97-001405 Board Of Dentistry vs. Delroy W. Webb Status: Closed Recommended Order on Friday, October 31, 1997.

Summary: Licensed dentist not guilty of incompetence or negligence, but guilty of recordkeeping deficiencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

BOARD OF DENTISTRY , )

)

Petitioner , )

)

vs. ) Case No. 97-1405

)

DELROY W. WEBB, D.D.S. , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on August 25, 1997, by video teleconference at sites in

Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Wendy Smith Hansen, Senior Attorney

Agency for Health Care Administration

Office of the General Counsel- MQA

Allied Health

Post Office Box 14229

Tallahassee, Florida 32399-4229

For Respondent: Abe A. Bailey, Esquire

18350 Northwest Second Avenue, Fifth Floor

Miami, Florida 33169

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in

the Administrative Complaint.

2. If so, what punitive action should be taken against

Respondent.

PRELIMINARY STATEMENT

On November 6, 1996, Petitioner's predecessor, the Agency

for Health Care Administration (AHCA), issued a two-count

Administrative Complaint against Respondent. The Administrative

Complaint read as follows:

COMES NOW, the Petitioner, Agency for Health

Care Administration hereinafter referred to

as "Petitioner," and files this

Administrative Complaint before the Board of

Dentistry, against DELROY W. WEBB,

hereinafter referred to as "Respondent," and

alleges:

1. Petitioner, Agency for Health Care

Administration is the state agency charged

with regulating the practice of dentistry

pursuant to Section 20.165; Section 20.42,

Florida Statutes; Chapter 455, Florida

Statutes; and Chapter 466, Florida Statutes.

2. Respondent is, and has been at all times

material hereto, a licensed dentist in the

State of Florida, having been issued license

number DN 0009016. Respondent's last known

address is P.O. Box 2256, Miami, Florida

33056-3841.

3. On or about May 19, 1988, Patient C.A.

presented to Respondent for radiographs.

Respondent made no mention of periodontal

disease in Patient C.A.'s records, and the

radiographs indicated that all teeth were in

place pertinent to [the] problematic area.

4. On or about October 5, 1989, periodontal

disease was first mention[ed] by a dentist

employed by the Respondent, and approximately

one week later the dentist performed oral

surgery on Patient C.A., and referred Patient

C.A. back to the Respondent for restorative

procedures.

5. On or about December 5, 1989, Patient

C.A.'s record indicates bridge preparation

was done and impressions were taken by the

Respondent. Patient C.A.'s record, however,

does not indicate radiographs of missing

teeth between May 19, 1988 and December 5,

1989.

6. On or about January 3, 1991, Patient C.A.

returned to the dentist employed by the

Respondent for an apicoectomy, at which time

the dentist's prognosis was questionable due

to extensive bone loss. On or about March

24, 1990, Respondent had attempted to perform

endodontic treatment on Patient C.A. but was

unsuccessful.

7. On or about February 12, 1991, Patient

C.A. presented to a subsequent treating

dentist, who diagnosed Patient C.A. with

periodontal disease and multiple endodontic

problems. The subsequent treating dentist

further recommended that the existing

restorative dentistry be changed because it

was contributing to the periodontal problem.

8. Patient C.A.'s records do not indicate

that an overall treatment plan was ever

formulated or followed by the Respondent.

Furthermore, Patient C.A.'s records do not

correctly indicate amounts owed to the

Respondent in relation to amounts paid by

Patient C.A.

COUNT I

9. Petitioner realleges and incorporates by

reference the allegations of fact contained

in the foregoing paragraphs one (1) through

eight (8) as if fully stated herein.

10. Based on the foregoing, Respondent is

subject to discipline pursuant to Section

466.028(1)(x), Florida Statutes, by 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.

COUNT II

11. Petitioner realleges and incorporates by

reference the allegations of fact contained

in the foregoing paragraphs one (1) through

eight (8) as if fully stated herein.

12. Based on the foregoing, Respondent is

subject to discipline pursuant to Section

466.028(1)(m), Florida Statutes, by 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, and x-rays, if taken.

WHEREFORE, Petitioner respectfully requests

the Board of Dentistry to enter an order

imposing one or more of the following

penalties: revocation or suspension of the

Respondent's license, restriction of the

Respondent's practice, imposition of an

administrative fine, issuance of a reprimand,

placement of the [R]espondent on probation,

and/or any other relief that the Board deems

appropriate.

Respondent subsequently requested a Section 120.57(1)

hearing on the allegations made against him. On March 18, 1997,

the matter was referred to the Division of Administrative

Hearings for the assignment of an Administrative Law Judge to

conduct the Section 120.57(1) hearing Respondent had requested.

As noted above, the hearing was held on August 25, 1997. At

the hearing, seven witnesses testified: Paul Danziger, D.D.S.

(who gave expert testimony on behalf of Petitioner); Leigh

Thompson; Respondent; Kathy Redfearn; Mel Simkins; Sophia

Giscombe; and Todd Smith, D.M.D. In addition to the testimony of

these seven witnesses, nine exhibits (Petitioner's Exhibits 1

through 4 and 7 through 11) were offered and received into

evidence. Among these exhibits were the depositions of Ronald

Cohen, D.D.S.; Todd Smith, D.M.D.; Sophia Giscombe; and Frederick

Knoll, D.D.S.

