99-004690 Department Of Health, Board Of Denistry vs. Douglas J. Phillips, Jr.
 Status: Closed
Recommended Order on Wednesday, August 15, 2001.


View Dockets  
Summary: Dentist failed to maintain adequate records and proof of financial responsibility. Dentist practiced below standard of care by using unconventional diagnostic methodology.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF HEALTH , )

12BOARD OF DENTISTRY , )

16)

17Petitioner , )

19)

20vs. ) Case No. 99-4690

25)

26DOUGLAS J. PHILLIPS, D.D.S. , )

31)

32Respondent. )

34___________________________________)

35RECOMMENDED ORDER

37Pursuant to notice, a final hearing was held in this case on

49October 16-18, 2000, and January 22-24, 2001, at West Palm Beach,

60Florida, before Claude B. Arrington, a duly-designated

67Administrative Law Judge of the Division of Administrative

75Hearings. The record closed in this proceeding when the parties

85completed a rebuttal deposition on April 6, 2001.

93APPEARANCES

94For Petitioner : Rosanna Catalano, Esquire

100R. Lynn Lovejoy, Esquire

104Agency for Health Care Administration

1092727 Mahan Drive

112Fort Knox Building, Mailstop 39

117Tallahassee, Florida 32308

120For Respondent : James M. Tuthill, Esquire

1272161 Palm Beach Lakes Boulevard

132Raymond Plaza, Suite 407

136West Palm Beach, Florida 33409

141STATEMENT OF THE ISSUE

145Whether Respondent, a licensed dentist, committed the

152offenses alleged in the First Amended Administrative Complaint

160and the penalties, if any, that should be imposed.

169PRELIMINARY STATEMENT

171Petitioner filed an Administrative Complaint against

177Respondent based on his diagnosis and treatment of a patient who

188will be referred to as C. C. Respondent denied the alleged

199violations set forth in the Administrative Complaint and demanded

208a formal administrative hearing. The matter was referred to the

218Division of Administrative Hearings, and this proceeding

225followed.

226Thereafter, Petitioner's motion for leave to amend its

234administrative complaint was granted. Petitioner's First Amended

241Administrative Complaint, dated May 24, 2000, and filed with the

251Division of Administrative Hearings on June 15, 2000, alleged

260certain facts pertaining to Respondent's diagnosis and treatment

268of C. C. Based on those allegations, Petitioner charged

277Respondent with the following violations : 1/

284COUNT I : Violating Section 466.028(1)(m),

290Florida Statutes, by failing to keep adequate

297dental records.

299COUNT II : Violating Section 466.028(1)(t),

305Florida Statutes, by committing fraud,

310deceit, or misconduct in the practice of

317dentistry.

318COUNT III : Violating Section 466.624(1)(w),

324Florida Statutes, by experimenting on a

330patient without the patient's informed,

335written consent.

337COUNT IV : Violating Rule 64B5-17.011,

343Florida Administrative Code, by failing to

349maintain malpractice insurance or other proof

355of financial responsibility.

358COUNT V : Violating Section 455.624(1)(o),

364Florida Statutes, by performing professional

369services that had not been authorized by his

377patient in violation of Section 766.103,

383Florida Statutes.

385COUNT VI : Violating Section 466.028(1)(x),

391Florida Statutes, by practicing below the

397standard of care.

400At the final hearing, the parties offered four joint

409exhibits, each of which was admitted into evidence.

417Petitioner called the following witnesses for live

424testimony : AHCA investigator Bonnie Schaffrick; Respondent;

431Thomas Eugene Shields, D.D.S.; Henry Allen Gremion, D.D.S.;

439Theresa Anne Dolan, D.D.S.; Gregory Becker, D.D.S.; and Richard

448Marx, D.D.S. The Petitioner called the following rebuttal

456witnesses for live testimony : Richard Chichetti, D.M.D.; and

465Robert Baratz, M.D., D.D.S., Ph.D. In addition to the joint

475exhibits, Petitioner offered 24 exhibits, each of which was

484admitted into evidence. Among Petitioner's exhibits were the

492depositions of the following : C. C . (transcript and video);

503Dr. Chichetti (transcript and video); Parker Mahan, D.D.S.

511( transcript and video); Stewart Kline, M.D. (transcript only);

520and Dr. Baratz (transcript only).

525Respondent testified at the final hearing and presented the

534additional testimony of Douglas Martin, M.D.; Rupert Bliss,

542D.D.S.; and Dietrich Klinghardt, M.D., Ph.D. In addition to the

552joint exhibits, Respondent offered 39 exhibits. Respondent's

559Exhibits 10, 13, 14, 15, and 18 were rejected. Respondent's

569Exhibit 16 was withdrawn. All other Respondent's exhibits were

578admitted into evidence. Respondent's exhibits included the

585depositions (transcript and video for each deponent) of the

594following: Boyd Haley, Ph.D.; Donald Warren, D.D.S.; Jerry E.

603Bouquot, D.D.S.; Raymond G. Behm, D.D.S.; Wesley Shankland,

611D.D.S., Ph.D.; Richard T. Hansen, D.M.D.; Christopher J. Hussar,

620D.D.S., M.D.; Marlind H. Stiles, D.M.D.; David Minkoff, M.D.;

629James P. Carter, Sr., M.D.; William Cowden, M.D.; Mark McClure,

639D.D.S.; James Medlock, D.D.S.; Andrew Slavin, D.D.S.; and

647Victor A. Marcial-Vega, M.D.

651The parties made extensive objections to the depositions

659entered into evidence. Motion hearings were held January 4,

6682001, February 9, 2001, February 23, 2001, and March 28, 2001.

679Transcripts of those motion hearings are part of the record.

689Additionally, the undersigned entered separate orders ruling on

697those objections not ruled upon during the motion hearings.

706Transcripts of the proceedings conducted on October 16,

7142000, consisting of Volumes I and II, were filed on April 25,

726anscripts of the proceedings conducted on October 17 and

73518, 2000, consisting of Volumes III-VI, were filed April 24,

745anscripts of the proceedings conducted on January 22-24,

7532001, consisting of Volumes I-V, were filed February 23, 2001.

763Each party filed a Proposed Recommended Order, which has been

773duly considered by the undersigned in the preparation of this

783Recommended Order.

785FINDINGS OF FACT

7881. Petitioner is a state agency charged with regulating the

798practice of dentistry pursuant to Section 20.43, Florida

806Statutes, and Chapters 455 and 466, Florida Statutes.

8142. Pursuant to the authority of Section 20.43 (3)(g),

823Florida Statutes, Petitioner has contracted with the Agency for

832Health Care Administration to prosecute administrative complaints

839as required by the Board of Dentistry.

8463. Respondent is, and has been since 1966, a licensed

856dentist in the State of Florida, having been issued license

866number DN 0004148. At the time of the final hearing,

876Respondent’s office address was 4512 Flagler Drive, #301, West

885Palm Beach, Florida 33407-3802. One prior disciplinary

892proceeding has been filed against Respondent's license. The

900record is silent as to the details of that prior disciplinary

911action.

9124. In addition to a traditional general dental practice,

921Respondent practices alternative dentistry (also referred to by

929Respondent as biological dentistry) on chronically ill patients.

937In his alternative dental practice, Respondent utilizes

944unconventional diagnostic methodologies and homeopathic remedies.

9505. In December 1995 and January 1996, Respondent treated

959C. C., a female born May 10, 1950.

9676. At the times pertinent to this proceeding, C. C.

977considered herself to be pre-cancerous and chronically ill.

985C. C. believed that she had suffered radiation poisoning in 1986

996when a cloud from the nuclear disaster at Chernobyl 2/ passed

1007over her home in Italy while she was outside in the garden.

10197. C. C., a chiropractor, became interested in alternative

1028dentistry and attended various seminars presented by proponents

1036of alternative medicine and dentistry. C. C. consulted with

1045different health care professionals, including dentists, medical

1052doctors, and nutritionists, and became familiar with alternative

1060dentistry and homeopathic remedies. C. C. believed that the

1069amalgams in her teeth had become toxic and were inhibiting her

1080recovery to full health. At one of these seminars in 1995, C. C.

1093submitted to a test that purportedly revealed she suffered from

1103heavy metal poisoning. She also examined her blood through a

1113powerful microscope and found her blood to be unusual, which

1123reinforced her belief that she was pre-cancerous.

11308. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995

1142on the topic of alternative dentistry. The seminar attended by

1152Dr. Klinghardt and C. C. i ncluded a discussion on toxicity from

1164the oral cavity causing systemic health problems. The seminar

1173also included a discussion on the treatment of dental conditions

1183using homeopathic remedies.

11869. C. C. asked Dr. Klinghardt whether he thought she should

1197have her amalgams replaced with non-toxic materials. He

1205recommended that she do so and he also recommended that she have

1217extracted any tooth that had a root canal.

122510. C. C. asked Dr. Klinghardt to recommend a dentist to

1236remove her amalgams. Dr. Klinghar dt recommended Respondent for

1245the amalgam replacement.

124811. Notakehl, Pefrakehl, and Arthrokehlan, the three

1255homeopathic remedies Respondent used in his subsequent treatment

1263of C. C., were discussed at the seminar. These homeopathic

1273remedies are referred to as Sanum remedies, which is a reference

1284to the German manufacturer.

