STATE OF FLORIDA BOARD OF DENTISTRY RESPONDENT. ADMINISTRATIVE COMPLAINT. COMES NOW Petitioner, Department of Health, by and throug its

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1 STATE OF FLORIDA BOARD OF DENTISTRY DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO: KRISTINE MARSHALL, D.D.S., RESPONDENT. ADMINISTRATIVE COMPLAINT COMES NOW Petitioner, Department of Health, by and throug its undersigned counsel, and files this Administrative Complaint before the Board of Dentistry against Respondent, Kristine Marshall, D.p.S., an in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes; Ch Ater 456, Florida Statutes; and Chapter 466, Florida Statutes. 2. At all times material to this Complaint, Respondent w s a licensed dentist within the State of Florida, having been isstiled nse number DN

2 3. Respondent's address of record with the Department is th Avenue South, St. Petersburg, Florida On or about March 21, 2014, Patient J.L. presente to Respondent's practice for the seating of a crown on tooth numb r 5. Patient J.L. had begun treating with Respondent the previous month. 5. Patient J.L. had a retained primary cuspid. 6. Respondent noted in the clinical record for that date that Patient J.L. wanted "to do something about her baby tooth #6." 7. According to the clinical record, Respondent disc sed providing Patient J.L. with orthodontic treatment using Invisalign rand orthodontic devices (Invisalign). 8. The Invisalign method of orthodontic treatment invo v s a series of incremental aligners to cause tooth movement. 9. On that date, Respondent provided Patient J.L. with a quot- for the Invisalign treatment, collected payment, and had Patient' J.L. sill, a consent form. 10. According to the clinical record, Respondent performe an "Invisalign scan" and constructed a composite of facial and intra oral photographs for Patient J.L.'s Invisalign case. 2

3 11. Cases are transmitted to Invisalign technicians throu h a software program known as "ClinCheck." The treating dentist fills ou the "Invisalign Prescription Form" and uploads any photographs a d/or radiographs to the program. Impressions are sent to Invisalign to be digitized. Invisalign technicians create a computerized "ClinCheck model" based on the dentist's initial prescription, supporting photographs a d/or radiographs, and the impressions. The dentist then reviews the mode and makes any necessary adjustments or modifications. 12. Respondent was to provide Patient J.L. with 16 trays fo her upper and lower teeth with an estimated treatment time per Invisali n of 8-12 months. 13. In the clinical record, Respondent noted that Patient J.L. ould be moving out of state that summer, but that the practice coold mai J.L. the additional trays. The record further noted that Respondent plann for Patient J.L. to "return 2 times a [year] for follow up [appointmeht]." 14. According to the clinical record, Respondent planned to e ract the retained primary cuspid in the position of tooth number 6 and d liver orthodontic trays at the next appointment. 15. The minimum standard of performance in diagnosis and treatment in the practice of dentistry requires a dentist to provid an _ e 3

4 accurate diagnosis of a patient's dental condition to include all signif cant findings. 16. The radiographs taken at Patient J.L.'s initial appoint ent showed that the cuspid had adequate bone support with no resorption. 17. In addition, the radiographs showed that Patient.L.'s permanent tooth number 6 was impacted. 18. There is no indication that Respondent diagnosed permanent tooth number 6 as impacted. 19. Respondent did not appear to make any adjilstmen or modifications to the Clincheck model developed by Invisalign technic ans, but accepted the case and delivered the first trays to Patient J.L. 20. Respondent relied on the Invisalign technicians to id ntify Patient J.L.'s orthodontic condition and to develop a plan for treatment. 21. The minimum standard of performance in diagnosis and treatment in the practice of dentistry requires a dentist to acquire acc rate records on a patient's dental condition for the purposes of initiating orthodontic treatment. 22. The composite of facial and intra-oral photographs taken n or about March 21, 2014, and transmitted to Invisalign presented Patient L.'s upper and lower teeth as reversed images with the right side appearin as 4

