04-000079PL Department Of Health, Board Of Denistry vs. James Michael D`amico, D.D.S. Status: Closed Recommended Order on Friday, July 23, 2004.

Summary: Respondent was not accessible to patients after treatment, failed to maintain adequate patient records, left a suture needle in patient`s gum and misrepresented the removal of the needle to patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0079PL

)

JAMES MICHAEL D'AMICO, D.D.S., )

)

Respondent. )

)

RECO MMENDED ORDER

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

on March 30, 2004, in Orlando, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Ephrai m D. Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Joseph Harrison, Esquire

Joseph Harrison, P.A.

2500 North Military Trail, Suite 490

Boca Raton, Florida 33431

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 466.028(1)(m) and

466.028(1)(x), Florida Statutes (1998); Subsection s

466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and

Subsections 456.072(1)(bb), 466.028(1)(i), 466.028(1)(l),

466.028(1)(m), 466.028(1)(t), and 466.028(1)(x), Florida

Statutes (2001), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On July 22, 2003, Petitioner, Department of Health, Board

of Dentistry (Department), filed a 13 - count Administrative

Complaint against Respondent, James Michael D'Amico, D.D.S.

(Dr. D'Amico), alleging that he violated Subsections

466.028(1)(m) a nd 466.028(1)(x), Florida Statutes (1998);

Subsections 466.028(1)(i) and 466.028(1)(x), Florida Statutes

(2000); and Subsections 456.072(1)(bb), 466.028(1)(i),

466.028(1)(l), 466.028(1)(m), 466.028(1)(t), and 466.028(1)(x),

Florida Statutes (2001). Dr. D' Amico requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings for assignment to an

administrative law judge.

At the final hearing, the Department called the following

witnesses: J.H., C.O., and Dr. Edward Allen Rumberger.

Petitioner's Exhibits 1 through 12 were admitted in evidence.

Petitioner's Exhibit 13 was a late - filed exhibit which is

admitted in evidence. The Department presented the testimony of

the following witnesses by deposition: A.P., S.P., M.F.,

Dr. Charles McNamara, Dr. Andre Buchs, Dr. John M. Altomare,

Tiffany Callicott, Vickie Bruno, and Lija Scherer.

At the final hearing, Dr. D'Amico testified in his own

behalf and presented no exhibits. Dr. D'Amico submitted the

late - filed deposition testimony of Dr. Leonard L. Weldon and

Dr. Robert E. Marx.

The two - volume Transcript was filed on April 12, 2004. The

last late - filed deposition was filed on May 6, 2004. The

parties timely submitted proposed recommended orders, which have

been consider ed in rendering this Recommended Order.

FINDINGS OF FACT

1. At all material times to this proceeding, Dr. D'Amico

was a licensed dentist within the State of Florida, having been

issued license number DN 7121.

2. From 1999 to 2000, Dr. D'Amico was practic ing dentistry

at Florida Dental, located at 1535 Prosperity Farms Road, Lake

Park, Florida. Florida Dental was a clinical - type practice,

with several general dentists and Dr. D'Amico, who was the oral

surgeon.

3. In January 2001, Dr. D'Amico and Dr. Char les McNamara

entered into an agreement by which Dr. D'Amico agreed to

purchase Dr. McNamara's office equipment and supplies and to

sublet Dr. McNamara's office space located on Lakemont Avenue in

Winter Park, Florida. Because of an extended illness,

Dr. M cNamara was no longer going to practice at the Lakemont

Avenue office, but was going to work for another dentist. When

Dr. McNamara vacated his office space, he took his patient

records with him.

4. Dr. D'Amico was not an independent contractor of

Dr. Mc Namara's, and they did not share a practice. Dr. D'Amico

did not leave any of his patients' records with Dr. McNamara.

There was not an agreement between Dr. D'Amico and Dr. McNamara

that Dr. McNamara would cover for any of Dr. D'Amico's patients.

5. Dr . McNamara had difficulty with Dr. D'Amico paying the

rent for the office space and with payments received by

Dr. D'Amico from patients of Dr. McNamara. By September 2001,

Dr. McNamara was ready to evict Dr. D'Amico from the premises.

Dr. McNamara went t o the Lakemont Avenue office to give

Dr. D'Amico eviction papers, and Dr. D'Amico was not there.

A woman was sitting at the reception desk, and it appeared that

the practice was being moved. Dr. McNamara later returned to

the office, and it was obvious that Dr. D'Amico was no longer

practicing at the Lakemont Avenue address.

6. In the fall of 2001, Dr. John M. Altomare was in the

process of leaving his office located at 7145 East Colonial

Drive, Orlando, Florida, and moving into a new office which was

u nder construction. During the days and hours that Dr. Altomare

was not in his East Colonial Drive office, he agreed to let

Dr. D'Amico use the office space.

7. Dr. D'Amico had a separate telephone line at the East

Colonial Drive office. Dr. D'Amico did not see any of

Dr. Altomare's patients at the East Colonial Drive office.

