STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT F. METNICK, DPM, )
)
Petitioner, )
)
vs. ) CASE NO. 90-0959
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Clearwater, Florida
on May 10, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For the Petitioner: Robert F. Metnick, pro se
1326 So. Hercules Avenue Clearwater, Florida 34624
For the Respondent: Harper Field, Esquire
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
STATEMENT OF THE ISSUES
Was Petitioner properly graded and given appropriate
credit for his answers on the July, 1989 Florida Podiatry examination.
PRELIMINARY STATEMENT
By letter dated January, 10, 1990, Petitioner, Robert
F. Metnick, D.P.M., requested a formal hearing to contest the denial of credit for his answers to numerous questions on both
the morning and afternoon portions of the July, 1989 Florida podiatry examination. On February 12, 1990, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer, and on February 22, 1989, after Initial order and response thereto by Respondent only, the undersigned set the matter for hearing in Clearwater on May 10, 1990, at which time the hearing was held as scheduled.
At the hearing, Petitioner testified in his own behalf
and introduced Petitioner's Exhibits 1 through 15. Respondent presented the testimony of Dr. Joel Levy, Chairman of the Board of Podiatric Medicine, and Dr. Stanley J. Nazian, associate professor of physiology at University of South Florida, but introduced no exhibits. The undersigned received copies of the challenged questions from the morning and afternoon examination sessions, (Hearing Officer Exhibits 1 and 2, respectively), and Petitioner's answer sheets for those sessions, (Hearing Officer Exhibits 3 and 4).
A transcript was furnished and counsel for Respondent submitted Proposed Findings of Fact which, except for Proposed Finding No. 27, which relates to Question 186 - AM, have been accepted and are incorporated in this Recommended Order. Proposed Finding 27 is rejected. Petitioner submitted a letter dated May 26, 1990 in which he "revisited" certain of the questions in dispute here and attached additional authority citations relating to Questions 116, 154, 182, and 166 in the morning session, and Question 25 in the afternoon session. Since these authorities were not presented at hearing, and since Respondent had no opportunity to review them or to interpose objection thereto, they have not been considered in the preparation of this Recommended Order. However, so much of Petitioner's written presentation as can be considered argument in support of his position has been considered by the undersigned in the resolutions of the controverted issues of fact.
FINDINGS OF FACT
At all times pertinent to the issues herein, Petitioner, Robert F. Metnick, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state.
Petitioner sat for the July, 1989 Florida podiatry licensure examination. He obtained a score of 68.6 percent, representing 253 correct answers. A passing grade requires a score of 75 percent, representing 270 correct answers.
The questions challenged from the morning session,
(in the sequence as addressed at hearing), were questions number 116, 98, 109, 106, 189, 192, 139, 179, 130, 86, 105, 154, 186,
166, 164, 155, 103, and 102. The questions challenged from the afternoon session, (also as addressed at hearing), were questions number 3, 157, 7, 45, 23, 25, 147, 29, 33, 97, 122, 129, and 75.
Either at or before the hearing, Petitioner dropped his challenge to Questions 164, 155, 103 and 102 in the morning session and to question 75 in the afternoon session.
Question 116 - AM reads:
The Babinski reaction is normally outgrown by which one of the following ages:
A - 10 months B - 2 years C - 3 years D - 6 years
Petitioner indicated "A", 10 months as his answer and
the Board's answer was "B", 2 years. Petitioner claims that 2 years is too long a period and cites as authority for his position, Survey of Clinical Pediatrics, p. 198, where it is stated that "Babinski reflex is present and unsustained ankle clonus may normally be present to 2 to 4 months of age; this reflex disappears at 10 to 16 months." Dr. Joel Levy, Chairman of the Board of Podiatric Medicine defended the Board's answer of
2 years by reference to two texts, both of which state that the correct answer is 2 years. In Dr. Levy's opinion, the Babinski reflex can exist well beyond 10 months. While there appears to be a difference in authority for the divergent opinions expressed by the parties, Petitioner did not show that the Boards' decision declining to accept his answer as correct was either arbitrary or capricious or was incorrect.
