STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JERROLD LEWIS SOLOMON,
Petitioner,
vs.
DEPARTMENT OF HEALTH,
Respondent.
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) Case No. 01-3640
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on February 7, 2002, in Tallahassee, Florida, before T. Kent Wetherell, II, designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: James R. Gucker, Esquire
Meyer, Meyer & Gucker, Ltd.
106 East Market Street Post Office Box 400 Tiffin, Ohio 44883
For Respondent: Cherry A. Shaw, Esquire
Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
STATEMENT OF THE ISSUE
Whether Petitioner's challenge to the failing grade he received on the physical diagnosis portion of the May 2001 chiropractic licensure exam should be sustained.
PRELIMINARY STATEMENT
In May 2001, Petitioner took the chiropractic licensure exam administered by the Department of Health (Department). On or about June 28, 2001, the Department notified Petitioner that he failed the physical diagnosis practical part of the exam and, therefore, failed to pass the exam. By letter received by the Department on August 31, 2001, Petitioner requested a formal administrative hearing to contest the failing grade he received on the exam. On September 13, 2001, the petition was referred to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the hearing.
The hearing was held on February 7, 2002. At the outset of the hearing, the parties stipulated that the only matters at issue in this proceeding are (1) the scores received by Petitioner on Tasks 13, 14, 18, 21,1 and 22, of the physical diagnosis part of the exam, and (2) the impact, if any, of the noise heard during Petitioner's exam on his exam results.
At the hearing, Petitioner presented his own testimony as well as that of Dr. James Van Wagoner (a chiropractor and naturopathic physician), Dr. Brett Moss (a chiropractor), and Dr. Donald Zoog (a podiatrist). All of the exhibits offered by Petitioner, lettered A-H, K, M, P-T, were received into evidence.
At the hearing, the Department presented the testimony of Adrian Washington (the Department employee who supervised the administration of the May 2001 chiropractic exam) and Dr. Gary Weiss (one of the examiners who graded Petitioner's physical diagnosis exam) as well as the expert testimony of Dr. Linda Dean (a psychometrician) and Dr. Darryl Mathis (a chiropractor). All of the exhibits offered by the Department, Exhibits 1-14, 22-23, 28, 30-31, 36, 41-43, 45, 47-48, were received into evidence. Exhibits three (Petitioner's Examination Grade Report), four (examiners' grading sheets), five (video tape of Petitioner's physical diagnosis exam), and eight (scoring standards for the May 2001 chiropractic examination) were received into evidence as confidential documents pursuant to Section 456.014, Florida Statutes.
Official recognition was taken of the following statutes and rules: Chapters 456 and 460, Florida Statutes, and Chapters 64B-1 and 64B2-11, Florida Administrative Code.
At the conclusion of the hearing, the parties agreed to file their proposed recommended orders no later than ten days after the transcript was filed. The Transcript was filed on February 25, 2002. The parties' post-hearing submittals were timely filed and have been considered by the undersigned in preparation of this Recommended Order.
FINDINGS OF FACT
Based upon the testimony and evidence received at the hearing, the following findings are made:
Petitioner is a chiropractic doctor who has been licensed to practice in the state of Ohio since 1993. He maintains an active practice in Ohio, and he currently sees approximately 190 patients per week.
Petitioner filed an application with the Department for a Florida chiropractic license. Applicants for licensure are required by statute and rule to take the licensure exam developed by the Department. Petitioner took the exam in May 2001.
The exam consists of four parts, three practical and one written. The practical parts test the applicant on physical diagnosis, X-ray interpretation, and technique; and the written part tests the applicant on the Florida laws and rules regulating chiropractors. An applicant for licensure must receive a score of 75 on each part to pass the examination.
Petitioner passed the written part of the exam as well as the X-ray and technique practical parts; however, on the physical diagnosis part, he received a failing score of 70. As a result, he failed to pass the exam and may not receive a Florida chiropractic license.2
The physical diagnosis part of the exam consisted of 26 tasks which the applicant was required to perform within the allotted time of 70 minutes.
