07-001746PL Department Of Health, Board Of Dentistry vs. Jeffrey Siegel, D.D.S. Status: Closed Recommended Order on Friday, August 31, 2007.

Summary: Petitioner failed to prove that Respondent departed from the applicable standard of performance in the preparation of crowns with defective distal margins because he had not finished the work, even though he permanently cemented them.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 07 - 1746PL

)

JEFFREY SIEGEL, D.D.S., )

)

Respondent. )

________________________________)

RECO MMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in West

Palm Beach, Florida, on July 17, 2007.

APPEARANCES

For Petitioner: Wayne Mitchell , Esquire

Depa rtment of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Dominick J. Graziano , Esquire

Erin M. O'Toole , Esquire

Bush , Grazia no & Rice, P.A.

Post Office Box 3423

Tampa, Florida 33601

STATEMENT OF THE ISSUE S

The issue s are whether Respondent is guilty of failing to

practice dentistry in accordance with the applicable standard of

perf ormance and, if so, what penalty should be imposed .

PRELIMINARY STATEMENT

By Administrative Complaint filed February 28, 2005,

Petitioner alleged that Respondent treated C. J. from June 23,

199 9, through August 15, 2002. The Administrative Complaint

all eges that C. J. visited Respondent's office on September 26,

2002, but he did not treat her on that date.

The Administrative Complaint alleges that, on July 10,

2002, Respondent performed a scale and root plane of the lower

left quadrant of C. J.'s mouth. He also allegedly debrided the

lo wer left quadrant with irrigation using P eridex ® .

The Administrative Complaint alleges that, on July 17,

2002, Respondent prepared teeth numbers 14, 18, and 19 for

eventual crown placement, took impressions, and placed temporary

crowns. He also allegedly scaled and root planed the upper left

qua drant by using irrigation with P eri dex ® .

The Administrative Complaint alleges that, on July 23,

2002, Respondent performed a scale and root plan e of the lower

right quadrant of C. J.'s mouth with irrigation using P eridex ® .

He also allegedly prepared teeth numbers 3 and 30 for eventual

permanent crown placement , took impressions, and placed

temporary c rowns. Respondent allegedly removed the temporary

crowns on teeth number 18 a nd 19, made adjustments, and cemented

the temporary crowns back in to place after irrigating with

P eridex ® .

The Administrative Complaint alleges that, on or about

August 15, 2002, Respondent cemented the permanent crowns on

teeth numbers 3, 14, 18, 19, and 30.

The Administrative Complaint alleges that full radiographs

reveal ed defective crown restorations of teeth numbers 3, 14,

and 18. These crowns allegedly exhibit ed open margins, as

disclosed in the periapical and bitewing radiographic view,

evidence o f a clinical result below the minimum standard of

care. The Administrative Complaint alleges that the appropriate

clinical procedure is to check marginal integrity clinically and

radiographically prior to cementing the restorations.

The Administrative Co mplaint alleges that Respondent

performed periodontal treatments on C. J. on July 12 and 23,

2002. During the office visits on these dates, Respondent

allegedly took final impressions for fixed prosthetics for C. J.

The Administrative Complaint alleges t hat Respondent did not

meet the applicable stand ard of care because he performed

periodontal treatment on the same day that he took the

impressions for fixed prosthetics , which precluded the

achievement of proper tissue resolution and periodontal health

pr ior to the taking of the impressions .

The Administrative Complaint alleges that Section

466.028(1)(x), Florida Statutes, states that the Board of

Dentistry may impose discipline if a dentist is guilty of dental

malpractice or incompetence or negligence by failing to meet the

minimum standards of performance in diagnosis and treatment when

measured against generally prevailing peer performance,

including the undertaking of diagnosis and treatment for which

the dentist is not qualified by training or experie nce.

The Administrative Complaint states that Respondent failed

to meet the minimum applicable standard of performance : 1) by

performing defective crown restoration on teeth numbers 3, 14,

and 18, as evidenced by the open margins at the distal area of

e ach restored crown; 2) by breaching proper clinical procedure

by failing to check marginal integrity clinically and

radiographically prior to cementing the restorations; and 3) by

performing periodontal treatments and taking final impressions

for fixed pro sthetics on the same visits, thus not allowing the

healing of tissue and recovery of periodontal health prior to

taking the final impressions.