Question 3 - PM read:
Ordinarily the kidneys can remove up to about 500 millimols of acid or alkali each day. The pH of the blood is usually about 7.4, however the pH of the normal urine is about:
A. 5.0.
B. 6.0.
C. 7.0.
D. 8.0.
Petitioner's answer was "A", 5.0, and he claims that
the pH factor is of little relevance. His authority, The International Handbook of Medical Science, Second Edition, states at p. 112, "Measurement of pH on random urine samples has little clinical importance because of wide variation with the time of day and with dietary intake." Respondent's expert, Dr.
Stanley Nazian, a physiologist, indicated that the Board's accepted answer, "B", 6.0 is correct. The low for the normal range is generally considered to be 5.5. Anything lower is distinctly abnormal. Clearly Petitioner's answer is outside the parameters considered to be appropriate and it is his conclusion that this factor is of little relevance to the practice of podiatry is irrelevant.
Question 98 - AM reads:
The stance phase of gait occupies what percent of the entire walking cycle?
A. 20%
B. 40%
C. 60%
D. 80%
Petitioner answered "B - 40%" whereas the correct answer was "C - 60%." Petitioner claims he cannot tell from the question if the gait referred to in the question is a normal gait or an abnormal walk, and claims the question is inadequate. He does not attack the Board's answer. The Board claims that its answer, 60%, is clear-cut and there is little basis to question the wording of the question asked. Most examination questions, unless specifically provided otherwise, assume the normal, routine situation, and this question assumes a normal functioning foot. Therefore, Petitioner should get no additional credit for this question.
Question 109 - AM reads:
Foot function in sprinters is characterized by which one of the following?
Absence of heel contact
Prolonged midstance phase
Extension of float phase
Increased double support
Petitioner answered "C - Extension of float phase".
The correct answer was "A - Absence of heel contact." Petitioner claims he can find no support in any authority for the Board's answer but can for his. Review of Petitioner's Exhibit 3, submitted in support of his position, is not conclusive. The Board claims that the question asked refers only to sprinters because of the peculiarity of the sprint wherein there is normally no heel contact, rather than other type of foot contact movement which includes both heel and ball contact. In fact, the Board's answer characterizes the gait of a sprinter and is the only correct answer. Therefore, Petitioner should receive no additional credit.
Question 106 - AM reads:
The period at which vertical ground reaction forces are greatest on the foot is at which period of the gait cycle?
Contact
Midstance
Propulsion
Swing
Petitioner's answer was "A - Contact" and the Board's correct answer was "C - Propulsion." Here, Petitioner claims that the term, "initial spike" refers to the "contact" period
coming before "propulsion." Most pathology is related to contact rather than propulsion, since there is more impact on the foot on initial contact than there is on the heel lift. The Board claims that the stem of the question requires knowing the "greatest" force at the gate cycle. The Board's answer is correct according to its authority, Clinical Biomechanics, Vol. II, at p. 167.
Therefore, Petitioner should get no additional credit.
Question 157 - PM, reads: Chronic dermatitis, pruritus,
lichenification, elevated IgE levels, and increased susceptibility to skin infections are major features of:
Lichen simplex chronicus
Contact dermatitis
Monilial intertrigo
Atopic dermatitis
Petitioner's answer, B - "Contact dermatitis", differs
from the Board's answer, D - "atopic dermatitis." Petitioner has no argument with the Board's answer, but feels his is also correct. He claims both conditions can occur concurrently. In fact, one may cause the other. The Board, on the other hand, claims that Petitioner's answer could not be considered correct. The question stem refers to "chronic dermatitis." "Contact dermatitis" is different. Petitioner utilized two authorities in support of his position, but the Board claims that these authorities relate to a specific use of medicine, and Petitioner is taking the authority out of reference. It also claims that the authority does not support holding "contact dermatitis" as a correct answer. It is so found.
Question 7 - PM reads:
The number of strokes of pressure per minute over the sternum during external cardiac massage should be:
A. 6 - 12
B. 20 - 30
C. 60 - 100
D. 200 - 300
Petitioner answered, B - "20 - 30" and the Board's correct answer was C - "60 - 100." Petitioner claims that in
CPR, the rate would vary depending upon whether the procedure was being applied by 1 or 2 people. He doubts an individual could give 60 compressions and 2 breaths within a 1 minute period. He agrees that 20 - 30 is a little low, but claims it is more reasonable than the Board's suggested figure. Dr. Nazian, on the other hand, contends that 60 - 100 is clearly the best answer.
