11-004506PL Department Of Health, Board Of Dentistry vs. Richard Moffett, Dmd Status: Closed Recommended Order on Tuesday, January 31, 2012.

Summary: Petitioner did not prove by clear and convincing evidence that Respondent violated the standard of care with respect to his care and treatment of C.M. Recommend dismissal of Amended Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 11 - 4506PL

)

RICHARD MOFFETT, DMD, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 21, 2011 , a duly - noticed hea ring was held by

video conference with sites in Gainesville and Tallahassee,

Florida , before Lisa Shearer Nelson , an Administrative Law Judge

assigned by the Division of Administrative Hearings .

APPEARANCES

For Petitioner: Geoffrey F. Rice, Esquire

Wayne Mitchell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: William M. Furlow, Esquire

Grossman, Furlow and Bayo, LLC

2022 Raymond Diehl Road, Suite 2

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent

committed a violation of section 466.028(1)(x), Florida Statutes

(2002 - 2004) 1/ , as alleged in the Administrative Complaint, and if

so, what penalty should be imposed?

PRELIMINARY STATEMENT

On November 7, 2008, the De partment of Health (Petitioner

or the Department) filed an Administrative Complaint against

Respondent, Richard Moffett, D.M.D. (Respondent or Dr. Moffett),

alleging that he violated section 466.02 8(1)(x), Florida

Statutes (2002 - 2004), with respect to his care and treatment of

patient C.D. Specifically, the Administrative Complaint alleges

that Respondent failed to meet the minimum standards of

performance in diagnosis and treatment when measured against

generally prevailing peer performance by failing to treat C.D.'s

periodontal problems prior to fabricating the fixed bridge for

teeth numbers 18 - 20, and failed to treat carious areas in C.D.'s

mouth prior to preparing the patient's teeth for a bridge.

Respondent disputed the allegations in the Administrati ve

Complaint and requested a hearing pursuant to section 120.57(1),

Florida Statutes. On September 6, 2011, the case was referred

to the Division of Administrative Hearings for assignment of an

administrative law judge.

A Notice of Hearing was issued Sep tember 20, 2011,

scheduling the hearing to commence on November 21, 2011. On

October 19, 2011, Petitioner moved to amend the Administrative

Complaint, and pursuant to an Order dated November 3, 2011, an

Amended Administrative Complaint was filed with the Division.

The Amended Administrative Complaint corrected minor errors but

did not change or add to the statutory allegations charged in

the original Administrative Complaint.

Prior to the hearing, the parties filed a Joint Prehearing

Stipulation containi ng several stipulated facts for which no

evidence at hearing was required. To the extent relevant, those

facts have been incorporated into the findings of fact below.

The hearing proceeded as noticed. At hearing, Joint

Exhibits 1 - 3 were admitted into ev idence. Petitioner presented

the testimony of Respondent and James Jackson, D.M.D ., and

P etitioner's E xhibits 1 - 7 and 9 were admitted into evidence.

Respondent presented the testimony of James Haddix, D.D.S., and

Respondent's Exhibits 1 - 4 were admitted.

The Transcript of the proceedings was filed with the

Division on December 12, 2011. Both parties timely filed

Proposed Recommended Orders, which have been carefully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the st ate agency charged with the

regulation of the practice of dentistry pursuant to section

20.43 and chapters 456 and 466, Florida Statutes.

2. Respondent, Richard Moffett, D.M.D., is a licensed

dentist in the state of Florida, having been issued license DN

10580. His current address of record is 1776 Tamiami Trail,

Venice, Florida 34293.

3. Respondent provided dental care and treatment to

Patient C.D. beginning on or about March 12, 2003.

4. On or about March 12, 2003, C.D. presented to

Respon dent as a new patient. Although there is some indication

that Respondent saw C.D. around 1990, there are no records

regarding any treatment rendered at that time, and any treatment

given in or around 1990 is not relevant to this proceeding.

5. The last t ime C.D. received actual treatment from

Respondent was September 15, 2003, although he provided her a

consultation on March 23, 2005.