At the close of the evidentiary portion of the final hearing

in this case, the undersigned announced on the record that the

deadline for filing proposed recommended orders was 21 days from

the date of the filing of the hearing transcript with the Clerk

of the Division of Administrative Hearings (Division). A

transcript of the final hearing was filed with the Division's

Clerk on September 10, 1997. A corrected transcript was filed

two weeks later on September 24, 1997.

To eliminate any confusion that may have arisen as the

result of the filing of a corrected transcript, the undersigned,

on September 26, 1997, issued on order "advis[ing] the parties

that proposed recommended orders [had to] be filed no later than

October 15, 1997 (which [was] 21 days from the date of the filing

of the corrected hearing transcript with the Division's Clerk)."

On October 9, 1997, and October 16, 1997, respectively,

Petitioner and Respondent filed proposed recommended orders. The

undersigned has carefully considered these post-hearing

submittals.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Petitioner is a state government licensing and

regulatory agency.

2. Respondent is now, and has been since August 5, 1981, a

dentist licensed to practice dentistry in the State of Florida.

3. His license number is DN 0009016.

4. In 1982, Respondent formed Dade Family Dental

Facilities, Inc. (DFDF), a multidentist, multioffice dental

practice in Dade County. He and Todd Smith, D.M.D., are

currently co-owners of DDF.

5. At all times material to the instant case, C.A., who is

presently 40 years of age, was a patient at DFDF under the

primary care of Respondent.

6. C.A. was not just a patient of Respondent's. He was

also someone whom Respondent considered to be a friend.

Nonetheless, C.A. proved to be an uncooperative and difficult

patient.

7. It was not uncommon for C.A. to miss scheduled

appointments.

8. Oftentimes, C.A. would show up at one of DFDF's three

Miami offices without an appointment claiming that he had a

dental emergency and needed to be seen. Whenever his schedule

permitted, Respondent accommodated C.A. and provided him with

treatment, even though C.A. did not have a scheduled appointment.

9. C.A. failed to take proper care of his teeth and gums.

Furthermore, he was a heavy smoker. (Smoking can exacerbate

periodontal problems.)

10. By Respondent's own admission (made at the final

hearing in this case), he "could have been a lot more extensive

in [the] notes [he maintained on C.A.], but because [C.A.] was a

friend, he . . . neglected to [provide such additional detail.]"

His handwritten notes (and those made by his assistants pursuant

to his instructions and directives) concerning his care and

treatment of C.A. are sketchy and incomplete. 1 They do not

provide sufficient information to give neutral third parties a

reasonably clear understanding of the full extent of the services

he provided C.A. and the circumstances that led him to follow

such a course of treatment.

11. C.A. first presented to Respondent on May 19, 1988. It

was an emergency visit. C.A. complained to Respondent of pain in

tooth number 18. Respondent began a root canal in an attempt to

alleviate the pain C.A. was experiencing. Thereafter, full-mouth

x-rays were taken, and a complete examination was given. Based

upon his review of the x-rays and the results of his examination,

Respondent devised a treatment plan for C.A., which he reduced to

writing and included in C.A.'s chart. Respondent's written

treatment plan did not contain any mention of tooth number 18.

It was merely a partial listing of work that needed to be done on

C.A. At no time did Respondent subsequently update, supplement

or otherwise modify this written treatment plan.

12. The root canal that Respondent began on May 19, 1988,

was completed by him on or about May 29, 1988.

13. C.A. next visited Respondent on June 15, 1988. He came

in without an appointment complaining of pain in tooth number 21.

Respondent performed root canal therapy on the tooth.

14. Although Respondent had determined that C.A. had

periodontal disease, he did not specifically so state in the

dental records that he maintained on C.A.

15. Respondent initially treated C.A.'s periodontal disease

by having his dental hygienist, Glenda Garvin, perform root

planning (scraping the roots below the gums) and curettage

(detoxifying the root surfaces from plaque). These procedures

were performed on December 13, 1988, and again on February 2,

1989.

16. Root planning and curettage are generally accepted

methods of initially treating periodontal disease.

17. Respondent subsequently determined that C.A. required

the services of a periodontal specialist. He therefore referred

C.A. to Ronald Cohen, D.D.S.

18. Dr. Cohen is a Florida-licensed dentist. At the time

he had an arrangement with Respondent whereby he performed

periodontal services for Respondent's patients at Respondent's

Northwest 18th Avenue and 183rd Street (Miami) office. He

performed these services, not under the direction or supervision

of Respondent, but as an independent contractor. Respondent

billed the patients (or their insurance companies) for the

periodontal services Dr. Cohen performed and he paid Dr. Cohen a

percentage of the fees he received.

19. Dr. Cohen first saw C.A. on October 5, 1989. He

confirmed Respondent's diagnosis of periodontal disease. Unlike

Respondent, however, Dr. Cohen made mention of this diagnosis in

the notes that he made concerning his care and treatment of C.A.

and which he left with Respondent. Among the other things that

he mentioned in his notes was that tooth number 3 "[m]ay need

distal root application."

20. Dr. Cohen determined that C.A. required osseous

(referring to the bone supporting the teeth) surgery.

21, Dr. Cohen performed such surgery approximately one week

after C.A.'s October 5, 1989, visit.

22. Thereafter, Dr. Cohen referred C.A. back to Respondent

for restorative procedures.