128812. In March of 1995, C. C. visited a dentist named Ira

1300Windroff in South Florida. Dr. Windroff took a panoramic X-ray

1310and X-rays of C. C.'s individual teeth. After the X-rays,

1320Dr. Windroff referred C. C. to another dentist, who performed a

1331root canal on C. C.'s tooth #19, which is in the lower left

1344quadrant.

134513. On December 12, 1995, C. C. presented to Respondent's

1355office to discuss having her amalgams replaced.

136214. C. C. wa s experiencing pain in tooth #19 on

1373December 12, 1995. C. C. filled out a standard medical history

1384form that Respondent had used in his practice for several years.

1395C. C. discussed her medical and dental history with Respondent.

1405C. C. told Respondent tha t she had a root canal on tooth #3 when

1420she was a teenager and that she recently had a root canal on

1433tooth #19. C. C. informed Respondent that she considered herself

1443to be chronically ill and pre-cancerous. She told him she had

1454suffered radiation poisoning in 1986 and preferred to have no

1464unnecessary X-rays. She also told him that she was very weak

1475from a recent bout of the flu.

148215. Respondent's office notes reflect that C. C. presented

1491with lower left tooth pain (without identifying a specific tooth)

1501and that he "muscle tested for origin."

150816. Respondent purported to evaluate C. C.'s medical and

1517dental status by evaluating whether her autonomic nervous system

1526responded to various stimuli. This form of testing will be

1536referred to as ART, which is an acronym for "Autonomic Response

1547Testing".

154917. The autonomic nervous system and ART were explained by

1559several of the experts who testified in this proceeding.

156818. The human body has an autonomic nervous system

1577consisting of a sympathetic part and a parasympathetic part.

1586Both parts are regulated by the hypothalamus, which is located

1596deep inside the brain. The nerves constituting the autonomic

1605nervous system pass thorough ganglions, which are groups of nerve

1615cells located outside the brain at different locations of the

1625body that act as relay stations.

163119. The sympathetic part of the autonomic nervous system is

1641generally believed to deal with the mechanisms that prepare the

1651body to counteract stresses that come from outside the body. For

1662example, if someone cuts his or her finger, the sympathetic part

1673of the autonomic nervous system will cause blood vessels to

1683contract so the body does not lose all of its blood. It also

1696will prepare the body to fight or flee in response to an outside

1709threat.

171020. The parasympathetic part of the autonomic nervous

1718system deals with the body's inner secretions, such as insulin

1728and digestive acids. The reactions of the parasympathetic part

1737of the autonomic nervous system calm the body down after a stress

1749and usually promote healing.

175321. Respondent's examination of C. C. on December 12, 1995,

1763lasted between one hour (Respondent's estimate) and three hours

1772(C. C.'s estimate).

177522. During part of the ART examination, C. C. reclined in a

1787dental chair. When she was not in the dental chair, she reclined

1799on a massage table.

180323. During the ART examination, Respondent used his dental

1812assistant to serve as an indirect tester, which required her to

1823be positioned between the patient and the examiner. The dental

1833assistant held one of C. C.'s hands with one hand while extending

1845her (the dental assistant's) free arm. According to those

1854subscribing to this methodology, the physical contact between the

1863dental assistant and C. C. established an electrical current

1872between them, which caused the responses from C. C.'s autonomic

1882nervous system to be transferred to the dental assistant.

1891Respondent used the dental assistant's deltoid muscle to

1899determine whether a particular stimulus had caused a response

1908from C. C.'s autonomic nervous system. Respondent pushed down on

1918the dental assistant's extended arm after exposing C. C. to a

1929stimulus and evaluated the resistance he encountered. He

1937believed he could determine by that resistance whether the dental

1947assistance's deltoid muscle became weak or remained strong. If

1956the dental assistant's deltoid muscle became weak following

1964C. C.'s exposure to a stimulus, Respondent concluded that the

1974autonomic nervous system had responded and that the area of the

1985body being tested was not healthy. If the dental assistant's

1995deltoid muscle remained strong, Respondent concluded that the

2003autonomic nervous system had not responded and that the area of

2014the body being tested was healthy.

202024. Respondent used his dental assistant as an indirect

2029tester because he considered C. C. to be too weak to be directly

2042tested, which would have required her to extend her arm

2052throughout the examination. 3/

205625. After he had C. C. place her hand over her belly button

2069while she was in a reclined position and holding the dental

2080assistant's hand, Respondent pushed down on the dental

2088assistant's extended arm. Based on his evaluation of the

2097resistance in the dental assistant's arm, Respondent believed

2105that C. C.'s autonomic nervous system was in a protective mode.

2116Respondent then attempted to determine the reasons for that

2125finding.

212626. Respondent placed vials of various substances,

2133including heavy metals, bacteria from root canal teeth, and

2142homeopathic remedies, on C. C.'s lap to determine whether the

2152substances triggered a response from C. C.'s autonomic nervous

2161system. He placed his fingers on her individual teeth to

2171determine whether that prompted a response from C. C.'s autonomic

2181nervous system. Respondent believed that by ART he could

2190determine the condition of C. C.'s int ernal organs, evaluate her

2201dental problems, and identify the homeopathic remedies that would

2210best promote healing.

221327. In addition to using ART, Respondent visually inspected

2222C. C.'s teeth with a dental mirror, used a dental explorer to

2234examine the edge of fillings and cracks in the teeth, probed her

2246gums, percussed tooth #19, and palpitated all of her teeth.

2256Although his dental records for this patient do not reflect that

2267he did so and he could not remember having done so prior to

2280C. C.'s deposition, t he evidence established that Respondent

2289reviewed the X-rays taken by Dr. Windroff.

229628. Respondent did not take any X-ray of tooth #19 before

2307he extracted that tooth. The only X-rays available to Respondent

2317were taken before the root canal was performed on that tooth in

2329March 1995. Respondent also did not order any laboratory tests.

233929. Based on his use of ART, Respondent concluded that the

2350following areas of C. C.'s body were compromised: tonsils, heart,

2360spleen, pancreas, liver, gall bladder, large intestines, and

2368pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and

2379tooth #19 had become toxic.

238430. Respondent also concluded that the following

2391homeopathic remedies should be used to treat C. C.: Notakehl,

2401Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived

2410from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy

2418derived from Propionibacterium acnes. Prefakehl is a fungal

2426remedy derived from Candida parapsilosis. 4/

243231. Respondent told C. C. that the root canals that had

2443been performed on tooth #3 and tooth #19 contained toxins and

2454were blocking her recovery. He also told her that the removal of

2466her root canal teeth and any toxic area around the root canal

2478teeth should be given higher priority than the replacement of her

2489amalgams.

249032. Respondent told C. C. that he could not help her if she

2503did not have her two root canal teeth extracted. Respondent did

2514not offer C. C. any other options because he did not think any

2527other option existed.

253033. There was a conflict in the evidence as to whether

2541C. C. consented to the extraction and treatment with the Sanum

2552remedies. That conflict is resolved by finding that Respondent

2561adequately explained to C. C. how he intended to extract the two

2573teeth and what she could expect following the extractions.

2582Although C. C. did not ask to have those two teeth extracted, she

2595clearly agreed to have the extractions. It is further found that

2606C. C. knowingly agreed to Respondent's proposed treatment with

2615the Sanum remedies. C. C. knew about the Sanum remedies and how

2627Respondent was going to use them to treat her.

263634. Much of the evidence presented by Respondent related to

2646ART and the manner it was being used by practitioners in December

26581995. The undersigned has carefully reviewed and considered that

2667evidence. The undersigned has also reviewed and considered the

2676evidence presented by Petitioner. The following findings are

2684made as to the use of ART in 1995. The Florida Dental

2696Association, the American Medical Association, and the American

2704Dental Association did not recognize ART as a reliable

2713methodology for testing toxic conditions of the teeth. ART was

2723not being taught in any dental school in Florida. ART was not

2735being used by a respected minority of dentists in the United

2746States to the extent it was used by Respondent. Petitioner

2756established by clear and convincing evidence that the extent to

2766which Respondent relied on that methodology in evaluating this

2775patient exceeded any acceptable use of ART in 1995 and

2785constituted practice below the standard of care as alleged in

2795Count VI of the Amended Administrative Complaint. Because of his

2805over-reliance on ART, Respondent's diagnosis was flawed, and

2813there was insufficient justification for his subsequent treatment

2821of the patient. 5/

282535. On December 21, 1995, C. C. returned to Respondent for

2836the extraction of tooth #3 and tooth #19. Respondent extracted

2846the two teeth and removed bone in the vicinity of each tooth that

2859he thought was necrotic, a procedure referred to as cavitation.

2869Respondent testified that he encountered soft, mushy bone

2877following the extractions. He removed hard bone in the

2886extraction area with a small rotary bur. He removed soft tissue

2897and bone with a curette.

