STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MINA FARAH, D.D.S., )

)

Petitioner, )

)

vs. ) CASE NO. 86-0235

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the hearing officer designated by the Division of Administrative Hearings, in Tallahassee, Florida on February 25, 1986. Proposed findings of fact and conclusions of law were submitted by the parties. Rulings on each of the proposed findings of fact is found in the Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Mina Farah, D.D.S., pro se

Astoria, New York

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation ISSUE

This case arose on Dr. Farah's challenge to the failing grade she received on the June 1985 clinical dental examination for her performance on procedures D (periodontal) and G (cast class II onlay preparation). Dr. Farah does not claim that her grade was the result of discrimination, but contends the grade was erroneous. Dr. Farah has not carried her burden of proving that the examination was improperly graded and her petition challenging the grading should be dismissed.

FINDINGS OF FACT

1. Dr. Farah is a candidate for licensure by the Board of Dentistry, having taken the dental clinical examination in June 1985. The examination covers ten domains of dental knowledge and practice; each is separately graded, and then weighted according to an algorithm. Rule 21G-2.13(3), Florida Administrative Code. A weighted grade of 3.0 is required to pass the clinical dental examination. Rule 21G-2.13(2)(c), Florida Administrative Code. Dr. Farah received a grade of 2.96.

   
   

2. The June 1985 examination was Dr. Farah's second attempt to pass the clinical examination.

3. The grading scale for each procedure is established in Rule 21G- 2.13(1), Florida Administrative Code, as follows:

   
   

   1. complete failure

   2. unacceptable dental procedure

   3. below minimal acceptable dental procedure 3- minimal acceptable dental procedure

      1. better than minimally acceptable dental procedure

      2. outstanding dental procedure

      
      

      An examiner is required to record a comment in support of any grade below 5.

      
      

4. Examiners for the dental examination are experienced licensed Florida dentists. Rule 21G-2.20(4), Florida Administrative Code. They are trained by the completion of 8 to 10 hours of standardization exercises. During the standardization exercises the examiners receive examination grading criteria, grade identical procedures, discuss any grade variance and attempt to eliminate any discrepancies in interpretations of the grading criteria in order to bring the examiners to a consensus on grading.

   
   

5. In the periodontal portion of the examination there are five criteria which are accorded equal importance in grading. These are: (a) presence of stain on the assigned teeth, (b) presence of supra-gingival calculus on assigned teeth, (c) presence of sub-gingival calculus on assigned teeth, (d) root roughness on the assigned teeth, (e) improper management of tissue such as gums which may have been lacerated during the procedure. Rule 21G-2.13(4)(b), Florida Administrative Code.

   
   

6. The grading is holistic and each examiner assigns a grade based on the examiner's evaluation of the overall procedure. Three examiner's grades are averaged to obtain a final grade score for the individual procedure. Rule 21G- 2.17(1), Florida Administrative Code. The score for that procedure is then weighted and added with the other weighted scores to obtain the overall grade on the clinical examination.

   
   

7. As a standardization technique in grading the periodontal exercise, an examiner marks off for root roughness when use of an explorer on treated teeth reveals a tactile roughness but the examiner is unable to visually confirm the presence of sub-gingival calculus. Use of an explorer reveals the presence of root roughness or calculus below the gum level (i.e., calculus which is sub- gingival).

   
   

8. Dr. Farah was assigned teeth number 2, 3, 4, 12, 13, l4 and 15 on her periodontal patient. A prior candidate (Candidate 20057) had treated the same patient in her periodontal exercise, and had been assigned some of the same teeth as Dr. Farah, viz., teeth 2, 3, 4, 5, 6, 7 and 8. Candidate 20057 received individual holistic grades of 4, 4 and 5, which average to a grade of

   4.33 for the periodontal procedure. Dr. Farah received grades of 1, 2 and 3, which average to a grade of 2.00 for the procedure. (Petitioner's Exhibit 8)

   
   

9. Examiner #006 graded both Dr. Farah and Candidate 20057 on their periodontal treatment. That examiner gave Candidate 20057 a holistic grade of 4 (better than minimally acceptable), noting a deduction for "root roughness," but there is no indication on the grade sheet of the tooth or teeth on which roughness was found. Examiner #015 also gave Candidate 20057 a grade of 4, and noted "root roughness" on the mesial side of tooth number 7, which was not one

   of the teeth later treated by Dr. Farah. The third examiner gave Candidate 20057 a grade of 5 with no comments. (All comments are found on Respondent's Exhibit 3.)