23. Respondent saw C.A. on December 5, 1989. Respondent's

notes of C.A.'s December 5, 1989, visit read simply as follows:

"Bridge Prep. #s 3-6. Imp. for Temp." No other information is

given. The pontics and abutments of the bridge referenced in the

notes are not identified. Furthermore, the notes do not

indicate, nor does a review of the other materials in the records

maintained by Respondent reveal, any reason why a bridge was

needed for teeth numbers 3 through 6. Respondent's records do

not contain any x-rays or notations indicating that any of these

teeth were missing at the time of C.A.'s December 5, 1989, visit.

24. In March of 1990, after C.A.'s gums had healed

sufficiently from the surgery Dr. Cohen had performed, 2

Respondent prepared a bridge for C.A. for teeth numbers 18

through 30.

25. He used bridge work made by Budget Labs. Respondent

was not satisfied with the appearance or the fit of the bridge.

He therefore told C.A., on March 27, 1990, that he would have the

bridge replaced, at no cost to C.A.

26. The replacement bridge was for teeth numbers 19 through

31 (rather than 18 through 30).

27. It was made by Mel Simkins.

28. Simkins has been a dental technician for the past 48

years.

29. Respondent wanted to make absolutely sure that there

were not any problems with the bridge, so he asked Simkins to be

present when the bridge was fitted and tested.

30. The bridge was put in on or about May 26, 1990.

31. At the time, it fit well and C.A. had no complaints.

The margins were adequately sealed. 3 There were sufficient

embrasure spaces. The abutment-to-pontic ratio was adequate.

32. Respondent saw C.A. again on September 18, 1990. At

the time the bridge (that he had put in on or about May 26, 1990)

appeared to still be intact and fit well. C.A., however,

complained of pain in the area of tooth number 27, one of the

teeth used as an abutment for the bridge. (On a previous visit

on March 24, 1990, Respondent had performed root canal therapy on

this tooth.)

33. Respondent consulted with Dr. Cohen about the matter.

He asked Dr. Cohen "how efficient he was at doing an apicoectomy"

(which involves removal of the root tip). Dr. Cohen indicated

that he was capable of performing such a procedure. Respondent

subsequently referred C.A. to Dr. Cohen to perform an apicoectomy

on tooth number 27.

34. Before seeing Dr. Cohen again, C.A. returned to the

DFDF on September 25, 1990. On this visit, he was seen by Dr.

Smith, who did composite restoration work on teeth numbers 6 and

11 (located on the upper arch). 4 Although he performed work on

the upper arch, Dr. Smith visually examined C.A.'s entire mouth,

and he noticed the bridge on the lower arch. The bridge did not

appear to be ill-fitted. Dr. Smith commented to C.A. that the

bridge looked good. In response to this comment, C.A. indicated

to Dr. Smith that he was pleased with the bridge.

35. C.A. saw Dr. Cohen on January 3, 1991, at which time

Dr. Cohen performed an apicoectomy on C.A.'s tooth number 27.

36. Approximately a week later C.A. saw Respondent. For

the first time, C.A. expressed to Respondent dissatisfaction with

the aesthetics of C.A.'s lower bridge. Respondent examined C.A.

He observed that "the tissue was resorbed, so that the gums

pulled back from the bridge." Respondent told C.A. that he would

replace the bridge at no cost to C.A. C.A. declined the offer

stating that he "wanted to move on." He asked Respondent to give

him back his money (that he paid Respondent for the lower

bridge). Respondent refused.

37. As he said he would, C.A. "moved on" to another

dentist. On February 12, 1991, he went to see Frederick Knoll,

D.D.S. Dr. Knoll examined C.A. He then discussed his findings

and available treatment options with C.A. During the discussion,

C.A. advised Dr. Knoll that he was not "going to do anything

about [his condition]." C.A. left Dr. Knoll's office without

receiving any treatment or making a return appointment.

38. Several months later, Dr. Knoll was asked by attorneys

that C.A. had retained to provide them with a written assessment

of C.A.'s condition based upon his February 12, 1991, examination

of C.A. In response, Dr. Knoll wrote the following letter, dated

August 20, 1991, to C.A.'s attorneys, in which he described what

his February 12, 1991, examination had revealed:

[C.A.] presented himself to me for a complete

dental examination on 2/12/91. His chief

complaint was of pain in the lower right

area, and a general discomfort. A full

series of radiographs were taken by [C.A.'s]

periodontist and were made available for me

to examine.

[C.A.] has class III periodontitis with the

sequela of alveolar bone loss and tooth

mobility. He has the additional problem of

multiple endodontic problems, some of which

may need to be solved by surgery. The

existing restorative dentistry needs to be

changed. It is currently contributing to the

periodontal problem, and additional splinting

will be necessary for stability. Extensive

caries are also present.

I have recommended to [C.A.] that his problem

requires a multi-disciplined approach to

achieve a satisfactory result. I asked him

to continue with his periodontist and to get

the necessary help from an endodontist. I

would coordinate the treatment and do all the

restorative dentistry. I have enclosed a

proposed treatment plan with the current

costs involved. This treatment plan does not

include the cost and treatment Dr. August

will incur from the periodontist or the

endodontist.

If you need any further information on this

matter, please feel free to contact me.

39. "[T]he existing restorative dentistry" to which Dr.

Knoll referred in his letter was upper and lower crown and bridge

work. Upon examining C.A. on February 12, 1991, Dr. Knoll had

observed crowns with "wide open margins."

40. On October 28, 1992, C.A. filed a malpractice lawsuit

against Respondent alleging that Respondent had failed to

properly diagnose his periodontal disease and, as a result, his

crown and bridge work failed and he suffered bone loss.

