STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE R. DEVINE, D.D.S., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1436

) STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on January 28 and 29, 1982, in Tallahassee, Florida. The issues for determination at the final hearing in this cause were the correctness of the scores Petitioner, George R. Devine ("Petitioner"), received on the Amalgam Preparation and Restoration procedures and the Cast Gold Final Restoration procedures on the June, 1976, licensure examination administered by the Board of Dentistry ("Respondent" or "Board"), and the applicability of the affirmative defense of laches asserted by Respondent.

APPEARANCES

For Petitioner: Paul Watson Lambert, Esquire

1114 East Park Avenue Tallahassee, Florida 32301

and

Benjamin K. Phipps, Esquire Post Office Box 1351 Tallahassee, Florida 32302

For Respondent: John E. Griffin, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301

By Petition dated May 6, 1981, Petitioner challenged grades received on portions of the Florida dental licensure examinations administered in 1974, 1975, 1976, and 1978. By letter dated May 20, 1981, the Board requested that a Hearing Officer be assigned to conduct the final hearing in this proceeding.

At final hearing, Petitioner voluntarily dismissed his challenge to the results of the licensure examinations administered in 1974, 1975, and 1978. Petitioner testified in his own behalf, and called George T. Walmsley, Dr.

William R. Dannahower, H. Fred Varn, and Dr. Richard R. Souviron as his witnesses. Petitioner offered Petitioner's Exhibits 1 through 28, which were

received into evidence. Subsequently, Petitioner's Exhibits 3, 5, 6, 7, 8, 9,

14, 15, 16, 17, 18, 19-A, 22, 23, 24 and 25 were withdrawn, since they were not relevant to the June, 1976, licensure examination.

The Board called Dr. William R. Dannahower and Dr. Rupert Q. Bliss as its witnesses, and offered Respondent's Exhibits 1 through 7, which were received into evidence.

Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as either not having been supported by evidence of record in this proceeding, or as being irrelevant to the issues in dispute.

FINDINGS OF FACT

1. Petitioner has been licensed to practice dentistry in the State of Massachusetts since 1953. Since 1966, Petitioner has limited his practice to oral and maxillo-facial surgery.

   
   

2. In June of 1976 petitioner took part as a candidate for licensure in a licensure examination administered by Respondent. On this examination, a final score of 75 was needed to pass the "clinical" or "practical" portion of the examination. Petitioner was awarded a failing grade of 59.69. By this proceeding, Petitioner maintains that the grades he was awarded on the Amalgam Preparation procedure, the Amalgam Restoration procedure, and the Cast Gold Final Restoration procedure were unjust, arbitrary and capricious.

   
   

3. The clinical examination administered by Respondent in June, 1976, consisted of the following procedures, weights, and percentages:

   
   

   Percentage of

   Casts and Wax Pattern	1/2
   Casting	1/2	10	percent
   Professional Evaluation	3/3	15	percent
   Gold Inlay Restoration Preparation	1/2
   Inlay Cemented	1/2	25	percent
   Amalgam Restoration Preparation	2/3
   Final Restoration	1/3	25	percent
   Periodontal Evaluation Diagnosis	1/3
   Periodontal Procedure	2/3	25	percent

   Procedure Weight Final Grade Laboratory

4. Petitioner's final score on the clinical portion of the June, 1976, examination was based on the following scores:

   
   

   1st 2nd Percentage

   Exam- Exam- of Final Procedure iner iner Total Grade Grade

   
   

   Laboratory

   Casts and Wax Pattern (1/2)	1	2
   Casting (1/2)	2	2	10	percent	59.38
   Professional
   Evaluation (3/3)	3	3	15	percent	75.00
   Gold Inlay Restoration Preparation (1/2)	2	3
   Inlay Cemented (1/2)	0	0	25	percent	53.13
   Amalgam Restoration Preparation (2/3)	0	0
   Final Restoration (1/3)	2	2	25	percent	33.50
   Periodontal Evaluation Diagnosis (1/3)	4	N/A
   Periodontal Procedure (2/3)	4	3	25	percent	83.33
   					59.69

