20-002517PL Department Of Health, Board Of Dentistry vs. Tatyana Stepanchuk, D.M.D. Status: Closed Recommended Order on Tuesday, December 22, 2020.

Summary: The Department failed to prove a violation of the standard of performance in the placement of an implant, but proved a record-keeping violation.

in violation of section 466.028(1) ( m) and (mm) , and Florida Administrative

Code Rule 64B5 - 17.002(1), as alleged in the Administrative Complaint ; and,

if so, the appropriate penalty.

P RELIMINARY S TATEMENT

On March 16, 2020 , Petitioner , Department of Health ( “ Petitioner ” or

“ Department ” ) , filed its Administrative Complaint No. 201 8 - 00406

(“ Administrative Complaint ” ) against Respondent , Tatyana St e panchuk,

D.M.D. ( “ Respondent ” or “ Dr. Stepanchuk ” ) , a licensed dentist in the state of

Florida . The complaint charged Respondent with failing to place a dental

implant in accordance with the minimum standards of diagnosis and

treatment in the practice of dentistry , in violation of section 466.028(1)(x);

and with failing to keep written dental records and medical history records to

d ocument the measurements of the patient’ s edentulous site in the area of

tooth 19 prior to pl acing an implant in that area , in violation of section

466.028(1)(m) and (mm), and rule 64B5 - 17.002(1). R espondent filed a n

Election of Rights in which s he disputed the allegations , and requested an

administrative hearing.

On June 1, 2020 , the case was referred to DOAH and assigned as DOAH

Case No. 20 - 2517PL . The final hearing was originally scheduled for

A ugust 19, 2020. Upon motion, the final hearing was rescheduled for

November 18, 2020 , by Zoom conference.

On November 4, 2020, Petitioner filed a Notice of Intent to Seek to Admit

Records Pursuant to Section 90.803(6)( c ), Florida Statutes (“Notice of Intent”)

regarding records of the patient, I.D. , kept by Respondent and by Youssef

Obeid, D.D.S.

On November 13, 2020 , the parties filed their Joint P re - hearing

Stipulation ( “ JPS ” ) . The stipulated facts set forth therein have been

incorporated in this Recommended Order. The JPS also contained

stipulations regarding issues of law on which there was agreement. Those

stipulations, which are determined to a ccurately set forth applicable issues of

law , are incorporated in this Recommended Order.

On November 17, 2020, a series of five motions in limine were filed by

Respondent. The Motion in Limine to Prevent Petitioner from Presenting any

Evidence or Witness not Previously Designated , which sought to limit the

introduction of evidence “ not previously disclosed or included within the Joint

Pre - Hearing Stipulation ” was granted, in part, for reasons set forth on the

record. Ruling s on the remaining four m otions w ere reserved. Since rulings

on admissibility were made on the record as evidence was offered, further

evidentiary rulings as requested in the remaining motions in limine are

unnecessary . T herefore, the Motion in Limine to Prevent Improper Bolsterin g

of Witnesses , Motion in Limine to Bar Improper Rebuttal Evidence , Motion in

Limine to Prevent Petitioner Experts from Offering Opinions at Final

Hearing beyond those Disclosed in Deposition or as Previously Limited by the

Court , and Motion in Limine to P revent Petitioner from Presenting any

Expert Opinions which are Based upon Pyramiding of Inferences are denied

as moot .

On November 18, 2020, prior to the commencement of the final hearing ,

Respondent filed her Objection to Petitioner's Attempt to Introdu ce

Previously Unidentified/Unlisted Exhibit into Evidence , which sought to limit

the introduction of Respondent’s deposition as substantive evidence . In

general, the deposition of a party is admissible as evidence pur suant to

Florida Rule of Civil Procedure 1.330(a)(2)( “any part or all of a deposition

may be used against any party ... in accordance with any of the following

provisions: ... (2) The deposition of a party ... may be used by an adverse party

for any purpose.” ). However, i n the JPS, Peti tioner listed as an exhibit

“ Deposition of Respondent (impeachment purposes) .” Regardless of whether

Respondent’s deposition transcript is admissible “for any purpose,” Petitioner

stipulated to a self - imposed limitation on its use. Parties are bound by agr eed

upon and properly entered joint stipulations. Delgado v. Ag. for Health Care

Admin. , 237 So. 3d 432, 436 - 37 (Fla. 1st DCA 2018). Thus, the motion

seeking to limit the use of the deposition to impeachment purposes was

granted. The deposition of Dr. Step anchuk was ultimately not offered in

evidence for impeachment purposes, nor was it proffered as an exhibit.

The final hearing was convened on November 18, 2020 .

