07-000974PL Department Of Health, Board Of Dentistry vs. Jenny Davenport, Dds Status: Closed Recommended Order on Friday, June 22, 2007.

Summary: Respondent was guilty of incompetence or negligence in performing a root canal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

) Case No. 0 7 - 0974 PL

vs. )

)

JENNY DAVENPORT, D.D.S. , )

)

Respondent. )

)

RECOMMENDED OR DER

Notice was provided and on May 2 and 3, 2 00 7 , a formal

hearing was held in this case . Authority for conducting the

hearing is set forth in S ections 120.569 and 120.57(1), Florida

Statutes ( 2006 ) . The hearing location was the offices of the

Division of Administrative Hearings, The DeSoto Building, 1230

Apalachee Parkway, Tallahassee, Florida. The hearing commenced

at 9:00 a.m. on each day. The hearing was held before by

Cha rles C. Adams, Administrative Law Judge .

APPEARANCES

For Petitioner: J ami e Ito, Esquire

Wayne Mitchell , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Mary K. Simpson , Esquire

Katherine B. Chapman , Esquire

G uilday, Tucker, Swartz & Simpson, P.A.

1983 Centre Point Boulevard, S uite 2 00

Tallahasse e , Florida 32 308

STATEMENT OF THE ISSUE

Should discipline be impose d against Respondent 's license

to practice dentistry for violation of Section 4 66.028 ( 1)( x ) ,

Florid a Statutes (200 4 ) ?

PRELIMINARY STATEMENT

On July 2 4 , 200 6 , in Case No. 200 5 - 67102, before the Board

of Dentistry (the Board), the Department of Health (DOH) brought

a n Administrative Complaint against Respondent accusing h er of a

violation o f the statute referred in the State ment of the Issue.

The Administrative Complaint was premised upon the care

Respondent allegedly provided Patient L.E. on tooth n umber

thirty - one .

As a consequence Respondent is alleged to have violated

Section 466.028( 1)x), Florida Statutes (2004), in that:

a. Respondent failed to completely obturate

the canals of tooth number 31 on or about

June 28, 2004, and/or December 13, 2004;

b. Respondent proceeded to perform a

buildup on tooth number 31 before retreating

t he inadequately filled root canal on or

about July 6, 2004;

c . Respondent seated a final crown on a

poorly filled root canal tooth number 31

after the June 28, 2004 root canal;

d. Respondent failed to record that she

cemented the final crown, or th e date she

cemented the final crown on tooth number 31

after the June 28, 2004 root canal; and/or

e . Respondent failed to record what

instrumentation took place, how much longer

the canals were instrumented or what was

removed during root canal therapy on or

about December 1 3, 2004.

Respondent was provided several options in addressing the

Administrative Complaint by executing an Election of Rights

form. She chose the third option. That option was to dispute

the allegations of fact contained in t he Administrative

Complaint a n d the legal conclusions dr awn from the factual

allegation s. Respondent asked that she be heard in accordance

with Section 120.569(2)(a) and 120.57(1), Florida Statutes

(2006), by an administrative law judge to resolve the dis pute.

On February 23, 2007, DOH forwarded the case to the

Division of Administrative Hearings (DOAH) , to assign an

administrative law judge to conduct a hearing in accordance with

Respondent's request for formal hearing. The assignment was

made by Rob ert S. Cohen, Director and Chief Judge of DOAH in

reference to DOAH Case No. 0 7 - 0974 PL . The assign ment was to the

present administrative law judge.

On March 8, 2007, Respondent filed a Response to

Administrative Complaint detailing her perception concer ning

Patient L.E.'s care and treatment.

On April 5, 2007, Petitioner filed a Motion to Take

Official Recognition of Section 466.028(1)(x), Florida Statutes

(2004), and Florida Administrative Code Rule s 64B5 - 13.005 and

64B5 - 17.004. A timely response to t he motion was not filed. On

April 16, 2007, the motion was granted. On April 18, 2007,

Respondent filed an Objection to Petitioner's Motion to Take

Official Recognition. On that same date Petitioner filed a

Motion to Strike Respondent's untimely objecti on to Petitioner's

Motion to Take Official Recognition. The objection and motion

to strike are moot.

On April 25, 2007, Respondent filed Motions in Limine

regarding the adequacy of the dental reports pertaining to the

Patient L.E.; regarding telephone c alls, and regarding Met - Life

records. On that same date Petitioner filed responses to each

of the M otions in L imine. The motions were d isposed of as

explained in the hearing transcript.

Consistent with an Order of Prehearing Instructions , the

parties f iled information concerning , among other subjects , a

stipulation of facts. Those factual stipulations arrived at in

the prehearing submissions and upon discussion at hearing are

reported in the F indings of F act to this Recommended Order.

Petitioner pre sented Patient L.E., Respondent, Mikki Bates

and Harold Haering, D. D . S ., as its witnesses. Petitioner 's

Exhibits numbered 2, 3, c omposite 4 , and 5 were a dmitted.

Petitioner's Exhibits numbered 1, 6, 7, and 8 were denied

admission. Respondent testified i n h er own behalf and presented

the testimony of Geoffrey Weihe, D.D.S. Respondent 's Exhibit s

numbered 1a, 3, 3a, 3b, 3c, 8 and 11 were admitted.

Respondent's Exhibit numbered 11 is the deposition transcript of

Reid Hines, D.D.S . All ex hibit s a dmi tted an d denied are

transmitted with this record.

On May 18, 2007, a three - volume hearing transcr ipt was

filed. On May 29, 2007, the parties filed Proposed Recommended

Orders. The Proposed Recommended Orders have been c onsidered in

preparing the Recommended Order .

