Judges: WILLIAM R. CAVE
Agency: Department of Health
Latest Update: Jun. 06, 1986
Summary: Petitioner fails to show by a preponderance of evidence that his grades on a dental examination were erroneous and that Petitioner actually passed the examination.
85-2054.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DENNIS J. PERROTT, )
)
Petitioner, )
)
vs. ) Case No. 85-2054
) DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF DENTISTRY, )
)
Respondent. )
) DENNIS J. PERROTT, )
)
Petitioner, )
)
vs. ) Case No. 85-3147
) 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 R. Cave, held a public hearing on March 5, 1986 in Orlando, Florida. The issues for determination at the hearing were: (1) Whether the grades given on Procedure 07, Cast Class II Cavity Prep and Procedure 08, Onlay Wax-Up on the clinical portion of the dental examination taken by Petitioner in December of 1984 were valid and; (2) Whether Petitioner's patient to be used by Petitioner in Procedure 04, Periodontal Evaluation, on the dental examination taken in June of 1985 was improperly rejected.
APPEARANCES
For Petitioner: Kenneth M. Meer, Esquire
Post Office Drawer 30 Winter Park, Florida 32790
For Respondent: John Namey, Esquire
22 East Pine Street Orlando, Florida
INTRODUCTION
In this consolidated proceeding, Petitioner is challenging:
(1) the grades he received on certain procedures tested during the clinical portion of the dental examination taken in December of 1984 and: (2) the rejection of his periodontal patient to be used in the periodontal portion of the dental examination taken in June of 1985. Petitioner alleges: (1) that Respondent's procedure of awarding a grade of zero (0) on Procedure 07 and 08 when the wrong tooth is prepared has no basis in statute or rule, is not a valid non-rule policy and was not consistently applied: (2) that with respect to Procedure 07, Respondent is estopped from giving a grade of zero (O) because of instruction given to him by the monitor, an agent for Respondent, during the examination concerning the proper procedure to follow when the wrong tooth is prepared and (3) that Respondent improperly rejected his patient who was to be used in the periodontal portion of the dental examination taken in June of 1985.
In support of his position, the Petitioner testified on his own behalf and presented the testimony of Louis Pesce, D.D.S. a specialist in periodontics. Petitioner's Exhibits 1 and 2 were received into evidence.
The testimony of Joseph E. Smith, D.D.S., Theodor Simkins,
and Cindy Richards was presented by the Respondent. Respondent's Exhibits 1 through 9 were received into evidence.
The parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner was an applicant for licensure by examination to practice dentistry in the State of Florida.
Petitioner took the dental examination in December of 1984 and June of 1985, and obtained a total overall grade of
2.60 and 2.04; respectively. A grade of 3.00 is required to pass the examination. Petitioner is here contesting only procedure 07 in which he received a grade of 0, 0, and 0 from three (3) examiners for an average grade of zero (0) and procedure 08 in which he received grades of 0, 2, and 0 from three (3) different examiners for an average grade of 0.66 on the December of 1984 dental examination and the rejection of his periodontal patient which resulted in his receiving grades of 0,
0 and 0 from three (3) examiners for an average grade of zero
(0) on procedure 04 on the June of 1985 dental examination.
Examiners for the dental examination are all currently licensed dentists who have been licensed in the State of Florida for the immediate five (5) years prior to the examination who have been extensively trained and standardized by the Department of Professional Regulation. A standardization exercise takes place immediately prior to each examination during which the examiners grade identical procedures and discuss any grade variance to eliminate; as far as possible; any discrepancies in interpretation of the grading criteria.
Examiners are evaluated against each other in their performance during the training and evaluated against the performance of past examiners in order to rank the examiners. The lower ranking examiners are used as supervisory personnel (monitors) to monitor the clinics.
Candidates are informed of the grading criteria prior to the examination through the notice to appear and the applicable laws and rules which are sent by the Office of Examiner Services to all candidates prior to the administration of the examination.
The Petitioner received and was aware of the contents of the notice to appear for the dental examination on December of 1984, specifically that portion indicating that preparation of the wrong tooth would result in failure of the procedure.
Petitioner was verbally given tooth assignments, including tooth assignment for procedures 07 and 08 and Petitioner was aware that tooth assignments were posted on the wall for reference.
Tooth number 4 was assigned for procedure 07 and 08 on the December of 1984 dental examination but Petitioner started
preparation for procedures 07 and 08 on tooth number 13 which was the wrong tooth.