At the hearing, Petitioner called two witnesses and offered

into evidence ten exhibits : Petitioner Exhibits 1 - 1 0 .

Respondent called two witnesses and offered into evidence three

exhibits : Respondent Exhibits 1 - 3 . All exhibits were admitted

except Petitioner Exhibits 4, 9, and 10, which were prof fe red .

The court reporter filed the transcript on July 30, 2007 .

T he parties filed their P roposed R ecommended O rders by August 9,

2007.

Two evidentiary disputes arose after the hearing. On

August 6, 2007, Respondent filed a Motion to Strike Proferred

[sic] Testimony of Miguel Montilla, D.D.S. and Boca Dental

Records. On August 7, 2007, Petitioner filed its Response to

Respondent's Motion to Strike Proffered Testimony of Miguel

Montilla, D.D.S. and Boca Dental Records. These are Petitioner

Exhibits 9 and 10, which were accepted as a proffer only after

the Administrativ e Law Judge sustained Respondent's evidentiary

objections to these documents. For this reaso n , Respondent's

motion to strike is denied.

On August 6, 2007, Petitioner filed its Notice of Filing

Redacted Reports of Robert W. Shippee, D.D.S. On August 7,

2 007, Respondent filed his Motion to Strike Redacted Reports of

R obert W . Shippee, D.D.S. The motion complains that Petitioner

was to have redacted the portions of the expert witness's report

that discussed matters outside of the four corners of the

Admini strative Complaint, but Petitioner failed to provide

Respondent a copy of the proposed redacted report for

examination and comment prior to filing it. At the hearing, the

Administrative Law Judge accepted an unredacted version of

Petitioner Exhibit 8, whi ch is the exhibit at issue in the

motion to strike. At this point, it is necessary to reject the

late - filed exhibit and rely on the exhibit filed at the hearing,

understanding that its admission does not enlarge the issues

raised in the Administrative Com plaint. For this reason,

Respondent's motion to strike is granted .

FINDINGS OF FACT

1. Respondent has been licensed to practice dentistry in

Florida since 1984. He practices prosthodontics in a general

dentistry practice. Respondent has been discipline d three

times .

2. Pursuant to a stipulation, in which Respondent neither

admitted nor denied the underlying allegations, Respondent

agreed to a reprimand, two years' probation, 30 hours of

continuing education in endodontics, 30 hours of continuing

educat ion in crown and bridge work, 15 hours of continuing

education in risk management, and $6000 in costs, as reflected

by a Final Order entered November 2, 1995. The underlying

Administrative Complaint alleged that Respondent had failed to

meet the minimum s tandard of performance by failing to take

post - operative radiographs following a root canal and had failed

to keep adequate dental records.

3. Pursuant to a stipulation, in which Respondent neither

admitted nor denied the underlying allegations, Responden t

agreed to a reprimand, one year's probation, 15 hours of

continuing education in removable prosthodontics, and $1500 in

costs, as reflected by a Final Order entered April 1, 1997. The

underlying Administrative Complaint alleged that Respondent had

faile d to meet the minimum standard of performance in preparing

and fitting dentures.

4. Pursuant to a stipulation, in which Respondent admitted

the underlying alleg ations, Respondent agreed to an

administrative fine of $3000, 14 hours of continuing educatio n

in crown and bridge work, and $926.53 in costs, as reflected by

a Final Order entered July 27, 2000. The underlying

Administrative Complaint alleged that Respondent had failed to

meet the minimum standard of performance in fitting a bridge and

crown.

5. C. J. underwent a course of treatment with Respondent

during the summer of 2002 after taking her son to Respondent for

dental work for a couple of years. As a patient, C. J. first

visited Respondent on June 23, 1999 , complaining of bleeding

gums and noc turnal teeth grinding . After examination,

Respondent advised C. J. that her dental health was poor and

recommended a course of periodontal treatment that would cost

nearly $5000 . C. J. declined to commence treatment at that time

due to a lack of funds.

6 . C. J. next saw Respondent on July 9, 2001. At this

time, she was complaining of pain in her jaw joint, which

clicked and popped on movement. Respondent discussed with C. J.

her ongoing dental needs, and C. J. said that she understood

that she needed t o undergo treatment. However, she could still

not afford to start extensive dental work, so she did not do so.

7. By the summer of 2002, C. J. realized that her dental

health required treatment at this time, so she borrowed some

money from a family membe r in order to undergo the dental work.