   
   

10. After Dr. Farah's treatment of the patient, which occurred two days after the treatment provided by Candidate 20057, Examiner #006 gave Dr. Farah a grade of 3, and recorded that he found sub-gingival calculus on the mesial side of tooth number 3. Calculus is a mineral deposit on teeth which does not form in 48 hours; Examiner #006 missed the calculus on tooth 3 when grading Candidate 20057 (perhaps because it was obscured by the inflammation and bleeding of the gums which the patient testified about at the hearing) or the calculus was on a tooth other than tooth 3, and the wrong tooth was noted by Examiner #006 on Dr. Farah's grade report. Examiner #005 gave Dr. Farah a grade of 2, finding root roughness and sub-gingival calculus on the distal side of tooth number 12, a tooth not treated by Candidate 20057. Examiner #048 gave Petitioner a grade of 1, commenting on "several" instances of sub-gingival calculus on teeth treated by Dr. Farah, as well as the presence of root roughness. (All comments are found on Petitioner's Exhibit 4.)

    
    

11. Examiner #006 gave Dr. Farah the highest of her grades on the periodontal procedure, which was that it was minimally acceptable. The other examiners determined that Dr. Farah's treatment left sub-gingival calculus, and was below minimally acceptable standards (the grade of 2) or was unacceptable (the grade of 1). At the hearing Dr. Farah agreed that if calculus remained the appropriate grade would be 2 or lower. There is no reason to adjust the grades assigned on the periodontal exercise.

    
    

12. Dr. Farah also prepared a cast class II restoration onlay wax up on a posterior tooth on a stone mannequin of a lower jaw. She received grades of 5,

    3 and 2, which average to 3.33. Examiner #080 assigned a grade of 2, wrote on the grading form "undercuts," and also noted that the procedure had a marginal surface finish. Examiner #133 assigned a grade of 3, and noted "poor outline form" but added no comment concerning an undercut. The third examiner, #048, made no deductions and assigned a grade of 5.

    
    

13. An "undercut" is an improper preparation of a tooth surface which is to support a crown. During the preparation of the assigned tooth, the center portion of the tooth was reduced to create a trapezoidal shape, similar to an equilateral triangle, the top of which has been cut by a plane parallel to its floor. A wax model of the crown is then prepared. If the side walls of the trapezoid, when the prepared surface is viewed from the top, do not slope downward and slightly outward, when the wax cast is removed, the wax deforms, and the crown made from it will not seat correctly on the tooth. This may cause the crown to fail, and is a serious error.

    
    

14. When a curved dental explorer is placed against the base of the tooth and against the surface of the tooth vertically, one may observe whether there is an angular displacement outward from the vertical at the top, indicating an undercut. On Dr. Farah's preparation this test reveals an undercut.

    
    

15. The testimony of Dr. Farah's expert, Dr. Robert Murrell, was that a "surveyor" is the proper instrument to use to evaluate a tooth preparation surface for an undercut. Dr. Murrell did so and determined there was no undercut on the Petitioner's work. There are two difficulties in determining whether there is an undercut using the surveyor. The surveyor's rod is fixed in a vertical position and cannot reflect whether it is actually up against the base of the tooth or not, and viewing the rod from the top down does not give

    visual confirmation whether the top edge is wider than the bottom; neither can one visually inspect the vertical alignment from the side because the remaining portion of the tooth would prevent one from viewing the alignment from the side position. Secondly, as the expert for the Department, Dr. Theodor Simkin, testified, the surveyor is not a proper instrument for determining undercuts on a mannequin, but is meant to be used on castings and other bridge or denture work done outside the patient's mouth. Logic supports Dr. Simkin's assessment, because a surveyor simply cannot be inserted into a patient's mouth. Dr.

