STATE OF FLORIDA DEPARTMENT OF HEALTH

FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Angel Sanders

DATE

JAN 2 2 2011

DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2012-04834 THOMAS P. FLOYD, D.M.D., RESPONDENT.

AMENDED ADMINISTRATIVE COMPLAINT Petitioner Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Dentistry against the Respondent Thomas P. Floyd, D.M.D. In support, Petitioner states: 1. Petitioner is the agency charged with regulating the practice of

dentistry pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 466, Florida Statutes.

2. At all times material to this Complaint, Respondent has been licensed to practice dentistry within the State of Florida, having been issued license numbered DN 8006. 3. His business practice is "Thomas P. Floyd, D.M.D., P.A., Pediatrit Dentistry" and his address of record with the Board of Dentistry is 400 Executive Center Dr., Suite 103, West Palm Beach, Florida 33401. Another known address for Respondent is 258 Golfview Dr., Tequesta, Florida 33469.

1. Patient S. P-L.
4. On May 5, 2010, the West Palm Beach Police Department

(WPBPD) received a report from an anonymous male caller at the Respondent's dental establishment stating that Respondent had just abused a child patient. 5. When a police officer responded to the call, people standing

around the parking lot of the office told him they had heard the sounds of a screaming child coming from the examination room and also heard a technician say that Dr. Floyd had just punched a child. They pointed to a small boy leaving the office as the one reportedly punched.

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6. The police officer spoke with the child, S.P-L., who told the officer that "the man go like this" and made a fist hitting his own lip. The employees questioned told the officer that they did not witness the event but that Dr. Floyd's physical abuse of patients was "an ongoing problem." 7. Respondent told the police officer that he was putting a mouth prop into S.P-L.'s mouth to help keep it open and S. P-L. had bitten his lip. The mouth prop used is a ratchet-type device placed in one side of the oral cavity to keep it open while dental work is performed on the other side. 8. The police officer accepted the Respondent's version of the event and closed the complaint. 9. After the incident, S.P-L.'s mother photographed the damage to his mouth and took him to St. Mary's Medical Center for evaluation. The Medical Center records listed the following injuries: "[L]ip abraded, oral mucosa with tear/laceration under the tongue, left side. Abrasions and swelling to the bottom lip, dried blood, swollen lower and upper left side of lips, cuts noted to outside lips and small laceration to inner lower gum."

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In conjunction with a later complaint to WPBPD about

Respondent's treatment of a patient, the WPBPD investigated this incident further and interviewed S. P-L. on April 11, 2012. 11. S. P-L.'s account of the incident was consistent with his original statements two years earlier. S.P-L. affirmed that Respondent "tied" him up and injured his mouth. 12. "R.Z.", a dental assistant formerly employed by Respondent and a witness to the incident with S.P-L., stated that when the child refused to open his mouth, Dr. Floyd used the ratchet-type mouth prop with rubber tips to pry open S.P-L.'s mouth. The child spit the mouth prop out and bit Dr. Floyd's hand. 13. Dr. Floyd then yelled at S.P-L. and placed the mouth prop back into the child's mouth; however, S.P-L. spit it out a second time. Dr. Floyd then "jammed the kid all inside his mouth" with a drill. S.P-L. still refused to open his mouth. 14. The third time Dr. Floyd tried to put the mouth prop into the S.P-L.'s mouth, the rubber tips fell off but Dr. Floyd did not replace them. Instead, he placed the metal portion of the mouth prop on top of S.P-L.'s

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mouth and teeth, then slapped the back of the prop with his hand two times in an attempt to force the child's mouth open. 15. This time, the mouth prop lacerated the child's mouth and blood spurted on R.Z.'s and Respondent's facial shields. When the Respondent began to strike S.P-L. a fourth time, R.Z. left the room and asked a teenaged male patient to call the police. COUNT I 16. Petitioner realleges and incorporates paragraphs 1 through 15 as though fully set forth herein. 17. Pediatric dentistry is a difficult specialty of dental medicine in that management of patients can be problematic and very timeconsuming. Minimum standards of prevailing peer performance in pediatric diagnosis and treatment, however, do not permit abuseverbal or physicalto accomplish a goal of patient management. 18. Section 466.028(1)(x), Florida Statutes, provides in pertinent part that a licensee may be disciplined for 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.

