ALJDEC decisions subject to certification as final

03F-220437-DEN · Board of Dental Examiners · 2003-10-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 3 and 4, 2003. The record was kept open until September 18, 2003, for the filing of the court reporter’s transcripts. APPEARANCES: The Arizona State Board of Dental Examiners was represented by Assistant Attorney General Mary DeLaat Williams. Mireya D. Ruiz, D.D.S., was present and represented by her attorneys, Edwin M. Gaines, Jr., Esq., and Dwight M. Whitely, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Arizona State Board of Dental Examiners (“Board”) has the authority to regulate and control the practice of dentistry in the State of Arizona. 2. The Respondent, Mireya D. Ruiz, D.D.S., is the holder of license number D4222 for the practice of dentistry in the State of Arizona. That license was issued by the Board on April 17, 1991. 3. The Board issued a Complaint and Notice of Hearing dated May 14, 2003, alleging that Dr. Ruiz committed acts of unprofessional conduct. 4. Dr. Ruiz was born in Nicaragua. 5. She attended the National University in Nicaragua and earned her D.D.S. degree in 1972. 6. After dental school, Dr. Ruiz worked in the military hospital in Managua, Nicaragua and in the Social Security Hospital in the same city until she moved to the United States of America (“United States”). 7. After arriving in the United States, Dr. Ruiz took English language classes because at that time she did not speak any English. 8. After receiving her Arizona dental license, Dr. Ruiz established a dental practice in Tucson serving primarily Spanish speaking patients. 9. On or about August 7, 2000, the Board and Dr. Ruiz entered into a Consent Agreement and Order to resolve case numbers 99310-99274. A term of the Consent Agreement and Order required random audits of Dr. Ruiz’s dental practice over a five year period. 10. On October 18 and 19, 2001, the Board’s auditor, Irwin Feinberg, D.D.S., conducted a random, unannounced independent audit at Respondent’s dental office located at 5700 East 22 Street, Tucson. The audit consisted of a review of 50 patient files. 11. Dr. Feinberg’s audit was limited to patient appointments from the latter part of 1999 and extending into October, 2001. 12. Dr. Feinberg’s audit addressed the following areas: treatment records; evidence of altered records/x-rays; evidence of over diagnosis; insurance claim forms; insurance explanation of benefits; patient contribution amounts; and third party receipts. 13. In his written audit report, Dr. Feinberg noted that Dr. Ruiz and her office staff had been “pleasant and cooperative.” 14. For the following patients, Dr. Feinberg found no periodontal charting/records contained in the patient files, nor did Dr. Ruiz or her staff provide him with any additional records during the audit: J.B., S.W., P.H., O.A., R.G., E.M., L.E., D.K., Ms. M.R., Mr. M.R., and M.M. 15. The following patient charts contained inadequate periodontal charting: J.R.(Dr. Ruiz charted pocket depths on the facial surfaces only); L.F.M. (patient file contains periodontal pocket probings from 1997 only; Dr. Ruiz did periodontal treatment in 2000 with no justification or support contained in the records). 16. Dr. Ruiz failed to adequately address and/or treat patient J.R.’s periodontal condition. The radiographs for J.R. show advanced periodontal disease. There is no evidence of adequate periodontal treatment or any follow-up evaluation by Dr. Ruiz in J.R.’s treatment records. 17. On or about March 26, 2001, Dr. Ruiz planned to treat J.R.’s teeth nos. 3, 5 and 12 for composite restorations. The radiographs for J.R. contain no evidence of decay or other concerns requiring or supporting treatment. 18. At the time Dr. Ruiz treated J.R. the standard of care for a general dentist required periodontal charts to be kept by the treating dentist with the recording of six probings per tooth. 19. The treatment records for patient L.F.M. contain periodontal probings from 1997. 20. It is determined that L.F.M.’s July 8, 1997 periodontal chart does not meet the standard of care for a general dentist because Dr. Ruiz only recorded the buccal surfaces of the teeth and leaves the lingual surfaces unknown. 