Dr. Altomare did not agree to cover for Dr. D'Amico. The

relationship between Dr. D'Amico and Dr. Altomare lasted

approximately two to three months during the fall of 2001.

8. In the early part of 2002, Dr. D'Amico associated

himself with a dental group in Tampa, Florida.

9. Dr. D'Amico failed to publish a notice in the newspaper

of greatest circulation in the county where he practiced,

advising his patients of the relocation of h is practice, when he

left Florida Dental and the East Colonial Drive office. The

evidence did not establish that the East Colonial Drive office

was outside the local telephone directory service of the

Lakemont Avenue office.

10. Vicki Bruno was Dr. D'Ami co's office manager beginning

on August 1, 2001. She filed the patient records and other

information in the patients' files. The files were kept in a

filing cabinet at the Lakemont Avenue office. When Dr. D'Amico

left the Lakemont Avenue office, the fil es were removed from the

office. When Dr. D'Amico starting working out of Dr. Altomare's

office, Ms. Bruno was assigned a closet in which to store the

files. The closet space was not adequate to store the files,

and, at one time, Ms. Bruno placed the pat ient files in the

trunk of her car.

11. Dr. Edward Allen Rumberger testified as an expert

witness for the Department. Dr. Rumberger has been licensed to

practice dentistry in Florida since 1975 and is board - certified

in oral surgery. He reviewed mater ials related to the four

cases at issue, consisting of patient statements, interviews

with other individuals, including a former employee, some of the

medical records of the patients, and some of the x - rays related

to the cases.

Patient C.O.

12. On June 2 0, 1999, C.O. needed to have some repair work

done on his Hader bar and went to Florida Dental, where he had

been treated in the past. C.O. normally dealt with another

dentist, but on this particular visit, he was seen by

Dr. D'Amico.

13. C.O. had four i mplants in his upper mouth.

Dr. D'Amico advised C.O. that he did not have enough support

for the implants and that he needed to have two pins inserted,

at a cost of $1,000 per pin. As Dr. D'Amico began working on

C.O., he advised C.O. that the other imp lants were infected.

14. C.O. was the last patient to leave Florida Dental on

June 20, 1999. After Dr. D'Amico finished his work on C.O., he

asked C.O. for a check for $5,300 for the work he had done.

C.O., groggy from the anesthesia, wrote a check to F lorida

Dental and gave it to Dr. D'Amico.

15. C.O. returned to Florida Dental for several more

visits after his initial treatment by Dr. D'Amico. Dr. D'Amico

removed all of C.O.'s original implants and put in new implants.

The new implants became inf ected and had to be removed. The

site of the implants had to be d é brided. Several weeks after

the d é bridment procedure, Dr. D'Amico did a tibial harvest and

grafting to the maxilla in an attempt to provide bone which

would support an implant.

16. Afte r C.O.'s last visit with Dr. D'Amico, C.O.

experienced pain, infection, and swelling. Dr. D'Amico had

given C.O. several telephone numbers at which C.O. could reach

him. C.O. called the telephone numbers that Dr. D'Amico had

given him, but he could not r each Dr. D'Amico at any of the

numbers called. Dr. D'Amico did not give C.O. the name of

another dentist to call in case of an emergency.

17. C.O. returned to Florida Dental and advised the person

in charge that he needed to have something done for him.

Another dentist, Dr. Castillo, was called in to attend C.O.

C.O. continued to see Dr. Castillo, who was eventually able to

insert three implants in C.O.'s mouth.

18. After C.O. began treatment with Dr. Castillo,

Dr. D'Amico contacted C.O. in an attempt to get C.O. to return

to him for treatment. C.O. declined further treatment by

Dr. D'Amico.

19. Dr. Rumberger reviewed the medical records relating to

C.O.'s treatment by Dr. D'Amico. The medical notes consisted of

a brief note that five implants were p laced and another note

stating "Left Tibial Harvest Global Maxillary Cellular Graft."

There was no mention of the type of anesthesia that was used.

The records did not contain a treatment plan, which should have

been done for both the implants and the tib ial harvest. There

is no documentation that the procedures were thoroughly

discussed with C.O. or that C.O. gave informed consent for the

procedures. The records do not contain a diagnosis. The x - rays

in C.O.'s file were of poor quality and were unsuita ble for use

in forming an opinion. The records do not justify the course of

treatment used by Dr. D'Amico based on the clinical examinations

and x - rays of C.O.

Patient J.H.

20. On June 12, 2001, J.H. visited Dr. D'Amico at the

Winter Park office, to have four lower teeth extracted. Some of

the four teeth were broken and infected, causing J.H. pain.

J.H. wanted to be fitted with a partial denture after the lower

teeth were extracted.

21. Dr. D'Amico extracted the four teeth on June 12, 2001,

while J.H. was under sedation. An assistant was present during

at least part of the procedure.

22. On July 11, 2001, J.H. returned to see Dr. D'Amico for

examination of the extraction sites and to have an impression

made for a partial denture. Dr. D'Amico asked J. H. to remove

his upper denture plate. Upon examination, Dr. D'Amico found

some redundant soft tissue in the posterior of J.H.'s mouth.