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19. Respondent's actions of forcing a ratchet-style mouth prop into S.P-L.'s mouth and hitting it with the back of his hand, causing injury to S.P-L., constitute abuse not permitted by minimum standards of prevailing peer performance in dentistry and violate the provisions of section 466.028(1)(x), Florida Statutes.
COUNT II

20. Petitioner realleges and incorporates paragraphs 1 through 15 as though fully set forth herein. 21. Section 466.028(1)(n), Florida Statutes, provides that acts of fraud, deceit, or misconduct in the practice of dentistry or dental hygiene constitute grounds for disciplinary action. 22. Respondent's actions of forcing a ratchet-style mouth prop into S.P-L.'s mouth and hitting it with the back of his hand, causing injury to S.P-L., constitute misconduct in the practice of dentistry that violates section 466.028(1)(n), Florida Statutes.
COUNT III

23. Petitioner realleges and incorporates paragraphs 1 through 15 as though fully set forth herein.

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24.

Section 466.028(1)(1), Florida Statutes, provides that making

deceptive, untrue, or fraudulent representations in the practice of dentistry is grounds for disciplinary action. 25. Respondent's statement to the WPBPD on May 10, 2010 that

S.P-L.'s injury was caused by S.P-L. biting his own lip constitutes an untrue representation in the practice of dentistry that violates section 466.028(1)(1), Florida Statutes.

2. Patient A.S.1 26. On November 3, 2011, Respondent provided dental treatment for A.S.1, a ten-year-old girl. During the treatment, A.S.1 cried out, "I can't breathe. Youstop squeezing my nose. Get your hand off my face. I can't breathe. Move your hand." 27. From the waiting room, the girl's father heard his daughter's

cries and demanded to know what was happening to his child. Employee W.M. told him she would check. 28. W.M. told Respondent that the father could hear his daughter crying. Dr. Floyd responded, "Whatever. Close my door."

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29. W.M. and A.S.1's father still could hear the little girl crying that she couldn't breathe. The father told W.M. to get his daughter back from the treatment room immediately. W.M. went back to the treatment room but Respondent told her he was in the middle of a procedure and could not stop. 30. When A.S.1 was returned to the waiting room, she was breathing hard, crying, and sweating. 31. Respondent's treatment records for A.S.1 indicate that teeth #K and #T were extracted; however, the records do not contain information noting that they were problematic or otherwise justifying the treatment. 32. The treatment records also indicate that a week after treating A.S.1, Respondent prescribed her Penicillin VK 500mg/30 tabs; however, the records provide no justification for the prescription. COUNT IV. 33. Petitioner realleges and incorporates paragraphs 1 through 3 and 26 through 30 as if fully set forth herein. 34. The behavioral control technique Respondent used on A.S.1, called Hand-Over-Mouth-Airway-Restriction ("HOMAR"), was taught many years ago as a pediatric management technique; however, it has no place

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in modern dentistry. Any attempt to forcibly prevent a small child from breathing as a means of behavioral control violates minimum standards of care and performance in pediatric diagnosis and treatment. 35. Section 466.028(1)(x), Florida Statutes, provides in pertinent part that 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, is a violation of Chapter 466, Florida Statute, and constitutes grounds for disciplinary action. 36. Respondent's attempt to obtain submission to dental treatment by preventing A.S.1 from breathing does not meet minimum standards of prevailing peer performance in the practice of dentistry and constitutes a violation of section 466.028(1)(x), Florida Statutes. COUNT V. 37. Petitioner realleges and incorporates paragraphs 1 through 4

and 26 through 30 as though fully set forth herein. 38. Section 466.028(1)(t) provides that acts of fraud, deceit, or

misconduct in the practice of dentistry or dental hygiene constitute grounds for disciplinary action.