A teacher, C. J. wanted to complete the treatment during the

summer while she was not teaching , although the record does not

indicate whether this desire drove the treatment schedule .

8. Initially, C. J. visited R espondent in the summer of

2002 for treatment due to pain in tooth number 31. Respondent

referred her to an oral surgeon, who extracted the tooth , but an

ensuing secondary infection necessitated treatment by C. J.'s

primary care physician. This process c onsumed the first half of

the summer.

9. The treatment that is the subject of this case took

place over a five - week span in July and August 2002. On July

10, Respondent prepared two treatment plans for C. J. One plan

included crowns for teeth numbers 3, 14, 18, 19, and 30. ( The

other plan called for porcelain laminate veneers , which are not

at issue in this case . )

10. One of the three claims stated in the Administrative

Complaint states that Respondent left defective margins after

completing crown re storations of three teeth. A margin is where

the crown meets the tooth structure. Margins must be continuous

to promote dental health. The discontinuities in o pen or

defective margins may create a space or ledge where debris can

accumulate and cause dec ay or a roughened su rface that may

continually irrit ate surrounding gum tissue.

11. According to Petitioner's expert witness, Dr. Robert

W. Shippee, an open margin exists when the gap exceeds 50 - 150

microns. According to Dr. Ronald M. Fisher, an open m argin

exists when the gap exceeds 120 microns, "maybe a little more."

When he examined C. J., Dr. Fisher used an explorer whose width

permitted him to detect open margins of 100 microns or more .

Radiography does not reveal lingual and buccal margins, but does

reveal medial and d istal marg ins. Distal margins, which are

located on the tooth surface aligned toward the back, are also

revealed clinically by floss or explorers.

12. On July 10, Respondent's hygienist scaled and root

planed the teeth in the l ower left quadrant. She performed a

debridement of the lower left quadrant w ith irrigation using

P eridex ® . Respondent did not see C. J. during this visit.

13. On July 17, Respondent took impressions of teeth

numbers 14, 18, and 19 in order to prepare cr owns for these

teeth . Tooth number 14 is in the upper left quadrant, and teeth

numbers 18 and 19 are in the lower left quadrant. Mixing the

adhesive Durelon ™ with Vaseline petroleum jelly, so as to reduce

the adhesive force of this dental cement, Resp ond ent fitted

C. J . with temporary plastic crowns, noting that teeth numbers

14 and 19 had such deep decay that they might require root

canals. Following this work, the hygienist scaled and root

planed the teeth in the upper le ft quadrant and irrigated with

P eridex ® .

14. On July 23, the hygienist scaled and root planed the

teeth in the lower rig ht quadrant and irrigated with P eridex ® .

Following this work, Respondent examined C. J., who complained

of pain at teeth numbers 17 and 18, so Respondent removed the se

temporary crowns, adjusted at least one of them, and recemented

them with Durelon ™ and Vaseline petroleum jelly. His notes

raise the question whether tooth number 18, as well, might

require a root canal. During the same visit, Respondent took

impressi ons of teeth numbers 3 and 30 in order to prepare crowns

for these teeth. These teeth are in the upper right and lower

right quadrant s , respectively .

15. On July 24, Respondent's hygienist scaled and root

planed the teeth in the upper right quadrant an d irrigated with

Peridex ® . C. J. reported that she was still feeling pain in the

area of tooth number 17. (The dental records misreport this as

tooth number 32, but C. J. did not have tooth number 32.)

Respondent did not see C. J. during this visit.

16. On August 15, Respondent fitted C. J. with porcelain -

fused - to - metal crowns on teeth numbers 3, 14, 18, 19, and 30.

Respondent cemented these with Durelon ™ , but without the

Vaseline petroleum jelly. Respondent checked the crowns with an

explorer and was concerned about the margins. He directed his

staff to perform X - rays of the subject teeth, but, after trying

five times, C. J.'s gag reflex prevented staff from taking the

exposures. The dental records state that Respondent needs to

take this X - ray and check the margins next visit.

17. It is unclear why, but there were no more visits.

C. J. visited the office on August 26 to speak with the

receptionist about certain charges , but she was not examined or

treated by Respondent. C. J. claims that no one i n the office

gave her another appointment, but her recollection of events,

now five years past, was understandably imperfect. Clearly,

there had been some problems with charges, and the school year

had resumed. On these facts, it is impossible to hold

Re spondent responsible for the absence of a follow - up visit.