Dr. D'Amico told J.H. that the lesions may be precancerous.

Dr. D'Amico excised some tissue from both sides of D.H.'s mouth.

One sample was sent to a laboratory for testing, and the

laboratory results indicated that the lesion was benign.

Although Ms. Bruno testified that laboratory work was not being

done because Dr. D'Amico was delinquent in paying for laboratory

work , the tissue sample that was sent to the laboratory in July

was prior to Ms. Bruno's employment with Dr. D'Amico.

23. On July 31, 2001, J.H. returned to Dr. D'Amico's

office, where Dr. D'Amico removed tissue from the anterior

maxillar vestibule. The lesi on in the upper area was probably

an epulis fissura , which would not require a biopsy, but would

require justification for removal. The tissue was removed to

make the area more structurally amenable to wearing a new

denture. A sample was not sent to a la boratory for testing.

24. Ten days later, J.H. returned for a post - operative

visit, complaining of pain in an area where Dr. D'Amico had

excised tissue. J.H. was placed under sedation, and Dr. D'Amico

reopened the incision. Dr. D'Amico removed a sutur e needle from

the site. Tiffany Callicott, who was Dr. D'Amico's assistant,

was present during the procedure and witnessed the removal of

the suture needle. Dr. D'Amico did not tell J.H. that a suture

needle had been left in his gum. When J.H. awoke fro m the

anesthesia, Dr. D'Amico told J.H. that he had removed a stone.

Later Ms. Callicott told J.H. that Dr. D'Amico had removed a

suture needle and not a stone.

25. J.H. had difficulty in getting Dr. D'Amico to fill out

and submit insurance claims for J. H.'s dental work. He went to

Dr. D'Amico's office to see about the insurance. One of

Dr. D'Amico's staff gave J.H. three vials containing tissue

samples which Dr. D'Amico had removed from J.H.'s mouth. J.H.

took the vials to his family physician so that the samples could

be sent to a laboratory.

26. J.H. was billed for laboratory analyses for the two

tissue samples that Dr. D'Amico did not send to the laboratory.

He was also billed for the work that Dr. D'Amico did in removing

the suture needle.

27. L ija Scherer is a medical malpractice investigator

with the Department. Part of her responsibilities, include

obtaining medical records for cases which are being

investigated. Ms. Scherer obtained an authorization for release

of patient information from J .H. and served Dr. D'Amico with a

subpoena to produce the medical records for J.H. Dr. D'Amico

failed to produce the medical records.

28. The evidence is not clear how the Department obtained

the dental records for J.H., but some records were furnished b y

the Department to Dr. Rumberger. The medical records furnished

to Dr. Rumberger consisted of two anesthesia records and a few

progress notes, which were in different handwritings and were

not signed or identified.

Patient A.P.

29. Dr. D'Amico provide d dental treatment to A.P. in

September 2001. A.P. had been advised by his regular dentist

that his wisdom teeth were impacted and needed to be removed.

A.P. went to the office of Dr. McNamara in Winter Park, Florida,

to arrange to have the teeth extract ed. When A.P. arrived at

the office, he was met by Dr. D'Amico, who advised A.P. that

Dr. McNamara had retired and that he was taking over the

practice.

30. A.P. agreed to allow Dr. D'Amico to treat him. On the

first visit, A.P. brought a panoramic x - ray which had been taken

by his general dentist. Dr. D'Amico went over the x - ray with

A.P., told A.P. the procedure that he would use to extract the

teeth, advised A.P. that he would have anesthesia for the

procedure, and advised A.P. of the number of day s needed for

recovery.

31. A.P. made an appointment with Dr. D'Amico to have his

wisdom teeth removed on the Friday of the following week,

September 13, 1991. S.P., A.P.'s mother, accompanied A.P. to

Dr. D'Amico's office for the surgical procedure. A.P. filled

out a medical history form and indicated that he was allergic to

codeine.

32. A.P. was taken to a room, which contained only a chair

in which A.P. sat, a stool on which Dr. D'Amico sat, and a

device by which the anesthesia was to be administered.

Dr. D'Amico was accompanied by an assistant. A.P. was given

anesthesia through an I.V. and went completely to sleep.

Dr. D'Amico extracted the four wisdom teeth.

33. After the surgical procedure, Dr. D'Amico's assistant

gave S.P. three prescriptions fo r A.P. and no oral post -

operative instructions. 1 One of the prescriptions was a pain

reliever, one was an antibiotic, and one was for inflammation.

Neither A.P. nor his mother was advised that the

anti - inflammation medication should be started immediate ly

following surgery. A.P. did not have the prescriptions filled

until the day after the surgery. A.P. felt that one of the

medications contained codeine, and he did not take that

medication. The evidence does not establish that codeine or a

medication containing codeine was actually prescribed.

34. After the surgery, A.P. experienced discoloration on

the arm in which the I.V. had been given. The arm turned a dark

purple from his elbow to his wrist. A.P. was also experiencing

pain in his jaw.