21. The treatment records for patient L.F.M. indicate that on February 3, 2000, Dr. Ruiz performed subgingival curettage and gingivectomies on the same two quadrants. Dr. Ruiz’s treatment records do not contain any support or justification for the treatment. 22. The American Academy of Periodontology Statement Regarding gingival curettage approved in August 2002 describes the treatment as “a surgical procedure designed to remove the soft tissue lining of the periodontal pocket with a curet, leaving only a gingival connective tissue lining.” 23. The American Academy of Peridontology Statement notes that short term and long term clinical trials “have confirmed that gingival curettage provides no additional benefits when compared to [scaling and root planing] alone in terms of probing depth reduction, attachment gain, or inflammation reduction.” 24. The American Academy of Peridontology’s Guidelines for Periodontal Therapy does not include gingival curettage as a method of treatment. 25. As to patient Ms. M.R., Dr. Ruiz admits to the Board’s allegation that: “Respondent charged the patient for both subgingival curettage and a gingivectomy in the same quadrants and on the same appointments. Subgingival curettage and a gingivectomy are not performed at the same time.” 26. Patient D.S.’s periodontal chart was not included in the patient records reviewed by Dr. Feinberg but was subsequently sent to the Board. 27. Dr. Ruiz’s findings according to patient D.S.’s periodontal charting indicates generalized threes and fours with a couple of sixes in the lower anterior region. 28. Dr. Ruiz’s radiographic examination of D.S. indicated generalized moderate to mild bone loss. 29. Sam Palmer, D.D.S., is the chief investigator for the Board. 30. Dr. Palmer testified that generalized bone loss would indicate that 80 to 90 percent of the patient’s teeth having exhibited some bone loss. He noted that the only teeth that really exhibit any significant bone loss are the lower anterior teeth. He found the rest of the bone intact. 31. Dr. Palmer further noted that there is some bone loss around the second molars on D.S.’s upper right and upper left, but opined that the rest of the bone appears to be high and intact with the lamina present. 32. If there was generalized bone loss based on radiographic examination, then there would be higher periodontal scores. 33. Dr. Ruiz’s diagnosis of radiographic examination generalized or moderate bone loss does not correspond to the probings that are on the record. Dr. Ruiz’s periodontal examination of D.S. is in error. 34. The periodontal chart for patient L.W. was not available to Dr. Feinberg during his audit. A copy of the periodontal chart was later presented to the Board by Dr. Ruiz. 35. The radiographs for patient L.W. show evidence of moderate calculus and bone loss. The treatment records for L.W. contain no periodontal probings and there is no discussion of periodontal treatment contained in the records. Respondent failed to address and/or treat L.W.’s periodontal condition. 36. The only periodontal chart for L.W. is dated September 17, 2001. On October 15, 2001, Dr. Ruiz did a build-up and prepped tooth number 29 for a crown. On May 15, 2002, Dr. Ruiz built up tooth number 15 and crowned it. Dr. Ruiz saw the patient again in February 2003. Dr. Ruiz testified that it was a mistake not to have performed a periodontal examination of L.W. at the end of one year. 37. Patient R.N.’s periodontal chart was not available to Dr. Feinberg during his audit. Dr. Ruiz subsequently submitted a copy of it to the Board. 38. Dr. Palmer testified that after reviewing the periodontal chart he had to assume that the patient had no teeth in the upper arch. He noted that there is a furcation involvement on tooth number 30, which is the lower right molar. 39. Dr. Palmer opined that the periodontal chart was incomplete because it only has buccal recordings on the lower teeth. 40. Dr. Palmer made the assumption that R.N. had no teeth in the upper arch because the tooth chart in the periodontal chart had vertical lines through the existing teeth. However, the charting symbols for the periodontal chart indicate that a vertical line identifies a tooth for extraction. The charting symbol for a missing tooth is an X through the tooth. Dr. Ruiz was inconsistent in the use of the symbol for a missing tooth in the periodontal chart. 