99-004690 Department Of Health, Board Of Denistry vs. Douglas J. Phillips, Jr. Status: Closed Recommended Order on Wednesday, August 15, 2001.

Summary: Dentist failed to maintain adequate records and proof of financial responsibility. Dentist practiced below standard of care by using unconventional diagnostic methodology.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

BOARD OF DENTISTRY , )

)

Petitioner , )

)

vs. ) Case No. 99-4690

)

DOUGLAS J. PHILLIPS, D.D.S. , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

October 16-18, 2000, and January 22-24, 2001, at West Palm Beach,

Florida, before Claude B. Arrington, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings. The record closed in this proceeding when the parties

completed a rebuttal deposition on April 6, 2001.

APPEARANCES

For Petitioner : Rosanna Catalano, Esquire

R. Lynn Lovejoy, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Mailstop 39

Tallahassee, Florida 32308

For Respondent : James M. Tuthill, Esquire

2161 Palm Beach Lakes Boulevard

Raymond Plaza, Suite 407

West Palm Beach, Florida 33409

STATEMENT OF THE ISSUE

Whether Respondent, a licensed dentist, committed the

offenses alleged in the First Amended Administrative Complaint

and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent based on his diagnosis and treatment of a patient who

will be referred to as C. C. Respondent denied the alleged

violations set forth in the Administrative Complaint and demanded

a formal administrative hearing. The matter was referred to the

Division of Administrative Hearings, and this proceeding

followed.

Thereafter, Petitioner's motion for leave to amend its

administrative complaint was granted. Petitioner's First Amended

Administrative Complaint, dated May 24, 2000, and filed with the

Division of Administrative Hearings on June 15, 2000, alleged

certain facts pertaining to Respondent's diagnosis and treatment

of C. C. Based on those allegations, Petitioner charged

Respondent with the following violations : 1/

COUNT I : Violating Section 466.028(1)(m),

Florida Statutes, by failing to keep adequate

dental records.

COUNT II : Violating Section 466.028(1)(t),

Florida Statutes, by committing fraud,

deceit, or misconduct in the practice of

dentistry.

COUNT III : Violating Section 466.624(1)(w),

Florida Statutes, by experimenting on a

patient without the patient's informed,

written consent.

COUNT IV : Violating Rule 64B5-17.011,

Florida Administrative Code, by failing to

maintain malpractice insurance or other proof

of financial responsibility.

COUNT V : Violating Section 455.624(1)(o),

Florida Statutes, by performing professional

services that had not been authorized by his

patient in violation of Section 766.103,

Florida Statutes.

COUNT VI : Violating Section 466.028(1)(x),

Florida Statutes, by practicing below the

standard of care.

At the final hearing, the parties offered four joint

exhibits, each of which was admitted into evidence.

Petitioner called the following witnesses for live

testimony : AHCA investigator Bonnie Schaffrick; Respondent;

Thomas Eugene Shields, D.D.S.; Henry Allen Gremion, D.D.S.;

Theresa Anne Dolan, D.D.S.; Gregory Becker, D.D.S.; and Richard

Marx, D.D.S. The Petitioner called the following rebuttal

witnesses for live testimony : Richard Chichetti, D.M.D.; and

Robert Baratz, M.D., D.D.S., Ph.D. In addition to the joint

exhibits, Petitioner offered 24 exhibits, each of which was

admitted into evidence. Among Petitioner's exhibits were the

depositions of the following : C. C . (transcript and video);

Dr. Chichetti (transcript and video); Parker Mahan, D.D.S.

( transcript and video); Stewart Kline, M.D. (transcript only);

and Dr. Baratz (transcript only).

Respondent testified at the final hearing and presented the

additional testimony of Douglas Martin, M.D.; Rupert Bliss,

D.D.S.; and Dietrich Klinghardt, M.D., Ph.D. In addition to the

joint exhibits, Respondent offered 39 exhibits. Respondent's

Exhibits 10, 13, 14, 15, and 18 were rejected. Respondent's

Exhibit 16 was withdrawn. All other Respondent's exhibits were

admitted into evidence. Respondent's exhibits included the

depositions (transcript and video for each deponent) of the

following: Boyd Haley, Ph.D.; Donald Warren, D.D.S.; Jerry E.