A t hearing, Joint Exhibits 1 through 7 , consisting of Dr. Stepanchuk ’ s

dental records for Patient I.D. ; curriculum vitae for several witnesses ; and

exhibits to the deposition of Dr. Gordon Roswell Isbell, IV, w ere rec eived in

evidence.

T he Department offered the testimony of Dr. William J. Kinzler , who was

accepted as an expert in general dentistry and placing dental implants .

Petitioner ’ s Exhibit 2, consisting of the records of Dr. Obeid that were the

subject of the Department’s November 4, 2020, Notice of Intent, w as received

in evidence.

Respon dent testified on her own behalf, and offered the testimony of

Dr. Luke Matranga, and Dr. Gordon Roswell Isbell, IV, both of whom were

found to possess the knowledge, skill, experience, training, and education to

testify as experts, with Dr. Matranga generally testifying as to the standards

of general dentistry and the restoration of dental implants, and Dr. Isbell

generally testifying as to the standard s of general dentistry and the

placement of dental implants . Respondent ’ s Exhibit 3, pages 3, 4, 9, and 12,

was received in evidence.

The two - volume final hearing T ranscript was filed on December 3 , 2020 .

Both parties timely filed P roposed R ecommended O rder s that were

considered in preparation of this Recommended Order.

This proceeding is governed by the law in effect at the time of the

commission of the acts alleged to warrant discipline . See McCloskey v. Dep ’ t of

Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013). Thu s, references to statutes

are to those in effect at the time of the alleged violations, unless o therwise

noted.

F INDINGS O F F ACT

Stipulated Facts

1 . A t all times material hereto Respondent was and is a duly licensed

dentist within the State of Florida, having been issued license number

DN 18478.

2 . Respondent has no disciplinary history or record of any adverse dental

incident in the State of Florida apart from the instant pending matter.

3 . Respondent’s current address of record is 8750 Perimeter Park

Boulevard, Suite 101, Jacksonville, Florida 32216.

4 . Previously, Respondent’s address of record was 978 Mineral Creek

Drive, Jacksonville, Florida 32225.

5 . On or about November 27, 2017, Patient I.D. presented to Respondent

for an implant consultation in the area of tooth 19.

6 . Patient I.D. had tooth 19 extracted by another provider approximately

six months prior to presenting to Respondent for implant consultation.

7 . On or about November 27, 2017, Patient I.D. signed a General

Dentistry Informed Consen t form in the office of Respondent.

8 . On or about December 11, 2017, Patient I.D. returned to Respondent for

placement of an implant in the area of tooth 19.

9 . On or about December 11, 2017, Patient I.D. initialed and signed a four -

page form entitled Co nsent Form: Dental Implant(s) for Tooth #19.

1 0 . On or about December 11, 2017, Respondent placed an implant in the

area of tooth 19.

1 1 . On or about December 11, 2017, Respondent’s dental assistant took

radiographs prior to, during , and after the implant placement procedure.

Additional Evidentiary Findings

The Administrative Complaint

12 . The Administrative Complaint identified the following as the factual

bases for its determination in Count One that Respondent departed from the

minimum standards of performance in the diagnosis and treatment of Patient

I.D. :

A. By failing to utilize an appropriately sized

implant by placing an implant which was too small

for Patient I.D. ’ s ridge;

B. By failing to plac e the implant in the correct

location by placing the implant in the distal root socket in the area of tooth 19, and therefore too far from adjacent tooth 20 ;

C. By failing to place the implant at an angle that

would allow the implant to be restored and/or limit

stress on the implant by placing the implant at a high angle; and/or,

D. By failing to obtain a post - operative radiograph

to assess the final position of the placed implant.

13 . The Administrative Complaint identified the following as the factual

bas i s for its determination in Count Two that Respondent failed to keep

written dental records and medical history records justifying the course of

treatment of Patient I.D.:

Respondent has failed to maintain records ... by

failing to document the measurem ents of Patient

I.D. ’ s edentulous site in the area of tooth 19 prior to

placing an implant in that area.

Implants

14 . Implants are used to anchor denture s in bone to replace a tooth or

teeth. The implant consists of three parts: the implant, which is essentially a

device that screws into bone at the location of the missing tooth; the

abutment, which is attached to the implant with a hexed screw and locked

i nto place , and which provides a post for the final restoration ; and the final

restoration, or crown.

15 . Implant sizing is a recommendation based on the amount of bone

available at the location of the missing tooth. The bone is below the gum, and

not direc tly visible. To determine the amount of bone, a dentist typically uses a periapical radiograph and a clinical exam on the patient. The clinical exam

may include palpation of the jaw in the area of the proposed implant, and a

measurement using a calibrated probe to measure across and between the

teeth. The radiograph also provides information as to the location of any

nerve structures below the tooth. Those measurements establish the “box to

work in.”

