The Issue At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," as well as an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes (1995), now codified at Section 120.569(1)(c), Florida Statutes (1997), as alleged in the amended petition for attorney's fees and costs.
Findings Of Fact Findings related to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes (1997). At all times pertinent to this proceeding, Robert J. Fish, D.D.S. (Dr. Fish) was licensed to practice dentistry in the State of Florida, having been issued license number DN 000 5694. On or about August 22, 1989, D. E. (the "Patient") filed a written complaint with the Department regarding the care and treatment that she had received from Dr. Fish. The complaint provided: On June 27, 1989 I came to see Dr. Garrison complaining about my lower partial made by Dr. Fish in 1988. Dr. Garrison examined [my] Lower Right #27, 28, 29 and found Buccal margins to be opened. Also, the Lower Partial is the kind his office uses as a temporary. Considering the amount of money paid, Dr. Garrison recommended that I consult with the Broward County Dental Assoc. They in turn told me that . . . they do not handle this type of problem and advised me to get in touch with the Fl Dept of Professional Regulation. As per my conversation with Mr. Hunter of your dept I filled these forms out and am enclosing zerox copies of my cancelled checks relating to payment and statements and other papers with pictures of my teeth. Should I have overlooked anything that I should have sent you kindly let me know. To the lay eye, the Patient's complaint would seem to relate to one matter, that being a lower partial, whose construction was more consistent with a temporary or transient appliance, as opposed to one intended for permanent use, and whereon the Buccal margins of teeth number 27, 28, and 29 were found to be open. In fact, as the investigatory record discloses, there are actually two separate items in the Patient's complaint. First is the complaint associated with open margins noted on teeth 27, 28, and 29. Those teeth are part of a fixed bridge installed by Dr. Fish, and distinguishable from the Patient's lower partial (denture), which was a removable appliance.3 Following receipt of the complaint, the Department began its investigation in accordance with Section 455.225(1), Florida Statutes. The matter was assigned DPR Case No. 89-09812. By letter of October 9, 1989, the Department advised Dr. Fish of the Patient's complaint, as follows: THE PATIENT STATES that you provided lower partial for teeth #27, #28 and #29 in 1988. Complainant alleges subsequent dentist advised her that buccal margins are open. She further has been advised that the partial denture that you indicated was a permanent- denture is the type that is normally used as a temporary denture. Apparently, at this stage, the Department did not appreciate the nature of the Patient's complaint or, as observed in Endnote 3, the significance of the language it used to convey the Patient's complaint to Dr. Fish. In response to the Department's letter, Dr. Fish forwarded to the Department copies of the Patient's records, including x-rays. Additionally, Dr. Fish provided the following written response regarding the lower partial (denture): This patient is high strung and often incoherent, she often appears to be suffering from memory loss, i.e. Alzheimer's disease. The lower partial was made as a provisional partial due (sic) the extraction of several teeth. The patient was informed that upon sufficient stabilization of the boney ridge she could obtain a cast frame & acrylic partial. She refused to have any relining procedures which are necessary as bone resorbtion takes place. This option is still available to her. Dr. Fish's response did not address the open Buccal margins noted on teeth 27, 28, and 29; however, as heretofore noted, that question was unrelated to any complaint the Patient might have voiced regarding the lower partial. Pertinent to an understanding of the Patient's complaint, the Patient's records reveal the following two treatments. First, in October and November 1987, Dr. Fish undertook preventive and reconstructive work on the lower (mandibular) right side of the Patient's mouth. That work consisted of the replacement of the existent crowns on teeth 27, 28, and 29, with a ceramic three unit lower right bridge (also referred to as a three unit lower right splint), consisting of three individual crowns on teeth 27, 28, and 29, tied together (splinted) to strengthen the periodontally involved teeth. Contemporaneously, Dr. Fish replaced the lower right molar (tooth 30) with a removable wrought wire and acrylic partial (removable denture). Second, in September 1988, Dr. Fish undertook preventive and reconstructive work on the lower left side of the Patient's mouth. At that time, an existing five unit bridge (teeth 18 through 22) was severed, the bridge for teeth 18 through 20 was removed, and teeth 18 and 19 were surgically extracted. Thereafter, the lower partial which had replaced the molar on the lower right side was modified to include the replacement of teeth 18, 19, and 20 on the lower left side. This lower wrought wire and acrylic partial (removable denture), which replaced the molar on the lower right and the teeth 18, 19, and 20 on the lower left, was the lower partial the Patient complained of to the Department. As part of its investigation, the Department also contacted H. B. Garrison, D.D.S. (Dr. Garrison), who succeeded Dr. Fish as the Patient's treating dentist. Dr. Garrison provided the Department with the Patient's records, including x-rays, and by letter of November 6, 1989, advised the Department that: [D. E.] . . . came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort.4 I examined the lower bridgework and found the buccal margins of teeth #27, 28, 29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. If I can be of further assistance to you, please do not hesitate to contact me. Thank you. Given the Patient's records provided by Dr. Fish and Dr. Garrison, as well as Dr. Garrison's response, it is evident that there were two concerns raised by the Patient. First, the buccal margins observed on teeth 27, 28, and 29 of the lower right bridge, and second the adequacy of the lower partial. The Department presented its investigative report, together with the supporting documentation heretofore discussed, to the Probable Cause Panel of the Board of Dentistry (the Panel) for its consideration. Contemporaneously, the Department's counsel presented a draft closing order, which proposed a finding of probable cause with regard to the inadequacy of the lower partial and closure with a letter of guidance. No mention was made of the concerns related to the lower right bridge. The proposed order read as follows: CLOSING ORDER THE COMPLAINT: The Subject's treatment failed to meet the minimum standard of care. THE FACTS: The Subject provided patient D.E. with a lower denture which was allegedly unsatisfactory and has allegedly refused to correct the problem. Patient D.E. presented to a subsequent treating dentist who stated that the denture prepared by the Subject was inadequately fabricated. When contacted, the Subject stated that the denture provided to patient D.E. was made as a provisional partial due to the extractions of several teeth. The patient was informed by the Subject that upon stabilization of the lower ridge, she could obtain a cast frame and acrylic partial. The patient refused to have any relining procedures, which are necessary as bone resorption takes place. THE LAW: Based on the foregoing, probable cause does exist to establish a violation of Section 466.028(1)(y), Florida Statutes, however, this case will be closed with a letter of guidance. IT IS, therefore, ORDERED that this matter be, and the same is hereby, CLOSED. DONE and ORDERED this day of , 1990. CHAIRMAN, PROBABLE CAUSE PANEL BOARD OF DENTISTRY On April 27, 1990, the Panel met to resolve whether probable cause should be found and, if so, the appropriate disposition of the complaint. Initially, the Panel voted to find probable cause and to close the case with a letter of guidance, as recommended by the proposed closure order submitted by the Department's counsel; however, upon realizing that Dr. Fish had one prior disciplinary matter and two more cases pending on "below standard of care issues," the Panel elected to withdraw its decision to close with a letter of guidance and directed the Department to file an administrative complaint "based on a single charge of inadequate lower denture," a perceived violation of Section 466.028(1)(y), Florida Statutes. With regard to the separate matter relating to perceived deficiencies (open margins on teeth 27, 28, and 29) in the Patient's lower