01-003509PL Department Of Health, Board Of Denistry vs. Michael Mcmillan, D.M.D. Status: Closed Recommended Order on Monday, December 17, 2001.

Summary: Dentist who referred patient to oral surgeon for lingual nerve damage not guilty of failing to refer patient. State did not charge dentist with failing to refer patient in a timely manner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3509PL

)

MICHAEL McMILLAN, D.M.D., )

)

Respondent. )

_________________________ ____ )

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the

administrative hearing of this proceeding on November 6, 2001, in

Ft. Myers, Florida, on behalf of the Division of Administrative

Hearings ("DOAH").

APPEARANCES

For Pe titioner: Tracy J. Sumner, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317 - 4229

For Respondent: Frank R. Recker, Esquire

Frank R. Recker & Associates Company L.P.A.

267 North Collier Boulevard, Suite 202

Marco Island, Florida 34145

Jay P. Chimpoulis, Esquire

O'Connor & Meyers

Post Office Box 149022

Coral Gables, Florida 33114 - 9022

STATEMENT OF THE ISSUE

The issue for determination is whethe r Respondent violated

Section 466.028(1)(x), Florida Statutes (2001), by failing to

refer patient L.D. to a specialist for evaluation and treatment

of numbness of her tongue. (All statutory references are to

Florida Statutes (2001) unless otherwise stated .)

PRELIMINARY STATEMENT

On July 12, 2001, Petitioner filed an Administrative

Complaint against Respondent. Respondent timely requested an

administrative hearing.

At the hearing, Petitioner presented the testimony of two

witnesses who were present at th e hearing and three witnesses

whose testimony was offered by deposition transcripts.

Petitioner submitted six exhibits for admission in evidence.

Respondent testified in his own behalf, offered the deposition

testimony of three witnesses, and submitted f ive exhibits for

admission in evidence. The identity of the witnesses and

exhibits and any attendant rulings are set forth in the

Transcript of the hearing filed on November 29, 2001. The

parties timely filed their respective Proposed Recommended Orders

on December 10, 2001.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of dentistry in Florida pursuant to

Section 20.43 and Chapters 456 and 466. Respondent is licensed

as a dentist in Florida pursuant to lice nse number DN9676.

2. Respondent is a general dentist. Respondent practices

dentistry in Cape Coral, Florida, and has practiced dentistry for

approximately 18 years. Respondent has no prior discipline

against his license.

3. The patient at issue is identified in the Administrative

Complaint as L.D. The parties stipulated that L.D. is the same

person identified in Respondent's medical records as L.V. and in

the Transcript as L.W.

4. L.D. is a female who was 19 years old when Respondent

removed her four wisdom teeth on February 26, 1998. At the

time, Respondent's records correctly identified the patient as

L.V. L.V. subsequently married D.D. who was her boyfriend at the

time. L.V. is now L.D. L.D. and D.D. were both patients of

Respondent.

5. L.D. suffered an injury to her lingual nerve when

Respondent extracted her wisdom teeth. Lingual nerve injury is a

foreseeable risk of wisdom tooth extraction, and the parties

agree that Respondent properly disclosed that risk to L.D. prior

to extracting her wisdom teeth.

6. The symptoms of lingual nerve injury include

paresthesias, i.e ., numbness, of the tongue. The applicable

standard of care for lingual nerve injury is observation and,

under certain circumstances, referral to an oral and

maxillofacial surgeon ("oral surgeon").

7. Surgery for symptoms of a lingual nerve injury may be

exploratory, or it may be undertaken to perform a nerve grafting

procedure. One of the risks of such surgery is dyscesthesia,

i.e. , pain, thereby making the symptoms wors e rather than better.

Therefore, surgery is not appropriate unless the patient

experiences severe or debilitating pain, lip biting and cheek

biting, or cannot function. The prudent dentist should observe

the patient over time to determine whether the pat ient is

improving and to determine the nature and scope of the patient's

symptoms.

8. The Administrative Complaint contains two essential

allegations against Respondent. One allegation is that

Respondent failed to diagnose the lingual nerve injury. The

other allegation is that Respondent failed to refer L.D. to an

oral surgeon.

9. Respondent properly diagnosed the lingual nerve injury

to L.D. After extracting L.D.'s wisdom teeth on February 26,

1998, Respondent examined L.D. in 1998 on February 27; March 5,

12, and 26; April 30; May 4; and July 8. L.D. did not call or

seek an appointment with Respondent between May 4 and July 8,

1998.

