13-001164PL Department Of Health, Board Of Dentistry vs. Miranda Smith, D.D.S. Status: Closed Recommended Order on Monday, October 21, 2013.

Summary: Petitioner did not prove that Respondent violated the standard of care in diagnosis and treatment. Recommend dismissal.

Case No. 13-1164PL

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF DENTISTRY,

RECOMMENDED ORDER

Petitioner,

vs.

MIRANDA SMITH, D.D.S.,

Respondent.

/

Administrative Law Judge Lisa Shearer Nelson presided over

the section 120.57(1) hearing in this case on August 1, 2013, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Adrienne C. Rodgers, Esquire

Jack F. Wise, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Christopher C. Torres, Esquire

Casey and Torres, LLC

Suite 200

1240 Thomasville Road Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue to be determined in this proceeding is whether

Respondent violated section 466.028(1)(x), Florida Statutes

(2011), and if so, what penalty should be imposed for the

violation.

PRELIMINARY STATEMENT

On July 23, 2012, the Department of Health filed an

Administrative Complaint against Respondent, Miranda Smith,

D.D.S., alleging that she had violated section 466.028(1)(x), by

diagnosing caries and recommending fillings for one or more of

patient M.P.’s teeth, when there were no caries in the identified

teeth and the treatment plan was not appropriate. On August 16,

2012, Respondent disputed the facts alleged in the Administrative

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

Florida Statutes. On April 1, 2013, the matter was referred to

the Division of Administrative Hearings for assignment of an

administrative law judge.

The case originally was scheduled for hearing June 26, 2013.

At the request of Respondent, the matter was continued and

rescheduled for August 1, 2013, and proceeded as scheduled.

Prior to hearing, the parties submitted a Joint Pre-Trial

Statement, which included facts for which the parties stipulated

no evidence would be required at hearing. Where relevant, those

facts have been incorporated into this Recommended Order.

At hearing, Petitioner presented the testimony of Edward

Zapert, D.M.D., and Petitioner’s Exhibits numbered 1, 3, and 6

were admitted into evidence. Petitioner’s Exhibit 6 is the

deposition of Dr. Scott Wagner, and, consistent with the parties’

agreement, the record was left open for the original of the

deposition to be filed with the Division, and it was filed on

August 7, 2013. Respondent presented the testimony of Frank

Grimaldi, D.D.S., and Respondent’s Exhibit 1 was admitted into

evidence.

The Transcript of the hearing was filed with the Division on

August 23, 2013. At the request of Respondent, the time for

filing proposed recommended orders was extended to September 9,

2013, and both parties filed Proposed Recommended Orders on that

day. Both submissions have been carefully considered in the

preparation of this Recommended Order. All references to the

Florida Statutes are to the 2011 codification unless otherwise

otherwise indicated.

FINDINGS OF FACT

1. At all times relevant to the allegations in the

Administrative Complaint, Respondent was a licensed dentist in

the State of Florida, having been issued license number DN 15873.

2. Respondent’s address of record is 17020 County Line

Road, Spring Hill, Florida 34610.

3. At all times relevant to these proceedings, Respondent

operated a dental practice known as “Smiles and Giggles

Dentistry” in Spring Hill, Florida.

4. This case involves Respondent’s diagnosis and treatment

of a minor male, M.P., on or about April 26, 2010.

5. In order to understand the care and treatment given to

M.P., some definitions relative to the practice of dentistry are

in order. Dentists use different terms than laypersons to

describe the sides and top of a tooth when recording issues on a

patient’s chart (charting) regarding the patient’s teeth. For

example, the occlusal surface of the tooth is the biting surface,

and its abbreviation is “O.” The lingual surface is the side of

facial side of the tooth is the side next to the cheek, and is

tooth is the part of the tooth facing the back of the mouth and

is abbreviated “D,” and the mesial side is the front side of the

tooth, and is abbreviated “M.”

6. This case involves the diagnosis of caries, or what are

referred to by laymen as cavities. A caries is an area of the

tooth that has mineral loss from the production of bacteria. The

term “caries” can refer to a single cavity or multiple cavities.

7. An incipient caries is another term for an early lesion,

usually confined to the outer layer of the tooth, or the enamel.