35. On the Monday following the procedure, A.P. attempted

to contact Dr. D'Amico by telephone. A.P.'s telephone calls

were put through to an answering service. A.P. received no

answer from Dr. D'Amico on Monday. The next day A.P. again

called Dr. D'Amico and s poke with a woman with the answering

service. He told the lady that it was an emergency and that he

needed to speak to Dr. D'Amico. About ten minutes later,

Dr. D'Amico returned A.P.'s telephone call. Dr. D'Amico advised

A.P. to apply warm compresses to his arm and that it was normal

to have pain after impacted wisdom teeth were removed. A.P. was

told to call Dr. D'Amico's office and set up an appointment to

see Dr. D'Amico in a week.

36. A.P. was still in a lot of pain and tried to telephone

Dr. D'Ami co again on Wednesday and Thursday. He was

unsuccessful in reaching the doctor. A.P. left messages with

the answering service, but Dr. D'Amico did not respond. On

Friday, September 20, 2001, A.P. again tried to telephone

Dr. D'Amico. This time he was u nable to reach either

Dr. D'Amico or the answering service.

37. By September 20, 2001, S.P. became frustrated with the

lack of response from Dr. D'Amico to A.P.'s attempts to contact

him. S.P. went back to the office where the surgery had been

performed, and the office was closed. Dr. D'Amico had advised

her that he would be moving his office, so she also went to the

location where the office was to be moved, but that office was

also closed. She left a letter marked "urgent" at both offices.

The letter stated that she and her son had been unable to

contact Dr. D'Amico and that her son needed to be checked

because he was still in pain and his arm was swollen at the site

of the I.V. injection. In the letter, S.P. listed four

telephone numbers by which ei ther she or her son could be

reached. Neither A.P. nor S.P. received any response from

Dr. D'Amico.

38. S.P. called another dentist, Dr. Andre Buchs, and

requested that he see A.P. Dr. Buchs, who is board - certified in

oral and maxillofacial surgery, saw A.P. on September 21, 2001.

Dr. Buchs diagnosed possible phlebitis of the right arm

secondary to the intravenous sedation that A.P. had been given

by Dr. D'Amico. Phlebitis is an inflammation of the inside of

the vein.

39. Dr. Buchs also examined A.P. for the severe pain that

A.P. was having in his upper right jaw. He found that there was

a hole or perforation in the sinus membrane so that there was a

communication between the mouth and the maxillary sinus. About

85 percent of such openings will spont aneously close over a

period of time. The treatment was to prevent the area from

getting infected with antibiotic therapy and to observe the

opening for two to three months. Dr. Buchs prescribed

amoxicillin and told A.P. to apply warm compresses to his a rm

and to avoid anything that would aggravate the perforation. He

also advised A.P. that if he was unsuccessful in locating

Dr. D'Amico to come by for a follow - up visit. Dr. Buchs saw

A.P. again on September 26, 2001. A.P. was doing better by the

time o f the follow - up visit.

40. On October 17, 2001, A.P. again saw Dr. Buchs. At

this time, the opening in the sinus cavity appeared to be

closing. Dr. Buchs did see a raised firm lump on A.P.'s inner

right arm, which meant that A.P. had a true phlebitis.

4 1. Ms. Scherer obtained an authorization for release of

patient information from A.P. and served Dr. D'Amico with a

subpoena for the medical records of A.P. Dr. D'Amico failed to

produce the medical records. Thus, there are no medical records

available to document the course of treatment for A.P.

Patient M.F.

42. M.F. saw an advertisement in her local newspaper that

Dr. D'Amico, a maxillofacial surgeon, was associated with

Florida Dental. M.F. had been experiencing discomfort with her

set of dentures that was not functioning properly. She felt

that implants might be a better solution to her problems and

that a maxillofacial surgeon could perform the procedure.

43. In October 1999, she went to see Dr. D'Amico for a

consultation. Dr. D'Amico explained that he would place six

implants into her upper gum ridge and that it would take

approximately four months to complete the process. Dr. D'Amico

described the steps in the procedure.

44. A week later M.F. returned to Dr. D'Amico to begin the

procedure. After the implants were inserted, M.F. began a

waiting period to see if the implants would be rejected. She

did have pain with two of the implants, and Dr. D'Amico did

further work on those implants, which resolved the pain.

45. During the implant proces s, M.F. would wait until

Dr. D'Amico called her to come in for further work. Frequently

he would make an appointment with M.F. and not appear for the

appointment. M.F. would go to different locations for her

appointments with Dr. D'Amico. Some of the lo cations appeared

to her to be dental offices and some did not.

46. During the healing process, Dr. D'Amico placed healing

columns in the implants. Impressions were made for temporary

teeth. M.F. wore the temporary teeth until permanent teeth

could be ma de. During one session in which Dr. D'Amico was

making an impression for her permanent teeth, he broke one of

the front teeth on the temporary set. Dr. D'Amico told M.F.

that she could get some Crazy Glue and repair the tooth. M.F.

tried to repair the t ooth with Crazy Glue, but it would not

hold. Thus, M.F. had a missing front tooth for three or four

months.