The physical diagnosis part of the chiropractic licensure exam is developed by a team of consultants retained by the Department. The team consists of licensed chiropractic doctors with varied practices and at least ten years of experience. The team derives the exam questions from case studies from prior administrations of the exam. The team meets on several occasions to refine the case studies and rework the questions. The team also develops and refines the answers to the questions based upon their research and a consensus reached after debate.
After the exam questions are finalized and before the administration of the exam, the Department holds standardization sessions which all of the examiners are required to attend. The purpose of the standardization sessions is to ensure that each examiner knows what is a correct answer and what is an incorrect answer for each question. This, in turn, ensures consistency in the evaluation and grading of all applicants. The examiners who evaluated Petitioner's performance on the physical diagnosis exam attended all of the standardization sessions.
The applicant's performance of each task in the physical diagnosis part of the exam is independently graded by two examiners. The purpose of the independent grading is to eliminate any potential bias in the grading and to increase reliability in the scoring of the exam.
The examiners independently assigned a letter score -- A, B, or C -- to the applicant's performance on each task. A score of "C" represents full credit for the task. A score of "B" represents partial credit for the task. A score of "A" represents no credit for the task. Where the examiner awards less than full credit, he or she provides a notation on the score sheet regarding what the applicant failed to do properly.
The letter score was translated into a numerical score based upon the pre-determined point value for the task. Each of the tasks at issue in this proceeding -- numbers 13, 14, 18, 21, and 22 -- were worth 4 points each. A grade of "C" for these tasks translates into a raw score of 4 points; a grade of "B" on these tasks translates into a raw score of 2 points; a grade of "A" on these tasks translates into a raw score of 0 points.
The raw scores resulting from each examiner's grades are totaled separately and, then, those totals are averaged. The averaged score is what is reported to the applicant as his or her final score on the physical diagnosis part of the exam. As noted above, Petitioner received a score of 70 on that part.
Task 13 (S1 Dermatome)
Task 13 contained two sub-tasks. To receive full credit for Task 13, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the S1 dermatome, is at issue in this proceeding.
Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 13. Thus, Petitioner received only two of the possible four points for that task.
A "dermatome" is an area of the body surface served by a particular spinal nerve. The S1 dermatome is the area of the body surface served by the S1 nerve.
The S1 dermatome encompasses an area which begins on the back of the leg below the calf, runs down the back of the foot over the heel, along a portion of the bottom of the foot to the toes, and then around the outside (lateral) portion of the foot.
The expert testimony and the scientific texts introduced in this case vary on the exact portion of the bottom of the foot included in the S1 dermatome. Some indicate that it encompasses only that area from the outside of the foot to the fourth or fifth (little) toe, while others indicate that it extends from the outside of the foot all the way to the midline
of the foot at the third (middle) toe. The common element in all of the expert testimony and the scientific texts is that the location of the S1 dermatome on the bottom of the foot is towards the outside of the foot rather than the inside (arch) of the foot.
The S1 dermatome is tested by touching the dermatome with an instrument to determine whether the patient exhibits any sensory reaction, i.e., whether and to what degree the patient feels the touch. The dermatome can be tested without tracing its entire area; however, in order to map out the entire dermatome, its entire area would be tested.
On the video tape of Petitioner's performance of Task 13, it appears that he is attempting to test the S1 dermatome, rather than demonstrating its area as the task requires. Petitioner can be heard telling the patient that he is going to "test" the dermatome level by touching the patient's foot to see if the patient can feel it.
Immediately after these comments, one of the examiners (Dr. Weiss) can be heard on the video tape telling Petitioner to "trace the path of S1." Dr. Weiss also can be heard asking Petitioner to show the examiners where S1 starts and where it goes.
Petitioner performed Task 13 by making a single straight-line motion starting on the back of the leg below the
calf, then proceeding downward and under the foot, and ending near the big toe. Petitioner repeated the movement, again ending near or even slightly to the inside (arch side) of the big toe.
By making only a single straight-line motion along the bottom of the foot, Petitioner failed to demonstrate the area of the S1 dermatome. At most, Petitioner demonstrated the line separating the S1 dermatome from the L5 dermatome, which is adjacent to the S1 dermatome on the bottom of the foot. As noted above, however, the S1 dermatome extends no further than the mid-line of the foot and therefore the line demonstrated by the Petitioner could not have been the boundary of the S1 dermatome.