16 . Standards applicable to dental implant placement call for there to be a

minimum of two millimeters of bone surrounding the implant. In addition,

there should be a minimum of two millimeters of space between the end of the implant and any nerves running through the jaw. Those measurements

establish the maximu m size of the implant that can be safely placed.

17 . The human jaw is akin to a hinged nutcracker, with the greatest force

being exerted close to the temporal mandibular joint at the back of the mouth

(the “hinge”), with molars exerting as much as 200 poun ds of force, and less

force being exerted by the incisors, with the pre - molars being somewhere in

between. Tooth 19 is a molar.

18 . In general, smaller diameter implants are suitable for replacement of

incisors, where the ridge of bone is thinner and the s tress exerted on the

implant is less, and larger diameter implants are suitable for replacement of

molars , where the ridge of bone is thicker and the stress exerted on the

implant is greater .

19 . Osseointegration is the process by which bone biologically bonds to the

titanium implant, anchoring it into place. Larger diameter implants not only

provide greater mechanical stability from the threads screwing into the bone,

but provide more surface area for osseointegration of the implant.

20 . The greater weig ht of the evidence established that, although larger

implants are preferable, implants of four millimeters or greater are

considered to be “wide body” implants and are suitable for the replacement of

molars.

Selection of the Implant

21 . When Patient I.D. presented at Respondent’s office on November 27,

2017, Respondent took Patient I.D.’s medical history. The documentation was

complete, but for an identification of whether Patient I.D. was taking

prescription medications and, if so, the i dentification of those medications.

22 . When Patient I.D. was ready for her consultation, Respondent began

by palpating the ridge of Patient I.D. ’s lower jaw in the area of t ooth 19 to

measure the width of bone. There were no obvious cavitations in the bone.

Respondent also used a calibrated periodontal probe to determine the

mesiodistal distance, i.e. , the space between tooth 18 and tooth 20; the

buccal/lingual width, i.e. , the width of the bo ne from the buccal (cheek) side to

the lingual (tongue) side ; and the height of the ridge. She determined that

Patient I.D. had nine millimeters of bone width. Those measurements

provided sufficient information to guide Respondent in her decision on the

si ze of the implant. However, the measurements were not recorded in Patient

I.D.’s chart.

23 . Respondent had several periapical radiographs of Patient I.D.’s teeth,

including the area around tooth 19 , taken prior to I.D.’s consultation . The

radiographs were sufficient to show the bone, the mesiodistal width, and the

location of the inferior a lveolar nerve (“IAN”) underneath t ooth 18. T he

trajectory of the IAN in that area of the jaw is known, so there was no need to

take additional radiographs to determine its location at to o th 19.

24 . Respondent did not believe that, after her physical measurements, she

needed additional imaging . Her belief was substantiated by the testimony of

Dr. Matranga, which is credited. T he evidence was not sufficient to

demonstrate that her decision to forego additional imaging was a violation of

the dental standard of performance or care.

25 . The IAN ran along Patient I.D.’s posterior mandible about 15 to

16 millimeters from the top of the ridge. Thus, the longest implant suitable

while maintaining two millimeters of bone between the implant and the IAN

would have been 13 millimeters in length.

26 . To maintain a minimum of two millimeters of bone surrounding the

implant, the largest dia meter implant suitable for Patient I.D. would have

been five millimeters in diameter, i.e., nine millimeters minus two

millimeters on each side.

27 . Respondent originally intended to install a five - millimeter by

11.5 - millimeter implant in Patient I.D.’s mouth. Because of difficulty in

accessing Patient I.D.’s mouth, and the obstacle to inserting a longer drill

into the limited space, she modified her plan to the placement of a 4.2 - millimeter by eight - milli meter implant. During the course of placing

the implant, a 4.2 - millimeter by 10 - millimeter implant was substituted for

the 4.2 - millimeter by eight - millimeter implant .

28 . The implant diameter was smaller than the maximum allowable

5 millimeters but, a t 4.2 millimeters , not dramatically so. There is little

difference in survivability between a 4.2 - millimeter implant and a

five - millimeter implant. An implant of 5.7 millimeters in diameter , as

recommended by Dr. Kinzler, could not have been accommodated in the nine

millimeters of bone width while maintaining two millimeters of bone on each

side.

29 . In implant dentistry, the width of the implant is more important than

its length. The evidence established that an implant l ength of between 9 and

14 millimeters is suitable for replacement of a molar in the posterior

mandible. The evidence further established that an implant of 10 millimeters

in length was suitable for the replacement of Patient I.D.’s tooth 19.

