewhere in its Proposed

Recommended Order the Department makes clearer its notion that

the pat ient record must suffice per se to prove that the dentist

met the standard of care. E.g. , id. at 26 ("Because [the crown -

to - root ratio] was not documented, [the administrative law

judge] must conclude that the standard of care was not met and

find that th e Respondent did not meet the required minimum

standard of care."); id. at 26 - 27 ("Petitioner is justified in

assuming this lack of documentation[, i.e., the absence of a

note in the patient record explaining why a crown was placed on

tooth #29,] means the diagnosis was not done to support the

treatment provided. This fails to meet the minimal standard in

diagnosis and treatment."); id. at 29 ("The Respondent testified

at trial that he used an apex locator, but he did not document

this fact in writing. Th erefore, [the administrative law judge]

must find that he did not do so.").

15 / It is not an exaggeration to observe that the Department's

interpretation of the recordkeeping statute, if adopted, would

have a burden - shifting effect bearing on the standard of care.

This is because the Department tacitly maintains that unless the

patient record contains within its four corners evidence

sufficient to show that the course of treatment met the minimum

standards of performance, then the dentist is guilty ÏÏ at le ast

of a recordkeeping violation and probably of a standard - of - care

violation as well.

16 / Of course, satisfying this minimum recordkeeping requirement

does not necessarily produce proof that the minimum standards of

performance were met; conversely, the failure to satisfy the

minimum recordkeeping requirement, without more, is not proof

that the minimum standards of performance were not satisfied.

At bottom if a dentist is later charged with a standard - of - care

violation, the patient record (whether in or out of compliance

with section 466.028(1)(m) ) is not the only evidence available

to the Department on the question of whether the standards of

performance were met. The Department can use other evidence to

prove such a charge, just as the dentist can use other evidence

in his defense.

COPIES FURNISHED :

Geoffrey F. Rice, Esquire

Wayne Mitchell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Flor ida 32399 - 3265

Max R. Price, Esquire

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

6701 Sunset Drive, Suite 104

Miami, Florida 33143 - 4529

Sue Foster, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C - 08

Tallahassee, Flor ida 32399 - 3258

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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