13-001221PL Department Of Health, Board Of Dentistry vs. Miranda Smith, D.D.S. Status: Closed Recommended Order on Thursday, October 3, 2013.

Summary: Evidence fails to establish dentist violated standard of care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF DENTISTRY ,

Petitioner ,

vs. Case No. 13 - 1221PL

MIRANDA SMITH, D.D.S. ,

Respondent .

/

RECOMMENDED ORDER

A formal adm inistrative hearing in this case was held on

July 29, 201 3 , in Tallahassee , Florida , before William F.

Quattlebaum, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Adrienne C. Rodgers, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Christopher Claude Torres, Esquire

Casey and Torres, LLC

Suite 200

1240 Thomasville Road

Tallahassee, Florida 32303 - 8707

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations set forth

in the Amended Administrative Complaint filed by the Department

of Health, Board of Dentistry (Petitioner), against Miranda

Smith, D.D.S. (Respondent) , are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By an Amended Administrative Complaint dated April 8, 2013,

the Petitioner alleged that the Respondent violated provisions of

s ection 466.028, Florida Statutes (201 0 ). The Respondent denied

the al legations and requested an administrative hearing. The

Petitioner forwarded the request t o the Division of

Administrative Hearings which scheduled and conducted the

proceeding.

Prior to the hearing, the parties filed a Joint Pre - Hearing

Stipulation cont aining a statement of admitted facts that have

been incorporated herein as necessary. The Joint Pre - Hearing

Stipulation also included formal notice that the Petitioner had

withdrawn Count II of the Amended Administrative Complaint.

At the hearing, the P etitioner presented the testimony of

one witness and had Exhibits 1, 3, 4, 6 and 7 admitted into

evidence. The Respondent presented the testimony of two

witnesses and had one e xhibit admitted into evidence.

A T ranscript of the hearing was filed on Augus t 19, 2013.

Pursuant to the schedule adopted by the parties, proposed

recommended orders were filed on September 3, 2013.

FINDING S OF FACT

1. At all times relevant to this case, the Respondent was a

licensed dentist in the State of Florida, holding licen se

n o. DN 15873, with an address - of - record at 17020 County Line

Road, Spring Hill, Florida 34610, and operating a dental practice

identified as " Smiles and Giggles Dentistry. "

2. On August 23, 2011, the Respondent performed a dental

examination of S.W., a three - year - old female. This was S.W. ' s

first visit to the Respondent ' s office.

3. Routine procedures at the Respondent ' s office included

taking radiographs (x - rays) of every new patient. After checking

in with the receptionist and waiting for a bri ef time, S.W. and

her mother were called from the reception area by a dental

assistant, who accompanied them to a type of x - ray machine called

a " Panorex. "

4. Patients can remain in a standing position while x - rays

are taken with a Panorex, and the imag es can be produced without

requiring the insertion of x - ray film into a patient ' s mouth.

5. Despite encouragement from her mother and the offer of

various enticements by the dental assistant, S.W. refused to

stand in the Panorex, and no x - rays were take n.

6. After the attempt to use the Panorex failed, S.W. and

her mother were taken into an examination room ( " operatory " ).

7. Each operatory at the Respondent ' s practice contained a

standard x - ray machine that required the insertion of film into a

pat ient ' s mouth to produce images.

8. The evidence fails to establish that there was any

attempt to obtain images from S.W. using the x - ray machine in the

operatory.

9. After S.W. was taken into the operatory and seated, the

dental assistant performed a routine cleaning ( " prophylaxis " ) and

then left the room. S.W. was cooperative during the prophylaxis.

10. After the prophylaxis was completed, the Respondent

entered the room with a different dental assistant and proceeded

to perform a comprehensive or al evaluation using routine dental

tools. S.W. was cooperative during the examination.

11. The Respondent examined the condition of S.W. ' s teeth

and verbalized her observations to the dental assistant, who

recorded the information by hand into the patie nt chart.

12. According to the patient chart, the Respondent observed

decay in the teeth designated as A, B, I, J, K, L, S and T.

13. After the evaluation was completed, S.W. ' s mother was

advised that the Respondent had observed " eight cavities " in

S.W . ' s teeth. The evidence failed to establish whether the

mother received the information from the Respondent or from the

dental assistant.

14. Thereafter, the dental assistant escorted S.W. and her

mother to the " check out " desk, where the mother was adv ised to

schedule a follow - up appointment for dental work related to the

Respondent ' s observations of decay.

15. The follow - up appointment was scheduled for

November 17, 2011, and the mother was advised that sedation would

be administered at that time. S .W. and her mother then left the

Respondent ' s office.

16. According to the patient chart, the Respondent proposed

to treat the observed decay by performing resin - based composite

restorations on the teeth.

17. S.W. did not return to the Respondent ' s off ice for the

follow - up appointment. The Respondent provided no further dental

care to S.W.

18. Concerned about the Respondent ' s evaluation of her

child ' s teeth, S.W. ' s mother spoke with a friend who had been

employed as a dental assistant, and then decid ed to seek another

opinion regarding the condition of S.W. ' s teeth.

19. On or about September 6, 2011, S.W. and her mother went

to see Dr. Eva Ackley, a dentist practicing at the Ackley Dental

Group, for an evaluation of the child ' s teeth. Dr. Ackley wa s

aware that S.W. ' s mother was seeking a second opinion of the

child ' s dental health. S.W. was cooperative throughout her

appointment with Dr. Ackley.