10. The first examination on February 27, 1998, was

routine. Respondent checked to make sure L.D. had no signs of

any complications, gross infection, or pus from the area of the

surgery. L.D. had no complaints of numbness. Respondent

instructed L.D. to return on March 5, 1998.

11. On March 5, 1998, L.D. complained for the first time of

numbness on both sides of h er tongue. Respondent properly

examined and diagnosed the cause as lingual nerve injury. By

using an explorer to identify the areas of paresthesia, or

numbness, Respondent determined that the right tip of L.D.'s

tongue did not respond to the explorer, th e right mid - tongue did

respond, the left tip did not respond, and the left mid - tongue

did not respond. Respondent also determined that both lingual

tissue areas, i.e ., the areas toward the tongue, did not respond

to the explorer.

12. Respondent properl y treated L.D. after diagnosing the

lingual nerve injury. Respondent observed L.D. for approximately

four months to determine the nature and scope of L.D.'s symptoms.

L.D.'s paresthesia of the tongue improved during the four months

immediately following the removal of her wisdom teeth.

13. After examining and diagnosing L.D. on March 5, 1998,

Respondent explained to L.D. that the numbness may be either

transient or permanent and that she was to return in one week for

observation. L.D. returned to Res pondent's office on March 12,

1998. Respondent stated that the feeling was coming back to her

tongue, especially on her left side, and that she felt tingling.

14. L.D. complained only of a tingling sensation on the

right side of her tongue. L.D. did not complain that her tongue

was numb or that she was biting her tongue. L.D. stated that her

tongue was still a little bit numb, and it was tingling a little

bit on the right side.

15. A tingling sensation is hyperesthesia or paresthesia.

Hyperesthes ia can be an indication that the lingual nerve is

repairing or healing. It indicates that the nerve is intact,

that nerve conduction is occurring, and may indicate a potential

for spontaneous self - repair. Respondent instructed L.D. to

return for observat ion in two weeks.

16. L.D. returned to Respondent's office on March 26, 1998.

L.D. stated the feeling had returned to the left side of her

tongue and that the right side of her tongue was still tingling.

Respondent instructed L.D. to return for observ ation in six

weeks.

17. L.D. returned to Respondent's office on April 30, 1998.

L.D. stated that she no longer had sensitivity on the right side

of her tongue. The comment that she had "no sensitivity"

indicated that the patient had none of the tingli ng sensation

that had been her only complaint on March 26, 1998.

18. L.D. returned to Respondent's office on May 4, 1998,

for a dental prophylaxis, i.e. , cleaning. L.D. did not complain

of any numbness or tingling on May 4, 1998.

19. On July 8, 1 998, L.D. and D.D. both visited

Respondent's office for dental care. D.D.'s visit was routine

and not material to this proceeding. L.D. returned to

Respondent's office and reported conflicting symptoms. L.D.

indicated that she had feeling in her lips, b ut did not respond

to the explorer on the gum in the front or the back of the teeth

or in the areas of the tongue in which she had previously

indicated that sensation had returned.

20. The symptoms displayed by L.D. on July 8, 1998,

included symptoms of buccal nerve damage. The buccal nerve goes

to the gum and cheeks and is different from the lingual nerve.

Prior to July 8, 1998, L.D. had not previously shown any signs of

buccal nerve damage. Because of these conflicting complaints,

Respondent referre d L.D. to an oral surgeon on July 8, 1998.

21. Respondent referred L.D. to the Southwest Florida Oral

Surgery Associates ("Southwest"). Respondent has referred

patients exclusively to Southwest for approximately 10 years.

22. Respondent's records for Ju ly 8, 1998, do not include

an express statement that he was referring L.D. to an oral

surgeon. However, the records include a notation, "PTR for

records," that indicates L.D. was to return for her records.

23. The notation in the records is consistent with

Respondent's longstanding protocol when referring a patient to a

specialist. The protocol is to have the patient's records copied

and prepared for the patient to pick them up and deliver to the

specialist.

24. On July 13, 1998, D.D. obtained copies of the records

for L.D. and for D.D. from Respondent's office. The records

included a written referral form for L.D. in accordance with

Respondent's protocol. Respondent's office staff inadvertently

filed Respondent's copy of the written referral form fo r L.D. in

D.D.'s dental records and recovered the form after Respondent was

asked to retrieve D.D.'s records during discovery in this

proceeding.

25. Respondent informed his office manager on July 8, 1998,

that he had referred L.D. to an oral surgeo n. Respondent's

office manager confirms that Respondent stated to her at the time

that he was referring L.D. to an oral surgeon.