Even if Petitioner understood the task as "test the S1 dermatome" rather than demonstrate its area, the weight of the evidence shows that Petitioner did not correctly test the dermatome along the bottom of the foot. As discussed above, Petitioner's instrument appeared to travel along the inside (arch) of the bottom of the foot rather than the outside of the bottom of the foot. The S1 dermatome does not extend inward on the bottom of the foot beyond the mid-line and it certainly does not extend to the big toe.
The notes written by the examiners on the grading sheets indicate that the "B" grade that Petitioner received on
Task 13 was based upon the his tracing of an incorrect area on the bottom of the foot. The notes written by Dr. Weiss, the examiner who testified at the hearing, stated "traced wrong area under foot." The notes written by the other examiner similarly stated "S1 under foot incorrect." The notes were corroborated at hearing by the videotape and the testimony of Dr. Mathis.
Because Petitioner failed to properly demonstrate the S1 dermatome, the examiners properly gave him only partial credit on Task 13.
Task 14 (Acquilles Reflex Test)
Task 14 contained two sub-tasks. To receive full credit for Task 14, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the Achilles reflex test, is at issue in this proceeding.
Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 14. Thus, Petitioner received only two of the possible four points for that task.
Petitioner tested the Achilles reflex by lying the patient face down (prone) and then tapping a reflex hammer directly on the Achilles tendon of each foot. Petitioner did not dorsiflex either foot before striking the tendons. The taps elicited a reflexive response which can be clearly seen on the
video tape of Petitioner's exam. Had the tap not elicited a response, Petitioner testified that he would have pursued alternative means of testing the reflex.
The expert testimony and scientific texts introduced at the hearing show that there are several alternative ways to test the Achilles reflex, all of which are professionally accepted. One way is to tap directly on the Achilles tendon as Petitioner did. This can be accomplished with or without dorsiflexing the foot. The Department was looking for the candidate to pre-stress the tendon by dorsiflexing the foot prior to striking the tendon with the reflex hammer. The evidence does explain why dorsiflexing the foot would be the preferable method of testing the Achilles reflex under the facts of the case study.
Another way to test the Achilles reflex is for the doctor to dorsiflex the foot by pressing his or her fingers against the ball of the patient's foot and then tap his or her fingers with a reflex hammer. Where the ankle is swollen or it is too painful to strike the tendon itself, this method of eliciting the reflex is preferred.
The case study on which Task 14 was based indicated that the patient had "severe pain and swelling in the right calf, ankle, and heel." The case study did not indicate that the patient had a ruptured Achilles tendon, but that injury
could not be ruled out based on the case study. In such circumstances, the expert testimony and scientific texts indicate that the preferred method of checking Achilles reflex would not be striking the tendon itself.
Task 18 (X-Ray of 5-year Old)
Task 18 contained two sub-tasks. To receive full credit for Task 18, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to answer the question of whether he or she would X-ray a 5-year-old child with certain symptoms, is at issue in this proceeding.
Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 18. Thus, Petitioner received only two of the possible four points for that task.
The question required applicants to answer "yes" or "no." They were not permitted to explain their answer.
The question provided only limited information regarding the child and his medical history. The question did not state whether the parent had signed a consent form authorizing treatment of the child. Without parental consent, it would not be proper for the doctor to render any medical treatment to the child.
It would have been reasonable for Petitioner to assume that any necessary consent forms had been signed. Petitioner did not request any clarification on this point from the examiners nor did his response during the exam mention the lack of a signed parental consent form.
Instead, Petitioner explained that he would not X-ray the child because of the apparent severity of the child's injury and a concern that the child may have an injury "that wouldn't be chiropractic in nature." Based on these concerns, Petitioner stated during his exam that he would refer the child to his family physician.
At hearing, Petitioner indicated that his concern regarding the severity of the child's injury was based upon the case study which indicated that the child was holding his neck. Petitioner considered this to be Rust's Sign. Petitioner did not request any clarification from the examiners regarding the manner in which the child was holding his neck.
The expert testimony and scientific texts introduced at hearing indicate that Rust's Sign is most commonly exhibited by the patient supporting his or her head by holding the chin, rather than the neck. The patient holds his or her head to compensate for some muscular, ligament, or disk damage, which causes the neck to be unable to support the head.