Bouquot, D.D.S.; Raymond G. Behm, D.D.S.; Wesley Shankland,

D.D.S., Ph.D.; Richard T. Hansen, D.M.D.; Christopher J. Hussar,

D.D.S., M.D.; Marlind H. Stiles, D.M.D.; David Minkoff, M.D.;

James P. Carter, Sr., M.D.; William Cowden, M.D.; Mark McClure,

D.D.S.; James Medlock, D.D.S.; Andrew Slavin, D.D.S.; and

Victor A. Marcial-Vega, M.D.

The parties made extensive objections to the depositions

entered into evidence. Motion hearings were held January 4,

2001, February 9, 2001, February 23, 2001, and March 28, 2001.

Transcripts of those motion hearings are part of the record.

Additionally, the undersigned entered separate orders ruling on

those objections not ruled upon during the motion hearings.

Transcripts of the proceedings conducted on October 16,

2000, consisting of Volumes I and II, were filed on April 25,

anscripts of the proceedings conducted on October 17 and

18, 2000, consisting of Volumes III-VI, were filed April 24,

anscripts of the proceedings conducted on January 22-24,

2001, consisting of Volumes I-V, were filed February 23, 2001.

Each party filed a Proposed Recommended Order, which has been

duly considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state agency charged with regulating the

practice of dentistry pursuant to Section 20.43, Florida

Statutes, and Chapters 455 and 466, Florida Statutes.

2. Pursuant to the authority of Section 20.43 (3)(g),

Florida Statutes, Petitioner has contracted with the Agency for

Health Care Administration to prosecute administrative complaints

as required by the Board of Dentistry.

3. Respondent is, and has been since 1966, a licensed

dentist in the State of Florida, having been issued license

number DN 0004148. At the time of the final hearing,

Respondent’s office address was 4512 Flagler Drive, #301, West

Palm Beach, Florida 33407-3802. One prior disciplinary

proceeding has been filed against Respondent's license. The

record is silent as to the details of that prior disciplinary

action.

4. In addition to a traditional general dental practice,

Respondent practices alternative dentistry (also referred to by

Respondent as biological dentistry) on chronically ill patients.

In his alternative dental practice, Respondent utilizes

unconventional diagnostic methodologies and homeopathic remedies.

5. In December 1995 and January 1996, Respondent treated

C. C., a female born May 10, 1950.

6. At the times pertinent to this proceeding, C. C.

considered herself to be pre-cancerous and chronically ill.

C. C. believed that she had suffered radiation poisoning in 1986

when a cloud from the nuclear disaster at Chernobyl 2/ passed

over her home in Italy while she was outside in the garden.

7. C. C., a chiropractor, became interested in alternative

dentistry and attended various seminars presented by proponents

of alternative medicine and dentistry. C. C. consulted with

different health care professionals, including dentists, medical

doctors, and nutritionists, and became familiar with alternative

dentistry and homeopathic remedies. C. C. believed that the

amalgams in her teeth had become toxic and were inhibiting her

recovery to full health. At one of these seminars in 1995, C. C.

submitted to a test that purportedly revealed she suffered from

heavy metal poisoning. She also examined her blood through a

powerful microscope and found her blood to be unusual, which

reinforced her belief that she was pre-cancerous.

8. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995

on the topic of alternative dentistry. The seminar attended by

Dr. Klinghardt and C. C. i ncluded a discussion on toxicity from

the oral cavity causing systemic health problems. The seminar

also included a discussion on the treatment of dental conditions

using homeopathic remedies.

9. C. C. asked Dr. Klinghardt whether he thought she should

have her amalgams replaced with non-toxic materials. He

recommended that she do so and he also recommended that she have

extracted any tooth that had a root canal.

10. C. C. asked Dr. Klinghardt to recommend a dentist to

remove her amalgams. Dr. Klinghar dt recommended Respondent for

the amalgam replacement.

11. Notakehl, Pefrakehl, and Arthrokehlan, the three

homeopathic remedies Respondent used in his subsequent treatment

of C. C., were discussed at the seminar. These homeopathic

remedies are referred to as Sanum remedies, which is a reference

to the German manufacturer.