290236. There was a conflict in the evidence as to whether

2913Respondent was justified in removing bone surrounding the

2921extraction sites. Based on Respondent's testimony and the

2929depositions and dental records of C. C.'s dentists who treated

2939her after Respondent, it is concluded that his decision to remove

2950bone surrounding the extraction sites was within his clinical

2959judgment. It should be noted, however, that Respondent's dental

2968records provide no justification for this extensive removal of

2977bone adjacent to the extraction sites.

298337. Following the extractions and cavitation procedures,

2990Respondent injected the patient's mouth and face with Notakehl,

2999Pefrakehl, and Arthrokelan.

300238. Prior to her visit to Respondent, C. C.'s teeth #5 and

3014#17 had been extracted. Respondent injected the area where tooth

3024#5 had been with the Sanum remedies using a stabident drill, a

3036dental drill that is usually used to administer anesthesia. He

3046also injected the Sanum remedies where tooth #17 had been.

3056Following the extractions of teeth #3 and #19, Respondent

3065irrigated the extraction wounds with the Sanum remedies.

3073Respondent injected the right sphenopalatine ganglion area and

3081the left and right otic ganglion areas, the superior origin and

3092inferior origin pharyngeal constrictor muscles, and the

3099submandibular ganglion with a one percent solution of Xylocaine

3108that also contained drops of Notakehl. Respondent testified he

3117used Xylocaine, an epidural grade anesthetic, as a carrier for

3127Notakehl. Some of the injections were made into the oral cavity

3138while others were made through the face. Consistent with

3147homeopathic practice, Respondent believed that these injections

3154would promote healing.

315739. Tooth #3 is located directly beneath the right

3166maxillary sinus cavity. From the X-rays available to him,

3175Respondent knew that the root canal material that had been used

3186to fill that tooth was very close to the thin membrane that

3198protects the sinus cavity. Following his extraction of tooth #3,

3208Respondent did not determine whether the maxillary sinus membrane

3217had been perforated during the extraction procedure. Petitioner

3225established by clear and convincing testimony that this failure

3234constituted practice below the standard of care as alleged in

3244Count VI of the Amended Administrative Complaint.

325140. Following the extractions, Respondent placed some soft

3259tissue back into the extraction sites, which covered a little bit

3270of the socket, and he left a little bit of an opening for a clot

3285to form to heal from the inside out. He sutured the area

3297around the buccal bone, which he had reflected in order to remove

3309the tooth.

331141. C. C. returned to Respondent on December 22, 23, 24,

332227, 28, 29, 1995, and January 5 and 10, 1996.

333242. On December 22, 1995, Respondent checked the extraction

3341sites and electrically stimulated the extraction sites using a

3350process referred to as micro current.

335643. On December 23, 1995, Respondent checked the extraction

3365sites, applied micro current to those sites, and injected a one

3376percent solution of Xylocaine with drops of Notakehl into the

3386right sphenopalatine ganglion, both otic ganglions, and the left

3395submandibular ganglion.

339744. On December 24, 1995, Respondent applied micro current

3406to the extraction sites and injected Sanum remedies into the area

3417of the extraction sites.

342145. On December 27, 1995, C. C. telephoned Respond ent to

3432complain of pain in the area from which tooth #3 had been

3444extracted. From what she told him, Respondent believed that

3453C. C. had a perforated maxillary sinus. When he examined her on

3465December 27, 1995, he confirmed that she had a sinus perforation.

3476Respondent reopened the area he had sutured on December 21, 1995,

3487cleaned out granulated tissue. 6/ He did a flap procedure,

3497referred to as a plastic closure, where tissue was reflected from

3508the cheek side of the gum and placed over the extraction site to

3521the palate side. He thereafter injected the right otic ganglion

3531and right sphenopalatine ganglion with a solution of one percent

3541Xylocaine and Notakehl.

354446. Between December 28, 1995, and January 10, 1996,

3553Respondent continued his homeopathic treatment of C. C. combined

3562with the micro current procedure.

356747. Respondent did not treat C. C. after January 10, 1996.

357848. C. C. knew when she agreed to the extractions that she

3590would have to have bridges for the areas of the extractions.

3601Those two bridges were inserted after she left Respondent's care.

361149. Petitioner asserted that Respondent practiced below the

3619standard of care by failing to appropriately close the sinus

3629perforation on December 27, 1995. That assertion is rejected.

3638On January 18, 1996, James Medlock, D.D.S. examined C. C. at his

3650dental office in West Palm Beach, Florida. C. C. was not

3661experiencing difficulty with the flap procedure Respondent had

3669performed on December 27, 1995, when she was seen by Dr. Medlock.

3681Gary Verigan, D.D.S., treated C. C. at his dental office in

3692California between February 1996 and May 1997. Richard T.

3701Hansen, D.D.S., treated C. C. at his dental office in California

3712between May 1997 and November 1999. The dental records of

3722Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in

3734evidence as Joint Exhibits 1, 3 and 4, respectively. The

3744depositions of Dr. Medlock and Dr. Hansen are in evidence.

3754Dr. Hansen re-opened the area of the maxillary sinus that

3764Respondent had closed with the flap procedure and found that bone

3775had not re-generated in that area. Dr. Hansen believed that

3785Respondent was not the cause of the problems for which he treated

3797C. C. There was insufficient evidence to establish that the

3807subsequent dental problems encountered by C. C. were caused by

3817the extraction, cavitation, or flap procedure performed by

3825Respondent in December 1995. Petitioner did not establish by

3834clear and convincing evidence that Respondent's closure of the

3843sinus perforation on December 27, 1995, constituted practice

3851below the standard of care.

385650. Respondent did not have malpractice insurance or proof

3865of financial security at the time that he treated C. C. He did

3878not have proof of financial security until March 13, 1997, when

3889he obtained an irrevocable letter of credit from Palm Beach

3899National Bank and Trust to bring himself in compliance with

3909Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/

3916This irrevocable letter of credit was current at the time of the

3928final hearing. Respondent is a dentist who treats people who are

3939chronically ill. Respondent's use of ART and homeopathic

3947remedies are clearly unconventional and can, in Respondent's own

3956words, cause a lot of harm if he is not careful. Under the facts

3970of this case, his failure to have malpractice insurance or proof

3981of financial responsibility while practicing alternative

3987dentistry on high-risk patients is found to be an especially

3997egregious violation of Rule 64B5-17.011, Florida Administrative

4004Code. His subsequent compliance with that Rule is not viewed by

4015the undersigned as being a mitigating factor.

402251. Petitioner established by clear and convincing evidence

4030that Respondent failed to keep adequate dental records in

4039violation of Section 466.028(1)(m), Florida Statutes, as alleged

4047in Count II of the Amended Administrative Complaint.

4055Respondent's medical history for the patient is incomplete.

4063Although Respondent testified he did not take X-rays because of

4073the patient's history of radiation poisoning, his medical history

4082does not reflect that history. Respondent did not chart C. C.'s

4093teeth, which is a routine practice. His description of his

4103examination was vague, his findings were vague, and his proposed

4113treatment plan was vague. His records did not reflect that he

4124had viewed X-rays of the patient, did not reflect that Notakehl

4135was injected with Xylocaine, and did not reflect the anesthetic

4145that was used to numb the mouth during the extraction. The most

4157serious deficiency is that his records provide no justification

4166for the extraction of two teeth or for the cavitation procedures

4177that followed, a basic requirement of Section 466.028(1)(m),

4185Florida Statutes.

418752. There was a conflict in the evidence as to whether

4198Respondent's use of the Sanum remedies constituted practice below

4207the standard of care or experimentation. Petitioner did not

4216establish that the practice of homeopathy is per se below the

4227standard of care or that the use of homeopathic remedies in this

4239case constituted experimentation. Respondent established that

4245the three Sanum remedies he administered to C. C. are recognized

4256homeopathic remedies, and he also established that the manner in

4266which he administered these remedies was consistent with

4274homeopathic practice. The conflict in the evidence is resolved

4283by finding that Petitioner did not prove by clear and convincing

4294evidence that Respondent's use of the homeopathic remedies

4302constituted practice below the standard of care or

4310experimentation. 8/

4312CONCLUSIONS OF LAW

431553. The Division of Administrative Hearings has

4322jurisdiction of the parties to and the subject of this

4332proceeding. Section 120.57(1), Florida Statutes.

433754. Petitioner has the burden of proving by clear and

4347convincing evidence the allegations against Respondent. See

4354Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987) ; Evans Packing

4365Co. v. Department of Agriculture and Consumer Services , 550

4374So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

4386645 So. 2d 398 (Fla. 1994). The following statement has been

4397repeatedly cited in discussions of the clear and convincing

4406evidence standard:

4408Clear and convincing evidence requires that

4414the evidence must be found to be credible;

4422the facts to which the witnesses testify must

4430be distinctly remembered; the evidence must

4436be precise and explicit and the witnesses

4443must be lacking in confusion as to the facts

4452in issue. The evidence must be of such

4460weight that it produces in the mind of the

4469trier of fact the firm belief of [sic]

4477conviction, without hesitancy, as to the

4483truth of the allegations sought to be

4490established. Slomowitz v. Walker , 429 So. 2d

4497797, 800 (Fla. 4th DCA 1983).

