STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA PATRICIA JIMENEZ, )

)

Petitioner, )

)

vs. ) Case No. 00-1720

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 18, 2000, via video teleconference in Miami, Florida, and in Tallahassee, Florida, before Patricia Hart Malono, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gloria Patricia Jimenez, pro se

7765 Southwest 86 Street Unit F2, Apartment 209 Miami, Florida 33143

For Respondent: William W. Large, General Counsel

Department of Health

Office of the General Counsel 4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703 STATEMENT OF THE ISSUE

Whether the Petitioner should receive credit for her answers to certain specified questions on the Clinical

Application of Medical Knowledge portion of the Florida Medical Licensure Examination administered November 19 and 20, 1999.

PRELIMINARY STATEMENT

Gloria Patricia Jimenez sat for the Florida Medical Licensure Examination ("FMLE") on November 19 and 20, 1999. In an Examination Grade Report dated January 27, 2000, the Department of Health ("Department") advised Ms. Jimenez that she had achieved a score of 347 on the Clinical Application of Medical Knowledge portion of the examination and had, therefore, failed that portion of the examination because she had not attained the passing score of 350. Ms. Jimenez timely requested an administrative hearing to contest the grading of her answers to several questions on the examination. The Department transmitted the matter to the Division of Administrative Hearings for the assignment of an administrative law judge.

Pursuant to notice, the final hearing was held by video teleconference on August 18, 2000.

Prior to the hearing, Ms. Jimenez amended her request for an administrative hearing, and, in a second amendment filed August 11, 2000, she specified that her challenge was limited to the grading of her answers to questions 3, 11, 55, 81, 174, and

183 of Part IIA of the examination and to question 113 of Part IIB of the examination. The Department stated at the start of the final hearing that it had given credit to Ms. Jimenez for

her answer to question 174 of Part IIA of the examination and that her revised score was 348.

At the hearing, Ms. Jimenez testified in her own behalf, and Petitioner's Exhibits 1 through 6 were offered and received into evidence. The Department presented the testimony of Walter Chason, a psychometrician employed by the Department, and of

Anh-Vu Tien Nguyen, an expert in the field of primary care medicine. Respondent's Exhibits 1 through 9 and 11 were offered and received into evidence. At the Respondent's request, official recognition was taken of Section 90.616, Florida Statutes (1999); Sections 455.574, .581, and .647, Florida

Statutes (1999); Sections 458.311, .3115, .31151, .3124, .313,

and 314, Florida Statutes (1999); Rule Chapters 64B-1, 64B8-5, 64B8-14, and 64B8-15, Florida Administrative Code; and

Rules 64B8-4.001, 4.018, and 4.027, Florida Administrative Code.

The one-volume transcript of the proceeding was filed with the Division of Administrative Hearings on September 8, 2000, and the parties timely filed proposed findings of fact and conclusions of law. In her proposed findings of fact and conclusions of law, Ms. Jimenez stated that she no longer disputed the correctness of the Department's answer to question

55 of Part IIA of the FMLE. The proposed findings of fact and conclusions of law have been considered in preparing this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Health is the state agency responsible for licensing and regulating physicians practicing medicine in Florida, including foreign-licensed physicians. Sections 458.311 and 458.3115, Florida Statutes (1999);

   Rule 64B8-5.002, Florida Administrative Code.

   
   

2. In order to be issued a restricted license to practice medicine in Florida, a foreign-licensed physician must pass the FMLE, an examination that is developed by the Department and that consists of two parts; Part I tests a candidate's knowledge of Basic Science and Disease Processes, and Part II tests a candidate's knowledge of Clinical Applications of Medical Knowledge.

3. Ms. Jimenez was accepted as a candidate for the FMLE and sat for the examination on November 19 and 20, 1999. At the time of the hearing, Ms. Jimenez had attained a scaled score of

   348 on the Clinical Application of Medical Knowledge portion of the FMLE; a scaled score of 350 is required to pass Part II of the examination.

4. The questions that comprise the Clinical Application of Medical Knowledge portion of the FMLE are objective, multiple-

   choice questions drawn from a bank of questions written by physicians, field-tested, reviewed, and edited. A psychometrician employed by the Department oversees the development of the examination questions.

5. The questions for the November 1999 FMLE were drawn from the bank of questions in accordance with a test blueprint developed by a committee of physicians, and the questions were compiled into an examination. A committee of physicians then reviewed the examination to determine whether it would adequately and reliably test the candidate's ability to practice medicine with reasonable care and safety. A psychometrician employed by the Department oversaw the process of compiling the examination.

