04-001096PL Department Of Health, Board Of Denistry vs. Robert H. Barr, D.M.D. Status: Closed Recommended Order on Thursday, September 8, 2005.

Summary: Respondent violated the standard of care by failing to properly document his root canal treatment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1096PL

)

ROBERT H. BARR, D.M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing was conducted in this case

on June 10, 2005, and July 15, 2005, in Tallahassee, Florida,

before Suzanne F. Hood, Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petition er: Paula A. Willis, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Fred M. Johnson, Esquire

Steven E . Oole, Esquire

Fuller, Johnson & Farrell, P.A.

111 North Calhoun Street

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section

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

should be imposed.

PRELIMINARY STATEMENT

On January 8, 2004, Petitioner Department of Health, Board

of Dentistry (Petitioner) issued an Administrative Complaint

against Respondent Robert H. Barr, D.D.S. (Resp ondent). The

complaint alleged that Respondent had violated Section

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

minimum standards of performance in diagnosis and treatment,

when measured against generally prevailing peer performance, or

being guilty of dental malpractice in the care and treatment of

M.K's Tooth 15. On January 29, 2004, Respondent requested an

administrative hearing to contest the charge against him. On

March 29, 2004, Petitioner referred the case to the Division of

Adm inistrative Hearings.

On April 13, 2004, Administrative Law Judge Charles C.

Adams issued a Notice of Hearing, scheduling the hearing for

June 16, 2004. Later on April 13, 2004, the parties filed a

Joint Motion for Continuance of Hearing.

On April 14, 2004, Judge Adams issued an Order Granting

Continuance and Re - scheduling Hearing. The hearing was re -

scheduled for June 25, 2004.

On April 20, 2004, Respondent filed a Motion to Dismiss

Administrative Complaint. The motion alleged that Petitioner

viola ted the statutory deadlines imposed by Section 456.073,

Florida Statutes (2001), in a manner that impaired the

correctness or fairness of the proceeding. On May 10, 2004,

Petitioner filed a response in opposition to the motion. On

May 13, 2004, Petition er filed a reply to Petitioner's response.

Judge Adams denied the motion in an Order dated May 13, 2004.

On May 28, 2004, Respondent filed an unopposed Motion for

Second Continuance of Final Hearing. In an order dated June 1,

2004, Judge Adams granted t he motion and rescheduled the hearing

for August 27, 2004.

On August 10, 2004, the parties filed a Notice of Appellate

Proceeding and Request to Re - schedule Final Hearing. In an

order dated August 12, 2004, Judge Adams placed the case in

abeyance and req uired the parties to file a status report on or

before November 12, 2004.

On November 12, 2004, the parties filed a status report,

requesting that the case remain in abeyance pending final

determination of appellate proceedings. That same day, Judge

Adam s granted the request and required the parties to file a

status report on or before February 15, 2005.

On February 14, 2005, the parties filed a Status Report,

requesting that the case be rescheduled for hearing. On

February 22, 2004, Judge Adams issued a Notice of Hearing,

scheduling the hearing for June 10, 2005.

On February 23, 2005, Respondent filed a Second Motion for

Summary Dismissal. The motion renewed Respondent's argument

that Petitioner violated the statutory deadlines imposed by

Section 456. 073, Florida Statutes (2001), in a manner that

impaired the correctness or fairness of the proceeding.

Petitioner filed a response in opposition to the motion on

March 7, 2005. On March 9, 2005, Judge Adams denied the motion.

On March 17, 2005, Petitio ner filed a Motion to Take

Deposition of Non - party Witness for Use in Final Hearing. On

March 30, 2005, Judge Adams granted the motion. On April 25,

2005, Petitioner filed the deposition of Paul A. Russell,

D.D.S., in lieu of live testimony at hearing.

On April 28, 2005, Petitioner filed a Notice of Providing

Supplemental Discovery Response. Specifically, Petitioner

stated that it intended to call James Guttuso, D.D.S, as an

expert witness during the hearing. On May 12, 2005, Respondent

filed Objecti ons to Supplementary Discovery Response and Motion

for Protective Order to Prevent Testimony of James Guttuso,

D.D.S. Petitioner filed a response in opposition to the motion

on May 19, 2005. In an Order dated May 20, 2005, Judge Adams

ruled that Petition er could call Dr. Guttuso as a witness.

On May 20, 2005, Respondent filed a Motion to Resolve

Objections to the Deposition of Dr. Paul. On June 1, 2005,

Petitioner filed a response in opposition to the motion.

On May 24, 2005, Petitioner filed a Motio n to Take Official

Recognition.

On June 7, 2005, Respondent filed a Motion to Take Official

Recognition. That same day, the Division of Administrative

Hearings transferred the case to the undersigned.

On June 8, 2005, Petitioner filed a second Motion t o Take

Official Recognition and a Motion in Limine. The undersigned

ruled on all pending motions on the record during the hearing.

On June 9, 2005, the undersigned issued an Order Resolving

Objections to Deposition.

During the hearing, Petitioner pre sented the testimony of

its investigator, K.L. Redfearn, Patient M.K., and Richard J.

Chichetti, D.M.D. Petitioner also presented the expert

testimony of Victoria A. Bong - Krueger, D.D.S., and James

Guttuso, D.D.S. Petitioner offered 15 exhibits, which we re

admitted into evidence.

Respondent testified on his own behalf and presented the

deposition testimony of Russell A. Paul, D.D.S., in lieu of live

testimony. Respondent also presented the expert testimony of

Louis Beall, D.D.S. Respondent offered si x exhibits that were

accepted into the record as evidence.

During the hearing, Respondent proffered 26 exhibits in

order to create a record relative to his prior motions to

dismiss. Petitioner proffered two exhibits relative to those

motions. The unde rsigned has not made any findings of fact or

conclusions of law based on the tendered exhibits. The

proffered exhibits, which are located in the file of the instant

case, are not a part of the record here. 1

The court reporter filed a copy of the first tw o volumes of

transcript on June 23, 2005. The third volume of transcript was

filed on August 2, 2005. The parties filed their Proposed

Recommended Orders on August 12, 2005.