   
   

5. During the 1976 examination, Respondent utilized the following grading system for the clinical examination:

   
   

   1. - An unethical or unacceptable performance

   2. - Work falling far short of acceptable standards

   3. - Work falling short in one or more aspects of being acceptable

   4. - Minimally acceptable work

   5. - Work beyond the bare minimum of acceptability

   6. - Work demonstrating outstanding skill

      
      

6. Prior to the clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each subject, the procedures to be used in performing each procedure, the criteria to be used in grading, and the grading system to be utilized by Respondent. The clinical portion of the examination for each candidate took two days and involved approximately 400 to 450 candidates and 20 to 22 examiners. Except for the diagnosis portion of the periodontal procedure, each clinical procedure performed by a candidate was independently graded by two different examiners, and the two grades were then averaged to determine the total grade. However, if grades given by the two examiners were more than one grading criteria apart, and the examiners could not resolve their evaluative differences, a third examiner was brought in to resolve any remaining dispute as to the grade to be awarded.

7. Candidates for the June, 1976, examination were required to perform a Class II Amalgam Restoration on a tooth which had occlusal and proximal contact. The tooth to be used by the candidate was not to contain extensive decay and an ideal cavity preparation with minimal outline form and cavity depth was to be prepared by the candidate.

   
   

8. The grading criteria for the Amalgam Preparation were contained on the grade sheets' utilized by the individual examiners. These criteria were as follows: outline form; depth preparation; retention form; marginal finish; unsupported enamel; caries; debris; and mechanical exposure. Only leaving caries in the preparation or causing a mechanical exposure of the nerve of the tooth required an examiner to give a candidate an automatic zero for the preparation. However, any number or combination of missed criteria, depending on the degree of error, could result in a grade of zero. Because of the number of criteria involved, and the degrees to which they could be satisfactorily or unsatisfactorily performed, there existed an infinite variety of combinations of missed criteria, and degrees of performance, that could result in a zero or a failing grade.

   
   

9. Petitioner received grades of zero and zero, for an overall score of zero on the Amalgam Preparation. Petitioner's grade sheets for this procedure as well as Respondent's records identifying the examiners for this procedure were not available at hearing in this cause because they had been previously destroyed in the normal course of the biennial purge of Respondent's examination records pursuant to Chapter 466, Florida Statutes. As a result, it is not possible to determine why a particular grade was given on this portion of an examination administered six years ago, without the availability of the particular grade sheet to indicate criteria missed by Petitioner. For example, it cannot be determined with any degree of accuracy the roughness of the pulpal floor of the tooth at the time of grading, whether any debris was left in the preparation at the time it was graded, whether there were adequate buccal, gingival or axial retention points present, and whether they were overcut, whether a buccal or lingual cusp was undermined, whether the enamel was undercut on the occlusal surface, among a variety of other pertinent points. None of these criteria can adequately be assessed by way of an x-ray examination some six years after the procedures were performed.

   
   

10. In addition to the aforementioned procedure, candidates at the June, 1976, examination were also required to place an amalgam restoration in the tooth they had prepared for the Amalgam Preparation procedure. The grading criteria for the final restoration were contained on the grade sheets utilized by the examiners, and were as follows: functional anatomy; proximal contour; contact; margin; gingival overhang; and management of soft tissue. Unlike the Amalgam Preparation, failure in any given criteria did not result in an automatic zero for this procedure. However, like the preparation phase of the examination, the restoration grade was also determined by a variety of combinations of criteria, depending upon the degree of performance. Again, because of the number of criteria involved and the degrees to which they could be successfully or unsuccessfully performed, there were an infinite variety of combinations of missed criteria and degrees of deficiencies that could result in a failing score. Petitioner received grades of two and two, for an overall average score of two on the Final Restoration. As in the preparation procedure, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for this procedure were not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. The record in this cause establishes that it would not be possible with any degree

    of accuracy to determine why a particular grade was given on an examination administered six years ago without the grade sheet to indicate the particular criteria missed by the candidate, or even the identity of the examiners who awarded that grade. X-ray examination of the patient with the restoration in place could determine criteria such as functional anatomy, proximal contour, margins, and gingival overhang. However, criteria such as management of soft tissue is obviously not now discernible in that the tissue would have healed since the examination. Neither can the criteria of adequate contact be evaluated now some six years after the procedure was performed. In addition, because of various changes which could have occurred during the lapse of time between the administration of the examination and the present time, criteria such as functional anatomy and adequacy of margins can not now be determined with any degree of accuracy.

