12-004024PL Department Of Health, Board Of Dentistry vs. Steven Courtens, D.D.S. Status: Closed Recommended Order on Tuesday, March 26, 2013.

Summary: Petitioner established that Respondent failed to maintain certain dental records and failed to meet the minimum standards of performance concerning the use of a rubber dam in violation of sections 466.028(1)(m) and 466.028(1)(x), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 12 - 4024PL

)

STEVEN COURTEN , D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on

February 5, 2013, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Adrienne C. Rodgers, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Archie J. Ryan, Esquire

Ryan and Ryan LLC

700 Dania Beach Boulevard

Dania Beach, Florida 33004

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, a dentist,

failed to maintain adequate records regarding his treatment of

patient M.C. and/or provided M.C. dental care, including root

canal therapy, that fell below minimum standards of performance,

as Petitioner alleges; if so, whether (and what) disciplinary

action should be taken as a result.

PRELIMINARY STATEMENT

P rior to June 1, 20 11, the Department of Health issued an

Administrative Complaint against Respondent, Steven Courten,

D.D.S. 1 / On or about June 1, 2011, Respondent filed an election

of rights disputing the material facts alleged in the

Administrative Complaint and request ing an administrative

hearing. On December 14, 2012, the Department of Health issued

an Amended Administrative Complaint ( " Complaint " ) against

Respondent. O n December 17, 2012, the Department referred the

matter to the Division of Administrative hearings .

Administrative Law Judge John G. Van Laningham was assigned

to the matter and the final hearing was scheduled for

February 5, 2013. On January 30, 2013, this case was

transferred to the undersigned for all further hearings.

Both parties were repres ented by counsel at the hearing,

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

Odette Hershkowitz, Enrique Torres, Patient M.C., Dr. Thomas

Shields, II, and Respondent. Received in evidence during the

Department ' s case were Petitioner ' s Exhibits 1 - 5, 7, 8(a), 8(b),

and 12. Respondent testified on his own behalf. 2 /

The final hearing transcript, comprising two volumes, was

filed on February 22, 2013. Petitioner timely filed a Proposed

Recommended Order and Respondent timely filed a Propo sed Final

Order, which were considered in preparing this Recommended

Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged misconduct.

FINDINGS OF FACT

Introduction

1. At all tim es relevant to this case, Respondent Steven

Courten, 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. Courten. In p articular, 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 commit ted a disciplinable offense.

3. Here, the Department alleges that Dr. Courten committed

two such offenses. In Count I of the Complaint, the Department

charged Dr. Courten with the offense defined in section

466.028(1)(m) , alleging that he failed to ke ep written dental

records justifying the course of treatment of a patient named

M.C. In Count II, Dr. Courten was charged with incompetence or

negligence Ï again vis - à - vis M.C. Ï allegedly by failing to meet the

minimum standards of performance in diagnosis a nd treatment when

measured against generally prevailing peer performance, an

offense under section 466.028(1)(x).

The Material Historical Facts

4. M.C. and Respondent have known each other personally

since the 1960s, when they attending grade school to gether. In

1992, Respondent began providing dental services to M.C.

Respondent performed dental services for M.C. during two time

periods, from 1992 - 1995 and again from 2001 - 2009. The Complaint

specifically limits the allegations against Respondent to th e

care and treatment provided to M.C. from April 30, 2005 through

2009.

5. Respondent treated M.C. under a financial arrangement

whereby Respondent would receive payment from M.C. ' s dental

insurance, when such coverage was available. Although M.C. had

a co - pay obligation that varied over the years, Respondent would

forgive the same.

6. The primary, but uncharged, event giving rise to this

case occurred on November 15, 2009. On that occasion, M.C.

presented to Respondent and a d ispute arose over to oth n umber 2,

which was no longer in M.C. ' s mouth and was composed of 18 karat

gold. Respondent proposed a course of treatment to include re -

cementing the same. M.C. expressed his desire to simply take

possession of the tooth and Respondent refused.

7 . Thereafter, M.C. submitted a handwritten, unsigned

complaint to the Department of Health alleging that Respondent

was practicing dentistry out of his home, in unsanitary

conditions, and in a manner that was below the standard of care.