FINDINGS OF FACT

Stipulated Facts

1. Petitioner is the state department charged with the

regulation of the practice of dentistry pursuant to Section

20.43, Florida Statutes, and Chapter s 456 and 466, Florida

Statutes .

2. Respondent is Jenny Dav enport, D. D.S.

3. Respondent is a licensed dentist in the s tate of

Florida , having been issued license DN 1332 1.

4. Respondent's mailing address of record is 7955 Dawsons

Creek Drive, Jacksonville, Florida 32222.

5. On or about June 17, 2004, Patient L .E. presented to

the Respondent complaining of pain associated with tooth number

thirty - one. The Respondent performed a comprehensive

examination, took an X - ray , removed existing intermediate

restorative material, placed a cavit, prescribed an antibiotic

and pain medication, and scheduled Patient L.E. for root canal

treatment.

6. T h e Respondent provided root canal treatment to

Patient L.E. on or about June 28, 2004.

7. Patient L.E. returned to the Respondent on or about

July 6, 2004, for crown prepar ation of tooth number thirty - one,

which the Respondent performed.

8. On or about July 2 8 , 200 4 , Patient L.E. presented to

Respondent for sea t ing of the final crown; however, the

Respondent was dissatisfied with the permanent crown ; therefore,

she seated the crown with temporary cement and instructed the

lab to fabricate a new permanent crown.

9. On or about November 16, 2004, Patient L.E. presented

to the Respondent for a prophylaxis and complained of pain in

the lower right side of her mouth.

Care and Treatment of Patient L.E. : The Patient 's Recollection

10. As established by t he patient's testimony, w hen first

seen by Respondent, Patient L.E. was not experiencing pain.

When the patient returned for a visit it was determined that she

needed to ha ve a root canal performed on tooth number thirty -

one. The procedure was performed. The patient was left with a

temporary crown and an appointment made to have a permanent

crown seated.

11. Upon the next visit the perm anent crown did not fit

well. Res pondent left the patient with a temporary solution.

12. The patient returned in November 2004 for a cleaning ,

a nd she recalls , t h at at the time of th e appointment , the crown

on tooth number thirty - one had been set , as she refers to it , or

seated. In No vember 2004 the patient was of the opinion that

tooth number thirty - one had a permanent crown. At the November

2004 appointment the patient was experiencing sensitivity in

tooth number thirty - one. However, b efore going to her

November 16, 2004 appointmen t for cleaning, the patient had not

complained of sensitivity in tooth number thirty - one. The

nature of the sensitivity was a response to cold. She describes

the nature of the discomfort as other than "really pain" [sic].

According to the patient , Respo ndent decided that tooth number

thirty - one needed to be retreated. The patient was not certain

why that was necessary. As the patient recounts the

conversation, Respondent explained that she was going to retreat

tooth number thirty - one because of the sen sitivity, in

particular that she was going to retreat the root canal.

13 . The patient returned on December 13, 2004, and the

root canal on tooth number thirty - one was retreated. The

patient has no recollection of an appointment being set for a

later da te. She realized that there was a necessity for a

permanent crown to be "set again," referring to the need to seat

a new permanent crown. The patient recalls Respondent 's taking

a nother permanent crown off before retreatment. When the

patient left Respo ndent's office on that date, the area where

treatment was performed felt numb. She left the office with the

understanding that the treatment had been concluded , with the

exception of the need to replace the crown. The patient assumed

that the retreatment had been completed on December 13, 2004 ,

but n o one told her that specifically, to her recollection.

14. Over time she began to experience pain that got worse

with the passage of time.

1 5 . The pain that the patient was eventually experiencing

was de scribed by her as "absolutely unbearable." It was

constant in nature , a "throbbing pain."

1 6 . The patient tried to contact Respondent's office

several times. She explained to someone within the Respondent 's

office that the pain killer prescribed, Vico din , was not

working. T he patient describes people answering the

Respondent's office telephone but without providing an adequate

response to her needs . The patient left messages with the front

desk. She was advised to take A dvil.

17. Around the time that the patient was having problems

with pain after the December 13, 2004 retreatment, she recalls

having a conversation with Respondent on the telephone but not

the specifics of their discussion.

1 8 . Patient L.E. contacted Dr. Reid Hines, a dentist in

Pace, Florida, who had treated her before . That dentist saw her

and addressed her problem by relieving the pain a n d redoing the

root canal.

19. When the patient saw Dr . Hines on December 16, 2004,

h e relieved her pain and then she returned to recei ve further

treatment , as she recalls.

20 . Patient L.E. picked up a crown from Respondent's

office , that she believed was necessary to be carried to her

appointment with Dr. Hines. At the time she picked up the

crown , she also obtained her patient record s from Respondent's

office. After that she did not return to Respondent's office.

The patient remembers signing a form releasing the Respondent

from providing future treatment and reminding t he patient , that

if the crown that she had picked up were to be destroyed , she

would have to pay for another. The form referred to the fact

that the treatment had not been completed.

Respondent Explains the Treatment

21 . The Respondent attended the University of Puerto Rica

for her undergraduate education. She a ttended dental school at

Rutgers University and received her D.D.S. in 1992. Respondent

is licensed to practice dentistry in New Jersey , as well as

Florida .

22 . During her practice Respon den t has performed as many

as five - to - six root canals a week.

2 3 . Respondent recalls seeing Patient L.E. on April 29,

2004, for a consultation. The nature of the complaint was

discomfort or sensitivity in the lower right side. The patient

wanted a complete exam ination and X - ray s.

