STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL L. SHEEHY, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 91-2118

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

PODIATRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on July 11, 1991 in Tampa, Florida.

APPEARANCES

For Petitioner: Hewitt E. Smith, Esquire

P.O. Box 76081

Tampa, Florida 33675

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Was Petitioner properly graded and given appropriate credit for his answers on the July, 1990 Florida Podiatric Medicine Licensure Examination (Florida Podiatry Examination).

PRELIMINARY STATEMENT

By letter dated March 20, 1991, the Petitioner, Paul L. Sheehy, Jr., through his attorney, requested a formal hearing to contest the denial of credit for his answers to numerous questions on both the written Clinical I and Clinical II portions of the July, 1990 Florida Podiatry Examination. On April 2, 1991, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer, and on April 24, 1991, after Initial Order and response thereto by Respondent only, the undersigned set the matter for hearing in Tampa, Florida on July 11, 1991, at which time the hearing was held as scheduled.

At the hearing, Petitioner testified in his own behalf but presented no other witness. Petitioner's exhibits 1 through 5 were received into evidence.

Respondent presented the testimony of Dr. James R. Black. Respondent's exhibits

1 and 2 were received into evidence. Although the transcript refers to Joint Exhibits 3, 4, and 5, there are no Joint Exhibits 3, 4, and 5. Apparently, Joint Exhibits 3, 4, and 5 are Petitioner's Exhibits 3, 4, and 5. As agreed by the parties, certified copies of Joint Exhibits 1 and 2 were late filed by the Respondent which replaced the non-certified copies of Joint Exhibit 1 and 2 received during the hearing. As agreed by the parties, Petitioner was to late file Petitioner's exhibits 2, 3, 4 and 5 by July 21, 1991 with an extension time until August 21, 1991. However, the Petitioner did not file Petitioner's exhibits 2, 3, 4 and 5 until he submitted a Proposed Recommended Order on September 9, 1991. As agreed by the parties, Page 952 of Respondent's exhibit 2 was late filed within the extended time period.

A transcript was filed with the Division of Administrative Hearings on July 31, 1991. By order dated August 8, 1991, the time for filing the Proposed Recommended Orders was extended to September 5, 1991. The Respondent timely filed its Proposed Recommended Order within the extended time frame but Petitioner did not file his Proposed Recommended Order until September 9, 1991. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times pertinent to the issues herein, Petitioner, Paul L. Sheehy, Jr., candidate No. 20017, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state.

   
   

2. Petitioner sat for the July, 1990 Florida Podiatry Examination on July 27, 1991. Petitioner obtained a score of 70.0 percent, representing 210 correct answers. A passing grade requires a score of 72 percent, representing 216 correct answers. Shortly before the beginning of the hearing, Respondent agreed to give Petitioner credit for questions 16 and 180 of Clinical I of the examination thereby raising his total score to 70.666 percent.

   
   

3. At the beginning of the hearing, Petitioner withdrew his challenge to questions 22, 37, 87, 89, 104, 149, 176 and 178 of Clinical I of the examination and questions 3, 16, 22, 50, 67 and 53 of Clinical II of the examination.

   During the hearing Petitioner withdrew his challenge to question 27 of Clinical I and question 12 of Clinical II of the examination, leaving only his challenge to questions 103, 114, 138, 144 of Clinical I of the examination.

   
   

4. The parties stipulated that the Petitioner was qualified and met all the requirements to sit for the July, 1990 Florida Podiatry Examination, and that Petitioner timely received a copy of the July 1990, Podiatric Medicine Licensure Examination Candidate Information Booklet (booklet).

   
   

5. There is a lack of competent substantial evidence in the record to establish that the Florida Podiatry Examination given on July 27, 1990 was misleading in that it tested subjects or disciplines not covered or contained in the booklet, or that it was prejudicial as applied to Petitioner.

6. The first question at issue is question 103 of Clinical I which stated:

   
   

   CASE HISTORY 44

   In the exhibit book are photographs for this examination. Identify the photograph in the respective exhibit.

