The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 August, 2001.
Findings Of Fact Frank A. Velez, Jr., D.D.S. has been registered with the Florida State Board of Dentistry since 1967. His latest address on file with the Board is 4640 Orange Blossom Trail, Orlando, Florida. The records of the Board show no licensed hygienist with the same address as Velez or that any licensed personnel are employed by Velez. In November, 1973 Mrs. Margaret B. Laursen went to Dr. Velez for professional services. Velez performed a root canal and took impressions for a partial plate. When the patient returned for the bridge work to be inserted in her mouth Velez removed a tooth before putting in the plate. When the plate was inserted it did not fit and despite several visits to Dr. Velez for adjustment, the plate could not be worn because of the pain and discomfort caused with the plate in place. Finally, in August, 1974, she went to Dr. Barnes. Upon examination Dr. Barnes observed a large root tip which had been left in the cavity from which the tooth was extracted. This root tip was visible without x- ray. The root tip that had been removed and the x-ray showing the root tip were admitted into evidence as Exhibits 5 and 6. After extracting the root tip and adjusting the partial plate Dr. Barnes could not make the partial plate fit, largely because an extension had been added to the plate to take care of the space caused by the extraction of the molar from which the root tip had been left. Dr. Barnes further found that the crown which had been placed on the tooth used to anchor the partial plate had been cracked and the plate could not be securely attached thereto. Since the partial was sitting on top of the root tip at the time it was being fitted by Dr. Velez, the pain would not allow the partial to fit comfortably. Mrs. Estella Livermore saw a brochure from Dr. Velez on a bulletin board in the trailer park where she resided. Therein it said that he would make a full set of upper and lower dentures for $98. Needing dentures she visited Velez in January, 1976. Upon arrival she talked to Velez and the secretary who showed her two sets of teeth; one the $98 set and the deluxe version at $150. As a result of the conversation she authorized Velez to make her a $150 set. At this time Mrs. Livermore had been wearing dentures for about 30 years. On her initial visit impressions were taken and about a week later she went back when the plates were ready. When the new dentures were placed in her mouth she couldn't eat, drink, or talk with them. At Velez's insistence she tried to wear them, but couldn't even drink water with the teeth in. After complaining to Velez he stated that he would make another set. When the other set was prepared they appeared to fit worse than the first set. They were impossible to wear. She called Velez and he stated he couldn't do anything about it. Telephone calls to his office were answered by a recording. Subsequently, she and her husband went by his office to wait him out. When he appeared he was angry because she had not called for an appointment and wanted to know if she wanted him to take some material off the plates. When Mrs. Livermore replied that she didn't know, he took the teeth into his lab for a short while and when he returned shoved them in her mouth and escorted her out. His nurse told her if she came back he would charge her $10 per visit. The teeth still could not be used by Mrs. Livermore and when she complained to the dental society she was referred to Dr. Waldheim, Assistant Secretary Treasurer of the State Board of Dentistry. In February, l976 Dr. Waldheim examined Mrs. Livermore and found the dentures to be oversized with a poor occlusion. The dentures were inadequate for the patient and could not be adjusted to fit. Mrs. Georgia McCampbell visited Dr. Velez in late November, 1975 to have teeth pulled and dentures made. He took impressions of her teeth and approximately one week later when she returned several teeth were extracted and both upper and lower dentures were inserted. The lowers fit badly and would not stay in place. Her next appointment was one week later. During this period of time the dentures were burning and hurting very badly and when she went back for her appointment she did not see Dr. Velez, but was seen only by an assistant. By this time her gums inflamed and abscessed. She told the assistant she had an appointment with Dr. Velez, but was advised that since she was late for her appointment with Velez she could not see him. One of the assistants attempted to fit the dentures by putting them in, but they were hurting too much for her to wear. A few days later she went to Dr. Ford. When Dr. Ford examined Mrs. McCampbell he found the incision extended from second molar to second molar across the lower front part of her jaw. The wound was open and the jawbone was exposed. A pus-like material was observed in the gum. Her temperature was slightly elevated at 99.2 F. He treated her with antibiotics. Mrs. McCampbell advised Dr. Ford that she had teeth removed ten days before and had been back on three occasions but was unable to see the dentist. She could only see a dental assistant. Dr. Ford expressed the opinion that where six or eight teeth in a row are removed sutures would normally be indicated. Three days later upon her return she was beginning to heal and he removed some bone fragments from the jaw. The incision made when the teeth were removed healed in about three weeks. His examination of the dentures that had been made for Mrs. McCampbell showed they were too large and the jaw would not properly close with the dentures in the mouth. Dr. George A. Woodruff, D.O.S., in Titusville knew Dr. Velez when he was practicing in Titusville some two and a half to three years ago and had patients in common with Velez. One of these patients, Sue Flenniken, visited his office in May, 1972 with gum abscess. She advised him that Velez had proposed to treat her with a root canal. In Dr. Woodruff's opinion a root canal would not have helped in her case, as the gum was abscessed. Some two months later the tooth flared up again and extraction was required. Another client shared with Dr. Velez was one Hazel Todd. She was experiencing problems with a Velez-constructed bridge held by three teeth on which root canals had been done by Dr. Velez. Upon examination Dr. Woodruff found the root canal treatment inadequate. One was underfilled just short of the tip of the root, the other two overfilled with the filling sticking out of the end of the root. This was clearly visible in the x-ray. Dr. Woodruff opined, that the three root canals done at the same time on three teeth in a row was contraindicated. Normally when a patient has sensitivity in an area proper treatment would be to narrow down the sensitivity and then do a root canal on the tooth most suspect to see if that cured the problem before proceeding to treat the other teeth. Mrs. Amelia Thomas visited Dr. Velez in June, l976 for replacement dentures. After she paid half of the quoted price a dental assistant took the impressions from which the new dentures were made. On this visit Dr. Velez did not take any impressions. When she returned a week or ten days later to pick up the teeth she was advised that she had to pay the balance of the