20. S.W. submitted to being x - rayed at Dr. Ackley ' s office.

Dr. Ackley examined the child ' s teeth and reviewed the x - ray

images and observed that, although S.W. had one tooth that

required follow - up observation for potential decay, there were no

actual cavities requiring treatment.

21. According to S.W. ' s mother, the child has been

evaluated by two othe r dentists since 2011, one of whom observed

three cavities and the other of whom observed none. According to

the mother, neither of the subsequent dentists took x - rays of

S.W. ' s teeth.

22. At the hearing, the Respondent presented an " expanded

functions dental assistant " employed by the Respondent, who

testified as to office procedures routinely followed at the

Respondent ' s practice. The witness was not personally involved

with S.W. on August 23, 2011.

23. The witness testified that it was sometimes di fficult

to obtain x - rays from younger patients and that, in such cases,

x - ray images would be obtained during a follow - up visit. If

required, sedation was administered to calm the patient and

obtain the images. The witness testified that during the cours e

of her employment with the Respondent, no restorative treatment

had been performed on a patient without x - ray images having been

obtained prior to treatment. Her testimony was credible and

convincing, and it has been accepted.

24. The witness also tes tified that, in cases where no

x - rays were taken at an initial evaluation, the routine procedure

at the Respondent ' s office was to document the need to obtain

x - rays at a follow - up appointment in the patient ' s file.

25. Although the patient records of S. W. ' s evaluation by

the Respondent on August 23, 2011, state that the patient " would

not do any x - rays, " the records do not specify that they were to

be taken at the follow - up appointment. The witness testified

that the failure to document the need to obta in the x - ray images

in the patient records was contrary to routine office procedures.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fl a . Stat . (201 3 ).

27. In this case, the Petitioner is seeking to impose

discipline against the Respondent ' s license. In order to

prevail, the Petitioner must demonstrate the truthfulness of the

allegations in the Administrative Complaint by clear and

con vincing 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). In order to be " clear and

convincing, " the evidence must be " of such 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. " See Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983). In this case, the burden has not

been met.

28. The Petitio ner has asserted that the Respondent failed

to meet minimum standards of performance on August 23, 2011, by

diagnosing decay in a patient ' s teeth without taking x - rays to

confirm the diagnosis. Section 466.028, Florida Statutes (201 0 ) ,

provides in relevan t part as follows:

(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 ma lpractice. For purposes

of this paragraph, it shall be legally

presumed that a dentist is not guilty of

incompetence or negligence by declining to

treat an individual if, in the dentist ' s

professional judgment, the dentist or a

member of her or his clinic al staff is not

qualified by training and experience, or the

dentist ' s treatment facility is not

clinically satisfactory or properly equipped

to treat the unique characteristics and

health status of the dental patient,

provided the dentist refers the patie nt to a

qualified dentist or facility for

appropriate treatment. As used in this

paragraph, " dental malpractice " includes,

but is not limited to, three or more claims

within the previous 5 - year period which

resulted in indemnity being paid, or any

single indemnity paid in excess of $25,000

in a judgment or settlement, as a result of

negligent conduct on the part of the

dentist.

29. The Petitioner presented the testimony of an expert

witness, who opined that the relevant standard of care requires

that the Respondent review x - rays of S.W. ' s teeth prior to

rendering the diagnosis of interproximal decay in the referenced

teeth and that the Respondent ' s failure to corroborate her

diagnosis by reviewing x - rays was a failure to meet the standard

of care.

30. Th e evidence established that S.W. refused to cooperate

in the x - ray process on August 23, 2011. According to testimony

establishing the Respondent ' s office procedures, x - rays would

have been obtained with the use of sedation when S.W. returned

for the foll ow - up appointment. Although the Petitioner ' s expert

witness testified that, absent x - rays, he would not have

diagnosed interproximal tooth decay in this case, the expert

witness also testified that he did not typically take x - rays of

children under five y ears of age. The expert witness testified

that it is not possible to obtain x - rays from a totally

uncooperative patient and that his office practice does not

include use of sedation.

31. The evidence failed to establish that the Respondent

violated the standard of care by diagnosing her observations as

dental decay prior to reviewing x - ray images to corroborate her

observations. Although the patient records included the

Respondent ' s initial observations, no treatment, other than

prophylaxis, was provide d to the patient on August 23, 2011. The

evidence failed to establish that the proposed restorative work

would have commenced before x - ray images were obtained and

reviewed to corroborate the Respondent ' s initial observations.

32. The Petitioner ' s exper t witness also noted that the

Respondent ' s records failed to specify that the diagnosis was

preliminary or that x - ray images would be taken at the follow - up

appointment. The Respondent was not charged with any violation

of statute or disciplinary rule rel ated to patient records.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner enter a final order

dismissing the Amended Administrative Complaint at issue in this

case.

DONE AND ENTERED thi s 3rd day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 3rd day of October , 2013 .

COPIES FURNISHED:

Susan Foster, Executive Director

Board of Dentistry

Department of Heal th

Bin C - 08

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3258

Jennifer A. Tschetter, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Christopher Claude Torres, Esquire

Casey and Torres, LLC

Suite 200

1240 Thomasville Road

Tallahassee, Florida 32303 - 8707

Adrienne C. Rodgers, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writ ten 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.