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39. Respondent's act of covering A.S.1's mouth and nose to prevent her from breathing as a means of behavioral control constitutes misconduct in the practice of dentistry, in violation of section 366.028(1)(t), Florida Statutes. COUNT VI. 40. Petitioner realleges and incorporates paragraphs 1 through 4, and paragraphs 26, 31 and 32 as though fully set forth herein. 41. Section 466.028(1)(m), Florida Statutes, provides that 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, constitutes grounds for disciplinary action. 42. Respondent violated section 466.028(1)(m), Florida Statutes, by failing to document his justification for extracting A.S.'s teeth #K and #T and by failing to document any justification for prescribing penicillin. COUNT VII. 43. Petitioner realleges and incorporates paragraphs 1 through 4, and paragraphs 26, 31 and 32 as though fully set forth herein.

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44. Minimum standards of prevailing peer performance in dental diagnosis and treatment require that diagnoses and treatment may not be performed without a reasonable basis, supported by examination and test results. 45. Section 466.028(1)(x), Florida Statutes, provides in pertinent

part that a licensee may be disciplined for 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. 46. Respondent failed to meet minimum standards of prevailing peer performance in diagnosis and treatment by extracting baby teeth and prescribing penicillin without a reasonable basis for the treatment and prescription, thereby violating section 466.028(1)(x), Florida Statutes.

3. Patient A.S. 2
47. "A.S.2", a four-year-old boy, was brought to Respondent's office on November 4, 2011 with a toothache. Respondent performed fillings and crowns on the child, including a filling in a lower left molar.

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48. On or around November 17, he began complaining of jaw pain and difficulty opening his jaw; by the 20th, the left side of his jaw was swollen and tender, and he was crying in pain. 49. A.S.2's mother called the office, asking for Dr. Floyd, stating that her child's cheek was swollen and he needed antibiotics or an emergency office visit. 50. The dental office operates every other week. A.S.2's mother called during an off week when only business staff were present; therefore, the office staff contacted Respondent with several messages telling him that A.S.2's mother was complaining; however, Dr. Floyd did not return the mother's calls. 51. Instead, Dr. Floyd told his staff that the child was too young for antibiotics and directed his staff to tell the mother to come back the following week when the office was open. 52. When the office opened for dental treatment the following week, A.S.'s mother called the office again and told office staff that A.S.2 had been admitted to the hospital with an infection from his tooth. 53. St. Mary's Medical Center records for November 21, 2011

indicate that A.S.2 was admitted that day with a diagnosis of a dental

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abscess and facial celllulitis and administered the antibiotic clindamycin intravenously every six hours and given Tylenol with codeine for pain. 54. A.S.2 was released two days later and sent home with

clindamycin to be taken by mouth for five days and, following the antibiotic therapy, a recommended dental follow-up for an extraction of the abscessed tooth.
COUNT VIII.

55. Petitioner realleges and incorporates paragraphs 1 through 4 and 47 through 54 as though fully set forth herein. 56. The minimum standards of generally prevailing peer

performance in dental treatment and diagnosis require that any swelling in the mouth be investigated and treated as soon as possible. 57. Section 466.028(1)(x), Florida Statutes, provides in pertinent part that a licensee may be disciplined for 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. 58. Respondent failed to meet minimum standards of prevailing peer standards of performance in diagnosis and treatment by failing to address

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promptly reports of A.S.2's swelling and pain, thereby violating section 466.028(1)(x), Florida Statutes.

