96-003563 Board Of Dentistry vs. Jeffrey N. Beck Status: Closed Recommended Order on Wednesday, August 26, 1998.

Summary: Dentist aided unlicensed person to practice dentistry; was negligent; delegated responsibilities to untrained unlicensed person; operated dental office which failed to meet minimum standards. Suspension, probation, fine, and reprimand recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case Nos. 96-3563

) 96-3564

JEFFREY BECK, D.D.S., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these

consolidated cases on February 17, 1998, before Patricia Hart

Malono, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was held via

video teleconference, with the Petitioner and the Respondent

appearing at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Thomas E. Wright, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Jeffrey N. Beck, D.D.S., pro se

350 South State Road 7

Margate, Florida 33068

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Administrative Complaints dated May 15, 1995, and April 30,

1996, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In DOAH Case No. 96-3563, the Department of Health 1 filed an

Administrative Complaint dated May 15, 1995, in which it charged

that Jeffrey Beck, D.D.S., was incompetent or negligent in the

practice of dentistry by failing to meet the minimum standards of

performance in the diagnosis and treatment of patient

G. J. [J. R.], a violation of Section 466.028(1)(x), Florida

Statutes, and that Dr. Beck failed to keep proper dental records

justifying his treatment of patient G. J., a violation of Section

466.028(1)(m), Florida Statutes. Dr. Beck timely filed a request

for an administrative hearing, and the Department transmitted the

case to the Division of Administrative Hearings for assignment of

an Administrative Law Judge.

In DOAH Case No. 96-3564, the Department of Health filed an

Administrative Complaint dated April 30, 1996, in which it

charged that Jeffrey Beck, D.D.S., aided an unlicensed person in

the practice of dentistry, a violation of Section 466.028(1)(g),

Florida Statutes; delegated professional responsibilities to an

unqualified person, a violation of Section 466.028(1)(z), Florida

Statutes; operated a dental office in such a manner that dental

treatment was provided that was below minimum standards of

acceptable performance in the community, a violation of

Section 466.028(1)(ff), Florida Statutes; and failed to include

the required disclaimer in an advertisement for free dental

services, a violation of Rule 59Q-4.003(5), Florida

Administrative Code, and Section 466.028(1)(aa), Florida

Statutes. Dr. Beck timely filed a request for an administrative

hearing, and the Department transmitted the case to the Division

of Administrative Hearings for assignment of an Administrative

Law Judge.

By order dated August 18, 1997, DOAH Case Nos. 96-3563 and

96-3564 were consolidated, and, after several continuances, the

formal hearing was held on February 17, 1998.

At the hearing, the Department of Health ("Department")

presented the testimony of Paul Danziger, D.D.S., the

Department's expert; G. J. J. R., a former patient of Dr. Beck;

and Robert Yastrimski, an investigator employed by the

Department. Petitioner's Exhibits 1 through 4, 7, 9, 11, and 13

were offered and received into evidence. The deposition

transcript of E. B., a former patient of Dr. Beck, was offered in

lieu of live testimony in a Motion to Accept Deposition in Lieu

of Live Testimony. The deposition transcript was received into

evidence as Petitioner's Exhibit 1, pursuant to Rule 1.330(a),

Florida Rules of Civil Procedure.

Dr. Beck testified in his own behalf, and Respondent's

Exhibits 2, 3, 3a, 7, 9, 12, 15, 17, and 18 were offered and

received into evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings, and both parties submitted

proposed findings of facts and conclusions of law, which have

been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Health is the state agency responsible

for regulating the practice of dentistry. Section 20.43, Florida

Statutes (1997), and Chapters 455 and 466, Florida Statutes. The

Board of Dentistry is responsible for certifying dentists for

licensure and for disciplining licensed dentists. Sections

466.011 and .028(2), Florida Statutes.

2. Jeffrey Beck, D.D.S., is, and was at all times material

to this action, licensed to practice dentistry in Florida, having

been issued license number DN 0005517.

Patient E. B.

3. At the times material to this proceeding, Accent Dental

Services, Inc., was a Florida corporation of which Carlos

Castaneda owned fifty percent and Dr. Beck owned fifty percent.

Accent Dental Services consisted of a dental office and a

laboratory for the construction and repair of dentures. At the

times material to this proceeding, the business card for Accent

Dental Services included the address and telephone number of the

business and bore the following names and designations: Carlos

A. Castaneda, D.T., and Jeffrey N. Beck, D.D.S.

4. All of the income of Accent Dental Services was, at the

times material to this action, generated by the construction and

repair of dentures.

