03-001584PL Department Of Health, Board Of Denistry vs. Maria A. Kashlak, D.D.S. Status: Closed Recommended Order on Thursday, September 11, 2003.

Summary: Dentist failed to provide dental records to patient as required by Section 466.028, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1584PL

)

MARIA A. KASHLAK, D.D.S., )

)

Respondent. )

)

RECOMMEND ED ORDER

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

on July 25, 2003, by video teleconference in Tallahassee and

Orlando, Florida, before Susan B. Kirkland, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

A PPEARANCES

For Petitioner: Wayne Mitchell, Esquire

Ephraim D. Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Brian D. Stokes, Esquire

Unger, Acree, Weinstein, Marcus,

Merrill, Kast & Metz, P.L.

701 Peachtree Street

Orlando, Florida 32804

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 456.057(4) and

466.028(1)(n), Florida Statutes, and, if so, what discipline

should be imposed.

PRELIMINARY STATEMENT

On February 10, 2003, Petitioner, Department of Health,

Board of Dentistry (Department), filed an Administrative

Complaint against Respondent, Maria A. Kashlak, D.D.S.

(Dr. Kashlak), charging that Dr. Kashlak had violated

Subsections 456.057(4) and 466.028(1)(n), Florida Statutes, by

failing to make available to a patient a copy of the patien t's

dental records. Dr. Kashlak requested an administrative

hearing, and the case was forwarded to the Division of

Administrative Hearings on May 1, 2003, for assignment of an

administrative law judge to conduct the final hearing.

The final hearing was he ld on July 25, 2003. Petitioner

called Thomas E. French, Dr. Kashlak, and D.B. as witnesses.

Petitioner's Exhibits 1, 2, 3, 5, and 6 were admitted in

evidence. Dr. Kashlak testified in her own behalf and called

Anthony Oswick, D.D.S., as her witness. R espondent's Exhibit 1

was admitted in evidence.

Official recognition was taken of Subsections 456.057(4)

and 466.028(1)(n), Florida Statutes, and Rule 64B5 - 17.009(3),

Florida Administrative Code.

The parties stipulated to the facts contained in paragraphs

one through six in section E of Respondent's pre - hearing

statement. To the extent relevant, those facts have been

incorporated in this Recommended Order.

At the final hearing the parties agreed to file their

proposed recommended orders within ten days of the filing of the

transcript. The two - volume Transcript was filed on August 12,

2003. On August 22, 2003, Respondent filed a motion requesting

additional time to file her proposed recommended order. The

motion was granted, and the time for filing propos ed recommended

orders was extended to August 25, 2003.

Unless otherwise indicated, all citations are to Florida

Statutes (2001).

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating the practice of Dentistry pursuant to Chapte rs 456

and 466 and Section 20.43.

2. Dr. Kashlak is and has been at all material times

hereto a licensed dentist in the State of Florida, having been

issued license number DN 0011469. Dr. Kashlak has been

practicing dentistry since 1985. She and her hus band,

Dr. Anthony Oswick, have had a small general dentistry practice

in Orlando since at least 1990.

3. On August 8, 2001, Dr. Kashlak first saw patient D.B.

X - rays were taken on that date, and D.B.'s teeth were cleaned.

D.B. next presented on Augu st 21, 2001, at which time the

cleaning of her teeth was completed.

4. D.B. was scheduled for a one - hour appointment at 1 p.m.

on September 19, 2001. D.B. called Dr. Kashlak's office at

10 a.m. on the morning of her appointment and advised that she

had a conflict with her 1 p.m. appointment. She was advised

that she would be charged a $50 cancellation fee if she did not

make her appointment. D.B. advised that she would be coming,

but that she would be late.

5. D.B. arrived at 1:25 p.m. for her appoin tment. She was

advised by the receptionist that she was too late for her

appointment and that she would be charged the $50 cancellation

fee. D.B. was unhappy with the situation. The receptionist

told D.B. that she would have the dentist call her.

6. It is the policy of Dr. Kashlak's office that she will

deal with Dr. Oswick's patients on fee matters and that he will

deal with her patients on fee matters. On the evening of

September 19, 2001, Dr. Oswick called D.B. to discuss her

concerns about the canc ellation fee. D.B. and Dr. Oswick argued

about the cancellation fee. D.B. advised him that she was not

happy with the way that she had been treated and that she would

be going to another dentist. D.B. told Dr. Oswick that she

wanted her dental records, and he advised her to put her request

in writing and send a check for $35 to cover the costs of

copying the records.

7. In a letter dated September 25, 2001, D.B. sent a

letter to Dr. Kashlak stating the following:

As per your instructions, I have enclose d a

check for $35 to cover the cost of

duplicating my dental records -- x - rays,

treatment plan, and notes. Please call me

at the number noted below as soon as they

are available and I will come by to pick

them up.

8. On October 8, 2001, D.B. received a co py of her dental

x - rays and a letter enclosing a check for $99, which represented

a refund of an insurance claim payment for D.B. No mention was

made in the letter why all D.B.'s dental records had not been

sent, and no mention was made that Dr. Kashlak o r Dr. Oswick

would contact D.B. concerning the remaining dental records.