41. As a result of the radiographic examination, Dr. Ruiz’s findings were generalized moderate bone loss. 42. Dr. Ruiz’s findings of generalized moderate bone loss are not supported by the radiographs. Dr. Palmer credibly testified that: “The lower left has bone completely intact around the existing molars, there’s vertical bone loss on the lower right with a small furcation involvement, the lower anterior has – in fact, you can see the lamina dura intact on that with some swelling of the tissue, and you can actually see the tissue present on the radiograph. There is some vertical bone loss but the lamina dura looks healthy and intact.” 43. Patient L.C.M.’s periodontal chart was not available for Dr. Feinberg’s review at the audit. Dr. Ruiz subsequently sent a copy of the periodontal chart dated October 8, 2001 to the Board. At the hearing, the patient’s original file contained an original periodontal chart. 44. The periodontal chart reflects L.C.M.’s periodontal condition as generalized moderate bone loss, no indication of the amount of calculus present, all third molars missing and some generalized edema on the tissue. 45. The same entry on the treatment ledger indicated oral tissues normal, moderate stage periodontitis present and that the patient is aware of disease. 46. The periodontal charting for patient L.C.M. is inconsistent with the radiographs and treatment entries. 47. One treatment entry says oral tissue is normal. However, the patient had edema, or swelling, which is inconsistent with a normal oral tissue. 48. The radiographs are inconsistent with the periodontal chart. The finding of moderate stage periodontitis is not supported radiographically. The radiographs support a finding of localized bone loss rather than generalized bone loss. 49. The original chart for patient L.E. contains a periodontal chart dated July 10, 2000. That periodontal chart was not in the original chart when reviewed by Dr. Feinberg during the audit. Dr. Ruiz later sent a copy of it to the Board. 50. According to the periodontal chart, Dr. Ruiz found: generalized three and four millimeter pockets, except in the area of tooth number 30 which has a five probing on the mesial buccal and distal buccal with a four probing in the center of the facial buccal of tooth number 30; mild generalized bone loss; no indication on the amount of calculus present; and radiographically it shows a significant furcation involvement on tooth number 30. 51. The radiographs do not support Dr. Ruiz’s finding of generalized mild bone loss. Instead, there is credible evidence that there are some localized areas. The furcation is the most significant and is extensive. 52. Dr. Ruiz also noted the following periodontal conditions: oral tissues normal; no TMJ present; generalized condition of the gingival condition; and generalized hemorrhage and edema. 53. Dr. Ruiz’s treatment plan indicates for furcation involvement she was going to drain the abscess and do a gingivectomy. 54. On July 17, 2000, Dr. Ruiz drained L.E.’s abscess, performed a gingivectomy and gave L.E. antibiotics and Motrin. 55. On or about September 21, 2000, L.E. requested a refill of Keflex from Dr. Ruiz. L.E. went to Dr. Ruiz’s clinic to pickup the Keflex. Dr. Ruiz spoke to L.E. about the refill and the status of the treatment to tooth number 30. L.E. indicated that the tooth was fine. Dr. Ruiz did not perform an examination of the tooth. 56. On or about July 13, 2001, L.E. was examined by Dr. Ruiz. 57. Dr. Ruiz did not take any X-rays during the July 13, 2001 examination of L.E. 58. During that examination Dr. Ruiz made a diagnosis of early stage periodontitis. Dr. Ruiz did not include that diagnosis in L.E.’s periodontal chart. 59. Dr. Ruiz made no mention of tooth number 30 in the treatment notes. 60. Dr. Ruiz fell below the standard of care when she failed to reevaluate the prior treatment to tooth number 30 during the July 13, 2001 examination to make sure that it had been successfully treated. 61. The original patient record for patient D.P. only contains a copy of a periodontal chart. 62. The periodontal chart is incomplete. It shows only the buccal surfaces of the teeth which, according to the periodontal probings that are recorded, reflect extensive periodontal problems. The recordings are sevens and sixes on the one surface. 