6. C.D. presented to Respondent on March 12, 2003,

complaining of swelling and pain in the lower left side of her

mouth. C.D. signed a consent form indicating that she

understood that she was having an emergency examination

pertaining to an isolated problem, and she needed to return for

a full mouth examination. Respondent diagnosed an abscess on

tooth number 29 and recomm ended either extraction or root canal

treatment. He began root canal treatment , for which C.D. signed

a consent form. The root canal was completed on March 20, 2003 .

7 . On March 20, 2003, C.D. returned to Respondent's

office, and Respondent conducted a comprehensive evaluation and

took x - rays of C.D.'s mouth. As part of his evaluation

Respondent performed periodontal pocket depth probing and

charted the results. C.D. had a probing depth range from 3mm to

7mm. Readings over 3mm are an indication of p eriodontal

disease.

8. C.D. did not present as an average patient. The

problems existing in her mouth at the time of the comprehensive

exam included missing teeth, widespread decay, a TMJ problem,

and periodontal disease. Specifically, C.D. had moderate to

advanced periodontal disease, and caries (areas of decay) at

teeth numbers 2, 3, 11, 14, 18, 20, 21 and 22 and perhaps

others .

9 . At the March 20, 2003 visit, Respondent finished the

root canal for tooth number 29 and focused on the problems

identif ied in the lower left quadrant of her mouth , because that

was the area that was bothering her . Tooth number 19 was

missing, and tooth number 14, positioned over tooth number 19,

had moved down into the space where tooth number 19 should have

been. Tooth 18 was tipped forward into the space that should

have housed tooth 19, and tooth 20 had broken off at the gum

line from the constant impact from tooth 14, above it. C.D. had

TMJ issues on the left side of her mouth, and teeth 20 and 21

had cavities as wel l.

10. At this visit, Respondent proposed a treatment plan to

C.D. that included a bridge spanning teeth numbers 18 - 20 and a

bridge spanning teeth numbers 29 - 31. He advised C.D. regarding

what was needed; and that crowns alone on teeth 20 and 21 would

no t suffice, and that temporary crowns would break down. He

also, however, recommended gross debridement, root planing and

curettage, which are methods of cleaning the teeth and providing

periodontal treatment.

11. As is discussed more fully below, C.D. did not follow

Dr. Moffett's recommendations regarding any sort of periodontal

treatment or even basic dental hygiene. C.D. had not had her

teeth cleaned since at least 1989. She claimed that prior to

1990, the dentist she saw, as opposed to staff within the

dentist's office, had cleaned her teeth twice a year ; that her

routine of brushing, using a Sonicare and Water - Pic w as

sufficient; and that she saw little problem with her dental

hygiene. She admitted to shaving ten years off of her age in

her medica l records, but did not consider recording her birth

date at 1947 (as opposed to 1937) to be a lie. C.D.'s

testimony , provided by deposition, was less then credible.

1 2 . On April 2, 2003, Respondent examined tooth number 29,

prepared it for a crown and re viewed the treatment plan with

C.D.

1 3 . On May 27, 2003, C.D. returned to Respondent's office

for a previously scheduled visit. At that time, C.D.'s chief

complaint was that teeth 20 and 21 were bothering her.

Respondent noted that C.D.'s bite was sligh tly sensitive at

tooth number 29. Respondent indicated that teeth numbers 20 and

21 were scheduled for restorations at C.D.'s next visit, and

that Respondent would re - evaluate tooth number 29 for possible

fracture in three months. Respondent's treatment notes for this

day state: "wants to start with #20, 6/9 @10am, Just Lower Left

right now. " C.D.'s patient records for this date also indicate

the need for gross debridement and oral hygiene instruction.

1 4 . On June 9, 2003, C.D. presented to Responden t for

treatment, and Respondent prepared teeth numbers 20 and 21 for

crowns , which included addressing the caries for those teeth .

Respondent placed a temporary crown on tooth number 20 and/or

21. For the next visit, Respondent noted the need for "prophy

OHI (oral hygiene instruction) ASAP." Although scheduled for

July 8, 2003, C.D. did not present for teeth cleaning, gross

debridement, or root planning, all procedures recommended by

Dr. Moffett, at any time during his treatment of her.