5. At the times material to this proceeding, Mr. Castaneda

was not licensed as a dentist, and Accent Dental Services was not

registered as a dental laboratory. Mr. Castaneda was trained to

construct and repair dentures by his brother, who operates a

dental laboratory.

6. Accent Dental Services was open for business at least

five days per week, but Dr. Beck was in the Accent Dental

Services office only on Wednesdays.

7. E. B. first visited Accent Dental Services on Saturday,

April 2, 1994, because she had lost her upper denture and needed

to replace it as soon as possible. She called Accent Dental

Services because she saw an advertisement in a PennySaver

magazine representing that the business specialized in dentures

and offered rapid service. She spoke with Carlos Castaneda, who

told her she should come to his office an hour later.

8. When she arrived at the Accent Dental Services office,

she was seen by Mr. Castaneda. She filled out a dental and

medical history form, and Mr. Castaneda took a dental impression

and told her that the denture would be ready on the following

Monday. Mr. Castaneda advised her that the total cost of the

denture would be $750, and, at his request, E. B. paid a $100

deposit by check payable to Accent Dental Services.

9. Although Dr. Beck was identified in the PennySaver

advertisement as the dentist affiliated with Accent Dental

Services, E. B. did not see him during her visit to Accent Dental

Services on April 2. Mr. Castaneda identified himself to her as

a dental technician and explained that he took impressions and

made dentures and that Dr. Beck took care of fitting the

dentures. When she asked when she would see Dr. Beck,

Mr. Castaneda told her that Dr. Beck was in the office only on

Wednesdays and that she would see him the following Wednesday.

10. When E. B. returned to Accent Dental Services on

Monday, April 4, she refused to accept the denture that

Mr. Castaneda showed her. He told her to come back on Tuesday.

At Mr. Castaneda's insistence, E. B. paid the balance of the $750

fee, writing a check dated April 4, 1994, in the amount of $650,

payable to Accent Dental Services.

11. E. B. returned on Tuesday, April 5, and Mr. Castaneda

had a new denture prepared. When he tried to insert the denture,

it did not fit properly, and he made some adjustments so the

denture would fit in her mouth. It needed further adjustments,

however, and Mr. Castaneda told her that Dr. Beck would fit the

denture for her on Wednesday.

12. Mr. Castaneda examined E. B. when she went to Accent

Dental Services on Wednesday, April 6. She told Mr. Castaneda

that she could not wear the dentures, that they were very

uncomfortable. Dr. Beck then came into the room, looked into her

mouth, and stated that the dentures were a "very tight fit." He

then turned and walked out of the room, leaving Mr. Castaneda to

fit the denture.

13. E. B. returned several times to Accent Dental Services

asking that the denture be adjusted to a proper fit.

Mr. Castaneda made several adjustments, but they did not correct

the problems. E. B. did not see Dr. Beck during any of these

visits.

14. E. B. left for New York in late April 1994. She was

not able to wear the denture she had purchased from Accent Dental

Services because it was so painful; on May 7, 1994, within a week

of her arrival in New York, she went to the dentist who had made

her original dentures. Dr. Scharoff was not able to adjust the

denture Mr. Castaneda made for a proper fit, and E. B. purchased

a new upper denture from him for $1650.

15. E. B. sent a certified letter to Accent Dental

Services, listing the problems Dr. Scharoff had found with the

denture. She sent the letter registered mail, and Mr. Castaneda

signed for it on May 19, 1994.

16. E. B. did not get any response to her letter. When she

returned to Florida in November 1994, she went to the Accent

Dental Services office and was met in the waiting room by

Mr. Castaneda. She told him she wanted a refund of the monies

she had paid for the defective denture. Mr. Castaneda told her

to get out, and she did.

Patient G. J. J. R.

17. G. J. J. R. was first seen by Dr. Beck at the Emergency

Denture Center in Hollywood, Florida, on July 19, 1993. At that

time, Dr. Beck had just recently become associated with the

Emergency Dental Center. G. J. J. R. had previously had contact

with Herman Castaneda, the dental technician at the Emergency

Dental Center, who relined his denture in 1991.

18. After his July 19 visit, dentures were constructed

consisting of an upper partial denture and a lower full denture,

which had three attachments built into the denture. The dentures

were made at the Emergency Dental Center laboratory by Herman

Castaneda and were fitted by Dr. Beck.