Even if Petitioner construed the limited case history provided to be evidence of Rust's Sign, the proper course of treatment would not have been to refer the patient to a family physician as Petitioner stated during his exam. Instead, the expert testimony and scientific texts indicate that the proper course of treatment would have been to immediately stabilize the neck with a cervical collar or something similar and immediately perform imaging (e.g., X-ray) to determine the source of the injury.
Petitioner is not entitled to additional points for
Task 18.
Task 21 (Gluteus Maximus Test)
Task 21 contained two sub-tasks. To receive full credit for Task 21, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the second sub-task. Only the first sub- task, which required the applicant to perform the gluteus maximus muscle test, is at issue in this proceeding.
Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 21. Thus, Petitioner received only two of the possible four points for that task.
The gluteus maximus muscle is the largest muscle in the body and is largely responsible for the shape of the buttock. It extends and laterally rotates the hip joint.
The muscle is tested by having the patient lie face down (prone) with his or her knee bent 90 degrees or more. The importance of bending the knee is to isolate the muscle. While the doctor holds the patient's hip to stabilize it and applies downward pressure to the back of the thigh, the patient attempts to raise his or her leg.
The video tape of Petitioner's exam shows that Petitioner had the patient in the prone position. Petitioner did not have the patient bend his knee. Nor did Petitioner have the patient lift his leg up. Instead, the tape shows Petitioner pulling the leg outward as the patient attempted to move the leg inward. Petitioner did not rotate the leg.
The expert testimony and scientific texts introduced at hearing show that the test performed by Petitioner was the proper test for the gluteus medius or gluteus minimus rather than the gluteus maximus. This evidence corroborates the notation on one of the examiners' score sheet which stated "did gluteus med[ius]?" And see Endnote 1.
Indeed, it appears from the video tape that Petitioner misunderstood the task he was to perform. When Petitioner first read the question for Task 21, he correctly read the two tests he was to perform, gluteus maximus and soleus. Petitioner then performed the soleus test. Then, he could be heard saying "gluteus medius" as if to remind himself what test he was to
perform. Immediately after that comment, one of the examiners suggested that Petitioner reread the question. He did so, correctly reading "gluteus maximus." Petitioner then set up the table and got the patient situated. Then, one of the examiners asked which muscle test Petitioner was going to perform. He stated "gluteus medius." Petitioner then stood over the patient for a minute or so, apparently thinking to himself, and then performed the test as described above.
Any confusion regarding the test to be performed was not a result of the form of the examination or the conduct of the examiners. The examination clearly indicates that the test to be performed is gluteus maximus. The words "gluteus maximus" are in bold type. The examiners attempted to clarify Petitioner's confusion by giving him an opportunity to correct himself after he first misstated the test to be performed.
Task 22 (Trendelenburg Test)
Task 22 required the applicant to perform two distinct tests and state what he or she is looking for in each test. To receive full credit for Task 22, the applicant was required to properly perform each test and state what he or she is looking for in each test. The only dispute in this proceeding is whether Petitioner's statement of what he was looking for in the Trendelenburg test was the correct response.
Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 22. Thus, Petitioner received only two of the possible four points for that task.
The Trendelenburg test is used to evaluate the ability of the hip abductors, primarily the gluteus medius, to stabilize the pelvis on the femur. The test is performed by having the patient stand facing away from the doctor. The patient then lifts one of his or her legs. A positive sign is where the pelvis/hip of the lifted leg tilts downward instead of rising. Reference to the pelvic/hip tilt was what the Department considered to be a correct answer for Task 22.
When performing the Trendelenburg test, the doctor should stand behind the patient with his or her hands on the patient's hips. This placement of the hands serves two purposes. First, it allows the doctor to feel even slight movement of the pelvis/hip in order to detect even a mildly positive sign. Second, it allows the doctor to stabilize the patient in the event that the patient loses his or her balance.
The video tape of Petitioner's exam shows that he correctly performed the Trendelenberg test. He was positioned behind the patient with his hands on the patient's hips. He directed the patient to raise his right leg. Then, he stated that if the patient were to fall over, there would be a gluteus medius problem.