30 . The eviden ce, taken as a whole and given its appropriate weight, does

not support a finding that Respondent departed from the minimum

standards of performance in the diagnosis and treatment of Patient I.D. by

selecting a 4.2 millimeter by 10 - millimeter implant for p lacement at

Patient I.D.’s tooth 19.

Placement of the Implant

31 . When Patient I.D. presented on December 11, 2017, for placement of

the implant, she completed a comprehensive informed consent form for the

implant. Dental procedures are not a perfect scien ce, and a procedure can

“fail” without a violation of any standard of care. The consent form fully

disclosed that placement of an implant came with risks of failure. Though an

informed consent does not create a defense to a violation of the standard of car e, it establishes both a recognition and acceptance of the risks, and

authorization for a provider to proceed in light of the risk. Patient I.D.

consented to the procedure and executed consent forms supplied and maintained by Respondent.

32 . The furcation bone is the area of mature bone between the roots of a

molar. When a molar is extracted, it leaves a void where the roots were

removed. Bone will eventually grow into the voids left by the roots, but that

bone is, for a substantial period, softer “immature ” bone. The length of time

for the replacement bone to mature was not defined, but is longer than six months.

33 . The furcation bone at Patient I.D.’s tooth 19 was about 4.4 millimeters

wide. The selection of the 4.2 millimeter in diameter implant a llowed for it to

be placed in the furcation bone with some bone around it, though it was a

narrow window. Use of a 5.7 millimeter in diameter implant, though having

more surface area, would have obliterated the furcation bone.

34 . Patient I.D. had difficulty in opening her mouth wide, or for any

appreciable length of time. A typical person can open their mouth to 35 millimeters. Patient I.D. could open her mouth to a maximum of

25 millimeters. Thus, there was little space to work in Patient I.D.’s mouth.

35 . Pat ient I.D. could not tolerate keeping her mouth open for much more

than a minute or two. In typical dental procedures, a patient is provided with

a “bite block,” which allows the patient to keep their mouth open while

relaxing the jaw. Bite blocks come in t hree sizes -- adult, small, and pediatric.

Patient I.D. could not even tolerate a pediatric bite block. During Patient

I.D.’s implant procedure, Respondent would often get staged and ready to

work, only to be stopped by Patient I.D.’s complaint and need to close her

mouth. As stated by Dr. Kinzler, “Respondent had a tough time with this

patient.”

36 . Respondent drilled a “pilot” hole into Patient I.D. ’s fu rcation bone,

followed by a n eight - millimeter hole to the depth required for the planned

implant. She w as hampered in her drilling by the teeth above tooth 19 due to

Patient I.D.’s inability to open her mouth wide. Respondent then attempted

to place a 4.2 millimeter by eight - millimeter implant. That implant proved to

be insufficient to fully engage with the furcation bone. It was, in the words of

Dr. Kinzler , a “spinner.” Respondent then decided to move up to a

4.2 millimeter by 10 - millimeter implant.

37 . The evidence established that, under the circumstances, the use of a

4.2 millimeter by 10 - millimeter implant was appropriate at the tooth 19

location. But for the overtightening of the implant as discussed herein, there

was no evidence that the implant could not have been successfully placed in

its intended position. Thus, the Department failed to prove, by clear and

convincing evidence, that Respondent failed to utilize an appropriately sized

implant by placing an implant which was too small for Patient I.D. ’ s ridge in

violation of the established dental standard of care .

38 . Respondent drilled to accomm odate the additional two millimeters of

length , but Patient I.D. was tiring quickly. However, Patient I.D. was goal

oriented, and wanted to proceed. Respondent then placed the implant with a

hand wrench. The implant went into the drilled space in the furca tion bone,

and appeared to be holding in a generally vertical position along the axial

line. An x - ray taken during the procedure showed the implant and the

attached driver to be in a perfect position in the furcation zone.

39 . As Respondent was placing the implant, it was her intent to provide as

secure a placement of the implant into the furcation bone as possible. The

implant was advancing vertically into the tooth 19 furcation bone as planned.

Respondent then tried to screw the implant one turn too many. Bone can

crack , shift , o r change as a device is being tightened . As a result of the final

turn of the screw , t he distal wall of the furcation bone cracked, and the

implant moved off center . The immature b one in the tooth 19 distal root

provided a path of least resistance for the over - torqued implant , and the

implant slid into th at space .

40 . As the implant moved into the distal root opening, it tipped on an

angle, as the top remained fixed in the mature f urcation bone, and the bottom

tipped towards the immature root bone.