Respondent had never before, nor has he subsequently, been a

defendant in a malpractice lawsuit.

41. The lawsuit was settled on May 18, 1994. The

settlement agreement provided for a payment of $55,000.00 to C.A.

The payment was made on behalf of Respondent by his insurer.

42. Upon being notified of the settlement, AHCA commenced

an investigation to determine if the initiation of a disciplinary

proceeding against Respondent was warranted. The AHCA

investigator assigned the case, Kathy Redfearn, invited

Respondent to submit a written statement for consideration.

Respondent submitted such a statement. It read as follows:

This case [C.A.] vs Webb was originally [C.A]

vs Webb/Cohen. [C.A.'s] attorney later

dropped Ron Cohen from the suit because, as I

was told, they were unable to obtain a

mailing address on Dr. Cohen and subsequently

pursued me for vicarious liability.

[C.A.] went through a regimental Perio

program which included root

planning/curettage and full mouth flap and

osseous performed by Dr. Ron Cohen. After 5

perio surgery a bridge #18-30 was completed

on 6-26-90. [C.A.] was very pleased with the

bridge and indicated so to the lab technician

and his friend a periodontist.

On 9-18-90, [C.A.] complained of pain on #27

and was referred to Dr. Cohen for a second

opinion on a possible Apicoectomy on #27.

Dr. Cohen performed [an] apicoectomy [on]

#27, on 1-3-91, for [C.A.] and following this

procedure [C.A.] complained of a "botched

job" on the apicioectomy, #27, and

dissatisfaction with the esthetics of the

placed bridge.

The bridge I placed was compromised after the

apicoectomy procedure because of resorption

in areas #25, 26, and 27 where the flap had

been extended possibl[y] due to no buccal

bone and extreme cyst. (see Dr. Cohen's

notes.)

Prior to the apicoectomy there w[ere] no

signs of resorption under the bridge and no

signs of a compromised or inferior bridge.

This case went to mediation and both parties

negotiated in certain areas including the

fact that I was ultimately responsible for

Dr. Cohen's work because I had employed him,

hence vicarious liability.

43. AHCA sought C.A.'s assistance in the investigation, but

he refused to cooperate. He was asked to sign and return an

Authorization for Release of Patient Information, but he failed

to do so.

44. After AHCA completed its investigation, the matter was

presented to a probable cause panel.

45. Thereafter, the Administrative Complaint which is the

subject of the instant case was issued

CONCLUSIONS OF LAW

46. The Board of Dentistry (Board) is now, and has been at

all times material to the instant case, statutorily empowered to

take one or more of the following punitive actions against a

dentist licensed to practice dentistry in the State of Florida

based upon any of the grounds enumerated in Section 466.028(1),

Florida Statutes: revoke or suspend the dentist's license; place

the dentist on probation "for a period of time and subject to

such conditions as the [B]oard may specify, including requiring

the licensee to attend continuing education courses or

demonstrate competency through a written or practical examination

or to work under the supervision of another licensee"; reprimand

the dentist; deny the renewal of the dentist's license; restrict

the authorized scope of the dentist's practice; and impose an

administrative fine not to exceed $3,000.00 for each count or

separate offense. Section 466.028(2), Florida Statutes.

47. Proof greater than a mere preponderance of the evidence

must be submitted before the Board may take punitive action

against a licensed dentist. Clear and convincing evidence of the

dentist's guilt is required. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); McKinney v.

Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v.

Castor , 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v.

Department of Business and Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of

Business Regulation , 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v.

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992); Newberry v. Florida Department of Law Enforcement , 585

So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of

Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988); Section

120.57(1)(h), Florida Statutes("Findings of fact shall be based

on a preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute.").

48. "'[C] lear 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 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 Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

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

49. The punitive action taken against the dentist may be

based only upon those offenses specifically alleged in the

administrative complaint. See Cottrill v. Department of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Chrysler v.

Department of Professional Regulation , 627 So. 2d 31 (Fla. 1st

DCA 1993); Klein v. Department of Business and Professional

Regulation , 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993);

Arpayoglou v. Department of Professional Regulation , 603 So. 2d 8

(Fla. 1st DCA 1992); Willner v. Department of Professional

Regulation, Board of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA

1992); Celaya v. Department of Professional Regulation, Board of

Medicine , 560 So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v.

Department of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987);

Sternberg v. Department of Professional Regulation , 465 So. 2d

1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of

Professional Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

50. Furthermore, in determining whether Section 466.028(1),

Florida Statutes, has been violated in the manner charged in the

administrative complaint, one "must bear in mind that it is, in

effect, a penal statute. . . . This being true the statute must

be strictly construed and no conduct is to be regarded as

included within it that is not reasonably proscribed by it.

Furthermore, if there are any ambiguities included such must be

construed in favor of the . . . licensee." Lester v. Department

of Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977); see also Whitaker v. Department of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996)("Because

the statute [Section 626.954(1)(x)4, Florida Statutes] is penal

in nature, it must be strictly construed with any doubt resolved

in favor of the licensee.").

51. The Administrative Complaint issued in the instant case

alleges that punitive action should be taken against Respondent

because, in connection with his care and treatment of C.A., he

violated Section 466.028(1)(x), Florida Statutes (Count I) and

Section 466.028(1)(m), Florida Statutes (Count II).

52. Subsection (1)(x) (formerly subsection (1)(y)) of

Section 466.028, Florida Statutes, provides, in pertinent part,

as follows:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be

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, 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. . . . 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 $5,000

in a judgment or settlement, as a result of

negligent conduct on the part of the dentist.