He agrees with Petitioner than it is a bit high for a 1 man application, but indicates that 20 - 30 is clearly too low. The standard instruction calls for application of 60 - 100. Dr. Levy concurs, contending that 60 - 100 is clearly the correct answer and that Petitioner's response is, under any circumstances, too low to allow the patient to survive. In his opinion, the failure
to define in the question whether the procedure is being applied by 1 or 2 persons does not render it deficient, since a 20 -30 stroke application is clearly too low under any circumstances.
While, perhaps, there could have been a better choice than 60 - 100, Petitioner's answer is, nonetheless, incorrect.
Question 45 - PM reads:
The rationale behind alternate day therapy for glucocorticoids is to:
minimize sodium retention
minimize atrophy of the adrenal cortex
prevent the occurrence of a diabetic condition
prevent the emergence of infectious disease
Petitioner's answer was D, "prevent the emergence of infectious disease", while the Board's correct answer was B, "minimize atrophy of the adrenal cortex." Again, Petitioner does not deny the correctness of the Board's answer, but feels his own was correct as well. According to the Board's expert, however, studies show that alternate day therapy will not minimize infectious disease. It will, however, minimize atrophy. The use of the steroid itself will raise the risk of infection no matter how often it is used. Petitioner's position, then, is not well taken.
Question 23 - PM reads:
In emphysema, there is an increased tendency for bronchioles to collapse during expiration. This is cause by:
increased tone of bronchiole smooth muscle
a decrease in the elasticity of the lungs
a decrease in the amount of surfactant
an increase in the surface area of the alveoli
Petitioner claims that his answer, C, "a decrease in the amount of surfactant" is equally as good as the Board's
preferred answer, B, - "a decrease in the elasticity of the lungs." He claims that a surfactant equalizes pressure and destruction of the glands which generate the surfactant would, therefore, decrease its production. Dr. Nazian disagrees with this, however, and while admitting that Petitioner's comments have some validity, nonetheless contends that a surfactant works on the alveolae, and the stem of the question relates to the bronchioles. Whereas the alveoli relate to the ends of the air passage, the bronchioles relate to the stem portion. There is little air conduct ion in the bronchioles which have little relation to the alveolae. They communicate but are separate.
Here it appears Petitioner is looking at the question more from the unusual situation rather than the routine situation, and in an examination designed to determine minimum competency, the situation is different. An examination looks at the routine situation, and because Petitioner's response looks more to the unusual than to the routine, it is not correct and does not merit him being given additional credit.
Question 25 - PM reads:
The number of impulses per unit time carried toward the heart by the vagus nerve will be increased by a:
rise in blood pressure
fall in the heart rate
fall in stroke volume
standing upright from a supine position
Petitioner's answer was, D - "standing upright from a supine position", whereas the correct answer was A, - "a rise in blood pressure." Again, Petitioner agrees with the Board's answer but contends his answer should be given equal consideration. His authority claims that the heart rate increase prompts a reaction in the system to compensate which, he claims, creates a rise in blood pressure. Dr. Nazian, on the other hand, contends that when an individual stands up, the blood pressure initially decreases, and there is a reflex response to raise the blood pressure to the normal set point. Petitioner has not shown that his answer is as good as the Board's.
Question 147 - PM reads:
Hyperkeratosis of the soles, with innumerable fissuring extending to the dorsal surface is referred to as the "Keratodermic Sandal" in which disease?
Psoriasis
Dermatitis Herpetiformis
Pityriasis Rubras Pilaris
Pityriasis Rosea
Petitioner's answer was B, "Dermatitis Herpetiformis", whereas the Board's correct answer was C, - "Pityriasis Rubras Pilaris." Petitioner does not know whether the Board's answer is correct or not, but does not feel it is relevant in any case. He can find no indication of the condition in any of his authorities, and does not feel that the term is universally accepted. Therefore, he feels the question should not be counted. Dr. Levy, however, contends that the stem of the question, and the use of the term, "hyperkeratosis of the soles", or the "keratodermic sandal" is not unknown. Several standard texts use it and it is well recognized. The condition itself is seen frequently if not every day. This raises a conflict, but since the burden rests with the Petitioner to establish the irrelevance of the question, and the presumption is that the question is relevant, it is clear that Petitioner has not met the burden he carries.