    
    

11. Candidates at the June, 1976, examination were also required to prepare a tooth for a Class II cast gold restoration. This restoration was required to have occlusal and proximal contact and was to be cemented in the patient's mouth. Grading criteria for the final gold restoration were as follows: casting not seated; margins; functional anatomy; proximal contours; contact; surface finished; and, management of soft tissue. According to Respondent's criteria, if the gold inlay produced by a candidate was not satisfactory to be cemented as a permanent restoration, a grade of zero was mandatory. If the inlay was only cemented temporarily, a grade of zero was still required. As in other areas of the examination, the final gold restoration grade could be determined by any number or combination of criteria, depending upon the degree of error. Petitioner received grades of zero and zero, for an overall average score of zero on the final gold restoration. Petitioner admits that the inlay he prepared at the examination would not seat, and that he placed a temporary restoration in the patient's mouth. He contended, however, that he successfully performed some of the grading criteria and should not, therefore, have received a grade of zero. However, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for the procedure were again not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. As with the preceding procedures, it is not possible to determine why a particular grade was given on this portion of the examination without the particular grade sheet involved to indicate missed criteria.

    
    

12. At all times material hereto, candidates were allowed access to their examination grades upon request, and were notified of their right to an examination review with an examiner. In the event of such review, the candidate and the examiner reviewed the candidate's grade sheets, x-rays and models from the examination, and the examiner indicated to the candidate the reasons for the awarding of a particular score. In addition, at all times material to this proceeding Petitioner had as an available remedy an administrative hearing pursuant to the requirement of Section 120.57, Florida Statutes.

    
    

13. Respondent was, in fact, contacted by Petitioner's attorneys in 1979 regarding the Petitioner's examination scores. All available examination documents were produced for Petitioner's attorneys in 1979, but Respondent was at no time advised that an examination challenge was intended, nor did Petitioner or his attorneys request that examination documents pertinent to Petitioner's performance not be destroyed. However, it is likely that at the time Respondent was contacted by Petitioner's attorneys his examination records had already been destroyed since approximately three years had passed since the

    administration of the examination, and Respondent's policy is to destroy those documents every two years.

    
    

14. Petitioner received his 1976 examination results approximately six weeks after the examination had been administered. According to Petitioner's testimony, he waited until 1981 to initiate this proceeding in the belief that the Florida Legislature would amend Chapter 466, Florida Statutes, to include licensure by reciprocity. That legislative action has not been forthcoming.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Petitioner was afforded a clear "point of entry" to challenge the results of the 1976 examination at the time he received his results in 1976. His failure to timely file an appropriate challenge resulted in Respondent's proper destruction of examination results and other documentation, and effectively deprived Respondent of an opportunity to adequately defend in this proceeding. Accordingly, Petitioner is barred from maintaining this proceeding to challenge the results of the 1976 examination administered by Respondent on the doctrine of laches and/or equitable estoppel. See, e.g., Florida Bar v. Scott, 238 So.2d 634 (Fla. 1970); Westchester General Hospital v. Department of Health and Rehabilitative Services, 419 So.2d 705 (Fla. 1st DCA 1982).

Accordingly, it is

RECOMMENDED that a Final Order be entered by the Department of Professional Regulation, Board of Dentistry, denying the relief requested by Petitioner, and dismissing this cause with prejudice.

DONE AND ENTERED this 17th day of December, 1982, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1982.

COPIES FURNISHED:

Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Benjamin K. Phipps, Esquire Post Office Box 1351 Tallahassee, Florida 32302

John E. Griffin, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301

Fred Varn, Executive Director Board of Dentistry Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001436

Orders for Case No: 81-001436