STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD ALAN COHEN, D.M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-

2877

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William

1. Kendrick, held a formal hearing in the above-styled case on October 8, 1993, in Miami, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Harold M. Braxton, Esquire

   Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

   
   

   For Respondent: Vytas J. Urba, Esquire

   Assistant General Counsel Department of Business

   and Professional Regulation

   1940 North Monroe Street, Suite 60

   Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

   At issue in this proceeding is whether petitioner's challenge to the grading of the clinical portion of his dental examination should be sustained.

   PRELIMINARY STATEMENT

   
   

   Petitioner sat for the December 1992 dental licensure examination. After receiving notification that he failed to achieve a passing score on the clinical portion of the examination, petitioner challenged respondent's grading of three procedures, numbers 01, 05 and 06. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05.

   
   

   Petitioner testified on his own behalf, and called Ansu Mason and Richard Gelman, D.D.S., who was accepted as an expert in endodontics, as witnesses. Petitioner's exhibits 1-4 were received into evidence. 1/ Respondent called Ansu Mason, Theodore Simkin, D.D.S., accepted as an expert in general dentistry, and Sanford Kalter, D.D.S., as witnesses. Respondent's exhibit 1 was received into evidence.

   
   

   The transcript of the hearing was filed November 15, 1993, and the parties were granted ten days from such date to file proposed findings of fact. Petitioner subsequently requested and was granted, with respondent's agreement, two extensions of time within which to file proposed findings of fact. The last extension established a deadline of January 15, 1994. Consequently, the parties waived the requirement that a recommended order be rendered within 30 days after the transcript is filed. Rule 60Q-2.031(2), Florida Administrative Code. The parties' proposals are addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   Background

   
   

   1. Petitioner, Richard Alan Cohen, sat for the dental licensure examination in December 1992 and received an overall score of 2.98 for the clinical portion of that examination. The minimal passing score for the clinical portion of the examination was 3.0.

      
      

   2. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 01, 05 and 06. Respondent rejected petitioner's challenge, and petitioner filed a timely request for a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest

      respondent's grading of those procedures. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05.

      
      

      The examination procedure

      
      

   3. During the course of the examination at issue, the candidates were called upon to exhibit, with regard to procedure 06, certain manual skills relevant to an endodonic procedure. Specifically, the candidate was required to prepare a tooth, which had been extracted and mounted in a mold, for what is commonly called a "root canal." Preparing for the procedure included the cleaning and shaping of the interior of both root canals from each apex (the tip of the root) up to the access area near the crown (top) of the tooth. Thereafter, sealant was to be sprayed into the canal, and gutta percha condensed (compressed) in the canal until it was completely filled. The goal of the procedure was to get a seal within one half to one millimeter of the apex, and to fill the canal so there were no voids.

      
      

   4. The quality of a candidate's performance on the procedure was graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, a grade of "4" represented a better than minimally acceptable dental procedure, and a grade of "5" represented an outstanding dental procedure. See, Rule 61F5-2.013, Florida Administrative Code.

      
      

      Petitioner's examination results

      
      

   5. Petitioner received a grade of 3.66 for procedure 06, based on scores of 3, 3, and 5 from the individual examiners. Although a passing score on procedure 06, petitioner's overall score on the clinical part of the examination was 2.98; a score below the minimum 3.00 required to pass that portion of the examination.

      
      

   6. According to the grade sheets, the two examiners who assigned petitioner a grade of 3 observed that petitioner failed to properly fill the canal spaces with gutta percha. In the opinion of the one examiner who

      testified at the hearing, such observation was based on his examination of an x-ray (petitioner's exhibit 1D) which reflected that the canal was filled beyond the apex and there appeared to be some spacing between the wall of the canal and the filling material.

      
      

      A review of the examination results

      
      

   7. At hearing, the proof demonstrated that the quality of petitioner's performance on that portion of procedure 06 pertinent to this case is aptly reflected on the x-ray marked as petitioner's exhibit 1D. That x-ray reflects, with regard to one of the canals petitioner filled, what is either a void or filling material beyond the apex of the root. Either event evidences a failure to properly fill the canal space, and warrants a grade of less than 5.

      
      

   8. Here, petitioner contends he should be awarded a grade of 4 for the procedure. The proof fails, however, to support his contention.

      
      

   9. If the image reflected by the x-ray is gutta percha beyond the apex, petitioner's performance on the procedure would not meet minimally acceptable dental standards and would merit a failing grade. If on the other hand, the material extending beyond the apex is sealant or the image reflected by the x-ray is a void, the procedure was acceptable, but warranted a grade of less than 5.

      Under such circumstances, it is concluded that the proof fails to demonstrate that the grades of 3 accorded petitioner were baseless, lacking in reason or that in deriving such grades the examiners departed from the essential requirements of law.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

       
       

   11. Petitioner bears the burden of establishing by a preponderance of the evidence that the clinical skills examination, the administration of the examination, or the grading of the examination failed to conform with the essential requirements of law, and that he is entitled to a

grade in excess of that assigned him by the examiners. See, Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984), State ex rel. Glasser v.

J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963), and State ex rel. Topp v. Board of Electrical Examiners, 101 So.2d

583 (Fla. 1st DCA 1958). Here, petitioner has failed to prove that his performance merited the award of a higher grade than he received, or that the administration of grading of his examination was arbitrary, capricious or devoid of logic and reason. Under such circumstances, petitioner has failed to sustain his burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the subject petition.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1994.

Hearings

1550

Hearings 1994.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 22nd day of February

ENDNOTE

1/ Petitioner also offered his exhibit 5 which was a demonstrative exhibit, but withdrew it at the conclusion of the hearing.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Accepted, but unnecessary detail.

3. Addressed in paragraphs 1 and 2. 4-6. Addressed in paragraph 3.

7-14. Accepted, but unnecessary detail. Moreover, it is not relevant to an evaluation of that portion of petitioner's performance on procedure 06 at issue here.

Petitioner's exhibit 1D is an x-ray of diagnostic quality which accurately reflects the quality of petitioner's performance.

15-22, 24 and 25. Rejected as recitation of testimony and not a finding of fact. Such testimony is subordinate to the findings addressed in paragraphs 7-9.

23. Rejected as a mischaracterization of the proof. Rather than as proposed, such testimony was to the effect that the reason a void could be observed was because there was penetration through the tooth and in to the wax. In summary, the wax served to preserve the void or error.

26 & 27. Addressed in paragraph 6.

28. Accepted, but unnecessary detail.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 3.

3-6. Addressed in paragraphs 7-9.

COPIES FURNISHED:

Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815

Vytas J. Urba, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt, Executive Director Department of Business and

Professional Regulation Board of Dentistry

1940 North Monroe Street Tallahassee, Florida 32399-0765

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-002877

Orders for Case No: 93-002877