Question 189 - AM reads:
A twenty-two year old female presents with the complaint that the skin of her legs takes on a bluish-red mottling when she is exposed to cold. Her skin never returns to normal color upon warming. No
other symptoms other than the color change are described. The most likely diagnosis is:
Erythermalagia
Livedo reticularis
Raynaud's disease
Raynaud's phenomenon
Petitioner indicated C. - "Raynauds disease" as the correct answer, whereas the Board claims B, - "Livedo reticularis" is correct. Petitioner contends there is ample
evidence in various authorities to support his answer. He claims that since the question mentions a twenty-two year old woman, his answer should be approved. The diseases should not be distinguished, he claims, and he takes the position that his answer is as likely as that of the Board. He overlooks, however, the fact that the stem of the question asks for the "most likely" diagnosis based on the information contained in the question.
Dr. Levy asserts that the question is good for evaluating the candidates skill in differential diagnosis. The part of the question which makes the difference here deals with the allegation that the skin never returns to normal with warming. Only the Board's answer relates to this qualification.
Petitioner's disease results in skin changes.
Question 182 - AM reads:
Raynaud's phenomenon associated with thromboangitis obliterans is usually:
regular and symmetric
irregular and asymmetric
an extremely rare occurrence
found in all cases
Here Petitioner's answer was A, - "regular and symmetric", whereas the Board's correct answer is B, - "irregular and asymmetric." In his challenge to this question, Petitioner used the term "bilateral" which, he claims, infers regular and symmetrical. However, bilateral is not listed as one of the choices in the answer, nor is the term contained in the question, and it is impossible to determine from the evidence, exactly what Petitioner's challenge is. Dr. Levy pointed out that the question refers to Raynaud's phenomenon associated with thromboangitis obliterans, not standing alone, and in his opinion, the answer is, therefore, clearly B. When Raynaud's phenomenon is associated with thromboangitis obliterans, it is unilateral and, therefore, the Board's answer is the only correct one
Question 139 - AM reads:
A patient, following a Lapidus bunionectomy, under general anesthesia, develops a fever on the day following surgery. The most likely cause of the fever is:
infected wound
atelectasis
halothane hepatitis
phlebitisn
Petitioner's answer to the question of the most likely cause is A, - "infected wound", whereas the Board's acceptable
answer is B, which is a pulmonary problem. Petitioner feels that the question does not give sufficient information for the candidate to make a proper diagnosis. He contends that the first consideration in a post operative situation is the potential for "infection." He contends that the fact that the fever developed, "a day after surgery", is consistent with wound infection or at least the time frame given in the question does not exclude that diagnosis. He questions what is meant by the term, "following day." Does it mean morning or evening? How long a time is involved is unclear. He contends that the term, "day" must be better defined. In the opinion of Dr. Levy, however, the question gives sufficient information to the examinee.
Infections are rarely seen the day after surgery, especially if a general anesthesia is used. The "most" likely cause is pulmonary, and while Dr. Levy does not deny an infection could occur the day after surgery, since the question calls for the "most likely" cause, Petitioner's answer of "infection" is not correct.
Question 179 - AM reads:
Which of the following best describes rheumatoid factors?
Their presence is pathogonomic for rheumatoid arthritis.
They are usually present at lower titers in rheumatoid arthritis than in other diseases.
They are auto antigens.
They are auto antibodies.
Petitioner answered, A, - "their presence is pathogonomic for rheumatoid arthritis", whereas the Board's correct answer is D, - "they are auto antibodies." Petitioner claims there is no evidence to support any conclusive answer, and that, therefore, the question is improper and should be disregarded. Dr. Levy, however, asserts that the Board's answer is the only correct one, and is supported by several authorities. The stem of the question calls for the "best" answer, and in this case, he claims the Board's answer is the best. Questions calling for a "best" answer, are quite common in competency examinations, and Petitioner's claim that there is no authority does not support his receiving extra credit for this question.