12. In March of 1995, C. C. visited a dentist named Ira

Windroff in South Florida. Dr. Windroff took a panoramic X-ray

and X-rays of C. C.'s individual teeth. After the X-rays,

Dr. Windroff referred C. C. to another dentist, who performed a

root canal on C. C.'s tooth #19, which is in the lower left

quadrant.

13. On December 12, 1995, C. C. presented to Respondent's

office to discuss having her amalgams replaced.

14. C. C. wa s experiencing pain in tooth #19 on

December 12, 1995. C. C. filled out a standard medical history

form that Respondent had used in his practice for several years.

C. C. discussed her medical and dental history with Respondent.

C. C. told Respondent tha t she had a root canal on tooth #3 when

she was a teenager and that she recently had a root canal on

tooth #19. C. C. informed Respondent that she considered herself

to be chronically ill and pre-cancerous. She told him she had

suffered radiation poisoning in 1986 and preferred to have no

unnecessary X-rays. She also told him that she was very weak

from a recent bout of the flu.

15. Respondent's office notes reflect that C. C. presented

with lower left tooth pain (without identifying a specific tooth)

and that he "muscle tested for origin."

16. Respondent purported to evaluate C. C.'s medical and

dental status by evaluating whether her autonomic nervous system

responded to various stimuli. This form of testing will be

referred to as ART, which is an acronym for "Autonomic Response

Testing".

17. The autonomic nervous system and ART were explained by

several of the experts who testified in this proceeding.

18. The human body has an autonomic nervous system

consisting of a sympathetic part and a parasympathetic part.

Both parts are regulated by the hypothalamus, which is located

deep inside the brain. The nerves constituting the autonomic

nervous system pass thorough ganglions, which are groups of nerve

cells located outside the brain at different locations of the

body that act as relay stations.

19. The sympathetic part of the autonomic nervous system is

generally believed to deal with the mechanisms that prepare the

body to counteract stresses that come from outside the body. For

example, if someone cuts his or her finger, the sympathetic part

of the autonomic nervous system will cause blood vessels to

contract so the body does not lose all of its blood. It also

will prepare the body to fight or flee in response to an outside

threat.

20. The parasympathetic part of the autonomic nervous

system deals with the body's inner secretions, such as insulin

and digestive acids. The reactions of the parasympathetic part

of the autonomic nervous system calm the body down after a stress

and usually promote healing.

21. Respondent's examination of C. C. on December 12, 1995,

lasted between one hour (Respondent's estimate) and three hours

(C. C.'s estimate).

22. During part of the ART examination, C. C. reclined in a

dental chair. When she was not in the dental chair, she reclined

on a massage table.

23. During the ART examination, Respondent used his dental

assistant to serve as an indirect tester, which required her to

be positioned between the patient and the examiner. The dental

assistant held one of C. C.'s hands with one hand while extending

her (the dental assistant's) free arm. According to those

subscribing to this methodology, the physical contact between the

dental assistant and C. C. established an electrical current

between them, which caused the responses from C. C.'s autonomic

nervous system to be transferred to the dental assistant.

Respondent used the dental assistant's deltoid muscle to

determine whether a particular stimulus had caused a response

from C. C.'s autonomic nervous system. Respondent pushed down on

the dental assistant's extended arm after exposing C. C. to a

stimulus and evaluated the resistance he encountered. He

believed he could determine by that resistance whether the dental

assistance's deltoid muscle became weak or remained strong. If

the dental assistant's deltoid muscle became weak following

C. C.'s exposure to a stimulus, Respondent concluded that the

autonomic nervous system had responded and that the area of the

body being tested was not healthy. If the dental assistant's

deltoid muscle remained strong, Respondent concluded that the

autonomic nervous system had not responded and that the area of

the body being tested was healthy.

24. Respondent used his dental assistant as an indirect

tester because he considered C. C. to be too weak to be directly

tested, which would have required her to extend her arm

throughout the examination. 3/

25. After he had C. C. place her hand over her belly button

while she was in a reclined position and holding the dental

assistant's hand, Respondent pushed down on the dental

assistant's extended arm. Based on his evaluation of the

resistance in the dental assistant's arm, Respondent believed

that C. C.'s autonomic nervous system was in a protective mode.