right bridge, the panel took no action. In May 1990, following the Panel's finding of probable cause, the Department employed Mervyn Dixon, D.D.S., as an expert to evaluate the Patient's compliant, and, by letter of May 25, 1990, the Department's counsel advised Dr. Dixon of the following matters: Thank you for consenting to review the enclosed case. . . . The Probable Cause Panel reviewed the merits of this claim on or about April 27, 1990. They determined that an expert review was necessary to properly evaluate the veracity of the complaint.5 A clinical examination of the patient may be necessary in order to make an evaluation. Please do not hesitate to accomplish a patient examination if it is deemed necessary. This particular patient does not have access to transportation. It will be necessary to coordinate with the Bureau of Investigative Services in order to provide transportation. As always, your prompt attention to this case and the receipt of your report within thirty (30) days will be greatly appreciated. . . . Dr. Dixon examined the Patient on June 16, 1990, and, by letter of June 21, 1990, reported the results of that examination to the Department, as follows: On June 16, 1990, I performed a dental clinical exam for patient D.E. in my office. Since the complaint was limited to the mandibular arch, I merely noted that the patient presented with a full maxillary denture. The following findings were observed in the mandibular arch: 1.) the patient was wearing a wrought wire and acrylic lower partial 2.) a ceramic 3 unit bridge was present on teeth #'s 27, 28, 29 3.) a gold and acrylic 2 unit bridge was present on teeth #'s 21 and 22 4.) the four mandibular incisors were natural teeth and free from marked periodontal disease. The right three unit ceramic bridge exhibited the following: 1.) #27 has an open facial margin that would admit an explorer 2.) #28 has an open margin that would admit an explorer 3.) #29 exhibited a grossly open margin both facial and distal 4.) the only occlusion (partial out) was provided by tooth #28 - see enclosed bite registration 5.) also please see enclosed x-ray The mandibular wire and acrylic partial exhibited extremely tight clasps and the lingual adaptation around the teeth and crowns was very poor. Please see enclosed study model. It is my conclusion that neither the mandibular ceramic 3 unit bridge or the mandibular wire and acrylic partial meet community standards. I have provided the x-ray, photo, bite registration and study model as evidence since it is necessary for the patient to have these items replaced.6 In the process of replacement, they will be destroyed. On September 6, 1990, the Department issued an administrative complaint against Dr. Fish (DPR Case No. 89-009812) and on October 9, 1991, an amended administrative complaint.7 The amended complaint was served on Dr. Fish on October 15, 1991, and contained the following allegations upon which the Department proposed to take disciplinary action against Dr. Fish's license to practice dentistry: On or about October 1, 1987, patient D.E. presented to the Respondent [Dr. Fish] for bridgework on teeth #27, #28, and #29. On or about September 15, 1998, D.E. presented to the Respondent for a lower partial. On or about May 8, 1989, D.E. presented to a subsequent treating dentist complaining about discomfort with his (sic) lower partial. The subsequent treating dentist examined patient D.E.'s bridgework and observed the buccal margins of teeth #27, #28, and #29, were inadequately sealed. He also noted that the lower partial was the type usually used as a temporary partial. On or about June 16, 1990, patient D.E. presented to a departmental expert for examination. The consultant observed the teeth #27, #28, and #29 contained open margins. Failure to adequately provide a lower denture that was absent any open margins is failure to practice dentistry within the minimum standard of care as recognized by the prevailing peer community. Based on the foregoing, the Respondent is guilty of violating the following statutory provisions: Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of card (sic) in diagnosis and treatment when measured against generally prevailing peer performance. The administrative complaint filed by the Department is at material variance with the directions of the probable cause panel. Notably, while the complaint perceives the distinction between the two treatments (bridgework and lower partial) which formed the basis for the Patient's complaint, it bases the perceived violation of section 466.028(1)(y) on problems associated with the bridgework. The Panel did not find probable cause, nor direct the filing of a complaint, regarding the bridgework but, rather, the lower partial (denture). Dr. Fish filed an election of rights whereby he disputed the allegations contained in the amended administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Consequently, the case was referred to the Division of Administrative Hearings (DOAH) to conduct the formal hearing Dr. Fish had requested. The case was docketed as DOAH Case No. 92-0687. A formal hearing on the administrative complaint was held on June 1, 1993, where proof was offered and received regarding perceived deficiencies in both treatments (the bridgework and lower partial) provided by Dr. Fish. Subsequently, on January 24, 1994, a Recommended Order was rendered which concluded, inter alia, that the Department had failed to establish, by the requisite degree of proof, that, with regard to either the bridgework or the lower partial denture, Dr. Fish had failed to meet the minimum standard of care in diagnosis and treatment, and recommended that a final order be entered dismissing the amended administrative complaint. On April 16, 1994, the Board of Dentistry (Board) met to consider the Recommended Order. At the time, no exceptions had been filed by any party, and the Department recommended that the Board adopt the findings and recommended dismissal contained in that order. Notwithstanding, following discussion, the Board resolved to remand the case to the Division of Administrative Hearings. The Order of Remand was issued May 13, 1994. Following consideration of the parties' responses to the Order of Remand, the presiding officer entered an order (Order on Remand) on December 7, 1994, declining remand. That order, while amplifying upon the basis for certain factual findings and conclusions reached related to credibility, concluded that the Board had not presented any compelling reason to reconsider the findings of fact, conclusions of law, or recommended disposition contained in the Recommended Order. On January 6, 1995, the Board met to consider the Recommended Order and Order on Remand, and on February 25, 1995, entered a Final Order. The Final Order, with nominal modification, adopted the findings of fact and conclusions of law set forth in the Recommended Order, as well as the recommended disposition, and dismissed the amended administrative complaint filed against Dr. Fish. Findings related to the claim for attorney's fees and costs Pertinent to the claim for attorney's fees and costs, it is observed that the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Fish prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs is appropriate provided Dr. Fish can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust. Addressing first Dr. Fish's status, the proof demonstrates that at the time the underlying proceeding was initiated Dr. Fish was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes. Supportive of such conclusion is the proof of record which demonstrated that, at all times material: (1) Dr. Fish was the sole owner of, and operated his dental practice as, an unincorporated business; (2) that the principal place of business for his dental practice was Broward County, Florida; (3) that Dr. Fish resided in Broward County, Florida, and had been domiciled in the State of Florida since 1973; and, (4) that Dr. Fish's business did not employ more than 25 full time employees and his net worth, including both personal and business investments, was less than two million dollars. Next, it must be concluded that the Department failed to demonstrate that its actions were substantially justified or that special circumstances existed which would make an award unjust. Dispositive of this issue is the proof which demonstrated that the Panel did not find probable cause to conclude that the bridge work provided by Dr. Fish fell below community standards and did not direct the Department to file an administrative complaint on such issue. Therefore, the Department was without any factual or legal basis to file a complaint challenging the adequacy of the bridgework installed by Dr. Fish.8 Consequently, Dr. Fish is entitled to