24. The patient was seen for p rophylaxis ( cleaning ) on

May 13, 2004 .

25 . The patient returned on June 17, 2004. At that time

preexisting intermediate restorative material was removed and

temporary material was placed on tooth number thirty - one. The

diagnosis was "hot tooth, hy per - sensitivity." This meant that

the tooth , even under anesthesia had symptoms of either pain or

temperature. The recommendation for future treatment was a root

canal.

2 6 . On June 28, 2004, the root canal treatment was

provided. The patient was anest he t i zed. A clamp and a rubber

dam were placed prior to the provision of anesthesia. The tooth

was opened up to allow access to the pulp. That section of the

tooth w a s removed. Files were used to locate the root canals.

An X - ray was taken to ascertain the extent to which the files

had reached within the roots. The length (s) of the canal ( s ) was

determine d with the use of a n apex locater . The tooth was

irrigated . U sing a series of files from the smallest , to wider

files in width , the canals were flared from the top of the tooth

to the apex of the tooth. A cone (s) was placed and another X -

ray taken to confirm the measurements within the cone. C ones

were placed at each canal with cement and laterally condensed by

using heat. Then buildup material was u sed, a resin , to

compensate for loss of tooth structure and enamel.

27. In combination, t he matter of determining the length

of canals was associated with radiographic measurement s with a

file and by use of an apex locator. The starting point for this

pr ocess is the coronal part of the tooth, the top portion. Each

file h as a rubber stopper on it to provide a guideline for

measurement. The endpoint of the measurement is the apex. The

calibration for measurement is in millimeters.

28. These procedures w ere utilized by Respondent to treat

Patient L.E. The measurements for Patient L.E. were the distal

canal 15 millimeters; the mesial buccal canal 16 millimeters and

the mesial lingual canal 16 millimeters.

2 9 . In looking at a postoperative X - ray to det ermine if

the root canal treatment was adequate , Respondent looks at the

length of the fill in pro portion to the length of the root. She

also looks at any radiolucenc y around the root. If found, this

is an indication of infection around the tooth. Based upon what

a text book says , Respondent believes that fill material placed

in a root canal that is 0. 5 millimeters short of the apex would

be considered acceptable.

30 . Looking at the X - ray depicting the post operative

condition after providing the endodo nic treatment on June 28,

2004, Respondent expressed the opinion that the fill material in

each root extended all the way to the radiographic apex. When

referring to the apex of the root , she means by that the end of

the root. In this context Respondent mention ed the overlap of

two roots, in tooth number thirty - one.

3 1 . In reference to the June 2 8, 2004 postoperative X - ray ,

Respondent ac knowledges that she can visualize where the roots

end but the apex cannot be seen.

32 . The patient returned on July 6, 2004. Tooth number

thirty - one was prepared for fabrication of a permanent crown.

The impression was taken. A shade was selected and the

impression then sent to the laboratory. The patient was left

with a temporary crown.

3 3 . On July 28, 2004, the patient returned. Respond ent

was not satisfied with the f i t of the permanent crown that had

been fabricated . An impression was made to prepare a new

perm anent crown. In the interim this first permanent crown was

used as a temporary. It w as not permane ntly cemented.

34 . On November 1 6, 2004, Responde nt saw the patient

again. P rophylaxis , ( cleaning ) was done a n d two periapical X -

ray s were taken. Respondent reviewed the X - ray s. The X - ray s

revealed the crown that was placed July 28, 2004 cemented with

temporary cement and the root canal treatment that had been

provided earlier on tooth number thirty - one w ere normal,

according to Respondent. Based upon the patient's complaint

Respondent had ordered the X - ray s. Although the X - ray s appeared

normal , the patient was not satisfied , as Respondent recalls .

Respondent gave the patient the option to retreat the root canal

at no cost. This offer to retreat the root canal when the X - ray

appeared normal was not a common practice by Respondent. O n

this date, exp laining the patient's condition , the Respondent

told her that the tooth was going to be sensitive for a time and

she would have to a wait the outcome . The patient was not

s atisfied with that explanation and wanted something done about

it , as Respondent con tends . The only other choice was

retreatment.

35 . The patient returned on December 13, 2004. At that

time the crown was removed, one of the canals was opened and a

retrieval of the material in the roots commenced. The work was

not completed. What wa s left to be done , according to the

patient record , was referred to as RCTIII , which Respondent

explains means that the canals would be filled and sealed at

another time. The reason for putting off the treatment was that

Respondent was concerned with "the patient's state of mind , as

far as she felt at the moment. She was not comfortable." This

refers to the lack of comfort on the part of the patient.

Respondent goes on to say "her body language indicated to me

that she would not want me to proceed with what I was doing."

There is no recollection by Respondent that the patient was

asked if the patient preferred Respondent to proceed or not .

Instead Respondent recalls "the anxiety" by appearance and lack

of comfort by the patient. Respondent tol d the pa tient that she

was not g o ing to retrieve the root canal and that the next time

(next visit), the goal would be to complete everyt hing.

Respondent is not clear on when the patient was to return for

the balance of the treatment. Respondent did not anticipa te

that the patient would be relieved of symptoms following the

December 13, 2004 appointment.

36. More specifically, d uring the December 13, 2004 visit ,

after removing the crown , Respondent opened up the pulp area and

started removing the gutta - percha from the mesial buccal and

mesial lingual canals.

3 7 . After December 13, 2004, the intention was that at the

next appointment , all the remaining gutta - percha would be

retrieved and then the canal s refilled.

