Attorney says immunity deal in ‘Tooth Fairy’ case raises questions that need answers

Imagine being stuck here indefinitely.

After Gainesville State Attorney Brian Kramer declined to take up a case related to Jacksonville dentist Howard Fetner, an attorney representing dentists fired by Fetner is raising more questions surrounding the “Tooth Fairy” case.

William Spicola represents dentists he says were fired by Fetner for raising concerns about “incorrect billing codes.” Spicola has pushed for Fetner to be investigated regarding a South Florida “Medicaid billing scheme.”

In a letter to Kramer, Spicola thanked him for his work and acknowledged the jurisdictional hurdles Kramer faced that led him to declining the case. Kramer argued that any wrongdoing would have occurred in Miami, and thus the 8th judicial circuit covering Gainesville was an improper jurisdiction to look into Fetner.

But Spicola points to multiple issues that arose from Kramer’s brief look into the case that he wants addressed.

“Your work disclosed that Dr. Fetner has a previously undisclosed immunity agreement with the Miami SAO, and he cannot be prosecuted for any crimes that he may have committed by allowing our client’s NPI numbers to be used without their permission and the other allegations contained in the DFS report,” Spicola wrote.

“We believe an immunity deal, by its very definition, requires someone to have disclosed something regarding criminal activity so that they are then granted a free pass by the Government for any potential crime they may have committed (underscoring that your investigation did not result in an exoneration of Dr. Fetner as some now claim) in exchange for truthful testimony about the other criminal activity they are aware of.”

More importantly, according to Spicola, is the lack of information surrounding that immunity deal with the Miami-Dade State Attorney’s Office.

“Your investigation uncovered that the Miami SAO does not have a record of what Dr. Fetner provided them in exchange for his immunity deal, so other law enforcement agencies like yourself have no way of knowing precisely the scope or limitations of his immunity,” Spicola added.

“For a State Attorney to lose or be unable to otherwise provide a copy of proffered testimony given in exchange for immunity is highly unusual if not unheard of. There would and should be a record of immunity deals kept in the context of a case that resulted in five arrests in Miami, but the unexplained reality in the Dr. Fetner matter is the records cannot be found.”

The Miami-Dade case looked into accusations that five employees of a dental management company Fetner was running may have committed fraud worth up to $1.3 million. The Miami-Dade SAO, however, declined to pursue the case. But Spicola said that’s only after they gave Fetner immunity. And without a case moving forward, it’s unclear what information Fetner provided.

The state Board of Dentistry is continuing to probe Fetner’s conduct, and has an upcoming probable cause hearing scheduled for July 12, during which perhaps more information will be revealed.

But Spicola says this information is hinting that the process was tainted.

“By failing to make or preserve the record of what immunity was provided, the Miami SAO appears to have provided Fetner with quasi de facto blanket immunity because there is no way to know the outer bounds of what he testified about,” Spicola continued in his letter to Kramer.

“I am sure you understand why my clients will forever question how the ‘justice’ system worked in this case. They are, however, determined and will still not give up. I understand the geographic jurisdictional challenges this case provides and the limitations of your appointment. Again, my clients appreciate all the work done by your office on this important matter which personally affected them and other pediatric dental patients.”