STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN G. BAHRS, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 88-3560

) STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF CHIROPRACTIC EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, on October 3, 1988, a formal hearing was held in this case. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. The location of the hearing was the Doyle Conner Building, Southwest 34th Street, Gainesville, Florida. Charles C. Adams was the Hearing Officer. This Recommended Order is being entered following the review of the transcript of proceedings, together with items of evidence, consideration of a tape cassette of a portion of an examination administered to the Petitioner by the Respondent and with knowledge of certain reference materials provided by the Petitioner. The parties were afforded the opportunity to offer Proposed Recommended Orders at the conclusion of the case. Petitioner has submitted a document which is a combination of argument and recitation of facts. This correspondence has been considered in the preparation of the Recommended Order. Respondent did not submit a Proposed Recommended Order.

APPEARANCES

For Petitioner: John G. Bahrs, D.C.

pro se 2601 Northwest 23rd Boulevard Gainesville, Florida 32605

For Respondent: William A. Leffler, III, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-1550

ISSUES

The issues concern the Petitioner's candidacy for licensure as a chiropractic practitioner in Florida. In particular, Petitioner stood examination for licensure in November, 1987, and was not successful in that attempt. Consequently, he has challenged the examination results in the portion of the examination related to physical diagnosis. His examination results have otherwise been sufficient to gain licensure. The Petitioner's claims in this challenge to the examination results relate to his assertions that the examination questions in dispute were not reasonable, alternatively that the answers given were sufficient and that contrary to Rule 21-11.009(2) and (3),

Florida Administrative Code the examiners in the oral examination phase of his testing conferred in assigning a score to his performance instead of arriving at a score independently.

FINDINGS OF FACT

1. Petitioner, John G. Bahrs, is a graduate of Life Chiropractic College in Atlanta, Georgia, having graduated in June, 1987. He currently resides in Gainesville, Florida, at the address previously identified.

   
   

2. In November, 1987, Petitioner took the Florida license examination to gain a license to practice chiropractic in Florida. The summarizing results of the various phases of that examination may be found in Respondent's exhibit no.

   1 which is a copy of the examination results. It notes the requirement that the candidate receive a score of seventy-five (75) percent to pass the physical diagnosis portion of the examination. The score received by the Petitioner was sixty (60) percent. Having been unsuccessful in attempts to gain an adjustment of that score through an informal process, Petitioner requested a formal hearing in accordance with Section 120.57(1), Florida Statutes. That request was honored by the submission of this case to the Division of Administrative Hearings for assignment of a Hearing Officer and a subsequent hearing which was held on October 3, 1988.

   
   

3. Under the general category of physical diagnosis there are various sub- elements to that examination process. In each of those areas, Petitioner received the minimum passing score of seventy-five (75) percent by the examiners, who are referred to as examiners numbers 23 and 25, with exception of scores related to laboratory diagnosis, nutrition and x-ray technique and diagnosis. The score assigned by examiner number 25 on laboratory diagnosis equates to fifty (SO) percent and the nutrition score likewise. Examiner number

   23 assigned a laboratory diagnosis score of fifty (50) percent and nutrition, twenty-five (25) percent. He also gave the Petitioner a score of fifty (50) percent on x-ray technique and diagnosis. This analysis of the scores received in the sub-elements to the examination may be found in Respondent's exhibit no. 2, a copy of that compilation which has been admitted as evidence in this case. In addition to the break out of the scores, there is a comment section prepared by each of the graders; this, together with an analysis of the written recap of these phases of the examination process and the testimony of the Petitioner and the Respondent's chiropractic expert, focuses the dispute and allows a factual analysis to be made.

   
   

4. The expert who testified for the Respondent Agency is Dr. Steven M. Ordet. He is a graduate of the National College of Chiropractic in Lombard, Illinois. He achieved that degree in 1974. At present, he is a consultant, lecturer and author. He practiced chiropractic in Ft. Lauderdale, Florida, between the years 1974 and 1985. He is a member of the American Chiropractic Association and Florida Chiropractic Association. He has been associated with the 1icensure of candidates in Florida for approximately seven (7) years as an examiner and consultant.