18. Dr. Shippee and Dr. Fisher agree on three things.

First, the dental work in this case was not of high quality.

Second, the margin left on tooth number 14 does not meet the

applicable stand ard of pe rformance imposed upon dentists, if

Respondent had completed treatment of the tooth. Third, it is

not always below the standard of performance for a dentist to

cement a permanent crown and later find a defective margin, as

long as the dentist cor rects his work.

19. It is relatively easy to resolve the claim in the

Administrative Complaint involving the sequence of periodontal

treatment and the taking of impressions. At the hearing,

Dr. Shippee admitted that it is not necessarily a departure fr om

the applicable standard of performance for a dentist to take

impressions and perform periodontal treatments, such as scaling

and planing, on the same visit. He testified that this was

acceptable practice if the dentist could still record the shape

of t he tooth accurately .

20. The Administrative Complaint does not clearly identify

the teeth to which this claim applies . The sequence of

periodontal treatment and the taking of impressions is as

follows: July 10 -- treatment of lower left quadrant; July 17 - -

impressions of teeth numbers 14 (upper left quadrant), 18 (lower

left quadrant), and 19 (lower left quadrant) followed by

treatment of upper left quadrant; July 23 -- treatment of lower

right quadrant followed by impressions of teeth numbers 3 (upper

right quadrant) and 30 (lower right quadrant); and

July 24 - treatment of upper right quadrant.

21. Th us, th e only impression s taken after periodontal

treatment are the impression s of teeth numbers 18 and 19, which

followed the ir periodontal work by a week, an d tooth number 30,

which took place a few minutes after its periodontal work.

Dr. Shippee misread the dental records when, in his report dated

May 20, 2006 (Petitioner Exhibit 6), he complained about the

performance of scaling and root planing on tooth nu mber 14 on

the same day that Respondent took an impression of this tooth.

He assumed that Respondent's hygienist had worked on the tooth

before Respondent did, but this is not the order shown in the

dental records. (The order in which information is reco rded in

the records reveals the order in which Respondent or the

hygienist performed services, when both persons worked on C. J.

on the sa me day.) Dr. Shippee's concern about trying to take a

good impression of a tooth amidst the bleeding associated with

scaling and planing is thus misplaced, at least as to tooth

number 14.

22. The Administrative Complaint implicitly precludes

consideration of teeth numbers 18 and 19 because the allegations

refer to taking the impressions on the same day as performing

the periodontal treatment. Any attempt to prove a departure

from the applicable standard of performance as to teeth numbers

18 and 19 , for which the impressions were taken one week after

treatment, would also have to overcome Dr. Shippee's statement,

in his May 20 report, that "at least" one week must separate the

scaling and planing from the taking of impressions. Absent any

other evidence indicating that the condition of C. J.'s gums

prevented Respondent from taking an accurate impression of teeth

numbers 18 and 19, Petitioner has failed to prove that the

sequence of procedures as to these teeth failed to meet the

applicable standard of performance.

23. As to tooth number 30, Petitioner omitted this tooth

from its allegations of defective margins, so, infe rentially,

the margins on tooth 30 were not defective. Likewis e,

immediately after discussing the work on tooth number 30,

Dr. Shippee's May 20 report finds that the margins on teeth

numbers 3, 14, 18, and 19 are defective. Again, inferentially,

the marg ins on tooth 30 were not defective. Most significantly,

at hearing, Dr. Shippee testified that Respondent affixed five

crowns and four had defective margins. Coupled with the

informa tion in his report, Dr. Shippee's testimony implies that

tooth number 30 had acceptable margins. As noted above,

Dr. Shippee conceded that it was permissible to take an

impression following periodontal work, as long as the impression

is accurate. It appears that is exactly what transpired as to

tooth number 30. Petitioner h as failed to prove that the

sequence of procedures as to this tooth failed to meet the

applicable standard of performance.

24. In his May 20 report, Dr. Shippee misstates that, on

July 23, the hygienist scaled and planed the teeth in the upper

right quadr ant. As noted above and as reflected clearly in the

dental records, this work was done on July 24, not July 23.