amount owed on the teeth prior to having the teeth fitted. When she questioned paying for the teeth before trying them Dr. Velez told her abruptly that is the way that he did it. After she made the balance of the payment the teeth were tried in her mouth. They did not fit well and she could not bite comfortably. Velez took part of the material off the teeth and told her to try them out and come back a week or so later for an adjustment. Although she tried to wear the teeth she couldn't talk or eat with them. She considered they were too large and her jaws would not properly close. When she went back to Dr. Velez with her complaint he told her that he had made the teeth to fit and that she was going to have to wear them. She offered to pay him more if he would make another set that did fit but he declined. Velez then brought in another man who checked her teeth and took them out to the lab to work on. About an hour later Velez advised her that he would make her another set of plates and he took impressions to do so. He also asked for her old plate to be left there for a couple of days which she declined to do because she felt she could not get along without them. She did not return for the second set of teeth because she had become uneasy about the work Dr. Velez had done and stopped payment on her second check. Mrs. Thomas has worn dentures for approximately 40 years and this is the first time a dentist had asked her to leave her old dentures for a pattern. Alfred W. Langley saw Dr. Velez in January, 1976 to have a set of dentures made. Dr. Velez took the impressions and when Langley returned approximately one week later for fitting, the teeth fit so badly that Velez would not let Langley out of the office with them. Velez took a second set of impressions but when Langley returned those teeth fit no better and a third impression was taken. When the third set of teeth was made, Langley took those home with him but they did not fit. They wouldn't stay in place and he could not talk with them. Subsequently he visited the consumer protection agency and obtained a letter from the dental board and from the consumer protection agency. When he confronted Dr. Velez with these letters Velez returned the money he had paid for the teeth. These letters from Dr. Waldheim and from the State Attorney's office were received into evidence as Exhibits 7 and 8. Mrs. Louise Rodgers visited Dr. Velez in February, 1976 experiencing problems with her teeth. Another dentist had wanted to do root canals on some twenty-odd teeth but she didn't feel she could afford the approximately $4,000 she had been advised that treatment would cost. She visited Dr. Velez to see if extraction and dentures would be cheaper. Dr. Velez took x-rays and impressions prior to extracting the teeth. On March 4, 1976 Dr. Velez extracted 23 teeth and put in the plates that he had constructed from the earlier impressions. She immediately inquired if the upper plate was supposed to be as loose as the one in her mouth appeared to be. Under instructions she kept the plate in all afternoon but had to hold her finger on the plate for 3 or 4 hours until the swelling was sufficient to hold the plate in place. Later when she took them out to clean her mouth she couldn't get the plate back in because of the large bone in the way. The following Monday she called the office and was advised to come in on the 11th, some 7 days after the extractions. Dr. Velez was not there and one of the girls in the office tried to put the teeth in but couldn't. Mrs. Rodgers returned the following day and saw Dr. Velez who removed the bone fragment that was in the way. He tried to put the teeth back in but there was too much swelling and the upper part of the jaw was very irritated. When she returned on the 18th of March her gums were still tender but there was no longer any bleeding. On that visit Dr. Velez did some grinding on the teeth so they could be put in her mouth; however, they would not stay in place. Velez advised her to get something gummy and sticky to hold them in. She tried to wear the teeth but they felt too big and would not stay up. She went back on the 23rd of March complaining about her teeth not staying up. She was advised she had to get used to them but he would remake them if she would pay an additional fee of $78. When she called on April 22nd and asked to talk to Dr. Velez the girl said he was extremely busy and couldn't come to the phone. The receptionist advised that she would make her another appointment but she should wait for three weeks. During this time she was still trying to wear the dentures but couldn't eat with them, talk with them, and the uppers kept falling down. When she did return for her final appointment he advised she was just going to have to wear them until she could get used to them. After complaining to the Dental Board Mrs. Rodgers was advised to visit Dr. Waldheim. When Dr. Waldheim examined Mrs. Rodgers in June, 1976 he found that her gums had healed but the teeth did not fit. The occlusial relationship was badly off and the teeth could not be adjusted to fit. Dr. Waldheim further opined that extracting 23 teeth at one time and not seeing the patient until 10 days thereafter was very poor dental practice. In his opinion the patient should always be seen the following day if as many as 23 teeth were extracted. Mrs. Sarah Gier visited Dr. Velez in February, 1976 to have new dentures made. Velez advised her that she could have the $98 set or the $150 deluxe set, but that the $150 teeth were worth approximately $600. She selected the $150 set. At this visit Dr. Velez took impressions and when she returned on February 19 for the teeth the upper dentures appeared all right. Dr. Velez acknowledged that the bottom dentures were wrong and would have to be made over. He then took impressions for the lower plate but when she returned for them they didn't fit. Dr. Velez instructed her to try and wear them. She tried but couldn't wear them because they hurt too badly. When she returned on March 1, a boy in the office removed her teeth, took them back to the lab to work on them. When he returned they still did not fit and he made a second adjustment. When Dr. Velez appeared he advised her that she would probably have to use powder and that it may be several weeks before she would get used to the teeth. Inasmuch as each visit was now costing $10 she didn't feel that she could make more visits. On March 4th Mrs. Gier called and asked for her money back. Initially the receptionist said all right, but called back and advised that Dr. Velez had changed his mind and could not give her money back. Subsequently when she and her husband stopped by to see Velez he told her if she didn't leave he would call the police. Later she visited Dr. Waldheim, to whom she had been referred by the Dental Board. Dr. Waldheim found the dentures did not fit as they were too large and the jaws could not close to their natural position. Using the witness as a model Dr. Waldheim had her insert the teeth at the hearing. It was clearly evident that the jaws were extended by the teeth and the lips would not close. In Dr. Waldheim's opinion those teeth could never be made to fit. In February, 1976 Mr. Joseph Marrone visited Dr. Velez to have dentures made. He had heard that Dr. Velez was