Pursuant to the agreement of the parties, the hearing

exhibits are hereby seale d and not available for public

inspection in order to protect M.K.'s right to privacy.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of dentistry in Florida pursuant to

Section 20.43, Florida Statutes, and C hapters 456 and 466,

Florida Statutes.

2. Respondent received his license to practice dentistry

in Florida on August 1, 1975. He has actively maintained his

license and practiced general dentistry in Tallahassee, Florida,

since that time.

3. Respond ent began employment with Coast Dental Services,

P.A. (Coast Dental) in 1987 when it purchased a dental practice

owned by Dr. Travis Goss. Coast Dental assumed Respondent's

employment contract with Dr. Goss. After the contract expired,

Respondent continu ed working for Coast Dental pursuant to the

same terms until early 2001. At that time, Coast Dental

proposed a new employment contract that included a non - compete

agreement. Respondent was unwilling to sign the new agreement

unless Coast Dental gave him increased control over the

facility's operations and staffing.

4. M.K. is a Registered Nurse and an Advanced Registered

Nurse Practitioner. She admits that she is conscious of cost

and does not like to spend money unnecessarily. At all times

relevant here, Respondent accommodated M.K.'s reluctance to

spend money by providing conservative treatment that was

economical for her means. M.K.'s cost - consciousness clearly

impacted her decisions regarding her care and treatment in this

case.

5. M.K. was Re spondent's patient for about 10 to 12 years,

from early 1992 until April 2002. She was satisfied with his

services until he performed root canal treatment on Tooth 15 in

2001.

6. Tooth 15 is the upper left second molar, the tooth next

to the upper left wisdom tooth known as the maxillary second

molar. Tooth 15 typically has three roots and three root

canals: the distal canal, the palatal canal, and the

mesiobuccal canal. However, Tooth 15 can have as few as two

root canals or as many as four or five root canals.

7. As one ages, or if there is decay in or trauma to a

tooth, the pulp chamber recedes and the root canals get smaller.

In such a case, the root canals may become calcified, making it

much more difficult to access the root canal during tre atment.

8. A dentist performs a root canal treatment by drilling

through the enamel and dentin and accessing the chamber part of

the pulp anatomy, or the pulp cavity. The dentist then uses a

small instrument/file to penetrate into each root canal to

re move the tissue. After shaping the canal, the dentist fills

it.

9. The standard of care for performing a root canal

treatment remains the same regardless of whether a general

dentist or a specialist, such as an endodontist, performs the

treatment. The only variable is the tooth being treated. If

the root canals are fairly straight, a general dentist may

decide to perform the treatment. If the root canal is not so

straight, a general dentist may decide to refer the patient or

attempt the procedure and refer the patient to an endodontist if

complications, such as anatomical problems, develop.

10. On June 25, 2001, M.K. had an appointment in

Respondent's office for a routine dental cleaning and dental

examination. At that time, Respondent informed M. K. that she

had a deep cavity in Tooth 15 and that it needed to be filled.

11. On June 30, 2001, M.K. had an appointment with

Respondent. At that time, Respondent filled the deep cavity in

Tooth 15.

12. M.K. experienced pain in Tooth 15 after it was filled.

She tolerated the pain for a few days then called Respondent's

office for another appointment.

13. On August 5, 2001, M.K. presented at Respondent's

office complaining of heat, cold, and pressure sensitivity to

Tooth 15. Respondent evaluated the situation and referred M.K.

for a root canal treatment. M.K. did not accept the root canal

referral at least in part because of the cost involved.

14. On August 7, 2001, M.K. returned to Respondent's

office complaining of pain associated with Too th 15. Respondent

took an X - ray of Tooth 15. Respondent's records indicate that

the X - ray was of the whole tooth, root and crown.

15. During the August 7, 2001, appointment, Respondent

once again informed M.K. that she needed root canal treatment on

T ooth 15. Respondent explained the procedure, including the

need for a pulpectomy, and, with M.K.'s permission, performed a

pulpectomy on Tooth 15. Respondent placed formocresol and an

IRM filling in the tooth and prescribed an antibiotic and a pain

relie ver.

16. A pulpectomy is palliative/emergency treatment that

relieves pain. It is usually the first step in performing a

root canal treatment when the patient has acute pain.

17. Respondent recorded on August 7, 2001, that M.K.

complained of pain as sociated with Tooth 15. He did not

specifically diagnose the source of the pain or the need for

root canal treatment as being pulpitis, abscess, trauma, or

decay. However, it is apparent from the record as a whole that

Tooth 15 had a filling due to a dee p cavity.

18. During the August 7, 2001, office visit, Respondent

referred M.K. to another general dentist in his office to

complete the root canal treatment. The other dentist's schedule

would have permitted sooner completion of the treatment. The

co st of services by the other dentist would have been covered by

M.K.'s dental plan. M.K. refused that referral, requesting that

Respondent complete the treatment. She did not want someone she

did not know to treat her. M.K. did not experience any pain in

Tooth 15 after the pulpectomy.

19. On September 11, 2001, M.K. returned to Respondent's

office. At that time, she was not experiencing any pain and did

not believe she needed further treatment on Tooth 15. After

being informed for the second time tha t further treatment was

necessary following a pulpectomy, M.K. once again refused a

referral to another general dentist in Respondent's office,

insisting that Respondent proceed with the treatment.

20. After removing the temporary filling and the

medica tion, Respondent located the distal and palatal canals,

determined their length, and penetrated them. Respondent

believed that the mesiobuccal canal existed in Tooth 15, but he

could not penetrate it due to calcification.

21. On September 11, 2001, Res pondent informed M.K. that

he could only penetrate two canals. At some point during the

office visit, Respondent advised M.K. that she might only have

two root canals, unlike the average person who has three root

canals in Tooth 15. He also advised her t hat he could not find

the third canal because he could not penetrate it.

