vs. ) Case No. 01-1174
Respondent. )
Upon due notice, a disputed-fact hearing was heard in this case on May 25, 2001, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Herdley D. Harrison, pro se
For Respondent: Cherry A. Shaw, Esquire
Whether Petitioner is entitled to receive a passing score on the Physical Diagnosis portion of the November 2000 chiropractic licensure examination.
This cause was initiated by Petitioner's timely challenge of the score he received on the November 2000 chiropractic licensure examination. The case was referred to the Division of Administrative Hearings on or about March 27, 2001.
At the disputed-fact hearing on May 25, 2001, Petitioner testified on his own behalf, and as his own expert witness in chiropractic medicine, and had Exhibits P-1 through P-9 admitted in evidence. Respondent Department of Health (Department) presented the testimony of Zohre Bahrayni, Ph.D., who was accepted as an expert in the field of testing and measurement, and Scott L. Drizin, D.C., who was accepted as an expert in the field of chiropractic medicine. Respondent's Exhibits R-1 through R-5, R-7 and
R-8, R-15 through R-17, and R-19 were admitted in evidence. Respondent's Exhibits R-3, R-4, R-8, and R-19 were admitted under seal, pursuant to Section 456.014, Florida Statutes (2000).
Due to some confusion over which statutes and regulations applied to the November 2000 chiropractic licensure examination, the Department was ordered to file correct and applicable hard copies of these items within 10
days of the close of the disputed-fact hearing. The correct statutes and rules have been considered as if officially recognized at the hearing.
A Transcript was filed with the Division of Administrative Hearing on June 15, 2001.
Each party's timely-filed Proposed Recommended Order has been considered in preparation of this Recommended Order.
petitioner is currently licensed to practice chiropractic medicine in four states. Some of his licenses are voluntarily inactive. He is a graduate of Life University, School of Chiropractic, in Georgia. From 1992 to 1999, he taught classes in Clinical and Orthopedic Diagnosis and other clinical classes at that institution, and his final position was Director of Admissions. He currently maintains a chiropractic practice in Georgia.
In November 2000, Petitioner took the Florida chiropractic licensure examination.
By a January 12, 2001, examination grade report the Department notified Petitioner that he had failed the Physical Diagnosis portion of the licensure examination.
The minimum passing score for the Physical Diagnosis
portion was 75.00. Petitioner had scored 72.00. As such, Petitioner had failed that portion.
The November 2000 chiropractic licensure examination consisted of four portions: Laws and Rules; X:-ray Interpretation; Physical Diagnosis; and Technique.
Pursuant to Rule 64B2-11.003, Florida Administrative Code, candidates are required to pass all four portions of the examination. Accordingly, Petitioner's failure of only one portion resulted in his failing the examination.
At the disputed-fact hearing, Petitioner narrowed his challenge of disputed questions to Tasks 6 and 7 of the Physical Diagnosis portion of the examination. Petitioner withdrew his challenge to any other portions. Therefore, to pass the entire examination, Petitioner would have to prove entitlement to three points on these two tasks. Task 6 is worth three points. Task 7 is worth two points.
Petitioner contended that Tasks 6 and 7 were not worded so as to call for a precise response; that the examination questions related to those tasks were subject to different, but equally correct, assessments or clinical judgments than those approved by the Department, and that he had given equally correct assessments/clinical judgments as his examination answers; and that the scoring of the examination was flawed.
Prior to the examination, candidates were provided with a Candidate Information Booklet (CIB). This preparatory booklet explains what the examination will be like, explains how it is scored, and states:
The references listed below may be used to prepare for the examination. This list is not considered to be all-inclusive.
Following this statement is a list of professional texts divided into categories of "Acupuncture," "Physical Diagnosis," "Technique," and "X-ray Interpretation of Chiropractic and Pathology Films."
The Physical Diagnosis portion of the November 2000 chiropractic licensure examination is a practical examination which tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical patient's case history.
The case history for the Physical Diagnosis portion is followed by a series of related questions. For this examination, Task 1, the case history, was related to Tasks 6 and 7, because it provided critical information relating to the history of the patient whom Tasks 6 and 7 asked the candidate to evaluate.
Task 6 asked the candidate to respond to the question, "What laboratory tests or diagnostic procedures, if any, would assist in the diagnosis?"
Petitioner testified that he had taken a "medical" approach to this question, which should be appropriate from the viewpoint of the "Board of Chiropractic Medicine."
From Petitioner's viewpoint, Task 6; was vague and the time limitations of the examination did not allow him to go back and review the preceding patient history which might have caused him to answer differently. However, he conceded that even if he had gone back and-re-read the patient history, he probably would have answered the same way. Petitioner also conceded that candidates had the opportunity to write notes on scratch paper and were allowed to refer back to their notes for gathering or taking additional information about the patient history as they progressed through the subsequent examination. tasks/questions.
Petitioner answered Task 6 by listing specific laboratory test(s) he felt were warranted, whereas the Department's scan sheet or answer key stated that the correct answer should have been "None."
The Department's reviewers concluded that Petitioner's answer meant that he had given laboratory tests when none were required, based on the examination information as a whole.