3 8 . Respondent remembers speaking to the patient on the

telephone at a time before the retrieval process began on

December 13, 2004. What was said is not provided.

39 . Respondent prepared what she describes as a letter , to

be signed by Patient L.E. , that identified the status of care.

That correspondence said:

I L.E., have decided not to continue my

current treatment with Dr. Jenny Davenport.

I have declined to see Dr. Davenport

regarding my treatment although she has

advised me that my treatment has not been

completed and she would like to complete the

treatment. I hereby agree that any cost s

incurred in the completion of this treatment

are my sole responsibility and I will not

make Dr. Davenport responsible for these

costs. I have agreed to complete the

payment of the treatment w ith Dr. Davenport

and take possession of my crown to complete

treatment with the dentist of my choice.

This disclaimer , which refer s to the second permanent crown , was

signed by Patient L.E. on January 20, 2005, when she retrieved

the second cro wn and her patient records from Responde nt's

offic e.

Office Staff

40 . Sonya Mikki Bates worked in Respondent's office while

Patient L.E. was being treated. She remembers receiving a call

from the patient saying that the patient was in excruciating

pain. The witness d oes not recall what she did in response.

Dr. Hines

41 . Dr. Hines , who took over Patient L.E. 's care, earned a

bachelor's degree from the University of Mississippi in 1990.

He later attended the University of Mississippi dental schoo l

ea rning a doctor's degree. He has be e n licensed to practice

dentistry in Florida since 1994. He performs root canals on a

daily basis.

4 2 . As mentioned , Dr. Hines had treated Patient L.E. prior

to December 16, 2004. She had become his patient in June o f

1998. For that reason, i n his care and treatment of the

patient , he was familiar with tooth number thirty - one b efore the

patient was seen on December 16 , 2004.

43 . When Dr. Hines saw Patient L.E. on December 16, 2004,

it was on an emergency basis. T he patient had pain and swelling

and tooth number thirty - one was very mobile. The purpose of the

care provided on that date was to try to address the patient's

pain and allow the condition to heal to some extent. The

patient had tr ism us in the jaw which prohibited her from being

able to open her mouth completely . X - rays taken on that date

revealed traces of gutta - percha or filling material inside tooth

number thirty - one. There were limited areas that had been

cleaned out in the tooth and others in w hich gutta - percha

remained . Dr. Hines' impression was that retreatment of the

tooth had been commenced. In the treatment provided that date ,

Dr. Hines removed a temporary crown that had been placed on the

tooth. To address the pain , he gave the patient a de xamethasone

injection, an anti - inflammatory steroid. He reduced the too th

out of occlusion .

4 4 . When Dr. Hines saw Patient L.E. on December 16, 2004,

he did not observe anything in her condition related to tooth

number thirty - one which he b elieved reflected a departure f rom

the standard of care by Respondent in providing treatment before

that date.

4 5 . In describing the patient's condition on December 16,

2004, Dr. Hines indicates that the patient more than likely had

recurring infection in the tooth that would push the tooth out

of the socket and make it occlude. Dr. Hines proceeded on the

assumption that Respondent was trying to allow infection to be

removed out of the tooth. But he did not have certain knowledge

concerning Respondent' s intensions. Dr. Hines had no discussion

with Respondent concerning Patient L.E.'s care and treatment.

Dr. Hines did not find it appropriate to fill tooth number

thirty - one and replace the restoration on December 16, 2004. He

did this later.

4 6 . In observing the X - ray s he took on December 16, 2004,

the remaining material in the root canal s that he obse rved was

found in the mesial buccal canal and possibly the mesial lingual

canal.

4 7 . Dr. Hines proceeded with the patient on December 16,

2004, with the belief that the Respondent had begun the

retreatment for tooth number thirty - one but did not finish

because the patient was on Christmas break.

4 8 . By comparison to Respondent , w hen Dr. Hines does a

root canal, to determine if the obturatio n is the rig ht length,

he looks for indications with a pulp test e r , basically allowing

him to establ i sh the length of the canal internally.

Verification is a chieved by use of a radiograph. O nce the root

canal obturation is finished , the (postoperative) X - ray allows

the determination of the length and density of the fill

material. It would not be within the standard of care in

Dr. Hines' opinion if the dentist failed to completely obturate

and fill the canals of the tooth to the radiographic ends.

E xpert Opinion

49 . Harold John Haering, Jr., is licensed to practice

dentistry in Florida, Kentucky and Tennessee. He received his

training in dentistry at the University of Kentucky. He has

practiced since 1982. He is a general dentist who provides

en dodontic treatment. He performs root canals. He has also had

experience reviewing endodontic treatment performed by other

dentists , b y examining a patient's X - ray following a patient who

has had a root canal. He was received as an expert in general

dent istry with an emphasis , as a general dentist , on

endodontics.

50 . In Dr. Haering's opinion the distinction between a

tooth that can be treated without a root canal and one w h ere a

root canal is indicated, is a tooth that is exposed in the

dentin whe re a filling will suffice , a s contras ted with a tooth

involving the pulp , as to the depth of decay or a fracture in

apical t issues around the roots . In the latter circumstances a

root canal is appropriate.

51 . In providing root canal treatment Dr. Haering places a

rubber dam to isolate the tooth following the provision of

anesthesia. Generally, a preoperative X - ray will be performed .

That X - ray is to gain a measurement of the tooth as to its

length. The coronal portion of the tooth is accessed w ith a

burr down into the pulp to gain access to the canal. Pat e ncy

with the apex of the tooth, the end of the root , must be

established . This is done with a small fi le. A radiograph is

used in that process or the dentist my use an apex locator or a

comb ination of both . Once the apex has been identified ,

instrumentation proceeds to the apical foramen. This process

involves the removal of pulp, bacteria, and decay w h i le creating

access to obturate the canal. To place the obturating material ,

a cone of m aterial, gutta - percha is seated to a predetermined

length. After this is accomplished a postoperative radiograph

is used to evaluate the obturation.

