dr. thomas floyd 2012-04834 - doh v floyd - amended complaint

7/29/2019 Dr. Thomas Floyd 2012-04834 - DOH v Floyd - Amended Complaint

1/22

STATE OF FLORIDADEPARTMENT OF HEALTH

FILEDDEPARTMENT OF HEADEPUTY CLERKCLERK Angel SandersDATE JAN 2 2 2 0 1 1

DEPARTMENT OF HEALTH,PETITIONER,

v.CASE NO. 2012-04834

THOMAS P. FLOYD, D.M.D.,RESPONDENT.

AMENDED ADMINISTRATIVE COMPLAINTPetitioner Department of Health, by and through its undersigned

counsel, files this Administrative Complaint before the Board of Dentistryagainst the Respondent Thomas P. Floyd, D.M.D. In support, Petitionerstates:

1.etitioner is the agency charged with regulating the practice ofdentistry pursuant to Section 20.43, Florida Statutes; Chapter 456, FloridaStatutes; and Chapter 466, Florida Statutes.


2/22

2. At all time s m aterial to this Comp laint, Respon dent has be en licensedto practice dentistry within the State of Florida, having be en issued licensenumb ered DN 8006.

3. His busine ss practice is "Thom as P. Floyd, D.M.D., P.A., PediatritDentistry" and his address of record with the Board of Dentistry is 400Executive 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 theRespondent's dental establishment stating that Respondent had justabuse d a child patient.

5. When a police officer responded to the call, people standingaround the p arking lot of the office told him they had heard the soun ds ofa screaming chi ld coming from the examinat ion room and a lso heard atechnician say that Dr. Floyd h ad just punch ed a child. They pointed to asm all boy leaving the office as the one reportedly punch ed.

Case No. 2012-04834


3/22

6. The p olice officer spoke with the ch ild, S.P-L., who told the officerthat "the man go like this" and made a fist hitting his own lip. Theem ployees que stioned told the officer that they did not witness the eve ntbut that Dr. Floyd's physical abuse of patients w as "an ong oing problem."

7. Respo ndent told the police off icer that he was putting a mo uthprop into S.P-L.'s mouth to help keep it open an d S. P-L. had bitten his lip.The mouth prop used is a ratchet-type device placed in one side of theoral cavity to keep it open while dental work is performed on the otherside.

8. The police officer accepted the Resp ondent's version of the eventand closed the complaint.

9. After the incident, S.P-L.'s mother pho tographed the damag e tohis mo uth and took him to S t. Mary's Medical Center for evaluation. TheMedical Center record s l isted the follow ing injuries: "[L]ip abraded , oralmucosa with tear/laceration under the tongue, left side. Abrasions andswelling to the bottom lip, dried blood, swo llen lower and upper left side oflips, cuts noted to outside lips and small laceration to inner lower gum."

Case No. 04834


4/22

10. In conjunction with a later complaint to WPBPD aboutResp onden t's treatm ent of a patient, the W PBP D investigated this incident

further and interviewed S . P-L. on Ap ril 11, 2012.11. S. P-L.'s accou nt of the incident was co nsistent with his original

stateme nts two years earl ier. S.P-L. affirme d that R espon dent "tied" himup and injured his mouth.

12. "R.Z.", a dental assistant formerly employed b y Respon dent anda witness to the incident with S.P-L., stated that whe n the child refused toopen h is mouth, Dr. Floyd used the ratchet-type mo uth prop w ith rubbertips to pry open S .P-L.'s m outh. The child spit the mo uth prop out and b itDr. Floyd's hand.

13. Dr. Floyd then yelled at S.P-L. and placed the mo uth prop bac kinto the child's mou th; how ever, S.P-L. spit it out a seco nd time . Dr. Floydthen "jam m ed the k id all inside his m outh" w ith a drill . S.P-L. still refusedto open his mouth.

14. The third time Dr. Floyd tried to put the mouth prop into theS.P-L.'s mo uth, the rubber tips fell off but Dr. Floyd d id not replace them .Instead, he placed the m etal portion of the mo uth prop on top of S.P-L. 's

Case No. 2012-04834


5/22

mouth and teeth, then slapped the back of the prop with his hand twotim es in an attempt to force the child's mou th open.

15. This t ime , the mou th prop lacerated the child's mou th and bloodspurted on R.Z.'s and Resp onde nt's facial shields. When the Respon dentbegan to strike S.P-L. a fourth time, R.Z. left the roo m and a sked a teen -aged m ale patient to call the police.