Respondent then attempted to determine the reasons for that

finding.

26. Respondent placed vials of various substances,

including heavy metals, bacteria from root canal teeth, and

homeopathic remedies, on C. C.'s lap to determine whether the

substances triggered a response from C. C.'s autonomic nervous

system. He placed his fingers on her individual teeth to

determine whether that prompted a response from C. C.'s autonomic

nervous system. Respondent believed that by ART he could

determine the condition of C. C.'s int ernal organs, evaluate her

dental problems, and identify the homeopathic remedies that would

best promote healing.

27. In addition to using ART, Respondent visually inspected

C. C.'s teeth with a dental mirror, used a dental explorer to

examine the edge of fillings and cracks in the teeth, probed her

gums, percussed tooth #19, and palpitated all of her teeth.

Although his dental records for this patient do not reflect that

he did so and he could not remember having done so prior to

C. C.'s deposition, t he evidence established that Respondent

reviewed the X-rays taken by Dr. Windroff.

28. Respondent did not take any X-ray of tooth #19 before

he extracted that tooth. The only X-rays available to Respondent

were taken before the root canal was performed on that tooth in

March 1995. Respondent also did not order any laboratory tests.

29. Based on his use of ART, Respondent concluded that the

following areas of C. C.'s body were compromised: tonsils, heart,

spleen, pancreas, liver, gall bladder, large intestines, and

pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and

tooth #19 had become toxic.

30. Respondent also concluded that the following

homeopathic remedies should be used to treat C. C.: Notakehl,

Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived

from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy

derived from Propionibacterium acnes. Prefakehl is a fungal

remedy derived from Candida parapsilosis. 4/

31. Respondent told C. C. that the root canals that had

been performed on tooth #3 and tooth #19 contained toxins and

were blocking her recovery. He also told her that the removal of

her root canal teeth and any toxic area around the root canal

teeth should be given higher priority than the replacement of her

amalgams.

32. Respondent told C. C. that he could not help her if she

did not have her two root canal teeth extracted. Respondent did

not offer C. C. any other options because he did not think any

other option existed.

33. There was a conflict in the evidence as to whether

C. C. consented to the extraction and treatment with the Sanum

remedies. That conflict is resolved by finding that Respondent

adequately explained to C. C. how he intended to extract the two

teeth and what she could expect following the extractions.

Although C. C. did not ask to have those two teeth extracted, she

clearly agreed to have the extractions. It is further found that

C. C. knowingly agreed to Respondent's proposed treatment with

the Sanum remedies. C. C. knew about the Sanum remedies and how

Respondent was going to use them to treat her.

34. Much of the evidence presented by Respondent related to

ART and the manner it was being used by practitioners in December

1995. The undersigned has carefully reviewed and considered that

evidence. The undersigned has also reviewed and considered the

evidence presented by Petitioner. The following findings are

made as to the use of ART in 1995. The Florida Dental

Association, the American Medical Association, and the American

Dental Association did not recognize ART as a reliable

methodology for testing toxic conditions of the teeth. ART was

not being taught in any dental school in Florida. ART was not

being used by a respected minority of dentists in the United

States to the extent it was used by Respondent. Petitioner

established by clear and convincing evidence that the extent to

which Respondent relied on that methodology in evaluating this

patient exceeded any acceptable use of ART in 1995 and

constituted practice below the standard of care as alleged in

Count VI of the Amended Administrative Complaint. Because of his

over-reliance on ART, Respondent's diagnosis was flawed, and

there was insufficient justification for his subsequent treatment

of the patient. 5/

35. On December 21, 1995, C. C. returned to Respondent for

the extraction of tooth #3 and tooth #19. Respondent extracted

the two teeth and removed bone in the vicinity of each tooth that

he thought was necrotic, a procedure referred to as cavitation.

Respondent testified that he encountered soft, mushy bone

following the extractions. He removed hard bone in the

extraction area with a small rotary bur. He removed soft tissue

and bone with a curette.