41 . Angulation of an implant is related to the force that is placed on the

implant in the future. The greater the angle, the greater the stress on the

implant. Nonetheless, a n implant is restorable even if it is at an angle,

provided the angle is not too great.

42 . When an implant is angled, a n angled abutment (analogous to a pipe

elbow) is screwed into the angled implant, and forms the “core” or platform

for the crown, allow ing tooth surface of the crown to align properly between

the adjoining teeth and the opposing teeth.

43 . An angled implant is not ideal, because the stress forces (e.g. from

chewing) exerted on the implant increase with the angle. However, angled

implants are not uncommon, and angled abutments are well accepted in

dentistry . T heir use is not, by itself, a violation of the standard of care.

44 . By use of an angle d abutment, the crown for Patient I.D. would have

fit evenly between tooth 18 and tooth 20. Thos e teeth would have provided

support for the implant, and helped offset the stress from the angle.

45 . The evidence established that the t ooth 19 implant was not

intentionally place d in the distal root socket . The accidental overtightening of

the implant which caused the furcation bone to crack was neither pled nor

proven to be a violation of a dental standard of care. The Department failed

to establish, by clear and convincing evidence, that Respondent failed to place

the implant in the correct location by placing the implant in the distal root socket in the area of tooth 19 and , therefore , too far from adjacent tooth 20.

46 . The greater weight of the evidence established that an implant at an

angle of 30 degrees or less is capable of being restored by use of an angled

abutment without resulting in a failure of the implant.

47 . The calculation of the angle of the tooth 19 implant varie d from

3 3 degrees (Dr. Kin z ler ), to 22 degrees (Dr. Matra n ga), to 25 degr ees (though

possibly as little as 17 to 23 degrees) (Dr. Isbell), to 15 to 24 degrees

(Respondent). Each of the witnesses established their calculation by use of a protractor, either a physical protractor on a paper copy of the post - placement

radiograph , o r a computerized protractor on a digital image. Each had indicia

of reliability, with differences seemingly based on the point of the measurement. The evidence was not clear and convincing that the angle of

the implant was greater than 30 degrees.

48 . T he Department did not establish, by clear and convincing evidenc e,

that Respondent failed to place the implant at an angle that would allow the

implant to be restored and/or limit stress on the implant in violation of the

established dental standard of care.

49 . The implant was, in its final position, partially below the crestal ridge

of Patient I.D. ’s mandible. Since the implant was at an angle, the top of the

implant at the distal edge was at the crest of the bone , and the top of the

implant at the mesial ed ge was slightly below the crest. Though not an ideal

situation, the evidence was not clear and convincing that the subcrestal

location at which the implant ended up was a violation of the dental standard

of performance or care.

50 . Respondent’s records for Patient I.D. include several radiographic

images of the implant as it was being screwed into the fur cation bone, and in

its final, angled position. The evidence was persuasive that the operative and

post - operative radiograph s were sufficient to assess the final position of the

placed implant . The evidence was not clear and convincing that Respondent

failed to obtain a post - operative radiograph to assess the final position of the

placed implant.

51 . After the implant was placed, Patient I.D. was advised tha t the

implant had gone in at an angle , but that the implant was restorable. Patient

I.D. was given the option of having the implant removed, but she declined and left with the implant in place.

52 . A surgical follow - up was scheduled for December 18, 2017. However,

Patient I.D.’s husband was upset at the outcome, and appeared at

Respondent’s practice the next day , December 12, 2017, to obtain Patient

I.D.’s file, including radiographs.

53 . Patient I.D . returned to Respondent’s practice on December 18, 20 17 .

Due to disagreements arising at that time that are unrelated to allegations in

the Administrative Complaint , no further work was performed on Patient

I.D.’s implant.

54 . Patient I.D. subsequently h ad the implant removed by Dr. Ob ei d.

Dr. Ob ei d did not testify, and his records were insufficient to establish that

Respondent’s placement of the implant to replace in Patient I.D.’s tooth 19

violated any dental standard of care.

Records

55 . The records cr eated and maintained by Respondent for Patient I.D.

were complete b ut for two items.

56 . First, Respondent’s medical history for Patient I.D. did not include the

prescription medications being taken by Patient I.D. However, the medical

history form was fi lled out by Patient I.D., not Respondent. Though

Respondent could have asked Patient I.D. whether she meant to leave the

prescription medication question blank, or whether it was an oversight, the question was not asked. Nonetheless, Petitioner did not all ege Respondent’s

medication history as a violation of any applicable standard in the Administrative Complaint. Therefore, it cannot form the basis for a violation

of the statutes or rules cited in Count Two.

