STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDMUND J. McGRATH, D.P.M., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2645

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF PODIATRIC MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 3, 1993, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edmund J. McGrath, D.P.M.

1660 Gulf Boulevard, Apartment 601

Clearwater, Florida 34630

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner passed the October 2, 1992, podiatric medicine written examination administered by the Department of Business and Professional Regulation, Board of Podiatric Medicine.

PRELIMINARY STATEMENT

The Petitioner received a grade of 72 percent on the written portion of the October 2, 1992, podiatric medicine examination. Since 75 percent was passing, the Petitioner was notified that he failed the exam.

On an examination review, the Petitioner challenged 27 questions on the exam and was given credit for 4 of them, raising his grade to 74 percent. He was still three exam questions short of a passing grade.

On or about April 26, 1993, the Petitioner filed a request for formal administrative proceedings. The matter was referred to the Division of Administrative Hearings on May 12, 1993. On June 23, 1993, a Notice of Hearing was issued scheduling the matter for final hearing on August 3, 1993.

At the final hearing, the Petitioner initially gave ore tenus notice that he had narrowed his exam challenge to seven questions. However, it developed that he already had received credit for two of them during the exam review challenge, reducing the number of questions that were the subject of the final hearing to five.

The Petitioner called an expert witness and also testified in his own behalf. The Respondent also called an expert witness. Petitioner's Exhibits 1 through 16 and Respondent's Exhibits 1 through 6 were admitted in evidence.

The Respondent ordered the preparation of transcript of the final hearing. The transcript was filed on September 9, giving the parties until September 20, 1993, in which to file proposed recommended orders. Only the Department filed a proposed recommended order, and explicit rulings on the proposed findings of fact it contains may be found in the attached Appendix to Recommended Order, Case No. 93-2645.

Due to the Department's desire to preserve the integrity of the examination, and the confidentiality of examination questions not invalidated as a result of this proceeding, the Findings of Fact are written, to the extent possible, so as not to disclose the exam questions and answers.

FINDINGS OF FACT

1. After an examination review challenge, the Petitioner was given a score of 74 percent on the written portion of the October 2, 1992, podiatric medicine examination. (He passed the other portions of the exam.) Since the written portion was a 300-question exam, the Petitioner is just three questions short of a passing grade.

   
   

   First Challenge

   
   

2. On the first question challenged (Petitioner's Exhibit 1), the Petitioner's answer clearly was incorrect. But the Petitioner contends that none of the other answers were correct, either.

   
   

3. The Petitioner's expert conceded that the answer for which credit was given is "technically correct," assuming that the drug in question is administered orally. But he contended that the answer for which credit was given would be incorrect if the drug were administered intravenously.

   
   

4. The Department's expert disputed that the answer for which credit was given would be incorrect if the drug were administered intravenously. Moreover, the drug is not available for intravenous administration in the United States. Given those circumstances, it is found that the answer for which credit was given is a correct answer.

5. Seventy of the examinees (58.8 percent) chose the answer for which credit was given. An even higher percentage (79.2 percent) of examinees who scored above the median grade on the exam chose that answer. Only 29 (24.4 percent) chose the Petitioner's answer. Only 13.4 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question.

   
   

6. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.

   
   

   Second Challenge

   
   

7. On the second question challenged (Petitioner's Exhibit 2), credit was given for the answer "intermittent claudication in the limb." The Petitioner answered, "paroxymal pain in the limb."

   
   

8. The Petitioner argues that the answer for which credit was given was incorrect because, while the question asked for a "finding," the answer for which credit was given was a "diagnosis."

   
   

9. Intermittent claudication in the limb means cramping and pain in the limb after exercise. Paroxymal pain in the limb means pain in the limb that comes and goes.

   
   

10. The Petitioner seems to argue essentially that a "finding" must be something that the patient would report to the physician or that the physician would observe on examination. Certainly, it is improbable that a patient would complain to a physician, "I am suffering from intermittent claudication." But it is no more likely that a patient would complain to a physician, "I am suffering from paroxymal pain in the limb." On the other hand, while it would not be surprising for a patient to report, "my leg has this pain that comes and goes," it would be no more surprising for a patient to report, "my leg has been cramping after exercise."

    
    

11. It is found that both "paroxymal pain in the limb" and "intermittent claudication" can be termed "findings" and that the Petitioner's answer was wrong.

    
    

12. 107 of the examinees (89.9 percent) chose the answer for which credit was given. An even higher percentage (95 percent) of examinees who scored above the median grade on the exam, chose that answer. Only six (5 percent) chose the Petitioner's answer. An even smaller percentage (3.4 percent) of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question.

    
    

13. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.

    
    

    Third Challenge

    
    

14. The third question challenged (Petitioner's Exhibit 3) was the last of a series of four questions based on a hypothetical case history. In the case history, the patient presented, had an office visit, had surgery and returned to the office three days later with another complaint.

15. The crux of the Petitioner's argument on this question is that the question is ambiguous in giving as a time reference the time when treatment was initiated. The answer for which credit was given presumes that the treatment in question was the treatment initiated upon the patient's return to the office after surgery. The Petitioner answered the question as if the treatment in question was the surgical treatment.

    
    

16. On its face the Petitioner's argument has some appeal. But it fails to address the logical sequence of the series of four questions that followed the case history. Bearing the sequence in mind, it was not logical or reasonable for an examinee to presume that the last question was intended to return the examinee to the very beginning of the case history.

