KRISTIAN L. KOSZEGHY,
vs.
Respondent.
) Case No. 01-4197
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida. The hearing was conducted on March 15, 2002, and the appearances were as follows:
For Petitioner: Kristian L. Koszeghy, pro se
For Respondent: Cherry A. Shaw, Esquire
The issues to be resolved in this proceeding concern whether the Petitioner is entitled to received a passing score on the June 2001 Dental Licensure Examination.
This cause arose when the Petitioner elected to contest the score he received on the Dental Licensure Examination administered in June 2001. He was advised on August 9, 2001, by an examination grade report from the Department of Health (Department) that he had failed that examination. The minimum passing score on the examination is 3.00 and by that report he was accorded a score of 2.96, which was not a passing grade.
The Petitioner elected to request a formal proceeding and hearing to contest that grading as to the Class II composite restoration; the Class II Amalgam preparation; the Endodontic preparation; and the preparation for a three-unit partial denture.
The dispute was forwarded from the Department to the Division of Administrative Hearings and assigned to the undersigned Administrative Law Judge. The cause then came on for hearing as noticed. The Petitioner testified on his own behalf at the hearing and presented Exhibits 1, 2A and 2B, which were received into evidence. The Department presented the testimony of Charles Ross, D.D.S., accepted as an expert in the
field of dentistry, as well as Jeffery Metcalf, D.D.S., who was examiner number 366, for the June 2001 Dental Licensure Examination. The Department also presented the testimony of Marsha Carnes, accepted as an expert in the field of psychometrics. Respondent's Exhibits 1 through 12, and 14 through 15, were offered and admitted into evidence. Upon conclusion of the proceeding, a Transcript thereof was ordered and the parties availed themselves of the opportunity to submit Proposed Recommended Orders. The Proposed Recommended Orders were timely filed and have been considered in the rendition of
this Recommended Order.
The Petitioner sat for the Dental Licensure Examination of June 2001. He failed to pass the clinical section of that examination and thus became an unsuccessful candidate for licensure.
The June 2001 Dental Licensure Examination (Examination) consists of two parts, a clinical portion and a law and rules section. The clinical portion consists of nine procedures. The Petitioner challenged four of the nine procedures.
The Department selects three examiners to independently grade each candidate's performance. The average of the three examiners' independent scores for each procedure produces the
overall grade for that procedure under the Department's scoring methodology. The average grade for each procedure is then weighted pursuant to the requirements of Rule 64B5-2.013, Florida Administrative Code, which produces the overall score for the entire clinical examination.
The Department allows for three examiner scores, rather than only one examiner scoring each procedure, because it provides a more reliable indication of the candidate's competency and a more accurate score. Each examiner must be a licensed dentist for a minimum of five years before becoming an examiner and must have no complaints or disciplinary actions recorded against his license. The examiners have no contact with the candidate and therefore have no knowledge of the identity of the person whose examination they are grading.
Each examiner must attend and successfully complete a standardization session or course as well. This is designed to train each examiner to use the same internal grading criteria. In standardization, the examiners are taught specific grading criteria, which instruct them on how to evaluate the work of candidates.
The examiners are accorded identity numbers for use in the examination and grading process. The examiners who graded the Petitioner's examination were examiners numbered 364, 083,
316, 366, 117, and 299. All of them successfully completed the above-described standardization session or course.
The Petitioner contested the score he received on the Class II composite restoration procedure. He claims that the Department's instructions, as to the use of a dye material in the amalgam material used to fill a tooth, conflicted with the manufacturer's instructions, that is, the manufacturer of the restoration amalgam material and/or dye material.
The Class II composite restoration procedure of the examination is a procedure involving the candidates' ability to fill an opening inside a tooth with a composite resin material which produces a "tooth colored" filling. This procedure also involves replacing a portion of the tooth.
Based on the examiners' comments and grades, as well as the testimony of Dr. Charles Ross, the Petitioner failed to properly perform this procedure. The Respondent's expert witnesses Dr. Charles Ross, a licensed dentist practicing for
32 years, as well as Marsha Carnes, a psychometrician employed by the Department, explained that due to security reasons and fairness considerations, all candidates were instructed to place the dye material in the composite. All candidates thus had to contend with the use of the dye material and none was exempted from it. Dr. Ross has had over 12 years' experience working with the Dental Licensure Examination and has examined well over
1000 dental candidates. He established that, as to the manufacturer's instructions, candidates are not graded on a specific name brand material. Candidates are graded on their technique and how well they perform the required criteria.