COUNT I16. Petitioner realleges an d incorpo rates paragraphs 1 through 15

as though fully set forth herein.17. Pediatric de ntistry is a difficult specialty o f dental m edicine in

that management of patients can be problematic and very time-consum ing. Minimum standards of prevailing peer performance in pediatricdiagnosis and treatment, however, do not permit abuseverbal orphysical to accomp lish a goal of patient ma nagem ent.

18.Section 466.028(1)(x), Florida Statutes, provides in pertinent partthat a licensee may be disciplined for being guilty of incompetence ornegl igence by fail ing to m eet the minimu m standards of performance indiagnosis and treatment wh en m easured against generally prevail ing peerperformance.

Case No. 04834


6/22

19. Res ponde nt's actions of forcing a ratchet-style m outh prop intoS.P-L.'s mo uth an d hitting it with the back of his h and, cau sing injury to

S.P-L., cons titute abuse not perm itted by minim um standards of prevailingpeer performance in dentistry and violate the provisions of section466.028(1)(x), Florida Statutes .

COUNT II

20. Petit ioner realleges and incorporates paragraphs 1 through 15as though fully set forth herein.

21. Section 466.028(1)(n), Florida Statutes, provides that acts offraud, deceit, or m isconduct in the practice of dentistry or dental hygienecons titute ground s for disciplinary action.

22. Respo ndent's actions o f forcing a ratchet-style m outh prop intoS.P-L.'s mo uth an d hitting it with the back of his ha nd, caus ing injury toS.P-L., constitute misconduct in the practice of dentistry that violatessection 466.028(1)(n), Florida Statutes .

COUNT III

23. Petit ioner realleges and incorpo rates paragraphs 1 through 15as thou gh fully set forth herein.

Case No. 2012-04834


7/22

24. Section 466.028(1)(1), Florida Statutes, provides that makingdeceptive, untrue, or fraudulent representations in the practice of dentistryis grounds for disciplinary action.

25. Respondent's statement to the WPBPD on May 10, 2010 thatS.P-L.'s injury was caused by S.P-L. biting his own lip constitutes an untruerepresentation in the practice of dentistry that violates section466.028(1)(1), Florida Statutes.

2. Patient A.S.1

26. On November 3, 2011, Respondent provided dental treatmentfor A.S.1, a ten-year-old girl. During the treatment, A.S.1 cried out, "Ican't breathe. Youstop squeezing my nose. Get your hand off my face. Ican't breathe. Move your hand."

27. From the waiting room, the girl's father heard his daughter'scries and demanded to know what was happening to his child. EmployeeW.M. told him she would check.

28. W.M. told Respondent that the father could hear his daughtercrying. Dr. Floyd responded, "Whatever. Close my door."

Case No. 04834


8/22

29. W .M. and A .S.1's father still could hear the little girl crying thatshe cou ldn't breathe. The father told W .M. to get his daugh ter back from

the treatment room imm ediately. W.M. went back to the treatment roombut Respondent told her he w as in the m iddle of a procedure and couldnot stop.

30. Wh en A.S.1 was returned to the waiting room , she was breathinghard, crying, and sweating.

31. Respo ndent's treatment records for A .S.1 indicate that teeth #Kand #T were extracted; however, the records do no t contain informationnoting that they were problematic or otherwise justifying the treatment.

32. The treatmen t records also indicate that a week after treatingA.S.1, Respondent prescribed her Penicillin VK 500m g/30 tabs; however,the records provide no justification for the prescription.

COU NT IV.33. Petitioner realleges and incorporates paragraphs 1 through 3

and 2 6 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 manyyears ago as a pediatric manag ement technique; how ever, it has no place

Case No. 2012-04834


9/22

in modern dentistry. Any attempt to forcibly prevent a small child frombreathing as a m eans of beha vioral control violates m inimu m standards ofcare and p erformance in ped iatric diagnosis and treatme nt.

35. Section 466.028(1)(x), Florida Statutes, provides in pertinentpart that being guilty of incompe tence or neg ligence by failing to m eet theminimum standards of performance in diagnosis and treatment whenm easured ag ainst generally prevailing p eer performance, is a violation ofChapter 466, Florida Statute, and constitutes grounds for disciplinaryaction.

36. Respon dent's attempt to obtain subm ission to dental treatmentby preventing A.S.1 from breathing does no t meet minimum standards ofprevailing peer p erforma nce in the practice of d entistry and constitutes aviolation o f section 466.028(1)(x), Florida Statu tes.