   
   

   103. Which of the following answer choices is the best description of exhibit #11?

   
   

   1. Ganglion Cyst

   2. Verruca

   3. Melanoma

   4. Kaposi's Sarcoma

   
   

   Petitioner answered, C, Melanoma and the Respondent's answer was, B, Verruca. Petitioner admitted that his answer was incorrect. However, Petitioner contends that the question comes within the area of histology, an area not specifically mentioned in the booklet to be covered by the examination. Therefore, he was mislead by the booklet into not studying the area of histology. While the booklet does not specifically mention histology as an area of study to be covered in the examination, there were several other areas of study listed in the booklet which conceivably would have covered this question. Therefore, there has been no showing that the Respondent's failure to specifically list histology as an area of study mislead or prejudiced the Petitioner.

7. The second question at issue is question 114 which stated: CASE HISTORY 45

   An elderly obese male presents with an

   acutely inflamed first metatarsophalangeal joint. The pain began late last night and he awoke in severe pain.

   
   

   His past medical history reveals two previous such occurrences which resolved and went un- treated. He reports a history of chronic renal disease and mild hypertension. He presently takes no medication and has no known allergies. He denies use of alcohol and tobacco. Physical exam reveals an acutely inflamed, edematous 1st MPJ. A 3mm ulceration is present dorsally with white, chalky material exiting the wound.

   
   

   Laboratory studies reveal a CBC within normal limits and an elevated uric acid of 9.0mg/100ml.

   
   

   114. Which of the following would you expect to find on microscopy of the synovial fluid?

   
   

   1. trapezoidal-shaped violet crystals

   2. absence of leukocytes

   3. needle-like birefringent crystals

   4. reflective hexagonal crystals and many leukocytes

   Petitioner answered D, reflective hexagonal crystals and many leukocytes. The Respondent's answer was C, needle-like birefringent crystals. Petitioner contends that none of the answers offered were entirely correct but that answer D was the most correct, while answer C was incorrect. Case History 45 would describe gout and pseudogout, but the key is the description of the fluid removed from the joint which is a white, chalky material found only with gout. Additionally, gout produces needle-like crystals (urate) that are negatively birefringent when view under crossed polarizing filters attached to a microscope. Leukocytes would be present in this case history but it would not produce reflective hexagonal crystals or trapezoidal-shaped violet crystals.

   Answers A and B are entirely incorrect, and although the presence of leukocytes is correct, it is not relevant because leukocytes are a normally found in any infection. Therefore, answer C is the correct answer, notwithstanding the absence of the word negative proceeding the word birefringent.

8. The third question at issue is question 138 which stated: CASE HISTORY 49

   A 27 year old athletic individual presents

   with a severely painful and swollen right ankle following a basketball injury the day before. There is severe ecchymosis and blister formation about the ankle. X-rays reveal (1) a displaced oblique spiral fracture of the lateral malleolus which runs

   anterior-inferior to posterior-superior at the level of the syndesmosis (2) transverse fracture of medical malleolus. There is gross dislocation and mal position of the talus.

   
   

   138. If the initial treatment above were to fail, then treatment should consist of:

   
   

   1. immediate open reduction.

   2. wait 4-6 days, then perform open reduction and internal fixation.

   3. open reduction contraindicated at any time with this type of fracture.

   4. fusion of ankle joint.

   
   

   Petitioner answered A, immediate open reduction and the Respondent's answer was B, wait 4-6 days, then perform open reduction and internal fixation. The correct initial treatment for the patient would have been attempted close reduction as indicated by the correct answer to question 137 which Petitioner answered correctly. An attempted close reduction is an attempt to correctly align the fractured bone by manipulation as opposed to surgically opening the area and aligning the bone visually by touch which is the open reduction and internal fixation procedure. After an attempted alignment of the bone, an x-ray will determine if there is proper alignment. If there is proper alignment, then the area is immobilized with a cast or some other device until the fracture heals. If the x-ray shows that proper alignment of the bone has not been obtained (the initial treatment has failed) then open reduction and internal fixation would be proper provided the swelling, ecchymosis and blistering are not present. Otherwise, as in this case, the proper method would be to wait a period of time, 4-6 days, for the swelling, ecchymosis and blistering to go away. Petitioner's contention that the swelling had gone down since there had been immobilization of the area with a cast, posterior splint or unna boot and a

   waiting period is without merit since those devices would not have been used before determining by x-rays that the initial treatment (closed reduction) had failed.