36. There was a conflict in the evidence as to whether

Respondent was justified in removing bone surrounding the

extraction sites. Based on Respondent's testimony and the

depositions and dental records of C. C.'s dentists who treated

her after Respondent, it is concluded that his decision to remove

bone surrounding the extraction sites was within his clinical

judgment. It should be noted, however, that Respondent's dental

records provide no justification for this extensive removal of

bone adjacent to the extraction sites.

37. Following the extractions and cavitation procedures,

Respondent injected the patient's mouth and face with Notakehl,

Pefrakehl, and Arthrokelan.

38. Prior to her visit to Respondent, C. C.'s teeth #5 and

#17 had been extracted. Respondent injected the area where tooth

#5 had been with the Sanum remedies using a stabident drill, a

dental drill that is usually used to administer anesthesia. He

also injected the Sanum remedies where tooth #17 had been.

Following the extractions of teeth #3 and #19, Respondent

irrigated the extraction wounds with the Sanum remedies.

Respondent injected the right sphenopalatine ganglion area and

the left and right otic ganglion areas, the superior origin and

inferior origin pharyngeal constrictor muscles, and the

submandibular ganglion with a one percent solution of Xylocaine

that also contained drops of Notakehl. Respondent testified he

used Xylocaine, an epidural grade anesthetic, as a carrier for

Notakehl. Some of the injections were made into the oral cavity

while others were made through the face. Consistent with

homeopathic practice, Respondent believed that these injections

would promote healing.

39. Tooth #3 is located directly beneath the right

maxillary sinus cavity. From the X-rays available to him,

Respondent knew that the root canal material that had been used

to fill that tooth was very close to the thin membrane that

protects the sinus cavity. Following his extraction of tooth #3,

Respondent did not determine whether the maxillary sinus membrane

had been perforated during the extraction procedure. Petitioner

established by clear and convincing testimony that this failure

constituted practice below the standard of care as alleged in

Count VI of the Amended Administrative Complaint.

40. Following the extractions, Respondent placed some soft

tissue back into the extraction sites, which covered a little bit

of the socket, and he left a little bit of an opening for a clot

to form to heal from the inside out. He sutured the area

around the buccal bone, which he had reflected in order to remove

the tooth.

41. C. C. returned to Respondent on December 22, 23, 24,

27, 28, 29, 1995, and January 5 and 10, 1996.

42. On December 22, 1995, Respondent checked the extraction

sites and electrically stimulated the extraction sites using a

process referred to as micro current.

43. On December 23, 1995, Respondent checked the extraction

sites, applied micro current to those sites, and injected a one

percent solution of Xylocaine with drops of Notakehl into the

right sphenopalatine ganglion, both otic ganglions, and the left

submandibular ganglion.

44. On December 24, 1995, Respondent applied micro current

to the extraction sites and injected Sanum remedies into the area

of the extraction sites.

45. On December 27, 1995, C. C. telephoned Respond ent to

complain of pain in the area from which tooth #3 had been

extracted. From what she told him, Respondent believed that

C. C. had a perforated maxillary sinus. When he examined her on

December 27, 1995, he confirmed that she had a sinus perforation.

Respondent reopened the area he had sutured on December 21, 1995,

cleaned out granulated tissue. 6/ He did a flap procedure,

referred to as a plastic closure, where tissue was reflected from

the cheek side of the gum and placed over the extraction site to

the palate side. He thereafter injected the right otic ganglion

and right sphenopalatine ganglion with a solution of one percent

Xylocaine and Notakehl.

46. Between December 28, 1995, and January 10, 1996,

Respondent continued his homeopathic treatment of C. C. combined

with the micro current procedure.

47. Respondent did not treat C. C. after January 10, 1996.

48. C. C. knew when she agreed to the extractions that she

would have to have bridges for the areas of the extractions.

Those two bridges were inserted after she left Respondent's care.

49. Petitioner asserted that Respondent practiced below the

standard of care by failing to appropriately close the sinus

perforation on December 27, 1995. That assertion is rejected.

On January 18, 1996, James Medlock, D.D.S. examined C. C. at his

dental office in West Palm Beach, Florida. C. C. was not

experiencing difficulty with the flap procedure Respondent had

performed on December 27, 1995, when she was seen by Dr. Medlock.