22. On September 11, 2001, Respondent told M.K. that her

options were re - medication of the tooth with a later attempt to

penetrate the third canal, referral to an endodontist, fill ing

the two canals and monitoring the tooth, or as a last

alternative, extraction of the tooth. M.K. chose not to see an

endodontist, but to treat the tooth conservatively.

23. Consistent with M.K.'s decision, Respondent re -

medicated and sealed the too th. Respondent hoped that the

medicine in the tooth would help to soften any calcification in

the third canal, making it easier to penetrate on the next

visit. Respondent scheduled a follow - up appointment.

24. On September 11, 2001, Respondent documen ted that he

intended to find the third root canal on M.K.'s next visit. He

did not document that he believed the third canal existed but

could not penetrate it due to calcification. He did not

document his discussions with M.K. regarding her options.

2 5. On October 11, 2001, M.K. returned to Respondent's

office. Respondent was once again unable to penetrate the third

canal and discussed this with M.K. Respondent provided M.K.

with the options of filling the two canals and monitoring the

third for sym ptoms, sending her to an endodontist, or extracting

the tooth. M.K. again chose to take the wait - and - see approach

by filling the two canals and monitoring the third canal for

symptoms.

26. Respondent filled the two canals with Thermafil, a

material app roved by the American Dental Association (ADA) for

filling canals. Respondent then closed the tooth.

27. Respondent was unable to fill one of the root canals

to the end of the root due to calcification. Respondent filled

the canal within one millimete r of the ideal length.

28. If a canal is partially calcified, it may not be

possible to fill it to the end of its root. In such a case, a

general dentist could refer the patient to an endodontist or

treat the canal to the extent possible and wait to se e if

complications develop. If a canal is fully calcified, it may

not be possible to penetrate and fill it at all. A fully

calcified canal usually never causes a problem; thus, it is

appropriate to either refer the patient to an endodontist or to

close t he tooth and wait to see if the tooth continues to be

symptomatic.

29. For the October 11, 2001, office visit, Respondent

noted in his records that he had finished the root canal

treatment, meaning only that he had filled the two canals and

closed the t ooth. Respondent should have documented his

inability to penetrate and fill the third canal, his discussion

with M.K. about the untreated third canal, and M.K.'s decision

to take the wait - and - see approach.

30. Respondent also noted that that he would p lace a post

and crown on M.K.'s next visit. Respondent did not document the

type of material that he used to fill the two root canals.

31. At no time during the root canal treatment did

Respondent use a rubber oral dam in M.K. mouth. During a root

can al treatment, use of a rubber dam is not required provided

that the tooth being treated is properly isolated using another

method, such as cotton rolls. In this case, Respondent did not

document the method of isolation.

32. M.K. began experiencing pain in Tooth 15 after the

anesthesia wore off. She returned to Respondent's office on

October 15, 2001, complaining of pain. Respondent told M.K. the

pain could be associated with her gingival tissue, though he did

not document that diagnosis. Respondent a lso told M.K. that it

was not unusual to experience some discomfort within four days

after completion of a root canal. He prescribed a seven - day

course of antibiotic treatment.

33. On October 15, 2001, Respondent documented that M.K.

needed to wait two weeks and that he would re - treat, refer to an

endodontist, or extract if Tooth 15 was not better. After

completing the antibiotic treatment, M.K. no longer experienced

pain in Tooth 15.

34. On December 11, 2001, M.K. had a routine dental

cleaning in R espondent's office. She did not see Respondent

during the visit. She did not complain of pain or sensitivity

associated with Tooth 15.

35. On January 31, 2002, M.K. had an appointment with

Respondent. He prepared Tooth 15 for a crown but did not plac e

a post, which would have made it more difficult to retreat the

tooth if such re - treatment became necessary. During the visit,

M.K. did not complain of any pain or discomfort with Tooth 15.

36. On March 20, 2002, M.K. returned to Respondent's

office. At that time, Respondent seated a crown on Tooth 15.

The placement of the permanent crown was necessary because

temporary fillings last only a few weeks or months; they are not

designed to last a long time. M.K. did not report that she

continued to have pain or discomfort with the tooth during her

March 20, 2002, office visit.

37. The seating of the crown completed permanent

restoration of Tooth 15, barring further symptoms of discomfort.

The seating of the permanent crown would not prevent treatment

of the third canal if such became necessary.

38. On March 28, 2002, M.K. returned to Respondent's

office, complaining of pain on the upper left side of her mouth.

Although he initially thought the pain was related to Tooth 15,

upon further examination , Respondent determined that the pain

was due to problems with Tooth 16, the upper left wisdom tooth

next to Tooth 15. This was the last treatment that Respondent

provided to M.K.

39. On March 28, 2002, Respondent prescribed a course of

antibiotic trea tment for M.K. Respondent documented that he

would extract the Tooth 16 if the pain continued. He had

intended to extract Tooth 16 at some point in time, regardless

of the outcome on Tooth 15. Respondent would not have

recommended an extraction for Toot h 15, which he planned to

continue to monitor.

40. Contract negotiations between Respondent and Coast

Dental stalled in April 2002. Respondent gave Coast Dental two

weeks notice of his intent to resign. A week later, Coast

Dental terminated Respondent 's employment during the middle of

patient care, told him to get his personal items, and ushered

him out of the office. He was not permitted to talk to the

staff or take any records, including patient lists. Thus,

Respondent was unable to directly contac t his former patients,

including M.K.

41. Within three weeks of his discharge, Respondent

obtained office space from another dentist and began his private

practice. To obtain patients, Respondent advertised in the

newspaper, established contacts with var ious dental plans,

obtained his own provider number, notified dental plans that he

would accept new patients, and obtained permission for his

former patients to transfer to him from Coast Dental.

42. In order to transfer and be treated by Respondent,

fo rmer patients had to individually contact their insurance

provider and change their designated provider to Respondent.

Respondent estimates that he treats approximately 80 - 90 percent

of the patients he originally treated while at Coast Dental.