63. Dr. Ruiz determined that D.P. had generalized moderate severe bone loss, which is consistent with the radiographs taken on October 24, 2000. 64. The radiographs for D.P. show subgingival calculus in the upper right arch, gingival calculus in the lower right arch, and bone loss in the upper and lower right and lower left. 65. On or about November 14, 2000, Dr. Ruiz’s patient records indicate that she performed an upper left arch subgingival curettage. 66. On or about December 5, 2000, Dr. Ruiz’s patient records indicate that she performed an upper left arch subgingival curettage. 67. On or about February 13, 2001, Dr. Ruiz’s patient records indicate that she performed a lower right arch subgingival curettage. 68. On or about March 16, 2001, Dr. Ruiz’s patient records indicate that she performed a lower left arch subgingival curettage. 69. Dr. Ruiz did scaling and root planing on the patient. Dr. Ruiz described the procedure she performed as subgingival curettage, which is a separate procedure. 70. Dr. Palmer opined that Dr. Ruiz’s treatment was not proper because of D.P.’s periodontal condition because of the extent of bone loss and the amount of calculus shown on the X-rays. Dr. Palmer testified that the patient probably needed osseous surgery. 71. Dr. Ruiz failed to address and/or treat D.P.’s periodontal condition. The treatment records contain incomplete periodontal probings and there is no evidence of any follow-up evaluation or periodontal treatment. 72. The treatment record for patient M.M. does not contain a periodontal chart. 73. Dr. Ruiz fell below the standard of care for a reasonable and prudent dentist by failing to maintain a periodontal chart for patient M.M. A periodontal chart is needed to completely evaluate the patient and to establish a baseline of periodontal condition. 74. The original treatment record file for patient J.B. contains a copy of a periodontal chart but not an original. 75. The periodontal chart for patient J.B. is not complete as there are no periodontal probings on it at all. 76. Dr. Ruiz recorded in J.B.’s periodontal chart a diagnosis of periodontitis, marked a straight line through some teeth and recorded that the posterior molars on the left and right indicate furcation involvement. 77. April 20, 2001 was the date of J.B.’s initial visit. Dr. Ruiz’s treatment notes indicate moderate stage periodontitis, moderate bone loss and bifurcation present. 78. The periodontal chart does note the presence of furcation involvement on three molars, which is consistent with the radiographs. 79. At the time Dr. Ruiz treated J.B., the patient had Pacific Care Dental Plan. 80. Dr. Ruiz admits that she upcoded the services she performed on the patient. She billed the insurance carrier for gingival curettage at $160 per quadrant, which were not performed. Dr. Ruiz further concedes that the insurance carrier was overcharged the sum of $272.00, which was eventually refunded to the carrier in May of 2003. 81. The original chart for patient P.H. does not contain a periodontal chart. 82. On August 15, 2001, P.H. had an initial visit with Dr. Ruiz. The patient records reflect an examination, full mouth X-rays, moderate stage periodontitis and several teeth with decay. 83. Based on Dr. Ruiz’s diagnosis, it was below the standard of care for her not having completed a periodontal chart for patient P.H. 84. The treatment record for August 15, 2001 indicates that P.H.’s teeth numbers 3, 7 and 13 were extracted. 85. A corresponding ledger entry for the August 15, 2001 treatment date indicates that teeth 3, 6, 7, 8, 9, 10, 11 and 13 were extracted. 86. Dr. Ruiz admits that patient P.H. was overcharged the sum of $757.00 for extractions and denture. 87. Dr. Ruiz has refunded patient P.H. the sum of $757.00 for the overcharges. 88. On May 30, 2000, Dr. Ruiz extracted patient O.A.’s tooth number 17 and charged it as a surgical extraction. The allegation that radiographs dated August 7, 2000 show tooth number 17 in O.A.’s mouth was proven incorrect. 