COUNT V .37. Petitioner realleges an d incorporates paragraph s 1 through 4

and 26 through 3 0 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 constituteground s for disciplinary action.

Case No. 04834


10/22

39. Respondent's act of covering A .S.1's mouth and nose to preventher from breathing as a means of behavioral control constitutes

misconduct in the practice of dentistry, in violation of section366.028(1)(t), Florida Statu tes.

COUN T VI.40. Petitioner realleges an d incorporates paragraph s 1 through 4,

and p aragrap hs 26, 31 and 32 as though fully set forth herein.41. Sec tion 466.028(1)(m ), Florida S tatutes, provides that fai ling to

keep written dental records and medical history records justifying thecourse of treatment of the patient, including, but not limited to, patienthistories, exam ination results, test resu lts, and x-rays, if taken, constitutesground s for disciplinary action.

42. Resp ond ent violated sec tion 466.028(1)(m), Florida S tatutes, byfai ling to doc um ent his justification for ex tracting A .S. 's teeth #K an d #Tand by failing to docu m ent any justification for prescribing penicillin.

COU NT VII.43. Petitioner realleges a nd incorporates p aragraphs 1 through 4,

and pa ragraph s 26, 31 and 32 as thou gh fully set forth herein.

Case No. 2012-048340


11/22

44. Minimum standards of prevailing peer performance in dentaldiagnosis and treatment require that diagnoses and treatmen t may not be

performed w ithout a reasonable basis, supported by exam ination and testresults.

45. Section 466.028(1)(x), Florida Statutes , provides in p ertinen tpart that a licensee m ay be d isciplined for being guilty of incomp etence ornegligence by failing to mee t the minimum standards of performance indiagnosis and treatment whe n me asured against generally prevailing peerperformance.

46. Resp ondent failed to m eet minimum standards of prevailing peerperformance in diagnosis and treatment by extracting baby teeth andprescribing penicillin without a reasonable basis for the treatment andprescription, thereby violating section 466.028(1)(x), Florida Statutes .

3. Patient A.S. 247. "A.S.2", a four-year-old boy, w as brought to R espondent's office

on N ovembe r 4, 2011 with a toothache. Respo ndent performed fillings andcrowns on the child, including a filling in a lowe r left m olar.

Case No. 048341


12/22

48. On or around N ovemb er 17, he began complaining of jaw painand difficulty opening his jaw; by the 20t h,he 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 D r. Floyd, stating that

her child's cheek w as s wollen and he needed antibiotics or an emergencyoffice visit.

50. The dental office operates every other week. A.S.2's mothercalled during an off week when only business staff were present;therefore, the office staff contacted Respo ndent with several me ssa gestelling him that A.S.2's mo ther was com plaining; how ever, Dr. Floyd didnot return the mother's calls.

51. Instead, Dr. Floyd told his staff that the child was too young forantibiotics and directed his staff to tell the mother to come back thefollowing week when the o ffice was open.

52. W hen the office opened for dental treatment the following w eek,A.S.'s m other called the office again and told office staff that A.S.2 hadbeen adm itted to the hospital with an infection from h is tooth.

53. St. Mary's Medical Center records for November 21, 2011indicate that A.S.2 was admitted that day with a diagnosis of a dental

Case No. 2012-048342


13/22

abscess and facial celllulitis and adm inistered the antibiotic clindam ycinintravenously every six hours and given Tylenol with codeine for pain.

54. A.S.2 was released two days later and sent home withclindam ycin to be taken by m outh for five days and, follow ing the antibiotictherapy, a recommended dental follow-up for an extraction of theabscessed tooth.

COUNT VIII.

55. Petitioner realleges and incorporates paragraphs 1 throug h 4and 47 through 5 4 as though fully set forth herein.

56. The minimum standards of generally prevailing peerperformance in den tal treatment and diagnosis require that any swelling inthe mouth be investigated and treated as soon as possible.

57. Section 466.028(1)(x), Florida Statutes, p rovides in pertinentpart that a licensee may be d isciplined for being g uilty of incomp etence ornegligence by failing to m eet the minimum standards of performance indiagnosis and treatment w hen m easured against generally prevailing peerperformance.

58. Resp ondent failed to meet minimum standards of prevailing peerstandards of performance in diagnosis and treatment by failing to address

Case No. 048343


14/22

prom ptly reports of A.S.2's swelling and pain, thereby violating section466.028(1)(x), Florida Statutes.