reasonable and the next door neighbor had recommended Dr. Velez. He had a partial plate held by three teeth on the, bottom that needed to be pulled. When Dr. Velez examined him Marrone was advised it would be better to pull the bottom and top teeth and make a full set of dentures. On the first visit Dr. Velez made impressions for the lower plate. On Mr. Marrone's second visit the lower plate was ready and was placed in his mouth. Although the receptionist told him not to take them out they hurt so badly that he had to. When he returned a few days later two girls in the office examined his teeth and made adjustments on them. However, the teeth never fit and were causing bruises and sores in the gums. He could not eat with them. Thereafter Dr. Velez made a second full set of teeth, but they too did not fit. After several adjustments were made Velez advised this would be the last time he could adjust them and if they didn't work he could do nothing more about it. Mr. Marrone then asked him to return his money `and he would go to a dentist who could prepare him a set of dentures he could wear. When Marrone subsequently complained to the dental board he was referred to Dr. Waldheim. Dr. Waldheim's examination of the dentures showed the lower plate extended and it could not be corrected to fit. Mr. Marrone was then referred to another dentist who was able to adjust the upper plate that had been made by Dr. Velez to fit but it was necessary to make a new lower plate for Mr. Marrone. With respect to the various patients of Dr. Velez that had been seen by Dr. Waldheim due to improperly fitting dentures, Dr. Waldheim expressed the opinion that the most probable cause of the ill-fitting dentures was in the manner in which the impressions were taken or in the material used in taking the impressions. If improper impression material was used it could have changed from the time the impression was taken until the time it was used for the mold for the dentures. None of the dentures made for the patients of Dr. Velez that were seen by Dr. Waldheim could have been adjusted so they would fit. Connie Bragdon and Marie Minzenberger worked in Dr. Velez's office in 1975 and 1976. Both had received training from Dr. Velez, both worked as Dr. Velez's assistants, both took impressions from which dentures were made, and both adjusted dentures. They were instructed to give a copy of the letter, admitted into evidence as Exhibit 9, to all patients. These letters contained a map showing the location of the office on the back and advised the prices that the doctor charged for various services. Letters similar to those in Exhibits 2, 4 and 9 were mailed to patients who called and requested information. Rebecca Velez, wife of Dr. Velez, testified over the objection of the attorney for Respondent, who objected on grounds of the husband and wife privilege. Mrs. Velez had worked in the office for approximately one and one half years in 1975 to early 1976. She too had received no previous training. She acknowledged that Exhibits 2 and 4 were very similar to those that were in the office and were given to all patients who visited the office. Dr. Henry Gagliardi, D.D.S. is a dental educator who established a dental hygiene school at the Florida Junior College in Jacksonville. Dr. Gagliardi defined a dental auxiliary as an individual working with or for a dentist. This person can be either a dental assistant or a hygienist; however, the latter requires a license and two years training. A dental assistant may be employed with no preparation or training. A hygienist can scale teeth, use instruments in the mouth, and take impressions. A person not licensed by the dental board may not legally take impressions from which a prosthetic device will be made, but they may take impressions for diagnostic purposes only. A dental assistant may not alter a prosthetic appliance (denture). If an extension on a prosthetic device causes problems to the patient the diagnosis and correction of this problem must be done by a dentist. Since the determination of the accuracy of the bite on a prosthetic device is very important, this is another task that must be done by the dentist and not by an auxiliarist. Dentures are often placed into the oral cavity immediately after extraction and when so done they act as a splint until the cavities heal. In the normal process gums will shrink following extraction of teeth and thereafter the dentures will require adjustment. Improperly fitting dentures can cause lack of equilibrium in the jaws, sore gums, and sores in the mouth. In December, 1973 Mrs. Norma Laursen, daughter-in-law of Margaret B. Laursen, visited Dr. Velez on an emergency basis to have a broken tooth repaired. Dr. Velez was unable to take her case at that time. Several months later she and her husband received an envelope in the mail containing a letter which was introduced into evidence as Exhibit 2. The introduction of Exhibit 2 was objected to on the grounds that there was no evidence that it was signed by Dr. Velez or sent by Dr. Velez. Ruling on this motion was deferred at that time. Since subsequent exhibits indicate that this letter was one of many of a similar kind that were distributed to various individuals, the objection is overruled and Exhibit 2 is admitted into evidence. Robert E. Laursen corroborated the testimony of his wife, Norma. James E. Stone, of Titusville visited Dr. Velez while Velez was practicing in Titusville some two and one half to three years ago. He had chipped a tooth over the week-end and went in to see Dr. Velez for emergency repairs on a following Monday. Dr. Velez took x-rays, filed the tooth down, and advised Mr. Stone that in the future he may need a root canal. Dr. Velez was never his family dentist. Some months later he received in the mail a letter which was offered into evidence as Exhibit 4. Mrs. Stone corroborated the testimony of Mr. Stone with respect to the receipt of Exhibit 4 in the mail. Exhibit 4 was objected to on the same grounds as Exhibit 2 and at the time the ruling on the objection was deferred. For the same reasons given above, Exhibit 4 is now admitted into evidence. Six witnesses, Susan Weiler, Daryl DeVevc, Gustav Jicha, Daisy Smith, Robert B. Smith, and Janice Sidley testified on behalf of Dr. Velez. All had received treatment from Dr. Velez and considered him to be an excellent dentist who did very fine work for each of them. Some had experienced difficulties with dentures made by other dentists, but those prepared by Dr. Velez were excellent. A series of commendatory letters addressed to Dr. Velez were admitted into evidence as Exhibit 13. Attached thereto is an affidavit signed by some 57 former patients to the effect that Dr. Velez had performed dental work on them and they were completely satisfied with his service, his professional conduct and competence as a dentist. Copies of various certificates held by Dr. Velez were admitted into evidence as Composite Exhibit 14.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal numerical point value to each criterion; it should also regrade procedure 3 giving consideration only to the grades of examiners 038, 02 and 048; all other requests for relief should be DENIED. DONE and ORDERED this 10th day of January, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1983.