8. As part of the subsequent investigation, on or about

January 21, 2010, a subpoena with a n accompanying certificate of

completeness of records was served on Respondent. In response,

Respondent provided the Department with M.C. ' s records and the

executed certificate o f completeness on or about February 8,

2010.

9. A dispute exists between the parties regarding whether

Respondent , in response to the subpoena and as attested by

Respondent i n the certificate of completeness, provided to the

Department all of the recor ds comprising M.C. ' s chart .

Respondent was not charged, however, with failing to make

available to the Department copies of documents in the

possession of Respondent which related to M.C. , a separate

disciplinable offense pursuant to section 466.028(1)(n) .

Therefore, he is not subject to discipline in this case for any

shortcoming concerning said dispute.

The Charges

10. A thorough dissection of the instant Complaint is a

required exercise in this case. Paragraph 5 provides that,

" [t]he Respondent ' s continuing care from April 30, 2005 onward

is the subject of this Amended Administrative Com plaint. "

11. Consistent with that limitation, Paragraphs 6 through

9 allege that Respondent performed root canals and crownwork on

October 15, 2005; January 1 5, 2009; and February 20, 2009,

concerning teeth numbers 5, 7, and 20, respectively.

12. Paragraph 20 alleges that Respondent did not use a

rubber dam for isolation during the root canal treatment s of

teeth numbers 5, 7, and/or 20.

13. Paragraph 24 alleges that Respondent did not obtain

sufficient radiographs for evaluation of the root canal

treatments of teeth numbers 5, 7, or 20.

14. Paragraph 11 is interpreted by the undersigned as an

attempt to allege that Respondent did not document radiogra phs

or radiographic results in the written treatment record

concerning teeth numbers 2 and 10 on the visit of November 15,

2009.

15. T he balance of the factual allegations contained

within the Complaint under the headings of " Medical History , "

" Radiogr aph Sufficiency and Margin Evaluation , " " Radiographic

Examination Documentation , " " Periodontal and Soft Tissue Care , "

and " Statements in the Alternative " fail to refer to a specific

treatmen t, examination, date, or tooth. The undersigned has

interpreted s aid allegations to apply exclusively to the course

of treatment contained within the time limitation consistent

with paragraph 5.

16 . As noted above, t he charges against Respondent are set

forth in the Complaint under two counts. In Count I, the

Depa rtment accused Respondent 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 M.C., Respondent violated the recordkeeping

requirements in six partic ulars, which are identified in

paragraph 47, subparagraphs a) through f) of the Complaint. In

Count II, the Department charged Respondent with dental

malpractice, which is punishable under section 466.028(1)(x).

Seven particulars of alleged incompetence or negligence in the

treatment of M.C. are set forth in paragraph 51, subparagraphs

a) through g).

17. Several of the allegations in paragraphs 47 and 51 are

parallel to one another, so that, when aligned side - by - side,

they can be examined in logical p airs. 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 M.C. to meet the minimum standards of

performance as measured against generally prevailing peer

performance, Respondent failed to do X, thereby violating the

standard of care. Respondent also failed to record doing X in

the patient ' s record, thereby violating the recordkeeping

requirements.

18. The parallel propositions comprising each allegation -

pa ir are mutually exclusive. For example, if Respondent 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 circumstan ces, X was required to

be done to meet the minimum standards of performance. If

Respondent did not do X, however, he obviously could not be

disciplined for not recording in M.C. ' s chart that he actually

performed X . ( If a dentist were to write in a patie nt ' 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

Depa rtment has charged Respondent.)

19. Conversely, if Re spondent in fact did X and failed to

note in M.C. ' s chart having done X, then Ï if the law required

Respondent to document the performance of X Ï he would be guilty

of a recordkeeping violation.

20. The specific charges against Respondent are reproduced

in the table below, which places the corresponding allegation -

pairs side - by - side in separate rows. For ease of presentation,

the undersigned has reordered the allegations to some extent.

An empty cell denotes the absence of a corresponding allegation.

2 1. The Department charges Respondent as follows:

Count II, ¶ 51: Alleged Count I, ¶ 47: Alleged

Standard - of - Care Violations Recordkeeping Violations

1 a) [F]ail[ing] to perform a b) Respondent ' s notes do not

comprehensive periodontal in clude a comprehensive

examination periodontal examination

2 b) [F]ail[ing] to perform c) Respondent ' s notes do not

sufficient, if any, soft tissue include the results of a soft

examination tissue examination

3 c) [F]ail[ing] to provide for,

adequately document, a nd/or

receive, informed consent for

the multiple root canal

treatments provided to Patient

M.C.