an award of reasonable attorney's fees and costs under Section 57.111, Florida Statutes.9 Here, Petitioner's counsel claims $25,511.50 (based on 184.5 hours) as attorney's fees, and $1,699.06 as costs, reasonably and necessarily incurred in the underlying proceeding. The Department, as heretofore noted, did not oppose the request for attorney's fees and costs by affidavit, but responded that it "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Thereafter, the Department never filed an affidavit, as required by law, opposing the request for fees and costs, did not question or oppose any portion of the request during hearing, and has not objected to any of the requests post- hearing. Section 57.111(4)(c), Florida Statutes, and Rule 60Q- 2.035(4), Florida Administrative Code. Indeed, the only proof of record regarding the reasonableness and necessity of the attorney's fees and costs sought was offered by Dr. Fish. With regard to attorney's fees, that proof suggested that the hours dedicated to the case (184.5) were reasonably and necessarily incurred, and that the hourly rate sought (an average of slightly over $138.00 per hour) was reasonable and less than the community standard of $175.00 per hour. Consequently, the attorney's fees sought in the sum of $25,511.50 were reasonable. With regard to costs, the proof observed that the $1,699.06 claimed was "reasonable." (Petitioner's Exhibit 2). Given the provisions of section 57.111(4), and the record, Petitioner's claim of attorney's fees in the sum of $25,511.50, and costs in the sum of $1,699.06 are, without further discussion, found reasonable.
The Issue Whether Respondent's license to practice dentistry in the State of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At all times material to this proceeding, the Respondent was a licensed dentist in the State of Florida, having been issued license number DN 0005429. The patient, R.M., first presented herself to the American Dental Center (Center), a dental business owned and operated by Respondent, around July 7, 1987, and was seen by a dentist, other than the Respondent, employed by the Center. This dentist examined R.M. and recommended a new upper denture and lower partial. R.M. was seen again on December 7, 1987, by a dentist, other than the Respondent, at the Center who repaired tooth number 7 on her upper denture. This dentist also advised R.M. that she needed a new upper denture and a lower partial. On June 13, 1989, R.M. was seen by the Respondent at the Center, and the Respondent refused to reline R.M.'s upper denture. Respondent advised R.M. that she needed a new upper denture and a lower partial. On July 12, 1989, R.M. saw another dentist, other than Respondent, at the Center who replaced tooth number 7 in her upper denture, and this dentist advised R.M. that she needed a new upper denture and a full lower denture. On September 8, 1989, R.M. visited the Center and was seen by the Respondent. R.M. agreed to Respondent's treatment proposal of June 13, 1989, for a new full upper denture and a new lower partial. During this visit, the Respondent drilled two holes in the back of two of the lower teeth, numbers 22 and 27, in preparation for a cingulum rest. This procedure was not discussed with R.M. at that time. R.M. did not complain to the Respondent that there was sensitivity as a result of these holes. Also, on this same visit, the Respondent made lower partial impressions and full upper denture impressions. The Respondent properly performed a periodontal probing which was properly recorded in the records, notwithstanding the conflict in the testimony regarding R.M.'s records as to which dentist performed the periodontal probing. Likewise, the Respondent properly performed a soft tissue examination which was properly recorded in the records. On September 25, 1989, the Respondent checked the vertical dimensions of occlusion (VDO) with the full upper dentures and lower partial in place, and found both the vertical dimensions and the occlusion (bite) to be within reasonable bounds. Dr. Marshall performed the vertical dimensions and found them to be outside reasonable bounds. However, when Dr. Marshall performed this test, R.M. did not have the lower partial in place because the holes in teeth numbers 22 and 27 had been bonded by Dr. Odegaard. Because the lower partial could not be in place, the occlusion could not be checked. Also, not having the lower partial in place could have accounted for the difference in the vertical dimensions observed by Dr. Marshall and the Respondent. R.M. was apparently satisfied at this time with Respondent's work since she voiced no complaint. Respondent also selected shade of teeth at this appointment. At R.M.'s next visit, sometime between September 25, 1989, and October 6, 1989 (possibly October 1, 1989), the Respondent made a full upper denture impression in rubber base. R.M. was allowed a look at the full upper denture and the lower partial in place. When in place, the upper denture and lower partial did not interfere with Respondent's enunciation of certain words or certain numbers which would indicate that the upper denture and lower partial fit properly. R.M. initialed her chart indicating that she approved the shape, shade, color, size and arrangement of teeth. There is insufficient evidence to show that the patient knew what she was initialing, and at this point had no complaints, or if she had, she did not voice them. R.M.'s next visit was October 6, 1989, and at this visit the full upper denture and lower partial were delivered to her, placed in her mouth and she was allowed to look at them with a mirror. R.M. voiced no complaints, other than a minor sore spot which Respondent corrected, and she paid the balance of her bill and left. At this same visit, both Respondent and R.M. realized that after a period of time certain adjustment would be needed. On October 16, 1989, R.M. called Respondent's office complaining that her dentures and lower partial were hurting. R.M. was advised that her chart would be pulled for the Respondent to review and that the office would call back. Upon being called back, R.M. was advised by Respondent's staff that Respondent wanted her to come in to the office for adjustments. However, R.M. refused to come back in for any adjustments and advised Respondent's staff that she wanted her money back or she was going to the Better Business Bureau or get a lawyer. Around November 24, 1989, R.M. visited Dr. Odegaard's office complaining of sensitivity on lower teeth numbers 22 and 27. Upon examination, Dr. Odegaard determined that the hole drilled in those teeth by Respondent had gone through the enamel into the dentin which was the apparent cause of the sensitivity. Dr. Odegaard bonded the holes in teeth numbers 22 and 27 which relieved the sensitivity. At that visit, Dr. Odegaard was aware of Petitioner's involvement in this case. Based on the testimony of the experts, it is apparent that drilling through the enamel of a tooth into the dentin is not an uncommon occurrence, and that, in itself, would not necessarily be practice below the standard of care. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including Dr. Reichgott's testimony, to establish facts to show that the placing of the lingual rest on teeth numbers 22 and 27 was a treatment of choice and not any riskier than other procedures performed by dentists. Notwithstanding the testimony of Dr. Odegaard and Dr. Marshall, there is competent substantial evidence, including the testimony of Dr. Reichgott, to establish facts to show that: (a) a soft tissue and periodontal examination was performed and recorded in the patient's records; (b) the preparation of the lower lingual surface of the lower canine for the lingual rests was not practice below the standard of care, or (c) the failure to record in the patient's chart the possible sequela of sensitivity from lingual rests and alternate methods of treatment was not practice below the standard of care. While the Respondent's plan of treatment was brief, it was not inadequate record keeping or practice below the standard of care. On each visit where R.M. saw the Respondent in a professional capacity, the Respondent made certain notations in the record concerning what he had accomplished during each visit, and while these notations are brief they do adequately describe what Respondent had accomplished. There is competent substantial evidence to establish facts to show that Respondent's dental records and medical history records justified the course of treatment for R.M. There is competent substantial evidence to establish facts to show that Respondent's treatment of R.M. met the minimum standards of performance in diagnosis and treatment when measured against the generally prevailing peer performance.
