STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLO COIANA, )

)

Petitioner, )

)

vs. ) Case No. 00-1909

) DEPARTMENT OF HEALTH, BOARD ) OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was set for hearing on October 30, 2000, before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. Shortly prior to that time, because of the Petitioner's domicile in Italy, with attendant logistical problems, the parties agreed to waive a live hearing and to submit their disputes to the Administrative Law Judge on affidavits, depositions, documentary exhibits and any objections to any such materials, or parts thereof, in lieu of live testimony. In this context, the appearances are as follows:

APPEARANCES

For Petitioner: Carlo Coiana, pro se

N1 Via Delle Coccinelle Cagliari, Italy 09134

For Respondent: Cherry A. Shaw, Esquire

Department of Health Office of General Counsel

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issues to be resolved in this proceedings concern whether the Petitioner is entitled to receive a passing score on the December 1999 dental licensure examination.

PRELIMINARY STATEMENT

This cause arose upon the Petitioner's filing of a request for hearing to contest the grade he received on the December 1999 dental licensure examination. The Petitioner was notified by the Department of Health (Department) that he failed to pass that examination by having a score of 2.79, when the passing score was 3.00.

A request for hearing was timely submitted in which the Petitioner contests the grading for the Class II Composite Restoration, Endodontic, Amalgam Restoration (model), Patient Amalgam and Preparation for a three-unit Fixed Partial Denture procedure on the examination. The Department conducted a

re-grading of the examination as to the challenged procedures. This re-grade resulted in the Petitioner's score for the

Preparation for a three-unit Fixed Partial Denture portion of the examination to 3.66. That score increase however was not sufficient to result in an overall passing grade on the examination since it still resulted in an overall grade of only 2.92. A grade of 3.00 is required by passage of the examination.

The Petitioner submitted Exhibits 1 through 17 into evidence. The Department deposed its two witnesses Marsha Carnes and John Joffre, D.D.S., and submitted the depositions into evidence in lieu of live testimony. The Respondent Department also offered Exhibits 1 through 16 into evidence. The parties were given a right to submit Proposed Recommended Orders. The Respondent timely submitted a Proposed Recommended Order and the Petitioner submitted argument and re-iteration of his position by more informal correspondence. All timely submittals have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Carlo Coiana, was an unsuccessful candidate for the December 1999 dental licensure examination. He failed to pass several procedures of that licensure examination, according to the Department's graders and grading method.

2. The December 1999 dental licensure examination consisted of two parts: (1) The clinical, and (2) The laws and rules section. The clinical portion consists of nine different procedures of which the Petitioner challenged six. The Department, in is scoring method, selects three examiners to grade each candidate's performance. The average of the three scores from each examiner, produces the overall grade for that procedure. Rather than having only one examiner score, the Department allows for three examiner scores because this provides a more fair, reliable indication of the candidate's competency and true score.

3. Each examiner must be a licensed dentist for a minimum of five years and have no complaints or negative actions on his or her licensure record. Each examiner must also attend and successfully complete a standardization session which trains each examiner to use the same internal grading criteria. The examiners who graded the Petitioner's examination successfully completed the standardization session and training.

4. During the administration of the dental examination the Department requires the use of monitors who are also licensed dentists. The monitor's role is to preserve and secure the integrity of the examination. The monitor also gives instructions to each candidate as to what to expect. The monitor has no part in the grading of the candidate's

   performance on the examination but acts as a messenger between the candidate and the examiner since there is a "double-blind" grading of the examination.

5. The Petitioner contested the score he received on the Class II Composite Restoration on a model. The Class II Composite Restoration Portion of the examination is a procedure involving restoring a cavity (Class II) preparation with a

   tooth-colored filling. The procedure was done by the Petitioner with a comment by the examiners that there was a discrepancy in the resulting shape of the tooth and proper contact to the adjacent tooth. There was also a marginal discrepancy and a "gingival overhang." The margin is where the tooth and filling meet and there was a discrepancy felt there, a bump or a catch when the junction of the two surfaces should be smooth. A gingival overhang is in the area between the tooth where a non- smooth transition between the filling and the tooth is detected. This can be a damning area which will collect plaque and lead to re-current decay. The Respondent's expert, Dr. John Joffre, concurred with the overall findings of the examiners and felt that this procedure should not be accorded a passing score but rather the score accorded by the examiners.

6. The Petitioner also contested the score for procedure number four of the examination, the Endodontic procedure. The Endodontic procedure of the examination is referred to as a

   "root canal." This procedure involves removal of the nerve and blood vessels inside a tooth in order to clean out that area.

   It then requires the shaping of the canal and, finally, filling it with an inert material to rid the body of the infected area in question. This procedure is performed on an extracted tooth.

7. The minimum of the working length the Department required in order to receive a passing score for the filled material in the tooth in question was two millimeters. The Petitioner's expert had the working length of the filled area in the root canal or Endodontic procedure done by the Petitioner measured. It measured closer to three millimeters which is totally unacceptable according to Dr. Joffre. Even in accordance with the literature that the Petitioner relied upon in this case it is not provided that three millimeters short of the working length is an accepted working length, which is why the Petitioner received less than a passing score. All three examiners and the expert witness Dr. John Joffre were in agreement about this scoring. Three millimeters short of the required working length will cause the procedure to definitely fail sometime in the future and renders the procedure useless. An Endodontically treated tooth that is three millimeters short will fail clinically, and that justifies a failing grade on this procedure.