The Issue The issue in this case is whether Petitioner, Jennifer Lee Brown, D.M.D., should receive a passing grade on the December 1997 Florida dental licensure examination.
Findings Of Fact Petitioner, Jennifer Lee Brown, D.M.D., is a graduate from the University of Florida College of Dentistry. Respondent, the Department of Health (hereinafter referred to as the "Department"), is responsible for the licensure of dentists in the State of Florida. In December 1997 the Florida Department of Business and Professional Regulation, on behalf of the Department, administered the Florida dental licensure examination which persons wishing to practice dentistry in the State were required to pass. Dr. Brown took the December 1997 dental examination (hereinafter referred to as the "Examination"). The Examination consisted of clinical, Florida laws and rules, and oral diagnosis parts. The clinical portion of the Examination consisted of 8 procedures: procedures 1-3 and 5-9. Each procedure was graded by three separate examiners. The scores awarded by the three examiners on each procedure were averaged, resulting in a truer score. Each procedure had standardized "comments" concerning a candidate's performance on the procedure which examiners could note. Examiners were selected from individuals recommended by existing examiners or members of the Board of Dentistry (hereinafter referred to as the "Board"). Prospective examiners could not have any complaints against their license and they were required to have actively practiced dentistry and to be licensed as a dentist in Florida for a minimum of five years. Prospective examiners were required to file an application with the Board's examination committee. Prior to the Examination, a "standardization" session was conducted for the examiners selected. During the session, examiners were trained how to grade the Examination using the same internal criteria. The standardization session was conducted by assistant examiner supervisors appointed by the Board. After completion of the standardization session, and before the Examination, examiners were required to grade five mannequin models in order to evaluate the examiners' understanding of the grading criteria. Each examiner's performance was evaluated to determine whether the examiner should be used during the Examination. The examiners who graded Dr. Brown's clinical part of the Examination were designated as Examiners 168, 176, 195, 207, 264, 290, 298, and 299. All of these examiners completed the standardization session and the post-standardization evaluation. During the clinical part of the Examination, the examiners were required to grade each procedure independently, without conferring with each other. The clinical part of the Examination was "double blind" graded. Examiners did not see the candidates they were grading or watch their work. The test procedures were performed in a clinic in the presence of a licensed dentist. After the procedure was completed, the patient or tooth was taken to another clinic where the examiners reviewed the work performed on the patient and graded the procedure. The examiners had no direct contact with any candidate. Candidates were permitted to use "monitor-to-examiner" notes to convey information to the examiners that a candidate wanted the examiners to take into consideration when grading a procedure. Any such notes were read by the examiners and initialed "SMN" (saw monitor note) before they actually looked at the patient or tooth. For the clinical part of the Examination the following grading system was used: Zero: complete failure; One: unacceptable; Two: below minimally acceptable. Three: minimally acceptable. Four: better than minimally acceptable. Five: outstanding. After the Examination was graded, all examiners underwent a post-examination evaluation. Grades awarded by each examiner were compared to other examiners for consistency. All of the examiners who graded Dr. Brown's clinical part of the Examination were found to have performed acceptably. Dr. Brown was subsequently informed that she had failed to obtain the minimum passing grade of 3.00 for the clinical part of the Examination. Dr. Brown was informed that she had been awarded a score of 2.67. Dr. Brown was also informed that she passed the other two parts of the Examination. Dr. Brown challenged the scores she had been awarded on the clinical part of the Examination for procedures 2, 5, 6, 7, 8, and 9. The procedures challenged were graded by examiners 176 (graded all the challenged procedures), 195 (graded procedures 5- 9), 207 (graded procedure 2), 298 (graded procedure 2), and 299 (graded procedures 5-9). The Department conceded that the scores awarded Dr. Brown on procedures 7 and 8 were incorrect. As a result, the Department agreed that Dr. Brown's overall score for the clinical part of the Examination should be raised to 2.82. The evidence failed to prove that Dr. Brown should have received a higher score on procedures 7 and 8. Procedure 2 consisted of an amalgam (filling)n preparation on a human patient. Dr. Brown was required to select a tooth and, after the selected tooth was checked by an examiner, complete preparation for the amalgam. Dr. Brown wrote three monitor-to-examiner notes during procedure 2. All three examiners wrote "SMN" on all three notes. Dr. Brown received an average score on procedure 2 of 3.66. Dr. Brown was awarded the following individual scores for her performance on procedure 2: Examiner Score 176 4 207 4 298 3 Examiners 176 and 298 noted the following comment concerning Dr. Brown's performance on procedure 2: "Depth Prep." Examiner 298 also noted the following comment: "Marginal Finish." Examiner 207 noted the following comment: "Retention Form." Dr. Brown admitted that her performance on procedure 2 was not ideal, but expressed concern that she was graded down for matters dealt with in the monitor-to-examiner notes. Dr. Shields opined that it was possible for the examiners to have reduced the score awarded to Dr. Brown on procedure for depth preparation, marginal finish, and retention form and not have graded her down for the monitor-to-examiner notes. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 2 of the clinical part of the Examination. Dr. Brown received a fairly consistent score from all three graders. Procedure 5 was a "class IV composite restoration." This procedure involved the selection of a tooth by Dr. Brown which she was then required to make a slice cut on to replicate a fracture. Dr. Brown was then required to restore the simulated fractured tooth to its normal contour and function. The procedure was performed on a mannequin. Dr. Brown received an average score of 1.66 on procedure 5. Dr. Brown was awarded the following individual scores for her performance on procedure 5: Examiner Score 176 3 195 0 299 2 Examiners 176 and 195 noted the following comment concerning Dr. Brown's performance on procedure 5: "Proximal Contour." Examiners 176 and 299 noted the following comment concerning Dr. Brown's performance on procedure 5: "Margin." Finally, the following additional comments were noted by the examiners: Examiner Comment: 195 Functional Anatomy Mutilation of Adjacent Teeth 289 Gingival Overhang Dr. Brown's challenge to her score for procedure 5 was essentially that Examiner 199 had given her such a low score on this procedure and procedures 7 through 9 when compared to the scores awarded by Examiners 176 and 298. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 5. Dr. Shields' opinion was based generally upon his 21 years of experience as a dentist. More specifically, Dr. Shields based his opinion upon his examination of the actual tooth that Dr. Brown performed procedure 5 on. Dr. Shields found excess material left at the gingival or gum portion of the tooth. Dr. Shields also found that Dr. Brown attempted to polish the material off and had flattened some of the surface of the tooth. Apparently, based upon Examiner 195's comment notes, Examiner 195 was the only examiner to catch these deficiencies in Dr. Brown's performance on procedure 5. Dr. Shields also found slight damage on the mesial, the approximating surface of the lateral incisor, the tooth next to the tooth that was restored. The evidence failed to prove that Dr. Shields' opinions concerning Dr. Brown's performance on procedure 5 were not reasonable and accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 5 of the clinical part of the Examination. Procedure 6 required that Dr. Brown perform an Endodontic Evaluation of the Maxillary First Premolar. Dr. Brown was required to select an extracted tooth, a maxillary tricuspid, examine x-rays of the tooth, and then perform a root canal on the tooth. The tooth had two roots. The root canal involved creating an opening in the tooth and removing the pulpal tissue from the two nerve canals of the tooth (a debridement). The canals were to be shaped for an obturation or the filling of the canal. A final x-ray of the tooth was taken after the procedure was completed. Dr. Brown received an average score on procedure 6 of 1.00. Dr. Brown was awarded the following individual scores for her performance on procedure 6: Examiner Score 176 3 195 0 299 0 All three examiners noted the following comment for Dr. Brown's performance on procedure 6: "Proper Filling of Canal Spaces with Gutta Percha." Gutta Percha is the material that was used by Dr. Brown to fill the canal of the roots after she completed the debridement. Examiner 195 noted the following additional comment for Dr. Brown's performance on procedure 6: "Access Preparation." Examiner 299 noted the following additional comment: "Shaping of Canals." Dr. Brown's challenge to her score for procedure 6 was based in part on her concern that Examiners 199 and 299 had given her a score of 0 on this procedure while Examiner 176 had given her a score of 3. Dr. Brown admitted that she had caused the gutta percha to extrude through the apex of the canals. She argued, however, that gutta percha is reabsorbed by the patient. Therefore, Dr. Brown suggested that her performance was "clinically acceptable." Dr. Brown questioned how one examiner, Examiner 176, could conclude that her performance was in fact clinically acceptable, while the other two examiners concluded it was not. The difficulty with Dr. Brown's position with regard to procedure 6 is that she assumes that the only deficiency with her performance was the extrusion of gutta percha and that it was not a significant deficiency. The evidence failed to support this position. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 6. His opinion was based upon the fact that the extrusion of gutta percha was very significant on one of the canals: it extended a millimeter and a half. On the other canal it was a half of a millimeter. Filling the canal one half millimeter to a millimeter is considered ideal. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. During the standardization session, examiners were told that extrusion of gutta percha more than a half millimeter through the apex was to be considered an error of major consequence. Candidates who extruded guttal percha more than a half millimeter were not to receive a grade higher than one. In light of the instructions during the standardization session, it was more likely that Examiner 176 gave Dr. Brown too high of a score on procedure 6. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 6 of the clinical part of the Examination. Procedure 9 was a pin amalgam final restoration. Although this procedure involved, in a lay person's terms, a filling, what exactly was involved in this procedure was not explained during the formal hearing. Dr. Brown received an average score on procedure 9 of 1.66. Dr. Brown was awarded the following individual scores for her performance on procedure 9: Examiner Score 176 4 195 0 299 1 All three examiners noted the following comment concerning Dr. Brown's performance on procedure 9: "Functional Anatomy." Examiners 195 and 299, who both graded Dr. Brown below minimal acceptability, also noted the following comments: "Proximal Contour," "Contract," and "Margin." Dr. Brown failed to present any evidence to support her claim that she should have received a higher score for procedure Dr. Brown simply questioned the fact that Examiner 195 had graded her low on all the clinical procedures. Dr. Shields opined that Dr. Brown should not receive a higher score on procedure 9. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 9 of the clinical part of the Examination. Dr. Brown's challenge in this case was based largely on the fact that Examiner 195 had graded her performance on procedures 5, 6, and 9 as a zero, procedure 7 as a one, and procedure 8 as a two. Other than the fact that Examiner 195's scores were consistently low, the evidence failed to prove that Examiner 195 improperly graded Dr. Brown except as conceded by the Department on procedures 7 and 8. Comparing the scores awarded by Examiner 195 to Examiner 176 does raise some question as to why there was such a discrepancy in the two examiners' scores. When the scores on procedures 5, 6, and 9 of all three examiners are compared, however, Examiners 195 and 298 generally were consistently below acceptable, while Examiner 176's scores were generally higher on these three procedures: Examiner Procedure 5 Score Procedure 6 Score Procedure 9 Score 176 3 3 4 195 0 0 0 299 2 0 1 This simple mathematical comparison, however, is not sufficient to conclude that Examiner 195 scored too low or that Examiner 176 scored too high. Other than a simple comparison of the scores of the three examiners, the only evidence concerning whether Examiner 195 graded too low based upon the scores alone was presented by Ms. Carnes, an expert in psychometrics. Ms. Carnes opined that Examiner 195's performance was acceptable, except with regard to procedures 7 and 8. The evidence failed to refute Ms. Canres' opinion. Based upon the weight of the evidence, Dr. Brown's score for the clinical portion of the Examination, as adjusted by the Department during the final hearing of this case, was reasonable and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health, Board of Dentistry, dismissing Dr. Brown's challenge to the amended grade awarded for the clinical part of the December 1997 Dental Examination. DONE AND ENTERED this 14th day of September, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1998. COPIES FURNISHED: Jennifer Brown Post Office Box 39 Starke, Florida 32091-0039 Anna Marie Williamson, Esquire Office of the General Counsel Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 William Buckhalt, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978. In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam. A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following: Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression Pin amalgam preparation Pin amalgam final restoration Endodontic anterior Endodontic posterior Cast gold preparation Cast gold restoration Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered. Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following: 0 = complete failure 1 = unacceptable dental procedure 2 = below minimal acceptable dental procedure 3 = minimal acceptable dental procedure 4 = better than minimally acceptable dental procedure 5 = outstanding dental procedure Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure. Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets. Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services. PROCEDURE NUMBER 5 Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure. Petitioner received the grades of 3, 2 and 2, for an overall score of 2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little. Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing. Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively. Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous." PROCEDURE NUMBER 6 Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability. The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous." PROCEDURE NUMBER 8 Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation. Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth. Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively. Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed. PROCEDURE NUMBER 9 Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish. Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6. The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry. PROCEDURE NUMBER 10 Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners. According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure. A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head. As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it. PROCEDURE NUMBER 11 Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld. Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Robert Dyer, Esquire Duckworth, Allen, Dyer and Pettis, P.A. 400 West Colonial Post Office Box 3791 Orlando, Florida 32802 Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner was an applicant for licensure by examination to practice dentistry in the State of Florida. The practical examination, which is the portion here contested, consisted of 11 procedures, each of which is graded separately by three examiners. Petitioner took the dental examination in December, 1983, and obtained a total overall grade of 2.93 (Exhibit 3). A grade of 3.0 is required to pass the examination. He is here contesting only procedures No. 01 in which he received grades from the three examiners of 3, 3, and 0 (Exhibit 1); and procedure No. 05 in which he received grades of 2, 3, and 0 from three different examiners. Examiners for the dental examination are all currently licensed dentists in the State of Florida who have been extensively trained and standardized by the Department of Professional Regulation. A standardization exercise takes place immediately prior to each examination during which the examiners grade identical procedures and discuss any grade variances to eliminate, as far as possible, any discrepancies in interpretation of the grading criteria. Examiners are selected based on their experience as examiners and their ability to grade without extremes of harshness or leniency. Candidates are informed of the grading criteria prior to the examination through the notice to appear (Exhibit 4) and the applicable laws and rules which are sent by the Office of Examiner Services to all candidates prior to the administration of the examination. In procedure No. 01 (Exhibit 1) one of the examiners found caries not removed in the preparation process, noted on the grade sheet where the caries was located, and gave a mandatory zero for this procedure. Although the other examiners did not see this caries, and gave grades of 3, it was in a difficult place to see and feel with the explorer. The examiner who found the caries submitted a note to the monitor (Exhibit 7) to have all decay removed before the tooth was filled and the monitor's notation on Exhibit 7 indicates this was done. In procedure No. 05 (Exhibit 2) which involved cleaning a specified number of teeth, one examiner found stain and root roughness and gave a grade of 2; a second examiner found root roughness and gave a grade of 3; while the third examiner found supra-gingival calculus, root roughness and subgingival calculus, and gave a grade of 0. One of the expert witnesses who testified was the examiner who graded Petitioner a failing grade of 2 on this procedure. Since he did not actually see subgingival calculus but saw stain and felt the rough tooth, he did not give a zero mark which he would have given had he also seen the subgingival calculus. The Notice to Appear (Exhibit 4) and the rules sent to the candidates are clear that all subgingival and supra-gingival foreign particles must be removed and a grade of zero is mandatory if the procedure is not completed, which would include removal of all calculus. The comments on the grade sheets support the grades awarded. Here, two of the three examiners gave Petitioner a failing grade on procedure No. 05 and the fact that only one of the examiners saw the subgingival calculus does not indicate this grade is erroneous. These grades were not very different but merely reflect different degrees of similar conditions as they were observed by the examiners.
The Issue This is a license discipline case in which the Respondent has been charged in a Corrected Administrative Complaint with a violation of Section 466.028(1)(m), Florida Statutes.
Findings Of Fact At all times material to this proceeding, the Respondent, Dr. Merle N. Jacobs, has been licensed to practice dentistry in the State of Florida. He currently holds license number DN 0005940. During the period from January 22, 1993, through March 27, 1995, T. C. was a patient of the Respondent. During that period of time, the Respondent performed various dental services for T. C., including the making and fitting of a partial denture. The Respondent prepared and kept dental records and medical history records of his care of patient T. C. The Respondent's records of such care are sufficient to comply with all relevant statutory requirements. The Respondent's records of such care do not include any notations specifically identified or captioned as a treatment plan. The records do, however, include marginal notes of the course of treatment the Respondent intended to follow in his care of patient T. C. Those marginal notes describe the treatment the Respondent planned to provide to patient T. C.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998.
The Issue The issue in this case is whether Colette Michele Gatward (Petitioner) should receive a passing score on the Florida Dental Hygiene Clinical Examination.