57 . The second deficiency in the records , and the only deficiency pled as a

violation, was Respondent’s failure to record the edentulous bone

measurements derived from her palpation of Patient I.D.’s posterior mandible , and the measurements derived from a calibrated dental probe.

58 . Although the evid ence established that Respondent had sufficient

information of the edentulous site in the area of tooth 19 to ascertain that

Patient I.D. was a candidate for an implant before she placed the implant in

that area , including both physical measurements and ra diographic images,

she did not record those physical measurements in Patient I.D.’s dental

records.

59 . The purpose of dental records is to provide successor dentists with the

information necessary to recreate the conditions. In general, one should put in as much detail as one can to facilitate that need . Each of the witnesses

acknowledged that it would be impossible to write down everything that

happens during a patient’s appointment. However, each acknowledged the importance and usefulness of th e transfer ence of i nformation. The evidence

was persuasive that information as fundamental and critical to the decision -

making process as examination results, including the measurement of the

implant placement site , is information necessary to recreate the pre - opera tive

conditions of a patient , and should have been included in the dental records

for Patient I.D.

60 . The Department proved by clear and convincing evidence that

Respondent failed to meet the applicable dental standard of care by failing to

document the measurements of Patient I.D. ’ s edentulous site in the area of

tooth 19 , although such measurements were taken prior to placing an

implant in that area .

C ONCLUSIONS O F L AW

A. Jurisdiction

61 . DOAH has jurisdiction over the parties and the subject matter of this

proceeding . §§ 4 56.073 ( 5 ), 120. 569 , and 120.57(1) , Fl a. Stat. (20 20 ) .

62 . The Department is the agency of the state of Florida charged with the

authority to regulate the practice of dentistry pursuant to section 20.43, and

chapters 456 and 466, Florida Statutes , and to investigate disciplinary

matters and file administrative complaints charging violations of the laws

governing dentists pursuant to section 456.073 .

B. Standards

63 . This proceeding is gover ned by the standards in effect at the time the

alleged violations occurred. The administrative complaint allege s violations

of s ection s 4 6 6 .028 (1)( m ) , (x), and ( mm ) that occu r red from November 27 to

December 11, 2017 . Section 466.028 was most recently amended in 201 7 ,

before the alleged violation ( C h. 2017 - 41, § 17, Laws of Fl a. ).

64 . Sections 466.028(1)(m), (x), and ( mm) provide d , at all relevant times

and in pertinent part , that:

(1) The following acts constitute grounds for

denial of a license or di sciplinary action, as

specified in s. 456.072(2) :

* * *

( m ) Failing to keep written dental records and

medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test

results, and X rays, if taken.

* * *

( 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 . ...

* * *

( mm ) Violating any provision of this chapter or

chapter 456, or any rules adopted pursuant thereto.

65 . Rule 64B5 - 17.002, which was last amended on April 17, 2016,

provides, in pertinent part, that:

A dentist shall maintain patient dental records in a legible manner and with sufficient detail to clearly

demonstrate why the course of treatment was

undertaken.

(1) Dental Record: The dental record shall contain sufficient information to identify the patient,

support the diagnosis, justify the treatment and

docum ent the course and results of treatment

accurately, by including, at a minimum, ... examination results ....

C. Burden and Standard of Proof

66 . The scope of review in this case is de novo . § 120.57(1)(k), Fla. Stat.

67 . The D epartment bears the burden of proving the specific allegations

that support the charges alleged in the A dministrative C omplaint by clear

and convincing evidence. Dep ’ t of Banking & Fin., Div. of Sec. & Inv. Prot. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987); Fox v. Dep ’ t of Health , 994 So. 2d 416 (Fla. 1st DCA 2008);

Pou v. Dep ’ t of Ins. & Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

68 . Clear and convincing evidence “requires more proof than a

‘ preponderance of the evidence ’ but less than ‘ beyond and to the exclusion of a

reasonable doubt. ’ ” In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The clear

and convincing evidence level of proof :

[E]ntails both a qualitative and quantitative

standard. The evidence mu st be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the evidence must be of sufficient weight to convince

the trier of fact without hesitancy.

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 explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of

such weight th at 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 Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval,

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re

Henson , 913 So. 2d 579, 590 (Fla. 2005). “ Although this standard of proof may

be met where the evidence is in conflict, it seems to preclude evidence that is

ambiguous. ” Westinghouse Elec . Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1st DCA 1991).

69 . A proceeding to suspend, revoke, or impose other discipline upon a

license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm ’ n ,

281 So. 2d 487, 491 (Fla. 1973). Penal stat utes must be construed in terms of

their literal meaning and words used by the Legislature may not be expanded

to broaden the application of such statutes. Thus, the provisions of law upon

which this disciplinary action has been brought must be strictly co nstrued,

with any ambiguity construed against Petitioner. Elmariah v. Dep ’ t of Bus. &

Prof ’ l Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v. Fish &

Wildlife Conserv. Comm ’ n , 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v.