8. Depending on the surface of the tooth, an incipient

caries can be seen upon visual inspection. If it is on the

distal or mesial surface, however, it is not always possible to

see incipient caries because the decay is usually blocked by

other structures.

9. Gross caries are large cavities that have taken away a

large amount of tooth structure, and can also usually be seen on

visual inspection. A “pit and fissure” caries is usually

confined to the occlusal, facial, or lingual sides of the tooth,

and consists of a groove, or pit, in the tooth.

10. Interproximal caries are cavities between the teeth

where the teeth touch. They are the most difficult to see upon

visual inspection, but are relatively easy to detect on X ray.

11. Diagnosing caries is a multi-step process. First, a

dentist conducts a visual examination of the patient, which may

include a tactile examination of the teeth. The visual

examination is then compared to X rays of the teeth.

12. Experts for both Petitioner and Respondent agree with

the American Dental Association (ADA) and the Food and Drug

Administration (FDA) statement that an individualized

radiographic examination should consist of posterior bitewings

with panoramic examination, or posterior bitewings and selected

periapical images, and that a full mouth intraoral examination is

preferred when the patient has clinical evidence of generalized

oral disease or a history of dental treatment. Both agreed that

this statement represents the minimum standard of care when

diagnosing and treating interproximal cavities.

13. Bitewing X rays are X rays taken in the posterior of

the mouth, and can be molar bite-wings or pre-molar bitewings.

The film or sensor is placed inside the mouth, and the X ray

machine is placed next to the head, on the cheek next to the

teeth where the film was placed. These X rays would be

considered intraoral X rays.

14. Some panoramic machines are also equipped to take

bitewing X rays. Panoramic X rays are considered to be extra-

oral images because nothing is placed in the mouth. Here, the

patient steps into the machine, bites on something in order to

hold his or her head in position, and then the X ray beam and the

sensor rotate around the patient’s head in a complete 360-degree

circle to obtain an image.

15. Because intraoral X rays are placed right next to the

teeth inside the patient’s mouth, the image only passes through

the cheek, gums, and bone. With a panoramic X ray, the receptor

is outside the mouth, and the X ray emitter has to go completely

through the opposite side of the skull and then come through to

the outside of the mouth to receive the image. As a result, the

panoramic X ray can have a lot of superimposition of structures

in the mouth.

16. According to Respondent’s patient records for M.P.,

when she examined him on April 26, 2010, she performed a

comprehensive oral evaluation and took a panoramic X ray, two

extraoral films, and four bitewing X rays.

17. Respondent diagnosed M.P. with caries on the distal and

occlusal surfaces of tooth number 20; caries on the distal and

occlusal surfaces of tooth number 28; caries on the mesial,

occlusal, and distal surfaces of tooth number 29; caries on the

occlusal and lingual surfaces of tooth number 14; and caries on

the occlusal and lingual surfaces of tooth number 15. Teeth

numbers 20, 28, and 29 were diagnosed with interproximal decay.

18. Dr. Smith’s records did not indicate what diagnostic

methods she used to diagnose the caries. The account history

reflects that comprehensive oral evaluation was conducted but no

note history was provided.

19. Respondent’s proposed treatment plan for M.P. listed

amalgam restorations for two surfaces for teeth 20 and 28;

amalgam restoration of three surfaces for tooth 29; resin-based

composite restoration for teeth 14 and 15; sealant for teeth 2,

3, 18, 19, 30, and 31; and resin-based restoration of one surface

for tooth 9.

20. G.P., M.P.’s guardian, 1/ was apparently displeased with

the amount of restorative work Respondent proposed. He did not

return to Respondent’s office for his next scheduled appointment.

Instead, G.P. took M.P. back to W. Scott Wagner, D.D.S., in

Jacksonville Beach, who had treated M.P. for approximately eight

years before he saw Respondent.

21. Dr. Wagner examined M.P. on May 17, 2010. He took

X rays of M.P.’s teeth, which included four bitewing X rays, and

performed a clinical examination. In his view, there was one

suspicious area on the distal of tooth number 20, but it was not

all the way through the dentin. Dr. Wagner decided that, in

light of M.P.’s history, he recommended monitoring the tooth and

having M.P. engage in better flossing and brushing with the goal

of remineralizing the tooth. He did not see any evidence of

interproximal caries other than tooth 20, and did not believe

that the area on the distal of tooth 20 was worth treating.