Task 7 asked the candidate to respond to the question, "State your reasoning for choosing these tests." Petitioner's actual answers to Task 7 were not offered at hearing. However, at hearing, Petitioner gave his reasons for ordering laboratory tests as not being satisfied with one diagnosis; because a chiropractor should pursue tests to rule out other conditions in a deductive rather than inductive manner; and because a chiropractor is obligated to make a "differential" diagnosis in every case to determine the etiology of the primary diagnosis, i.e. a tumor, so that he can speak intelligently with other health care professionals, such as a medical physicianoncologist, to whom the chiropractor will refer the patient. Petitioner's additional reasons given at hearing for the laboratory tests he would have administered (Task 6) are those given above in Finding of Fact 7. The Department's approved answer for Task 7 was again negative of any reasons for laboratory tests because, in its answer-book, there should have been no laboratory tests ordered on Task 6.
Despite his discounted answers to the challenged questions, Petitioner ultimately reached the correct diagnosis for the patient to whom Tasks 1, 6, and 7 applied. He reached the correct diagnosis after receiving further information on examination tasks subsequent to Tasks 6 and 7, but he still reached the correct diagnosis without running any actual laboratory tests or receiving any hypothetical laboratory test results. At the stage of Tasks 6 and 7, he was told by examiners either that no laboratory test results were available or that all laboratory tests were normal. His reaching the correct diagnosis under these conditions demonstrates that reaching a correct diagnosis without the laboratory tests he ordered certainly was possible.
Petitioner testified that in formulating his answers to Tasks 6 and 7, he had relied on a standard text, Differential Diagnosis in Primary Care, Second Edition, R. Douglas Collins, M.D. F.A.C.P.; published by J. B. Lippincott Company, which text had been used to instruct him and from which text Petitioner also had taught his chiropractic students. This text is not listed in the CIB. Petitioner also discussed portions of eight other professional health care texts which he felt supported his
answers to Tasks 6 and 7. None of these texts were listed in the CIB.
Although the CIB is not "all-inclusive" of generally accepted chiropractic texts, the texts listed. thereon may be presumed to be generally accepted. Texts. not listed thereon do not benefit from the CIB's "imprimitur" of general professional acceptance and reliability.
Petitioner only asserted that the texts upon which he relied were used in many (not all) chiropractic schools.
The Departments expert in chiropractic, Dr. Scott
L. Drizin, testified that of the nine texts utilized by Petitioner, only P-5, Griffith's Five Minute Clinical
Consult, by Mark A. Dambro, published by Williams & Wilkins, 1997, pages 628-630, constituted a generally-accepted learned treatise recognized and authoritative for use in the practice of chiropractic
medicine for Florida chiropractors, and that P-3 and P-4, also texts relied upon by Petitioner, were so specialized as to rarely, if ever, be used by chiropractors. He did, however, testify that possibly P-2, Mosby's Manual of
Diagnostic anal Laboratory Tests, by Kathleen and Timothy Pagana, published by Mosby Publishing Co. 1998, might have
limited value to Florida chiropractors. Neither of these texts is listed on the CIB.
For purposes of his own testimony, Dr. Drizin relied upon three texts, Bates, Guide to Physical Exam History Taking, (R-15); a 1995 edition of P-5, the Griffith's Five Minute Clinical Consult, which was numbered R-16; and The Merck Manual (R-17), which texts were admitted over Petitioner's objection.
Of the texts utilized by Dr. Drizin, only R-15 and R-17 are listed on the CIB and only P-5/R-16 is accepted as authoritative by both Petitioner and by Dr. Drizin. However, Dr. Drizin testified credibly that all three of the texts he had used were generally-accepted as learned treatises recognized and authoritative for use in the practice of chiropractic medicine for Florida chiropractors.
It is therefore found that an insufficient predicate was laid to establish that any texts other than P-5/R-16, R-15, and R-17, constituted generally accepted chiropractic texts, sufficiently reliable for making findings of fact.'
Dr. Drizin is a Florida-licensed chiropractor. He has practiced in Florida for thirteen years. In addition to his doctorate of chiropractic medicine, he holds a master's
degree in biomechanical trauma. He is a member, and has held office in, multiple professional chiropractic associations and has published extensively in his professional field. He is currently a licensing examiner, consultant, and coordinator for the Department. He has testified as an expert on licensing examination challenges approximately 25 times. Accordingly, by education, training, and experience, his testimony has been accorded great weight.
Upon the greater weight of the credible evidence as a whole, it is found that Petitioner's responses to Tasks 6 and 7 are incorrect and the Department's answers are correct for the following reasons.
Dr. Drizin, and the reliable medical references that support his opinion, established that the principal source of diagnosis information is commonly found in the history of the patient, which was described in detail in examination Task 1. At least two of the texts upon which he relied affirmatively demonstrate that the Department's answers to Tasks 6 and 7 are correct.