89. The need for surgical extraction of O.A.’s tooth number 17 is not supported by Dr. Ruiz’s treatment records or radiographs for O.A. 90. The treatment entry for August 30, 2000 indicates that Dr. Ruiz did a subgingival curettage with ultrasonic scaler and hand curette, and then written in a different ink appears to have added gingivectomy as a treatment. Gingivectomy was also added in a similar fashion to the treatment entry dated September 9, 2000. 91. O.A., who did not have dental insurance at that time, was charged for a gingivectomy, which was a higher charge. 92. Dr. Ruiz’s treatment plan dated May 19, 2000 for patient O.A has no mention of gingivectomy. On that date and on August 7, 2000, Dr. Ruiz proposed subgingival curettage, three quadrants. 93. The indicated procedure for this patient would have been scaling and replaning. Subgingival curettage and gingivectomy are not two procedures that would be performed on the same patient at the same time. 94. On or about December 4, 2000, Dr. Ruiz proposed treatment for patient L.G. on teeth 1, 3, 14, 18 and 30. 95. On or about October 17, 2001, Dr. Ruiz proposed treatment for patient L.G. on teeth 1, 3, 14, 17, 18 and 30. 96. Dr. Ruiz’s treatment plan was for two-surface restorations of those teeth. 97. Dr. Ruiz’s corresponding ledger entry indicates composites for teeth 1, 3, 14, 18, and 30, which would be charged at $44.00 each. There is no ledger entry for tooth 17. 98. A composite is a restoration composed of a plastic, tooth-colored filling. 99. At the time of the proposed treatment, L.G. had a plan called EDS 100, as noted on the front of the patient’s chart. That chart also contained an insurance plan fee schedule. 100. Under the EDS 100 fee schedule, the $44.00 charge does not correspond to a two-surface restoration. It corresponds to a three or more surface restoration. 101. L.G. did not return for the planned treatment on October 18, 2001. 102. Notwithstanding L.G.’s failure to follow through on Dr. Ruiz’s proposed treatment plan and that neither L.G. or L.G.’s insurance plan were never charged any fees, Dr. Ruiz wrote excessive proposed charges in the patient chart for two-surface restorations and recorded that those treatments were going to be charged for three or more surface restorations if performed. 103. Patient M.A.S. was a patient of Dr. Ruiz. Originally her name appeared as M.A. in her treatment records prior to her marriage. 104. Dr. Ruiz admits she that did a two-surface bonding on M.A.S.’ tooth number 21 on October 17, 2001, but charged the service as a four or more surface restoration. Dr. Ruiz further admits that M.A.S. was overcharged the sum of $20.00 for that treatment. 105. On October 17, 2001, the treatment records for patient B.S. indicate that Dr. Ruiz did a crown on tooth number 9. 106. Dr. Ruiz charged B.S. for a build-up on tooth number 9 in addition to the crown. 107. The treatment records for patient B.S. contain no indication that a build-up on tooth number 9 was done. 108. Dr. Ruiz charged B.S. the sum of $70.00 for the undocumented build-up on tooth number 9. 109. On July 24, 2000, Dr. Ruiz’s treatment records planned patient E.M.’s teeth numbers 11 and 14 for routine extractions based on a diagnosis in the treatment record that the teeth were periodontically involved and mobile. 110. The treatment records for E.M. indicate that teeth numbers 11 and 14 were extracted as planned. 111. Dr. Ruiz admittedly charged for surgical extractions at a higher fee than the routine extractions actually performed. 112. Dr. Ruiz admits that E.M. was overcharged the sum of $112.00 for surgical fees when it should have been billed as routine extractions. 113. On March 13, 2000, and April 11, 2000, the treatment records for patient Mr. M.R. indicate Dr. Ruiz did scaling and root planing. 114. Dr. Ruiz admittedly charged the service as subgingival curettage and collected higher unearned co-pay from Mr. M.R. 115. Dr. Ruiz admits that patient Mr. M.R. was overcharged the sum of $120.00 for the service. 116. The treatment records for patient R.O.[1] indicate that Dr. Ruiz fitted this patient for upper and lower dentures. 117. Prior to providing the dentures, Dr. Ruiz extracted several of R.O’s teeth. 118. According to the treatment records, on August 30, 2000, Dr. Ruiz extracted R.O.’s teeth numbers 28, 29, 30 and 31, which were located in the lower quadrant. 