4 d) [F]ail[ing] to use a rubber

dam and/or provide adequate

justification for not using a

rubber dam

5 e) [F]ail[ing] to properly

evaluate the obturatio n of his

root canal treatments on one or

more occasions

6 f) [F]ail[ing] to properly

evaluate the margins of his

crown placements

7 g) [F]ail[ing] to take d ) [F]ail[ing] to maintain

adequate diagnostic label s or mounting for the

comprehensive radiographs radiographic records;

necessary to properly diagnose, e) [F]ail[ing] to document

treatment plan an d/or perform findings, interpretations, or

the necessary treatments. diagnostic results of his

radiographic examinations;

f) [F]ail[ing] to take o r

maintain adequate diagnostic

comprehensive radiographs

necessary to justify the

treatment that was performed

8 a) Respondent ' s notes do not

include an appropriate medical

history

Radiographs

22. The Department presented the testimony of Thomas

Shields, D.D.S., on issues relating to the standard of care and

record keeping. Dr. Shields was shown to have formulated his

opinions based upon the review of information provided him by

the Department . Included within the Department ' s information

was an envelope that contained 51 individual radiographs. The

radiographs appeared to be originals that were not mounted,

labeled, or dated.

23. As a result, it was not possible for Dr. Shields to

follow the treatment sequence provided by Respondent to M.C.

Dr. Shields, in turn, opined that Respondent failed to meet the

minimum standards for the profession of dentistry because 1) he

could not discern evidence of full mouth radiographs; and 2) he

could not discern that the radiographs were sufficient to

adeq uately treat M.C. He further opined , based upon the loose

radiographs received, that Respondent fail ed to meet standards

for record - keeping because, although there are many radiographs,

same are not described in the records.

24. A pivotal dispute e xist s, however, concerning whether

the radiographs used for the diagnosis and treatment of M.C. ,

and the cardboard mounts in which they were originally placed,

were provided by Respondent and/or received by the Department.

2 5 . Respondent credibly maintains that the subject

radiographs were submitted to the Depar tment on four cardboard

mounts that included the dates of exposure, as well as minimal

descriptions . Respondent further credibly avers that when the

same were returned to him, after having been copi ed by a third -

party c opying service utilized by the Department, the mounts

were absent and the order and sequencing of the radiographs w ere

al tered.

26. The evidence presented with regard to the standard of

care violations contained in paragraphs 51(e) and (g) and the

record - keeping violations contained in paragraphs 47(d), (e),

and (f) does not clearly and convincingly demonstrate that

Respondent failed to 1) take radiographs to properly evaluate

the obturation of M.C. ' s root canal treatments; or 2) ta ke

adequate diagnostic comprehensive radiographs necessary to

properly diagnose, treatment plan and/or perform the necessary

treatments.

27. The evidence further fails to prove clearly and

convincingly that Respondent failed to 1) maintain label s or

mo unting for the radiographic records; 2) document findings,

interpretations, or diagnostic results of his radiographic

examinations; or 3) take or maintain adequate diagnostic

comprehensive radiographs necessary to justify the treatment

that was performed . Respondent is , therefore, not guilty of the

charges as alleged in paragraphs 51 (e) and (g) or paragraphs

47(d), (e), and (f).

Comprehensive periodontal examination

28. Dr. Shields, from review of the available records,

opined that Respondent failed to perform a proper periodontal

examination. The basis for this opinion is , again, exclusively

premised upon the lack of documentation contained in M.C. ' s

medical chart. The evidence does not clearly and convincingly

establish any minimum standards of perfo rmance that Respondent

failed to meet, under the facts of this case, in examining or

addressing M.C. ' s periodontal condition. As a result,

Respondent is not guilty of the standard - of - care violation

alleged in paragraph 51(a).

29. The evidence does, ho wever, clearly and convincingly

establish that Respondent failed to maintain the results of any

such periodontal examination, and, therefore, Respondent is

guilty of the record - keeping violation as set forth in paragraph

47(b).