6. The Department sends each candidate registering to take the FMLE a Candidate Information Booklet which contains, among other things, information about the test, the material to be covered on the test, sample questions, and a list of reference books that the candidates should consult in preparing for the examination.

7. Ms. Jimenez disputes the Department's determination that the answers she gave to questions 3, 11, 81, and 183 of Part IIA and to question 113 of Part IIB of the FMLE administered November 19 and 20, 1999, were incorrect.

8. According to the Department, the correct answer to question 3 of Part IIA of the examination is "C"; Ms. Jimenez chose answer "D." Question 3 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is included in the

   list of reference books provided to candidates for the examination. In this treatise, medical therapy is identified as the preferred treatment for distal dissection, that is, for a Type B or descending aortic dissection. "C" is, therefore, the correct answer to question 3 of Part IIA of the FMLE, and

   Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer.

9. According to the Department, the correct answer to question 11 of Part IIA of the examination is "A"; Ms. Jimenez chose answer "D." Question 11 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is included in the

   list of reference books provided to candidates for the

   examination. In this treatise, it is observed that significant changes in the QRS complexes are consistent with acute myocardial infarction; all other answer choices are consistent with a diagnosis of acute pericarditis. "A" is, therefore, the correct answer to question 11 of Part IIA of the FMLE, and

   Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer.

10. According to the Department, the correct answer to question 81 of Part IIA of the examination is "B"; Ms. Jimenez chose answer "A." Question 81 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is considered an

    authoritative text by physicians and which is included in the list of reference books provided to candidates for the examination. In this treatise, it is observed that the prevalence of MS varies significantly among different ethnic groups. "B" is, therefore, the correct answer to question 81 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer.

11. According to the Department, the correct answer to question 183 of Part IIA of the examination is "A"; Ms. Jimenez chose answer "D." Question 183 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Novak's Gynecology, 12th Edition, 1998, which is considered an authoritative text by physicians and which is included in the list of reference books provided to candidates for the examination. The question elicits the answer identifying the treatment that is most appropriate for the described patient, and, in the treatise, it is observed that hormone replacement therapy is indicated for women who are menopausal and have no contraindications. "A" is, therefore, the correct answer to question 183 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer.

12. According to the Department, the correct answer to question 113 of Part IIB of the examination is "A"; Ms. Jimenez chose answer "D." Question 113 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be derived from information found in the reference books

    entitled Harrison's Principles of Internal Medicine, 14th

    
    

    Edition, 1998, and Robert B. Taylor's Family Medicine: Principles and Practice, 5th Edition, 1997, which are considered authoritative texts by physicians and which are included in the list of reference books provided to candidates for the examination. The question elicits the answer identifying the intervention that is most appropriate for the described patient. It can be determined from the information contained in the treatises that the patient described in the question should not be treated with drugs but, rather, should be treated with diet and exercise. "A" is, therefore, the correct answer to question

    113 of Part IIB of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1999).

14. Ms. Jimenez has the burden of proving by a preponderance of the evidence that the Department's decision to give her no credit for her answers to the challenged examination questions is arbitrary or capricious or constitutes an abuse of discretion. See State ex rel. Glasser v. J. M. Pepper, 155 So.

2d. 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of

Electrical Examiners, 101 So. 2d. 583 (Fla. 1st DCA 1958).

Based on the facts found herein, Ms. Jimenez has failed to meet this burden with respect to questions 3, 11, 81, and 183 of Part IIA and to question 113 of Part IIB of the FMLE administered

November 19 and 20, 1999.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the petition of Gloria Patricia Jimenez challenging questions 3, 11, 81, and 183 of Part IIA and question 113 of Part IIB of the Florida Medical Licensure Examination administered November 19 and 20, 1999..

DONE AND ENTERED this 18th day of October, 2000, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2000.

COPIES FURNISHED:

Gloria Patricia Jimenez 7765 Southwest 86 Street Unit F2, Apartment 209 Miami, Florida 33143

William W. Large, General Counsel Department of Health

Office of the General Counsel 4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

M. Catherine Lannon, Esquire Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Dr. Robert G. Brooks, Secretary Department of Health

4052 Bald Cypress Way Bin A00

Tallahassee, Florida 32399-1701

Theodore Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-001720

Orders for Case No: 00-001720