4. Patients Bri.R.-1 and Bri.R.-2

59. "Bri.R.1" was brought by her father to Dr. Floyd's office for a routine dental examination and cleaning on August 9, 2011; however, her chart was confused with the chart of an unrelated child of similar name and age, herein called "Bri.R.2", whose chart was provided to Respondent for Bri.R.1's dental treatment. 60. Respondent Dr. Floyd failed to verify, before commencing

treatment, that that he was utilizing the correct chart and performing the correct procedures. 61. Instead, following the "existing conditions" and "treatment plan" chart in Bri.R.2's records, he performed eight restorations and three extractions on Bri.R.1, documenting them and the treatment date in Bri.R.2's treatment records. 62. The mistake was discovered only after Bri.R.1 was returned to the waiting room and her father demanded to know why his daughter had had teeth taken out when she was supposed to receive only a cleaning.

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63. According to Respondent's treatment notes for Bri.R.1 that day, "Father caused extreme commotion at front desk and threatened the staff and doctor with physical harm. Advised to leave or we would call the police!! (After requesting us to treat the child, he became irate that we completed the work!)" [Emphasis in original.] 64. Dr. Floyd then marked out the restorations and extractions he had documented that day in Bri.R.2's records and re-documented them in Bri.R.1's records. He also documented an "existing conditions" and

"treatment plan" chart for August 9, 2011 that corresponds exactly with Bri.R.2's existing conditions and treatment plan that Dr. Floyd had used erroneously for Bri.R.1's treatment. COUNT IX. 65. Petitioner realleges and incorporates paragraphs 1 though 3 and 59 through 64 as though fully set forth herein. 66. Section 456.072(1)(bb), Florida Statutes, states that performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition is grounds for disciplinary action against the licensee.

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67. Respondent violated section 456.072(1)(bb), Florida Statutes, by performing treatment on the wrong patient and by performing medically unnecessary procedures, via section 466.028(1)(mm), Florida Statutes. COUNT X. 68. Petitioner realleges and incorporates paragraphs Ithough 3 and 59 through 64 as though fully set forth herein. 69. Section 466.028(1)(o), Florida Statutes, provides in pertinent part that performing professional services which have not been duly authorized by the patient or client, or his or her legal representative, constitutes grounds for disciplinary action against the licensee. 70. Respondent failed to obtain parental consent before performing extractions and restorations on Bri.R.1's teeth, thereby violating section 466.028(1)(o), Florida Statutes.

5. Patient C.C. 71. Patient C.C.'s appointment with Respondent on January 23,

2012 included the following services: Scaling of lower right and left quadrants; sealants on teeth #15, #18, and #31; and occlusal/occlusal lingual composite filling with an indirect pulp cap.

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72. Following a change in available dental plan providers, C.C.'s mother took her to another dentist on April 11, 2012. The subsequent dentist's examination of C.C.'s teeth revealed red, swollen gum tissues and a "thick wall of calculus from 22-27." His treatment plan for C.C. included full hygienic gross debridement, sealants on three teeth, and two composite fillings. 73. The subsequent treating dentist's office experienced difficulties

in obtaining Medicaid authorizations for the above treatment because it had already been performed; the dentist then discovered that Respondent's office had charged out codes for an amalgam on #14 that the following dentist could not find; codes for a pulp cap on #14 that he considered unnecessary; codes for sealants on teeth #31, #18, and #15 that were not there; and codes for a "LL, LR scale root plane" that the subsequent dentist noted simply could not have been done. 74. The subsequently treating dentist informed C.C.'s mother that the fillings were half-filled and he was pulling debris out of them. He showed her holes in back teeth that couldn't have been filled. 75. Her new dentist also told her that he did not believe that scaling had been done to her daughter's teeth three months earlier because the

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bottom rear teeth had so much calculus, they were almost "welded" together. He explained that it would take months and months for calculus to build up to that point. 76. Respondent's records for C.C. display initials/signatures for the scaling performed by Respondent's office on January 23, 2012, that appear to be those of "AA" (employee Audrey Adams), overwritten with a "TF" (Thomas Floyd). 77. Ms. Adams' responsibilities as Respondent's employee is

primarily as an office manager; however, she is also the only employee who performs tooth scaling to remove plaque and calculus. 78. Section 466.023, Florida Statutes, provides in part that only

dental hygienists may be delegated the task of removing calculus deposits and performing root planing and curettage. 79. Florida. 80. Dr. Floyd asked dental assistants to perform tooth scaling and Ms. Adams is not licensed as a dental hygienist in the State of

offered to teach them how to do it, but they refused because, as assistants, they were not certified to do so.