These provisions (now found in Section 466.028(1)(x), Florida

Statutes) have been in effect at all times material to the

instant case.

53. A licensed dentist may not be found guilty of violating

Section 466.028(1)(x), Florida Statutes, based upon the

negligence or incompetence of others where there has been no

misconduct personal to licensee. See Ganter v. Department of

Insurance , 620 So. 2d 202, 205 (Fla. 1st DCA 1993); Pic N' Save

v. Department of Business Regulation , 601 So. 2d 245, 250 (Fla.

1st DCA 1992); McDonald v. Department of Professional Regulation

Board of Pilot Commissioners , 582 So. 2d 660, 669 (Fla. 1st DCA

1991; Federgo Discount Center v. Department of Professional

Regulation, Board of Pharmacy , 452 So. 2d 1063 (Fla. 3d DCA

1984).

54. In its proposed recommended order, Petitioner argues

that "Respondent must be found guilty of violating Section

466.028(1)(x), Florida Statues," inasmuch as "[t]he statute

clearly provides that a payment of a single indemnity in excess

of $5,000 in a settlement [such as that made to settle C.A.'s

lawsuit against Respondent] is dental malpractice, and if a

dentist is guilty of dental malpractice, then he is guilty of

incompetence or negligence for Licensure discipline."

55. The Administrative Complaint, however, does not charge

Respondent with having committed dental malpractice by virtue of

the indemnity payment made on his behalf as part of the

settlement of C.A.'s lawsuit against him. Neither the lawsuit,

nor the settlement, is even mentioned in the Administrative

Complaint. Under such circumstances, Respondent may not be found

guilty of violating Section 466.028(1)(x), Florida Statues, based

upon the outcome of the lawsuit.

56. Moreover, Section 466.028(1)(x), Florida Statutes,

should be read as establishing a rebuttable, not a conclusive,

presumption of guilt of dental malpractice based upon an

"indemnity paid in excess of $5,000 in a . . . settlement" of a

dental malpractice civil lawsuit. Such a construction is

mandated by the requirement that statutes be interpreted, where

possible, in such a manner that they will withstand

constitutional attack. See Rich v. Ryals , 212 So. 2d 641, 643

(Fla. 1968).

57. This rule of statutory interpretation was also applied

in Ayala v. Department of Professional Regulation , 478 So. 2d

1116 (Fla. 1st DCA 1985). Ayala was a Florida-licensed physician

who pled nolo contendere to criminal charges relating to his

practice. His plea was accepted and he was placed on probation.

Adjudication of guilt was withheld. Thereafter, an

administrative complaint was filed alleging that, because of the

entry of this plea, Ayala was in violation of Section

458.331(1)(c), Florida Statutes (1983), which provided as

follows:

The following acts shall constitute grounds

for which the disciplinary actions specified

in subsection (2) may be taken:

Being convicted or found guilty, regardless

of adjudication, of a crime in any

jurisdiction which directly relates to the

practice of medicine or to the ability to

practice medicine. Any plea of nolo

contendere shall be considered a conviction

for purposes of this chapter.

58. A hearing on the complaint was held before the Board of

Medical Examiners (now the Board of Medicine). The evidence

established that Ayala "had always maintained his innocence of

the criminal charges" and that he "considered his nolo contendere

plea to be a plea of convenience in order to avoid the hassle and

risks involved in a criminal trial." In deciding whether

disciplinary action was warranted, the Board of Medical Examiners

adopted the position that "since [Ayala] had pled nolo contendere

to the criminal charges and section 458.331(1)(c) provide[d] that

a nolo contendere plea 'shall be considered a conviction,'

[Ayala] was guilty as a matter of law of violating the standards

of professional conduct and was thus subject to disciplinary

action."

59. Ayala appealed the Board's final order to the First

District Court of Appeal. On appeal, Ayala challenged the

constitutionality of Section 458.331(1)(c), Florida Statutes, as

interpreted by the Board of Medical Examiners. The First

District responded to the arguments advanced by Ayala as follows:

[Ayala's] arguments have caused us to view

with substantial concern the constitutional

validity of section 458.331(1)(c) as it was

construed and applied by the Board of Medical

Examiners in this case. The Board construed

this section, in effect, as establishing a

conclusive presumption of guilt of the

underlying criminal charges so that any

consideration of the proffered circumstances

surrounding [Ayala's] nolo contendere plea

would be relevant only to potential

mitigation of the punishment to be imposed.

We do not reach the constitutional arguments,

however, because we must first construe

section 458.331(1)(c) in any permissible way

that will allow it to withstand

constitutional attack. Rich v. Ryals , 212

So.2d 641 (Fla. 1968). We find that section

458.331(1)(c) is clearly constitutional by

construing the word "shall" in the last

sentence of that subsection as permissive

rather than mandatory in meaning. Rich v.

Ryals , 212 So.2d 641, 643. As so construed,

the Board of Medical Examiners may

presumptively consider the nolo contendere

plea as evidence of a conviction for purposes

of chapter 458; however, in accordance with

the Supreme Court's opinion in The Florida

Bar v. Lancaster , 448 So.2d 1019, the Board

must allow [the licensee] the opportunity to

rebut this presumption and assert his

innocence of the underlying criminal charges

by explaining the reasons and circumstances

surrounding his plea of nolo contendere, and

thereby attempt to convince the Board that he

is not guilty of a crime in violation of the

provisions of section 458.331(1)(c). The

Board must consider this evidence in deciding

[the licensee's] guilt or innocence for

purposes of the disciplinary charges.

