Are you being investigated as a dentist for negligence or incompetence in not meeting the minimum standards of treatment or diagnosis?
Have you received an administrative complaint against your dentist license for negligence or incompetence for not meeting the minimum standards of performing diagnosis or treatment of patients? If you have, it is very important that you contact an experienced health care attorney to go over the charges. These charges are serious and can have a negative impact on your license and your ability to practice as a dentist in Florida.
The law states that disciplinary action can be taken against your license if you have been found guilty of incompetence or negligence in not meeting the minimum standards of care in diagnosing or treating patients. This is a rather simple view of the statute itself, which goes into more detail. The Florida statute on point here is Florida Statute 466.028(1)(x). The statutes states the following the particular:
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(x) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice. For purposes of this paragraph, it shall be legally presumed that a dentist is not guilty of incompetence or negligence by declining to treat an individual if, in the dentist’s professional judgment, the dentist or a member of her or his clinical staff is not qualified by training and experience, or the dentist’s treatment facility is not clinically satisfactory or properly equipped to treat the unique characteristics and health status of the dental patient, provided the dentist refers the patient to a qualified dentist or facility for appropriate treatment. As used in this paragraph, “dental malpractice” includes, but is not limited to, three or more claims within the previous 5-year period which resulted in indemnity being paid, or any single indemnity paid in excess of $25,000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.
The statute has a lot in it. It is important to note that the minimum standards of performance is measured against generally prevailing peer performance, in other words, what other similarly experienced dentists would do in that particular situation. Some performances under this statute include the undertaking of diagnosis and treatment in which the dentist is not qualified by training or experience or being guilty of dental malpractice.
You should be aware though that this statute legally presumes that you are not guilty of incompetence or negligence if you decline to treat a patient because you or your staff are not qualified to treat the patient, or your facilities are not adequately equipped to do it. However, you must refer the patient to a qualified dentist or facility that can handle the procedure.
The statute also defines dental malpractice for purposes of the statute. It includes three or more claims against you in a 5 year period of time which resulted in you paying an indemnity. It also includes a single indemnity paid in excess of $25,000 in a judgement or settlement, as a result of the negligent conduct on the part of the dentist.
If you have had complaints made against your license for violation of this statute, you should contact an experienced health care attorney immediately to go over your options. There can be severe repercussions for you if you wait.
There are a range of actions that can be taken against you should the Board of Dentistry decide to take disciplinary action against you. The penalties you could face are found in the Disciplinary Guidelines for the Board of Dentistry, particularly in Rule 64B5-13.005 in the Florida Administrative Code. The rule states the following for disciplinary guidelines for violation of the statute:
|Probation with conditions and a $10,000 fine
|Probation with conditions and a $1,000 fine
|Suspension and a $10,000 fine
|Revocation and a $10,000 fine
Based upon the number of offenses you have, the penalties will vary. As you have more offenses, the penalties become more severe. For a first offense, you can face a minimum penalty of a $500 fine up to a maximum penalty of probation with conditions and a fine of $10,000. It depends on the severity of the matter as to what kind of penalty you face. For a second offense, you can face a minimum penalty of probation with conditions and a fine of $1,000. However, at a maximum for a second offense, your license could be suspended and you could receive a fine of $10,000. The most severe penalties can be enacted for a third offense. At a minimum, you could face a $2,500 fine. However, your license could be revoked and you could face a fine of $10,000. This is very serious. You should also be aware that these are guidelines that the board should follow in handing out discipline, but are not set in stone, and can be accompanied by other penalties or deviated from. These penalties can be found in Florida Statute 456.072(2), which you should review with your health care attorney.
The board hearing your case can take into account various factors that could affect the discipline you receive. These factors are called aggravating and mitigating circumstances. Aggravating circumstances are factors that can hurt your case. If aggravating circumstances are proven you could face harsher penalties. Mitigating circumstances are factors that can help your case. If mitigating circumstances are proven you could face lesser penalties. These factors can also be found in rule 64B5-13.005 in the Florida Administrative Code. If either side can prove with clear and convincing evidence the aggravating or mitigating circumstances, the discipline you face could be altered by the board. Here are the factors:
(2) Based upon consideration of aggravating or mitigating factors, present in an individual case, except for explicit statutory maximum and minimum penalty requirements, the Board may deviate from the penalties recommended in subsections (1) above and (3) below. The Board shall consider as aggravating or mitigating factors the following:
(a) The danger to the public;
(b) The number of specific offenses, other than the offense for which the licensee is being punished.;
(c) Prior discipline that has been imposed on the licensee;
(d) The length of time the licensee has practiced;
(e) The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage;
(f) The deterrent effect of the penalty imposed;
(g) The effect of the penalty upon the licensee;
(h) Efforts by the licensee towards rehabilitation;
(i) The actual knowledge of the licensee pertaining to the violation;
(j) Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop the violation; and
(k) Any other relevant mitigating or aggravating factor under the circumstances.
The board can take into account any of these factors, or other factors, in your hearing. The board can deviate from the standard disciplinary guidelines if they find that any of these aggravating or mitigating circumstances exist. These are very important factors that you should discuss with your health care attorney.
If you are a licensed health care professional in Florida and have received an administrative complaint for violation of the statutes, you are probably concerned about how this may affect your license. To set up a FREE no obligation consultation with Jeff Howell contact the law firm of Howell, Buchan & Strong, Attorneys at Law at 850-877-7776. We represent licensed health care professionals and facilities statewide, including out of state clients who are concerned about the status of their Florida license