   
   

5. In the subsection of the examination for which Petitioner received substandard scores on nutrition, examiner 23 noted that the Petitioner had received no training in that field. Examiner 25 made notations concerning the Petitioner's lack of understanding of the effects of use of iron and the implications of a vitamins B 6 deficiency.

6. In his oral examination phase on nutrition, one of the questions posed related to a patient who was experiencing swelling in her hands in the morning and problems with her rings being too tight and burning in the soles of her feet. Petitioner was asked if there was some supplementation that might be provided to that patient that would assist the patient in her condition. In response, the Petitioner indicated that he had not had the type of training in his education that would lead to any specific clinical decision and that this, nutrition, was not one of his strong points. Petitioner made the suggestion by way of a query that this might sound like an edema problem to which the retort by an examiner was to the effect that you tell the examiners what you think should be done, meaning by supplementation. At hearing, the Petitioner indicated that his training in school in nutrition had related to what the food groups consist of, what vitamins are about, what minerals are and carbohydrates, proteins, again, basic information not sufficient to respond to some particular condition that a patient was experiencing.

   
   

7. As identified by Dr. Ordet, the supplement for the problem described in the previous paragraph is pyridoxine, vitamin B 6, which is a natural diuretic that would help to reduce edema. The Petitioner did not respond sufficiently to the question under examination. Furthermore, his references provided at hearing on the topic of pyridoxine do not disturb the opinion of Dr. Ordet.

   
   

8. Another question under the category of nutrition was to the effect that this patient, the hypothetical patient, a woman, takes vitamins and minerals regularly and is experiencing constipation and the Petitioner was asked what would cause this problem of those substances being utilized. Petitioner responded from a supplementation standpoint that he couldn't answer specifically but knows that generally you can overload a patient with supplements and can cause diarrhea or constipation. The proper answer as identified by Dr. Ordet would be that iron could cause the problem of constipation. Iron is a mineral. This is another instance in which the reference sources that the Petitioner presented did not dispel the conclusions reached by Dr. Ordet.

   
   

9. Under the heading of x-ray technique and diagnosis, the examiners asked the Petitioner about the x-ray of a lower back involvement. He described an anterior to posterior examination in which a bucky was employed in a lateral cervical setting. He went on to describe that a non-bucky was used in x-ray of extremities measuring less than ten (10) centimeters. A further question concerned whether you would use more or less exposure going from 8 to 1 to 12 to

   1 ratios and employing a bucky, to which the Petitioner indicated you would use less exposure. It is that portion of the questions which related to the ratio being increased and the belief expressed by the Petitioner that would cause less exposure that made examiner 23 grade the Petitioner down to a fifty (50) percent rating. Dr. Ordet, whose opinion is accepted on this matter, felt that the cervical view was a non-bucky projection, which contrary to the Petitioner's assertion is a matter which should be evident as a standard applied to all training in x-ray techniques. Therefore, Petitioner's claim that his schooling would allow the bucky to be employed in this form of projection is out of keeping with acceptable standards. Moreover, Dr. Ordet pointed out that the ratio increase would promote further exposure to the patient, not less exposure as answered by the Petitioner causing him to be downgraded by examiner 23. Petitioner's contention that the questions that preceded the matter of the increase in ratio were related to film exposure and not patient exposure misstates the context of those questions in this portion of the examination. It is clear that what was being referred to was the effect on the patient, not the effect on the film. The reference material which Petitioner has provided tends

   to confirm that the increase in ratio will increase the amount of exposure to the patient.

   
   

10. Under the heading of laboratory diagnosis, the question was posed to the Petitioner that a female patient presents with tenderness above the pubic bone with difficulty urinating, burning sensation and pain, and he was asked to provide a statement of what laboratory tests would be ordered by the Petitioner and what would one look for through that analyses. The Petitioner responded that there is an indicated bladder infection and stated he would do an urinalysis. He was then asked what he might expect to see under that analysis and he said that he would expect to see cells, red blood cells and increased white blood cells and infection. He was asked what kind of white blood cells he would find in the urine and he said that he would see neutrophils in a microscopic examination. He again mentioned red blood cells and squamous epithelial cells in the bladder infection. In describing what he might see up in the area of the kidney, he said that he would see renal cells which are smaller and rounder compared to the epithelial cells in the area of the bladder which are larger and irregular in shape. As to a question about what he would expect to see in the way of a Ph in this case as presented compared to the normal condition, he said that he expected to see acidic values in that patient compared to the normal values which were in a range of 4.6 to 6.8 Ph. Then he stated between 4 and 6 Ph. According to Petitioner the Ph in the patient's condition would be a shift toward 4 and closer to 4 than the other end of the Ph scale. Examiner 25 had :noted that the Petitioner had insufficient knowledge of the situation in the test and Examiner 23 referenced the remarks about acidic Ph and the round kidney cells.