Gary Verigan, D.D.S., treated C. C. at his dental office in

California between February 1996 and May 1997. Richard T.

Hansen, D.D.S., treated C. C. at his dental office in California

between May 1997 and November 1999. The dental records of

Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in

evidence as Joint Exhibits 1, 3 and 4, respectively. The

depositions of Dr. Medlock and Dr. Hansen are in evidence.

Dr. Hansen re-opened the area of the maxillary sinus that

Respondent had closed with the flap procedure and found that bone

had not re-generated in that area. Dr. Hansen believed that

Respondent was not the cause of the problems for which he treated

C. C. There was insufficient evidence to establish that the

subsequent dental problems encountered by C. C. were caused by

the extraction, cavitation, or flap procedure performed by

Respondent in December 1995. Petitioner did not establish by

clear and convincing evidence that Respondent's closure of the

sinus perforation on December 27, 1995, constituted practice

below the standard of care.

50. Respondent did not have malpractice insurance or proof

of financial security at the time that he treated C. C. He did

not have proof of financial security until March 13, 1997, when

he obtained an irrevocable letter of credit from Palm Beach

National Bank and Trust to bring himself in compliance with

Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/

This irrevocable letter of credit was current at the time of the

final hearing. Respondent is a dentist who treats people who are

chronically ill. Respondent's use of ART and homeopathic

remedies are clearly unconventional and can, in Respondent's own

words, cause a lot of harm if he is not careful. Under the facts

of this case, his failure to have malpractice insurance or proof

of financial responsibility while practicing alternative

dentistry on high-risk patients is found to be an especially

egregious violation of Rule 64B5-17.011, Florida Administrative

Code. His subsequent compliance with that Rule is not viewed by

the undersigned as being a mitigating factor.

51. Petitioner established by clear and convincing evidence

that Respondent failed to keep adequate dental records in

violation of Section 466.028(1)(m), Florida Statutes, as alleged

in Count II of the Amended Administrative Complaint.

Respondent's medical history for the patient is incomplete.

Although Respondent testified he did not take X-rays because of

the patient's history of radiation poisoning, his medical history

does not reflect that history. Respondent did not chart C. C.'s

teeth, which is a routine practice. His description of his

examination was vague, his findings were vague, and his proposed

treatment plan was vague. His records did not reflect that he

had viewed X-rays of the patient, did not reflect that Notakehl

was injected with Xylocaine, and did not reflect the anesthetic

that was used to numb the mouth during the extraction. The most

serious deficiency is that his records provide no justification

for the extraction of two teeth or for the cavitation procedures

that followed, a basic requirement of Section 466.028(1)(m),

Florida Statutes.

52. There was a conflict in the evidence as to whether

Respondent's use of the Sanum remedies constituted practice below

the standard of care or experimentation. Petitioner did not

establish that the practice of homeopathy is per se below the

standard of care or that the use of homeopathic remedies in this

case constituted experimentation. Respondent established that

the three Sanum remedies he administered to C. C. are recognized

homeopathic remedies, and he also established that the manner in

which he administered these remedies was consistent with

homeopathic practice. The conflict in the evidence is resolved

by finding that Petitioner did not prove by clear and convincing

evidence that Respondent's use of the homeopathic remedies

constituted practice below the standard of care or

experimentation. 8/

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

54. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

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

Co. v. Department of Agriculture and Consumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

645 So. 2d 398 (Fla. 1994). The following statement has been

repeatedly cited in discussions of the clear and convincing

evidence standard:

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 evidence 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 the firm belief of [sic]

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

55. Section 466.028(1), 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:

* * *

(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.

* * *

(t ) Fraud, deceit, or misconduct in the

practice of dentistry or dental hygiene.

* * *

(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. . . .

56. Petitioner established by clear and convincing evidence

that Respondent failed to keep written dental records justifying

the course of his treatment of C. C., in violation of Section

466.028 (1)(m), Florida Statutes, as alleged in Count I of the

Amended Administrative Complaint.

57. Petitioner alleged in Count II that Respondent was

guilty of fraud, deceit, or misconduct in violation of Section

466.028(1)(t), Florida Statutes.

58. Petitioner failed to establish that Respondent engaged

in fraud or deceit.