22. Dr. Wagner also recommended and applied preventative

resin restorations for several teeth, using a flowable composite.

Use of a flowable composite is considered a filling because only

a dentist, as opposed to a dental assistant, can perform the

procedure, but is in the nature of a sealant. Dr. Wagner prefers

a flowable composite over a traditional sealant because he

believes that the material in a sealant is not strong enough.

23. M.P. did not return to Dr. Wagner’s office after

May 17, 2010.

24. The Department presented the expert testimony of

Edward R. Zapert, D.M.D., to give his opinion as to whether

Respondent deviated from the minimum standards of performance in

diagnosis and treatment of M.P. Dr. Zapert is a dentist licensed

in Florida since 1983, having been issued license number DN 9761.

He is employed by the Department of Health in Leon County and his

practice focuses primarily on Medicaid-eligible children. He

treats all types of dental problems, from children with near-

perfect teeth to those with complex and advanced problems.

Dr. Zapert is a faculty member for the University of Florida and

is a member of the Florida Dental Association, the American

Dental Association, and the Leon County Dental Association. He

received his dental education at the University of Connecticut.

25. Dr. Zapert reviewed Dr. Smith’s dental records as well

as the X rays obtained by her. He also reviewed the X rays and

the deposition of the subsequent treating dentist, Dr. Wagner.

The records reviewed are the type of records upon which he would

customarily rely for forming an opinion regarding the standard of

care and were sufficient for him to form such an opinion.

26. Dr. Zapert did not believe that the X rays of teeth

numbers 20, 28, and 29 indicated any interproximal decay, and

Respondent’s records did not have any written notations on the

X rays. While the number of X rays taken was adequate, the

X rays were, in Dr. Zapert’s view, not of high quality.

Dr. Zapert opined that Dr. Smith’s diagnosis and recommended

treatment of interproximal caries was below minimum standards

because the X rays did not indicate the existence of

interproximal decay for these three teeth.

27. Dr. Zapert recognized that Dr. Smith did not actually

fill the teeth identified in the treatment plan because M.P.

never returned for his follow-up appointment. He also

acknowledged that in theory, it was possible that Dr. Smith could

change her treatment plan before executing it. However, these

factors did not change his view that a dentist should be

absolutely certain that there is decay before filling a tooth,

and that the X rays for teeth 20, 28, and 29 showed no evidence

of interproximal decay. Dr. Zapert also reviewed the X rays

taken by Dr. Wagner, and concluded that they also showed no

evidence of interproximal decay.

28. Respondent presented the testimony of Frank Grimaldi,

D.D.S. Dr. Grimaldi is a dentist licensed in the state of

California who has practiced dentistry since 1981. He graduated

first in his class from the dental school at University of

California, San Francisco, where he served on the faculty since

1983. Dr. Grimaldi was the director of the general practice

residency program, was a full clinical professor in addition to

having a private dental practice, and retired after 31 years at

the university last year. He continues to practice dentistry in

private practice, and still teaches at the university on a

limited basis.

29. Dr. Grimaldi reviewed the complete patient records of

M.P. from both Dr. Smith and Dr. Wagner, and has formed an

opinion as to whether Dr. Smith deviated from the standard of

care. In Dr. Grimaldi’s opinion, she did not.

30. Dr. Grimaldi opined that Dr. Smith met the standard of

care in the methods she used in her evaluation, in that it was

appropriate to collect a patient history, take bitewing X rays,

make a clinical examination, and form a treatment plan.

Dr. Grimaldi believes that an X ray exam alone does not provide a

full picture of what is going on in a patient’s mouth. He charts

everything that is suspicious that he sees when examining a

patient, and ultimately does not always treat everything that is

observed or charted. Accordingly, to Dr. Grimaldi, a treatment

plan may be modified right up to the point of time the dentist

executes the treatment.