Dr. Weiss requested clarification from Petitioner, specifically asking him what he was looking for. Again, Petitioner stated that the patient would fall over or lose his balance. Petitioner never used the word "lurch."
The Trendelenberg test could cause the patient to lose his or her balance and "lurch" in the direction of the lifted leg or even fall over, but only in cases of severe weakness in the gluteus medius muscle. Such a response would be a positive Trendelenburg sign.
The most common positive sign, however, is a downward tilt of the pelvis/hip on the side of the lifted leg. All of the scientific texts, including that offered by Petitioner, identify the tilt as the positive sign which the doctor should be looking for. The tilt is what causes the "lurch" that occurs in more severe cases. If the doctor is looking only for a "lurch," he or she might miss the tilt and thereby miss the most common positive sign of the Trendelenburg test.
Because Petitioner stated that he was looking for the patient to fall over or lose his balance, rather than looking for the pelvis/hip tilt, his response to Task 22 was incomplete at best. Therefore, Petitioner is not entitled to any additional points for Task 22.
Disruptive Noise During Petitioner's Examination
The physical diagnosis part of the May 2001, licensure exam was administered in several conference-type rooms of a hotel. Approximately five or six applicants were administered the exam in the same room as Petitioner. Several of those applicants went before Petitioner and several went after him.
While Petitioner was taking the examination, loud noises could be heard. On the video tape of Petitioner's exam, the noises sounded like loud scraping, scratching, and rumbling of metal, as if a large piece of equipment or furniture was being moved in a nearby area of the hotel. At other points, the noises sounded like thumping or banging. In his testimony, Petitioner described the noise as sounding like a mechanical tool or jack-hammer. Dr. Weiss, one of the Department's examiners who graded Petitioner's performance on the physical diagnosis part of the exam, testified that he heard the noise as well and described them as construction noises outside of the room.
The noise was not continuous throughout the exam. The noise first could be heard on the video tape near the end of Petitioner's performance of Task 1. It was very loud, but lasted only for several seconds before subsiding. It could also be heard at a very loud level during Tasks 2, 4, 7, and 17,
again for only a few seconds each time. The noise could also be heard during Tasks 6, 8, and 16, but at a much lower level.
Immediately after the noise first occurred during Task 1, one of the examiners asked Petitioner if the noise was bothering him. Specifically, the examiner asked, "Is that distracting you?" To which Petitioner responded "No, it’s okay." Had Petitioner indicated that the noise bothered him,
Dr. Weiss testified that the examination would have been stopped until the source of the noise problem could be addressed.
Neither Petitioner nor the examiners mentioned the noise during the remainder of the exam.
The video tape does not show any significant difference in Petitioner's demeanor during the tasks where the noise could be heard than the remainder of the tasks. Throughout the test, Petitioner looked somewhat uncomfortable, but not any more so than would be expected under the pressure of this type of exam. At most points where the noise could be heard, Petitioner appeared to be oblivious to it because he was so deep in concentration on the task at hand.
Petitioner completed the physical diagnosis exam with more than 17 minutes of the allotted 70 minutes remaining.
After he completed his exam, Petitioner filled out a Candidate Concern Form on which he stated that the noises made it hard for him to concentrate. The form was provided to Adrian
Washington who was the Department employee in charge of administration of the exam. Mr. Washington informed the two examiners who evaluated Petitioner that a concern had been filed and requested that they independently describe the incident.
Dr. Weiss' written comments on the incident referred to the noises as "distracting to me." However, Dr. Weiss' comments, as well as the comments of the other examiner, stated that Petitioner was asked during the examination whether the noises were distracting to him and that he said "no." The comments of the other examiner confirmed what the undersigned witnessed on the video tape, i.e., that "he [Petitioner] did not appear to be visually upset during the examination." The examiners comments also noted that even with the distraction from the noise, Petitioner completed the physical diagnosis part of the exam with time remaining.
Based upon the responses of the examiners, primarily the fact that Petitioner stated during the exam that the noises were not bothering him, Mr. Washington determined that no further action was warranted with respect to Petitioner's examination. He did notify the hotel staff about the distractions around the testing area.
No other candidate or examiner expressed any concern to Mr. Washington regarding noise problems during the examination.