9. The fourth and last question at issue in question 144 which stated: CASE HISTORY 50

   A patient presents with a painful left ankle.

   The pain occurs following ambulation and is relieved by rest. There is minimal periartic- ular atrophy and the joint is slightly warm.

   X-rays reveal non-uniform joint narrowing, subchondral sclerosis and marginal osteophytes.

   
   

   144. It can be expected that

   
   

   1. the patient will favorably respond to treatment but may experience flareups.

   2. significant cartilage damage will occur.

   3. total joint replacement will be required.

   4. total remission can be expected following treatment.

   
   

   Petitioner answered B, significant cartilage damage will occur and Respondent's answer was A, that the patient will favorably respond to treatment but may experience flareups. There were a series of questions preceding this question concerning the patient in Case History 50. The first question asked for a diagnosis which the Petitioner correctly answered as osteoarthritis. The second question concerned advising the patient on treatment which the Petitioner answered correctly by giving instructions on protecting the joint and taking simple analgesics. The third question concerned activity levels such as jogging and climbing steps which Petitioner answered correctly by advising to avoid squatting. However, in selecting B as the answer to question 144 the Petitioner did not consider the suggested treatment and advise given in the previous answers. His reasoning was that he could not assume that the patient would follow his suggested treatment or advise on prevention and activity.

   Additionally, the Petitioner felt that other factors such as the patient's age, weight, general health, level of activity and occupation that were missing from the case history were necessary to make a proper evaluation of whether the patient would respond favorably to treatment. Respondent admitted that either answer A or B would be correct but he picked B because he knew the disease was progressive and in time would get worse causing significant cartilage damage.

   
   

10. Osteoarthritis is a degenerative joint disease that is not uniformly progressive that responds to treatment but cannot be cured. There will be recurring episodes of pain (flareups) triggered by factors such as the weather or a person's activity. Based on the factors in the above case history, there is sufficient evidence to show that the patient will favorably respond to treatment but may experience flareups. It was reasonable and logical for the Respondent to assume that the Petitioner in answering question 14 would consider his preceding answers and assume that the patient would follow the suggested treatment and advice.

    
    

11. There is a lack of competent substantial evidence in the record to establish that significant cartilage damage would occur based on the facts given in Case History 50.

12. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1990 Florida Podiatry Examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 461.006, Florida Statutes, authorizes the Respondent to administer examinations to applicants for licensure in podiatric medicine, and requires successful completion of said examination prior to licensure in the State of Florida. Since this is a case in which Petitioner is seeking to obtain licensure in podiatry, the Petitioner has the burden of establishing his entitlement to that licensure by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Rule 28-6.008(3), Florida Administrative Code. The evidence clearly establishes that the Petitioner has failed to meet this burden.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grade he received on the July 1990, Florida Podiatry Examination.

RECOMMENDED this 18th day of September, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2118

The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Adopted in substance in Findings of Fact 1 and 4.

2. Adopted in substance in Finding of Fact 4.

3. Rejected as not supported by competent substantial evidence in the record.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in substance in Findings of Fact 1 and 2.

2. Adopted in substance in Finding of Fact 2.

3. Adopted in substance in Finding of Fact 3.

4.-6. Adopted in substance in Findings of Fact 6, 7, and 8, respectively.

7. Adopted in substance in Findings of Fact 9 and 10.

COPIES FURNISHED:

Hewitt E. Smith, Esquire

P.O. Box 76081 Tampa, FL 33675

Vytas J. Urba, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Patricia Guilford, Executive Director Board of Podiatry

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-002118

Orders for Case No: 91-002118