450355. Section 466.028(1), Florida Statutes, provides, in

4510pertinent part, as follows:

4514(1 ) The following acts shall constitute

4521grounds for which the disciplinary actions

4527specified in subsection (2) may be taken:

4534* * *

4537(m ) Failing to keep written dental records

4545and medical history records justifying the

4551course of treatment of the patient including,

4558but not limited to, patient histories,

4564examination results, test results, and

4569X rays, if taken.

4573* * *

4576(t ) Fraud, deceit, or misconduct in the

4584practice of dentistry or dental hygiene.

4590* * *

4593(x ) Being guilty of incompetence or

4600negligence by failing to meet the minimum

4607standards of performance in diagnosis and

4613treatment when measured against generally

4618prevailing peer performance, including, but

4623not limited to, the undertaking of diagnosis

4630and treatment for which the dentist is not

4638qualified by training or experience or being

4645guilty of dental malpractice. . . .

465256. Petitioner established by clear and convincing evidence

4660that Respondent failed to keep written dental records justifying

4669the course of his treatment of C. C., in violation of Section

4681466.028 (1)(m), Florida Statutes, as alleged in Count I of the

4692Amended Administrative Complaint.

469557. Petitioner alleged in Count II that Respondent was

4704guilty of fraud, deceit, or misconduct in violation of Section

4714466.028(1)(t), Florida Statutes.

471758. Petitioner failed to establish that Respondent engaged

4725in fraud or deceit.

472959. Petitioner alleged that Respondent's use of his dental

4738assistant as an indirect tester during the ART evaluation

4747constituted misconduct. Section 466.024(1), Florida Statutes,

4753prohibits a dentist from delegating " irremedial tasks" to a

4762dental hygienist, but permits the dentist to delegate "remedial

4771tasks" to a dental hygienist. As defined by Section 466.003(11)

4781and (12), Florida Statutes, the terms " irremedial tasks" and

"4790remedial tasks" pertain to intraoral treatment tasks performed

4798by a hygienist. The passive role played by the dental hygienist

4809in serving as an indirect tester for ART is not an irremedial

4821task within the meaning of Section 466.024(1), Florida Statutes.

4830Consequently, Petitioner's allegation that Respondent committed

4836misconduct by using his dental hygienist as an indirect tester is

4847rejected.

484860. Any act found to have been committed by Respondent that

4859may be construed to be misconduct related to Respondent's

4868practice below the standard of care, has been appropriately

4877addressed in Count VI. No separate violation of Section 466.028

4887(1)(t), Florida Statutes, based on the allegations of Count II of

4898the Amended Administrative Complaint, should be found.

490561. Petitioner failed to establish that Respondent

4912experimented on C. C. as alleged in Count III of the Amended

4924Administrative Complaint. Any act found to have been committed

4933by Respondent that may be construed to be experimental related to

4944Respondent's practice below the standard of care, has been

4953appropriately addressed in Count VI. Section 455.624(1)(w),

4960Florida Statutes, the provision Petitioner alleged Respondent

4967violated in Count III of Petitioner's Amended Administrative

4975Complaint, does not appear to be applicable to the factual

4985allegations of Count III. Based on the foregoing, it is

4995concluded that no separate violation based on the allegations of

5005Count III of the Amended Administrative Complaint should be

5014found.

501562. Petitioner established by clear and convincing evidence

5023that Respondent failed to maintain malpractice insurance or proof

5032of financial responsibility in violation of Rule 64B5-17.011,

5040Florida Administrative Code, as alleged in Count IV of the

5050Amended Administrative Complaint.

505363. Petitioner failed to establish that Respondent

5060performed services on C. C . which had not been duly authorized as

5073alleged in Count V of the Amended Administrative Complaint.

5082Section 455.624(1)(o), Florida Statutes (1999), cited in Count V

5091of Petitioner's Amended Administrative Complaint, does not appear

5099to be an erroneous citation.

510464. As set forth in the Findings of Fact, Petitioner

5114established by clear and convincing evidence that Respondent

5122failed to meet the minimum standards of practice in violation of

5133Section 466.028(1)(x), Florida Statutes, as alleged in Count VI

5142of the Amended Administrative Complaint.

514765. Rule 64B5-13.005, Florida Administrative Code, provides

5154the following disciplinary guidelines that should be applied to

5163the violations established by Petitioner:

5168(1 ) Unless relevant mitigating factors are

5175demonstrated the Board shall always impose a

5182reprimand and an administrative fine not to

5189exceed $3,000.00 per count or offense when

5197disciplining a licensee for any of the

5204disciplinary grounds listed in subsections

5209(2) or (3) of this rule. The reprimand and

5218administrative fine is in addition to the

5225penalties specified in subsections (2) and

5231(3) for each disciplinary ground.

5236* * *

5239(3 ) When the Board finds an applicant or

5248licensee whom it regulates under Chapter 466,

5255Florida Statutes, has committed any of the

5262acts set forth in Section 466.028, Florida

5269Statutes, it shall issue a Final Order

5276imposing appropriate penalties within the

5281ranges recommended in the following

5286disciplinary guidelines:

5288* * *

5291(p ) Failure to keep written dental records

5299and medical history records justifying the

5305course of treatment of the patient including,

5312but not limited to, patient histories,

5318examination results, test results, and x-rays

5324if taken. The usual action of the Board

5332shall be to impose a period of probation.

5340* * *

5343(cc) Being guilty of negligence or dental

5350malpractice. The usual action of the Board

5357shall be to impose a period of probation,

5365restriction of practice, and/or suspension. .

5371. .

5373* * *

5376(4 ) Based upon consideration of

5382aggravating or mitigating factors, present in

5388an individual case, the Board may deviate

5395from the penalties recommended in subsections

5401(2) and (3) above. The Board shall consider

5409as aggravating or mitigating factors the

5415following:

5416(a ) The severity of the offense;

5423(b ) The danger to the public;

5430(c ) The number of repetitions of offenses

5438or number of patients involved;

5443(d ) The length of time since the

5451violation;

5452(e ) The number of times the licensee has

5461been previously disciplined by the Board;

5467(f ) The length of time the licensee has

5476practiced;

5477(g ) The actual damage, physical or

5484otherwise, caused by the violation and the

5491reversibility of the damage;

5495(h ) The deterrent effect of the penalty

5503imposed;

5504( i ) The effect of the penalty upon the

5514licensee's livelihood;

5516(j ) Any efforts of rehabilitation by the

5524licensee;

5525(k ) The actual knowledge of the licensee

5533pertaining to the violation;

5537(l ) Attempts by the licensee to correct or

5546stop the violation or refusal by the licensee

5554to correct or stop violation;

5559(m ) Related violations against the

5565licensee in another state including findings

5571of guilt or innocence, penalties imposed and

5578penalties served;

5580(n ) Penalties imposed for related offenses

5587under sections (2) and (3) above;

5593(o ) Any other relevant mitigating or

5600aggravating factor under the circumstances.

5605(5 ) Penalties imposed by the Board

5612pursuant to sections (2) and (3) above may be

5621imposed in combination or individually, and

5627are as follows:

5630(a ) issuance of a reprimand;

5636(b ) imposition of an administrative fine

5643not to exceed $3,000.00 for each count or

5652separate offense;

5654(c ) restriction of the authorized scope of

5662practice;

5663(d ) placement of the licensee on probation

5671for a period of time and subject to such

5680conditions as the Board may specify,

5686including requiring the licensee to attend

5692continuing education courses, to submit to

5698reexamination, or to work under the

5704supervision of another licensee;

5708(e ) suspension of a license;

5714(f ) revocation of a license; however, no

5722license revoked by the Board after

5728December 31, 1987, s hall be subject to

5736reinstatement. . . .

574066. No aggravating or mitigating factors should be applied

5749to Respondent's failure to keep adequate records (Count I of the

5760Amended Administrative Complaint).

576367. As set forth in the Findings of Fact, Respondent's

5773failure to have malpractice insurance or proof of financial

5782responsibility (Count IV of the Amended Administrative Complaint)

5790is viewed as being an egregious violation. Because the

5799guidelines do not specifically address that violation, the

5807recommended penalty contained in this Recommended Order for Count

5816IV is based on the guidelines for violations of similar severity.

582768. As set forth in the Findings of Fact, Petitioner

5837established by clear and convincing evidence that Respondent

5845practiced below the standard of care in violation of

5854Section 466.028(1)(x), Florida Statutes (Count VI of the Amended

5863Administrative Complaint). Based on the totality of the record,

5872it is concluded that any arguable aggravating factors have been

5882offset by arguable mitigating factors. Consequently, no

5889aggravating factors or mitigating factors should be applied.