43. Some time before April 10, 2002, M.K. began waking up

at night with pain. She believed that the pain originated in

Tooth 15. She decided to seek a second opinion from another

dentist.

44. M.K. made an appointment with Richard Chichetti,

D.M.D., on April 11 , 2002. Dr. Chichetti is a general dentist

who practices in Tallahassee, Florida.

45. On April 11, 2002, M.K. presented with pain to the

upper right side and the upper left side of her mouth.

Dr. Chichetti took four X - rays and performed a clinical

exa mination to determine the origin of M.K.'s pain.

Dr. chichetti suspected that M.K.'s upper right wisdom tooth,

Tooth 1, had a pulpal inflammation. He also suspected that

M.K.'s Tooth 15 had a pulpal inflammation.

46. Dr. Chichetti determined that ther e were three roots

in Tooth 15, that only two of them had been filled, and that the

unfilled root canal could be one of M.K.'s problems.

Dr. Chichetti referred M.K. to Russell Paul, D.D.S, an

endodontist in Tallahassee, Florida, for evaluation and

treatme nt of Tooth 15 and Tooth 1.

47. Dr. Chichetti noticed spaces between crowns, which

could contribute to M.K.'s discomfort if she was packing food in

the spaces. Dr. Chichetti recommended that M.K. return to

Respondent to correct any problem with the spa ces between the

crowns.

48. On May 7, 2002, M.K. had an appointment with Dr. Paul.

M.K. was not experiencing acute pain with Tooth 15 at the time

of the visit. Dr. Paul performed a percussion test on Tooth 15,

confirming that it was sensitive. He als o took an X - ray of the

tooth using equipment that was not available to Respondent.

Dr. Paul determined that Tooth 15 did not require immediate

treatment.

49. Dr. Paul informed M.K. that Respondent had treated

only two of three root canals in Tooth 15. He recommended that

the third root canal be treated if it continued to cause

discomfort. Dr. Paul recommended that the two treated root

canals be retreated because it appeared to him that the palatal

canal had not been treated to the end of its root. Dr . Paul

gave M.K. the option of waiting to see if Tooth 15 continued to

cause discomfort.

50. Dr. Paul sent Dr. Chichetti a letter dated May 8,

2002. The letter stated as follows in pertinent part:

I saw [M.K.] on May 7 2002, regarding the

two teeth m entioned above. The patient

stated she was having some slight discomfort

with tooth No. 15. She was concerned about

the results of the endodontic treatment that

was recently performed by Dr. Bob Barr. My

observation is the canal(s) in the

mesiobuccal ro ot had not been treated. This

is obviously a case where a high degree of

mineralization has taken place. I would

also question whether the palatal canal has

been prepared and obdurated to the apical

area of that root. [M.K.] has an increased

response to occlusal percussion of No. 15 as

compared to the surrounding teeth. My

recommendation to her was if this tooth gave

her enough of a problem such that it was

uncomfortable, then I would proceed with

retreatment. I feel it is probably a matter

of time as to when this tooth will become

more acute.

51. M.K. had an appointment with Respondent's office on

June 11, 2002, for routine dental cleaning. She intended to

speak to Respondent at that time about Dr. Paul's

recommendation. Prior to the office visit , M.K. saw an

announcement in the newspaper announcing the opening of

Respondent's practice at another location. The day before her

appointment, M.K. called Coast Dental to get Respondent's new

telephone number.

52. M.K. called Respondent's office. Sh e was informed

that Respondent could not see her that day and that she would

have to contact her insurance company to change her dental care

provider from Coast Dental to Respondent. M.K. left a message

for Respondent to call her. Respondent did not retu rn M.K.'s

call because, for whatever reason, his staff never gave him the

message.

53. When M.K. did not receive a call from Respondent, she

sent him a certified letter dated June 8, 2002. M.K. had

intended to give Respondent a copy of the letter on Ju ne 11,

2002. In the letter, M.K. threatened to sue Respondent if he

did not pay her the following costs: (a) for having a root

canal treatment on Tooth 15 by Dr. Paul; for having two crowns

replaced by Dr. Chichetti; and (c) for consultations with Drs.

C hichetti and Paul. Respondent did not reply to the letter,

which he considered threatening.

54. M.K. wrote a letter dated September 1, 2002, to

Petitioner, complaining about Respondent's services. She

attached the letter to a formal complaint that she filed with

Petitioner on or about September 16, 2002.

55. M.K. did not seek further treatment for Tooth 15 until

she returned to Dr. Paul's office on April 8, 2003. At that

time, Dr. Paul conducted a re - evaluation of M.K.'s teeth. M.K.

reported inter mittent pain associated with Tooth 15. It had

been approximately one year and a - half since Respondent

performed the root canal procedure. Dr. Paul once again

determined that treatment was not immediately necessary.

56. On July 7, 2003, Dr. Paul retrea ted the two root

canals formerly treated by Respondent. Dr. Paul could not

remove all of the material placed in the root canals by

Respondent. Dr. Paul also located and treated the third root

canal. In both instances, Dr. Paul used a softer material to

fill the root canals. He performed the treatment and re -

treatment through the crown seated by Respondent. During this

procedure, Dr. Paul had the advantage of using a lighted

miniature microscope to assist in penetrating the calcified

third canal.

57. In September 2003, M.K. returned to Dr. Paul's office

complaining of pain on the upper left side of her mouth. M.K.

described the pain as "uncomfortable but is not painful."

M.K.'s complaint was similar to her prior complaints after

Respondent's root ca nal treatment. Dr. Paul determined that any

discomfort was related to problems with the erosion of the

gingival tissue surrounding Tooth 13 and not from Tooth 15.

58. In December 2003, Petitioner's investigator

interviewed Respondent at his office. Du ring the interview,

Respondent asked the investigator to inform M.K. that he would

be happy to see her, at his cost, to look at her complaints, and

determine what, if anything could be effectuated. The

investigator delivered the message to M.K. on Decembe r 4, 2003.