47. After Dr. D'Amico had fitted M.F. with temporary

teeth, he told her that he was going to move his dental practice

to Boynton Beach. She did n ot hear from Dr. D'Amico for

approximately three or four months. M.F. went to Boynton Beach

to look for him, but was unsuccessful in locating him.

48. Dr. D'Amico finally called M.F. and set up an

appointment in Winter Park to finish placing the permanen t

teeth. She went to the appointment. According to M.F., when

Dr. D'Amico placed the permanent teeth in her mouth, the teeth

did not fit. There was one central incisor in front, and the

second incisor was placed to the side. M.F. complained that the

up per and lower teeth on both sides did not touch, resulting in

difficulty in chewing. The permanent teeth were a different

color from her natural lower teeth. Dr. Rumberger opined that

the provision of permanent teeth was beyond Dr. D'Amico's

expertise an d that Dr. D'Amico should have referred M.F. to

another dentist for that procedure.

49. In an attempt to get better articulation between the

upper and lower teeth, Dr. D'Amico filed a cap on her lower

teeth. The cap had been placed by another dentist. I n filing

the cap, Dr. D'Amico exposed the metal. He did not offer to

repair the cap. Dr. Rumberger did not give an opinion on

whether the filing of the cap was below the standard of care.

His comment was, "That can happen."

50. Dr. D'Amico told M.F. to try wearing the permanent

teeth for two weeks. After the two weeks had passed, M.F.

called Dr. D'Amico's office. She was told by the person

answering the telephone that Dr. D'Amico would return her call,

but he did not. Several months passed before Dr. D'Amico

contacted M.F. to come in so that the permanent teeth could be

cemented in place. At this time, five of the implants had

permanent abutments, but one implant still had a temporary

abutment. Dr. D'Amico was going to cement the teeth without

repla cing the temporary abutment with a permanent abutment.

M.F. would not allow him to cement the teeth in place without

all the permanent abutments inserted.

51. Dr. D'Amico moved his practice again. M.F. could not

locate him and wanted to have the work fi nished. M.F. had paid

Dr. D'Amico in full, approximately $20,000, for the work prior

to the work being finished. She had the implant work finished

by another dentist at a cost of $9,000. M.F. brought a legal

action against Dr. D'Amico to recover her mon ey.

52. The medical records of M.F., which were provided to

Dr. Rumberger for his review, were minimal and illegible. There

was no mention of a study model being used or that there was a

pre - op consultation with a dentist who would construct the

permanen t teeth. The medical records for M.F. were inadequate.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2000).

54. The Depa rtment 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).

55. The Department alleged that Dr. D'Amico viola ted

Subsection 466.028(1)(i), Florida Statutes (2000) and (2001),

which provides that "[f]ailing to perform any statutory or legal

obligation placed upon a licensee" shall be a ground for

disciplinary action. The Department alleged that Dr. D'Amico

violat ed this statutory provision by violating Florida

Administrative Code Rules 64B5 - 17.004, 64B5 - 17.001(4), and

64B5 - 17.011.

56. Florida Administrative Code Rule 64B5 - 17.001(4),

provides:

(4) Within one month of a dentist's

termination of practice or rel ocation of

practice outside the local telephone

directory service area of his or her current

practice, a notice shall be published in the

newspaper of greatest circulation in the

county where the dentist practiced which

advises patients of the dentist's

te rmination or relocation. The notice shall

advise patients that they may obtain copies

of their dental records and specify the

name, address, and telephone number of the

person from whom copies of records may be

obtained. The notice shall appear at least

once a week for 4 consecutive weeks.

57. The Department has established by clear and convincing

evidence that Dr. D'Amico violated Florida Administrative Code

Rule 64B5 - 17.001(4) by failing to place a notice in the

newspaper advising his patients that he had relocated his

practice after he left Florida Dental and the East Colonial

Drive office. Thus, the Department has established that

Dr. D'Amico violated Subsection 466.028(1)(i), Florida Statutes

(2000) and (2001).

58. Florida Administrative Code Rule 64B5 - 17.004 provides

that "[i]t is the responsibility of every dentist practicing in

this State to provide, either personally, through another

licensed dentist, or through a reciprocal agreement with another

agency, reasonable twenty - four (24) hour emerge ncy services for

all patients under his continuing care."

59. The Department has established by clear and convincing

evidence that Dr. D'Amico violated Florida Administrative Code

Rule 64B5 - 17.004, by failing to provide reasonable 24 - hour

emergency servic es for the patients under his continuing care.

He failed to provide such services for C.O., A.P., and M.F.

Thus, the Department established that Dr. D'Amico violated

Subsection 466.028(1)(i), Florida Statutes (2000) and (2001).