Therefore the manufacturer's instructions are not considered for grading purposes because no two manufacturers, or the materials they produce, are the same. Dr. Ross also established that the dye did not hamper the Petitioner's ability to perform this procedure. In fact, the Petitioner received a passing grade of
3.33 on the Class II composite restoration procedure.
The Petitioner's Exhibit One does not support the Petitioner's argument that "the Department contravened the manufacturer's instructions as to the use of dye material." On the contrary, the Petitioner agreed that there are numerous manufacturers of dye material and how they use their materials varies from one manufacturer to another.
The Petitioner contested the score he received on the Class II Amalgam preparation procedure claiming that since only one of the three examiners found caries (decay) in his preparation and the other two examiners did not comment on having seen caries, that this is an example of inconsistent grading.
The Petitioner acknowledged that he still had caries in his preparation when he completed a "monitor to examiner
note." In this note, which is permitted under the examination procedures, the Petitioner requested to "extend his preparation beyond ideal" in order to clear away remaining decay. He presented this note to the monitor of the examination who then, without revealing the candidate's identity, gave the note to the examiner for approval or disapproval.
The monitor to examiner notes are used by a candidate to convey a message to the examiner through the monitor. The monitor, who is also a licensed dentist, does not render any grading. The monitor acts merely as a "messenger" between the candidate and the examiner, who must not know each other's identity.
Although the monitor agreed with the Petitioner that decay remained, the monitor disagreed that the Petitioner needed to "extend his preparation beyond ideal." The monitor indicated his agreement by circling his identification number (318) and his disagreement by not circling his identification number. In other words, he agreed that decay was present but disagreed that the Petitioner needed to extend his preparation or the size or configuration of the "box" where the filling would ultimately be placed.
The patient amalgam preparation procedure of the examination is a procedure that requires candidates to completely remove a caries lesion or decay from a section of
tooth. Based on the examiners' comments and grades and the testimony of Dr. Ross and Dr. Jeffrey Metcalf, the Petitioner did not properly perform this procedure.
Dr. Metcalf stated that he gave the Petitioner a grade of "1" for the patient amalgam preparation procedure because the Petitioner's "proximal box" had a very thin wall of enamel or severe undermining. This thin wall, according to Dr. Metcalf, will eventually crack and fracture upon pressure as the patient chews food or grinds his or her teeth. Although Dr. Metcalf saw the Petitioner's monitor note regarding decay, it had very little effect on how he graded the Petitioner.
Dr. Ross established that the Petitioner had removed too much or more than enough dentin from the tooth on the Class II amalgam preparation procedure. The presence of adequate dentin is critical to provide a foundation or support
for the enamel. Enamel must be attached to dentin, the bulkiest portion of the tooth, otherwise, the enamel will fracture.
Concerning the caries, Dr. Ross established that caries may start out large and then the candidate removes caries until it appears as the size of a small dot. Upon Examiner 117's discovery of the caries, while simultaneously using the explorer (probe or pick) to "feel" for the caries, his instrument could have removed the small portion of the carious lesion remaining. Depending on the order in which each examiner
graded the Petitioner on this procedure (not of record) it is possible that the next two examiners did not see the caries, if the first examiner through his probing with the tool had removed the caries by removing the discolored area it consisted of.
Moreover, Dr. Ross established that even if Examiner
117 was not the first examiner to grade the preparation, the other examiners may have focused on other specific areas of the Petitioner's preparation and simply may not have detected the caries. This is not an unusual occurrence among examiners. Thus the fact that two of them did not record seeing the caries does not mean that they were not present.
The psychometrician, Marsha Carnes, testifying as an expert in that area for the Department, explained that based on the monitor sheet, Examiner 117 specifically requested the Petitioner to "deepen the axial gingival line angle of the proximal box." In other words, Examiner 117, through the monitor, requested the Petitioner to remove the decay.
The Petitioner acknowledged that he had caries by generating the monitor note in which he requested the authorization to "extend his preparation" in order to remove the caries. Both Dr. Ross and Ms. Carnes explained that examiners commonly "bubble-in" different comments for the same procedure. This is not unusual and is sometimes beneficial to the candidate. Further, when examiners grade an examination they
grade holistically. In other words, they do not deduct points for different comments. Instead, examiners consider the model or the patient as a whole and render a grade based on what they learned in their standardization training.
When three examiners observe the same model or patient procedure, it is expected that three people will render grades for different reasons. Further, if they render a grade of "2," "1," or "0" for the patient procedures, examiners are required to go a step further by completing a grade documentation sheet.