5 2 . In trying to establish the correct length in the

procedure , it is a matter of clinical judgment and for some

clinicians the use of X - ray s assist s in determining the proper

length. Observation of the obturation postoperatively reveals

the density of fill. The standard that is acceptable, according

to Dr. Haering , is to approximate 0.5 millimeters f rom the apex

radiographically when considering the fill in the canal.

Dr. Haering 's opinion concerning the proper root canal

obturation and the proximity to the apical foramen is one in

which some U . S . schools accredited by the American Dental

Association tea ch the measure ment at approximate ly 1 millimeter

as acceptable but most school s say that obturation should

approximate 0.5 millimeters in relation to the apex. To confirm

the outcome a postoperative X - ray is needed in Dr. Haering's

opinion. The proper pl acement cannot be determined by tactile

means , given the nature of the material that constitutes the

fill and other material in the canal that are fo rms of

constriction.

53 . In treating the tooth, s eparate and apart from the

root canal wo rk , is the need for restoration. T he restoration

is necessary but is a different procedure.

54 . According to Dr. Haering the proper standard for

performing a root canal is that the fill is radiopaque , that is

that it is without voids, that it follows the anatomy of the

tooth and the root canal and that the obturation approximate s

the apical fora men, within 0.5 millimeters.

55 . A root canal that is poorly obturated can cause pain

in the patient , in Dr. Haering's opinion. In the apex area

there is no vascularizat ion. If there is a void beneath the

fill, above the apex , it is susceptible to a buildup in

bacteria, pulp and debris. In th is anaerobi c condition ,

problems can occur. D epending on the patient's health status it

can occur slowly or quickly , resulting in pain.

5 6 . In preparing himself to comment on Respondent's care

and treatment provided Patient L.E., Dr. Haering looked at the

patient 's charts, Dr. Hines ' records and other materials

provided to the parties on the subject.

57 . Dr. Haering expre ssed the opinion that the Respondent

violated the standard of care in the root canal performed on

Patient L.E. on Ju ne 28, 2004 , by not readdress ing the root

canal before proceeding with other work done on the patient that

commenced July 6, 2004 .

58 . Dr. H aering expressed the opinion that Respondent

failed to completely obturate the canals on June 28, 2004.

59 . When a short fill occurs the obligation by the dentist

is to take out that filling and refill it to the proper length,

in Dr. Haering 's opini on.

6 0 . In Dr. Haering's review of the X - ray taken by

Respondent on June 28, 2004, when she performed the root canal

on Patient L.E. , he measured the fill with an instrument

designed to address the length and by that process determined

that it was 5 millimeters short of the apex. The calibration of

the length of fill was done with use of a micro - ruler. This

short fill created a void leading to necrotic breakdown

byproducts in the canal that could affect the apical bone

eventually.

6 1 . Based up on his review of the patient records ,

Dr. Haering was persuaded that a permanent crown was seated on

the patient's tooth number thirty - one. In this belief he is

wrong.

6 2 . When the patient returned on November 16, 2004, and

the decision was made by Res pondent to retreat tooth number

thirty - one, that was not a decision criticized by Dr. Haering.

63 . In Dr. Haering 's opinion, o n December 13, 2004, when

Respondent saw the patient , the treatment records and X - ray

taken confirmed h is expectation of an e ndo dontic f ill that was

left short . W hen Dr. Hines saw the patient with a swollen

condition and a mobile tooth on December 16, 2004 , this

indicated to Dr. Haering that the patient was getting infection

from a canal that was not completely reinstrumented .

64 . Dr. Haering does not believe that Respondent met the

standard of care on December 13, 2004 . T he patient had

complai ned a month earlier about pain. T o address the tooth , it

must be taken out of occlusion . W ith a short fill in the root

canal , the area will be susceptible t o a buildup of bacteria and

other noxious materials that need s to be reinstrumented. The

reinstrumenta tion would be insufficient with out reaching the

apex a nd cleaning it out. I t was not appropriate to obturate

the canals on De cember 13, 2004, because they were not ready for

that procedure. It would violate the standard of care to

obturate the canals at that time , according to Dr. Haering .

65 . On December 13, 2004, Respondent failed to conclude

reinstrument ation of the ca nals visible on the radiograph ,

le a ving two of them with debris, according to Dr. Haering .

66 . In would be a violation of the standard of care in the

treatment on December 13, 2004 , i f Respondent did not instrument

the canals to the apex , to include areas w here the canals had

not been obturated , unless the patient was made aware that she

might have a lot of problems and was provided Respondent's

contact telephone number. If the canals we re not fully

reinstrumented that would not have gotten the patient out of

pain in the treatment of December 13, 2004.

6 7. In relation to the December 13, 2004 treatment ,

Respondent was obligated to remove the fill to offer any

therapeutic value to the patient.

68 . In Dr. Haering's opinion the determination of the

appropriateness of fill by length and density is the only proper

method. Patient comfort a t the moment, leaving the prospect of

infection over time would not suffice.

69 . J. Geoffrey Weihe, D.D.S., has practiced general

dentistry since 1968. He graduated from Emory University in

that year. He is licensed in Florida.

70 . He was accepted as an expert in general dentistry, in

the analysis of root canals and t he performance of root canals.