19. Although G. J. J. R. is satisfied with the upper

partial denture he obtained from Dr. Beck, Dr. Beck did not

adequately fit the denture. The denture was constructed with

rests which were designed to fit into rest seats cut into the

teeth adjacent to the denture. Dr. Beck did not prepare the rest

seats in G. J. J. R.'s teeth, and the upper denture settled into

his gums. An examination performed on October 20, 1994, by a

dentist retained by the Department revealed that the tissue under

the upper partial denture was very red and swollen and covered

with petechiae, or red spots, presenting a potential health

problem. This irritation can be only partially attributed to the

fact that G. J. J. R. never removes the denture. The denture

settled into the soft tissue as a result of Dr. Beck's failure to

prepare G. J. J. R.'s mouth properly to receive the denture, and

much of the swelling, redness, and petechiae under the upper

partial denture is attributable to this.

20. G. J. J. R. had three implants inserted into the bone

of the lower anterior segment of his mouth prior to his first

examination by Dr. Beck. These implants were inserted by Kevin

Payton, D.D.S., and were to be used to attach a lower full

denture. The implants each have a buckle which protrudes through

the gum, and ERA female attachments, made of metal, sit on top of

the buckles. The denture is attached by snapping male

attachments, made of plastic and fixed into the denture, into the

female attachments.

21. G. J. J. R.'s lower full denture was not properly

fitted by Dr. Beck. The denture was attached to only the most

anterior of the female attachments. The two posterior male

attachments on the denture did not snap onto the female

attachments on the implants because the male attachments were not

located at the proper places on the denture. As a result the

denture was unstable, rocking back and forth in G. J. J. R.'s

mouth with nothing more than manual manipulation. The improper

fit caused G. J. J. R. a great deal of pain.

22. G. J. J. R. went back to Dr. Beck several times

complaining about the looseness of the lower denture, which

prevented him from chewing. Ultimately, Dr. Beck told him that

he could not do anything more for him. G. J. J. R. stopped

wearing the lower denture; he did not seek out another dentist or

have anything more done to the lower denture.

23. Dr. Beck's records indicate that a course of treatment

was provided for G. J. J. R., although the records contain only

sketchy details of the treatment and it is difficult to read

Dr. Beck's handwriting. The records do not contain a chart of

G. J. J. R.'s teeth, which should have been prepared during the

initial examination.

Illegal advertisements

24. In the yellow pages of the Delray Beach, Florida,

telephone directory dated September 1994-95 an advertisement

appeared for All Emergency Denture Service. The advertisement

offered a senior citizen discount and free consultation by

"J. N. Beck, D.D.S." No disclaimer relating to the discount or

the free consultation were included in the advertisement.

25. Accent Dental Services, Inc., advertised its services

in the yellow pages of the Delray Beach, Florida, telephone

directory dated September 1994-95, in which appeared the names of

Zita Narvaez, D.D.S., and Jeffrey N. Beck, D.D.S. This

advertisement offered a senior citizen discount, but it did not

contain a disclaimer relating to the discount.

26. In the yellow pages of the Boca Raton and Deerfield

Beach, Florida, telephone directory dated March 1995-96, an

advertisement appeared for Accent Dental Services in which the

name of Jeffrey Beck, D.D.S., appeared. The advertisement

offered free consultation and senior citizen discounts, but it

did not include a disclaimer relating to the free consultation or

the discount.

Summary

27. With respect to Dr. Beck's operation of Accent Dental

Services, the evidence is uncontroverted that, at the time that

E. B. was doing business with Accent Dental Services, Accent

Dental Services provided emergency denture repair and one-day

service for the construction of new dentures. Dr. Beck was,

however, present in the Accent Dental Services office only on

Wednesdays, while, at the same time, he expected Mr. Castaneda,

an unlicensed person, to keep the office open for business at

least five days per week. By limiting his time in the Accent

Dental Services office to one day per week, Dr. Beck was not

available to supervise Mr. Castaneda in the operation of the

dental office and laboratory during the times at issue.

28. The evidence presented by the Department is sufficient

to support the inference that, with respect to patient E. B.,

Dr. Beck was aware that Carlos Castaneda took an impression of

E. B.'s jaw and constructed a denture for her in the laboratory

on the premises of the dental office since he first saw E. B.

after the denture had been constructed. The evidence is

sufficient to support the inference that Dr. Beck did not furnish

a written work order for the construction of E. B.'s denture

since he did not see E. B. until after the denture was

constructed. The evidence presented by the Department is also

sufficient to establish that Dr. Beck delegated to Mr. Castaneda

the responsibility for fitting E. B.'s denture, since he observed

Mr. Castaneda fitting the denture on April 6, 1994.