Although the Petitioner's main focus on the Class II amalgam preparation led to lengthy testimony and argument on the caries issue, caries did not unilaterally determine the overall grade. The Petitioner's overall grade is a combination of all of the individual grades he received for all nine clinical procedures.
Moreover, the "0" grade was not the only failing grade the Petitioner received on the Class II amalgam preparation. The Petitioner also received a grade of "1" from Examiner 366 for the same procedure.
The Petitioner also contested the score he received on the preparation for a three-unit, fixed, partial denture procedure, claiming that he could not find the undercut as indicated by one of the examiner's comments.
The preparation for a three-unit, fixed, partial denture procedure of the examination is a procedure that involves the candidate's ability to provide preparation of two teeth in order to replace a missing tooth with a fixed bridge.
Based on the examiners' comments and grades and the testimony of Dr. Ross, the Petitioner failed to properly perform this procedure.
Dr. Ross established that the Petitioner's work on this procedure resulted in one tooth, the cuspid, being slightly tilted away from the bicuspid. It is impossible to place a bridge on an improper preparation. Dr. Ross further stated that the Petitioner had a problem with this procedure because of the Petitioner's undercut. The undercut indicated that the Petitioner's preparation was not properly aligned to accept a bridge.
Additionally, the Department's expert psychometrician witness, Ms. Carnes, explained that it is common for examiners to give identical grades, yet write down different comments on the same procedure. That does not mean an examiner has made a mistake. While they use the same grading criteria, examiners occasionally see different errors.
The Petitioner has contested the score he received on the Endodontic procedure as well. An Endodontic procedure also known as a "root canal," involves removal of infected nerve
tissue and blood vessels and pulp from a tooth. The candidate is required to access the canal and pulp tissue from the outside. He must then remove the affected nerve and cleanse the canal. Finally, the canal must be sealed to prevent recurring bacteria inside the tooth.
In consideration of the examiners' comments and grades and the expert testimony of Dr. Ross, the Respondent has established that the Petitioner did not properly perform that procedure.
Dr. Ross opined that the Petitioner failed to properly fill the canal. The Petitioner's access to the canal was not straight. Instead the Petitioner's access to the canal removed too much of the tooth on one side which resulted in weakening the structure of the tooth. This would cause the tooth to eventually fracture.
Additionally, the Petitioner's gutta percha material (rubber-like material) was improperly left inside the chamber reamed out in the tooth in the root canal and nerve removal process. When a core is placed inside that chamber the gutta percha material left under it in the chamber can flex or move, which will force the core to move when the patient applies pressure, as, for instance, by chewing. Finally, the Petitioner failed to adequately seal the apical end of the root canal at
the apex of the canal space or a maximum of one millimeter above the apex.
The Department allows for a "re-grade" process. The purpose of the regrading process is to give all candidates who request a re-grade another chance at passing the examination. In other words the Department thus seeks to determine whether any grades rendered were inconsistent or inaccurate. The Department selects the top three examiners, who had the highest reliability from that examination, to participate in the
re-grading process.
The Department's post-standardization statistics of the examiners' performance indicated that the Petitioner's examiners graded reliably. The post-standardization statistics indicate the examiners' performance on grading of models during standardization. Additionally, the Department calculates post- examination statistics, which are as follows for the examiners who graded the Petitioner's challenged procedures:
Examiners Accuracy Index & Rating
#364 93.1 Very Good
#083 | 95.7 | Excellent |
#316 | 97.0 | Excellent |
#366 (Metcalf) | 94.0 | Very Good |
#117 | 90.4 | Good |
#299 | 89.5 | Watch |
All the examiner's reliability was significantly above the minimum acceptable accuracy index of 85.0.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding in accordance with Section 120.57(1), Florida Statutes (2001).
The Respondent is authorized to administer licensure examinations for dentists in accordance with Section 456.017, Florida Statutes (2001). Any person desiring to practice dentistry in Florida is required to pass the licensure examination developed by the Department to test an applicant's competency as a dentist. See Section 466.006, Florida Statutes (2001).
The Petitioner has the burden of proving by a preponderance of the evidence that his examination scoring was flawed and that the Department acted arbitrarily or capriciously or abused its discretion in administering and/or grading his examination. See Harac v Department of Professional Regulation,
484 So. 2d 1333, 1338 (Fla. 3d DCA 1986). See also The Florida
Bar re: Williams, 718 So. 2d 773 (Fla. 1998). In accordance with the facts found above, the Petitioner failed to meet the burden as was shown by the unrefuted testimony of the expert witnesses.