M.K. indicated that she would consider his offer.

59. As of the time of the hearing, M.K. had not had the

crown on Tooth 15 refitted or replaced by any dentist. She had

at least seven additional office visits with Dr. Chichetti after

Dr. Pa ul completed his treatment in September 2003. On one of

the visits, Dr. Chichetti extracted Tooth 1. On another visit,

Dr. Chichetti put a permanent alloy filling in Tooth 15.

60. Dr. Paul saw M.K. for the last time in May 2004. M.K.

was still compla ining of intermittent sensitivity that she

associated with Tooth 15. She was not having acute pain but was

aware that it was there. Dr. Paul advised M.K. that he believed

her problem was non - endodontically related.

Expert Testimony

61. Petitioner presen ted the expert testimony of Victoria

Bong - Krueger, D.D.S. Dr. Bong - Krueger is licensed as a general

dentist. She has not maintained a practice since 1994. She has

never practiced dentistry in Tallahassee, Florida.

62. Prior to her retirement, Dr. Bon g - Krueger routinely

performed and documented root canal treatments. At the time of

her testimony, Dr. Bong - Krueger provided dental and clinical

consulting to her husband, a licensed practicing dentist.

63. Dr. Bong - Krueger and her husband are co - owners of a

dental practice known as Krueger and Bonb - Krueger, P.A.

Dr. Bong - Krueger reviews and teaches proper documentation in her

dental office. She has remained current on the standards of

care relative to patient documentation and root canal therapy.

Dr. Bong - Krueger was accepted as an expert in the area of record

documentation relative to root canal treatment.

64. Early in 2003, Petitioner retained Dr. Bong - Krueger to

review the relevant records in this case. On February 6, 2003,

Dr. Bong - Krueger issue d a written opinion, finding that

Respondent had violated Section 466.028(1)(m), Florida Statutes,

by failing to keep written dental records and medical history

records to justify the course of treatment. Dr. Bong - Krueger

specifically found that Responden t and M.K. discussed the

problems with the root canal treatment on September 11, 2001,

and October 11, 2001, but that Respondent failed to document the

problems or the options discussed. Dr. Bong - Krueger did not

find that Respondent had violated the stand ard of care contrary

to Section 466.028(1)(X), Florida Statutes, in regard to his

treatment of M.K.'s Tooth 15.

65. On December 12, 2003, Petitioner's Probable Cause

Panel decided to charge Respondent with a violation of Section

466.028(1)(x), Florida S tatutes. The Probable Case Panel made a

specific decision not to charge Respondent with a record - keeping

violation pursuant to Section 466.028(1)(m), Florida Statutes.

66. In December 2003, Petitioner requested Dr. Bong -

Krueger to render another writte n opinion related specifically

to whether Respondent met the standard of care in the treatment

of M.K.'s Tooth 15. Petitioner did not provide Dr. Bong - Krueger

with any new information to consider in her "supplemental

opinion."

67. In a report dated Dec ember 19, 2003, Dr. Bong - Krueger

concluded that Respondent had violated the standard of care due

to his failure to document certain actions with regard to Tooth

15. Specifically, Dr. Bong - Krueger opined that "[t]here is no

notation of finding a third cana l, no notation of possible

complication, no notation of an immediate or future referral to

a specialist, and no notation that there were any problems with

inadequate fill on the two canals, which were found." Dr. Bong -

Krueger concluded that Respondent vio lated the standard of care

because "the records do not indicate that he addressed the

problems [with M.K.] while he was working on the tooth in

September and October of 2001."

68. In May of 2004, Petitioner requested Dr. Bong - Krueger

to complete a third report with regard to standard of care. In

a report dated May 28, 2004, Dr. Bong - Krueger reviewed the exact

same records and stated as follows in relevant part:

1. On 8/7/01, the patient presents

complaining of pain of #15 and a periapical

radiograph is taken. Then Dr. Barr

recommends a root canal treatment and as

treatment for the pain, he does a pulpotomy

on the tooth, places an IRM temporary,

prescribes antibiotics and pain medication,

and refers to Dr. Waldeman for a root canal.

All of this is wi thin the standard of care

and proper record keeping.

2. On 9/11/01, the records indicate a root

canal was done on #15 and two canals were

found which Dr. Barr indicates were B and P

(indicating buccal and palatal locations).

The length of each canal is noted as well as

the landmark used to measure. Written last

is the note that "NV (next visit) Find M".

This indicates that Dr. Barr knows there is

at least one more canal to find in this

tooth. At this point, ideally there should

have been notes to indi cate a conversation

with the patient that a complication was

occurring with this root canal. There is no

notation to this effect. However, since

there is to be at least one more visit to

work on this complication, there is no

strong violation of the stan dard of care at

this point.

3. On 10/11/01, there should be very

detailed and concise notes regarding

treatment rendered during the root canal,

and any conversation now occurring with the

patient about any possible complications if

the work is being co mpleted. Instead, very

brief notations occur. "#15Finished RCT"

and "N.V. (next visit) #15 P Crown."

There is nothing to indicate the third canal

was located. There is nothing to indicate

the patient was informed only two canals

were located. There is nothing to indicate

a referral or retreatment was necessary for

this tooth. There is nothing to indicate

what could happen if the extra canal(s) was

not treated. This is below the standard of

care if the patient was not informed that

the tooth is susc eptible to complication by

not finding the canal(s) and what could be

done to remedy the solution. It is also a

records keeping violation if any

conversation about complications did take

place and was not recorded. In addition,

there is no notation about what type of

filler material was used to fill the two

canals. This is a very obvious record

keeping violation and practicing below the

standard of care by not recording the

filling material. It helps to know the

filler material when re - treatment is

nece ssary since different fillers are

removed different ways.

4. On 10/15/01 the patient shows up at the

office 4 days after the fill and has an exam

for pain with #15. Dr. Barr records a

prescription for an antibiotic (Keflex) and

records the patient is taking Tylenol. It

then says "Wait 1 - 2 weeks. Retreat/refer to

Endo/or extract if not better." The records

indicate here is where a conversation

occurred that something is wrong with #15.