9. D.B. called Dr. Kashlak's office on October 8, 2001,

and spoke to Dr. Oswick. Dr. Kashlak was with Dr. Oswick during

the telephone conversation with D.B. D.B. asked why she had not

received all of her dental records. He told her that the

diagrams of her teeth would not copy well and that there was

nothing else that she needed in her records. D.B. did not

indicate to Dr. Oswick that she was withdrawing her request for

the record s.

10. D.B. went to another dentist on October 17, 2001. She

gave the x - rays to the dentist and told the dentist that she was

unable to get the remaining records from Dr. Kashlak. Upon

being advised by the new dentist that Dr. Kashlak was required

to pr ovide her with a copy of the records, D.B. went by Dr.

Kashlak's office after her dental appointment in an attempt to

get her dental records. The receptionist at Dr. Kashlak's

office would not give D.B. her records. After her October 17

visit to Dr. Kash lak's office, D.B. never attempted to contact

Dr. Kashlak again concerning her dental records.

11. On October 17, 2001, Dr. Kashlak and Dr. Oswick were

on vacation and were not in the office. They were not advised

that D.B. had stopped by the office requ esting her records.

12. In April 2002, D.B. filed a complaint with the

Department concerning Dr. Kashlak's treatment and the failure to

provide the requested dental records. The Department

investigated the complaint and contacted Dr. Kashlak by letter

da ted June 24, 2002, advising her of the complaint. By a

Verification of Completeness of Records form dated July 15,

2002, Dr. Kashlak sent D.B.'s records, consisting of 14 pages,

to the Department.

13. One page of D.B.'s dental records, which the

Departme nt received, contained the following in the upper right -

hand corner:

Personal Notes :

9 - 19 - 01 Pt. showed up @ 125 pm -- caused

disruptive scene in reception

area/slanderous stmts. demanding refund. mk

9 - 19 - 01 called pt per request, became

argumentative R e: broken appt. fee !!

Also requested copy of x - rays afo

10 - 8 - 01 spoke to pt Re. Tx notes

argumentative Re: BA Fee of $50

Pt's next dentist to contact us mk

14. After receiving notice from the Department of D.B.'s

complaint, Dr. Kashlak also sent D .B. a copy of D.B.'s dental

records, which D.B. received on July 20, 2002. D.B.'s copy did

not contain the personal notes set forth above.

15. Dr. Kashlak has never had her license to practice

dentistry disciplined.

CONCLUSIONS OF LAW

16. The Division o f Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57.

17. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

18. The Department has alleged that Dr. Kashlak has

violated Subsections 456.057(4) and 466.028(1)(n), and Rule

64B5 - 17.009(3), Florida Administrative Code. Subsection

456.057(4) provides:

Any health care practitioner licensed by

the department or a board within the

department who makes a physical or mental

examination of, or administers treatment or

dispenses legend drugs to any person shall,

upon reques t of such person or person's

legal representative, furnish, in a timely

manner, without delays for legal review,

copies of all reports and records relating

to such examination or treatment, including

X rays and insurance information.

19. Subsection 466.0 28(1)(n) provides that a dentist may

be disciplined for the following:

Failing to make available to a patient or

client, or to her or his legal

representative or to the department if

authorized in writing by the patient, copies

of documents in the posse ssion or under the

control of the licensee which relate to the

patient or client.

20. Rule 64B5 - 17.009(3), Florida Administrative Code,

provides:

A dentist shall comply with a patient's

written request for copies of records and

reports in a timely man ner, with due regard

for the patient's health needs. In the

absence of circumstances beyond the control

of the licensee, timely shall mean less than

30 days.

21. Dr. Kashlak violated Subsections 456.057(4) and

466.028(1)(n), by failing to provide D.B.'s dental records to

D.B. as required by those statutes.

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

provides a range of penalties for violations of Chapter 466 and

sets forth factors which may be considered in mitigation of the

penalty. Such mitiga ting factors include danger to the public,

previous disciplinary actions, length of time licensee has

practiced, and the actual damage caused by the violation.

Dr. Kashlak has been in practice since 1985 without any

disciplinary action being taken against her license, she does

not pose a danger to the public, and there was no actual damage

to D.B.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Dr. Kashlak violate d Subsections 456.057(4) and 466.028(1)(n),

imposing an administrative fine of $750, issuing a reprimand,

and requiring Dr. Kashlak to complete 30 hours of continuing

dental education in record keeping or risk management.

DONE AND ENTERED this 11th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

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 11th day of September, 2003.

COPIES FURNISHED :

Wayne Mitchell, Esquire

Ephraim D. Livingston, Esquire

Departmen t of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Brian D. Stokes, Esquire

Unger, Acree, Weinstein, Marcus,

Merrill, Kast & Metz, P.L.

701 Peachtree Road

Orlando, Florida 32804

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin 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

R. S. Power, Agency Clerk

Department o f Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recomme nded Order should be filed with the agency that

will issue the Final Order in this case.