99-004364 Department Of Health, Board Of Denistry vs. Jane George Brahmakvlam
 Status: Closed
Recommended Order on Friday, March 31, 2000.


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Summary: Dentist treated patient for emergency broken crown. Her records of treatment were complete. She did not charge co-payment, as patient`s dental plan did not require co-payment. She waived the balance between what the insurer paid and her usual fee.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF HEALTH, BOARD )

13OF DENTISTRY, )

16)

17Petitioner, )

19)

20vs. ) Case No. 99-4364

25)

26JANE GEORGE BRAHMAKULAM, D.M.D., )

31)

32Respondent. )

34___________________________________)

35RECOMMENDED ORDER

37Pursuant to notice, the Division of Administrative Hearings,

45through its duly-designated Administrative Law Judge, Mary Clark,

53conducted a formal hearing in the above-styled case on

62February 16, 2000, in Melbourne ( Viera), Florida.

70APPEARANCES

71For Petitioner: Howard M. Bernstein, Esquire

77Rosanna Catalano, Esquire

80Agency for Health Care Administration

852727 Mahan Drive, Building 3

90Tallahassee, Florida 32308

93For Respondent: Kathleen S. Cumming, Esquire

99Rissman, Weisberg, Barrett, Hurt,

103Donahue & McLain, P.A.

107201 East Pine Street, 15th Floor

113Orlando, Florida 32801

116STATEMENT OF THE ISSUES

120The issues for disposition are whether Respondent,

127Dr. Jane Brahmakulam, committed the violations alleged in the

136Administrative Complaint dated September 10, 1999, and if so,

145what discipline is appropriate.

149PRELIMINARY STATEMENT

151On September 21, 1999, the Department of Health filed its

161Administrative Complaint alleging that Jane George Brahmakulam,

168D.M.D., violated Chapter 466, Florida Statutes, governing the

176practice of dentistry in Florida, by failing to maintain adequate

186written records and by failing to bill a patient for a co-payment

198or balance of fees not covered by insurance.

206In response, Dr. Brahmakulam requested a formal

213administrative hearing and the case was assigned, set, and heard

223as described above.

226At the hearing, Petitioner presented the testimony of Ernest

235Loening and William Scott, D.D.S. (accepted as an expert in the

246practice of dentistry without objection). Petitioner's Exhibit

253no. 1 (insurance records) was received in evidence without

262objection.

263Respondent testified in her own behalf and presented the

272additional testimony of Lewis Earle, D.D.S.(accepted as an expert

281in the practice of dentistry without objection) and Maria Colburn

291by deposition as stipulated. Respondent's Exhibits no. 1 (dental

300records) and no. 2 (Dr. Earle's curriculum vitae) were received

310in evidence without objection.

314The Transcript of the hearing was filed on March 6, 2000;

325Petitioner filed its Proposed Recommended Order on

332March 17, 2000; by agreement Respondent filed her Proposed

341Recommended Order on March 27, 2000.

347FINDINGS OF FACT

3501. Respondent is currently licensed to practice dentistry

358in the State of Florida and was so licensed at all times relevant

371to this proceeding. She has practiced in her own office in

382Palm Bay, Florida, for approximately 15 years. She received her

392dental education and training in India and New York.

4012. Ernest Loening, who had retired to Florida from New York

412in July 1997, appeared without an appointment in Respondent's

421office on August 25, 1997. At dinner the night before, he had

433broken a crown on his tooth and saved it in a tissue to show the

448dentist. His niece who worked with senior citizens in the area

459suggested he see Respondent. He did not have a regular dentist

470in Florida.

4723. On the visit Mr. Loening completed an information cover

482sheet and responded to questions regarding his medical history.

491Those responses are included on a one-page check-list signed by

501Respondent and maintained in her file.

5074. At the initial visit, Respondent examined Mr. Loening's

516teeth and charted on a form his fillings, missing teeth and

527existing bridge. She also performed an x-ray. She determined

536that the crown could be re-attached, but that Mr. Loening needed

547a root canal first, and she did not have time to do the procedure

561that same day. Instead, she referred him to an endodontist close

572to her office where Mr. Loening was able to get the work done.