4. Patients Bri.R.-1 and Bri.R.-259. "Bri.R.1" was b rought by her father to Dr. Floyd's office for a

routine dental examination and c leaning on A ugust 9, 2011; however, herchart was con fused w ith the chart of an unrelated child of similar nameand age, herein called "Bri.R.2", whose chart was provided to Respondentfor Bri.R.1's dental treatment.

60. Respondent Dr. Floyd failed to verify, before commencingtreatment, that that he was utilizing the correct chart and performing thecorrect procedures.

61. Instead, following the "existing conditions" and "treatment plan"chart in Bri.R.2's records, he performed eight restorations and threeextractions on Bri.R.1, documenting them and the treatment date inBri.R.2's treatment records.

62. The m istake was discovered on ly after Bri.R.1 was returned tothe waiting room and her father demanded to know why his daughter hadhad teeth taken out when she was supposed to receive only a cleaning.

Case No. 2012-048344


15/22

63. Acco rding to Respo nden t's treatme nt notes for Bri.R.1 that day,"Father caused extreme com mo tion at front desk and threatened the staffand doctor with physical harm. Advised to leave or we would call thepolice!! (After requesting us to treat the child, he became irate that wecom pleted the w ork!)" [Emphasis in original.]

64. Dr. Floyd then m arked out the restorations an d extractions h ehad docum ented that day in Bri .R.2's records and re-docum ented them inBri.R.1's reco rds.e also documented an "existing conditions" and"treatmen t plan" chart for August 9, 2011 that correspo nds exa ctly withBri.R.2's existing cond itions and treatment plan that Dr. Floyd h ad usederroneously for Bri.R.1's treatment.COUN T IX.

65. Petitioner realleges and incorporates paragraphs 1 though 3 and59 through 6 4 as thoug h fully set forth herein.

66. Section 45 6.072(1)(bb), Florida Statutes, states that perform ingor attempting to perform health care services on the wrong patient, awron g-site procedure, or an un authorized procedure or a proced ure that ismed ically unnecessary or o therwise unrelated to the patient's diagnosis o rmedical con dition is grou nds for disciplinary action against the licensee.

Case No. 048345


16/22

67. Resp onde nt violated section 456.072(1)(bb), Florida Statutes, byperforming treatment on the wrong p atient and by pe rforming medically

unnecessary procedures, via section 466.028(1)(mm), Florida Statutes.COUNT X .

68. Petitioner realleges and inco rporates paragraphs Ithough 3 an d59 through 64 as though fully set forth herein.

69. Section 46 6.028(1)(o), Florida S tatutes, provides in pertinentpart that performing professional services which have not been dulyauthorized by the patient or client, or his or her legal representative,constitutes groun ds for d isciplinary action against the licensee.

70. Resp onde nt failed to obtain parental consent before performingextractions and restorations on Bri.R.1's teeth, thereby violating section466.028(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 leftquadrants; sealants on teeth #15, #18, and #31; and occlusal/occlusallingual compo site filling with an indirect pu lp cap.

Case No. 2012-048346


17/22

72. Following a change in available dental plan providers, C.C.'smother took her to another dentist on April 11, 2012. The subsequent

dentist's exam ination of C.C.'s teeth revealed red, swollen gum tissues anda "thick wall of calculus from 22-27." His treatm ent plan for C.C. includedfull hygienic gross debridement, sealants on three teeth, and twocomposite fillings.

73. The subsequent treating dentist's office experienced difficultiesin obtaining Medicaid authorizations for the above treatment because ithad already been performed; the dentist then discovered thatRespondent's office had charged out codes for an am algam o n #14 thatthe following dentist could not find; codes for a pulp cap on #14 that heconsidered unnecessary; codes for sealants on teeth #31, #18, and #15that were not there; and codes for a "LL, LR scale root plane" that thesubsequent dentist noted simply could not have been done.

74. The subseq uently treating dentist inform ed C.C.'s m other thatthe fillings were half-filled and he was pulling debris out of them. Heshowed her holes in back teeth that couldn't have been filled.

75. Her new dentist also told her that he did not believe that scalinghad been done to her daughter's teeth three m onths earlier because the

Case No. 048347


18/22

bottom rear teeth had so much calculus, they were almost "welded"together. He explained that it would take months and months for calculusto build up to that point.