CONCLUSIONS OF LAW
The Division has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 120.60, Florida Statutes. (All references to Sections or Chapters are to the Florida Statutes. All references to Rules are to the Florida Administrative Code.)
The practice of chiropractic medicine is regulated by the Department and the Board of Chiropractic Medicine. See generally Chapters 456 and 460. Any person desiring to be licensed as a chiropractic physician is required to file an application with the Department and pass the licensure exam. See Sections 456.013(1)(a) and 460.406(1), Florida Statutes.
Where, as here, a formal administrative hearing is conducted with respect to the issuance of a license by the Department, Section 456.013(4) requires "the administrative law judge [to] submit his or her recommended order to the appropriate board, which shall thereupon issue a final order." In this case the appropriate board is the Board of Chiropractic Medicine.
Petitioner has a heavy burden in this proceeding. It is not enough for him to show that his performance of the tasks at issue was professionally acceptable. Instead, he is required to establish by a preponderance of the evidence that the Department's grading of his examination was arbitrary or
capricious.3 See, e.g., Harac v. Department of Professional Regulation, 484 So. 2d 1333, 1337 (Fla. 3rd DCA 1986); Dept. of
Health & Rehabilitative Servs. v. Career Services Comm'n, 289 So. 2d 412, 414 (Fla. 4th DCA 1974). And see State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958):
Examining boards such as the one here present are generally constituted and established for the purpose of protecting the public against incompetents who seek to enter the various vocations and professions. Such boards are not vested with arbitrary hegemony over the rights of the individual, but are charged with the duty to administer their rules and regulations equally and justly as between all persons and groups who come within the bounds of their jurisdiction. So long as these boards conduct their examinations fairly and uniformly in accordance with lawful authority and their own rules and regulations, their judgment as to the proper grading of such examinations will not be disturbed by the courts, unless clearly shown to be arbitrary or devoid of logic and reason.
* * *
It is clear from the evidence in the instant case that the respondent Board, in the exercise of its lawful authority, determined that the relator failed to earn a passing grade on its examination.
Admittedly there will be questions on examinations of this type for which the amount of credit to be given various answers may differ in the minds of reasonable men.
That such condition exists is not alone sufficient cause upon which to bottom an alleged abuse of discretion, particularly
when as here the ultimate responsibility for assigning grades to such answers falls on those who have been duly elected or appointed to the board and whose function it is to issue a certificate of competency only after being satisfied as to the applicant's entitlement. Under such a circumstance the court will be extremely reluctant to substitute its judgment for that of the duly authorized board; else the board would be compelled through the judicial arm of mandamus to issue its certificates of competency not in its own discretion, but upon that of the court.
Id. at 585-86.
Petitioner failed to meet his burden of proof.
Petitioner failed to show that his response to Task 13 was arbitrarily or capriciously graded. Indeed, the evidence supports the examiners' conclusions that Petitioner failed to properly demonstrate the S-1 dermatome because he traced a line down the center of the bottom of the foot towards the inside of the foot/big toe, instead of tracing the area on the bottom of the foot from the fourth or fifth toe towards the outside of the foot. Therefore, Petitioner is not entitled to any additional points on Task 13.
Petitioner failed to show that he was improperly denied credit for his response to Task 14. Although the evidence shows that there are alternative ways to test the Achilles reflex (including the method used by Petitioner), the evidence further shows that under the facts in the case study,
striking the Achilles tendon directly, as Petitioner did, is not the preferred method.
The evidence also shows that the answer the Department was looking for on Task 14 was arbitrary or capricious based on the facts in the case study which indicate "severe pain and swelling" in the patient's ankle. Specifically, the scientific text introduced by the Department (Resp. Ex. 23) states that if the patient's ankle is swollen or it is prohibitively painful to strike the Achilles tendon directly, the reflex should be tested in the manner described in paragraph 29. Similarly, Dr. Mathis testified that if the patient's Achilles tendon were ruptured (which could not be ruled out based on the case study), the doctor should not strike the tendon directly.
Accordingly, the second sub-task in Task 14 (and its associated two points) should not be considered in scoring Petitioner's exam. When Petitioner's score is recomputed based upon a possible 98 points (rather than a possible 100 points), he would still not receive a passing score. His score of 70 of out of the 98 possible points equates a score of 71.43 percent.
