STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BONNIE SANTO, )

)

Petitioner, )

)

vs. ) Case No. 01-0964

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 6, 2001, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith A. Seldin, Esquire

1934 Commerce Lane, Suite 2

Jupiter, Florida 33458

For Respondent: Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to credit for her response to Question 36 or for her response to Question 41 of the X-ray

interpretation portion of the Chiropractic Licensure Examination administered in November 2000.

PRELIMINARY STATEMENT

Petitioner sat for the Chiropractic Licensure Examination in November 2000. 1/ She received a passing score on all portions of the examination except the portion of the practical examination referred to as interpretation of chiropractic and pathology films (the X-ray portion of the examination). To pass that portion of the examination, a candidate must correctly answer 45 of the 60 multiple choice questions. Petitioner failed the X-ray portion of the examination, having received a correct score for 44 of the 60 questions.

Petitioner timely challenged the scoring of each of the

16 questions for which she received an incorrect score, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. Prior to the final hearing, Petitioner abandoned all her challenges to the scoring of the X- ray portion of the examination except for the scoring of Questions 36 and 41.

At the final hearing, Petitioner testified on her own behalf and presented the additional testimony of Richard J. Santo, D.C. (Petitioner's father and a chiropractor); Bruce A. Rodan, M.D. (a diagnostic radiologist who testified by telephone); and Henry Stern, M.D. (a diagnostic radiologist).

Petitioner offered nine sequentially numbered exhibits, each of which was accepted into evidence.

Respondent offered the testimony of Zohre Bahrayni, Ph.D. (a psychometrician) and Scott Drizen, D.C. (a chiropractor).

Respondent offered its pre-numbered Exhibits 1-5, 7, 8, and 11, each of which was accepted into evidence. Respondent's Exhibits 4, 5, and 8 were ordered sealed pursuant to

Section 456.014, Florida Statutes.

Question 36 and Question 41 will not be set forth verbatim in this Recommended Order because the examination questions are confidential.

A Transcript of the proceedings was filed on August 29, 2001. Each party filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this

   Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a Final Order.

2. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination.

3. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the X-ray portion.

4. The X-ray portion consists of 60 multiple-choice questions, with each question having four possible answers. A chiropractic or pathology film is displayed for each question. The candidates are instructed to select from four possible answers the best answer to the written question pertaining to the accompanying film. The candidates are given 90 seconds to answer each question. The X-ray portion of the examination tests minimal competency and does not provide the candidates a certification or specialty in the field of radiology.

5. Petitioner received a failing score on the X-ray portion of the examination. A candidate must correctly answer

   45 of the 60 scores to pass. Petitioner received credit for correctly answering 44 questions.

6. If Petitioner is awarded credit for correctly answering Question 36 or Question 41, she will be entitled to a passing score on the X-ray portion of the examination as well as the over-all examination.

7. The written portion of Question 36 described certain symptoms being experienced by a 60-year-old female. The X-ray depicted a patient whose trachea was deviated to the left of its usual position. Candidates were asked to select the answer that best responded to the question "what is your impression of the radiograph." The parties agree that two of the four answers were incorrect. The other two answers will be referred to as Answer A and Answer B.

8. Answer A, the answer Respondent considered the correct answer, was that the radiograph showed the trachea was deviated to the left of its usual position. Answer B, the answer selected by Petitioner, is a possible reason the trachea was deviated to the left. Petitioner agrees that the radiograph showed that the trachea was deviated to the left, but argues that because the question asks for the candidate's impression, she should attempt to answer why the body part was deviated. 2/

   The written portion of the question and the radiograph do not provide sufficient information for a candidate to determine that Answer B was the reason the trachea was deviated to the left.

   Additional testing would be required before a practitioner could reach a correct diagnosis for the cause of the deviation.

9. Answer A was the best answer to Question 36.

   
   

   Petitioner should not be awarded credit for her answer to Question 36 because her answer was not the best answer to the question.

10. The written portion of Question 41 advised that the candidate's examination of a patient did not find a reason for the patient's mild back pain. The candidate was required to select the best answer to the question "[w]hat does the X-ray disclose."

11. The greater weight of the credible evidence established that the only correct answer was the answer selected by Respondent as being the correct answer. Petitioner concedes that the X-ray disclosed what Respondent asserted was the correct answer, but chose another answer because Respondent's answer would not account for the patient's pain. Petitioner chose the answer that the X-ray disclosed a bilateral fracture. There was a dispute among the experts as to whether the X-ray contained jagged lines, which would indicate a fracture. Respondent's expert testified that there were no significant

    jagged areas. Dr. Stern testified that there may be some jagged areas, but that further testing would be necessary to reveal a fracture. Dr. Richard Santo testified that there were jagged areas that disclosed a severe fracture. The conflicting evidence is resolved by finding that the X-ray did not clearly disclose an area that had been fractured and did not disclose a bilateral fracture.

12. Petitioner should not be awarded credit for her answer to Question 41 because her answer was not the best answer to the question.

13. Respondent's psychometrician evaluated the responses to Question 36 and Question 41, and found that both questions performed at an acceptable level. For Question 36, 77% of the candidates who took the examination with Petitioner chose Respondent's correct answer, while 17% of the candidates choose Petitioner's answer. For Question 41, 74% of the candidates chose Respondent's answer, and 24% chose Petitioner's answer.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

15. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to additional credit for his responses to the examination questions. See

    Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. I. H. Topp v. Board of

    Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958); and State ex rel. Glaser v. J. M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner did not meet that burden in this proceeding.

16. The examination questions and answers are confidential pursuant to Section 456.014, Florida Statutes. A separate order sealing the transcript and Respondent's Exhibits 4, 5, and 8 will be entered simultaneously with the entry of this

Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for her responses to Questions 36 and 41 of the X-ray portion of the Chiropractic Licensure Examination administered in November 2000.

DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 11th day of October, 2001.

ENDNOTES

1/ A brief explanation as to why this matter has not been resolved before this date is appropriate. This matter was referred to the Division of Administrative Hearings on March 8, 2001. A final hearing was scheduled for April 30, 2001. The parties requested that the final hearing be continued and the matter abated to afford Petitioner the opportunity to retake the portion of the licensing examination that she failed. That motion was granted. At the request of the parties, this matter was subsequently rescheduled for final hearing on August 6, 2001.

2/ The undersigned accepts Petitioner's contention that the subject anatomy part would not be deviated unless it had been pushed or pulled out of its normal position. The undersigned also accepts Petitioner's contention that there is a distinction between a finding and an impression. Nevertheless, her argument that her answer is just as correct or is more correct than Respondent's answer is rejected because she did not have sufficient information to reach the diagnostic conclusion she reached.

COPIES FURNISHED:

Keith A. Seldin, Esquire 1934 Commerce Lane, Suite 2

Jupiter, Florida 33458

Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1703

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way Bin C07

Tallahassee, Florida 32399-1701

Dr. John O. Agwunobi, Secretary Department of Health

4052 Bald Cypress Way Bin A00

Tallahassee, Florida 32399-1701

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: 01-000964

Orders for Case No: 01-000964