Recommendation Having considered the foregoing Findings Of Fact and Conclusions Of Law, it is, accordingly, Recommended that the Board enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and ORDERED this 27th day of May, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1992. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings Of Fact submitted by the Parties in this case. Specific Rulings On Proposed Findings Of Fact Submitted By The Petitioner 1. Adopted in Finding of Fact 1. 2-4. Adopted in Finding of Fact 2, except for the date June 7, 1987, which is rejected in that it was July 7, 1987. Adopted in Finding of Fact 4. Rejected as not being supported by competent substantial evidence in the record. 7(a)(b). Adopted in Finding of Fact 6. 7(c). Adopted in substance in Finding of Fact 13, as modified, except for being "performed in a non-traditional area" which is rejected as not being supported by competent substantial evidence in the record. 7(d). Other than being asked to sign chart signifying approval which is adopted in Finding of Fact 9, this proposed finding of fact is rejected as not being supported by competent substantial evidence in the record. 7(e). Adopted in Finding of Fact 10. 7(f)-(i). Rejected as not being supported by competent substantial evidence in the record. 7(j)-(k). Adopted in Finding of Fact 13. 7(l). Neither material or relevant to the conclusion reached in the Recommended Order. 8-9. Rejected as making a conclusion without making a finding of fact that there was in fact a failure on the part of the Respondent, but in any case these are not supported by competent substantial evidence in the record. 10-11. Rejected as not being supported by competent substantial evidence in the record. Specific Rulings On Proposed Findings Of Fact Submitted By The Respondent The Respondent's "Findings Of Fact" are in part argument and part restatement of testimony rather than proposed findings of fact. However, for those that are truly findings of fact, I have adopted in Findings Of Fact 1-19. Copies furnished to: Albert Peacock, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Peter Kurachek, D.D.S. 395 Sugar Mill Drive Osprey, FL 34229 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
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 value to each criterion; all other requests for relief should be DENIED. DONE and ENTERED this 9th day of December, 1982, 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 9th day of December, 1982.
The Issue Is Petitioner entitled to receive a passing score on the June 2001 dental licensure examination?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida responsible for administering the dental licensure examination. Petitioner was an unsuccessful candidate for the June 2001 dental licensure examination in that she failed the clinical portion of the June 2001 dental examination. Originally Petitioner received a score 1.89 on the Clinical portion, but on re-grade received a score of 2.10. However, a score of 3.00 was required to pass the Clinical portion. The June 2001 dental licensure examination consists of two parts: (1) the Clinical portion; and (2) the Laws and Rules portion. The Clinical portion consists of nine procedures. Petitioner challenges five of the nine procedures, which are: (1) Periodontal procedure; (2) Class IV Composite Restoration; (3) Class II Composite Restoration; (4) preparation for a three- unit fixed partial denture; and (5) Class II Amalgam Restoration on a model. The Department selects three examiners to independently grade each candidate’s performance, and the average of the three scores from each examiner produces the overall grade for that procedure. The average grade for each procedure is then weighted in accordance with Rule 64B5-2.013, Florida Administrative Code, which produces an overall score for the entire Clinical portion of the examination. This procedure provides for a more reliable indication of the candidate’s competency. Each examiner must be a licensed dentist for a minimum of five years without having any complaints or disciplinary actions against the examiner’s license. The examiners are not allowed to have any contact with the candidates they are grading. Each examiner must attend, and successfully complete, a standardization session, which trains each examiner to use the same internal grading criteria. In this standardization session, the examiners are thoroughly taught specific grading criteria, which instruct the examiners on how to evaluate the work of the candidates. 8. Examiners numbers 005, 316, 346, 360, 361, and 375, who graded Petitioner’s examination, successfully completed the standardization session. The Department’s post-exam check found these examiners' grading to be reliable. Petitioner received a score of 1.66 on the Class IV Composite Restoration. Petitioner contested this score contending that she was downgraded on this procedure because she mistakenly stained that procedure. The Class IV Composite Restoration consists of the restoration of a chipped tooth. The grading is based on the candidate’s ability to restore the tooth as it appeared before restoration. The goal is to restore the tooth to its proper contact and to restore the contact between the teeth. The fact that Petitioner stained the Class IV Composite Restoration did not result in the examiners downgrading the Petitioner’s procedure. Examiner 005 gave Petitioner a score of 2.00, which was based on the contact being open and not having a flushed fit (marginal error). Examiner 316 gave Petitioner a score of 2.00, which was based on Petitioner’s problems with the functional anatomy, the proximal contour, and with the margin. Examiner 346 gave Petitioner a score of 1.00, which was based on Petitioner’s problems with functional anatomy, proximal contour, and mutilation of opposing or adjacent teeth. Petitioner received a score of 0.00 on the Class II Composite Restoration. Petitioner contested this score contending that she was downgraded twice for the same mistake. A Class II Composite Restoration is a procedure that involves the candidate’s ability to fill an opening inside the tooth with composite, which is a tooth-colored filling. The Candidates were instructed, for security reasons, to place dye in the composite and that failure to place dye in the composite would result in a failing grade. Petitioner failed to place dye in the composite. In addition to his comment concerning no dye in the composite, Examiner 005 also commented that Petitioner’s occlusion was very high, which would result in the premature failure of the restoration. Examiner 005 gave Petitioner a score of 0.00. Examiner 316 also gave Petitioner a score of 0.00, which was based on the absence of dye in the composite and the occlusion being high, which would result in the premature failure of the restoration. Examiner 346 also gave Petitioner a score of 0.00, which was based on the absence of dye in the composite. Petitioner contested the score she received on the Preparation for a 3-unit Fixed Partial Denture procedure claiming that the examiners’ comments regarding insufficient