Soft tissue/oral pathology

30. Dr. Shields, from review of the available records,

opined that there was no evidence that Respondent performed a

soft ti ssue or oral cancer examination. The basis for this

opinion is , again, exclusively premised upon the lack of

documentation conta ined in M.C. ' s medical chart. The evidence

does not clearly and convincingly establish any minimum

standards of performance that Respondent failed to meet, under

the facts of this case, in examining M.C. As a result,

Respondent is not guilty of the stand ard - of - care violation

alleged in paragraph 51(b).

31. The evidence does, however, clearly and convincingly

establish that Respondent failed to maintain the results of a

soft tissue analysis and cancer screening. Indeed, Respondent

conceded that while he performed a soft tissue analysis and

conducted an oral cancer screening, he did not chart the results

because there were no findings. 3 / Accordingly, Respondent is

guilty of the record - keeping violation as set forth in paragraph

47(c).

Informed consen t

32. With regard to paragraph 51(c), the evidence is

insufficient to prove clearly and convincingly that Respondent

failed to provide for, adequately document, and/or receive,

informed consent for the multiple root canal treatments provided

to M.C. The patient, whose testimony was often disjointed,

conceded that he was adequately informed of the root canal

treatments:

Q. Did Dr. Courten always explain what he

was going to do and the procedure prior to

the work with you? Did he sit down and

explain to you what your problem was and how

to correct it?

* * *

A. I understand. The way things went it

wasn ' t an issue of what he was going to do

as to how much time we had to do it. Are

you comfortable with this? You know, these

are our options, you know , for this one.

33. The undersigned finds that Respondent provided

sufficient informed consent to M.C. regarding the treatment

provided. For that reason alone, Respondent 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 states the offense Respondent has been

accused of committing. For this additional and independent

reason, Respo ndent cannot be found guilty of the standard - of -

care violation alleged in paragraph 51(c).

Rubber dam utilization

34. Dr. Shield opined that Respondent failed to meet the

minimum standard of dental care in Respondent ' s failure to use a

rubber dam when p erforming root canals on M.C. As Dr. Shield

testified, a rubber dam has three functions: 1) to prevent any

objects from entering the airway or being aspirated or

swallowed; 2) to protect the tissue surrounding the subject

tooth from the adverse materials used such as hypochlorite; and

3) to keep the operating field as sterile as possible.

35. Dr. Shield testified that the utilization of a rubber

dam is the minimal standard of care. Respondent conceded that a

rubber dam is mandatory, is within the sta ndard of care, and to

be used whenever possible. Respondent testified , however, that

in four or five instances he did not use a rubber dam, because

in those particular instances, it was contra - indicated. He

further testified that he used a rubber dam " pr obably, only,

maybe two time s , possibly, in the ten or so root canals because

there were situations where the root was too small or the decay

was too far sub - gingival. " In th e balance of occasions,

Respondent employed an alternate aseptic protocol, called

Isolite. Respondent ' s alternate aseptic protocol caveat to the

standard of care Ï utilizing a rubber dam Ï is rejected and

Dr. Shield ' s opinion is accepted.

36. With regard to the standard - of - care allegation set

forth in paragraph 51(d), the evidence is sufficient that

Petitioner proved by clear and convincing evidence that

Respondent failed to meet the minimum standard of dental care in

failing to use a rubber dam when performing root canals on M.C.

Appropriate medical history

37. The Complaint alle ges, in paragraph 47 (a) , that

Respondent ' s notes do not include an appropriate medical

history. In support of this allegation, Petitioner avers that

although a medical history was partially obtained in August 20,

1992 (outside the time limitation establi shed by the Complaint),

Respondent never updated the medical history.

38. While a review of the chart reveals a limited initial

medical history, from the perspective of the undersigned, the

same is insufficient to establish a finding that it was not an

" appropriate medical history. " This conclusion is buttressed by

the fact that no evidence was submitted, outside of the chart

itself, to support Petitioner ' s position that it was

inappropriate. Thus, Petitioner has not established by clear

and convincin g evidence the record keeping violation as stated

in paragraph 47(a).

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

sections 120.569, and 120.57(1), Florida St atutes.

40. 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 Estate Comm ' n , 281 So. 2d 487,

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

Depa rtment must prove the charges against Respondent 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).