60. Florida Administrativ e Code Rule 64B5 - 17.011 provides

that every dentist, unless exempted pursuant to Florida

Administrative Code Rule 64B5 - 17.011(3), shall obtain and

maintain medical malpractice insurance or provide proof of

financial responsibility as set forth in the rule.

61. The Department presented no evidence concerning

Dr. D'Amico's medical malpractice insurance, or lack thereof,

or of any failure of Dr. D'Amico to provide proof of financial

responsibility. The Department has failed to establish

that Dr. D'Amico vi olated Florida Administrative Code

Rule 64B5 - 17.011.

62. The Department alleged that Dr. D'Amico violated

Subsection 466.028(1)(l), Florida Statutes (2001), which

provides that "[m]aking deceptive, untrue, or fraudulent

representations in or related to t he practice of dentistry" is a

ground for disciplinary action. The Department established by

clear and convincing evidence that Dr. D'Amico violated

Subsection 466.028(1)(l), Florida Statutes (2001), by telling

J.H. that he had removed a stone from J.H.'s gum, when, in fact,

he had removed a suture needle. The evidence established that

Dr. D'Amico charged J.H. for laboratory work which was not

performed for two tissue samples.

63. The Department alleged that Dr. D'Amico violated

Subsection 466.028(1)(m), Florida Statutes (1998) and (2001),

which provides that a ground for disciplinary action is

"[f]ailing to keep written dental records and medical history

records, justifying the course of treatment of the patient

including, but not limited to, patient his tories, examination

results, test results, and X rays, if taken."

64. In Count II of the Administrative Complaint, the

Department alleged that Dr. D'Amico violated Subsection

466.028(1)(m), Florida Statutes (1998), regarding C.O.'s dental

records by faili ng to document the following:

(a) Adequate diagnostic x - rays;

(b) His diagnosis of the patient;

(c) A proposed treatment plan;

(d) That he informed the patient as to

the number of implants to be placed;

(e) A course of treatment that wa s

supported by the patient's clinical and

radiographic findings;

(f) The results of any clinical

examinations or tests rendered to Patient

C.O.; and/or

(g) That he informed Patient C.O. of the

risks and complications associated with

dental implant surgery to ensure that he

obtained the patient's informed consent for

implant surgery.

65. The Department has established by clear and convincing

evidence that Dr. D'Amico violated Subsection 466.028(1)(m),

Florida Statutes (1998), by failing to document a treatment plan

for C.O.; by failing to include adequate diagnostic x - rays, such

as panoramic radiographs; by failing to document that he advised

C.O. of the risks of the procedure and obtained the informed

consent of C.O.; by failing to document the res ults of any

clinical examinations of C.O.; by failing to include a

diagnosis; and by failing to document a course of treatment that

was supported by C.O.'s clinical examination and x - rays.

66. In Count VII of the Administrative Complaint, the

Department alleged that Dr. D'Amico violated Subsection

466.028(1)(m), Florida Statutes (2001), regarding J.H.'s dental

records by the following acts:

(a) Failing to maintain adequate dental

records for J.H., which justified the course

of treatment in that J.H.'s x - rays and/or

dental records did not support Respondent's

course of treatment;

(b) Failing to document his reasons for

excising J.H.'s gum tissue on at least three

occasions without obtaining laboratory

analyses of the excised tissues;

(c) Failing to document that a curved

suturing needle was retained in J.H.'s gums;

and

(d) Failing to document that he informed

J.H. that a sharp, curved suturing needle

was retained in his gums and was the source

of J.H.'s continuous pain.

67. The Department h as established by clear and convincing

evidence that Dr. D'Amico violated Subsection 466.028(1)(m),

Florida Statutes (2001), by failing to document why J.H. needed

to have multiple excisions of tissue, failing to have adequate

records which justified his c ourse of treatment, failing to

document that a suture needle was left in J.H.'s gum, and

failing to document that he advised J.H. that a suture needle

had been left in his gum.

68. In Count X of the Administrative Complaint, the

Department alleged that Dr . D'Amico violated Subsection

466.028(1)(m), Florida Statutes (2000), regarding A.P.'s dental

records by the following:

(a) Failing to document his medical

reasons for not utilizing A.P.'s obvious and

distinctive veins for atraumatic phlebotomy

entry; and

(b) Failing to document his medical

reasons for prescribing Codeine - based

medications to A.P. despite being informed

of A.P.'s allergy to Codeine.

69. The Department has failed to establish by clear

and convincing evidence that Dr. D'Amico viola ted

Subsection 466.028(1)(m), Florida Statutes (2000), as it

relates to A.P.'s dental records on the grounds set forth in

the Administrative Complaint. The Department has failed to

establish that Dr. D'Amico did prescribe codeine - based

medications to A. P.; thus, the Department has failed to

establish that Dr. D'Amico failed to document his reason for

prescribing codeine for A.P. The Department failed to present

evidence that Dr. D'Amico was required to document the reasons

for failing to use certain vei ns for the intravenous site.