119. On September 11, 2000, Dr. Ruiz extracted R.O.’s teeth numbers 20, 21, and 25, which would be the lower left in the anterior segment. 120. On October 25, 2000, Dr. Ruiz removed R.O.’s teeth numbers 22, 23, 26 and 27. 121. Dr. Ruiz charged R.O.$101.00 for each extraction. Under R.O.’s insurance plan, that amount would be an allowable charge for a removal of an impacted tooth, partial bony. 122. The radiographs taken of R.O.’s teeth did not justify the need for surgical extractions. 123. Dr. Ruiz overcharged R.O. for a more expensive extraction procedure than was required. 124. The fee Dr. Ruiz charged patient R.O. for the upper and lower dentures exceeded the allowable contracted amount. 125. The treatment records for patient D.K. indicate that on February 28, 2001, and March 28, 2001, Dr. Ruiz did subgingival curettage. 126. Dr. Ruiz admittedly overcharged for gingivectomies resulting in an overpayment by D.K. in the amount of $180.00. 127. At the hearing the parties stipulated to amending allegation 15 l. of the Amended Complaint to reflect the date “September 5, 2001” instead of “September 15, 2002”. 128. The treatment records for patient R.G. indicate that on September 5, 2001 Dr. Ruiz extracted the patient’s tooth number 6. 129. There is no treatment plan for R.G.’s tooth number 6. 130. Radiographs taken of R.G.’s tooth number 6 do not support the surgical extraction of tooth number 6. 131. Dr. Ruiz also performed an alveolectomy and three sutures were placed. This procedure was separate from the extraction. 132. At the time of the extraction, R.G. had dental insurance through EDS. 133. Dr. Ruiz charged R.G. $50.00, which under the EDS insurance plan is the rate for the surgical removal of an erupted tooth requiring elevation of mucoperiosteal flap and removal of bone and/or sectioning of the tooth. 134. Dr. Ruiz did not charge R.G. for the alveolectomy and sutures. 135. On September 29, 2000, Dr. Ruiz extracted patient S.W.’s teeth numbers 6, 7, 8, 9, 10 and 11, and charged them as surgical extractions. 136. Radiographs for S.W. do not support the need for surgical extraction. 137. On February 7, 2002, the Board issued a subpoena to Dr. Ruiz commanding her to send her original records for 21 patients. The patient files identified were reviewed by Dr. Feinberg during his audit. Dr. Ruiz provided copies of the requested patient files. Dr. Ruiz has failed to provide the original files. 138. On February 19, 2002, the Board received complaint no. 220056 against Dr. Ruiz from patient G.W. G.W. alleged that Dr. Ruiz charged her fees in excess of what her dental plan allowed. 139. Dr. Ruiz admits that she overcharged G.W. 140. On May 10, 2002, Dr. Ruiz refunded to G.W. the sum of $244. 141. Patient G.W. was initially seen as an emergency patient on September 11, 2001. 142. The dates of service in Dr. Ruiz’s ledger do not correspond to the dates of service in G.W.’s treatment records. There is no consistency between those records and the radiographs. 143. As part of the Board’s investigation of complaint no. 220056, the Board subpoenaed Dr. Ruiz’s original treatment records and sent the complaint to an investigative interview. 144. Dr. Ruiz’s treatment plan and diagnosis of G.W. were inadequate because she failed to take adequate radiographs. Dr. Ruiz admitted that the radiographs were inadequate because the root structure of the patient was not shown. 145. The standard of care required that Dr. Ruiz evaluate, but not treat, G.W.’s lower arch when evaluating and treating the patient for an alveolectomy and upper denture. 146. There are several matters in aggravation presented in this case. Dr. Ruiz is currently under a consent agreement with the Board entered into in 2000. That consent agreement provided that Dr. Ruiz’s dental license be “suspended for five years or however long it takes to satisfy the requirements in paragraph two of this order”, which relates to the 36 units of continuing education, “whichever is shorter.” Dr. Ruiz completed the required continuing education and is presently on probation. 