and excessive reduction were conflicting comments. The Preparation for a 3-unit Fixed Partial Denture procedure is a procedure that involves the candidate’s ability to replace a missing tooth with a fixed partial denture or fixed bridge. Petitioner received a score of 2.00 on this procedure. A tooth has five surfaces (front, back, top, inside and outside). Therefore, one surface of the tooth may have insufficient reduction, while another surface of the tooth may have excessive reduction. It is not unusual for examiners to see and comment on different errors. Examiner 316 gave Petitioner a score of 2.00 on this procedure because there was a problem with the outline form, insufficient reduction on the preparation and errors on the marginal finish. Examiner 005 gave Petitioner a score of 2.00 on this procedure because there was a problem with the outline form and there was both insufficient reduction and excessive reduction on the preparation. Examiner 346 gave Petitioner a score of 2.00 on this procedure because there was excessive reduction on the preparation, marginal finish, and mutilation of opposing or adjacent teeth. Petitioner contested the score of 0.66 that she received on the Class II Amalgam Restoration on a model procedure. This procedure is similar to Class II Composite, which involves the candidate’s ability to restore a cavity in the tooth so that the finished product restores proper form and function to the tooth. The difference is that amalgam rather than composite is used for the restoration. The restored tooth should closely resemble its original size and shape. Examiner 316 gave Petitioner a score of 1.00 on this procedure because there was a gingival overhang on the distal lingual aspect of the restoration, which could cause tooth decay and gingivitis. Examiner 346 also gave Petitioner a score of 1.00 because of problems with functional anatomy, proximal contour, margin, and gingival overhang. Examiner 005 gave Petitioner a score of 0.00 because of problems with proximal contour and gingival overhang. Petitioner contested the score of 1.66 that she received on the Periodontal procedure alleging that she was graded unfairly because she could not remove all of the calculus on this procedure, and that one examiner gave her a score of 3.00. The Periodontal procedure involves the candidate’s ability to completely remove any stains, calculus deposits or any foreign debris from the surface of the tooth. Patient selection is very important for the periodontal procedure. It is the candidate’s responsibility to select a suitable patient as clearly outlined in the Candidate’s Information Booklet, which is mailed to the candidate prior to the examination. Petitioner chose a difficult patient, considered to have heavy calculus deposits and severe periodontal disease. Petitioner admitted that she did not remove all of the calculus deposits on her patient. Petitioner failed to present sufficient evidence to show that it was impossible to remove all of the calculus on the patient she had chosen. Examiner 360 gave Petitioner a score of 3.00, but commented that sub-gingival calculus remained on the tooth, and there was root roughness. Examiner 375 gave Petitioner a score of 2.00 because sub-gingival calculus remained on the tooth and there was root roughness. Examiner 361 gave Petitioner a score of 0.00. The basis for this score was that there were heavy deposits of calculus and root roughness on teeth number 19, 29, and 30, and that the procedure was of little value to the patient. The Department provides a re-grade process for all candidates who timely request a hearing. The purpose of the re- grade is to determine if any of the grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade. On re-grade, Petitioner’s overall grade increased slightly from 1.89 to 2.10 but not enough for Petitioner to receive a passing grade. The Department’s post-standardization statistics of the examiners’ performance indicated that Petitioner’s examiners graded reliably. The post-standardization statistics indicate the examiner’s performance on grading of models during standardization. In addition, the Department calculates post- examination statistics for the examiners who graded the Petitioner’s challenged procedures. They are: Examiner Accuracy Index & Rating 361 94.2 – Very Good 360 95.1 – Excellent 375 96.0 – Excellent 005 94.3 – Very Good 316 97.0 – Excellent 346 97.2 – Excellent All examiners’ reliability was significantly above the minimum acceptable accuracy index of 85.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly Recommended that the Board of Dentistry enter a Final Order dismissing Petitioner’s challenge to the grades she received on the Clinical portion of the June 2001 dental licensure examination and denying Petitioner licensure as a dentist in the State of Florida due to her failure to receive a passing grade on the June 2001 dental licensure examination. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 31st day of January, 2002. COPIES FURNISHED: Cecilia Diaz 8810 Memorial Highway Tampa, Florida 33615 Cherry A. Shaw, Esquire Department of Health Office of the General Counsel BIN A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way BIN C06 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way BIN A02 Tallahassee, Florida 32399-1701
Findings Of Fact Dr. Farah is a candidate for licensure by the Board of Dentistry, having taken the dental clinical examination in June 1985. The examination covers ten domains of dental knowledge and practice; each is separately graded, and then weighted according to an algorithm. Rule 21G-2.13(3), Florida Administrative Code. A weighted grade of 3.0 is required to pass the clinical dental examination. Rule 21G-2.13(2)(c), Florida Administrative Code. Dr. Farah received a grade of 2.96. The June 1985 examination was Dr. Farah's second attempt to pass the clinical examination. The grading scale for each procedure is established in Rule 21G- 2.13(1), Florida Administrative Code, as follows: complete failure unacceptable dental procedure below minimal acceptable dental procedure 3- minimal acceptable dental procedure better than minimally acceptable dental procedure outstanding dental procedure An examiner is required to record a comment in support of any grade below 5. Examiners for the dental examination are experienced licensed Florida dentists. Rule 21G-2.20(4), Florida Administrative Code. They are trained by the completion of 8 to 10 hours of standardization exercises. During the standardization exercises the examiners receive examination grading criteria, grade identical procedures, discuss any grade variance and attempt to eliminate any discrepancies in interpretations of the grading criteria in order to bring the examiners to a consensus on grading. In the periodontal portion of the examination there are five criteria which are accorded equal importance in grading. These are: (a) presence of stain on the assigned teeth, (b) presence of supra-gingival calculus on assigned teeth, (c) presence of sub-gingival calculus on assigned teeth, (d) root roughness on the assigned teeth, (e) improper