70. The Department alleged that Dr. D'Amico violated

Subsection 466.028(1)(t), Florida Statutes (2001), which

provides that "[f]raud, deceit, or misconduct in the practice of

dentistry or dental hygiene" is a ground for discip linary

action. The Department has established by clear and convincing

evidence that Dr. D'Amico did violate Subsection 466.028(1)(t),

Florida Statutes (2001), by charging J.H. for laboratory work

that was not done. The Department has failed to establish that

J.H. should not have been charged for the removal of the suture

needle.

71. The Department alleged that Dr. D'Amico violated

Subsection 466.028(1)(x), Florida Statutes (1998), (2000), and

(2001), which provides that a ground for disciplinary action i s

the following:

(x) Being guilty of incompetence or

negligence by failing to meet the minimum

standards of performance in diagnosis and

treatment when measured against generally

prevailing peer performance, including, but

not limited to, the undertaki ng of diagnosis

and treatment for which the dentist is not

qualified by training or experience or being

guilty of dental malpractice. For purposes

of this paragraph, it shall be legally

presumed that a dentist is not guilty of

incompetence or negligence b y declining to

treat an individual if, in the dentist's

professional judgment, the dentist or a

member of her or his clinical staff is not

qualified by training and experience, or the

dentist's treatment facility is not

clinically satisfactory or properly equipped

to treat the unique characteristics and

health status of the dental patient,

provided the dentist refers the patient to a

qualified dentist or facility for

appropriate treatment. . . .

72. In Count I of the Administrative Complaint, the

Departme nt alleged that Dr. D'Amico violated Subsection

466.028(1)(x), Florida Statutes (1998), by the following acts:

(a) Failing to use adequate x - rays to

diagnose Patient C.O.'s dental condition;

(b) Failing to inform Patient C.O. about

the risks and c omplications of dental

implant surgery;

(c) Failing to inform Patient C.O. about

the number of implants that would be needed

to complete treatment;

(d) Failing to implement the appropriate

measures to prevent infection after

performing dental impla nt surgery;

(e) Failing to appropriately treat the

infection that developed after dental

implant surgery;

(f) Failing to refer Patient C.O. to a

specialist for treatment for post - implant

surgery infection; and/or

(g) Being inaccessible to Patie nt C.O.

once the implants failed.

73. The Department did establish by clear and convincing

evidence that Dr. D'Amico did violate Subsection 466.028(1)(x),

Florida Statutes (1998), by failing to use adequate x - rays to

diagnose C.O.'s dental condition. Th e x - rays contained in

C.O.'s file were of poor quality and insufficient to use in

making a diagnosis. Dr. D'Amico also violated Subsection

466.028(1)(x), Florida Statutes (1998), by failing to inform

C.O. of the risks and complications involved in the pro cedures

performed, and by being inaccessible to C.O. after the last

surgical procedure. The Department did not establish by clear

and convincing evidence that Dr. D'Amico failed to inform C.O.

of the number of implants that would be needed to complete

tre atment, that he failed to implement appropriate measures to

prevent infection, that he failed to appropriately treat the

infection which occurred after surgery, or that he failed to

send C.O. to a specialist for treatment of a post - implant

surgery infectio n. Although Dr. D'Amico did not refer C.O. to

another dentist when he was not available, the evidence does not

establish that Dr. D'Amico should have referred C.O. to a

particular type of specialist for treatment.

74. In Count IV of the Administrative Co mplaint, the

Department alleged that Dr. D'Amico violated Subsection

466.028(1)(x), Florida Statutes (2001), by the following acts

regarding J.H.:

(a) Making negligent and wrongful

diagnoses, on at least three separate

occasions;

(b) Diagnosing Pat ient J.H. with oral

cancer without obtaining laboratory analyses

and/or pathology reports;

(c) Performing multiple unnecessary

surgeries on Patient J.H.;

(d) Leaving a suture needle in Patient

J.H.'s mouth after surgery;

(e) Failing to inform P atient J.H. that

he left a curved suturing needle in his

mouth; and/or

(f) Deceiving Patient J.H. by

incorrectly informing the patient that he

removed a stone from his gums, rather than a

suturing needle.

75. The Department did establish by clear and convincing

evidence that Dr. D'Amico violated Subsection 466.028(1)(x),

Florida Statutes (2001), by leaving the suture needle in J.H.'s

gum, failing to inform J.H. that he had left the suture needle,

and telling J.H. that he had removed a stone rather tha n a

suture needle. The Department failed to establish that

Dr. D'Amico made wrongful or negligent diagnoses on three

separate occasions, diagnosed J.H. with oral cancer, and

performed multiple unnecessary surgeries on J.H. The evidence

established that D r. D'Amico told J.H. that the lesions may be

precancerous, not that they were cancer. Dr. D'Amico adequately

explained why he excised tissue in the anterior portion of

J.H.'s mouth.