76. Respondent's records for C.C. display initials/signatures for thescaling performed by Respondent's office on January 23, 2012, that appearto be those of "AA" (employee Audrey Adams), overwritten with a "TF"(Thomas Floyd).

77. Ms. Adams' responsibilities as Respondent's employee isprimarily as an office manager; however, she is also the only employeewho performs tooth scaling to remove plaque and calculus.

78. Section 466.023, Florida Statutes, provides in part that onlydental hygienists may be delegated the task of removing calculus depositsand performing root planing and curettage.

79. Ms. Adams is not licensed as a dental hygienist in the State ofFlorida.

80. Dr. Floyd asked dental assistants to perform tooth scaling andoffered to teach them how to do it, but they refused because, asassistants, they were not certified to do so.

Case No. 2012-048348


19/22

Count XI.81. Petitioner realleges paragraphs 1 through 3 and p aragraphs 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 thepractice of dentistry is a violation o f Cha pter 466, Florida Statutes.

83. Respo nden t's representation in C.C.'s dental records that rootplaning, sealants, and amalgam fillings had been performed constitutes anuntrue representation in violation of section 466.028(1)(1)1 Florida Statutes.

Count XII84. 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 th at delega ting

professional respon sibilities to a perso n w ho is not qu alified by training,experience, or licensure to perform them constitutes grounds fordisciplinary action.

86. By delegating dental scaling to an em ployee no t licensed as adental hygienist qualified to perform tho se profession al responsib ilities,Respo nden t violated section 466.028(z), Florida Statutes.

Case No. 048349


20/22

6. Office Sanitation and Conditions

87. Dr. Floyd has a policy of changing germ barriers on the handlesof the equipment only once in the morning.

88. Respondent fails to change gloves between patients, uses thesame burrs on different patients, and will pick up a dental instrument froman 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 ifa band does not fit the tooth, he will return the band to the band casewithout first sterilizing it.

Count XIII90. 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 inthe practice of dentistry presents a significant danger to the public due tothe potential for transmission of infectious diseases to patients duringtreatment. The Rule also provides that failure to follow the propersterilization and disinfection procedures set forth in Rule 64B5-25.003,F.A.C., constitutes a violation of section 466.028(1)(u), Florida Statutes.

Case No. 2012-048340


21/22

92. According to rule 6485-25.003(2)(a) and (b), F.A.C., thefollowing surgical instrumen ts that penetrate soft tissue or bone m ust besterilized after each use: forcep s, scalpels, scalers, surgical burs, high-speed dental hand-pieces, contra-angles, prophy angles, amalgamcondensers, plastic instruments, and burs that come into contact with oraltissues.

93. Rules 6485-25.003(5) and (8), F.A.C., provide respe ctively andin pertinent part that at the com pletion of dental treatment, all surfacesthat may have b ecom e contam inated with blood, saliva, or other bodilyfluids, must be disinfected, and that surgical or exam ination gloves m ustbe changed between patients.

94. Respondent violated the above-stated rules by utilizinginstruments and burs on more than one child without sterilizing thembetwe en each u se, failing to clean all surfaces that might have be com econtaminated between patients, and failing to change surgical orexamination gloves between patients.

95. Section 466.028(1)(u), Florida Statutes, states that failure toprovide and maintain reasonable sanitary facilities and conditionsconstitutes grounds for discipline.

Case No. 048341


22/22

96. By violating Rule 64B5-25.003, F.A.C. requiring sterilization ofinstruments and glove disposal, Respondent violated section

466.028(1)(u), Florida Statutes.WH ERE FOR E, Petitioner respectfully requests that the Bo ard

of Dentistry enter an order imposing one or more of the followingpenalties: perman ent revocation or suspen sion of Respond ent's license,restriction of practice, imposition of an administrative fine, issuance of areprimand, placement of Respondent on probation, corrective action,refund of fees billed or collected, remedial education and/or any otherrelief that the B oard deem s appropriate.

SIGN ED this ri1 - - day of January, 2013.John H. Armstrong, M .D.State Surgeon General and Secretary of HealthD ent of HealthGailtt HillAssistant General CounselDOH Prosecution Services Unit4052 Bald Cypress Way, Bin C-65Tallahassee, FL 32399-3265Florida Bar # 90 9289(850) 245-4640 Telephone(850) 245-4683 FacsimilePC P: 9/25/12PC P M embers: C.M., J.T.M., and W.R

dr. thomas floyd 2012-04834 - doh v floyd - amended complaint

Documents