    
    

11. By way of interpretation of the concerns which the examiners had In the area of laboratory diagnosis Dr. Ordet, whose opinion is accepted, noted that white cells in the urine any level show an abnormal condition. It is not the increase in those white cells that is significant. He also observed that the white cells would not be identified as neutrophils. The laboratory process, urinalysis, does not further describe the nature of the cells or than that they are white cells. Dr. Ordet identified that the nature of the cells in the kidney area were those associated with casts. Their relative size and shape are not the important factors. Consequently, the remarks by the Petitioner about size and shape of the cells in the bladder and the kidney are not significant. What is significant is to look for bonding between some foreign material and the cell forming casts in the kidney. One of the products in a cast might be calcium oxalate. Dr. Ordet noted that the Ph in the urine with the infection in this patient's case would be more alkaline, as opposed to acidic. Petitioner's reference sources concerning the urinary condition do not overturn the impressions which Dr. Ordet had of this condition in the hypothetical.

    
    

12. Dr. Ordet has stated the opinion that the questions which were challenged were fair questions in examining a candidate for licensure as a chiropractic physician. His opinion is accepted and the opinion of the Petitioner that the questions were not fair is rejected.

    
    

13. Petitioner, at hearing, suggested that the tape cassette of his examination which is exhibit 3 by the Respondent pointed out that contrary to Rule 21-11.009 (2) and (3), Florida Administrative Code, examiners 2 and 25 conferred in reaching conclusions about scores to be assigned to Petitioner's examination. A thorough review of that cassette does not reveal any arrangements of that sort. Their remarks indicate that the examiners were checking to see what sub-categories were involved in the examination as depicted

    in Respondent's exhibit number 2, and to verify that each examiner acknowledged what those sub-categories were.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes, and Chapters 455 and 462, Florida Statutes.

    
    

15. The Petitioner has the burden of proving by a preponderance of evidence that the score he should have received in the physical diagnosis portion of the examination of November, 1987, for chiropractic licensure was a passing grade. See Balino v. Department of Health and Rehabilitative Services,

    348 So.2d 349 (Fla. 1st D.C.A. 1977). He has failed in that attempt. His answers to questions which were the subject of his substandard scores received by the assessments made by examiners 23 and 25 were not shown to be correct. Nor was it demonstrated that the questions were unreasonable. A candidate should have been able to answer the questions that have been referenced in this Recommended Order and the Petitioner was unsuccessful in that endeavor.

    
    

16. In a related matter, the Petitioner, through his argument, has spoken to some claimed delay in the transmittal of this case to the Division of Administrative Hearings for formal hearing. No proof of that claim was offered at the final hearing. To the extent that this may have occurred there has been no showing of any deprivation of fundamental fairness to the Petitioner in asserting his clams.

    
    

17. On the topic of any claimed irregularity in the grading process by conferring between themselves as examiners, pertaining to Examiners 23 and 25, in reaching a score to be assigned for the various subcategories in the examination instrument, no proof was made of such an arrangement. The conferencing dealt with a check to see that there was some concurrence in which sub- categories were involved in the examination.

    
    

18. Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which denies the Petitioner a license to practice chiropractic in Florida based upon results achieved in his examination in November, 1987.

DONE AND ENTERED this 6th day of December, 1988, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS,

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1988.

COPIES FURNISHED:

Bruce Lamb, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Dorothy Faircloth Executive Director

Board of Chiropractic Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William A. Leffler, III, Esquire Florida Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-1550

John G. Bahrs, D. C.

2601 Northwest 23rd Boulevard Gainesville, Florida 32605

Docket for Case No: 88-003560

Orders for Case No: 88-003560