Question 29 - PM reads:
The hormone that is primarily responsible for controlling testosterone secretion is:
Luteinizing hormone
ACTH
growth hormone
Vasopressin
Here again, the question calls for a "primarily" type answer, and Petitioner's answer, B, - "ACTH", was considered by the Board as less correct than its answer, A, - "Luteinizing hormone." Petitioner claims that ACTH is above the Board's hormone on the pathway, and is, therefore, on a higher level than the other, but both are responsible. Dr. Nazian, however, asserts that the Board's answer is unquestionably the only correct answer. ACTH has little, if any, effect on the area of the body which produces testosterone. Luetinizing hormone is the primary substance responsible for the production of testosterone and it is abnormal for ACTH to be largely involved. In fact, if it were, it would be a pathological situation.
Question 33 - PM reads:
A movement in the colon considered principally one of mixing is:
rhythmic segmentation
haustral contraction
mass movement
peristalsis
Petitioner claims the correct answer is D, "peristalsis", whereas the Board claims the correct answer is B, - "haustral contraction." Petitioner claims he is unable to determine how to differentiate peristalsis from haustral contraction when both involve movement within the colon. He
fails to see a difference, and therefore claims that the question is irregular and should be disregarded. Dr. Nazian, through the use of a simple descriptive diagram, was able to differentiate between the two, indicating that peristalsis results in a one way movement toward the rectum, whereas haustal contraction results in the contents of the colon being forced in both directions, toward and away from the rectum. There being a definite difference, the Board's answer appears to be correct.
Question 130 - AM reads:
A bone graft which is taken from one area of the body and transplanted to another, is known as:
xenograft
homogenous graft
heterogenous graft
autogenous graft
Petitioner's answer was B, - "homogenous graft" when
the Board's answer considered correct was D, - "autogenous graft." The question uses the term, "another", and Petitioner claims he originally thought that word meant another person. The evidence is clear, however, that the question concerns itself with areas of the body, and the use of that term did not indicate to him that the question was referring to another area of the body rather than to another person. Nonetheless, Dr. Levy pointed out that the term, "autogenous", means from one part to another part, and since that is the most reasonable connection with the question, it is clearly correct. It is obvious that Petitioner misinterpreted the question and his answer is wrong.
Question 86 - AM reads:
Rearfoot eversion is compensated for by:
forefoot eversion
ankle dorsiflexion
forefoot inversion
ankle plantarlexion
Petitioner's answer to this question is, B, - " ankle dorsiflexion" and the correct answer is C - "forefoot inversion. "Rearfoot eversion is movement of the foot outward and according to Petitioner, the Board's answer would be valid if the foot in issue were on the floor. However, in the gait cycle, the foot is sometimes in swing and sometimes on the ground. Petitioner concedes that the Board's answer is correct if the foot is on the ground, but he contends that the question does not call for that conclusion. Dr. Levy, however, claims that the Board's answer is the only correct answer. Compensatory motion is the inversion of the forefoot, and the Petitioner's answer does not do this.
Again, it is clear that Petitioner read into this question, as he has done elsewhere, matters which are not relevant to the question. While the Petitioner's answer is a compensatory motion, it is not the compensation for rearfoot eversion.
Question 105 - AM reads:
Which one of the following conditions compensates by longitudinal axis midtarsal joint compensation?
Forefoot varus
Forefoot valgus
Rearfoot varus
Gastrocnemius equinus
Petitioner answered, A, - "forefoot varus", while the correct answer is B, - "forefoot valgus." Petitioner agrees on the Board's reference source. He claims there are two axes of the multitarsal joint. The longitudinal axis allows inversion and eversion, and he is unable to see any variance between his answer and that of the Board. Dr. Levy, however, contends that fore foot valgus deformities are usually compensated by fore foot inversion/eversion. Forefoot varus is not mentioned because it does not occur as a compensatory mechanism for this condition.
The mere fact that the authority cited by Petitioner does not say
that his answer is wrong does not, however, make it right when the answer is considered in light of the facts in the question. In other words, Petitioner's answer does not relate to the terms of the question asked and is, therefore, not correct.
Question 154 - AM reads:
A patient presents with paralytic talipes equino varus deformity. Which of the following procedures best corrects the deformity.