29. The evidence is sufficient to establish that, with

respect to his treatment of G. J. J. R., Dr. Beck failed to

perform the basic procedure of creating rest seats on his

existing teeth, which were necessary to fit the upper partial

denture properly. The evidence is also sufficient to establish

that Dr. Beck did not properly secure the lower full denture

constructed for G. J. J. R. because he failed to perform the

simple and common procedure necessary to reposition the posterior

male attachments on the denture to ensure that they snapped into

the posterior female attachments on G. J. J. R.'s implants. The

evidence is not sufficient, however, to establish that Dr. Beck

failed to keep adequate records of G. J. J. R.'s treatment and

medical history.

30. Dr. Beck concedes that he did not include in

advertisements of his services any disclaimers related to the

free consultations and discounts identified in the

advertisements.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.57(1), Florida

Statutes (1997).

32. In its Administrative Complaints, the Department

identifies as possible disciplinary sanctions against Dr. Beck

revocation or suspension of his license or the imposition of an

administrative fine. Consequently, the Department has the burden

of proving the allegations in the Administrative Complaints by

clear and convincing evidence. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932, 933-34 (Fla. 1996); Ferris

v. Turlington , 510 So. 2d 292 (Fla. 1987).

33. Chapter 466, Florida Statutes, regulates the practice

of dentistry, dental hygiene, and dental laboratories.

Section 466.028 provides both the grounds for disciplinary action

which can be taken pursuant to Chapter 466 and the penalties

which can be imposed.

34. Section 466.028(1) provides in pertinent part:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(g) Aiding, assisting, procuring, or

advising any unlicensed person to practice

dentistry or dental hygiene contrary to this

chapter or of the rules of the department or

board.

* * *

(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 results, test results, and

X rays, if taken.

* * *

(x) Being guilty of incompetence or

negligence by failing to meet the minimum

standards of performance in diagnosis and

treatment when measured against generally

prevailing peer performance . . . .

* * *

(z) Delegating professional

responsibilities to a person who is not

qualified by training, experience, or

licensure to perform them.

* * *

(aa) The violation or the repeated

violation of this chapter, chapter 455, or

any rule promulgated pursuant to chapter 355

or this chapter . . . .

* * *

(ff) Operating or causing to be operated a

dental office in such a manner as to result

in dental treatment that is below the minimum

acceptable standards of performance for the

community. . . .

35. Section 466.028(2) provides as follows:

When the board finds any applicant or

licensee guilty of any of the grounds set

forth in subsection (1), it may enter an

order imposing one or more of the following

penalties:

(a) Denial of an application for

licensure.

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine

not to exceed $3,000 for each count or

separate offense.

(d) Issuance of a reprimand.

(e) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board may specify,

including requiring the licensee to attend

continuing education courses or demonstrate

his competency through a written or practical

examination or to work under the supervision

of another licensee.

(f) Restricting the authorized scope of

practice.

36. The practice of dentistry is defined in Section

466.003(3)(a) through (d), Florida Statutes, as specifically

including taking impressions of a human jaw; constructing or

repairing dentures without a written work order from a licensed

dentist; placing a denture in the mouth or adjusting a denture in

the mouth; and delivering a denture to any person other than the

dentist who issued the work order for the denture.

37. Section 466.031(1), Florida Statutes, defines a dental

laboratory as a "person, firm, or corporation" who, among other

things, constructs or repairs dentures "to be worn in the human

mouth." Pursuant to Section 466.032(1), a dental laboratory must

be registered with the Department. Accent Dental Services was

not a registered dental laboratory but, rather, fell under the

provisions of Section 466.031(2), which excludes from the

definition of "dental laboratory" "any dental laboratory

technician who constructs or repairs dental prosthetic appliances

in the office of a licensed dentist for such dentist only and

under his supervision and work order."

38. Based on the findings of fact herein, the Department

has proven by clear and convincing evidence that Dr. Beck aided

or assisted Carlos Castaneda in the practice of dentistry with

regard to the services Mr. Castaneda performed for E. B., in

violation of Section 466.028(1)(g); that Dr. Beck operated Accent

Dental Services in such a manner that the dental treatment

provided to E. B. was "below minimum acceptable standards of

performance," in violation of Section 466.028(1)(ff); and that

Dr. Beck delegated to Mr. Castaneda the responsibility for

fitting E. B.'s denture, in violation of Section 466.028(1)(z).