71. He performed root canals on a consistent basis between

1970 and 2002. At present he regularly reviews radiograph s of

endodon t ically treated teeth. He views the root canals and the

radiographic evidence after the referral of the patients for

endodontic treatment and their return for restorative work w hich

he performs.

7 2 . In relation to the standard of care for providing root

canal treatment , Dr. Weihe expressed the opinion that the tooth

should be treated in a way that the organic material or the

majority of the organic material down to the apical third of the

tooth and including the proximity to the apex is removed. The

canals are shaped and sterilized, an inert material is

introd u c ed tha t is not affordable to growth of bacteria. This

process is to be done to the dentist's ability and to allow

he aling of the surrounding tissue , if necessary. The concept of

"best of the dentist's ability" would vary from dentist to

dentist, according to Dr. Weihe. Concerning the filling of the

canals to the point of the apex, there would be variation in the

judgm ent based upon the clinician. Dr. Weihe is aware of some

literature suggesting fill to the apex, some within a half -

millimeter of the apex, and some within two millimeters of the

apex. In his opinion the fill could be several millimeters

short of the ape x and still be a successful fill. In

determining the optimal apex fill and its attainment, Dr. Weihe

stated that the optimal clinical success occurs with the lack of

infection, lack of pain, and long - term use of the tooth, comfort

to the patient over a lo ng term, and the prospect of the

availability of the tooth to use as an abutment for a crown , a

bridge abutment or whatever is needed in restorative dentistry.

73 . Dr. Weihe believes that a radiograph is not the only

available tool to evaluate the adequ acy of a root canal. He

ind icated that the success of a root canal will tell with the

passage of time. Circumstances that develop after the

procedure, these considerations , in addition to the X - ray

findings, enter into the determin ation of the adequacy o f the

root canal performed.

74 . Dr. Weihe agreed that the best way to determine where

the optimal fil l has been achieved in a root canal treatment is

with a radiograph. Optimal length of the fill relates to the

position of the apex of the canal that ca nnot be seen on an X -

ray . An apex locator can be used as well . Files or reamers can

be used to make these determinations on optimal fill while the

patient is undergoing treatment. In his opinion an experien ced

operator, clinician, can sense the apex wit h his or her fingers

with the file in hand.

75 . To arrive at his opinion concerning Respondent's care

of Patient L.E., Dr. Weihe reviewed the charts and X - ray s

provided from Respondent, t he charts and X - ray s from Dr. Hines,

the deposition of Dr. Haer ing, the deposition of Patient L.E., a

deposition of Respondent and the in - hearing testimony of the

Patient L.E. Based upon this information , Dr. Weihe believes

that Respondent met the minimum standards of performance and

diagnosis and treatment when meas ured against generally

prevailing peer performance. This opinion applies to the

treatment and care rendered by Respondent on June 28, 2004, and

December 13, 2004, and any records and radiograph s maintained by

Respondent in treating Patient L.E.

76 . Bas ed upo n the postoperative radiograph from June 28,

2004, and the radiograph obtained on November 16, 2004,

Dr. Weihe believes that the canals were appropriately filled in

compliance with minimum standards of performance and diagnosis

and treatment , when me asured against generally prevailing peer

performance in the treatment Respondent provided Patient L.E.

77 . Dr. Weihe believes it was appropriate for Respondent

to retreat tooth number thirty - one in Patient L.E.

78 . Dr. Weihe's examination of the X - ray taken on

December 16, 2004, by Dr. Hines , does not lead him to the

conclusion that Respondent failed to meet minimum standards of

performance in diagnosis and treatment when measured against

generally prevailing peer performance.

79 . Dr. Weihe does not believe that it was inappropriate

to be g in the instrumentation of the canals in treatment of

Patient L.E. on December 13, 2004, and continuing that

instrumentation at a later time. To do so would not violate

performance standards in diagnosis and tre atment

measured against generally prev ailing peer performance.

8 0 . In Dr. Weihe's opinion a poorly obturated canal can

eventually result in pain.

81 . Having considered the expert opinion testimony by

Drs. Haering and Weihe, in relation to the allegations in the

Administrative Complaint , Dr. Haering's opinion is more

compelling. It is accepted to the extent that he expressed the

belief that Respondent had not met the minimum standards in

performance and diagnosis and treatment measured aga inst

generally prevailing peer performance. In particular, his

opinion that Respondent failed to completely obturate the canals

in tooth number thirty - one on June 28, 2004, is persuasive , as

is his opinion concerning the failures in the treatment provided

on December 13, 2004. In addition , Dr. Haering's opinion that

Respondent proceeded with the treatment of tooth number thirty -

one on July 6, 2004, without retreating the inadequately filled

root canal (s) is accepted. This determination is made in

deferen ce to the opinion that the fill in the root canal in

length compared to the apex in tooth number thirty - one missed

the acceptable approximation by a significant margin . A range

of 0.5 millimeters to 1 millimeter would have been acceptable.

A difference o f 5 millimeters is not acceptable in the view of

any witness . By contrast , Dr. Weihe's equivocal description of

what would be acceptable, awaiting the outcome where the patient

experienced difficulties , is unpersuasive. Finally, the remarks

by Dr. Hines that he found nothing about the treatment performed

by the Respondent that concerned him when he treated

Patient L.E. on December 16, 2004, was premised upon certain

assumptions about the arrangements between the patient and

Respondent concerning additiona l treatment by the Res pondent

that were not established in the facts. Moreover, the emphasis

placed by Dr. Hines was the more immediate concern for relieving

the patient's symptoms, something Responde nt had not d on e.