Anterior transfer of the tibialis posterior tendon
Split tibialis anterior tendon transfer
Tendo achilles lengthening
Peroneus longus lengthening
Petitioner answers, C - "tendo achilles lengthening" while the Board's answer is A, - " anterior transfer of the
tibialis posterior tendon." According to Petitioner, the patient has a paralytic condition and Petitioner is unable to tell from the question if the patient has sufficient muscle strength for correction. His authority contends there is no consensus on the appropriate method of surgical correction. Dr. Levy, on the other hand, while agreeing there are a number of corrective procedures appropriate for club foot, claims the instant question relates to a specific type of club foot deformity and the "best" procedure cited in the main sources of podiatric surgical literature list the Board's answer as appropriate. The Petitioner's answer is not even recognized as a consideration.
Even though Petitioner claims that the use of the term, "paralytic" is insufficient to describe the patient's actual loss, Dr. Levy contends that the condition described in the question by definition should tell him what the actual situation is. It is so found.
Question 186 - AM reads:
An acute postoperative arthritis may be due to:
gout
osteoarthritis
Wilson's disease
Whipple's disease
Petitioner has claimed D, - "Whipple's disease" as the correct answer, whereas the Board cites A, - "gout" as correct. Petitioner contends that the term, "may be due to", means what is a possibility, and that in considering treatment for the condition, the professional should consider a variety of problems involving the patient and what other factors may exist.
Whipple's disease is a disease of the intestines, and it may present itself as a type of arthritis. It may also come about as a result of surgery. Petitioner admits his answer may be a "dark horse", but since it is a possibility, it is an appropriate answer, he claims. He agrees that the Board's answer is also correct. According to Dr. Levy, however, the use of the term
"acute" describing the arthritis is the key, and renders gout the obvious diagnosis. Whipple's disease is not "acute" if it came from surgery, and he has never seen that disease come about as a result of surgery. Gout, on the other hand, can be the result of surgery and he has seen it happen. In light of the phrasing of the question, however, that calls for the examinee to determine what the condition "may" be due to, since the Petitioner's answer is correct within the parameters of that phrasing, he should be given credit for this question.
Question 97 - PM reads:
Viral pneumonia is primarily:
alveolar
interstitial
pleural
mediastinal
Petitioner selects C - "pleural" as his answer while
the Board claims B, - "interstitial" as the correct one. According to Petitioner, a viral infection is sometimes found in the pleural lining. In fact, he, himself, has had it, and it is not inconceivable that a pleural virus could result in pneumonia. However, he can find no evidence to support the Board's answer that viral pneumonia is primarily interstitial. Dr. Levy, however, refers to the use of the term, "primarily" in the question. He points out that the Board's two authorities indicate that viral pneumonia is found "primarily" interstitial. The question does not ask for secondary areas where viral pneumonia may be found. Dr. Levy does not dispute that it can be found in the pleural lining, but it is not "primarily" found there.
Question 122 - PM reads:
Dermographism is usually evident in one of the following types of skin lesions:
wheal
bullae
tumor
pustule
Petitioner selects B, "bullae" as his answer and the Board claims A - "wheal" is the correct one. Petitioner claims that a wheal and a welt are the same, just as a bulla and a blister are the same. He is of the opinion that a wheal and a bulla are similar in size and appearance and could be interchanged. On the other hand, Dr. Levy claims that the wheal
and the bulla are two distinctly different lesions. Dermographism by definition calls for the answer, wheal, to be selected, and it is so found.
Question 129 - PM reads:
Overgrowth of the cuticle in lichen planus, with attachment to the nail plate is known as:
onycholysis
onychomadesis
pterygium
onychauxis
Petitioner's answer is D, - "onychauxis", (thickening),
and the Board's answer is C, - "pterygium", (ridging and furrowing). Petitioner claims that his answer, by definition, is "similar enough" to the Board's selection to support credit. He claims both deal with a thickening of the nail. Whereas one deals with thickening only, the other deals with ridging and grooving. Dr. Levy asserts, however, that by definition, the Board's answer is the only acceptable one. The two conditions are distinctly different. One is found in only 10% of lichen planus cases. Petitioner's answer is, according to Levy, a condition unto itself and does not occur in lichen planus, and, therefore, can not be a correct answer. It is so found.