5897RECOMMENDATION

5898Based on the foregoing Findings of Fact and Conclusions of

5908Law, it is RECOMMENDED that Petitioner enter a final order

5918finding Respondent guilty of the violations alleged in Counts I,

5928IV, and VI of the Amended Administrative Complaint. For the

5938violation of Section 466.028(1)(m), Florida Statutes (Count I),

5946Respondent's licensure should be placed on probation for a period

5956of two years with the requirement that he take appropriate

5966continuing education courses pertaining to record-keeping. For

5973the violation of Rule 64B5-17.011, Florida Administrative Code

5981(Count IV), Respondent's license should be suspended for a period

5991of one year to be followed by a period of probation for a period

6005of five years. For the violation of Section 466.028(1)(x),

6014Florida Statutes (Count VI), Respondent's license should be

6022suspended for a period of one year to be followed by a period of

6036probation for a period of five years. It is further RECOMMENDED

6047that Respondent be reprimanded for each violation and assessed an

6057administrative fine in the amount of $3,000 for each violation,

6068for a total of $9,000. It is further recommended that the

6080suspension of licensure RECOMMENDED for Counts IV and VI and all

6091periods of probation run concurrently. It is further RECOMMENDED

6100that all other charges be dismissed.

6106DONE AND ENTERED this 15th day of August, 2001, in

6116Tallahassee, Leon County, Florida.

6120__________________ _________________

6122CLAUDE B. ARRINGTON

6125Administrative Law Judge

6128Division of Administrative Hearings

6132The DeSoto Building

61351230 Apalac hee Parkway

6139Tallahassee, Florida 32399-3060

6142(850) 488- 9675 SUNCOM 278-9675

6147Fax Filing (850) 921-6847

6151www.doah.state.fl.us

6152Filed with the Clerk of the

6158Division of Administrative Hearings

6162this 15th day of August, 2001.

6168ENDNOTES

61691/ The following is intended to be a brief summary of the

6181alleged violations. Any question as to the language of the First

6192Amended Administrative Complaint should be resolved by reading

6200that pleading in its entirety.

62052/ The Chernobyl disaster occurred April 26, 1986.

62133/ Petitioner's argument that Respondent's use of his dental

6222assistant as an indirect tester constituted misconduct is

6230rejected for the reasons set forth in Paragraph 59 of this

6241Recommended Order.

62434/ Petitioner referred to these remedies as herbal remedies.

6252That reference is incorrect.

62565/ Petitioner also alleged that aspects of Respondent's actual

6265treatment of the patient were below the standard of care or

6276experimental without regard to whether there existed an adequate

6285diagnosis to justify the treatment. The findings and conclusions

6294in the ensuing paragraphs pertaining to Respondent's actual

6302treatment of the patient resolve the conflicting evidence as to

6312those allegations.

63146/ Respondent's dental records incorrectly reflect that area #5

6323was reopened. The evidence established that it was area #3 that

6334was re-treated on December 27, 1995.

63407/ Rule 64B5-17.011, Florida Statutes, provides, in part, as

6349follows:

6350As a prerequisite for licensure or license

6357renewal every dentist is required to maintain

6364medical malpractice insurance or provide

6369proof of financial responsibility as set

6375forth herein:

6377(1 ) Obtaining and maintaining professional

6383liability coverage in an amount not less than

6391$25,000 per claim, with a minimum annual

6399aggregate of not less than $75,000. . . .

6409(2 ) Obtaining and maintaining an

6415unexpired, irrevocable letter of credit,

6420established pursuant to Chapter 675, in an

6427amount not less than $25,000 per claim, with

6436a minimum aggregate availability of credit of

6443not less than $75,000. The letter of credit

6452shall be payable to the dentist as

6459beneficiary upon presentment of a final

6465judgment indicating liability and awarding

6470damages to be paid by the dentist or upon

6479presentment of a settlement agreement signed

6485by all parties to such agreement when such

6493final judgment or settlement is a result of a

6502claim arising out of the rendering of, or the

6511failure to render, dental care and services.

6518Such letter of credit shall be nonassignable

6525and nontransferable. Such letter of credit

6531shall be issued by any bank or savings

6539association organized and existing under the

6545laws of the State of Florida or any bank or

6555savings association organized under the laws

6561of the United States that has its principal

6569place of business in this state or has a

6578branch office which is authorized under the

6585laws of this state or of the United States to

6595receive deposits in this state.

66008/ In making this finding, the undersigned has carefully

6609considered the testimony of Petitioner's experts who, as

6617traditional, allopathic practitioners, clearly believed

6622Respondent should have treated C. C. with traditional

6630antibiotics.

6631COPIES FURNISHED:

6633Rosanna Catalano, Esquire

6636R. Lynn Lovejoy, Esquire

6640Agency for Health Care Administration

66452727 Mahan Drive

6648Fort Knox Building, Mailstop 39

6653Tallahassee, Florida 32308

6656James M. Tuthill, Esquire

66602161 Palm Beach Lakes Boulevard

6665Raymond Plaza, Suite 407

6669West Palm Beach, Florida 33409

6674William H. Buckhalt, Executive Director

6679Board of Dentistry

6682Department of Health

66854052 Bald Cypress Way, Bin C06

6691Tallahassee, Florida 32399-1701

6694William W. Large, General Counsel

6699Department of Health

67024052 Bald Cypress Way, Bin A02

6708Tallahassee, Florida 32399-1701

6711Theodore M. Henderson, Agency Clerk

6716Department of Health

67194052 Bald Cypress Way, Bin A02

6725Tallahassee, Florida 32399-1701

6728NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6734All parties have the right to submit written exceptions within 15

6745days from the date of this Recommended Order. Any exceptions to

6756this Recommended Order should be filed with the agency that will

6767issue the final order in this case.