Because the Board had not done so in Ayala's case, the First

District reversed the Board's order finding Ayala in violation of

Section 458.331(1)(c), Florida Statutes (1983). See also Son v.

Florida Department of Professional Regulation, Division of Real

Estate , 608 So. 2d 75 (Fla. 3d DCA 1992)(Third District Court of

Appeal "approve[d] the holding in Ayala" and construed language

in real estate licensing law similar to Section 458.331(1)(c),

Florida Statutes (1983) as creating rebuttable, not conclusive,

presumption of guilt based upon nolo contendere plea).

60. Department of Professional Regulation v. Nudel , 556 So.

2d 766 (Fla. 1st DCA 1990) is another case which supports the

view that Section 466.028(1)(x), Florida Statutes, should not be

construed as creating a conclusive presumption of guilt based

upon an "indemnity paid in excess of $5,000 in a . . .

settlement" of a dental malpractice civil lawsuit. Nudel was a

physician who, in a disciplinary proceeding before the Board of

Medicine, was charged with "repeated malpractice," as prohibited

by Section 458.331(1)(t), Florida Statutes (1985), which

provided, in pertinent part, that "repeated malpractice" included

"three or more claims for medical malpractice within the previous

5-year period resulting in indemnities being paid in excess of

$10,000 each to the claimant in a judgment or settlement and

which incidents involved negligent conduct by the physician."

Nudel sought and obtained in Leon County Circuit Court a

declaratory judgment enjoining the disciplinary proceeding on the

ground that this statutory provision was unconstitutional as

applied to him. On appeal, the First District Court of Appeal

reversed, holding that the lower court was without authority to

interfere with the disciplinary proceeding inasmuch as the

statutory provision being challenged was not facially

unconstitutional. The First District cited Ayala in support of

its determination that Section 458.331(1)(t), Florida Statutes

(1985), was not unconstitutional on its face.

61. In the instant case, Respondent's evidentiary

presentation was sufficiently persuasive to overcome and rebut

any presumption that he committed the "dental malpractice"

alleged in C.A.'s lawsuit, to wit: that he had failed to

properly diagnose C.A.'s periodontal disease (which presumption

would have arisen, by operation of Section 466.028(1)(x), Florida

Statutes, if pleading requirements had been met, from proof of

the $55,000.00 indemnity payment made on Respondent's behalf to

settle C.A.'s dental malpractice civil lawsuit). Although

Respondent may not have specifically so indicated in the notes

that he maintained on C.A., the preponderance of the record

evidence establishes that Respondent properly diagnosed and

treated C.A.'s periodontal disease and referred him to Dr. Cohen

when it became apparent that the services of a periodontal

specialist were required.

62. In view of the foregoing, to the extent that the

Administrative Complaint alleges that Respondent failed to meet

minimum standards of performance in violation of Section

466.028(1)(x), Florida Statutes, in diagnosing and treating

C.A.'s periodontal disease, it should be dismissed.

63. In its proposed recommended order, Petitioner further

argues that "[t]he restorations completed by Respondent failed to

meet the minimum standards of performance."

64. The Administrative Complaint, however, does not allege

that Respondent performed any restorative procedures in a

substandard manner. It merely alleges (in paragraph 7 thereof)

that a subsequent treating dentist to whom C.A. presented on

February 12, 1991, more than eight months after Respondent had

last performed restorative work for C.A., "recommended that the

existing restorative dentistry be changed because it was

contributing to [C.A.'s] periodontal problem." No allegation is

even made that this "existing restorative dentistry," which, in

the opinion of the subsequent treating dentist, needed to be

changed, was Respondent's work product. In any event, the record

evidence is insufficient to clearly and convincingly establish

that the restorative work that Respondent did for C.A. was not

done in accordance with minimum performance standards. 6

Petitioner did present evidence that, as of February 12, 1991,

the date of Dr. Knoll's initial examination of C.A, C.A. had

upper and lower crown and bridge work that was inadequate and

needed to be replaced. Such evidence, however, when viewed in

light of the other evidence adduced at hearing, including, most

significantly, Respondent's own credible, exculpatory testimony

concerning the quality of the restorative work that he performed

for C.A. and the possible reasons why these restorations may have

no longer been adequate at the time of Dr. Knoll's February 12,

1991, examination of C.A. (more than eight months after

Respondent had last done restorative work for C.A.), 7 has not

produced in the mind of the undersigned "a firm belief or

conviction, without hesitancy," that Respondent failed to meet

minimum standards in performing this restorative work. 8

65. In paragraph 6 of the Administrative Complaint,

reference is made to endodontic treatment that Respondent

provided C.A. on March 24, 1997, which, according to the

Administrative Complaint, was unsuccessful. The evidence

supports the allegation made in the Administrative Complaint that

Respondent provided such treatment on the date specified and that

such treatment was unsuccessful. To establish a violation of

Section 466.028(1)(x), Florida Statutes, however, Petitioner had

to do more than plead and prove simply that the endodontic

treatment provided by Respondent to C.A. had an unsuccessful

outcome. Rather, it had to allege and demonstrate by clear and

convincing evidence that, in performing these endodontic services

for C.A., Respondent acted "incompeten[tly] or negligen[tly] by

failing to meet the minimum standards of performance . . . when

measured against generally prevailing peer performance." This it

failed to do.