management of tissue such as gums which may have been lacerated during the procedure. Rule 21G-2.13(4)(b), Florida Administrative Code. The grading is holistic and each examiner assigns a grade based on the examiner's evaluation of the overall procedure. Three examiner's grades are averaged to obtain a final grade score for the individual procedure. Rule 21G- 2.17(1), Florida Administrative Code. The score for that procedure is then weighted and added with the other weighted scores to obtain the overall grade on the clinical examination. As a standardization technique in grading the periodontal exercise, an examiner marks off for root roughness when use of an explorer on treated teeth reveals a tactile roughness but the examiner is unable to visually confirm the presence of sub-gingival calculus. Use of an explorer reveals the presence of root roughness or calculus below the gum level (i.e., calculus which is sub- gingival). Dr. Farah was assigned teeth number 2, 3, 4, 12, 13, l4 and 15 on her periodontal patient. A prior candidate (Candidate 20057) had treated the same patient in her periodontal exercise, and had been assigned some of the same teeth as Dr. Farah, viz., teeth 2, 3, 4, 5, 6, 7 and 8. Candidate 20057 received individual holistic grades of 4, 4 and 5, which average to a grade of 4.33 for the periodontal procedure. Dr. Farah received grades of 1, 2 and 3, which average to a grade of 2.00 for the procedure. (Petitioner's Exhibit 8) Examiner #006 graded both Dr. Farah and Candidate 20057 on their periodontal treatment. That examiner gave Candidate 20057 a holistic grade of 4 (better than minimally acceptable), noting a deduction for "root roughness," but there is no indication on the grade sheet of the tooth or teeth on which roughness was found. Examiner #015 also gave Candidate 20057 a grade of 4, and noted "root roughness" on the mesial side of tooth number 7, which was not one of the teeth later treated by Dr. Farah. The third examiner gave Candidate 20057 a grade of 5 with no comments. (All comments are found on Respondent's Exhibit 3.) After Dr. Farah's treatment of the patient, which occurred two days after the treatment provided by Candidate 20057, Examiner #006 gave Dr. Farah a grade of 3, and recorded that he found sub-gingival calculus on the mesial side of tooth number 3. Calculus is a mineral deposit on teeth which does not form in 48 hours; Examiner #006 missed the calculus on tooth 3 when grading Candidate 20057 (perhaps because it was obscured by the inflammation and bleeding of the gums which the patient testified about at the hearing) or the calculus was on a tooth other than tooth 3, and the wrong tooth was noted by Examiner #006 on Dr. Farah's grade report. Examiner #005 gave Dr. Farah a grade of 2, finding root roughness and sub-gingival calculus on the distal side of tooth number 12, a tooth not treated by Candidate 20057. Examiner #048 gave Petitioner a grade of 1, commenting on "several" instances of sub-gingival calculus on teeth treated by Dr. Farah, as well as the presence of root roughness. (All comments are found on Petitioner's Exhibit 4.) Examiner #006 gave Dr. Farah the highest of her grades on the periodontal procedure, which was that it was minimally acceptable. The other examiners determined that Dr. Farah's treatment left sub-gingival calculus, and was below minimally acceptable standards (the grade of 2) or was unacceptable (the grade of 1). At the hearing Dr. Farah agreed that if calculus remained the appropriate grade would be 2 or lower. There is no reason to adjust the grades assigned on the periodontal exercise. Dr. Farah also prepared a cast class II restoration onlay wax up on a posterior tooth on a stone mannequin of a lower jaw. She received grades of 5, 3 and 2, which average to 3.33. Examiner #080 assigned a grade of 2, wrote on the grading form "undercuts," and also noted that the procedure had a marginal surface finish. Examiner #133 assigned a grade of 3, and noted "poor outline form" but added no comment concerning an undercut. The third examiner, #048, made no deductions and assigned a grade of 5. An "undercut" is an improper preparation of a tooth surface which is to support a crown. During the preparation of the assigned tooth, the center portion of the tooth was reduced to create a trapezoidal shape, similar to an equilateral triangle, the top of which has been cut by a plane parallel to its floor. A wax model of the crown is then prepared. If the side walls of the trapezoid, when the prepared surface is viewed from the top, do not slope downward and slightly outward, when the wax cast is removed, the wax deforms, and the crown made from it will not seat correctly on the tooth. This may cause the crown to fail, and is a serious error. When a curved dental explorer is placed against the base of the tooth and against the surface of the tooth vertically, one may observe whether there is an angular displacement outward from the vertical at the top, indicating an undercut. On Dr. Farah's preparation this test reveals an undercut. The testimony of Dr. Farah's expert, Dr. Robert Murrell, was that a "surveyor" is the proper instrument to use to evaluate a tooth preparation surface for an undercut. Dr. Murrell did so and determined there was no undercut on the Petitioner's work. There are two difficulties in determining whether there is an undercut using the surveyor. The surveyor's rod is fixed in a vertical position and cannot reflect whether it is actually up against the base of the tooth or not, and viewing the rod from the top down does not give visual confirmation whether the top edge is wider than the bottom; neither can one visually inspect the vertical alignment from the side because the remaining portion of the tooth would prevent one from viewing the alignment from the side position. Secondly, as the expert for the Department, Dr. Theodor Simkin, testified, the surveyor is not a proper instrument for determining undercuts on a mannequin, but is meant to be used on castings and other bridge or denture work done outside the patient's mouth. Logic supports Dr. Simkin's assessment, because a surveyor simply cannot be inserted into a patient's mouth. Dr. Simkin's testimony is also more persuasive because he has been, for several years, an experienced dental examiner and examination grading consultant. Dr. Murrell, while certainly a well-qualified dentist, has never been trained to grade the Florida clinical dental examination. Laying aside the question whether the surveyor or the explorer is the better instrument for assessing whether there is an undercut on a tooth, the other method for determining an undercut explained by Dr. Simkin is persuasive. If no undercut is present, when the stone mannequin of the mouth on which Dr. Farah worked is viewed from directly above, it should be possible to view all four bottom corners of the preparation surface at the same time; if there is an undercut, the undercut bottom corner will be hidden when all of the other corners are viewed. Visual examination confirms the presence of an undercut in the front right corner of Dr. Farah's preparation.