Dr. Barr appears to redeem himself for the

omission 4 days earli er. Even though

complications of not doing more work on this

tooth are not recorded, Dr. Barr records the

patients is given three choices with this

tooth - retreat, refer to an endodontist, or

extract the tooth. However, after a

12/11/01 visit with the hyg ienist where

nothing is recorded about #15, two more

visits occur with Dr. Barr which reaffirms

treatment below the standard of care.

5. On 1/31/02, Dr. Barr does a crown

preparation on tooth #15. There is no

discussion about the recommendations

reg arding the 10/15/01 visit where re -

treatment, referral to an endodontist, or

extractions were listed as the correct

options. Dr. Barr did not do the re -

treatment, and nothing is noted about a

referral visit, instead the crown prep is

just done. This is m ost definitely below

the standard of care treatment to do a crown

prep on a tooth with the intent to

permanently cement a crown on a tooth that

has an incomplete root canal fill.

6. On 3/20/02 the permanent crown is seated

on #15.

69. During the fina l hearing, Dr. Bong - Krueger primarily

testified about Respondent's inadequate record - keeping, which in

her opinion was so severe as to amount to a violation of the

standard of care. According to Dr. Bong - Krueger, patient

documentation is an essential part of treatment and diagnosis

because a second dentist who provides follow - up dental care

needs to be aware of the following: (a) a prior diagnosis; (b)

the type of treatment performed based on that diagnosis; (c) the

type of materials used in a prior treat ment/procedure; and (d)

whether any complications developed during the

treatment/procedure.

70. Dr. Bong - Krueger's written opinions seemed to find

more standard of care violations every time she reviewed the

same records. In some respects, her testimon y during the

hearing contradicts her prior written opinions. For example, in

her February 2003 written opinion, Dr. Bong - Krueger found no

standard of care or record - keeping violations regarding M.K.'s

August 7, 2001, office visit. In the December 2003 wr itten

opinion, Dr. Bong - Krueger once again found no fault with

Respondent's treatment or record - keeping on August 7, 2001. In

the May 28, 2004, written opinion, Dr. Bong - Krueger specifically

stated that Respondent did not violate the standard of care and

that he kept proper records for the August 7, 2001, office

visit. These written opinions are contrary to her hearing

testimony that Respondent violated the standard of care on

August 7, 2001, because he did not document a specific

diagnosis, explaining th e need for the pulpectomy and root canal

treatment.

71. However, the crucial dates at issue here are the

office visits in September and October of 2001. In her February

2003 report, Dr. Bong - Krueger did not find a standard of care

violation related to documentation deficiencies on either date.

In her December 2003 report, Dr. Bong - Krueger found a standard

of care violation related to record - keeping on both dates. In

her May 2004 report, Dr. Bong - Krueger found "no strong violation

of the standard of ca re" for the September 2001 office visit,

but an "obvious record keeping violation and practicing below

the standard of care" for the October 2001 office visit. During

the hearing, Dr. Bong - Krueger testified that Respondent's

deficient record - keeping absol utely violated the standard of

care on both dates. Dr. Bong - Krueger's opinion testimony is

credible only as it relates to the October 2001 office visit,

about which she has consistently found a record - keeping standard

of care violation since writing her s econd report on

December 19, 2003.

72. Petitioner also offered the expert testimony of James

Guttuso, D.D.S., a retired endodontist. Dr. Guttuso practiced

endodontics from 1962 until 1996, first in New York and then

Florida. Dr. Guttuso taught endodont ics treatment at the State

University of New York at Buffalo. From 1997 to 2004,

Dr. Guttuso taught endodontics at Nova University in Florida.

Dr. Guttuso was accepted an expert in endondontic treatment and

its associated standard of care.

73. In many ways, Dr. Guttuso's testimony supports a

finding that Respondent did not violate the standard of care in

performing a root canal procedure on M.K.'s Tooth 15.

Dr. Guttuso stated that pain after the completion of a deep

filling in a cavity is not a violati on of the standard of care,

but is normal, based on the pressure build - up created by the

placing of the filling. Dr. Guttuso did not find a standard of

care violation associated with Respondent's filling the cavity

in Tooth 15.

74. Dr. Guttuso further testified that as a person gets

older, or after there has been decay to a tooth, the tooth's

pulp chamber shrinks and becomes calcified, making it more

difficult to penetrate the tooth. According to Dr. Guttuso,

Respondent was unable to penetrate the mesi obuccal canal,

"mainly because of the tremendous amount of calcification or

mineralization that had occurred."

75. Dr. Guttuso testified that failing to fill a canal is

not the ideal means to treat a root canal. However, he agreed

that there are situati ons in which a dentist in not able to

accomplish what he intends. Dr. Guttuso opined that it was not

below the standard of care per se for a dentist to "miss" a

canal in a tooth or to subsequently place a crown on that tooth,

but it was below the standard of care if the dentist did not

inform the patient about the consequences of not having the

third canal filled. In this case, the most persuasive evidence

indicates that Respondent discussed the problem with M.K. and

that she elected to take a wait - and - se e approach.

76. Dr. Guttuso agreed that a crown is needed following a

root canal to protect the tooth. He agreed that a root canal

treatment can be completed through a permanent crown.

77. During direct examination, Dr. Guttuso opined that

Responden t violated the standard of care. On cross - examination,

Dr. Guttuso testified as follows: (a) if one finds only two

canals, it is appropriate to fill the two canals and take a

wait - and - see approach to monitor the tooth; (b) failing to treat

a canal to the apex is not necessarily below the standard of

care; (c) placing a permanent crown on a tooth does not prevent

a dentist or endodontist from continuing root canal treatment on

the tooth; and (d) placing a crown on M.K.'s Tooth 15 was of no

consequence. Dr . Guttuso's testimony is not deemed credible,

given its equivocal nature.