66. There is an absence of clear and convincing record

evidence establishing that, as to any matter referenced in the

Administrative Complaint relating to his care and treatment of

C.A., Respondent acted "incompeten[tly] or negligen[tly] by

failing to meet the minimum standards of performance . . . when

measured against generally prevailing peer performance."

Accordingly, Count I of the Administrative Complaint, which

alleges that "Respondent is subject to discipline pursuant to

Section 466.028(1)(x), Florida Statutes," should be dismissed in

its entirety.

67. As noted above, Count II of the Administrative

Complaint alleges that, in connection with his care and treatment

of C.A., Respondent was guilty of recordkeeping deficiencies in

violation of Section 466.028(1)(m), Florida Statutes.

68. At all times material to the instant case, subsection

(1)(m) of Section 466.028, Florida Statutes, has authorized the

Board to take punitive action against a licensed dentist for

"[f]ailing 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." This statutory

provision does not purport to encompass the standards of any

professional or accrediting organization or "those of a

'reasonably prudent [dentist];'" nor can it "be interpreted as

authorizing disciplinary action for a [dentist's] failure to

document in a patient's medical chart a basis for not undertaking

a particular course of treatment." Breesmen v. Department of

Professional Regulation, Board of Medicine , 567 So. 2d 469, 471

(Fla. 1st DCA 1990). It does impose upon the dentist, however,

an obligation to provide sufficient documentation "so that

'neutral third parties can observe what transpired during the

course of treatment of a patient.'" Robertson v. Department of

Professional Regulation, Board of Medicine , 574 So. 2d 153, 156-

57 (Fla. 1st DCA 1990). 9 .

69. The record evidence in the instant case clearly and

convincingly establishes that Respondent failed to meet this

obligation by not including the following in the dental records

that he maintained on C.A., as alleged in the Administrative

Complain: mention of his diagnosis that C.A. had periodontal

disease; x-rays or other documentation reflecting that a bridge

was needed for C.A.'s teeth numbers 3 through 6 at the time of

C.A.'s December 5, 1989, visit; and a complete treatment plan. 10

70. His failure to have included such information in his

records was a violation of Section 466.028(1)(m), Florida

Statutes, for which he should be disciplined.

71. In determining the particular punitive action the Board

should take against Respondent for having committed this

violation, it is necessary to consult Rule 64B5-13.005 (formerly

21G-13.005, 61F5-13.005, and 59Q-13.005), Florida Administrative

Code, which contains the Board's "[d]isciplinary [g]uidelines."

Cf . Williams v. Department of Transportation , 531 So. 2d 994, 996

(Fla. 1st DCA 1988)(agency required to comply with its

disciplinary guidelines in taking disciplinary action against its

employees).

72. Rule 64B5-13.005, Florida Administrative Code,

provides, in pertinent part, as follows:

(1) Unless relevant mitigating factors are

demonstrated the Board shall always impose a

reprimand and an administrative fine not to

exceed $3,000.00 per count or offense when

disciplining a licensee for any of the

disciplinary grounds listed in subsections

(2) or (3) of this rule. The reprimand and

administrative fine [are] in addition to the

penalties specified in subsections (2) and

(3) for each disciplinary ground. . . .

(3) When the Board finds an applicant or

licensee whom it regulates under Chapter 466,

Florida Statutes, has committed any of the

acts set forth in Section 466.028, Florida

Statutes, it shall issue a Final Order

imposing appropriate penalties within the

ranges recommended in the following

disciplinary guidelines: . . .

(p) Failure 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. The usual action of the Board

shall be to impose a period of

probation. . . .

(4) Based upon consideration of aggravating

or mitigating factors, present in an

individual case, the Board may deviate from

the penalties recommended in subsections (2)

and (3) above. The Board shall consider as

aggravating or mitigating factors the

following:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses or

number of patients involved;

(d) The length of time since the violation;

(e) The number of times the licensee has

been previously disciplined by the Board;

(f) The length of time the licensee has

practiced;

(g) The actual damage, physical or

otherwise, caused by the violation and the

reversibility of the damage;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

licensee's livelihood;

(j) Any efforts of rehabilitation by the

licensee;

(k) The actual knowledge of the licensee

pertaining to the violation;

(l) Attempts by the licensee to correct or

stop the violation or refusal by the licensee

to correct or stop violation;

(m) Related violations against the licensee

in another state including findings of guilt

or innocence, penalties imposed and penalties

served;

(n) Penalties imposed for related offenses

under sections (2) and (3) above;

(o) Any other relevant mitigating or

aggravating factor under the

circumstances. . . .

73. Having considered the facts of the instant case in

light of the provisions of Rule 64B5-13.005, Florida

Administrative Code, it is the view of the undersigned that the

appropriate punitive action to take against Respondent in the

instant case for his violation of Section 466.028(1)(m), Florida

Statutes, is to issue him a reprimand, fine him $1,000.00, and

place him on probation for a period of one year subject to such

conditions as the Board may specify.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order (1)

dismissing Count I of the Administrative Complaint; (2) finding

Respondent guilty of violating Section 466.028(1)(m), Florida

Statutes, as alleged in Count II of the Administrative Complaint

(except to the extent that Count II charges Respondent with

violating Section 466.028(1)(m), Florida Statutes, by not keeping

records "correctly indicat[ing] amounts owed to [him] in relation

to amounts paid by Patient C.A.," which allegation should be

dismissed); and (3) as punishment for Respondent's violation of

Section 466.028(1)(m), Florida Statutes, issuing him a reprimand,

fining him $1,000.00, and placing him on probation for a period

of one year subject to such conditions as the Board may specify.