The evidence was insufficient to prove that Petitioner questioned a monitor concerning the procedure to follow when the wrong tooth had been prepared for procedure 07 and 08. However, had he questioned the monitor the monitor would have instructed him to fill-out what is commonly referred to as a "yellow sheet" documenting for the file and the examiner what it was the Petitioner wanted the examiner to know about preparation of the wrong tooth. There was no "yellow sheet" concerning procedure 07 and 08 in Petitioner's file.
One of the monitors for the December of 1984 dental examination, Dr. Smith; who was a monitor for the section where Petitioner was performing procedures 07 and 08, remembered being questioned by an applicant in regard to the procedure to follow when the wrong tooth had been prepared but he was not sure that it was the Petitioner. In any event, his instruction to the applicant was to fill-out the yellow slip. Relief monitors filled in for the regular monitors so it was possible that Dr. Smith was not there for the full time.
Petitioner, upon realizing that he had started on the wrong tooth, completed procedures 07 and 08 on the wrong tooth, tooth number 13, and then completed procedure 07 and 08 on the assigned tooth, tooth number 4.
If the preparation of the wrong tooth had of been on a live patient rather than a model, the healthy tooth structure would have been destroyed or mutilated and needlessly damaged.
Procedure 04, Periodontal Evaluation, is performed on a live patient and it is the responsibility of the applicant to bring an acceptable periodontal patient for this procedure.
Petitioner's patient to be used for the periodontal portion of the June of 1985 dental examination was his mother, Lavonee Perrott.
For the periodontal portion of the June of 1985 dental examination, a minimum of two examiners would have examined the patient and, if there was a disagreement between these two examiners, then a third examiner was called in to examine the patient.
After reviewing the X-rays of the patient's teeth provided by Petitioner and giving the patient a periodontal examination, the first two examiners rejected Petitioner's patient as not meeting the criteria of a patient for the periodontal portion of the June of 1985 dental examination.
Petitioner's patient was examined by Doctor Louis Pesce, a periodontal specialist, on June 12; 1985 several days after her examination for the June of 1985 dental examination.
Doctor Pesce took X-rays of the patient's teeth and gave her a complete regular periodontal examination.
Although X-rays are only an adjunct to diagnosis for periodontal disease, X-rays do reflect obvious subgingival calculus. However; probing is necessary by the examiner to determine if the subgingival calculus is present at the time of the examination. X-rays will not reveal the extent of the pocket depth of teeth.
Doctor Pesce reached his conclusion that the patient met all the criteria for the periodontal portion of the June of 1985 dental examination on the assumption that pocket depths of four to seven millimeters was conclusive evidence of the presence of subgingival calculus and was non-specific as to what level it was present or on which teeth. Doctor Pesce found that on 12 to 14 teeth the patient had: pocket depths of between four to seven millimeters: subpragingival calculus; root roughness, and required tissue management. He also found sufficient osseous destruction.
Doctor Pesce was the only witness to testify who had given the patient a regular periodontal examination but his recollection of the patient's condition was not always clear and his notes were apparently insufficient to refresh his memory such that he could reach a conclusion that the patient met all the criteria for a periodontal patient.
Examiners are standardized to look for obvious subgingival calculus, obvious subgingival calculus being that which can obviously be seen and felt or is obvious on X-ray.
Although a patient may not meet the criteria for the periodontal portion of the dental examination, this does not necessarily indicate that the patient does not need periodontal treatment. The focus of the dental examination is for minimum competency and not the competency of a specialist.
Even though the patient testified that the examiners only probe two teeth, the more credible evidence was Dr. Simpkin's testimony that a patient cannot always tell where that patient is being probed.
Petitioner did not examine the patient prior to the June of 1985 dental examination for the criteria but apparently relied on X-rays taken of patient's teeth by her regular dentist. See Petitioner's Exhibit 1, page 12 lines 23-25 and page 13 lines 1-6.
Had Petitioner's patient been accepted by the examiners, the Petitioner would have had to receive a perfect score of 5 from each of the three examiners in order to receive a passing grade of 3 or better on the June of 1985 dental examination.
Petitioner received the notice to appear for the June of 1985 dental examination and was aware of the criteria for the periodontal patient to be accepted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes.
Petitioner has the burden of proving, by a preponderance of the evidence, that the grades he was given on this examination were erroneous, Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1 DCA Fla. 1977), that he actually passed the examination and that the Respondent arbitrarily and capriciously failed to give him the grades he earned. State ex rel. Glasses v. Pepper 155 So. 2d 383 (1 DCA Fla. 1963). This burden the Petitioner has failed to meet.
Rule 21G-2.13(4)(e), Florida Administrative Code provides in pertinent part as follows:
Equal importance does not-mean that each criteria has a numerical or point value but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the
judgment of the examiner, could result in a failing grade on the procedure. . . .