147. Dr. Ruiz also has a record with the Dental Board preceding the said consent agreement 148. The Board issued an Order Complaint Number 93190 issued on July 18, 1994 wherein the Board found the following Findings of Facts with regards to Dr. Ruiz: “(i)nadequate diagnosis because dentist and subsequent diagnosis showed multiple caries…(i)nadequate history, clinical exam and diagnosis because none was submitted by the doctor…treatment plan is adequate…(r)adiographs were adequate because patient refused radiographs…Respondent stated false statements were true…the statements were not considered malicious.” The Board concluded that Dr. Ruiz committed unprofessional conduct, as defined in A.R.S. § 32-1201(18)(l) and (n), and constituted grounds for disciplinary sanctions under A.R.S. § 32-1263. The Board ordered that Dr. Ruiz be censured. 149. The Board issued an Order Complaint Number 93207 issued on July 18, 1994 wherein the Board found the following Findings of Facts with regards to Dr. Ruiz: “(i)nadequate history because no medical history documented and incomplete clinical examination due to insufficient charting…(i)t is an incomplete dental examination…(t)wo bitewings and one periapical x-ray submitted and radiographs were adequate…(d)iagnosis was inadequate due to lack of original records…(i)nadequate treatment plan due to lack of documentation…(p)rophylaxis cannot be ruled adequate or inadequate due to lack of documentation…(i)nadequate crown and bridge based upon subsequent dentist’s findings and the crown being out of occlusion and open margins on mesial of tooth #30…(f)alse statements were made…(t)he doctor admitted to altering the records. The Board concluded that Dr. Ruiz had committed acts of unprofessional conduct, as defined in A.R.S. § 32-1201 (18) (l) and (n) . Dr. Ruiz was censured.” 150. The Board issued an Order Complaint Number 94088 issued on October 4, 1994 wherein the Board made the following Findings of Fact with respect to Dr. Ruiz: “(i)nadequate history and clinical exam due to no periodontal charting…(i)nadequate x-rays due to periodontal involvement…(p)atient needed full mount treatment and only two bite wing x-rays and one periapical x-ray were taken…(i)nadequate diagnosis due to #18 diagnosed as needing a surgical extraction or build-up and crown without substantiation, no periapical x-ray…(t)reatment plan is inadequate due to perio treatment not formulated, #18 and #30 changed treatment and partial denture design planning on removal of #18 and extra clasp…(e)vidence for fraud and misrepresentation regarding fees charged for work not completed, refer to 10/28/93 billing, including surgical extraction #18, lower partial and extra clasp fee…(a)dequate anesthesia, insufficient evidence…(o)ral surgery is adequate…(o)perative dentistry is adequate.” The Board concluded that Dr. Ruiz committed acts of unprofessional conduct and she was censured. 151. The Board issued an Order Complaint Number 94323 issued on March 6, 1995 wherein the Board made the following Findings of Fact with respect to Dr. Ruiz: “(m)edical history was adequate…(c)linical Exam was adequate…(r)adiographs were adequate with two bite wings only…(d)iagnosis is inadequate…(p)atient has many undiagnosed carious lesions…(t)reatment planning is inadequate…(p)atient was never appointed for follow up of restoration on any teeth…(t)he patient’s telephone answering tape stated Dr. Ruiz found no problems with the patient’s teeth…(t)his comment was made by Dr. Ruiz’s staff.” The Board concluded that Dr. Ruiz committed acts of unprofessional conduct and censured her. 152. The Amended Board Order Case Number 95043 issued on July 6, 1998 found the following Findings of Fact relative to Dr. Ruiz: “(t)he original chart for S.E. (case 94323) was altered by Dr. Ruiz by adding a diagnosis and treatment for tooth #29…Dr. Ruiz admits to altering the record just prior to the investigative interview…Dr. Ruiz states she knows better than to alter the record but was tense and nervous before the hearing and made a poor judgment.” The Board concluded that Dr. Ruiz had committed acts of unprofessional conduct and censured her. 153. The Board Order Case Number 97281 found the following Findings of Fact relative to Dr. Ruiz: “(p)atient medical history is dated and signed on 7/3/97…(c)hief complaint purpose was for crowns…(t)here is one periapical of lower right quadrant, #29, #30, #31 area, that is adequate for treatment of #30-#31…(d)iagnosis is adequate…(t)eeth #30- #31 were in need of crowns because of broken