78. In response to Petitioner's allegations, Respondent

presented the expert testimony of Lewis Beall, D.D.S. Dr. Beall

is a recently retired dentist who practiced general dentis try in

Tallahassee, Florida for over 40 years. Dr. Beall obtained his

license to practice dentistry in Florida in 1962. Dr. Beall's

practice consisted of general dentistry, reconstruction, and

cosmetics. During his career, Dr. Beall routinely performed

root canals. He was accepted as an expert in general dentistry.

79. Dr. Beall testified that a calcified canal is

difficult to spot. Dr. Beall stated that a dentist can take a

burr and cut to the spot where the root canal opens, but he has

to be caref ul not to go too far. Dr. Beall explained that if a

dentist goes out of the root, the tooth will be ruined and

require extraction.

80. Dr. Beall opined that Respondent used appropriate

material and created a good seal when he filled two of the

canals. Dr. Beall stated that one of the canals treated by

Respondent did not extend to the end. According to Dr. Beall,

it is not an uncommon occurrence and not below the standard of

care to be unable to fill a canal to its absolute apex.

81. Dr. Beall testi fied that Respondent was unable to

penetrate the third canal due to calcification. Dr. Beall

stated as follows: (a) if the canal is fully calcified, there

is no need to penetrate the canal as it is not likely to cause a

problem; and (b) if the canal is p artially calcified, a dentist

may attempt to drill further and risk problems, refer the

patient to an endodontist, or leave the partially calcified

canal alone and monitor for problems.

82. Dr. Beall opined that it was more prudent to treat a

partially calcified canal to the extent possible than to

immediately refer the patient to an endodontist for the

following reasons: (a) the endodontist may also fail to

penetrate the canal to its apex; (b) there may be no further

problems; and (c) one can always go back an retreat if problems

develop later.

83. Dr. Beall's opinion was that Respondent's wait - and - see

approach was acceptable, was within the standard of care, and

was what he personally would have done. Dr. Beall supported his

opinion in part with th e following facts: (a) it was a year and

a - half before M.K.'s Tooth 15 needed to be filled; (b) a

temporary crown or filling would not have lasted that long; and

(c) a dentist can always continue root canal treatment through a

permanent crown.

84. As t o the standard of care, Dr. Beall testified that

waiting and not insisting that M.K. see an endodontist was

conservative treatment in this case. Dr. Beall stated that the

conservative approach was an attempt to save M.K. money and not

below the standard o f care. Additionally, Dr. Beall opined that

if a dentist could not find all the canals for a given tooth,

but filled only two, and the tooth is not symptomatic, it is

above the standard of care to place a crown on the tooth without

locating or treating th e final canal. Finally, Dr. Beall did

not believe Respondent had violated the standard of care because

he did not use a rubber dam, as opposed to some other method to

isolate the area being treated.

85. Ultimately, Dr. Beall testified that Respondent

p rovided M.K. with diagnosis and treatment that met the

acceptable minimum standard of performance in diagnosis and

treatment when measured against generally prevailing peer

performance. Dr. Beall's testimony provides the most credible

and persuasive evide nce that Respondent's root canal diagnosis

and treatment did not violate the standard of care and that M.K.

suffered no harm from Respondent care and treatment.

Prior Disciplinary History

86. The Board of Dentistry currently functions under the

umbrell a of the Department of Health. At times in the past, the

Board of Dentistry has functioned as part of the Department of

Business and Professional Regulation and the former Department

of Professional Regulation.

87. On November 29, 1983, the Board of De ntistry issued a

Final Order in Department of Professional Regulation v. Robert

H. Barr, D.D.S. , DPR Case No. 0031230. The Final Order

indicates that the Board of Dentistry conducted an

administrative proceeding pursuant to Section 120.57(2), Florida

Stat utes (1983), finding that Respondent failed to make records

available to a patient in a timely manner. The Board of

Dentistry resolved the case by reprimanding Respondent and

imposing an administrative fine in the amount of $1,000.

88. The Board of Den tistry issued a Closing Order in

Department of Professional Regulation Case No. 90 - 001989 on

September 10, 1990. The Closing Order indicates that the Board

of Dentistry resolved the case by issuing a letter of guidance

to Respondent concerning his alleged failure to make records

available to a patient in a timely manner.

89. The Board of Dentistry issued a Final Order in

Department of Business and Professional Regulation v. Robert H.

Barr, D.D.S , DBPR Case No. 94 - 01828, on November 17, 1994. The

Final Order adopts and incorporates a Stipulation. In the

Stipulation, Respondent neither admits or denies the matters of

fact alleged in the Amended Administrative Complaint, which

charged a violation of Section 466.028(1)(y), Florida Statutes

(1992). In the Stipulation, Respondent agreed to pay an

administrative cost in the amount of $500, to receive a

reprimand, and to be placed probation for one year.

CONCLUSIONS OF LAW

90. The Division of Administrative Hearings has

jurisdiction over the parties and th e subject matter of this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2005).

91. Petitioner must establish that Respondent violated

Section 466.028(1)(x), Florida Statutes (2001), by clear and

convincing evidence. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

92. Section 466.028(1), Florida Statutes (2001), states as

follows in rel evant part:

(1) The following acts constitute

grounds for denial of a license or

disciplinary action, as specified in s.

456.072(2):

* * *

(m) Failing to keep written dental

records and medical history records

justifying the course of treatme nt of the

patient including, but not limited to,

patient history, examination results, test

results, and X rays, if taken.

* * *

(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 undertaking of diagnosis

and treatment for which the dentist is not

qualified by training or experience or being

guilty of dental malpractice. For p urposes

of this paragraph, it shall be legally

presumed that a dentist is not guilty of

incompetence or negligence by 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

q ualified 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. As used in this

paragraph, "dental malpractice" includes,

but is not limited to, three or more claims

within the previous 5 - year period which

resulted in indemnity being paid, or any

single indemnity paid in excess of $5,000 in

a judgment or settlement, as a result of

negligent conduct on the part of the

dentist.