5855. When Mr. Loening returned to Respondent's office as

594directed on August 28, 1997, Respondent performed a post core

604buildup and attached the old crown. It fit well but Respondent

615could not get the crown to come off again so that she could check

629the margins. The crown would not move and Respondent did not

640want to chip it off and require Mr. Loening to get a new crown.

654Instead, she told him to return in a few days as it was only

668temporarily attached and would likely come out.

6756. Mr. Loening returned several times to Respondent,

683generally unscheduled, but she was unable to loosen the crown.

693On one visit she attempted to remove the crown with a gummy

705substance commonly used for that purpose. It still did not work,

716and Mr. Loening complained on his next visit that the gummy

727substance had removed a filling. Respondent re-filled the tooth

736without charge.

7387. Finally, on December 11, 1997, after Mr. Loening

747complained of some irritation between his teeth, Respondent

755chipped away the old crown and made a new impression. She

766replaced it with a new crown on January 14, 1998.

7768. For her work Respondent told Mr. Loening that she would

787bill the insurance company and she would accept their payment;

797she felt that because of the inconvenience to the patient she

808would not require him to pay anything.

8159. Mr. Loening did not return to Respondent's office after

825January 1998, when his initial problem was ultimately resolved.

83410. After his retirement from American Airlines,

841Mr. Loening was covered for dental care under his wife's dental

852plan with Bell Atlantic. Metlife is the administrator of the

862dental plan. Under that plan no co-payments by the insured are

873required. Instead, the company pays 100 percent of "reasonable

882and customary" charges for preventive and diagnostic dental care

891and pays according to a set fee schedule for basic major

902restorative services such as crowns and bridges.

90911. The usual practice is for a dentist to bill the patient

921for the difference between what the insurance company pays and

931what the dentist's fee is. This is called "balance billing" and

942is distinguished from requiring the patient to pay a "co-payment"

952under a dental plan or policy.

95812. There is no ethical or legal impediment to a waiver of

970a bill balance by the dentist. Nor does the record in this

982proceeding clearly establish a duty of the dentist to collect a

993co-payment. Respondent's competent credible expert explained

999that the code of ethics of the American Dental Association is

1010somewhat ambiguous on that issue, although it is not permissible

1020to advertise that you will not charge a co-payment. The waiver

1031by Respondent in this case was for the bill balance and not for a

1045co-payment, as Mr. Loening's plan did not include a co-payment.

105513. Respondent never completed a periodontal examination,

1062nor the cleaning of Mr. Loening's teeth, but under the

1072circumstances of his treatment these were not required. He

1081appeared without appointment with a common emergency and with no

1091indication that he wished to establish a regular dentist/patient

1100relationship. The treatment utilized by Respondent focused on

1108his problem even though it took several months to resolve the

1119problem. Neither party's expert criticized the quality of care

1128rendered by Respondent.

113114. Petitioner's expert, Dr. Scott, was critical of

1139Respondent's records and waiver of co-payment. On cross-

1147examination Dr. Scott stated that he did not realize the

1157patient's dental plan did not require a co-payment. Nor did

1167Dr. Scott see, in his review of records, the medical history

1178taken by Respondent or the case plan or chart showing missing,

1189filled, or bridged teeth. These items are all on the face of the

1202document received in evidence as Respondent's Exhibit no. 1 and

1212comprising the medical records maintained by Respondent for

1220Mr. Loening. These items were also identified in Dr. Scott's

1230cross-examination, as well as the direct examination of

1238Respondent and her expert, Dr. Earle.

1244CONCLUSIONS OF LAW

124715. The Division of Administrative Hearings has

1254jurisdiction in this proceeding pursuant to Sections 120.569 and

126357(1), Florida Statutes.

126616. Petitioner has the burden of proving by clear and

1276convincing evidence the violations it has alleged against

1284Respondent. See Department of Banking and Finance v. Osborne,

1293Stern and Company , 670 So 2d. 932 (Fla. 1996).

130217. Those violations, according to the administrative

1309complaint, are that Respondent violated Section 466.028(1)(m),

1316Florida Statutes, by failing to keep written dental records and

1326medical history records justifying the course of treatment of the

1336patient including, but not limited to, patient histories,

1344examination results, test results, and x-rays if taken; and

1353Section 466.028(1)(t), Florida Statutes, for fraud, deceit, or

1361misconduct in the practice of dentistry.