lingual cusps…(c)rowns were treatment planned…(c)rowns were adequate except for contact on distal of #29…(b)itewing indicated distal alloy of #29 had no distal contour for placement of a contact, i.e., problem is #29, not crowns…(c )hart indicates three carpules Carbocaine 7/3/97 and two carpules Carbocaine 7/21/97…(i)nadequate emergency care…Doctor, according to patient, did not want to see her.” The Board concluded that Dr. Ruiz committed acts of unprofessional conduct and censured her. 154. Board Order Complaint Case Number 98047 issued on June 22, 1998 found that Dr. Ruiz failed to comply with a Board Order. The Board concluded that Dr. Ruiz committed unprofessional conduct and censured her. 155. The Consent Agreement in Complaint Numbers 99310 and 99274 issued August 7, 2000, the terms of which are incorporated herein by reference and which was admitted into evidence as Exhibit 1, concluded that Dr. Ruiz violated the provisions of A.R.S. § 32-1201(18)(l), knowingly making any false or fraudulent statement, written or oral, in connection with the practice of dentistry, the provisions of A.R.S § 32-1201(18)(n), as conduct or practice which does or would constitute a danger to the health, welfare or safety of the patient or the public, and the provisions of A.R.S. § 32-1201(18)(y), as failing or refusing to maintain adequate patient records. 156. There are also several matters in mitigation presented in this case. Dr. Ruiz has conceded violations as noted in the above Findings of Fact. There is credible evidence of repeated misrepresentation and repeated negligence by Dr. Ruiz in this matter, but not to the proven level of fraud. Her pattern of disciplinary incidents, despite prior remedial actions on her part, does not seem to have abated. In 2002, Dr. Ruiz took steps to correct her billing practices by hiring a dental consultant who instituted changes in her practice to avoid billing inaccuracies. 157. Dr. Ruiz is found to be an unregulatable dentist. As such, Dr. Ruiz’s practice of dentistry poses a threat to the public health, safety and welfare.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Dr. Ruiz and the subject matter in this case. 2. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Dr. Ruiz as defined in A.R.S. § 32- 1201(18)(l) (Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of dentistry). 3. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Dr. Ruiz as defined in A.R.S. § 32- 1201(18)(n) (Any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public). 4. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Dr. Ruiz as defined in A.R.S. § 32- 1201(18)(o) (Obtaining a fee by fraud or misrepresentation, or willfully or intentionally filing a fraudulent claim for services rendered or to be rendered to a patient). 5. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Dr. Ruiz as defined in A.R.S. § 32- 1201(18)(p) (Dr. Ruiz’s repeated irregularities in billing). 6. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Dr. Ruiz as defined in A.R.S. § 32- 1201(18)(y) (Dr. Ruiz’s failure to maintain adequate treatment records as required by A.R.S. § 32-1264(A). 7. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct by Dr. Ruiz as defined in A.R.S. § 32- 1201(18)(x) (Failing to comply with a board subpoena in a timely fashion). 8. The above-described acts of unprofessional conduct constitute grounds for the Board to impose discipline on Dr. Ruiz pursuant to A.R.S. § 32- 1263. 9. The evidence of record supports the revocation of Dr. Ruiz’s license number D 4442 to protect the public health, safety and welfare.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Dr. Ruiz’s license number D 4442 be revoked on the effective date of the entered Order in this matter. Done this day, October 8, 2003

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2003, to:

Julie Chapko, Executive Director Board of Dental Examiners ATTN: Mario H. Guevara 5060 North 19th Avenue, Suite 406 Phoenix, AZ 85015

By ___________________________ ----------------------- [1] This patient’s name appears as R.O.H. in the Complaint and Amended Complaint. During the hearing counsel for the Board of Dental Examiners indicated that that the patient’s name should appear as R.O.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826