    Simkin's testimony is also more persuasive because he has been, for several years, an experienced dental examiner and examination grading consultant. Dr. Murrell, while certainly a well-qualified dentist, has never been trained to grade the Florida clinical dental examination.

    
    

16. Laying aside the question whether the surveyor or the explorer is the better instrument for assessing whether there is an undercut on a tooth, the other method for determining an undercut explained by Dr. Simkin is persuasive. If no undercut is present, when the stone mannequin of the mouth on which Dr. Farah worked is viewed from directly above, it should be possible to view all four bottom corners of the preparation surface at the same time; if there is an undercut, the undercut bottom corner will be hidden when all of the other corners are viewed. Visual examination confirms the presence of an undercut in the front right corner of Dr. Farah's preparation.

    
    

    CONCLUSIONS OF LAW

    
    

17. It is Dr. Farah's burden to show entitlement to licensure. Rule 28- 6.08(3), Florida Administrative Code; J.W.C. Co., Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981); Section 466.006(4)(b), Florida Statutes (1985). The Department's evidence establishes that its training of examiners was in compliance with its rules [Rule 21G-2.20(4)] and that the test was fairly graded by trained examiners in accordance with rule standards. Rule 21G-2.13, Florida Administrative Code. The comments of the examiners support the grades given when they were less than 5.

    
    

18. The periodontal grades should not be altered.

    
    

19. While there is some rather surprising variation in the grades on the onlay preparation, one examiner judging it outstanding, one minimally acceptable and the other below the minimally acceptable, the Department's testimony concerning the presence of an undercut supports the lower grades, and persuades the Hearing Officer that the lower grades are more likely the correct ones.

RECOMMENDATION

It is recommended that the petition for regrading of the failing score assigned to Dr. Farah on the June 1985 clinical dental examination be DENIED.

DONE AND ORDERED this 27th day of March 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March 1986.

APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0235

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner Findings of Fact (onlay)

1. Rejected for the reasons stated in Findings of Fact 14 and 16.

2. Accepted in Finding of Fact 15.

3. Rejected for the reasons stated in Finding of Fact 15.

Findings of Fact (periodontal)1

1. Generally accepted in Findings of Fact 1 and 8, except for the final sentence, which is rejected as argument.

2. Rejected for the reasons stated in Findings of Fact 10 and 11. In addition, the question of whether the performance of Candidate 20057 was properly graded does not arise in this proceeding. If Candidate 20057 received high grades although three of the seven teeth treated had to be retreated 48 ours later by Dr. Farah, this does not address the central question in this case: Did the treatment provided by Dr. Farah meet minimum standards?

3. [page 7] Rejected because there is no competent substantial evidence that Dr. Simkin was Examiner #015, but if he was, the proposal is argument, not a finding of fact.

Rulings on Findings of Fact Submitted by Respondent

1. Accepted in Findings of Fact 4, 5 and 6.

2. Accepted in Finding of Fact 5.

3. Accepted in Finding of Fact 4.

4. Accepted in Finding of Fact 3.

5. Accepted in Findings of Fact 3 and 7.

6. Accepted in Finding of Fact 8, 9 and 10.

7. Accepted in Finding of Fact 11.

8. Accepted in Finding of Fact 12.

9. Accepted, but clarified in Findings of Fact 13 and 14.

10. Accepted in Finding of Fact 15.

COPIES FURNISHED:

Mr. Fred Varn Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dr. Mina Farah

21-32 Crescent Street #D-7

Astoria, NY 11105

Docket for Case No: 86-000235

Orders for Case No: 86-000235