136718. Petitioner failed to meet its burden of proof.

1376Instead, the evidence clearly and convincingly established that

1384all of the requisite elements of the medical record were present.

1395See Rule 64B5-17.002, Florida Administrative Code, which requires

1403as a minimum the following information about a patient:

1412appropriate medical history; results of clinical examination and

1420tests conducted, including the identification, or lack thereof,

1428of any oral pathology or diseases; a treatment plan; and

1438treatment rendered to the patient. Moreover, no co-payment was

1447required by the patient's insurer and Respondent's failure to

1456collect was not fraud, deceit, or misconduct.

1463RECOMMENDATION

1464Based on the foregoing, it is hereby

1471RECOMMENDED:

1472That the agency enter its final order dismissing the

1481complaint against Jane George Brahmakulam, D.M.D., in its

1489entirety.

1490DONE AND ORDERED this 31st day of March, 2000, in

1500Tallahassee, Leon County, Florida.

1504___________________________________

1505MARY CLARK

1507Administrative Law Judge

1510Division of Administrative Hearings

1514The DeSoto Building

15171230 Apalachee Parkway

1520Tallahassee, Florida 32399-3060

1523(850) 488-9675 SUNCOM 278-9675

1527Fax Filing (850) 921-6847

1531www.doah.state.fl.us

1532Filed with the Clerk of the

1538Division of Administrative Hearings

1542this 31st day of March, 2000.

1548COPIES FURNISHED:

1550Howard M. Bernstein, Esquire

1554Rosanna Catalano, Esquire

1557Agency for Health Care Administration

15622727 Mahan Drive, Building 3

1567Tallahassee, Florida 32308

1570Kathleen S. Cumming, Esquire

1574Rissman, Weisberg, Barrett, Hurt,

1578Donahue & McLain, P.A.

1582201 East Pine Street, 15th Floor

1588Orlando, Florida 32801

1591Bill Buckhalt, Executive Director

1595Board of Dentistry

1598Department of Health

1601Northwood Centre

16031940 North Monroe Street

1607Tallahassee, Florida 32399-0750

1610Angela T. Hall, Agency Clerk

1615Department of Health

16182020 Capital Circle, Southeast

1622Bin A02

1624Tallahassee, Florida 32399-1701

1627William Large, General Counsel

1631Department of Health

16342020 Capital Circle, Southeast

1638Bin A02

1640Tallahassee, Florida 32399-1701

1643NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1649All parties have the right to submit written exceptions

1658within 15 days from the date of this Recommended Order. Any

1669exceptions to this Recommended Order should be filed with the

1679agency that will issue the final order in this case.

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Date
Proceedings
Date: 08/07/2000
Proceedings: Final Order filed.
PDF:
Date: 07/27/2000
Proceedings: Agency Final Order
PDF:
Date: 03/31/2000
Proceedings: Recommended Order
PDF:
Date: 03/31/2000
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 02/16/2000.
Date: 03/27/2000
Proceedings: Respondent`s Proposed Recommended Order; Notice of Filing Deposition Transcript of Maria Colburn (unsigned); Stenographic Minutes of Telephonic Examination filed.
Date: 03/24/2000
Proceedings: Letter to MWC from K. Cumming Re: Requesting an extension to file proposed recommended order filed.
Date: 03/17/2000
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 03/06/2000
Proceedings: Transcript of Proceedings filed.
Date: 02/16/2000
Proceedings: CASE STATUS: Hearing Held.
Date: 10/29/1999
Proceedings: Order of Pre-hearing Instructions sent out.
Date: 10/29/1999
Proceedings: Notice of Hearing sent out. (hearing set for February 16 and 17, 2000; 9:00 a.m.; Viera, Florida)
Date: 10/26/1999
Proceedings: Joint Response to Initial Order filed.
Date: 10/19/1999
Proceedings: Initial Order issued.
Date: 10/13/1999
Proceedings: Agency Referral Letter; Administrative Complaint; Election of Rights filed.

Case Information

Judge:
MARY CLARK
Date Filed:
10/13/1999
Date Assignment:
10/19/1999
Last Docket Entry:
08/07/2000
Location:
Viera, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

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