76. In Count VIII of the Administrative Complaint, the

Department alleg ed that Dr. D'Amico violated Subsection

466.028(1)(x), Florida Statutes (2001), by the following acts:

(a) Negligently perforating Patient

A.P.'s sinus cavity during extraction of his

impacted wisdom teeth;

(b) Negligently prescribing Patient A.P.

a codeine - based pain medication;

(c) Failing to use Patient A.P.'s

distinctive veins for atraumatic phlebotomy

entry at the time he injected Patient A.P.

for surgery;

(d) Failing to explain and/or instruct

Patient A.P. on the medications, he

prescr ibed;

(e) Failing to be accessible to Patient

A.P. for post - operative care; and/or

(f) Failing to arrange for emergency

services for Patient A.P.

77. The Department did establish by clear and convincing

evidence that Dr. D'Amico violated Subsecti on 466.028(1)(x),

Florida Statutes (2001), by failing to instruct A.P. on the

medications that he was prescribing, failing to be accessible to

A.P. after the extraction of the wisdom teeth, and failing to

arrange for emergency services for A.P. after the e xtractions

when Dr. D'Amico was not available to the patient. The

Department did not establish that the perforation of the sinus

cavity was below the standard of care, that the selection of the

intravenous site was below the standard of care, and that

Dr. D'Amico prescribed a codeine - based medication for A.P.

78. In Count XI of the Administrative Complaint, the

Department alleged that Dr. D'Amico violated Subsection

466.028(1)(x), Florida Statutes (2000), by the following acts:

(a) Failing to complete Patient M.F.'s

dental care and treatment;

(b) Failing to refer Patient M.F. to

another dentist for treatment;

(c) Providing Patient M.F. with a set of

permanent teeth that did not function

properly;

(d) Exposing the metal on one of Patient

M.F .'s teeth by filing the capped teeth down

too low; and/or

(e) Abandoning Patient M.F. without

completing her treatment and making

emergency services available to her.

79. The Department has established by clear and convincing

evidence that Dr. D'Amic o violated Subsection 466.028(1)(x),

Florida Statutes (2000), by failing to complete M.F.'s dental

care and treatment, by failing to refer her to another dentist

for treatment, and by failing to make emergency services

available to M.F. when he was not ava ilable. The Department

established that Dr. D'Amico fell below the standard of care in

providing M.F. with permanent teeth that did not function

appropriately because the provision of permanent teeth was

beyond Dr. D'Amico's expertise. The Department fai led to

establish by expert testimony that grinding down a cap until the

metal is exposed is below the standard of care.

80. The Department alleged that Dr. D'Amico violated

Subsection 456.072(1)(bb), Florida Statutes (2001), which

provides that the foll owing constitutes a ground for

disciplinary action:

(bb) Leaving a foreign body in a

patient, such as a sponge, clamp, forceps,

surgical needle, or other paraphernalia

commonly used in surgical, examination, or

other diagnostic procedures. For the

pur poses of this paragraph, it shall be

legally presumed that retention of a foreign

body is not in the best interest of a

patient and is not within the standard of

care of the professional, regardless of the

intention of the professional.

81. The Departmen t has established by clear and convincing

evidence that Dr. D'Amico violated Subsection 456.072(1)(bb),

Florida Statutes (2001), by leaving a suture needle in J.H.'s

gum.

82. Dr. D'Amico has been previously disciplined by the

Board of Dentistry. On April 10, 2001, a Final Order was

entered by the Board of Dentistry approving a settlement

agreement; reprimanding Dr. D'Amico; imposing an administrative

fine of $7,000; reimbursing the Board of Dentistry for the costs

of the case; requiring completion of cont inuing education

courses; and placing Dr. D'Amico on probation for five years,

while practicing under the indirect supervision of a monitor

approved by the Board of Dentistry. On October 11, 2001, an

Order of Emergency Suspension of License was issued aga inst

Dr. D'Amico for failure to adhere to the terms of his probation.

83. Florida Administrative Code Rule 64B5 - 13.005 sets

forth the disciplinary guidelines to be used by the Board of

Dentistry in imposing penalties. Aggravating factors to be

consider ed in imposing penalties, include prior discipline and

the actual damage caused by the dentist's actions. Considering

these factors, the appropriate penalty is revocation of

Dr. D'Amico's license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Dr. D'Amico violated Subsections 466.028(1)(m) and

466.028(1)(x), Florida Statutes (1998); Subsections

466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and

Subsecti ons 466.028(1)(i), 466.028(1)(l), 466.028(1)(m),

466.028(1)(t), 466.028(1)(x), and 456.072(1)(bb), Florida

Statutes (2001). It is further recommended that Dr. D'Amico's

license be revoked.

DONE AND ENTERED this 23rd day of July, 2004, 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 (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of July, 2004.

ENDNOTE

1/ A.P. testified that he was given an "after - care sheet" of

instructions, but the evidence is not clear whether he received

that from Dr. D'Amico's office or from the subsequent treating

dentist, Dr. Buchs.

COPIES FURNISHED :

Ephraim D. Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Joseph Harrison, Esquire

Joseph Harrison, P.A.

2500 North Military Trail, Suite 490

Boca Raton, Florida 33431

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Renee Alsobrook, Acting General Counsel

Department of He alth

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A ll parties have the right to submit 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.