Dep ’ t of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Whitaker v. Dep ’ t

of Ins. , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Dyer v. Dep ’ t of Ins. &

Treasurer , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

70 . The allegat ions of fact set forth in the a dministrative c omplaint are

the grounds upon which th ese proceeding s are predicated. Trevisani v. Dep ’ t

of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Christian v.

Dep’t of Health, Bd. of Chiropractic Med. , 161 So. 3d 416, 417 (Fla. 2d DCA

2014)( “ Section 120.60(5), Florida Statutes (2005), requires that an

administrative complaint must afford ‘ reasonable notice to the licensee of

facts or conduct which warrant the intended action. ’”); Cottrill v. Dep ’ t of Ins . ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) ( “Predicating disciplinary action

against a licensee on conduct never alleged in an administrative complaint ...

violates the Administrative Procedure Act.”). Thus, the scope of this

proceeding is properly restri cted to those matters as framed by Petitioner.

M.H. v. Dep ’ t of Child. & Fam. Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA

2008) (“ At the administrative hearing, the ALJ properly restricted his

consideration of the matter to the specific question that DCF itsel f had

framed as the issue to be decided. ”).

71 . The violations alleged in Count One are “standard of care” violations

related to deficiencies in Respondent’s diagnosis and treatment of Patient

I.D. as measured against generally prevailing peer performanc e under

section 466.028(1)(x).

72 . The violation alleged in Count Two is not a “standard of care”

violation, but is a simple and straight - forwa r d recordkeeping violation under

section 466.028(1)(m). See Barr v. Dep’t of Health, Bd. of Dentistry , 954 So. 2d

668, 669 (Fla. 1st DCA 2007)(“ We believe there is a significant difference

between improperly diagnosing a patient, which constitutes a subsection (x)

[standard of performance] violation, and properly diagnosing a patient, yet

failing to properly document the actions taken on the patient's chart, which

constitutes a subsection (m) [recordkeeping] violation. ”); see also Dep’t of

Health, Bd. of Med. v . Jose Suarez - Diaz , Case No. 07 - 0096PL , RO at ¶¶ 46 - 48

(Fla. DOAH Mar. 13, 200 8 ; Fla. DOH June 19, 2008 ) (“ As t o whether

D r. Suarez - Diaz violated the Standard of Care simply because of his failure

to keep adequate medical records, this allegation is inadequate as a matter of

law to support a Standard of Care violation. ... The rationale of the Barr

decision applies equally to this case, to the extent that the Department has

alleged that Dr. Suarez - Diaz violated the Standard of Care based solely on

his inadequate record keeping. Neither the law, nor the facts, support this allegation. ”) Thus , the iss ue for determination in Count Two is not whether

the records at issue meet generally prevailing peer performance , but whether

the records, under a de novo review, contain sufficient detail to document the

course and results of treatment accurately, includi ng examination results.

D . Analysis

73 . The A dministrative Complaint , Count One, allege d that Respondent

failed to meet the minimum standards of performance in diagnosis and

treatment when she failed to utilize an appropriately sized implant by

placing an implant which was too small for Patient I.D.’s ridge, in violation of

section 466.028(1)(x) . As set forth in the Findings of Fact herein, the

Department failed to me e t its burden to establish, by clear and convincing

evidence, that Respondent violated the standard of performance as alleged.

74 . The Administrative Complaint , Count One, alleged that Respondent

failed to meet the minimum standards of performance in diagnosis and

treatment when she failed to place the implant in the correct location by

placing the implant in the distal root socket in the area of tooth 19 and ,

therefore , too far from adjacent tooth 20 , in violation of section 466.028(1)(x).

As set forth in the Findings of Fact herein, the Department failed to m e et its

burden to establish, by cle ar and convincing evidence, that , under the

circumstances, Respondent violated the standard of performance as alleged.

75 . The Administrative Complaint , Count One, alleged that Respondent

failed to meet the minimum standards of performance in diagnosis and

treatment when she failed to place the implant at an angle that would allow

the implant to be restored and/or limit stress on the implant by placing the

implant at a high angle , in violation of section 466.028(1)(x). As set forth in

the Findings of Fact h erein, the Department failed to meet its burden to

establish, by clear and convincing evidence, that, under the circumstances, Respondent violated the standard of performance as alleged.