Question 166 - AM reads:
The diagnosis of tarsal tunnel syndrome is best established by:
a positive Valleux sign
a positive Tinel sign
hyperactive reflex
nerve conduction velocities
Petitioner has selected B, - "a positive Tinel sign",
and the Board claims D - "nerve conduction velocities" as the correct answer. Petitioner's answer calls for the practitioner to percus a nerve and get a painful response. He claims this is a cheaper and better way to diagnose than to use fancy tests. In his answer to the question, he interprets the term, "best" as meaning best for the patient's pocketbook, rather than best technologically. He admits that the Board's answer is more accurate, and more appropriate, and it appears he has again misinterpreted the meaning of the stem word "best" as used in the question. Dr. Levy asserts that the question is best answered by recognizing the difference between subjective and objective tests. If an objective measurement can be made it should be made. Technological tests are objective. Percussion is subjective. Also, the community standard of care, as applied in this state, indicates that action should be taken only on the basis of the best available evidence. A nerve conduction test is the standard of care in the Florida podiatric community for this type of diagnosis.
The examination process utilized here comports
with all standards of preparation, administration and review. Prior to the examination, specialists with the Department of Professional Regulation pick out questions for double review. After the examination has been administered, the questions are statistically analyzed. If a large group of candidates miss a particular question, that question is again reviewed by experts
in the subject matter to see if anything is wrong with the question. In the case of question 98 - AM, challenged by the Petitioner on the basis of its unfairness, five specialists reviewed it and found it to be acceptable. In addition, it was not missed by a group of candidates sufficiently large to raise a cautionary flag.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida: Statutes.
Under the provisions of Chapter 461, Florida Statutes, the Board of Podiatric Medicine is directed to comply with designated statutory guidelines in qualifying applicants for licensure as podiatrists in this state. Section 461.006, requires a candidate to successfully complete an examination prior to licensure, and the Department of Professional Regulation is charged with the authority and responsibility of grading such examination
Chapter 21D-11, F.A.C , specifies the manner for administration of the licensure examinations and the criteria for their grading.
As the applicant for licensure here, Petitioner bears the burden to establish, by a preponderance of the evidence, that his examination was improperly graded; that his answers justify the award of more points than he received; and that any extra points given would be sufficient to allow him to attain a passing grade on the examination.
In the instant case, Petitioner answered 253 question correctly. He would need to have answered 270 questions correctly in order to obtain a minimal passing grade of 75. Therefore, for him to obtain a passing grade on this examination, he would have to successfully challenge 17 questions of those on which he was graded as having a wrong answer. Review of all the challenges, and the evidence presented by both sides at the hearing concerning the appropriateness or inappropriateness of Petitioner's answers, reveals that at best he should be awarded 1 additional point. This is insufficient to raise his score high enough to attain a passing grade.
Further, he failed to demonstrate by a preponderance of the evidence that the Department, in its grading of his examination, acted arbitrarily or capriciously. To the contrary, the evidence presented by Drs. Levy and Nazian clearly established in all cases but one that the Board's answer was correct and appropriate.
The evidence also clearly established that the examination preparation procedure is appropriate and properly monitored. There was no showing that the Board's denial of credit for any of the questions on which Petitioner failed to receive a passing grade was void of logic and reason. To the
contrary, the testimony of both Drs. Levy and Nazian was based on extended experience in their fields and referred to recognized authorities in the field of podiatric medicine.
The examination instructions were not shown to be substantially insufficient or misleading, and taken together, the evidence presented by Petitioner failed to show he should receive additional credit for more that Question 186 in the morning session.
Based on the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED that Petitioner, Robert F. Metnick, be awarded one additional point for his answer to question 186 in the morning session of the examination in issue, but that his challenge as to the other questions in issue be dismissed.
RECOMMENDED this 23rd day of July, 1990, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1990.
COPIES FURNISHED:
Harper Field, Esquire Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dr. Robert F. Metnick
1326 South Hercules Avenue Clearwater, Florida 34624
Kenneth E. Easley General Counsel DPR
1940 N. Monroe Street Tallahassee, Florida 32399-0792
Patricia Guilford Executive Director
Board of Podiatric Medicine 1940 North Monroe Street
Tallahassee, Florida 32399-07921
| Issue Date | Proceedings |
|---|---|
| Jul. 23, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 19, 1991 | Agency Final Order | |
| Jul. 23, 1990 | Recommended Order | Evidence presented by exam candidate did not show his failing grade was incorrect. |