The Petitioner maintains that he should not receive the "0" that Examiner 117 gave him on the Class II amalgam
preparation procedure because the examiner noted that caries or decay was present and the other two examiners did not. He contends that the Department's witnesses' testimony, based on Examiner 117's comments and grade sheets, are based on speculation and conjecture because the examiner was not present to testify.
The Petitioner, however, waived an opportunity to argue conjecture or speculation as a basis for discrediting the Department's witnesses since the examiner's comments and grade sheets upon which the witnesses' testimony was partially based were admitted into evidence without his objection.
Moreover, Rule 64B5-2.017(1), Florida Administrative Code provides that:
Each clinical procedure shall be graded by three (3) examiners, . . . [and] the three independent grades shall be averaged to determine an applicant's final grade on each procedure of the clinical examination.
The Rule does not contemplate the elimination of individual scores for two reasons. First, elimination of an individual examiner's scores would change the entire examination and possibly be unfair to other candidates. Secondly, to eliminate an individual examiner's scores would violate the Rule which mandates that a final grade be determined by the average of three independent examiners' grades. Further, Examiner 117 found caries and, according to the Department's rule,
administered a grade of "0" as a result. The other two examiners did not note the presence of caries. They may have failed to see the caries or Examiner 117's probe tool may have removed the caries before they had an opportunity to view the procedure involved. The fact remains, however, that caries were still present after the initial "box" preparation, as shown by the Petitioner's own monitor note submitted to the monitor to be forwarded to the examiner. Accordingly, it would seem that the Petitioner could only have benefited by the failure of the other two examiners on that procedure to note caries. The absence of a finding of caries by the other two Examiners does not mean that Examiner 117 had erroneously noted caries, as the Petitioner now seems to contend. Logically it would seem apparent that caries were present, that Examiner 117 noted them and, according to the Department's Rule, administered his own grade of "0," one of three averaged grades resulting in the final grade for that procedure. Thus, Examiner 117's grade of "0" should stand.
The Petitioner has the burden of proving by a preponderance of evidence that the Department's decision to give no credit for his work to that challenged procedure is arbitrary or capricious or constitutes an abuse of discretion. See State
ex rel. Glaser 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). Given the facts found above the Petitioner has failed to meet that burden. In order to ensure that the Department acts in a reasonable manner, the Department conducts a re-grading of the examination. Moreover, the re- grading examiners are not the same examiners as originally graded the examination of the Petitioner. Accordingly, in retrospect, six different, independent examiners reviewed the Petitioner's examination. Clearly the purpose of the re-grading process is to diminish any indication of arbitrary or capricious grading and that was accomplished in this case.
Examining boards such as the Dental Board are generally constituted and established for the purpose of protecting the health and safety of the public against incompetent practitioners who seek to enter the various vocations and professions. See Topp v. Board of Electrical Examiners, at 585-586. Such boards are not vested with arbitrary hegemony over the rights of an individual but are charged with the duty to administer rules and regulations equally and justly between all persons and groups who come within the bounds of their jurisdiction. Id. at 586.
So long as the boards conduct their examinations fairly and uniformly in accordance with lawful authority and their own rules and regulations, their judgment as to the proper
grading of such examinations will not be disturbed by the courts. See Id.
In the instant situation it is clear that the Department, in the exercise of the authority under its organic statute and its rules, determined that the Petitioner failed to earn a passing grade on the June 2001 Dental Licensure Examination. Although there will be procedures on examinations for which the amount of credit to be given the various procedures or portions of procedures may differ in the minds of reasonable people, or reasonable dentists, that alone is insufficient to support a claim of abuse of discretion. See Topp; see also Shahram Shahmohamady v. Department of Health, DOAH Case No. 00-4055, February 1, 2001; Rami Ghurani v. Department of Health, DOAH Case No. 00-2330, December 15, 2000; and Carlo Coiana v. Department of Health, DOAH Case No. 00-1909, February 9, 2001.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a Final Order be entered by the Board of Dentistry dismissing the Petitioner's challenge to the grades assigned him for the June 2001 Dental Licensure Examination.
DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Division of Administrative Hearings this 6th day of June, 2002.
Kristian L. Koszeghy 1731 Beacon Street
Cherry A. Shaw, Esquire Department of Health
William H. Buckhalt, Executive Director Department of Health
R. S. Power, Agency Clerk Department of Health
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.