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Date
Proceedings
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Date: 09/01/2004
Proceedings: BY ORDER OF THE COURT: Appellant`s motion filed June 11, 2004, to stay issuance of the mandate is hereby denied without prejudice.
PDF:
Date: 09/01/2004
Proceedings: Mandate filed.
PDF:
Date: 08/30/2004
Proceedings: Mandate
PDF:
Date: 08/02/2004
Proceedings: BY ORDER OF THE COURT: Appellant`s unopposed motions filed July 7, 2004, and July 21, 2004, for extensions of time is granted.
PDF:
Date: 07/06/2004
Proceedings: BY ORDER OF THE COURT: Appellee`s unopposed motion for extension filed June 25, 2004, is granted.
PDF:
Date: 06/01/2004
Proceedings: BY ORDER OF THE COURT: Appellant`s motion filed April 29, 2004, for rehearing and clarification is hereby determined to be moot and Appellant`s corrected motion filed May 13, 2004, for rehearing and clarification is hereby denied.
PDF:
Date: 04/16/2004
Proceedings: Opinion filed.
PDF:
Date: 04/14/2004
Proceedings: Opinion
PDF:
Date: 08/22/2003
Proceedings: Oral Argument Calendar for Tuesday, October 7, 2003 filed.
PDF:
Date: 06/18/2003
Proceedings: BY ORDER OF THE COURT: "Appellee`s emergency unopposed motion filed June 16, 2003, for continuance of oral argument is granted."
PDF:
Date: 02/12/2003
Proceedings: Order from the District Court: "Joint motion to reschedule oral argument is granted" filed.
PDF:
Date: 12/19/2002
Proceedings: Order from the District Court of Appeal: "Appellant`s unopposed motion filed December 11, 2002, for extension of time is granted, and appellant shall serve the reply brief within seven days from the date of the entry of this order" filed.
PDF:
Date: 12/02/2002
Proceedings: Order from the District Court of Appeal: "appellee`s motion to file corrected answer brief filed on November 20, 2002 is granted."
Date: 10/23/2002
Proceedings: Order from the District Court of Appeal: "appellee`s motion filed October 10, 2002, for extension of time is granted."
Date: 10/18/2002
Proceedings: Order from the District Court of Appeal: "Pursuant to the October 11, 2002, notice of substitution of counsel, P. Page is hereby substituted for L. Pease as counsel for appellee."
PDF:
Date: 09/13/2002
Proceedings: BY ORDER OF THE COURT: (appellee`s second unopposed motion filed 9/9/02 for extension of time is granted) filed.
PDF:
Date: 08/16/2002
Proceedings: BY ORDER OF THE COURT: (appellee`s motion filed 8/12/02, for extension of time is granted) filed.
PDF:
Date: 07/29/2002
Proceedings: BY ORDER OF THE COURT: (appellant`s motion filed July 9, 2002, to supplement the record and motion to include videotape in appendix is granted) filed.
PDF:
Date: 07/02/2002
Proceedings: BY ORDER OF THE COURT: (appellant`s motion filed 6/19/02, for extension of time is granted) filed.
PDF:
Date: 05/28/2002
Proceedings: BY ORDER OF THE COURT: (Appellant`s motion filed May 21, 2002, for extension of time is granted) filed.
PDF:
Date: 05/02/2002
Proceedings: BY ORDER OF THE COURT: (appellant`s motion filed April 22, 2002, for extension of time is granted). filed.
PDF:
Date: 03/29/2002
Proceedings: BY ORDER OF THE COURT: (Appellant`s amended motion to supplement the record is denied). filed.
PDF:
Date: 03/04/2002
Proceedings: Amended Motion to Supplement the Record filed by A. Shield
PDF:
Date: 02/27/2002
Proceedings: BY ORDER OF THE COURT: (Appellant`s motion to supplement the record is denied without prejudice). filed.
PDF:
Date: 02/25/2002
Proceedings: Motion to Supplement the Record filed by A. Shield
PDF:
Date: 01/11/2002
Proceedings: Response in Opposition to Motion to Strike the Appendix to Appellant`s Motion for Rehearing and Portions of Appellant`s Reply filed.
PDF:
Date: 12/31/2001
Proceedings: Appendix to Reply to Response in Opposition to Motion for Stay on an Expedited Basis filed.
PDF:
Date: 12/31/2001
Proceedings: Motion for Rehearing filed by A. Shield
PDF:
Date: 12/13/2001
Proceedings: BY ORDER OF THE COURT: (appellant`s motion filed November 26, 2001, for stay on an expedited basis is hereby denied). filed.
PDF:
Date: 12/07/2001
Proceedings: Docketing Statement filed.
PDF:
Date: 12/07/2001
Proceedings: Letter to M. Beuttenmuller from A. Shield regarding "Expedited Case" filed.
PDF:
Date: 12/03/2001
Proceedings: Letter to M. Beuttenmuller from A. Shield regarding "Motion for Stay on an Expedited Basis" filed.
Date: 12/03/2001
Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 4D01-4581
PDF:
Date: 11/30/2001
Proceedings: BY ORDER OF THE COURT: (Appellant`s motion filed November 26, 2001, for stay on an expedited basis, a temporary stay is granted) filed.
PDF:
Date: 11/29/2001
Proceedings: Notice of Appearance (filed by A. Shield).
PDF:
Date: 11/29/2001
Proceedings: Notice of Administrative Appeal (filed by A. Shield).
PDF:
Date: 11/29/2001
Proceedings: Appellant`s Appendix filed in the Fourth DCA
PDF:
Date: 11/29/2001
Proceedings: Motion for Stay on an Expedited Basis filed in the Fourth DCA
PDF:
Date: 11/20/2001
Proceedings: Final Order filed.
PDF:
Date: 11/02/2001
Proceedings: Agency Final Order
PDF:
Date: 08/15/2001
Proceedings: Recommended Order
PDF:
Date: 08/15/2001
Proceedings: Order Granting Motion to Strike issued.
PDF:
Date: 08/15/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 08/15/2001
Proceedings: Recommended Order issued (hearing held October 16-18, 2000 and January 22-24, 2001) CASE CLOSED.
PDF:
Date: 06/18/2001
Proceedings: Motion to Strike Exhibit (filed by Respondent via facsimile).
PDF:
Date: 06/13/2001
Proceedings: Petitioner`s Proposed Recommended Order (with disk) filed.
PDF:
Date: 06/12/2001
Proceedings: Proposed Recommended Order filed by Respondent.
PDF:
Date: 06/12/2001
Proceedings: Copies of Applicable Case Law filed by Respondent.
PDF:
Date: 06/12/2001
Proceedings: Closing Argument filed by Respondent.
PDF:
Date: 06/05/2001
Proceedings: Letter to Judge Arrington from J. Tuthill (confirming telephone conversation on June 4, 2001 regarding Closing Argument and proposed Order) filed via facsimile.
PDF:
Date: 06/01/2001
Proceedings: Letter to Judge Arrington from J. Tuthill (request for extension of time to file closing argument and proposed order) filed via facsimile.
PDF:
Date: 05/17/2001
Proceedings: Letter to Judge Arrington from J. Tuthill (requesting to view Exhibits) filed via facsimile.
Date: 05/03/2001
Proceedings: Transcript filed.
Date: 05/03/2001
Proceedings: Notice of Filing Transcript (filed by Rosanna Catalano via facsimile).
Date: 04/30/2001
Proceedings: Notice of Filing Transcript (Deposition) filed.
Date: 04/25/2001
Proceedings: Transcript of Proceedings (2 originals- Volume 2) filed.
Date: 04/24/2001
Proceedings: Transcript (Volumes 3 - 6) filed.
Date: 04/23/2001
Proceedings: Letter to J. Tuthill from R. Catalano (regarding hearing transcripts) filed via facsimile.
Date: 04/04/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
Date: 04/04/2001
Proceedings: Petitioner`s Response to Order Dated March 30, 2001 Requiring Response (filed via facsimile).
Date: 04/04/2001
Proceedings: Petitioner`s Response to Respondent`s Response to Court Order Dated March 30, 2001 (filed via facsimile).
Date: 04/03/2001
Proceedings: Response to Court Order (filed by Respondent via facsimile).
Date: 04/02/2001
Proceedings: Letter to Judge Arrington from Myra Murphy, page 53 from Colorado Board of Dental Examiners filed.
Date: 03/30/2001
Proceedings: Order Requiring Response issued (parties shall respond within five days from the date of this order).
Date: 03/30/2001
Proceedings: Rulings on Objections to Deposition Testimony of Robert Baratz issued.
Date: 03/30/2001
Proceedings: Rulings on Objections Heard February 23, 2001 issued.
Date: 03/30/2001
Proceedings: Rulings on Objections Heard Februry 9, 2001 issued.
Date: 03/30/2001
Proceedings: Rulings on Objections Heard January 4, 2001 issued.
Date: 03/27/2001
Proceedings: Petitioner`s Response to Respondent`s Objections to Dr. Baratz` Testimony (with exhibits) filed.
Date: 03/27/2001
Proceedings: Notice of Taking Deposition (of Dr. R. Baratz) filed by via facsimile.
Date: 03/26/2001
Proceedings: Petitioner`s Response to Respondent`s Objections to Dr. Baratz` Testimony (filed via facsimile).
Date: 03/21/2001
Proceedings: Amendment to Objections to Deposition of Dr. Haratz (filed by J.Tuthill via facsimile).
Date: 03/16/2001
Proceedings: Objections to Deposition of Dr. Baratz (filed by J. Tuthill via facsimile).
Date: 03/12/2001
Proceedings: Notice of Hearing (filed via facsimile).
Date: 03/09/2001
Proceedings: Petitioner`s Response to Respondent`s Motion to Take Additional Discovery (filed via facsimile).
Date: 03/09/2001
Proceedings: Transcript filed.
Date: 03/09/2001
Proceedings: Notice of Filing Transcript filed.
Date: 03/06/2001
Proceedings: Notice of Taking Telephone Deposition (filed by Petitioner via facsimile).
Date: 03/05/2001
Proceedings: Motion to Take Additional Discovery (filed by Respondent via facsimile).
Date: 03/02/2001
Proceedings: Notice of Hearing Via Telephone (filed by Respondent via facsimile).
Date: 03/02/2001
Proceedings: Motion to Take Additonal Discovery (filed by Respondent via facsimile).
Date: 02/23/2001
Proceedings: Transcript (Volume II, III, IV) filed.
Date: 02/21/2001
Proceedings: Notice of Hearing (filed by James Tuthill via facsimile).
Date: 02/20/2001
Proceedings: Notice of Taking Deposition (filed by R. Lynn Lovejoy via facsimile).