Dr. Haering's view point was based upo n a more detailed

assessment of Respondent's performance before the patient was

seen by Dr. Hines on December 16, 2004 .

Records Keeping

8 2 . The Administrative Complaint accuses Respondent of

failing to record that she had cemented the final crown or t he

date that it was cemented pertaining to tooth number thirty - one

after the June 28, 2004 root canal had been performed and/or

that Respondent failed to record what instrumentation took

place, how much longer the canals were instrumented or what was

remov ed when therapy was provided on December 13, 2004. I t has

not been found that the crown was cemented on tooth number

thirty - one after the June 28, 2004 procedure. Records on that

subject and the use of instrumentation, and how much longer the

canals were instrumented, taken to mean , in relation to the

length of the canals and what was removed during the therapy on

December 13, 2004, is not meaningful. 1/

CONCLUSIONS OF LAW

83 . The Division of Administrative Hearings has

jurisdictio n over the parties and the subject matter of this

proceeding in accordance with Sections 120.569, 120.57(1) and

456.073(5), Florida Statutes (2006).

84 . Respondent is a licensed dentist in Florida , license

number DN13321.

85 . Through the Administra tive Complaint, Respondent has

been accused 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 t o,

the undertaking of diagnosis and treatment

for which the dentist is n ot qualified by

training or experience or being guilty of

dental malpractice.

86 . The m anner of the alleged violation is that Respondent

fell bel ow the standard for performance in that :

a. Respondent failed to completely obturate

the canals of tooth number 31 on or about

June 28, 2004, and/or December 13, 2004;

b. Respondent proceeded to perform a

buildup on tooth number 31 before retreating

the inadequately filled root canal on or

about July 6, 2004;

c. Respondent seated a final crown on a

poorly filled root canal tooth number 31

after the June 28, 200 4 root canal;

d. Respondent failed to record that she

cemented the final crown on tooth number 31

after the June 28, 20 04 root canal and/or

e. Respondent failed to record what

instrumentation took place, how much longer

the canals were instrumented on what was

removed during root canal therapy on or

about December 13, 2004.

87 . As a consequence , Respo ndent is alleged to have

violated Section 4 66.028 (1)( x ), Florida Statutes (200 4 ), which

states in pertinent part:

(1) The following acts constitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2):

* * *

( x ) Being guilty of incomp etence 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 den tist is not

qualified by training or experience or being

guilty of dental malpractice. . . . 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 indemnit y being

paid, or any single indemnity paid in excess

of $25,000 in a judgment or settlement, as a

result of negligent conduct on the part of

the dentist.

88 . T his is a disciplinary case. For that reason

Respondent bears the burden of proof. That proof must be

sufficient to sustain the allegations in the Administrative

Complaint by clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

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

an d Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). The term

clear and convincing evidence is explained in the case In re:

Davey , 645 So. 2d 398 (Fla. 1994), quoting, with approval from

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

89 . The Administrative Complaint must provide reasonable

notice to Respondent of the conduct that would warrant the

imposition of discipline. See Cottrill v. Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996). Respondent w as

noticed concerni ng the care provided Patient L.E. in 2004. The

Administrative Complaint refers to Section 466.028(1)(x),

Florida Statutes (2004), pertaining to the standard of care . It

makes no mention of Section 466.028(1)(m), Florida Statutes

(2004) 2/ , concerning the records necessary to justify the

treatment of the patient.

9 0 . Any allegations concerning recordkeeping cannot

properly be subsumed within alleged violations associated with

Section 466.028(1)(x), Florida Statutes (2004). See Barr ,

supra . Therefore, P etitioner may not proceed against Respondent

for matters set forth in paragraphs 19d. and e. to the

Administrative Complaint accusing Respondent of failures in

recordkeeping.

91 . Given the penal nature of this case, Section

466.028(1 )(x), Florida Statut es (2004), ha s been strictly

constructed. Any ambiguity favors t he Respondent. See State v.

Pattishall , 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester

v. Department of Professional and Occupational Regulation, State

Board of Medical Examiners , 348 S o. 2d 923 (Fla. 1st DCA 1977).

92 . As referred to previously, the disciplin e that may be

imposed should Respondent be found in violation of Section

4 66 . 028 (1)( x ), Florida Statutes (200 4 ), is set forth in Section

456.072(2), Florida Statutes (200 4 ), whic h states:

(2) When the board . . . finds any person

guilty . . . of any grounds set forth in the

applicable practice act, . . . it may enter

an order imposing one or more of the

following penalties:

* * *

(b) Suspension or per manent revocation of a

license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings , restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing

more than a designated number of hours, or

any other restriction found to be necessary

for the protection of t he public health,

safety, and welfare.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense. If the violation is for

fraud or making a false or fraudulent

representation, the board, or the department

if there is no board, must impose a fine of

$10,000 per count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when ther e is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any term s which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accordance with s. 381.0261 for violations

regarding patient rights.

(i) Refund of fees billed and collected

from the patient or a third party on behalf

of the patient.

(j) Requirement that the practitioner

undergo remedial education.

In deter mining what action is appropriate,

the board, . . . must first consider what

sanctions are necessary to protect the

public or to compensate the patient. Only

after those sanctions have been imposed may

the disciplining authority consider and

include in th e order requirements designed

to rehabilitate the practitioner. All costs

associated with compliance with orders

issued under this subsection are the

obligation of the practitioner.