1 5 . On July 8, 2 003, Respondent reviewed C.D.'s treatment

plan regarding the bridge for teeth 18 - 20 . He again noted the

need for oral hygiene instruction as soon as possible. Notes

regarding plans for the next visit state the following:

1. Adjust occlusal length of 14

- Prep/buildup 18

- impress 18/20 bridge, 21 crown

- bond 23, 26

- redo 24/25 crowns?

- review treatment needs per treatment plan 3,2,4, 5?

2. -- prophy/ASAP/OHI

1 6 . On August 14, 2003, C.D. presented for treatment, and

Respondent reduced the occlusion for t ooth 14, addressed the

deep caries on tooth 18 and performed the buildup and

preparation for that tooth. He also took alginate impressions

for a temporary bridge.

1 7 . On September 3, 2003, it appears that Respondent

seated the temporary bridge for teet h numbers 18 - 20. Respondent

also to ok impressions for fabricating a permanent bridge.

Although Respondent sent the mold to the laboratory to create

the denta l models for a permanent bridge, no permanent bridge

was ever seated.

1 8 . Respondent's office ch arged C.D. and her insurance

company for a permanent bridge. C.D. brought the charge to his

attention several years later, and he refunded the insurance

company the difference between the cost of a permanent bridge

and a temporary bridge, adjusted charges for permanent crowns to

temporary crowns, and deleted existing interest charges on her

account. 2 /

1 9 . On September 15, 2003, C.D. presented to Respondent

for treatment . At this visit, C.D. told Respondent that she

wanted to conserve treatment within in surance coverage limits,

and wanted fillings as opposed to crowns , or temporary crowns

only. Respondent reviewed her treatment needs with C.D., and

advised that he did not think teeth numbered 4 and 5, which were

scheduled for restoration, were structural ly sound enough to

support fillings. At the patient's request, Respondent placed

new fi llings in teeth numbers 4 and 5 instead of crowning them.

20 . The patient note for the September 15, 2003 , visit,

consis tent with prior notes, indicated the need for g ross

debridement and root planing. There is also a note for a

referral for periodontal surgery.

2 1 . On October 30, 2003, C.D. received a letter from

Sherri Moffett, who served as the bookkeeper for the office,

regarding her outstanding balance. T he letter stated in part,

"we are working with the laboratory to complete your crown and

bridge work in the next few weeks." Ms. Moffett, however, did

not testify and Dr. Moffett neither wrote nor knew about the

letter. The statements contained in the le tter provide no

persuasive information regarding Dr. Moffett's intentions fo r

C.D.'s course of treatment, or whether he would have placed the

permanent bridge before the patient's periodontal condition was

addressed.

2 2 . C.D. did not return to see Respond ent again until

March 23, 2005 . At that time, she wanted a new temporary crown

for tooth number 29. Respondent advised her she needed a

permanent crown on the tooth, which she did not choose to have .

2 3 . The Department presented the testimony of James W.

Jackson, D.D.S. Dr. Jackson graduated from Northwestern

University Dental S chool and was in private dental practice in

Clearwater, Florida, from 1966 to 2009. Since that time,

Dr. Jackson has volunteered weekly at a local dental clinic.

Dr. Jackson' s primary concern was that it did not appear to him

that Respondent had ever presented to C.D. a treatment plan

addressing all of her dental situation, with options of treating

those disease processes, and the fees involved for the options

presented. 3 / He also took issue with Respondent beginning the

fabrication of the fixed bridge and the crown on the lower left

side before any of the periodontal disease and active decay

processes were resolved.

2 4 . Dr. Jackson opined that the proper sequence of dental

t reatment is 1) to get to know the patient; 2) if the patient is

in pain, to do whatever is necessary to alleviate the pain;

3) to perform an examination if the patient is to become a

patient of record; 4) to make a diagnoses from the examination

to det ermine what difficulties are present for the patient; and

5) propose a treatment plan to the patient and decide with the

patient how to proceed. In addition to his criticism that

Respondent did not present a comprehensive treatment plan, he

opined that it was improper to begin a permanent bridge for C.D.

without first addressing her periodontal disease and addressing

the caries in her mouth.