5 the left and vice versa. As such, these photographs lacked diagnpstic value. 23. Respondent failed to acquire accurate records on Patient.'s dental condition for the purpose of initiating orthodontic treatment. 24. The minimum standard of performance in diagnosis and treatment in the practice of dentistry requires a dentist to develop and present a treatment plan to the patient before initiating treatment. 25. In a comment to "Treatment Plan #1" in the ClinChckk pro ram Respondent stated that Patient J.L. had "#C or #6 present and w will need to [extract to] allow for space." 26. It is not evident that any orthodontic issues existed hich necessitated the extraction of the tooth to "allow for space." 27. Outside of initiating Invisalign treatment, there is rho indi :tion that Respondent developed a treatment plan for the space that would -xist once the retained primary cuspid was extracted. 28. On or about April 14, 2014, and May 27, 2014, Patient J.L. presented to Respondent's practice for the delivery of the Invisalign trap s. 29. On or about April 15, 2014, Respondent extracted the ret fined primary cuspid in the position of tooth number 6. 5

6 30. According to the clinical record for September 3, 014, Respondent's practice mailed the last trays to Patient J.L.'s new addre s in North Carolina. The clinical record noted that the next appoint ent planned for Patient J.L. would be for wrefinement/[course] corrections: 31. Respondent sold her dental practice in October 2914 an did not provide any further treatment to Patient J.L. 32. Section (1)(x), Florida Statutes ( ) states that "[b]eing guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment hen measured against generally prevailing peer performance[,]" shall con 'itute grounds for disciplinary action by the Board of Dentistry. 33. Respondent violated Section (1)(x), Florida ;Statute in one or more of the following ways: A. By failing to diagnose Patient J.L.'s impacted perma ent tooth number 6; B. By failing to acquire accurate records of Patient IL. fo the purposes of initiating orthodontic treatment; or C. By failing to develop and present a treatment plan to Pa lent J.L. for the edentulous space resulting from the extracti n of the retained primary cuspid. 6

7 WHEREFORE, Petitioner respectfully requests that the Board of Dentistry enter an order imposing one or more of the followinp penalties: 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 andjor an' other relief that the Board deems appropriate. SIGNED this Ltd day of 9.L.pteiro41-W Celeste Philip, MD, MPH Surgeon General and Secretary CLERK FILED DEPARTMENT OF HEALTH DEPUTY CLERK A.:nief%ancrers DATE SEP 0 A 201? vrvitie fyyv.664,000_ Bridget. McDonnell Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin (-65 Tallahassee, Florida Florida Bar # TEL: , FAX: Express Mail Address: 2585 Merchants Row, Suite Bridget.McDonnell@fihealth.gov PCP: 9/1/2017 PCP Members: J. Thomas, T. Morgan, R. Perdomo DOH v. Kristine Marshall, D.D.S., Case #

8 NOTICE OF RIGHTS Respondent has the right to request a hearing is conducted in accordance with Section arid 12 I Florida Statutes, to be represented by counsel or other quaff representative, to present evidence and argument, to call cross-examine witnesses and to have subpoena and subp duces tecum issued on his or her behalf if a hearing is request A request or petition for an administrative hearing mu in writing and must be received by the Department within 21 from the day Respondent received the Administrative Compl pursuant to Rule (2), Florida Administrative Cod Respondent fails to request a hearing within 21 days of recei this Administrative Complaint, Respondent waives the rig request a hearing on the facts alleged in this Adninistr Complaint pursuant to. Rule (4), Florida Adr9inistr Code. Any request for an administrative proceeding to chall or contest the material facts or charges contained in Administrative Complaint must conform to Rule Florida Administrative Code. Mediation under Section , Florida Statutes, is not available to resolve this Administrative Complaint. It be.57, fled and ena d. be ays int If t of to tive tive nge the (5), NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incu red costs related to the investigation and prosecution of this ma er. Pursuant to Section (4), Florida Statutes, the Board hall assess costs related to the investigation and prosecution f a disciplinary matter, which may include attorney hours land c sts, on the Respondent in addition to any other discipline imposed. DOH v. Kristine Marshall, D.D.S., Case #