8. The next procedure contested by the Petitioner as to score was the Amalgam Restoration done with a model. This procedure is similar to the Class II Composite Restoration. However, the difference between the two procedures is that the Amalgam is referred to as a silver filling containing mercury, silver, etc., as opposed to the Composite material in the above- referenced procedure which is a "tooth-colored" restoration. Although the Composite and the Amalgam serve the same function, they require different tasks and different procedures on how they are to be handled in their installation in the mouth. The major problem found with the Petitioner's performance on this procedure concerned an overhang. As referenced above, a gingival overhang at the margin of where the filling and the tooth meet results in a less than smooth transition and can be an area where food accumulates and decay can start anew. All three examiners also noted a problem with the proximal contour of the Amalgam restoration which has to do with the shape of the filling in terms of how it meets the tooth next to it. The testimony of Dr. Joffre, which is accepted, shows that the examiners comments and grades and Dr. Joffre's opinion itself justifies the scoring on this procedure. Dr. Joffre agrees with the examiners' scoring.

9. The last procedures in question are called the "Patient Amalgam." These procedures, two and three, involve cutting of

   the tooth before the filling is actually placed into it ("cutting the box"). Procedure three is the actual filling, involving scoring what the filling is like after the filling procedure is completed. The criticism found by both examiner

   304 and 346, as to the first part of the procedure, the cutting part, was ". . .did not break the gingival contact, subject to recurrent decay." The gingival contact down in the box cut for the filling must be cut deep enough to reach the point where there is a separation between the edge of the box and the adjacent tooth. Halfway down the tooth, towards the gum, the teeth are still touching. As one progresses further down toward the gum, the teeth separate because they naturally get narrower toward the gum line. A dentist needs to cut the box that the filling should be placed in down far enough toward the gum line so that he gets to the point where the teeth are no longer touching. Both dentists 306 and 346, examiners, found that he did not cut the box low enough so that he "didn't break gingival floor contact with the molar" (meaning the adjacent tooth). Thus, these examiners gave the Petitioner the lowest grade of "one" on that part of the procedure.

10. The filling or restoration portion of the procedure failed. The filling was not adequately carved or shaped so that it was protruding too high above the adjacent tooth surfaces. This caused the patient to break the filling very shortly after

    it was finished and he was biting downward and putting pressure on it. Indeed it broke while the third examiner was examining the procedure. The reason why the fracture in the filling occurred was because it protruded too high. The Petitioner did not adequately reduce the size or height of the filling, so when the teeth came together the tooth below it or above it was hitting too hard against that one spot and caused the metal to break before the patient, on whom the procedure was done, ever left the building. The Respondent's expert, Dr. Joffre, who agreed with examiners comments and score, found that the Petitioner had failed to properly perform these procedures and that his score had been appropriately arrived at by the examiners.

11. The Petitioner contested the score he received on the Fixed Partial Denture Procedure. The Department ultimately conceded that he should be awarded additional points on that procedure, however, even with the additional points awarded the Petitioner still failed to score adequately on the overall examination for passage, although he came close, with a score of

    2.92 out of a minimal score of 3.00 required for passage of the examination.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this

    proceeding pursuant to Section 120.57(1), Florida Statutes (2000).

13. The Respondent is an agency of the State of Florida authorized to administer licensure examinations for dentists in accordance with Section 456.017, Florida Statutes (2000). Any person desiring to practice dentistry in Florida is required to pass the licensure examination developed by the Department to test an applicant's competency as a dentist. Section 466.006, Florida Statutes (2000).

14. The Petitioner has the burden of proving by a preponderance of the evidence that his examination scoring was flawed and that the Department acted arbitrarily, capriciously or through an abuse of discretion. See Harac v. Department of

    Business and Professional Regulation, 484 So. 2d 1333, 1337 (Fla. 3d DCA 1986). The Petitioner herein failed to refute the Respondent's expert witness testimony and thus failed to meet his burden of proof.

15. In a case of this nature the party seeking licensure bears the burden of showing entitlement to that license. Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). If the proof is insufficient the license must be denied, which is the case in the subject situation since the Respondent's expert witness testimony was unrefuted.

16. The Petitioner has the burden of proving, by a preponderance of evidence, that the Department's decision to give him no credit for work on the challenged periodontal procedure is arbitrary, capricious or constitutes an abuse of discretion. In consideration of the foregoing Findings of Fact and the preponderant evidence of record consisting chiefly of Dr. Joffre's testimony, which is accepted, the Petitioner has failed to meet his burden of proof and thus the scoring of his examination has not been shown to be flawed or to have been arrived at in an arbitrary or capricious manner. Accordingly, the score should stand.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition challenging to the grades assigned the Petitioner for the December 1999 Dental Licensure Examination and finding that the Petitioner failed to pass that examination.

DONE AND ENTERED this 9th day of February, 2001, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001.

COPIES FURNISHED:

Carlo Coiana

N1 Via Delle Coccinelle Cagliari, Italy 09134

Cherry A. Shaw, Esquire Department of Health

Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Theodore M. Henderson, Esquire Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Dr. Robert G. Brooks, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1703

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-001909

Orders for Case No: 00-001909