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Count XI. 81. Petitioner realleges paragraphs 1 through 3 and paragraphs 71 through 80 as though fully set forth herein. 82. Section 466.028(1)(1), Florida Statutes, provides that making

deceptive, untrue, or fraudulent representations in or related to the practice of dentistry is a violation of Chapter 466, Florida Statutes. 83. Respondent's representation in C.C.'s dental records that root planing, sealants, and amalgam fillings had been performed constitutes an untrue representation in violation of section 466.028(1)(1)1 Florida Statutes. Count XII 84. Petitioner realleges paragraphs 1 through 3 and paragraphs 71 through 80 as though fully set forth herein. 85. Section 466.028(z), Florida Statutes, provides that delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform them constitutes grounds for disciplinary action. 86. By delegating dental scaling to an employee not licensed as a dental hygienist qualified to perform those professional responsibilities, Respondent violated section 466.028(z), Florida Statutes.

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6. Office Sanitation and Conditions 87. Dr. Floyd has a policy of changing germ barriers on the handles of the equipment only once in the morning. 88. Respondent fails to change gloves between patients, uses the

same burrs on different patients, and will pick up a dental instrument from an instrument tray for a prior patient and use it on the child he is treating. 89. Dr. Floyd will try bands of different sizes on patients' teeth and if a band does not fit the tooth, he will return the band to the band case without first sterilizing it. Count XIII 90. Petitioner realleges and incorporates paragraphs 1 through 3 and paragraphs 87 though 89 as though fully stated herein. 91. Rule 64B5-25.001, Florida Administrative Code (F.A.C.), states

that the failure to follow proper sterilization and disinfection procedures in the practice of dentistry presents a significant danger to the public due to the potential for transmission of infectious diseases to patients during treatment. The Rule also provides that failure to follow the proper sterilization and disinfection procedures set forth in Rule 64B5-25.003, F.A.C., constitutes a violation of section 466.028(1)(u), Florida Statutes.

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92.

According to rule 6485-25.003(2)(a) and (b), F.A.C., the

following surgical instruments that penetrate soft tissue or bone must be sterilized after each use: forceps, scalpels, scalers, surgical burs, highspeed dental hand-pieces, contra-angles, prophy angles, amalgam condensers, plastic instruments, and burs that come into contact with oral tissues. 93. Rules 6485-25.003(5) and (8), F.A.C., provide respectively and in pertinent part that at the completion of dental treatment, all surfaces that may have become contaminated with blood, saliva, or other bodily fluids, must be disinfected, and that surgical or examination gloves must be changed between patients. 94. Respondent violated the above-stated rules by utilizing

instruments and burs on more than one child without sterilizing them between each use, failing to clean all surfaces that might have become contaminated between patients, and failing to change surgical or examination gloves between patients. 95. Section 466.028(1)(u), Florida Statutes, states that failure to provide and maintain reasonable sanitary facilities and conditions constitutes grounds for discipline.

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96. By violating Rule 64B5-25.003, F.A.C. requiring sterilization of instruments and glove disposal, Respondent violated section 466.028(1)(u), Florida Statutes. WHEREFORE, Petitioner respectfully requests that the Board of Dentistry enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this ri11-- day of January, 2013. John H. Armstrong, M.D. State Surgeon General and Secretary of Health De ent of Health

Gail ott Hill Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 909289 (850) 245-4640 Telephone (850) 245-4683 Facsimile PCP: 9/25/12 PCP Members: C.M., J.T.M., and W.R
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