Date: 02/19/2001
Proceedings: Notice of Filing Transcript; Transcript (Telephonic Hearing on Motions) filed.
Date: 02/15/2001
Proceedings: Transcript (Volumes 1 and 2) filed.
Date: 02/14/2001
Proceedings: Supplement to Petitioner`s Objections to Respondent`s Deposition in Lieu of Live Trial Testimony (filed via facsimile).
Date: 02/14/2001
Proceedings: Transcript (of Telephonic Hearing of Motions) filed.
Date: 02/09/2001
Proceedings: Letter to Judge C. Arrington from M. Murphy In re: telephone conference on Friday, February 23, 2001 at 9:00 a.m. (filed via facsimile).
Date: 02/08/2001
Proceedings: Corrected Page of Petitioner`s Objections to Respondent`s Deposition in Lieu of Trial Testimony (filed via facsimile).
Date: 02/08/2001
Proceedings: Motion to Extend Time of Hearing (filed by Respondent via facsimile).
Date: 02/06/2001
Proceedings: Motion to Compel Payment of Witness Fee (filed by Respondent via facsimile).
Date: 02/05/2001
Proceedings: Letter to Judge C. Arrington from R. Lovejoy In re: policy for providing transcripts (filed via facsimile).
Date: 02/02/2001
Proceedings: Memorandum of Law with Cover Letter (filed via facsimile).
PDF:
Date: 02/02/2001
Proceedings: Deposition of Robert S. Baratz filed.
Date: 02/02/2001
Proceedings: Notice of Filing Deposition; Deposition of Robert S. Baratz filed.
Date: 02/02/2001
Proceedings: Petitioner`s Objections to Respondent`s Depositions in Lieu of Trial Testimony filed.
Date: 02/02/2001
Proceedings: Motion to Include De. Robert Baratz`s Deposition as Petitioner`s Rebuttal Testimony at Final Hearing filed.
Date: 01/31/2001
Proceedings: Deposition Exhibits filed by J. Tuthill.
Date: 01/30/2001
Proceedings: Letter to C. Arrington from J. Tuthill In re: depositions and exhibits (filed via facsimile).
Date: 01/26/2001
Proceedings: Letter to Judge C. Arrington from M. Murphy In re: telephone conference (filed via facsimile).
Date: 01/26/2001
Proceedings: Exhibits filed.
Date: 01/25/2001
Proceedings: Notice of Hearing (via telephone) filed via facsimile.
Date: 01/25/2001
Proceedings: Motion to Allow Continuation of Deposition (filed via facsimile).
Date: 01/22/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
Date: 01/19/2001
Proceedings: Notice of Hearing with cover letter (filed via facsimile).
Date: 01/16/2001
Proceedings: Issues from Remainder of Trial (filed by Respondent via facsimile).
Date: 01/12/2001
Proceedings: Petitioner`s Memorandum of Law (filed via facsimile).
PDF:
Date: 01/12/2001
Proceedings: Order of Continuation of Hearing issued (hearing set for January 22 through 26, 2001; 10:00 a.m.; West Palm Beach, FL).
Date: 01/12/2001
Proceedings: Comments on Expert on Another Expert and Witness Deciding Ultimate Issue of Case filed by J. Tuthill.
Date: 12/22/2000
Proceedings: Petitioner`s Clarification of the First Amended Administrative Complaint filed.
Date: 12/22/2000
Proceedings: Letter to Judge C. Arrington from M. Murphy In re: telephone conference on January 4, 2001 at 10:30 a.m. (filed via facsimile).
Date: 12/19/2000
Proceedings: Response to Pleading to Court`s Request (filed by Respondent via facsimile).
Date: 11/17/2000
Proceedings: Letter to Judge C. Arrington from J. Tuthill In re: Deposition Transcripts (12) and Video Tapes (11) filed.
Date: 11/17/2000
Proceedings: Petitioner`s Response to Respondent`s Motion to Supplement Deposition and Exhibits (filed via facsimile).
Date: 11/16/2000
Proceedings: Letter to Judge C. Arrington from J. Tuthill In re: depositions (filed via facsimile).
Date: 11/16/2000
Proceedings: Letter to Judge C. Arrington from R. Catalano In re: telephone conference scheduled for Wednesday, November 22, 2000 at 10:30 am (filed via facsimile).
Date: 11/15/2000
Proceedings: Motion to Supplement Deposition of D. Warren (filed via facsimile).
Date: 11/07/2000
Proceedings: Order issued (all subpoenas previously issued shall remain in full force and effect for the re-scheduled hearing).
Date: 10/30/2000
Proceedings: Objections to Deposition Testimony (filed by Respondent via facsimile).
Date: 10/27/2000
Proceedings: Deposition (of Dr. Richard Chicketti) filed.
Date: 10/27/2000
Proceedings: Motion to Re-Validate Subpoenas (filed via facsimile).
Date: 10/24/2000
Proceedings: Dr. Kline`s Deposition filed.
Date: 10/20/2000
Proceedings: Petitioner Exhibits 1-22 *Exhibit 20 will be sent at a later date filed.
Date: 10/16/2000
Proceedings: CASE STATUS: Hearing Partially Held; continued to January 22 through January 26, 2001 at 10:00 a.m., West Palm Beach
Date: 10/13/2000
Proceedings: Affidavit of Service for D. Martin (filed via facsimile).
Date: 10/13/2000
Proceedings: (Joint) Pre-Hearing Stipulation (filed via facsimile).
Date: 10/11/2000
Proceedings: Petitioner`s Objection to Respondent`s Motion to Continue (filed via facsimile).
Date: 10/11/2000
Proceedings: Notice of Taking Telephone Deposition of G. Becker (filed via facsimile).
Date: 10/11/2000
Proceedings: Motion to Continue Hearing (filed by Respondent via facsimile).
Date: 10/11/2000
Proceedings: Amendment to Response to Motion in Limine (filed by Respondent via facsimile).
Date: 10/09/2000
Proceedings: Notice of Taking Expert Deposition of D. Martin (filed via facsimile).
Date: 10/06/2000
Proceedings: Return of Service (filed via facsimile).
Date: 10/04/2000
Proceedings: Response to Sixth Request to Produce (filed via facsimile).
Date: 10/03/2000
Proceedings: Cross Notice of Taking Video Deposition of P. Mahan (filed via facsimile).
Date: 10/02/2000
Proceedings: Response to Motion in Limine (filed via facsimile).
Date: 09/29/2000
Proceedings: Petitioner`s Witness List (filed via facsimile).
Date: 09/29/2000
Proceedings: Petitoner`s Exhibit List (filed via facsimile).
Date: 09/29/2000
Proceedings: Notice of Taking Video Deposition of R. Manx (filed via facsimile).
Date: 09/26/2000
Proceedings: Notice of Taking Telephone Deposition of C. Hussar (filed via facsimile).
Date: 09/26/2000
Proceedings: Notice of Taking Video Deposition of T. Dolan (filed via facsimile).
Date: 09/26/2000
Proceedings: Notice of Taking Video Deposition of H. Germillion (filed via facsimile).
Date: 09/26/2000
Proceedings: Notice of Taking Video Deposition of P. Mahan (filed via facsimile).
Date: 09/26/2000
Proceedings: Notice of Filing Correspondence (filed by Petitioner via facsimile).
Date: 09/25/2000
Proceedings: Request for Extension of Time to Respond to Motion in Limine (filed by Respondent via facsimile).
Date: 09/25/2000
Proceedings: Notice of Taking Expert Deposition of R. Bliss filed.
Date: 09/21/2000
Proceedings: Motion in Limine to Exclude Testimony Regarding "Autonomic Muscle Testing" and Exclusion of Experts Because of Failure to Qualify as a "Peer" Under Section 466.028 (1)(X), Florida Statutes filed.
Date: 09/19/2000
Proceedings: Petitioner`s Motion to Shorten Time for Respondent to Respond to Request to Produce (filed via facsimile).
Date: 09/19/2000
Proceedings: Subpoena Duces Tecum to A. Slavin (filed via facsimile).
Date: 09/19/2000
Proceedings: Affidavit of A. Slavin (filed via facsimile).
Date: 09/08/2000
Proceedings: Notice of Serving Petitioner`s Sixth Request for Produce (filed via facsimile).
Date: 09/05/2000
Proceedings: Objections to Request to Produce (filed by Respondent via facsimile).
Date: 08/07/2000
Proceedings: Notice of Serving Petitioner`s Fifth Request for Produce (filed via facsimile).
Date: 08/07/2000
Proceedings: Notice of Taking Video Deposition in Perpetuation of Testimony for Use at Formal Hearing (filed via facsimile).
Date: 08/04/2000
Proceedings: Respondent`s Response to Fourth Request to Produce (filed via facsimile).
Date: 07/25/2000
Proceedings: Order Denying Motion to Quash Subpoena sent out.
Date: 07/21/2000
Proceedings: Petitioner`s Notice of Filing of Transcript of Motion Hearing Held on July 10, 2000.. (filed via facsimile)
Date: 07/21/2000
Proceedings: Petitioner`s Response to Respondent`s Motion to Quash Subpoena. (filed via facsimile)
Date: 07/17/2000
Proceedings: Motion to Quash Subpoena. (filed by J. Tuthill) (filed via facsimile)
Date: 07/11/2000
Proceedings: Notice of Taking Video Deposition (filed by J. Tuthill via facsimile)
Date: 07/10/2000
Proceedings: Order sent out. (respondent`s motion to dismiss action with prejudice is denied; petitioner`s motion to strike the filing of Dr. Chichetti`s deposition is denied)
Date: 07/07/2000
Proceedings: Petitioner`s Fourth Request to Produce (filed via facsimile)
Date: 07/07/2000
Proceedings: Notice of Taking Video Deposition-R. Chichetti (filed via facsimile)
Date: 07/05/2000
Proceedings: Notice of Serving Petitioner`s Response to Respondent`s Interrogatories and Request to Produce (filed via facsimile)
Date: 06/30/2000
Proceedings: Petitioner`s Response to Respondent`s Motion to Dismiss Action with Prejudice (filed via facsimile)
Date: 06/30/2000
Proceedings: Motion to Strike the Filing of Dr. Chichetti`s Deposition (filed via facsimile)
Date: 06/23/2000
Proceedings: Notice of Filing (pertinent portions of the deposition of R. Chichetti (filed by J. Tuthill via facsimile) filed.
Date: 06/23/2000
Proceedings: Notice of Filing; Transcript of Telephonic Proceedings Before the Honorable Judge Powell (filed by J. Tuthill via facsimile) filed.
Date: 06/23/2000
Proceedings: Motion to Dismiss Action with Prejudice (filed by Respondent via facsimile) filed.
Date: 06/15/2000