Recommendation It is recommended that the petition for regrading of the failing score assigned to Dr. Farah on the June 1985 clinical dental examination be DENIED. DONE AND ORDERED this 27th day of March 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 27th day of March 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0235 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Findings of Fact (onlay) Rejected for the reasons stated in Findings of Fact 14 and 16. Accepted in Finding of Fact 15. Rejected for the reasons stated in Finding of Fact 15. Findings of Fact (periodontal)1 Generally accepted in Findings of Fact 1 and 8, except for the final sentence, which is rejected as argument. Rejected for the reasons stated in Findings of Fact 10 and 11. In addition, the question of whether the performance of Candidate 20057 was properly graded does not arise in this proceeding. If Candidate 20057 received high grades although three of the seven teeth treated had to be retreated 48 ours later by Dr. Farah, this does not address the central question in this case: Did the treatment provided by Dr. Farah meet minimum standards? [page 7] Rejected because there is no competent substantial evidence that Dr. Simkin was Examiner #015, but if he was, the proposal is argument, not a finding of fact. Rulings on Findings of Fact Submitted by Respondent Accepted in Findings of Fact 4, 5 and 6. Accepted in Finding of Fact 5. Accepted in Finding of Fact 4. Accepted in Finding of Fact 3. Accepted in Findings of Fact 3 and 7. Accepted in Finding of Fact 8, 9 and 10. Accepted in Finding of Fact 11. Accepted in Finding of Fact 12. Accepted, but clarified in Findings of Fact 13 and 14. Accepted in Finding of Fact 15. COPIES FURNISHED: Mr. Fred Varn Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dr. Mina Farah 21-32 Crescent Street #D-7 Astoria, NY 11105
Findings Of Fact Petitioner has been licensed to practice dentistry in the State of Massachusetts since 1953. Since 1966, Petitioner has limited his practice to oral and maxillo-facial surgery. In June of 1976 petitioner took part as a candidate for licensure in a licensure examination administered by Respondent. On this examination, a final score of 75 was needed to pass the "clinical" or "practical" portion of the examination. Petitioner was awarded a failing grade of 59.69. By this proceeding, Petitioner maintains that the grades he was awarded on the Amalgam Preparation procedure, the Amalgam Restoration procedure, and the Cast Gold Final Restoration procedure were unjust, arbitrary and capricious. The clinical examination administered by Respondent in June, 1976, consisted of the following procedures, weights, and percentages: Percentage of Casts and Wax Pattern 1/2 Casting 1/2 10 percent Professional Evaluation 3/3 15 percent Gold Inlay Restoration Preparation 1/2 Inlay Cemented 1/2 25 percent Amalgam Restoration Preparation 2/3 Final Restoration 1/3 25 percent Periodontal Evaluation Diagnosis 1/3 Periodontal Procedure 2/3 25 percent Procedure Weight Final Grade Laboratory Petitioner's final score on the clinical portion of the June, 1976, examination was based on the following scores: 1st 2nd Percentage Exam- Exam- of Final Procedure iner iner Total Grade Grade Laboratory Casts and Wax Pattern (1/2) 1 2 Casting (1/2) 2 2 10 percent 59.38 Professional Evaluation (3/3) 3 3 15 percent 75.00 Gold Inlay Restoration Preparation (1/2) 2 3 Inlay Cemented (1/2) 0 0 25 percent 53.13 Amalgam Restoration Preparation (2/3) 0 0 Final Restoration (1/3) 2 2 25 percent 33.50 Periodontal Evaluation Diagnosis (1/3) 4 N/A Periodontal Procedure (2/3) 4 3 25 percent 83.33 59.69 During the 1976 examination, Respondent utilized the following grading system for the clinical examination: - An unethical or unacceptable performance - Work falling far short of acceptable standards - Work falling short in one or more aspects of being acceptable - Minimally acceptable work - Work beyond the bare minimum of acceptability - Work demonstrating outstanding skill Prior to the 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 subject, the procedures to be used in performing each procedure, the criteria to be used in grading, and the grading system to be utilized by Respondent. The clinical portion of the examination for each candidate took two days and involved approximately 400 to 450 candidates and 20 to 22 examiners. Except for the diagnosis portion of the periodontal procedure, each clinical procedure performed by a candidate was independently graded by two different examiners, and the two grades were then averaged to determine the total grade. However, if grades given by the two examiners were more than one grading criteria apart, and the examiners could not resolve their evaluative differences, a third examiner was brought in to resolve any remaining dispute as to the grade to be awarded. Candidates for the June, 1976, examination were required to perform a Class II Amalgam Restoration on a tooth which had occlusal and proximal contact. The tooth to be used by the candidate was not to contain extensive decay and an ideal cavity preparation with minimal outline form and cavity depth was to be prepared by the candidate. The grading criteria for the Amalgam Preparation were contained on the grade sheets' utilized by the individual examiners. These criteria were as follows: outline form; depth preparation; retention form; marginal finish; unsupported enamel; caries; debris; and mechanical exposure. Only leaving caries in the preparation or causing a mechanical exposure of the nerve of the tooth required an examiner to give a candidate an automatic zero for the preparation. However, any number or combination of missed criteria, depending on the degree of error, could result in a grade of zero. Because of the number of criteria involved, and the degrees to which they could be satisfactorily or unsatisfactorily performed, there existed an infinite variety of combinations of missed criteria, and degrees of performance, that could result in a zero or a failing grade. Petitioner received grades of zero and zero, for an overall score of zero on the Amalgam Preparation. Petitioner's grade sheets for this procedure as well as Respondent's records identifying the examiners for this procedure were not available at hearing in this cause because they had been previously destroyed in the normal course of the biennial purge of Respondent's examination records pursuant to Chapter 466, Florida Statutes. As a result, it is not possible to determine why a particular grade was given on this portion of an examination administered six years ago, without the availability of the particular grade sheet to indicate criteria missed by Petitioner. For example, it cannot be determined with any degree of accuracy the roughness of the pulpal floor of the tooth at the time of grading, whether any debris was left in the preparation at the time it was graded, whether there were adequate buccal, gingival or axial retention points present, and whether they were overcut, whether a buccal or lingual cusp was undermined, whether the enamel was undercut on the occlusal surface, among a variety of other pertinent points. None of these criteria can adequately be assessed by way of an x-ray examination some six years after the procedures were performed. In addition to the aforementioned procedure, candidates at the June, 1976, examination were also required to place an amalgam restoration in the tooth they had prepared for the Amalgam Preparation procedure. The grading criteria for the final restoration were contained on the grade sheets utilized by the examiners, and were as follows: functional anatomy; proximal contour; contact; margin; gingival overhang; and management of soft tissue. Unlike the Amalgam Preparation, failure in any given criteria did not result in an automatic zero for this procedure. However, like the preparation phase of the examination, the restoration grade was also determined by a variety of combinations of criteria, depending upon the degree of performance. Again, because of the number of criteria involved and the degrees to which they could be successfully or unsuccessfully performed, there were an infinite variety of combinations of missed criteria and degrees of deficiencies that could result in a failing score. Petitioner received grades