76 . The Administrative Complaint , Count One, alleged that Respondent

failed to meet the minimum standards of performance in diagnosis and

treatment when she failed to obtain a post - operative radiograph to assess the

final position of the placed implant , in violation of section 466.028(1)(x). As

set forth in the Findings of Fact herein, the Department failed to meet its

burden to establish, by clear and convincing evidence, that Respondent

violated the standard of performance as alleged.

77 . The Administrative Complaint , Count Two, also allege d that

Respondent failed to keep written dental and medical history records to

document the measurements of P atient I.D.’s edentulous site in the area of

tooth 19 , in violation of section 466.028(1)(m) and (mm), and rule 64B5 -

17.002(1). As set forth in the Findings of Fact herein, th e Department met its

burden to establish, by clear and convincing evidence, that Respondent fail ed

to record the results of her physical palpation and measurement of Patient

I.D.’s edentulous site in the area of tooth 19 , although the evidence

established that such measurements were made prior to placing an implant

in that area.

E . Penalty

78 . Pursuant to section 456.072(2), the Board of Dentistry may impose one

or more of the following penalties: suspension or permanent revocation of a

license; restriction of practice o r license; imposition of an administrative fine;

issuance of a reprimand or letter of concern; placement of the licensee on

probation for a period of time; corrective action; refund of fees billed and

collected from a patient; and remedial ed ucation.

79 . Florida Administrative C ode Rule 64B 5 - 13 .00 5 establishes the range

of penalties against an existing license for violations of section 466.028. The

disciplinary guidelines in effect at the time of the violations are those to be applied. Therefo re, the version of r ule 64B5 - 13.005 that became effective on

April 25, 2017, are applied here .

Section 466.028(1)(m)

80 . Rule 64B5 - 13.005 (1)(m) establishes the range of penalties against an

existing license for a first offense of section 466.028(1) (m) as a minimum of a

$500 fine , to probation with conditions and a $7,500 fine .

Section 466.028(1)( x )

81 . Rule 64B5 - 13.005(1)( x ) establishes the range of penalties against an

existing license for a first offense of section 466.028(1)( x ) as a minimum of a

$500 fine, to probation with conditions and a $ 10 , 0 00 fine.

Section 466.028(1)( mm )

82 . Rule 64B5 - 13.005(1)( ll ) establishes the penalt y against an existing

license for a first offense of section 466.028(1)( mm ) , including any violation

of chapter 466 or any rule adopted pursuant thereto, as a minimum of a

$ 750 fine, to probation with conditions and a $10,000 fine .

Aggravating and Mitigating Factors

83 . Rule 64B 5 - 13.005(2) establishes aggravating and mitigating

circumstances , which may be applied when a deviation from the

recommended penalty is warranted. Given the broad penalty range, deviation

is not necessary. Nonetheless, it should be noted that for the only violation

proven, i.e., the failure to record the measurements o f Patient I.D.’s

edentulous site in the area of tooth 19 , those measurements were actually

taken and used in the decisions leading to the placement of the implant.

That, in addition to the lack of previous discipline against Respondent over

her years of pr actice, would allow for consideration of the following

mitigating factors identified in r ule 64B5 - 13.005(2) :

(a) The danger to the public -- None ;

(b) The number of specific offenses, other than the offense for which the

licensee is being punished -- None ;

(c) Prior discipline that has been imposed on the licensee -- None ;

(d) The length of time the licensee has practiced -- D.M.D. conferred 2006 ;

and

(e) The actual damage, physical or otherwise, caused by the violation --

None.

84 . The violations of sectio n 466.028(1)(m) and (mm), and rule 64B5 -

17.002 (1), arise from a single act, i.e., failure to record the physical

examination of Patient I.D.’s edentulous site in the area of tooth 19 . Separate

penalties calculated under both sub sections 466.028(1)(m) and (mm) for that

violation is not warranted.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Dentistry , enter a

F inal O rder :

a) D ismissing Count I of the Admin istrative Complaint ;

b ) D etermining that Respondent failed to document the physical

measurements of Patient I.D.’s edentulous site in the area of tooth 19 ; and

c ) I mposing an administrative fine of $ 750 .

D ONE A ND E NTERED this 22nd day of December , 202 0 , in Tallahassee,

Leon County, Florida.

E. G ARY E ARLY

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

t his 22nd day of December , 20 2 0 .

C OPIES F URNISHED :

Linda A. McCullough, Esquire

McCullough Law, PLLC

Post Office Box 1222

Tavares, Florida 32778

(eServed)

Ellen LeGendre Carlos, Esquire

Department of Health

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399

(eServed)

Gabriel Girado, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Zachary Bell, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Jennifer Wenhold, Interim Exec utive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Louise St. Laurent, Gen eral Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

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.