STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM J. NAMEN, II, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2355

)

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY,)

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designed by the Division of Administrative Hearings, in Miami, Florida, on June 20, 1991.

APPEARANCES

For Petitioner: Dr. William J. Namen, II, pro se

2473 Catellon Drive

Jacksonville, Florida 32217

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue is whether Dr. Namen is entitled to a re-grading of the score which he received on the written clinical portion of the podiatry examination given in Orlando in July 1990.

PRELIMINARY STATEMENT

At the final hearing the Department presented the testimony of Dr. Warren Simmonds, and one exhibit, a portion of a textbook on Rheumatology authored by William N. Kelley, M.D. The Department also submitted copies of examination questions 47 and 145. Dr. Namen testified in his own behalf, but submitted no exhibits at the hearing.

After the close of the testimony, the Department supplemented the record with a letter from Dr. Charles Southerland, an associate professor of podiatric orthopedics at the Barry University School of Podiatric Medicine dated June 27, 1991. Dr. Namen submitted a letter from J. K. David, M.D., a clinical professor of pediatrics at the University of Florida dated June 26, 1991; a letter from Ana M. Padron, M.D., a board certified anesthesiologist in private practice,

dated June 26, 1991; and a letter from another board certified anesthesiologist in private practice, Raul R. Orta, M.D. Thereafter, on July 26, 1991, the Department filed a written stipulation expressing the agreement of the parties that all documents submitted by the parties since the close of testimony be admitted into evidence; the parties further stipulated to the admission into evidence of a research article published in the March 1981 edition of the Journal of Anesthesiology (Volume 54, No. 3) by Rudolph deJong, M.D., and a research assistant, John Bonin, entitled "Mixtures Of Local Anesthetics Are No More Toxic Than The Parent Drugs" and a copy of statistical data prepared by the Department of Professional Regulation, Bureau of Examination Services, concerning the grades all candidates received on examination question #47.

Based upon the written stipulation, all the documents have been received in evidence and considered by the Hearing Officer. An order closing the evidentiary hearing was entered on August 5, 1991, and the parties were permitted to file proposed findings of fact and conclusions of law based on the entire record, which the Department filed on August 28, 1991.

FINDINGS OF FACT

1. Dr. Namen is a candidate for licensure as a podiatrist and sat for the clinical portion of the podiatry examination administered in Orlando in July 1990. At the time of the final hearing, Dr. Namen challenged the Department's grading of his answers to questions 3, 47, 118, and 145.

   
   

2. At the final hearing, the expert for the Department, Dr. Warren Simmonds, agreed with Dr. Namen that the challenges to the grading of questions

   3 and 118 had merit. Dr. Namen's score was increased so that Dr. Namen would be entitled to a passing score if the answers he gave to either of the two remaining questions under challenge, questions 47 and 145, were correct.

   
   

3. Question 145 is based on case history #50, concerning a patient with a painful left ankle. Although the case history does not state directly that the joint is inflamed, it does state that "the joint is slightly warm" which is an indication of the presence of inflammation, which is confirmed by the patient's report of pain in the joint. Question 145 asked which of a number of possible treatments was the "least indicated (emphasis in original)." Dr. Simmonds testified that the answer chosen by the Board, "systemic adrenal corticosteroid therapy," was the least indicated treatment because of the side effects of steroids. Dr. Simmonds believes that steroids should not be used unless there is some acute inflammatory reaction which needs to be controlled. The best treatment, or the treatment of choice, is a non-steroidal anti-inflammatory drug. Dr. Namen contends Tylanol is the least indicated treatment because all available choices other than Tylanol were anti-inflammatory drugs, and the case history provides an indication of inflammation. Tylanol relives pain but has no anti-inflammatory effect, and is therefore the least appropriate treatment. The question stem is somewhat unusual because it asks the candidate for the "least indicated" treatment. Since Tylanol has no anti-inflammatory effect at all, Dr. Namen's testimony was persuasive that the "least indicated" treatment was Tylanol. Among the remaining choices, systemic adrenal corticosteroid therapy is the least appropriate among that group, but all answers within that group are better answers than administration of Tylanol.