59. Petitioner alleged that Respondent's use of his dental

assistant as an indirect tester during the ART evaluation

constituted misconduct. Section 466.024(1), Florida Statutes,

prohibits a dentist from delegating " irremedial tasks" to a

dental hygienist, but permits the dentist to delegate "remedial

tasks" to a dental hygienist. As defined by Section 466.003(11)

and (12), Florida Statutes, the terms " irremedial tasks" and

"remedial tasks" pertain to intraoral treatment tasks performed

by a hygienist. The passive role played by the dental hygienist

in serving as an indirect tester for ART is not an irremedial

task within the meaning of Section 466.024(1), Florida Statutes.

Consequently, Petitioner's allegation that Respondent committed

misconduct by using his dental hygienist as an indirect tester is

rejected.

60. Any act found to have been committed by Respondent that

may be construed to be misconduct related to Respondent's

practice below the standard of care, has been appropriately

addressed in Count VI. No separate violation of Section 466.028

(1)(t), Florida Statutes, based on the allegations of Count II of

the Amended Administrative Complaint, should be found.

61. Petitioner failed to establish that Respondent

experimented on C. C. as alleged in Count III of the Amended

Administrative Complaint. Any act found to have been committed

by Respondent that may be construed to be experimental related to

Respondent's practice below the standard of care, has been

appropriately addressed in Count VI. Section 455.624(1)(w),

Florida Statutes, the provision Petitioner alleged Respondent

violated in Count III of Petitioner's Amended Administrative

Complaint, does not appear to be applicable to the factual

allegations of Count III. Based on the foregoing, it is

concluded that no separate violation based on the allegations of

Count III of the Amended Administrative Complaint should be

found.

62. Petitioner established by clear and convincing evidence

that Respondent failed to maintain malpractice insurance or proof

of financial responsibility in violation of Rule 64B5-17.011,

Florida Administrative Code, as alleged in Count IV of the

Amended Administrative Complaint.

63. Petitioner failed to establish that Respondent

performed services on C. C . which had not been duly authorized as

alleged in Count V of the Amended Administrative Complaint.

Section 455.624(1)(o), Florida Statutes (1999), cited in Count V

of Petitioner's Amended Administrative Complaint, does not appear

to be an erroneous citation.

64. As set forth in the Findings of Fact, Petitioner

established by clear and convincing evidence that Respondent

failed to meet the minimum standards of practice in violation of

Section 466.028(1)(x), Florida Statutes, as alleged in Count VI

of the Amended Administrative Complaint.

65. Rule 64B5-13.005, Florida Administrative Code, provides

the following disciplinary guidelines that should be applied to

the violations established by Petitioner:

(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 is 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.

* * *

(cc) Being guilty of negligence or dental

malpractice. The usual action of the Board

shall be to impose a period of probation,

restriction of practice, and/or suspension. .

. .

* * *

(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.

(5 ) Penalties imposed by the Board

pursuant to sections (2) and (3) above may be

imposed in combination or individually, and

are as follows:

(a ) issuance of a reprimand;

(b ) imposition of an administrative fine

not to exceed $3,000.00 for each count or

separate offense;

(c ) restriction of the authorized scope of

practice;

(d ) placement of the licensee on probation

for a period of time and subject to such

conditions as the Board may specify,

including requiring the licensee to attend

continuing education courses, to submit to

reexamination, or to work under the

supervision of another licensee;

(e ) suspension of a license;

(f ) revocation of a license; however, no

license revoked by the Board after

December 31, 1987, s hall be subject to

reinstatement. . . .

66. No aggravating or mitigating factors should be applied

to Respondent's failure to keep adequate records (Count I of the

Amended Administrative Complaint).

67. As set forth in the Findings of Fact, Respondent's

failure to have malpractice insurance or proof of financial

responsibility (Count IV of the Amended Administrative Complaint)

is viewed as being an egregious violation. Because the

guidelines do not specifically address that violation, the

recommended penalty contained in this Recommended Order for Count

IV is based on the guidelines for violations of similar severity.