Findings Of Fact The Petitioner was a candidate for licensure as a dental hygienist by the State of Florida. All candidates for Florida licensure as dental hygienists are required to pass the Florida Dental Hygiene Clinical Examination. The Petitioner took the exam on November 5, 2010. Information and instructions related to the exam were provided to candidates through a "Candidate Information Booklet" (CIB) that was posted on the Respondent's Internet website approximately 60 days prior to the date of the exam. Candidates were expected to review the information contained in the CIB. The Petitioner was aware of the information in the CIB. Part of the exam required that each candidate perform certain clinical procedures to the teeth of a human patient. The CIB stated that each candidate was responsible for providing their own human patient upon whom the clinical procedures could be performed. A panel of three examiners reviewed and scored each candidate's performance of the clinical procedures. In relevant part, the CIB stated that each candidate must submit a patient with 12 surfaces of explorer-detectable moderate subgingival calculus. An explorer is a piece of equipment used in dental practice. The CIB stated that 6.5 points would be awarded for each of the 12 surfaces of subgingival calculus detected and removed by the candidate during the exam. The CIB also stated that failure to detect and remove a minimum of nine surfaces of moderate subgingival calculus would result in a candidate receiving less than a passing score on the exam. The CIB specifically stated that "[p]oor patient selection and management is a common reason for examination failure." The Petitioner brought her sister-in-law to the exam to serve as her patient. After the applicable portion of the exam was completed, the panel of three examiners evaluated the Petitioner's clinical performance. Two of the three examiners determined that the Petitioner had detected and removed subgingival calculus from only eight surfaces of her patient's teeth. There was no evidence presented to indicate that the Petitioner neglected to remove subgingival calculus from her patient's teeth. The Petitioner was aware at the time of the exam that her sister-in-law did not have sufficient subgingival calculus to meet the patient requirements for the clinical demonstration. The insufficient degree of subgingival calculus present in the Petitioner's patient prior to the clinical exam precluded the Petitioner from passing the exam. The Petitioner received a total deduction of 26 points (6.5 points deducted for each of the four surfaces upon which no subgingival calculus was detected) and failed the exam with a score of 74. The Petitioner offered no credible evidence that the panel of examiners improperly reviewed her performance on the exam or that the score she received on the November 5, 2010, administration of the exam was in any manner incorrect. At the hearing, the Petitioner testified that she is licensed as a dental hygienist in another state, that the examinations in both states were conducted by the same regional testing agency, and that the scores from the other state should be accepted by the Respondent for licensure of dental hygienists in Florida. Florida law does not provide for dental hygienist license reciprocity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petitioner's challenge to the scoring of the exam referenced herein. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: Morris Shelkofsky, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Colette Michele Gatward 2212 Margarita Court Kissimmee, Florida 34741 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 H. Frank Farmer, M.D., Ph.D., Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Joseph L. Ratchford is a graduate of the University of Georgetown School of Dentistry and took the Florida dental exam in June, 1984. The clinical, or practical, portion of the dental exam consists of ten procedures and the examinee must obtain a total combined weighted grade of 3.0 to pass the clinical portion of the exam. Petitioner received a total overall grade of 2.96 and has questioned the grades he received on two of the ten procedures. In grading the clinical portion of the exam, three examiners separately review and grade each procedure performed by the examinees. At each examination, approximately twelve to thirty examiners are used, and three hundred to four hundred candidates are examined. Each examiner must successfully complete an eight to twelve hour standardization exercise during which they are trained on the grading scale, procedures, and the criteria to be used in grading the clinical portion of the exam. The Board of Dentistry determines the criteria to be used in grading the exams and the grading scale. A perfect score is a "5" and a complete failure is a "O". Examiners are chosen by the Board of Dentistry based upon their successful completion of the standardization exercise and must also have been licensed in Florida for at least five years. Petitioner received grades of 2, 3, and 5 from the three examiners grading the Periodontal procedure on his exam. This resulted in a grade of 3.33 on the Periodontal procedure. Petitioner objects to the grading of this procedure due to the wide disparity in the three examiners' grades. The periodontal procedure is performed on a live patient and is an evaluation of the patient's teeth, root structure, and supporting structures. In grading this procedure, five criteria are used: Presence of stain on assigned teeth. Presence of supra-gingival calculus on assigned teeth. Presence of sub-gingival calculus on assigned teeth. Root roughness on assigned teeth. Tissue management. While several of these criteria are easily observable, criteria (c) and (d) are not, and in fact are sometimes hard to distinguish from each other. The grading system requires two points to be taken off when sub-gingival calculus is present on the assigned teeth (criteria c), and allows one to four points to be deducted for root roughness on the assigned teeth (criteria d). Examiner 10 gave Petitioner a grade of 2 since the examiner found Petitioner was deficient on criteria (a), (c), (d) and (e). A grade of 2 is appropriate with these deficiencies, although such a grade may even be a bit high. Examiner 10 had participated in seven exams prior to the one in question and a post-exam evaluation of all examiners shows that Examiner 10 ranked 6th out of 18 examiners in terms of grading accuracy. Examiner 35 gave Petitioner a grade of 3 since the examiner found Petitioner was deficient on criteria (c). A grade of 3 is mandatory is this situation since the presence of subgingival calculus requires two points to be deducted from the grade. Examiner 35 had participated in no previous exams but ranked 7th out of 18 examiners in terms of grading accuracy, according to a post-exam evaluation of all examiners. Examiner 82 gave Petitioner a perfect score of 5, noting no deficiencies. This was the second exam Examiner 82 had participated in and he ranked 17th out of 18 examiners in terms of grading accuracy. Therefore, the perfect score which Petitioner received from Examiner 82 is the least reliable of the three grades on the Periodontal procedure since Examiner 82 had the worst ranking for accuracy among these three examiners, and was next to last among all examiners. On the Cast Class II Onlay Prep procedure, Petitioner received grades of 1, 0, and 1. This resulted in a grade of .66 on this procedure. Petitioner objects to the grading of this procedure. He states he performed this procedure the way he was taught in dental school, he alleges that the comments of the examiners conflict, and he feels it is impossible to measure tooth reduction without an opposing model. The Cast Class II Only Prep procedure is performed on a model, or mannequin, and consists of a restoration onlay wax-up on a posterior tooth. In grading this procedure five criteria are used: Outline form Depth Retention Gingival level Mutilation of opposing or adjacent teeth Examiners 6 and 37 gave Petitioner a grade of 1. Examiner 6 commented on his score sheet that "Distal box too deep and undercut; excess facial cusp reduction." Examiner 37 commented that outline form was poor and "no lingual cusp protection." Examiner 15 gave Petitioner a score of 0 and commented that there was insufficient