2 5 . Respondent presented the expert testimony of Dr. James

E. Haddix, D.M.D. Dr. Haddix graduated from the Univers ity of

Florida College of Dentistry in 1977, and has been licensed in

Florida since 1978. He has served on the faculty of the College

of Dentistry since 1991, and is currently an associate professor

and assistant dean for continuing dental education, and director

of the comprehensive dentistry continuing education program.

Dr. Haddix continues to practice dentistry through the

University's Academic Enrichment Fund, which is a faculty

practice clinic.

2 6 . In Dr. Haddix's opinion, Respondent did not fail t o

meet the appropriate standard of care. He did not believe that

stabilizing an area of the mouth with a temporary bridge falls

below the standard of care, and in his words, "you have to start

somewhere, and he started in the area of the patient's chief

c omplaint." Dr. Haddix also stated that a dentist cannot treat

all areas of the mouth simultaneously, and it was permissible

for him to treat one quadrant of the mouth at a time.

Dr. Haddix's opinion did not change in light of the fact that

D r. Moffett to ok impressions for a permanent bridge.

2 7 . Dr. Moffett testified that he agreed that the

periodontal disease in C.D.'s mouth needed to be treated before

a permanent bridge could be placed. He consistently recommended

periodontal treatment in the form o f gross debridement, followed

by root planing as necessary as a part of his treatment plan,

and the patient continued to put if off. He testified that he

planned to keep C.D. in the temporary bridge as long as

necessary to stabilize her occlusion and her TMJ, and to address

to the periodontal issues. If the patient continued to refuse

to address the periodontal issues, then he would not have placed

the permanent bridge, and ultimately did not do so.

2 8 . Dr. Moffett acknowledged that there was a good cha nce

that once the periodontal treatment was completed and the TMJ

addressed, new impressions would have to be taken for the

permanent bridge, but testified that it was his policy not to

charge the patient if a new impression was required. He agreed

in pri ncipl e with the sequence of treatment advocated by

Dr. Jackson, but stated that his treatment was consistent with

that sequence in that his stabilization of the lower left

quadrant was designed to address her area of pain.

2 9 . After careful review of all of the evidence presented,

the testimony of Dr. Moffett and Dr. Haddix is credited, and it

is found that Dr. Moffett's treatment of patient C.D. did not

fail to meet the minimum standards of performance in diagnosis

and treatment when measured against gene rally prevailing peer

performance .

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1),

Florida Statutes (2011) .

31 . This is a proceeding to take disciplinary action

against Respondent's license to practice as a dentist . Because

of the penal nature of these proceedings, the Department has the

burden of proving the allegations in the Amended Administrative

Complaint by c lear and convincing evidence. Dep't of Banking

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

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). As stated by

the Supreme Court of Florida,

Clear and convincing evidence requires that

the evid ence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), ( quoting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ) .

32 . Moreover, in disciplinary proceedings, the statutes

and rules for which a violation is alleged must be strictly

construed in favor of Respondent. Elmariah v. Dep't of Prof'l

Reg. , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of

Prof'l Reg. , 534 So . 2d 782, 784 (Fla. 1st DCA 1988).

33 . Respondent is charged with violating section

466.028(1)(x), which provides in pertinent part:

( 1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

( 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. . . .

34 . Section 466.003(3) provides the following definition

for the practice of dentistry:

(3) "Dent istry" means the healing art which

is concerned with the examination,

diagnosis, treatment planning, and care of

conditions within the human oral cavity and

its adjacent tissues and structures. It

includes the performance or attempted

performance of any d ental operation, or oral

or oral - maxillofacial surgery and any

procedures adjunct thereto, including

physical evaluation directly related to such

operation or surgery pursuant to hospital

rules and regulations. It also includes

dental service of any kind gratuitously or

for any remuneration paid, or to be paid,

directly or indirectly, to any person or

agency. The term "dentistry" shall also

include the following:

(a) The taking of an impression of the

human tooth, teeth, or jaws directly or

indirectly and by any means or method.