Proceedings: First Amended Administrative Complaint (Petitioner filed via facsimile) filed.
Date: 06/13/2000
Proceedings: Amended Answer to Amended Administrative Complaint (filed by Respondent via facsimile) filed.
Date: 06/07/2000
Proceedings: Notice of Taking Deposition (Respondent filed via facsimile) filed.
Date: 06/07/2000
Proceedings: Answer to Amended Administrative Complaint (Respondent filed via facsimile) filed.
Date: 06/05/2000
Proceedings: Notice of Service of Interrogatories; Request to Produce (Respondent filed via facsimile) filed.
Date: 06/05/2000
Proceedings: Notice of Taking Deposition (J. Tuthill filed via facsimile) filed.
Date: 05/30/2000
Proceedings: Response to Third Request to Produce (J. Tuthill filed via facsimile) filed.
Date: 05/30/2000
Proceedings: Notice of Serving Petitioner`s Response to Respondent`s Request to Produce (filed via facsimile).
Date: 05/24/2000
Proceedings: Order Granting Motion to Amend Administrative Complaint and Denying Motion to Place Case in Short-Term Abeyance sent out.
Date: 05/23/2000
Proceedings: Order of Pre-hearing Instructions sent out.
Date: 05/23/2000
Proceedings: Notice of Hearing sent out. (hearing set for October 16 through 20, 2000; 10:00 a.m.; West Palm Beach, FL)
Date: 05/12/2000
Proceedings: (J. Tuthill) Response to Court Order filed.
Date: 05/11/2000
Proceedings: Order Granting Leave to Amend Administrative Complaint sent out.
Date: 05/11/2000
Proceedings: Order of Recusal sent out.
Date: 05/11/2000
Proceedings: Notice of Taking Deposition (filed via facsimile).
Date: 05/10/2000
Proceedings: (J. Tuthill) Request to Produce (filed via facsimile).
Date: 05/10/2000
Proceedings: (Respondent) Response to Court Order (filed via facsimile).
Date: 05/08/2000
Proceedings: Petitioner`s Response to Respondent`s Notice of Recusal (filed via facsimile).
Date: 05/03/2000
Proceedings: Petitioner`s Response to Order (filed via facsimile).
Date: 05/03/2000
Proceedings: (J. Tuthill) Answers to Second Request for Admissions; Response to Second Request to Produce (filed via facsimile).
Date: 04/28/2000
Proceedings: Notice of Recusal (filed via facsimile).
Date: 04/28/2000
Proceedings: Notice of Serving Petitioner`s Third Request for Produce (filed via facsimile).
Date: 04/27/2000
Proceedings: Copy of Letter to Mr. Tuthill from R. Lynn Lovejoy (filed via facsimile).
Date: 04/26/2000
Proceedings: Order sent out. (hearing cancelled, parties to advise status by 05/10/2000, the motion to place case in short-term abeyance is denied, motion to strike witnesses and dismiss case is denied)
Date: 04/25/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (filed via facsimile).
Date: 04/25/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (filed via facsimile).
Date: 04/25/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (filed via facsimile).
Date: 04/25/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (filed via facsimile).
Date: 04/24/2000
Proceedings: Petitioner`s Response to Respondent`s Motion to Strike Witnesses and Dismiss Case (filed via facsimile).
Date: 04/21/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (filed via facsimile).
Date: 04/21/2000
Proceedings: Motion to Strike Witnesses and Dismiss Case (Respondent) (filed via facsimile).
Date: 04/19/2000
Proceedings: (Respondent) Reply to Motion to Amend; Notice of Serving Expert Interrogatories; Expert Interrogatories (filed via facsimile).
Date: 04/18/2000
Proceedings: (Petitioner) Motion to Amend Administrative Complaint and Place Case in Short-Term Abeyance (filed via facsimile).
Date: 04/14/2000
Proceedings: Notice of Serving Petitioner`s Response to Respondent`s Expert Interrogatories (filed via facsimile).
Date: 04/14/2000
Proceedings: Notice of Serving Petitioner`s Response to Respondent`s Interrogatories (filed via facsimile).
Date: 04/12/2000
Proceedings: (J. Tuthill) Affidavit; Subpoena Duces Tecum (filed via facsimile).
Date: 04/10/2000
Proceedings: (J. Tuthill) Notice of Taking Video Deposition (filed via facsimile).
Date: 04/05/2000
Proceedings: Notice of Serving Petitioner`s Second Request for Admissions and Second Request to Produce (filed via facsimile).
Date: 04/05/2000
Proceedings: (Petitioner) Notice of Taking Deposition (filed via facsimile).
Date: 04/03/2000
Proceedings: (Petitioner) Notice of Taking Deposition (filed via facsimile).
Date: 03/24/2000
Proceedings: Order sent out. (upon the filing of an appropriate pleading by respondent, respondent`s concerns, regarding new experts and/or amending the administrative complaint in the form of new allegations and/or violations will be heard by the ALJ)
Date: 03/21/2000
Proceedings: (J. Tuthill) Request for Production From Non-Party (filed via facsimile).
Date: 03/20/2000
Proceedings: Order Compelling Discovery sent out. (motion to compel is granted and petitioner shall respond to respondent`s interrogatories no later than April 14, 2000)
Date: 03/20/2000
Proceedings: Amended Order Compelling Discovery sent out. (motion to compel is granted and petitioner shall respond to respondent`s interrogatories no later than April 14, 2000)
Date: 03/20/2000
Proceedings: (J. Tuthill) Corrected Reply to Petitioner`s Response (filed via facsimile).
Date: 03/20/2000
Proceedings: (J. Tuthill) (unsigned) Reply to Petitioner`s Response (filed via facsimile).
Date: 03/15/2000
Proceedings: (J. Tuthill) Notice of Filing Answers to Interrogatories; Answers to Interrogatories (filed via facsimile).
Date: 03/14/2000
Proceedings: Order Compelling Discovery sent out. (motion to compel is granted and petitioner shall respond to respondent`s interrogatories by 4/14/2000)
Date: 03/13/2000
Proceedings: Petitioner`s Response to Respondent`s Motion to Compel and Petitioner`s Motion to Enlarge Time to Answer Interrogatories (filed via facsimile).
Date: 03/10/2000
Proceedings: Notice of Substitution of Counsel (Lovejoy; filed via facsimile) filed.
Date: 03/08/2000
Proceedings: (Respondent) Response and Objections to Request for Admissions (filed via facsimile).
Date: 03/02/2000
Proceedings: (Respondent) Motion to Compel (filed via facsimile).
Date: 02/29/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (filed via facsimile).
Date: 02/28/2000
Proceedings: (J. Tuthill) Notice of Taking Video Deposition (filed via facsimile).
Date: 02/17/2000
Proceedings: (J. Tuthill) Motion to Compel (filed via facsimile).
Date: 02/16/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (Videotape Deposition) (filed via facsimile).
Date: 02/14/2000
Proceedings: Notice of Serving Petitioner`s Request to Produce, Interrogatories, and Petitioners Request for Admissions (filed via facsimile).
Date: 02/11/2000
Proceedings: Notice of Taking Video Deposition (filed via facsimile).
Date: 01/31/2000
Proceedings: Notice of Taking Deposition of Dr. Shankland with cover letter (filed via facsimile).
Date: 01/27/2000
Proceedings: (J. Tuthill) Notice of Serving Expert Interrogatories; Expert Interrogatories (filed via facsimile).
Date: 01/20/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (Videotape Deposition) (filed via facsimile).
Date: 01/19/2000
Proceedings: Notice of Hearing sent out. (hearing set for May 9 through 11, 2000; 9:00 a.m.; West Palm Beach, FL)
Date: 01/19/2000
Proceedings: (J. Tuthill) ReNotice of Taking Deposition (Videotape Deposition) (filed via facsimile).
Date: 01/18/2000
Proceedings: (J. Tuthill) Renotice of Taking Deposition (Videotaped Deposition) (filed via facsimile).
Date: 01/13/2000
Proceedings: (J. Tuthill) Motion for Continuance (filed via facsimile).
Date: 01/11/2000
Proceedings: (J. Tuthill) Notice of Taking Deposition (Videotape Deposition) w/cover letter (filed via facsimile).
Date: 01/04/2000
Proceedings: (J. Tuthill) (3) ReNotice of Taking Deposition (Videotaped Deposition) (filed via facsimile).
Date: 12/27/1999
Proceedings: (J. Tuthill) Notice of Taking Deposition (filed via facsimile).
Date: 12/22/1999
Proceedings: (J. Tuthill) (2) Notice of Taking Deposition (filed via facsimile).
Date: 12/09/1999
Proceedings: (J. Tuthill) Notice of Service of Interrogatories; Interrogatories filed.
Date: 12/08/1999
Proceedings: (Respondent) Notice of Taking Deposition w/cover letter (filed via facsimile).
Date: 12/07/1999
Proceedings: (J. Tuthill) (unsigned) Notice of Service of Interrogatories; Interrogatories (filed via facsimile).
Date: 11/30/1999
Proceedings: (Respondent) Notice of Taking Deposition (filed via facsimile).
Date: 11/29/1999
Proceedings: Order of Pre-hearing Instructions sent out.
Date: 11/29/1999
Proceedings: Notice of Hearing sent out. (hearing set for March 29 through 31, 2000; 9:00 a.m.; West Palm Beach, FL)
Date: 11/23/1999
Proceedings: (J. Tuthill) Notice of Taking Deposition w/cover letter (filed via facsimile).
Date: 11/23/1999
Proceedings: Letter to Judge Powell from J. Tuthill Re: Corrected Case Number (filed via facsimile).
Date: 11/19/1999
Proceedings: Joint Response w/cover letter (filed via facsimile).
Date: 11/18/1999
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 11/10/1999
Proceedings: Initial Order issued.
Date: 11/05/1999
Proceedings: Agency Referral Letter; Election of Rights; Administrative Complaint filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
11/05/1999
Date Assignment:
05/12/2000
Last Docket Entry:
09/01/2004
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (6):

Related Florida Rule(s) (2):