   
   

4. Question 47 is based on case history 19 concerning the appropriate dose of anesthetics to be used in a procedure for the removal of toe nails on a 58- year-old, Caucasian male weighing 150 pounds. The case history states that a certain combination of two anesthetics was used, bupivicaine and lidocaine. The question asks "how close to toxic dose would use of the entire amount bring the

   patient." The Department's answer was that the stated dose would be within 96 percent of a toxic dose; Dr. Namen believed that the use of the anesthetics in the amounts stated would bring the patient only within 66 percent of a toxic dose. The crux of the question is whether the toxicities for the two anesthetics interact in such a way that their toxicities must be added, or whether the correct answer involves only the calculation of the toxicity of the drug with the higher level of toxicity. On balance, the Department's answer is the most persuasive. The article in the Journal of Anesthesiology written by deJong and Bonin concludes, based upon their research which is described in the article, that local anesthetic toxicity for lidocaine and bupivicaine are essentially additive. The letter from Dr. Orta only states that the administration of both the lidocaine and bupivicaine at the doses described in the question are "well below toxic level." This observation does not answer the question posed, which is just how far below the toxic level use of the mixture stated would bring the patient. The letter from Dr. Padron, also a board certified anesthesiologist offered by Dr. Namen, says that "studies on compounding local anesthetics were done in animals and it was found that the toxicity was synergistic rather than additive," but no study was offered in evidence. The study in the Journal of Anesthesiology the Department offered into evidence is to the contrary. The evidence based on actual research is more persuasive. Dr. David's letter only reports in a hearsay fashion the opinion of an unidentified pharmacologist, and is entitled to little weight.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991). An applicant for licensure by the Board of Podiatric Medicine must successfully complete an examination. Section 461.006(2)(a), Florida Statutes (1989).

   
   

6. As the Department recognizes, it was Dr. Namen's burden to prove by a preponderance of evidence that his examination answers merited more points than he received. Rule 28-6.008(3), Florida Administrative Code. 1/ The Department accepted the challenges which Dr. Namen had raised to the grading of his answers to questions 3 and 118. These concessions indicate that the examination questions are not as tightly framed as they might be. Based on the evidence, the grading of Dr. Namen's answer to question 47 was correct. The Board's answer for question 145, on the other hand, was erroneous. The question is framed in a somewhat confusing way by asking for the treatment which is "least indicated." Dr. Namen's testimony about the correctness of his answer, which identified the only treatment which would not be effective on inflammation, was persuasive. As a result, the grade for Dr. Namen should be increased, which would raise his grade above the necessary passing score of 72 percent.

RECOMMENDATION

It is therefore,

RECOMMENDED that a final order be entered by the Department of Professional Regulation raising Dr. Namen's score, and designating him as having successfully completed the examination in clinical podiatry.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April 1992.

ENDNOTES

1/ The decisions the Department relies upon, State v. J.M. Pepper, 155 So.2d

383 (Fla. 1st DCA 1963) and Topp v. Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958), predate the 1974 APA and embody a restrictive standard of review which is appropriate when courts review agency final orders. These decisions do not set the review standard for recommendations from the Division of Administrative Hearings to licensing agencies, however. These hearings involve de novo review of intended licensure actions.

APPENDIX TO RECOMMENDED ORDER

The Respondent's proposed findings of fact are addressed as follows:

1. Adopted in Finding 1.

2. Adopted in Finding 1.

3. Adopted as amended in Finding 2.

4. Rejected as the less persuasive evidence, see Finding 3.

5. Accepted, see Finding 4.

The Respondent's supplemental findings of fact are addressed as follows:

1. Adopted in Finding 4.

2. Rejected as unnecessary.

Dr. Namen submitted a letter of August 28, 1991. The structure of the letter does not permit rulings in the same manner as the rulings made on proposed findings filed by the Department. The letter submitted by Dr. Namen, however, has been considered in the preparation of the Recommended Order. A substantial part of the contents of the letter would be new evidence and those portions have not been considered.

COPIES FURNISHED:

Mr. William J. Namen, II 2473 Catellon Drive

Jacksonville, Florida 32217

Vytas J. Urba, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Diane Orcutt Executive Director

Board of Podiatric Medicine Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 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: 91-002355

Orders for Case No: 91-002355