31. Based upon his review of the X rays of both Dr. Smith

and Dr. Wagner, which he believed to be of “adequate” quality,

Dr. Grimaldi testified that there was incipient interproximal

decay on teeth 20, 28, and 29, and believes a diagnosis of

interproximal decay for all three teeth would have been

appropriate and within the standard of care. With respect to the

individual teeth, Dr. Grimaldi stated that he saw “clear darkness

in the area toward what we call the distal of number 29,” with

respect to tooth 20, “at the distal of number 20 . . . it shows

clearly darkness, although not as clear as 29, on its distal

surface,” and with respect to tooth 28, “it has a hint of some

darkness at the distal surface but not as much as the other two.”

(Transcript at 120-122).

32. Dr. Grimaldi was consistent in his characterization of

the condition of the three teeth, although he referred at least

once to the X rays as showing a “strong hint of demineralization

on the distal of 29, and the distal of 20, less so on the distal

of 28.” He acknowledged the difference in his opinion and

Dr. Zapert’s saying there is going to be variability among

practitioners caused by factors such as training and experience,

access at the time, lighting, the fatigue level of the

practitioner, and communication with staff while charting. He

emphasized that the X rays are only part of the diagnostic

process, and clinical examination of the patient is also

important.

33. In short, the patient in this case was seen by two

dentists and his X rays reviewed by four. With respect to tooth

20, Dr. Zapert found no evidence of interproximal decay,

Dr. Wagner saw one suspicious area on the distal surface of tooth

20 that should be monitored but not treated; Dr. Grimaldi saw a

“strong hint” of demineralization where tooth 20 touches tooth

19, and Dr. Smith diagnosed interproximal decay and recommended

an amalgam filling.

34. With respect to tooth 28, Drs. Zapert and Wagner saw no

evidence of interproximal decay, Dr. Grimaldi felt that there was

a suggestion of interproximal decay, although not as clear as the

other teeth at issue, and Dr. Smith diagnosed interproximal decay

and recommended amalgam fillings.

35. With respect to tooth 29, Drs. Zapert and Wagner saw no

evidence of interproximal decay, Dr. Grimaldi felt that was clear

evidence of interproximal decay (it being, in his opinion, the

worst of the three), and Dr. Smith diagnosed interproximal decay

and recommended amalgam fillings.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Florida

Statutes (2013).

37. 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 Administrative Complaint

by clear and convincing evidence. Dep't of Banking & 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 evidence 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)).

38. 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).

39. 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. . . .

40. The Administrative Complaint specifically alleged that

Respondent failed to meet the minimum standards 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 diagnosed caries in

Patient M.P.’s teeth, one or more of which

was an inappropriate diagnosis, as the

condition of Patient M.P.’s mouth did not

warrant said diagnosis; and/or

b) The Respondent treatment planned

fillings for Patient M.P.’s teeth, one or

more of which was inappropriate, as the

condition of Patient M.P.’s mouth did not

warrant said treatment.

41. The Department failed to prove the allegations by clear

and convincing evidence.

42. This is a case where the burden of proof determines the

outcome. The applicable burden requires the Department to prove

its case by clear and convincing evidence, an admittedly rigorous

standard. However, the evidence presented shows that two

different professionals examined this young man’s teeth and came

to different conclusions. Two additional highly respected and

credible professionals reviewed the X rays of both dentists and

came to different conclusions. Even assuming there was decay

present, there is no consensus among those who opined that caries

existed regarding which tooth was the most problematic. Under

these circumstances, there is not clear and convincing evidence of

a misdiagnosis.

43. Dr. Grimaldi explained the variations in opinion by

stating it is possible to have differing opinions among

practitioners, based on a variety of factors. This case clearly

illustrates that premise.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Dentistry enter a Final

Order dismissing the Administrative Complaint.

DONE AND ENTERED this 21st day of October, 2013, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of October, 2013.

ENDNOTE

1/ It is unclear from the record whether G.P. was M.P.’s father

or grandfather.

COPIES FURNISHED:

Christopher C. Torres, Esquire

Casey and Torres, LLC

Suite 200

1240 Thomasville Road

Tallahassee, Florida 32303-8707

Jack F. Wise, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Adrienne C. Rodgers, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Susan Foster, Executive Director

Department of Health

Division of Medical Quality Assurance

Boards/Councils/Commissions

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

Department 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.