68. As set forth in the Findings of Fact, Petitioner

established by clear and convincing evidence that Respondent

practiced below the standard of care in violation of

Section 466.028(1)(x), Florida Statutes (Count VI of the Amended

Administrative Complaint). Based on the totality of the record,

it is concluded that any arguable aggravating factors have been

offset by arguable mitigating factors. Consequently, no

aggravating factors or mitigating factors should be applied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

finding Respondent guilty of the violations alleged in Counts I,

IV, and VI of the Amended Administrative Complaint. For the

violation of Section 466.028(1)(m), Florida Statutes (Count I),

Respondent's licensure should be placed on probation for a period

of two years with the requirement that he take appropriate

continuing education courses pertaining to record-keeping. For

the violation of Rule 64B5-17.011, Florida Administrative Code

(Count IV), Respondent's license should be suspended for a period

of one year to be followed by a period of probation for a period

of five years. For the violation of Section 466.028(1)(x),

Florida Statutes (Count VI), Respondent's license should be

suspended for a period of one year to be followed by a period of

probation for a period of five years. It is further RECOMMENDED

that Respondent be reprimanded for each violation and assessed an

administrative fine in the amount of $3,000 for each violation,

for a total of $9,000. It is further recommended that the

suspension of licensure RECOMMENDED for Counts IV and VI and all

periods of probation run concurrently. It is further RECOMMENDED

that all other charges be dismissed.

DONE AND ENTERED this 15th day of August, 2001, in

Tallahassee, Leon County, Florida.

__________________ _________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of August, 2001.

ENDNOTES

1/ The following is intended to be a brief summary of the

alleged violations. Any question as to the language of the First

Amended Administrative Complaint should be resolved by reading

that pleading in its entirety.

2/ The Chernobyl disaster occurred April 26, 1986.

3/ Petitioner's argument that Respondent's use of his dental

assistant as an indirect tester constituted misconduct is

rejected for the reasons set forth in Paragraph 59 of this

Recommended Order.

4/ Petitioner referred to these remedies as herbal remedies.

That reference is incorrect.

5/ Petitioner also alleged that aspects of Respondent's actual

treatment of the patient were below the standard of care or

experimental without regard to whether there existed an adequate

diagnosis to justify the treatment. The findings and conclusions

in the ensuing paragraphs pertaining to Respondent's actual

treatment of the patient resolve the conflicting evidence as to

those allegations.

6/ Respondent's dental records incorrectly reflect that area #5

was reopened. The evidence established that it was area #3 that

was re-treated on December 27, 1995.

7/ Rule 64B5-17.011, Florida Statutes, provides, in part, as

follows:

As a prerequisite for licensure or license

renewal every dentist is required to maintain

medical malpractice insurance or provide

proof of financial responsibility as set

forth herein:

(1 ) Obtaining and maintaining professional

liability coverage in an amount not less than

$25,000 per claim, with a minimum annual

aggregate of not less than $75,000. . . .

(2 ) Obtaining and maintaining an

unexpired, irrevocable letter of credit,

established pursuant to Chapter 675, in an

amount not less than $25,000 per claim, with

a minimum aggregate availability of credit of

not less than $75,000. The letter of credit

shall be payable to the dentist as

beneficiary upon presentment of a final

judgment indicating liability and awarding

damages to be paid by the dentist or upon

presentment of a settlement agreement signed

by all parties to such agreement when such

final judgment or settlement is a result of a

claim arising out of the rendering of, or the

failure to render, dental care and services.

Such letter of credit shall be nonassignable

and nontransferable. Such letter of credit

shall be issued by any bank or savings

association organized and existing under the

laws of the State of Florida or any bank or

savings association organized under the laws

of the United States that has its principal

place of business in this state or has a

branch office which is authorized under the

laws of this state or of the United States to

receive deposits in this state.

8/ In making this finding, the undersigned has carefully

considered the testimony of Petitioner's experts who, as

traditional, allopathic practitioners, clearly believed

Respondent should have treated C. C. with traditional

antibiotics.

COPIES FURNISHED:

Rosanna Catalano, Esquire

R. Lynn Lovejoy, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Mailstop 39

Tallahassee, Florida 32308

James M. Tuthill, Esquire

2161 Palm Beach Lakes Boulevard

Raymond Plaza, Suite 407

West Palm Beach, Florida 33409

William H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.