93 . Clear and convincing evidence was presented to show

that Responden t failed to appropriately obturate the canals on

tooth number thirty - one in Patient L.E. i n the procedure

performed on June 28, 2004. She then proceeded to restore the

tooth on July 6, 2004, without correcting the inadequate fill in

the root canal. On De cember 13 , 2004, when Patient L.E.

presented , the root canals were not adequately addresse d , such

as to provide relief from the discomfort that the patient was

experiencing at that time. Eventually the pain became extreme

within the three - da y period befor e the patient wa s see n by

Dr. Hines on December 16, 2004. If Respondent believed that the

patient was overly anxious on December 1 3 , 2004, as Respondent

claims, Respondent should have made the patient aware of the

potential consequence s of not completing the retrieval in the

root canals . Respondent neglected to do this , leaving matters

unresolved , to include , a specific appointment date for the

patient's return to finish the treatment.

94 . The circumstances on the several dates described lead

to the co nclusion that Respondent is guilty of incompetence or

negligence , by failing to meet the minimum standards in

performance and diagnosis and treatment when measured against

generally prevailing peer performance in violation of Section

466.028(1)(x), Flori da Statutes (2004).

95 . Florida Administrative Code Rule 64B5 - 13.005 in effect

at the time of the violation establishes disciplinary guidelines

for a violation of Section 466.028(1)(x), Florida Statutes

(2004). These guidelines are in addition to the au thority in

Section 456.072(2), Florida Statutes (2004).

96 . When discussing the disciplinary guidelines under the

aforementioned R ule t hey state:

64B 5 - 13.005 Disciplinary Guidelines

(1) Unless relevant mitigating factors are

demonstrated the Board s hall always impose a

reprimand and an administrative fine of

$10,000.00 per count or offense when

disciplining a licensee for any of the

disciplinary grounds listed in subsection

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

administrative fine is in additio n to the

penalties specified in subsections (2) and

(3) for each disciplinary ground. [ 3/ ]

* * *

(3) When the Board 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 disciplinary guidelines:

* * *

(bb) Being guilty of incompetence. The

usual action of the Board shall be to impose

a period of probation, restr iction 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.

. . .

97 . Florida Administrative Code Rule 64B5 - 13 .0 05(4) sets

forth factors of aggravation and mitigation where it states:

(4) Based upon consideration of aggravating

and mitigating factors, present in an

individual case, the Board may deviate from

the penalties recomm ended in subsections (2)

and (3) above. The Board shall consider as

aggravating or mitigating factors the

following:

(a) The danger to the public;

(b) The length of time since the violation;

(c) The number of times the licensee has

been previou sly dis ciplined by the Board ;

(d) The length of time the licensee has

practiced;

(e) The actual damage, physical or other -

wise, caused by the violation and the

reversibility of the damage;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of the penalty upon the

licensee's livelihood;

(h) Any efforts of rehabilitation by the

licensee;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by the licensee to correct or

stop the violation or re fusal by the

licensee to correct or stop violation;

(k) Related violations against the licensee

in another state including findings of guilt

or innocence, penalties imposed and

penalties served;

(l) Penalties imposed for related offenses

under subsec tions (2) and (3) above;

(m) Any other relevant mitigating or

aggravating factor under the circumstances.

98 . No danger was presented to the overall public by the

violation. It has been more than two years since the violation.

Respondent has not been previo usly disciplined by the Board , and

Respondent has practiced for more than a dozen years . There was

the need for additional treatment on Patient L.E. following

Respondent's care. The condition was not beyond reversal.

Matters of deterrence and the position o f the Respondent's

livelihood are considered in deciding the recommendation f o r

punishment . Respondent is by virtue of the circumstances

knowledgeable of the accusation, to include a formal hearing to

address the subject. Attempts to corre ct the problem pertaining

to potential harm to other patients was not described. It is

not assumed that there were additional problems with other

patients of a similar nature. There are no related violations

in another state.

RECOMMENDATION

Bas ed upon the findings of facts and the conclusions, it is

RECOMMENDED:

That a final order be entered finding Respondent in

violation of Section 4 66.028 (1)( x ), Florida Statutes (200 4 ),

issuing a letter of reprimand, imposing an administrative fine

of $5,0 00.00, and requiring Respondent to undergo additional

training pertaining to endodon t ic treatment of patients , to be

completed within one year and restricting Respondent from

providing endodon t ic treatment until that training has been

completed.

DONE AND ENTERED this 22nd day of June , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 22nd day of June , 200 7 .

ENDNOTE S

1/ This case involves a n alleged violation of standard of care

under Section 466.028(1)(x), Florida Statutes (2004). It is not

a documentation case under Section 466.028(1)(m), Florida

Statutes (2004). For that reason problems associated with

documentation may not be consider ed. See Barr v. Department of

Health, Board of Dentistry , 32 Fla. L. WeeklyD923, 1st DCA of

Fla., opinion filed April 11, 2007.

2/ (1) The following acts constitute grounds for . . .

disciplinary action, as specified in s. 456.072(2):

* * *

(m) Failing to keep written dental records

and medical history records justifying the

course of treatment of the patient

including, but not limited to, patient

histories, examination results, test

results, and X rays, if taken.

3/ At present , under Florida Administrative Code Rule 64B5 -

13.005(1)(x), the administrative fine ranges from $500 to $8,000

for a first offense.

COPIES FURNISHED :

Jamie Ito, Esquire

Wayne Mitchell, Esquire

Department of Health

4052 Ba ld Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Mary K. Simpson, Esquire

Katherine B. Chapman, Esquire

Guilday, Tucker, Swartz & Simpson, P.A.

1983 Centre Point Boulevard, Suite 200

Tallahassee, Florida 32308

Susan Foster, Executive Direc tor

Board of Dentistry

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

De partment of Health

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the final order in this case.