(b) Supplying artificial substitutes for

the natural teeth or furnishing, supplying,

constructing, reproducing, or repairing any

prosthetic denture, bridge, appliance, or

any other structure designed to be worn in

the human m outh except on the written work

order of a duly licensed dentist.

(c) The placing of an appliance or

structure in the human mouth or the

adjusting or attempting to adjust the same.

(d) Delivering the same to any person other

than the dentist upon who se work order the

work was performed.

(e) Professing to the public by any method

to furnish, supply, construct, reproduce, or

repair any prosthetic denture, bridge,

appliance, or other structure designed to be

worn in the human mouth.

(f) Diagnosing, prescribing, or treating or

professing to diagnose, prescribe, or treat

disease, pain, deformity, deficiency,

injury, or physical condition of the human

teeth or jaws or oral - maxillofacial region.

(g) Extracting or attempting to extract

human teeth.

(h) Correcting or attempting to correct

malformations of teeth or of jaws.

(i) Repairing or attempting to repair

cavities in the human teeth.

35. The Amended Administrative Complaint specifically

alleged that Respondent failed to meet the minimum s tandards of

performance in diagnosis and treatment when measured against

generally prevailing peer performance, and therefore violated

section 466.028(1)(x), by the following conduct:

a. The Respondent failed to treat Patient

C.D.'s periodontal problems p rior to

embarking upon the fabrication of a fixed

bridge treatment, from teeth numbers 18 - 20;

and/or

b. The Respondent failed to adequately

treat carious areas in Patient's mouth prior

to preparing the patient's teeth for bridge

restoration.

36. The D epartment did not prove the allegations in the

Amended Administrative Complaint by clear and convincing

evidence.

37. While Dr. Jackson was most concerned with the failure

to present an overall treatment plan, the Department did not

allege this potential deficiency in the Amended Administrative

Complaint. A licensee may only be disciplined for matters

alleged in the charging document. Trevisani v. Dep't of Health ,

908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep't of Health ,

714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep't of

Prof. Reg. , 563 So. 2d 805 (Fla. 1st DCA 1990).

38. It is undisputed that Respondent consistently

recommended periodontal treatment and oral hygiene instruction

for C.D., and did so before any impressions were made o f her

mouth. C.D. refused to follow these recommendations, and

Dr. Moffett's testimony that he would not have placed the bridge

until she completed periodontal treatment is persuasive.

3 9 . The more persuasive evidence also indicates that it is

permissib le to address one quadrant of the mouth at a time,

especially where, as was the case here, there were approximately

20 teeth with active decay. The Department did not present any

evidence to indicate that Respondent left carious teeth in the

lower - left qu adrant untreated.

40 . While the Department asked questions regarding general

standards in dentistry and asked Dr. Jackson his opinion about

the appropriateness of Respondent's conduct, it did not ask its

expert witness whether he had an opinion within a reasonable

degree of dental certainty whether Respondent failed to meet the

minimum standards of performance in diagnosis and treatment when

measured against generally prevailing peer performance, and if

so, the substance of his opinion. Without these que stions and a

stated opinion that Respondent's conduct violated this standard,

the undersigned cannot find a violation by clear and convincing

evidence. Even assuming the question had been asked, however,

the more persuasive evidence was that Respondent di d not violate

the appropriate standard of care.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED that the Florida Board of Dentistry enter a

Final Order dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 31s t day of January, 2012, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31s t day of January, 2012.

ENDNOTE S

1/ The relevant provisions of Sect ion 466.028(1)(x) are the same

for this period of time.

2/ Respondent was not charged with any purported improprieties

with regard to charges related to services provided to C.D.

3/ Respondent was not charged with failing to present an overall

treatm ent plan.

COPIES FURNISHED:

William M. Furlow, III, Esquire

Grossman, Furlow and Bayo, LLC

2022 Raymond Diehl Road, Suite 2

Tallahassee, Florida 32308

Geoffrey Frederick Rice, Esquire

Wayne Mitchell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Susan Foster, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399 - 3258

Nicholas W. Romanello, General Counsel

Department of Health

4052 Bald Cyp ress Way, Bin A02

Tallahassee, Florida 32399 - 1703

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. An y exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.