This misreading of the dental records may have contributed to

the focus of Dr. Shippee - and the Administrative Complaint -- on

tooth number 3 , wh ose margins Dr. Shippee found defective, even

though the procedures were performed in the proper order, rather

than tooth number 30, whose margins Dr. Shippee found

acceptable, even though the procedures were performed in reverse

order and only a few minut es apart.

25. It is also relatively easy to resolve the claim that

Respondent failed to check marginal integrity clinically and

radiographically prior to cementing the crowns. As was the case

with the preceding claim, however, t his clai m itself requires

analysis to understand its meaning . First, Dr. Shippee

testified at hearing that a dentist meets the applicable

standard of performance by checking the margins clinically or

radiographically -- not both, as alleged in the Administrative

Complaint. Second, the Administrative Complaint does not

qualify its reference to the cementing of the crowns, which

takes place with both the temporary and permanent crowns , but

the record reveals that this allegation clearly does not apply

to the cementing of temporary cro wns. So, this claim raises the

questions of whether Respondent clinically or radiographically

checked the margins prior to permanently cementing the crowns.

26. Respondent checked the margins clinically, with his

explorer, after cementing the porcelain - f used - to - metal crowns

into place. He tried to check the margins radiographically, but

the patient's admittedly "very nervous" condition , which

produced the gagging reflex, prevented staff from taking x - rays

at that time. However, the clinical check reveal ed to

Respondent that he needed to recheck these margins, clinically

and radiographically, at a subsequent visit, at which C. J.

might better tolerate the necessar y X - rays . Respondent could

reasonably have expected, at a subsequent visit, C. J. would not

gag over the X - rays because she had undergone these x - rays

previously in his office.

27. The question in this claim is thus reduced to whether

Respondent deviated from the applicable standard of performance

by cementing the porcelain - fused - to - metal crow ns prior to

checking the margins by either means. At the hearing,

Dr. Shippee conceded on cross - examination that it was not a

departure from the applicable standard of performance for a

dentist not to check margins radiographically prior to

permanently ce menting the crowns into place. He also conceded

that it would not be a departure from the applicable standard of

performance not to check the margins either way, if the dentist

were not using permanent cement.

28. Respondent seized upon this opportunity to claim that

his use of Durelon ™ revealed an intent to temporarily cement the

five crowns in place on August 15. This claim strains

credulity. Respondent weakened the Durelon ™ with Vaseline

petroleum jelly when applying temporary crowns, and there does

not seem to be a category of semi - permanent crowns that would

accommodate Respondent's argument that Durelon ™ without Vaseline

petroleum jelly was not a permanent adhesion. Also, whatever

else can be said of Respondent's dentistry, no one can argue

with t he durability of his cementing. The "temporary" adhesive

that he applied on August 15, 2002, remained in place, four

years later, when Dr. Shippee exam ined C. J . The evidence thus

establishes that Respondent intended to permanently cement the

crowns that he affixed on August 15, subject to one condition .

29. However, Respondent was prepared to remove the

"permanently" cemented crowns if the margins proved defective.

There was no other reason to note in his dental records of

August 15 the need to recheck the margins. Likew ise,

Dr. Shippee testified that, at some point over his long career,

he may have "permanently" set a crown with a defective margin,

and it would not have be en a departure from the standard of

performance to have discover ed the open marg in as much as two

years later -- as long as he then remove d the crown and replace d

it with a properly fitting one . Coupled with Dr. Shippee's

earlier concession that a dentist could permissibly permanently

cement a crown into place prior to checking the mar gins

radiographically, it is difficult to find a departure from the

applicable standard of performance by the sequence followed by

Respondent in this case in cementing the permanent crowns,

checking the margins, and noting the need to recheck the margins

a t a later visit .

30. On re - direct, Dr. Shippee reversed himself, again, and

testified that he would dry seat porcelain - fused - to - metal crowns

and, if he found defective margins, he would not permanently

cement them until he had replaced the defective cro wns.

However, this testimony was less convincing than his above -

described admissions on cross - examination , especially after

consideration of the testimony of Dr. Fisher . Dr. Fisher

testified that a dentist who "permanently" cements porcelain -

fused - to - met al crowns, knowing that the margins are defective,

does not deviate from the applicable standard of performance, as

long as he intends to use the "permanent" crowns as temporaries

and replace th em with properly fitting crowns at a subsequent

visit. Petiti oner has failed to prove that Respondent's

permanent cementing of the crowns into place, prior to checking

them clinically or radiographically, failed to meet the

applicable standard of performance, at least when he checked

them with an explorer immediatel y after cementing them and

documented the need to recheck the margins -- and, if necessary,

replace the crowns -- at a subsequent office visit.