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

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a " workable definition of cl ear and convincing

evidence " and found that of necessity such a definition would

need to contain " both qualitative and quantitative standards. "

The court held that:

clear 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

th e 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 adopted 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 standard of proof may

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

preclude ev idence 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 omitted).

4 2. 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 the statute is penal in nature. No conduct is to be

regarded as included within a pen al 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 Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d

929 (Fla. 1st DCA 2011)(statutes imposing a penalt y must never

be extended by construction).

43 . Due process prohibits an agency from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument. See § 30

120.60(5), Fla. Stat. ( " No revocation, sus pension, 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 administrative complaint which

affords reasonable notice to the licensee of facts or co nduct

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 for 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 statute or rule claimed [in

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

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

Respondent 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) Fail ing 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 results, test

re sults, and X rays, if taken.

4 5. In connection with this char ge, the Department alleged

further that Respondent had not complied with rule 64B5 - 17.002,

which provides, in relevant part, as follows:

64B5 - 17.002 Written Dental Records; 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 about the

patient:

( a) Appropriate medical history;

(b) Results of clinical examinatio n 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.

46. As found above, the undersigned has determined that

Respondent failed to keep written dental records that conform to

the requirements of section 466.028(1)(m) in failing to maintain

written records of M.C. that contain 1) the re sults of

periodontal examinations and 2) soft tissue analysis or oral

pathology results.

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

Respondent under section 466.028(1)(x), which provides in

pertinent part as follows:

(1) The following ac ts 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

prevail ing 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.

48. As found above, the Department succeeded in prov ing by

clear and convincing evidence that Respondent failed to meet the

minimum standards of performance in treating M.C., by the

failure to utilize a rubber dam when performing root canals.

49. The Board of Dentistry imposes penalties upon

licensees i n accordance with the disciplinary guidelines

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

range of penalties for a first offense involving section

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

from a $500 fine to prob ation with conditions and a $7500 fine.

50. The range of penalties for a first offense involving

section 466.028(1)(x), which is set forth in rule 64B5 -

13.005(1)(x), is from a $500 fine to probation with conditions

and a $10,000 fine.

51. 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 offenses, other

than the offense for which the l icensee 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 lic ensee to correct or

stop the violation or refusal by the

licensee to correct or stop violation;

(k) Any other relevant mitigating or

aggravating facto under the circumstances.

52. Having considered the potential aggravating and

mitigating factors, t he undersigned does not find compelling

reasons to deviate from the guidelines, and, therefore,

recommends that the Board of Dentistry impose a penalty that

falls within the recommended range.

RECOMMENDATION

Based on the foregoing Findings of Fact and Con clusions of

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

order finding Respondent guilty of the record - keeping violations

alleged in paragraphs 47(b) and (c) of the Complaint (failure to

record periodontal, soft tissue, and oral patholo gy

examinations) and the standard - of - care violation alleged in

paragraph 51(d) of the Complaint (failure to utilize a rubber

dam); finding Respondent not guilty of the remaining violations;

and imposing the following penalties: issuance of a letter of

con cern; remedial education reasonably related to the topics of

recordkeeping, endodontics, and ethics; and a fine of $2500.00.

DONE AND ENTERED this 26 th day of March, 2013, in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 Admi nistrative Hearings

this 26 th day of March , 2013 .

ENDNOTES

1 / The record is silent concerning t he date of issuance of the

Administrative Complaint.

2 / Respondent did not offer any exhibits during the Final

H earing. On February 6, 2013, Respondent filed a Verified

Motion to Reopen Hearing for the purpose of allowing the

introduction of Respondent ' s " written patient records " into

evidence. On February 13, 2015, the undersigned issued an order

denying said mot ion.

3 / Rule 64B5 - 17.002(1)(b) provides that a dentist shall maintain

written records on each patient that contain the results of

clinical examinations and tests conducted, including the

identification, or lack thereof, of any oral pathology or

diseases .

COPIES FURNISHED :

Archie J. Ryan, Esquire

Ryan and Ryan LLC

700 Dania Beach Boulevard

Dania Beach, Florida 33004

Adrienne C. Rodgers, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

Susan Foster, Execu tive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399 - 3258

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF R IGHT 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 cas e.