    
    

17. 78 of the examinees (65.5 percent) chose the answer for which credit was given. A significantly higher percentage (80.5 percent) of examinees who scored above the median grade on the exam, chose that answer. Even more telling, only 5.9 percent of all examinees chose the Petitioner's answer, and only 1.7 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question.

    
    

18. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.

    
    

    Fourth Challenge

    
    

19. The fourth question challenged (Petitioner's Exhibit 4) asked the examinees to describe, by their choice of answers, the direction of blood flow in the veins of the lower extremities. The Petitioner's answer described flow from the "perforating veins to the deep veins." The answer for which credit was given described flow from the "superficial veins to the deep veins."

    
    

20. The Petitioner argues that his answer was correct, and that the answer for which credit was given is incorrect because blood flows directly from the perforating veins to the deep veins. But the Petitioner's answer does not account for the fact that, within the veins of the lower extremities, blood first flows within the superficial veins towards and into the perforating veins, only then flowing directly from the perforating veins to the deep veins. The direction of blood flow in the veins of the lower extremity, taken as a whole, is most accurately described in the answer for which credit was given.

    
    

21. 67 of the examinees (56.3 percent) chose the answer for which credit was given. A higher percentage (61.8 percent) of examinees who scored above the median grade on the exam, chose that answer. 24.4 percent chose the Petitioner's answer. 25.8 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results are not particularly helpful in affirmatively validating the Petitioner's score on this question, but neither do they invalidate his score or the question.

    
    

22. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.

    Fifth Challenge

    
    

23. The fifth question challenged (Petitioner's Exhibit 5) was the last of a series of three questions based on a hypothetical case history. But, in this case, the question did not depend on the case history. It simply called for the "minumum [sic] toxic dose" of a drug, in ccs. In support of his answer, the Petitioner cited documentation stating in part that the drug "has a maximum dosage of 350 mgms," which translates to 20 ccs. But the question asked for the minimum toxic dosage. The minimum toxic dosage was closer to 15, the answer for which credit was given.

    
    

24. Initially, the Petitioner's answer erroneously was keyed in as the correct answer to this question. On review of the distribution of the answers given by the examinees, the question was "flagged" because only 20.2 percent of the examinees gave the Petitioner's answer, and even fewer of the examinees (11.1 percent) who scored above the median grade on the exam gave it. Later it was discovered that a wrong answer, namely the Petitioner's, had been keyed in as the correct answer on the answer key. The question was re-scored, using the corrected answer key. 69.7 percent chose the answer for which credit ultimately was given, and an even higher percentage (83.9 percent) of the examinees who scored above the median grade on the exam chose that answer. These results validate the Petitioner's ultimate score on this question.

    
    

25. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded.

    
    

    Sixth Challenge

    
    

26. On the sixth question challenged (Petitioner's Exhibit 7), the Petitioner questioned whether the answer for which credit was given produces what is described in the question, as the question asks, or whether it is a diagnosis, or description, of the condition characterized by what is described in the question. In addition, the authorities, and the expert witnesses, were in conflict as to whether, in the case of the answer for which credit was given, the fibrous thickening described in the question occurs in the intima of the veins, as the question states, or in the media of the veins. (On the other hand, there also was a conflict among the authorities and the experts as to whether the Petitioner's answer produces all of the indications listed in the question.)

    
    

27. Only 46.2 percent of the examinees chose the answer for which credit was given. Not much more (50.6 percent) of the examinees who scored above the median grade on the exam chose that answer. 29.4 percent chose the Petitioner's answer, and 41.8 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. While these results may not in themselves invalidate the Petitioner's score on this question, they seem to be consistent with the conflict in the authorities.

    
    

28. The Petitioner may have proved at least that this question should have been discarded. But it is not necessary to reach a specific finding whether the Petitioner proved either that the answer he chose was correct, that he should have been given credit for his answer, or that the question should have been discarded. In light of the previous findings, even with credit for this question, the Petitioner would not have enough additional points to pass the exam.

    CONCLUSIONS OF LAW

    
    

29. Section 461.006, Fla. Stat. (1991), requires applicants for a license to practice podiatric medicine to take and pass a written examination administered and graded by the Department of Business and Professional Regulation.

    
    

30. Section 455.217, Fla. Stat. (Supp. 1992), requires that the examination "adequately and reliably measure an applicant's ability to practice the profession regulated "

    
    

31. The applicant has the burden to prove that he was entitled to a passing grade on the exam. In this case, the Petitioner did not meet his burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Business and Professional Regulation, Board of Podiatric Medicine, enter a final order denying the Petitioner's exam challenge. However, it also is recommended that the Department reconsider the use of the sixth question challenged (Petitioner's Exhibit 7) on future examinations.

RECOMMENDED this 22nd day of September, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 22nd day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2645

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Petitioner not having filed any:

1.-7. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as contrary to the greater weight of the evidence that there is "no distention of superficial veins." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Edmund J. McGrath, D.P.M.

1660 Gulf Boulevard, Apartment 601

Clearwater, Florida 34630

Vytas J. Urba, Esquire Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Diane Orcutt, Executive Director Board of Podiatric Medicine Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business and Professional Regulation, Board of Podiatric Medicine written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation, Board of Podiatric Medicine concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-002645

Orders for Case No: 93-002645