31. The third claim is the most significant beca use, as

Dr. Shippee testified , "the margins are the real problem." On

this claim, the Administrative Complaint is clear: the distal

margins on teeth numbers 3, 14, and 18 are allegedly defective.

32. Dr. Fisher testified that the distal margin on tooth

number 14 is defective , and the crown needs to be replaced.

Howe ver, he found no defective margin on tooth number 18. He

evidently found a less serious defective margin on tooth number

3. Dr. Fisher testified that he found no evidence of decay on

any of these teeth. Although C. J. had evidence of gum

inflammation, D r. Fisher attributed that to the absence of a

cleaning over the preceding year. In contrast, Dr. Shippee

unequivocally found defective distal margins on all three

teeth - both clinically and radiographically. Dr. Shippee's

testimony is credited on this po int.

33. The record offers little support for any finding as to

why the margins are defective. Respondent sends his impressions

to a lab for the preparation of the crowns -- a pra ctice that

Dr. Shippee finds acceptable, even though he makes his own

crowns. The allegations imply a causal link between

Respondent's practice of taking impressions shortly after

periodontal work with the resulting defective margins. However,

the evidentiary record offers little support for this theory.

34. Due to his misreadin g of the dental records, as noted

above, Dr. Shippee erroneously concluded that Respondent took

the impressions of teeth numbers 3 and 14 shortly after his

hygienist scaled and planed these teeth. But the sequence of

these procedures was actually the reve rse of what Dr. Shippee

had found. On the other hand, Respondent took the impression of

tooth number 18 one week after the periodontal work to that

area, but the likelihood of an adverse result caused by this

sequence is diminished by two facts. First, D r. Shippee opined

that at least one week was necessary for the proper healing to

take place. Second, when Respondent actually took an impression

of one tooth -- tooth number 30 -- only a few minutes after the

periodontal work, the margins for this tooth were fine: this

was the only tooth with acceptable margins, and it was the only

tooth for which the impressions followed immediately upon the

completion of the periodontal work. This theory of causation

thus finds little support in the present record.

35. No twithstanding whether the defective margins on these

three teeth resulted from the poor workmanship of Respondent or

the lab, another issue emerges with respect to whether, on

August 15, Respondent was finished with his crown work on these

three teeth. A s noted with respect to the second claim

discussed immediately above , Respondent was not finished, and

the applicable standard of performance does not prohibit him

from continuing to service these teeth, at least for a

reasonable period past August 15, unt il he obtained a

satisfactory result.

36. In theory, the work could have been so deficient, as

of August 15, as to constitute a departure from the applicable

standard of performance, despite Respondent's intent to continue

to service these teeth. Howev er, Dr. Shippee's testimony does

not support this theory. In particular, the record is devoid of

evidence establishing how far a dentist's work must stray, in

terms of defective distal margins, before the applicable

standard of performance deprives him of a chance to fix his

work. Petitioner has failed to prove that, under the

circumstances, the crown restoration work, as of August 15, on

teeth numbers 3, 14, and 18 failed to meet the applicable

standard of performance due to the presence of defective mar gins

on the distal surfaces of these teeth.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1),

and 456.073(5), Fla. Stat. (2007).

38. Section 466.028(1)(x), Florida Statutes, a uthorizes

the Board of Dentistry to impose discipline for:

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.

39. Petitioner must prove the material allegations by

clear and convincing evidence. D epartment of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

40. For the reasons set forth above, Petitioner has failed

to prove any of the three claims set forth in the Administrative

Complaint.

RECOMMENDATION

It is

RECOMMENDED that the Board of Dentistry enter a final order

dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 31st day of August, 2007, in

Tallahassee, Leon County, Flori da.

S

___________________________________

ROBERT E. MEALE

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 (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of August, 2007.

COPIES FURNISHED:

Susan Foster, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, BIN C08

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahassee , Florida 32399 - 1701

Dominick J. Graziano, Esquire

Erin M. O'Toole, Esquire

Bush, Graziano & Rice, P. A.

Post Office Box 3423

Tampa, Florida 33601 - 3423

H. Wayne Mitchell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

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 must be filed with the agency that

will issue the final order in this case.