DONE AND ENTERED this 31st day of October, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October, 1997.

ENDNOTES

1 To make matters worse, some of the entries are extremely

difficult, if not impossible, to decipher.

2 C.A. was still smoking, but not as frequently as he had in the

past .

3 The margin is where the crown and tooth interface. When the

margins are open, decay may form under the crown.

4 At the time of the visit, Dr. Smith was newly licensed and a

recent (May, 1990) graduate of dental school.

5 The bridge was actually for teeth numbers 19 through 31.

6 The opinion expressed at the final hearing by Petitioner's

expert, Dr. Danziger, that Respondent's restorative work was

"below the standard of care" and that Respondent "failed to

recognize and properly treat on time [ C.A.'s ] periodontal

disease" was based upon incomplete factual information inasmuch

as, at the time he testified, Dr. Danziger did not have the

benefit of the testimony Respondent later gave that clarified and

supplemented the information contained in the dental records

Respondent maintained on C.A., upon which Dr. Danziger had relied

in forming his opinion. "An expert's opinion which is based on

an . . . incomplete hypothetical cannot constitute competent

substantial evidence." Sabre Marine v. Feliciano , 461 So. 2d

985, 987-88 (Fla. 1st DCA 1984).

7 Respondent testified in his own defense as both a fact and

expert witness. Notwithstanding its self-serving nature, the

exculpatory testimony of a respondent, like that given by

Respondent in the instant case, may be considered and relied upon

as competent substantial evidence, even if it is uncorroborated

(which was not the situation in the instant case) and contrary to

the evidence adduced by the licensing agency. See Falk v. Beard ,

614 So. 2d 1086, 1089 (Fla. 1993)("It would be an anomalous

situation indeed if the testimony of the one against whom a

complaint is lodged could never form the basis for competent

substantial evidence."); Florida Publishing Company v. Copeland ,

89 So. 2d 18, 20 (Fla. 1956)("There is no doubt that the

testimony of the plaintiff, although uncorroborated, ' . . . if

reasonable on its face, and believed and accepted by the jury as

true can carry the burden of proof.'"); Martuccio v. Department

of Professional Regulation, Board of Optometry , 622 So. 2d 607,

609-10 (Fla. 1st DCA 1993)(expert testimony of applicant for

licensure was not incompetent and could be relied upon "as

competent substantial evidence to support [hearing officer's]

conclusions"); Raheb v. Di Battisto , 483 So. 2d 475, 476 (Fla.

3d DCA 1986)("We are not persuaded, as urged, that the testimony

of the plaintiff . . . should have been rejected by the trial

court as inherently incredible; it was the trial court's

function, not ours, to weigh the testimony and evidence adduced

in the cause based on its observation of the bearing, demeanor,

and credibility of the witnesses appearing in the cause.").

8 Significantly, C.A. did not testify and therefore the record is

devoid of any testimony from him regarding those things that he

may have done, or that may have been done on his behalf,

particularly during the period from on or about May 26, 1990

(when he last had restorative work performed for him by

Respondent) to February 12, 1991 (the date he was first examined

by Dr. Knoll), which might have impacted his dental health in

general and the restorative work done by Respondent in

particular. If such testimony had been presented, depending, of

course, on its substance and believability, it may have bolstered

Petitioner's case and made Respondent's evidentiary presentation

less persuasive.

9 The Board has adopted a rule, Rule 64B5-17.002, Florida

Administrative Code, implementing the provisions of Section

466.028(1)(m), Florida Statutes. The rule provides, in pertinent

part, that a dentist's records on each patient must contain, at a

minimum, an "appropriate medical history"; the "results of

clinical examination and tests conducted, including the

identification, or lack thereof, of any oral pathology or

diseases"; a "treatment plan proposed by the dentist"; and

information concerning the "treatment rendered to the patient."

10 The Administrative Complaint (in paragraph 8) alleges one

additional recordkeeping deficiency: "Patient C.A.'s records do

not correctly indicate amounts owed to Respondent in relation to

amounts paid by Patient C.A." The failure to maintain accurate

patient billing and payment records, however, does not constitute

a violation of Section 466.028(1)(m), Florida Statutes, inasmuch

as the amounts patients are billed and the amounts they pay are

not matters which must be included in the records Section 466.028

requires licensees to keep. To comply with Section 466.028, a

licensee must merely maintain records that give neutral third

parties a reasonably clear understanding of what the licensee did

to treat a patient and the circumstances that led the licensee to

follow such a course of treatment. There is no need for the

licensee to include information concerning the amount charged and

received for providing such treatment.

In its proposed recommended order, Petitioner identifies numerous

recordkeeping deficiencies in addition to those mentioned in the

Administrative Complaint. Because these other deficiencies were

not pled, they are not a basis upon which the Board may

discipline Respondent in the instant case.

COPIES FURNISHED:

Wendy Smith Hansen, Senior Attorney

Agency for Health Care Administration

Office of the General Counsel

Medical Quality Assurance

Allied Health

Post Office Box 14229

Tallahassee, Florida 32399-4229

Abe A. Bailey, Esquire

18350 Northwest Second Avenue

Fifth Floor

Miami, Florida 33169

William Buckhalt, Executive Director

Department of Health, Board of Dentistry

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0765

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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.