Dr. Drizin also explained credibly and persuasively that the case progression format from Task 1 through Tasks 6 and 7, and beyond, is designed to eliminate any perception of vagueness by the candidate, so that by
the time the candidate has progressed to Task 6, he or she has more than enough information to come up with a correct diagnosis without laboratory tests. The four symptoms provided prior to Task 6 disclosed a classic syndrome, which syndrome is often used in testing physicians for the type of diagnosis sought. The four symptoms are not usually found together in the same patient. Therefore, when all four symptoms are found together in the same patient, it is so unusual that they point to only one diagnosis, without the need for the laboratory tests which Petitioner responded with for Task 6. Also, some of the tests Petitioner ordered would come back as "normal" in early stages of the condition Petitioner was asked to diagnose.
Therefore, the laboratory tests that Petitioner would have conducted were neither appropriate nor effective at the early stage of the disease described in Task 1 or the early stage of the examination (Tasks 6 and 7) in the diagnosis process simulated on the examination.
Although Dr. Drizin, in effect, conceded that the laboratory tests Petitioner ordered would do no harm and might be peripherally valuable, he found them superfluous in the present era of managed care. He further opined that ordering every test available to rule out all possibilities besides the obvious diagnosis at so early a stage in
patient assessment would be inappropriate and would constitute detrimental over-utilization of resources which exploit the patient.
Moreover, Petitioner testified that he used P-5, a text on oncology, to rule out a lung abscess, but Dr. Drizin testified credibly that the patient history of no elevated temperature provided on the examination should have ruled, out a lung abcess without the need for the further tests specified in P-5 and in Petitioner's examination answers.
Petitioner presented no evidence to support a human or mechanical error in creating or scoring Tasks 6 and 7 of his examination.
The Departments past testing experience does not reveal anything "tricky" about Tasks 6 and 7, provided they were approached sequentially from Tasks 1 through 6 (and 7). Several previous chiropractic licensure examinations have used these questions without a high number of failures on those particular questions. Nothing in past testing history has pointed out that these questions are misleading or confusing to a high number of candidates, because a high number of candidates do not miss these questions.
Two examiners independently grade each candidate's performance during the Physical Diagnosis
portion of the chiropractic licensure examination. Two examiners are used to ensure fairness to the candidate and reliability of the scores. They are selected on the basis of the requirements of Rule 64B2-11.007, Florida Administrative Code. Each examiner must attend a training session for standardization purposes and to reduce subjectivity and/or discrepancies among the examiners approaches. The examiners who graded Petitioner's performance, Examiners 15 and 59, met all qualification anal training prerequisites established by statute and rule.
The two examiners agreed 100 percent in scoring Petitioner's responses to Tasks 6 and 7. Both examiners gave Petitioner an °A" score, representing zero points for each task.
Upon review, other fully-qualified examiners reached the same conclusion that Petitioner's answers to Tasks 6 and 7 had been correctly scored as earning zero points.
These scoring methods were correct.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Respondent Department is authorized to administer licensure examinations for chiropractors. Section 456.017, Florida Statutes (2000). Any person desiring to practice chiropractic medicine in Florida is required to pass the licensure examination developed by the Department to test an applicant's minimum competency as a chiropractor. Section 460.406, Florida Statutes (2000).
Petitioner has the burden of going forward and proving by a preponderance of the evidence that his examination scoring was flawed and that the Department acted arbitrarily or capriciously or with an abuse of discretion. This is an extremely heavy burden. See Harac v. Department of Business and Professional Regulation, 484 So. 2d 1333, 1337 (Fla. 3d DCA 1986); Florida Department of
Transportation v. J.W.C Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); State ex rel. Glasser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); Topp v. Board of Electrical Examiners, 101 So. 2d. 583 (Fla. 1st DCA 1958). If the proof is insufficient to demonstrate entitlement to the license, the license must be denied.
In this case, the Department, in the; exercise of its lawful authority, correctly determined that Petitioner failed to earn a passing grade on the November 2000 chiropractic licensure examination. Petitioner has failed
to prove or persuade that he is entitled to the additional three points necessary to pass the November 2000 licensure
examination.
Recommended that the Department of Health enter a final order denying and dismissing Petitioner's challenge of the score he received on the November 2000 chiropractic licensure examination.
DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings This 19th day of July, 2001.
1/ Because the parties did not comply with the Order of Pre-hearing Instructions with regard to listing any objections to proposed exhibits, and because Petitioner testified as his own chiropractic expert, which is his right, notwithstanding his interest in this case, (see Martuccio v. Department of Professional Regulation, 622 So.
2d 607, 609-610 (Fla. 1st DCA 1993)), Petitioner's authoritative texts were admitted, subject to proving-up their reliability for findings of fact.
Normally, authoritative texts are only admissible upon cross-examination, and then only if the predicate of general acceptance in the respective professional community has been laid first. See Sections 90.704, 90.706, and 90.803(18), Florida Statutes. See also, Ehrhardt, Florida Evidence, "West's Florida Practice Series," Sections 704, 706, and 803(18h), (2000 Edition), and Sagman v. Department of Health, DOAH Case No. 00-1609 (Recommended Order, November 7, 2000).
Herdley D. Harrison 1595 Longwood Drive
Cherry A. Shaw, Esquire Department of Health
Theodore M. Henderson, Agency Clerk Department of Health
William W. Large, General Counsel Department of Health