reduction of the functional cusp. Each of these examiners had participated in at least two previous exams, and each had a high grading accuracy ranking according to a post-exam evaluation of all examiners. Specifically, Examiner 15 ranked 1st, Examiner 37 ranked 4th and Examiner 6 ranked 8th out of 18 examiners. The comments of the examiners do not conflict and, in fact, do support the grades given. An examination of the mannequin used by Petitioner to perform this procedure (Petitioner's Exhibit 1) by a dental consultant who has been a licensed dentist in Florida since 1971, and who was accepted as a expert on the technical aspects of the clinical portion of the dental exam, confirms and supports the grades given by the examiners on this procedure. The major and significant deficiency on this procedure was Petitioner's failure to adequately reduce the functional or lingual cusp, and excessive reduction of the facial cusp resulting in the subject tooth being almost level. Although it is difficult to determine the amount of tooth reduction without an opposing model, and no opposing model was used in the exam, the teeth used for the exam mannequin are manufactured in large quantities from the sane mold or form. Therefore, variations in these model teeth before the procedures are performed are not visible to the naked eye. Improper reductions on these teeth are visible to the examiners who have seen this procedure performed many times on these same models, both in exams and in the standardization procedure. According to an examination development specialist employed by Respondent who was accepted as an expert in testing and measurement, specifically for the dental exam, the grading of exams which involve hands-on, practical demonstrations of an examinee's skill level is not entirely objective. There is some subjectivity in assigning grades after criteria for each procedure are evaluated. This is why three examiners separately review each procedure, and the average of their grades is used. In addition, Respondent performs the standardization exercise prior to the exam and then evaluates each examiner's grades for accuracy after the exam in order to minimize disparity and the effects of subjectivity. Examiners who do not receive a good evaluation in the post-exam review are not used in subsequent exams. Proposed findings of fact and conclusions of law have been submitted by the parties pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. Specifically, Petitioner's proposed findings numbered 7, 10, 11 and 12 are rejected for these reasons, and also because they are not based upon competent substantial evidence.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order upholding the grades given to Petitioner and denying the relief sought by Petitioner. DONE and ENTERED this 19th day of April, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1985. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael S. Rywant, Esquire 240 Hyde Park Avenue Tampa, Florida 33606 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Ms. Gioia is eligible for re-examination of her clinical dental skills after having failed the clinical dental examination three times. She seeks to be re-examined without completing either a one year general practice residency or a minimum of one academic year of undergraduate clinical course work in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation.
Findings Of Fact Ms. Gioia first attempted the clinical dental licensure examination in June, 1987. On June 11, 1987, during the periodontal portion of the examination, Ms. Gioia was found to be in possession of a periodontal chart, which a monitor regarded as unauthorized written material for an examination candidate to have. The monitor made a report of an irregularity during the examination. On September 3, 1987, Ms. Gioia received from the Board of Dentistry a notice that she had failed to obtain a passing score on the June, 1987, clinical dental licensure examination, and that the Board had been presented with evidence that during the examination she had unauthorized written material in her possession, viz., a periodontal chart, which constituted a violation of Section 466.028(1)(bb), Florida Statutes, and Rule 21-11.007(1)(e), Florida Administrative Code, and that she would not be permitted to be re- examined until she completed a two credit hour college level course in ethics. The letter also notified her that: You may seek review of the above, by filing a petition with the Executive Director of the Board within twenty-one (21) days of your receipt of this notice. You may request a formal proceeding pursuant to Section 120.57(1), Florida Statutes, or informal proceedings pursuant to Section 120.57(2), Florida Statutes. If you request formal proceedings, the petition must contain the information required by Rule 28-5.201, Florida Administrative Code. Ms. Gioia then retained counsel, Kenneth Muszynski, and requested an informal hearing on September 28, 1987. The matter came before the Board of Dentistry on July 23, 1988, at its meeting in Tallahassee. According to the Final Order entered by the Board on October 14, 1988, (Board Exhibit 3) the Board found: . . . based upon [Ms. Gioia's] testimony relating to her possession of the periodontal chart, the Board determines that [her] possession of the periodontal chart did not constitute any intentional violation of examination rules or an attempt to obtain a license by fraud and ordered that she: . . . be certified for licensure without restriction upon her successful completion of the licensure examination. That Final Order effectively rescinded the requirement that she take an ethics course before she could be examined a second time. No appeal from that Final Order was ever taken. There is no indication in the evidence that Ms. Gioia ever challenged the finding made in the Board's September 3, 1987, letter that she had failed to obtain a passing score on the clinical dental examination given in June, 1987. Rather, she had challenged the allegation of misconduct which had resulted in a restriction on her ability to take the examination again. Ms. Gioia took the clinical dental examination for a second time in December of 1987, and did not obtain a passing score. She took the clinical dental examination for a third time in June of 1988, and again failed to receive a passing score. As a result, she received a letter on August 5, 1988, from the Board of Dentistry which states, in pertinent part: Pursuant to Florida Statutes 466.006(4)(b)5., . . . "If [an] applicant fails to pass the clinical examination in three attempts, he shall not be eligible for re-examination unless he completes additional education requirements established by the Board." Therefore, you are not eligible to sit for the Florida Dental Examination until you complete a one year general practice residency or a minimum of one academic year of undergraduate clinical coursework in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation. This letter prompted Ms. Gioia to request a review of her score on the June, 1988, clinical dental examination. After the review, Ms. Gioia was informed that the review did not result in an alteration of her grade, and if she wished to initiate a formal administrative hearing to challenge her grade she must do so within 30 days from the date of that October 4, 1988, letter. A petition for formal administrative hearing was filed, again by Kenneth Muszynski, on her behalf on November 14, 1988, which instituted this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the petition for formal hearing filed by Ms. Gioia which contended that her score on the clinical dental examination in June, 1987, should not be counted due to monitoring misconduct which unsettled her, and ordering that she not be certified to re-take the clinical dental examination until she completes the education requirements imposed in Rule 21G-2.021(2), Florida Administrative Code. DONE and ENTERED this 23rd day of August, 1990, at Tallahassee, Florida. 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 23rd day of August, 1990. Copies furnished: Vytas Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 D. Carlton Enfinger, Esquire Barrett, Bajoczky, Hoffman and Harper 131 North Gadsden Street Post Office Box 1501 Tallahassee, Florida 32301-1501 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