26. On March 3, 1999, L.D. saw Dr. Kevin Pollack at

Southwest. Dr. Pollack found that L.D. could not perceive touch

or pre ssure on the left side of her tongue. On April 1, 1999,

L.D. saw Dr. Timothy Hogan at Southwest. L.D. had improved since

she saw Dr. Pollack. Dr. Hogan found that L.D. could perceive

light touch and pressure on the left side of her tongue.

27. Petiti oner's expert opined that failure to refer L.D.

to an oral surgeon failed to comply with the applicable standard

of care for lingual nerve injury. However, the issue of whether

Respondent referred L.D. to Southwest is an issue of fact for

which expert opi nion is admissible if: specialized knowledge will

assist the trier of fact in understanding the evidence; and the

opinion can be applied to evidence at the hearing. Section

90.702.

28. The record does not disclose any specialized knowledge

needed to re solve the factual issue of whether Respondent

referred L.D. to Southwest. The expert did not testify at the

hearing as to why the expert's knowledge, skill, experience,

training, or education would assist the trier of fact in making a

finding concerning t he factual issue of whether Respondent

referred L.D. to Southwest.

29. The opinion of Petitioner's expert was not applied to

evidence at the hearing. The expert apparently disregarded the

entries in Respondent's records that L.D. was to pick up her

recor ds, and the expert was not present at the hearing to listen

to other evidence and testify as to whether the evidence at

hearing altered his opinion.

30. The only other evidence that the expert opinion could

be applied to is the testimony by L.D. and D.D. that Respondent

did not refer L.D. to Southwest. However, the testimony of L.D.

and D.D. is neither credible nor persuasive and is less than

clear and convincing.

31. The memories of the two witnesses are not clear and are

not without confusion. Most of the facts to which the witnesses

testified are not distinctly remembered. The testimony is not

precise and explicit. Their testimony lacks certainty and

consistency as to specific facts and circumstances and details.

32. Both witnesses testified tha t they clearly recalled

that Respondent did not refer L.D. to Southwest. However,

neither witness could recall how L.D. ended up at Southwest. Nor

could either witness recall picking up records from Respondent,

what was contained in those records, and wh ether a written

referral was included in the records. When asked why L.D. had

not returned to Southwest, L.D. refused to answer the question.

33. The testimony of L.D. and D.D. does not produce in the

mind of the trier of fact a firm belief or conviction , without

hesitancy, as to the truth of the allegation that Respondent

failed to refer L.D. to Southwest. The assumption inherent in

the testimony of Petitioner's expert that Respondent did not

refer L.D. to an oral surgeon is not based on underlying fact s or

data in evidence and, therefore, is not admissible pursuant to

Section 90.705. Even if it were admissible, the underlying facts

and data are less than clear and convincing and not persuasive.

34. Petitioner submitted evidence that Respondent failed to

meet the applicable standard of care because Respondent did not

refer L.D. to an oral surgeon in a timely manner. Without

identifying the appropriate time for a referral, Petitioner

relies on expert opinion that, "sooner is better than later."

35. The Administrative Complaint does not allege that

Respondent failed to meet the applicable standard of care by

failing to refer L.D. to an oral surgeon in a timely manner.

Rather, the Administrative Complaint alleges that Respondent

failed to refer L.D. to a n oral surgeon at any time. It would

violate fundamental principles of due process to put Respondent

on notice in the Administrative Complaint that he must be

prepared to defend against the allegations in the Complaint and

then prove a different allegatio n during the administrative

hearing.

36. Even if the Administrative Complaint were to allege

that Respondent failed to timely refer L.D. to an oral surgeon,

the evidence is less than clear and convincing that the referral

by Respondent was not timely. Re spondent did not refer L.D. to a

specialist prior to July 8, 1998, because the numbness in her

tongue had been improving. In April of 1999, L.D. had recovered

a large percentage of the feeling on the left side of her tongue

and was experiencing tingling o n her right side.

37. If Respondent had referred L.D. to a specialist during

the time that she had been reporting improvement in her

parethesias, the referral would have been inappropriate. In the

absence of debilitating pain and lip and cheek biting, a dentist

need not refer a patient with lingual nerve paresthesia to an

oral surgeon. If a patient who experiences lingual nerve

parethesias after the removal of wisdom teeth shows signs of

improving or if the patient has some feeling in the tongue, the

de ntist need only observe the patient and need not refer the

patient to a specialist.

CONCLUSIONS OF LAW

38. DOAH has jurisdiction over the parties and the subject

matter. The parties received adequate notice of the

administrative hearing.

39. The b urden of proof is on the Petitioner. Petitioner

must prove by clear and convincing evidence that Respondent

committed the violations alleged in the Administrative Complaint.