Petitioner failed to show that his score for Task 18 was arbitrary or capricious or that the question was arbitrarily or capriciously worded. Although the question contained only minimal medical history for the child and required the applicant to make certain inferences regarding the existence of a signed
parental consent form for the child, the evidence shows that such an inference is not unreasonable and that the medical history provided contained sufficient information to enable applicants to answer the question. Even though the question might have been better worded to allow applicants to explain their answers (rather than being forced to give only a "yes" or "no" answer), Petitioner failed to demonstrate that the inability to provide such explanation resulted in arbitrary or capricious grading of his response. Therefore, Petitioner is not entitled to receive any additional points for Task 18.
Petitioner failed to show that his response to Task 21 was arbitrarily or capriciously graded. Indeed, the evidence shows (and Petitioner now concedes) that he performed the gluteus medius or gluteus minimus test rather than the gluteus maximus test as directed in Task 21. To the extent that Petitioner was confused as to the muscle test that he was to demonstrate, his confusion did not result from the form of the question or the administration of the question by the examiners. Therefore, Petitioner is not entitled to any additional points for Task 21.
Petitioner failed to show that his response to Task 22 was arbitrarily or capriciously graded. Indeed, the evidence shows that Petitioner failed to identify the most common sign of a positive Trendelenburg's test, a downward tilt in the
pelvis/hip on the side of the lifted leg. The evidence further shows that Petitioner's response that the patient would lose his or her balance and "lurch" or fall over is only accurate in the most severe cases. Therefore, Petitioner is not entitled to any additional points for Task 22.
The noise that occurred during Petitioner’s exam certainly created a less than ideal testing environment; however, Petitioner failed to show that the noise caused the administration of the exam or the score he received on the exam to be arbitrary or capricious. Specifically, the evidence shows that Petitioner was asked by the examiners during the exam whether he was bothered by the noise and that he responded "no, it’s okay." In light of Petitioner’s response, the examiners’ decision to continue the exam despite the noise and the Department’s subsequent decision to take no action as a result of the Candidate Concern Form submitted by Petitioner were appropriate. Therefore, Petitioner is not entitled to any additional points or any other modifications to his exam results as a result of the noise that occurred during his exam.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order which denies Petitioner's application for a chiropractic license based upon the failing
score that he received on the physical diagnosis part of the May 2001 licensure exam.
DONE AND ENTERED this 15th day of March, 2002, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II 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 15th day of March, 2002.
ENDNOTES
1/ In his Proposed Findings of Fact and Proposed Conclusions of Law, Petitioner now concedes that he "should not receive any credit for the Gluteus Maximus question [Task 21]" because his answer "correctly identified the Gluteus Minimus muscle."
2/ An applicant, such as Petitioner, who passes two of the three practical parts is not required to retake the entire examination; the applicant is permitted to take only the part that he or she failed. See Rule 64B2-11.003(2), Florida Administrative Code.
3/ An "arbitrary" act is one which is "not supported by facts or logic." Agrico Chemical Co. v. Dept. of Environmental Reg.,
365 So. 2d 759, 763 (Fla. 1st DCA 1978). A "capricious" act is that which is "taken without thought or reason or irrationally." Id.
COPIES FURNISHED:
James R. Gucker, Esquire Meyer, Meyer & Gucker, Ltd.
106 East Market Street Post Office Box 400 Tiffin, Ohio 44883
Cherry A. Shaw, Esquire Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
R. S. Power, Esquire 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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 15, 2002 | Recommended Order | Applicant for chiropractic license failed to show that Department`s grading of exam was arbitrary or capricious or that noise heard during exam affected his score. Recommend no additional points be awarded and that license application be denied. |
ADRIAN SAGMAN vs DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC, 01-003640 (2001)
BRYAN L. FOSS vs AGENCY FOR HEALTH CARE ADMINISTRATION, 01-003640 (2001)
PATRICK DENNIS vs BOARD OF CHIROPRACTIC EXAMINERS, 01-003640 (2001)
JOELLEN L. DREYFUS vs DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC, 01-003640 (2001)