93. Petitioner charged that Respondent violated Section

466.028(1)(x), Florida Statutes (2001), in one or more of the

following ways:

a) the Respondent did not properly document

in Patient M.K.'s treatment plan for the

September 11 and October 11, 2001,

procedures that he had difficulties locating

all of the root canals for tooth number 15

and treatment was not completed.

b) the Respondent did not complete

attempted root canals performed on Patient

M.K. on September 11 and October 11, 2001,

which included a failure to properly

complete standard mesial buccal fill of the

canals, and/or patient referral to an

appropriate specialist for comple tion of the

attempted procedures.

94. Neither party cites persuasive authority for the

proposition that record - keeping deficiencies alone can or can

not, as a matter of law, violate the standard of care. However,

the record here indicates that, under some circumstances,

inadequate record keeping alone can be so severe as to violate

Section 466.028(1)(x), Florida Statutes (2001).

95. In this case, Dr. Bong - Krueger's testimony presents

clear and convincing evidence that Respondent violated the

stand ard of care on October 11, 2001, by failing to document the

following: (a) his failure to find and penetrate the third

canal in Tooth 15; (b) the treatment options provided to M.K.;

(c) the type of material used to fill two of the canals; and (d)

M.K.'s d ecision to take the wait - and - see approach regarding the

third canal. There is no persuasive evidence to the contrary.

96. Not only did Respondent fail to document these

matters, but his October 11, 2002, notation that he had finished

the root canal was misleading. The misleading notation was

exacerbated by Respondent's only other October 11, 2001,

notation regarding his intent to place a post and crown on Tooth

15 on the next visit. It is possible, and at times appropriate,

to treat or retreat root ca nals through a crown, but unless

otherwise explained, placing a crown usually means the dentist

has completed his treatment, not that he is taking a wait - and

see - approach.

97. The most persuasive evidence indicates that

Respondent's diagnosis and treatm ent, apart from the severe

documentation deficiencies on October 11, 2001, was appropriate.

Respondent did not violate the standard of care by failing to

locate and fill the third canal on September 11 and October 11,

2001. Respondent advised M.K. that o ne of her alternatives was

a referral to an endodontist for further treatment. M.K.

decided to accept another appropriate alternative, which was to

wait - and - see if problems developed. M.K.'s Tooth 15 did not

require further endodontic treatment until Jul y 7, 2003. Other

than the record - keeping violations, the evidence is not clear

and convincing that Respondent violated the standard of care.

98. Florida Administrative Code Rule 64B5 - 13.005 states as

follows in relevant part:

(3) When the Bo ard finds an applicant

or licensee whom it regulates under Chapter

466, F.S., has committed any of the acts set

forth in Section 466.028, F.S., it shall

issue a Final Order imposing appropriate

penalties within the ranges recommended in

the following disci plinary guidelines:

* * *

(bb) Being guilty of incompetence.

The usual action of the Board shall be to

impose a period of probation, restriction of

practice, suspension, and/or revocation. . .

.

(cc) Being guilty of negligence or

dental malpractice. The usual action of the

Board shall be to impose a period of

probation, restriction of practice, and/or

suspension. . . .

* * *

(4) Based upon consideration of

aggravating or mitigating factors, present

in an individual case, the Board may deviate

from the penalties recommended in

subsections (2) and (3) above. The Board

shall consider as aggravating or mitigating

factors the following:

* * *

(b) the length of time since the

violation;

(c) the number of times the licens ee

has been previously disciplined by the

Board;

(d) the length of time the licensee

has practiced;

(e) the actual damage, physical or

otherwise, caused by the violation and the

reversibility of the damage.

* * *

(j) Attempts by the l icensee to

correct or stop the violation or refusal by

the license to correct or stop the

violation;

(m) Any other relevant mitigating or

aggravating factor under the circumstances.

99. In this case, it has been at least four years since

the viola tion. During that time, the X - rays taken by Respondent

at Coast Dental's office became unavailable. Additionally,

Respondent's termination from Coast Dental meant that he could

no longer monitor M.K.'s tooth because she never designated him

as her dental care provider or made an appointment for

continuing care. Instead, M.K. wrote a threatening letter when,

for whatever reason, Respondent did not receive her message to

return her telephone call. Respondent eventually offered to see

if he could help M.K even though his care and treatment had not

caused her any harm. It has been approximately ten years since

Respondent's license has been disciplined.

100. On the other hand, Respondent has practiced dentistry

since 1975. He should have known that his d ocumentation on

October 11, 2001, was misleading. In fact, he admitted as much

during the hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order, reprimanding

Re spondent, requiring him to pay an administrative fine in the

amount of $2,500, and requiring him to complete appropriate

continuing education requirements.

DONE AND ENTERED this 8th day of September, 2005, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 8th day of September, 2005.

ENDNOTE

1/ In Barr v. Department of Health, Board of Dentistry , 890 So.

2d 1239 (Fla. 1st DCA 2005), the court denied Respondent's

Petition for Writ o f Prohibition, holding that Respondent "has

an adequate remedy at law" and citing Carter v. Department of

Professional Regulation , 613 So. 2d 78 (Fla. 1st DCA 1993). The

court has thus identified the manner in which Respondent may

pursue his claim that Pe titioner violated the statutory

deadlines imposed by Section 456.073, Florida Statutes (2001),

in a manner that impaired the correctness or fairness of the

proceeding. The decision here to give the parties an

opportunity to proffer evidence and thereby pr eserve the record

was based on the undersigned's understanding of the Court's

opinion in Barr , 890 So. 2d at 1239.

COPIES FURNISHED :

Paula A. Willis, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Fred M. Johnson, Esquire

Steven E. Oole, Esquire

Fuller, Johnson & Farrell, P.A.

Post Office Box 1739

Tallahassee, Florida 32302 - 1739

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Susan Foster, E xecutive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C - 08

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 Recommended Order should be filed with the agency that

will issue the final order in this case .