Department of Banking and Finance, Division of Securities and

Investor Protectio n v. Osborne Stern and Co. , 670 So. 2d 932, 935

(Fla. 1996); Hoover v. Agency for Health Care Administration , 676

So. 2d 1380, 1382 (Fla. 3d Dist. 1996).

40. Petitioner failed to satisfy its burden of proof to

establish the allegations of the Administrat ive Complaint.

Disciplinary statutes, such as Section 466.028(1)(x), are penal

in nature and must be strictly construed against the

authorization of discipline and in favor of the person sought to

be penalized. Loeffler v. Florida Department of Business and

Professional Regulation , 739 So. 2d 150, 152 (Fla. 1st Dist.

1999); Munch v. Department of Professional Regulation , 592 So. 2d

1136, 1143 (Fla. 1st Dist. 1992); Elmariah v. Department of

Professional Regulation, Board of Medicine , 574 So. 2d 164, 165

( Fla. 1st Dist. 1990).

41. Petitioner must prove each element required in the

statutory definition of the violation by clear and convincing

evidence. Clear and convincing evidence is considered an

"intermediate level of proof."

This intermediate level o f proof entails both

a qualitative and quantitative standard. The

evidence must be credible; the memories of

the witnesses must be clear and without

confusion; and the sum total of the evidence

must be of sufficient weight to convince the

trier of fact wi thout hesitancy.

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Inquiry Concerning D avey , 645 So. 2d 398, 404 (Fla. 1994) citing

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th Dist. 1983).

42. The evidence submitted by Petitioner was less than

clear and convincing. It consisted of the testimony of an expert

witness who was not prese nt during the examination of L.D. The

witness recanted his testimony that Respondent had failed to

diagnose L.D.'s lingual nerve injury. The witness did not

consider the entry in the Respondent's records for patient L.D.,

which stated that the patient wa s to return for her records, and

simply assumed that the Respondent did not refer L.D. to a

specialist.

43. The evidence also consisted of the testimony of two

witnesses, L.D. and D.D. Neither could recall how L.D. found

Southwest. They could not recal l whether or not Respondent had

referred L.D. to a specialist; could not recall very much at all

about L.D.'s visits to Respondent's office; could not recall

L.D.'s appointments with Drs. Pollack and Hogan on March 3 and

April 1, 1999, respectively; could not recall whether or not D.D.

had picked up L.D.'s dental records from Respondent's office or

what D.D. had done with them; could not recall why L.D. first

visited Respondent; and could not recall the names of the

dentists L.D. visited either prior to or after seeing Respondent.

The testimony of L.D. and D.D. was conflicting, inconsistent, and

less than clear and convincing.

44. Although Respondent does not bear the burden of proof

in an administrative proceeding, the testimony of Respondent and

his off ice manager, as well as the unrefuted entries in L.D.'s

dental records, show that Respondent referred L.D. to a

specialist. The referral form, retrieved from D.D.'s dental

records, shows that Respondent referred L.D. to an oral surgeon.

45. The testimon y of Respondent's expert witnesses

demonstrates that, because L.D.'s paresthesia had improved during

the several weeks following the removal of her wisdom teeth, the

standard of care required only that Respondent observe L.D. The

standard of care did not require that Respondent refer L.D. to a

specialist.

46. The testimony of Petitioner's expert witness is

inapposite. The expert is a prosthodontist, not a general

dentist or an oral surgeon. The expert is not familiar with the

standard of care for obser ving and referring a patient with a

lingual nerve injury, rarely removes wisdom teeth, has never

referred a patient with lingual nerve injury to an oral surgeon,

and has never had a dentist refer a patient with lingual nerve

injury to him. In addition, th e expert would defer to the

judgment of a Board - certified oral surgeon in handling lingual

nerve injuries as it relates to when L.D. should have been

referred.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOM MENDED that Petitioner enter a Final Order finding that

Respondent is not guilty of violating Section 466.028(1)(x) and

dismissing the Administrative Complaint.

DONE AND ENTERED on this 17th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of December, 2001.

COPIES FURNISHED :

Tracy J. Sumner, Esquire

Agency for Health Care Ad ministration

Post Office Box 14229

Tallahassee, Florida 32317 - 4229

Jay P. Chimpoulis, Esquire

O'Connor & Meyers

Post Office Box 149022

Coral Gables, Florida 33114 - 9022

Frank R. Recker, Esquire

Frank R. Recker & Associates Company L.P.A.

267 North Colli er Boulevard, Suite 202

Marco Island, Florida 34145

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bi n A02

Tallahassee, Florida 32399 - 1701

William H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.