(Emphasis supplied).
The Petitioner's preparation of the wrong tooth and the weakening of an otherwise strong tooth while taking the December of 1984 dental examination certainly comes within the purview of this rule which allows the examiner the discretion of giving the Petitioner a failing grade, whether it be a zero (O) or something less than a passing grade of three (3). No inconsistent application has been shown.
There was insufficient evidence to prove that the Respondent made any representation to the Petitioner which he relied on to his detriment but assuming arguendo that the representation was made; the Petitioner failed to show how he relied on this representation to his detriment, therefore, estoppel would not apply. Department of Revenue v. Hobbs, 368 So. 2d 367 (1 DCA Fla. 1979).
Petitioner next contends that Respondent improperly rejected his patient for the periodontal portion of the June of 1985 dental examination ultimately resulting in his receiving a grade of zero (O) for that portion of the examination for failure to complete the periodontal procedure. But in order to pass the muster on this contention, there must be a showing by preponderance of evidence that his patient met the criteria for a periodontal patient; set out in the notice to appear for the June of 1985 dental examination. Balino v. Department of Health and Rehabilitative Services, supra. The testimony of Petitioner's witness, a periodontal specialist, fell short of this requirement in view of the assumption he made and the fact that the patient had been rejected by two (2) unbiased, standarized examiners who had reviewed the X-rays of the patient's teeth and had examined the patient's teeth prior to rejecting the patient's teeth as not meeting the criteria expressed in the notice to appear for the June of 1985 dental examination.
RECOMMENDATIOR
Based on the Findings of Fact and Conclusions of Law recited herein; it is RECOMMENDED that the grades awarded to Petitioner on Procedures number 07 and 08 of the clinical portion of the dental examination held in December of 1984 and the grades awarded to Petitioner on Procedure 04 of the clinical
portion of the dental examination held in June of 1985 be upheld.
Respectfully submitted and entered this 6th day of June, 1986, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1986.
COPIES FURNISHED:
Fred yarn Executive Director Board of Dentistry
Department of Professional Regulation
130 North Monroe Street Tallahassee, FL 32301
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, FL 32301
Salvatore A. Carpino General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, FL 32301
Kenneth M. Meer, Esq. Post Office Drawer 30 Winter Park, FL 32790
John Namey, Esq.
22 East Pine Street Orlando, FL
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 2.
Covered in the issues presented and the introduction.
First sentence adopted in Finding of Fact 12 the second sentence is irrelevant and immaterial to the issues to be determined.
Adopted in Finding of Fact 11.
Adopted in Finding of Fact 11.
Rejected as there was insufficient evidence to support this fact.
The first sentence is rejected as there was insufficient evidence to support this fact. The second sentence is adopted in Finding of Fact 2.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 14.
Adopted in Finding of Fact 16 except for last sentence which is rejected as not being supported by substantial competent evidence.
Adopted in Finding of Fact 17.
The first sentence adopted in Finding of Fact 18. The balance of this paragraph adopted in Finding of Fact 19.
Adopted in Finding of Fact 19 as modified with regard to X rays showing sufficient obvious subgingival calculus.
Rejected as not being supported by the testimony of Dr. Pesce. See Finding of Fact 21.
With the exception of Dr. Pesce finding obvious subgingival calculus and stains adopted in Finding of Fact 20.
Rulings on Proposed Findings of Fact Submitted by the Respondent
1. Adopted | in | Finding | of | Fact | 2. |
|
2. Adopted | in | Finding | of | Fact | 8. |
|
3. Adopted | in | Finding | of | Fact | 12. |
|
4. Adopted | in | Finding | of | Fact | 6. |
|
5. Adopted | in | Finding | of | Fact | 7. |
|
6. Adopted | in | Finding | of | Fact | 17. |
|
7. Adopted | in | Finding | of | Fact | 10 as clarified to show | that Dr. |
Smith did remember talking to Petitioner specifically.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 16.
Rejected as hearsay not supported by substantial competent evidence.
Adopted in Finding of Fact 17.
Adopted in Finding of Fact 20.
Adopted in Finding of Fact 22.
Adopted in Finding of Fact 23.
Adopted in Finding of Fact 24.
Docket for Case No: 85-002054
Orders for Case No: 85-002054
| Issue Date |
Document |
Summary |
|
Jun. 06, 1986 |
Recommended Order
|
Petitioner fails to show by a preponderance of evidence that his grades on a dental examination were erroneous and that Petitioner actually passed the examination.
|