39. Based on the findings of fact herein, the Department

has proven by clear and convincing evidence that Dr. Beck was

negligent in the dental services he provided G. J. J. R., in

violation of Section 466.028(1)(x). The Department has, however,

not met its burden of proving Dr. Beck guilty of failing to keep

adequate records of the treatment given to G. J. J. R., and,

therefore, has failed to prove a violation of Section

466.028(1)(m).

40. Rule 64B5-4.003(5), Florida Administrative Code,

(formerly Rule 59Q-4.003(5)), provides that "[a]ny advertisement

for free or discounted services must comply with the requirements

of Section 455.24, F.S., and must also clearly identify the dates

that free, discounted or reduced fee services will be available."

Section 455.24, Florida Statutes (1993), (now Section 455.664,

Florida Statutes (1997)), provides as follows:

In any advertisement for a free, discounted

fee, or reduced fee service, examination, or

treatment by a health care provider licensed

under chapter 458, chapter 459, chapter 460,

chapter 461, chapter 462, chapter 463,

chapter 464, chapter 466, or chapter 486, the

following statement shall appear in capital

letters clearly distinguishable from the rest

of the text: THE PATIENT AND ANY OTHER

PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO

REFUSE TO PAY, CANCEL PAYMENT, OR BE

REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE,

EXAMINATION, OR TREATMENT THAT IS PERFORMED

AS A RESULT OF AND WITHIN 72 HOURS OF

RESPONDING TO THE ADVERTISEMENT FOR THE FREE,

DISCOUNTED FEE, OR REDUCED FEE SERVICE,

EXAMINATION, OR TREATMENT. However, the

required statement shall not be necessary as

an accompaniment to an advertisement of a

licensed health care provider defined by this

section if the advertisement appears in a

classified directory the primary purpose of

which is to provide products and services at

free, reduced, or discounted prices to

consumers and in which the statement

prominently appears in at least one place.

Based on the facts found herein, Dr. Beck has violated

Section 466.028(1)(aa), which provides that one ground for

discipline is "the violation . . . of this chapter, chapter 455,

or any rule promulgated pursuant to chapter 455 or this chapter."

The failure to include the disclaimer required by Section 455.24

is classified as a minor violation, and the penalty prescribed by

Rule 64B5-13.0046(7), Florida Administrative Code, for this

violation is the imposition of a $250 fine.

41. Rule 64B5-13.005, Florida Administrative Code,

(formerly Rule 59Q-13.005), provides the disciplinary guidelines

which are to be followed by the Board of Dentistry for major

violations. Subsection (1) of Rule 64B5-13.005 provides:

Unless relevant mitigating factors are

demonstrated the Board shall always impose a

reprimand and an administrative fine not to

exceed $3,000.00 per count or offense when

disciplining a licensee for any of the

disciplinary grounds listed in subsections

(2) or (3) of this rule. The reprimand and

administrative fine is in addition to the

penalties specified in subsections (2) and

(3) for each disciplinary ground.

42. The violations committed by Dr. Beck are identified in

Rule 64B5-13.005(3), and the disciplinary guidelines for each of

the violations of Section 466.028(1)(g), (x), and (ff) range from

placing the licensee on probation, restricting his or her

practice, and/or suspending his or her license. Pursuant both to

Section 466.028(3) and to Rule 64B5-13.005(3)(ee), the violation

of Section 466.028(1)(z) carries a mandatory six-month

suspension.

43. In determining the penalties recommended herein, the

aggravating and mitigating factors identified in Rule 64B5-

13.005(4) have been considered.

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 Jeffrey N. Beck, D.D.S., guilty of violating

Section 466.028(1)(g), (x), (z), (aa), and (ff); finding Dr. Beck

not guilty of violating Section 466.028(1)(m); and imposing the

following penalties:

1. Suspension of Dr. Beck's license to practice dentistry

for a period of six (6) months, followed by probation for a

period of one (1) year subject to such conditions as the Board

may specify;

2. Imposition of an administrative fine in the amount of

$4,250; and

3. Issuance of a reprimand.

DONE AND ENTERED this 26th day of August, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of August 1998.

ENDNOTE

1 The Department of Health was substituted for the Agency for

Health Care Administration as the Petitioner in these

consolidated cases by order entered August 18, 1997.

COPIES FURNISHED:

Thomas E. Wright, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Jeffrey N. Beck, D.D.S.

350 South State Road 7

Margate, Florida 33068

William Buckhalt, Executive Director

Board of Dentistry

Department of Health

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

BIN AO2

2020 Capital Circle Southeast

Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.

1 The Department of Health was substituted for the Agency for

Health Care Administration as the Petitioner in this case by

order entered August 18, 1997.