of two and two, for an overall average score of two on the Final Restoration. As in the preparation procedure, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for this procedure were not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. The record in this cause establishes that it would not be possible with any degree of accuracy to determine why a particular grade was given on an examination administered six years ago without the grade sheet to indicate the particular criteria missed by the candidate, or even the identity of the examiners who awarded that grade. X-ray examination of the patient with the restoration in place could determine criteria such as functional anatomy, proximal contour, margins, and gingival overhang. However, criteria such as management of soft tissue is obviously not now discernible in that the tissue would have healed since the examination. Neither can the criteria of adequate contact be evaluated now some six years after the procedure was performed. In addition, because of various changes which could have occurred during the lapse of time between the administration of the examination and the present time, criteria such as functional anatomy and adequacy of margins can not now be determined with any degree of accuracy. Candidates at the June, 1976, examination were also required to prepare a tooth for a Class II cast gold restoration. This restoration was required to have occlusal and proximal contact and was to be cemented in the patient's mouth. Grading criteria for the final gold restoration were as follows: casting not seated; margins; functional anatomy; proximal contours; contact; surface finished; and, management of soft tissue. According to Respondent's criteria, if the gold inlay produced by a candidate was not satisfactory to be cemented as a permanent restoration, a grade of zero was mandatory. If the inlay was only cemented temporarily, a grade of zero was still required. As in other areas of the examination, the final gold restoration grade could be determined by any number or combination of criteria, depending upon the degree of error. Petitioner received grades of zero and zero, for an overall average score of zero on the final gold restoration. Petitioner admits that the inlay he prepared at the examination would not seat, and that he placed a temporary restoration in the patient's mouth. He contended, however, that he successfully performed some of the grading criteria and should not, therefore, have received a grade of zero. However, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for the procedure were again not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. As with the preceding procedures, it is not possible to determine why a particular grade was given on this portion of the examination without the particular grade sheet involved to indicate missed criteria. At all times material hereto, candidates were allowed access to their examination grades upon request, and were notified of their right to an examination review with an examiner. In the event of such review, the candidate and the examiner reviewed the candidate's grade sheets, x-rays and models from the examination, and the examiner indicated to the candidate the reasons for the awarding of a particular score. In addition, at all times material to this proceeding Petitioner had as an available remedy an administrative hearing pursuant to the requirement of Section 120.57, Florida Statutes. Respondent was, in fact, contacted by Petitioner's attorneys in 1979 regarding the Petitioner's examination scores. All available examination documents were produced for Petitioner's attorneys in 1979, but Respondent was at no time advised that an examination challenge was intended, nor did Petitioner or his attorneys request that examination documents pertinent to Petitioner's performance not be destroyed. However, it is likely that at the time Respondent was contacted by Petitioner's attorneys his examination records had already been destroyed since approximately three years had passed since the administration of the examination, and Respondent's policy is to destroy those documents every two years. Petitioner received his 1976 examination results approximately six weeks after the examination had been administered. According to Petitioner's testimony, he waited until 1981 to initiate this proceeding in the belief that the Florida Legislature would amend Chapter 466, Florida Statutes, to include licensure by reciprocity. That legislative action has not been forthcoming.
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 Whether Petitioner's licensure examination challenge should be sustained.
Findings Of Fact Petitioner is a dentist who seeks licensure to practice dentistry in the State of Florida and who was a candidate for the dental examination administered by Respondent in December 1990. Each candidate for licensure is given three opportunities to present a patient who presents certain minimal periodontal problems upon whom the candidate can demonstrate his or her proficiency in periodontics. Rule 21G- 2.013, Florida Administrative Code, provides, in pertinent part, as follows: (2)(b) ... It is the applicant's responsibil- ity to provide a patient who is at least 18 years of age and whose medical history permits dental treatment. In order that the examination may be conducted in an efficient and orderly manner, an applicant will be allowed no more than three attempts to qualify a patient during the specified check-in period for each procedure requiring a patient. The candidate is required to select five teeth that meet certain criteria from the candidate's first patient. Rule 21G-2.013, Florida Administrative Code, provides those criteria, in pertinent part, as follows: (4) The grading of the clinical portion of the dental examination shall be based on the following criteria: * * * (b) Periodontal exercise on a patient with a minimum of 5 teeth, none of which shall have a full crown restoration, all of which shall have pockets at least 4 mm. in depth with obvious sub-gingival calculus detectable by visual or tactile means and radiographic evidence of osseous destruction; at least one tooth shall be a multi-rooted molar which shall be in proximal contact with at least one other tooth; none of the 5 teeth shall be primary teeth. All calculus appearing on radiographs must be detectable by visual or tactile means. The patient is thereafter examined by two examiners who are dentists to determine whether each selected tooth meets the criteria. If the examiners determine that one or more of the teeth selected do not meet the criteria, the candidate has a second opportunity and may select additional teeth from patient one, or the candidate may present patient two and select five teeth from the new patient. If the examiners determine that one or more of the teeth selected on his second opportunity do not meet the criteria, the candidate has a third opportunity and may select additional teeth from patient two, or the candidate may present patient three and select five teeth from that third patient. If the examiners determine that one or more of the teeth selected on his third opportunity do not meet the criteria, the candidate receives, pursuant to Rule 21G-2.013(4)(b), Florida Administrative Code, a score of zero on the periodontics portion of the examination. For her first opportunity, Petitioner presented Patient #1 and selected teeth 13, 14, 19, 20, and 21. Examiners 187 and 054 examined the five teeth selected by Petitioner and rejected teeth 13, 20, and 21. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Patient #1 had been used by Petitioner during the June 1990 administration of the examination. The five teeth selected from Patient #1 in the June 1990 examination had been accepted, but the teeth that had been accepted did not include teeth 13, 20, or 21. For her second opportunity, Petitioner presented Patient #2 and selected teeth 19, 20, 21, 22, and 23. Examiners 176 and 080 examined these five teeth and rejected teeth 19, 20, and 23. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. For her third opportunity, Petitioner again used Patient #2, but substituted teeth 3, 29, and 30 for the teeth that had been rejected in opportunity two, so that the selected teeth were 3, 21, 22, 29, and 30. Examiners 162 and 195 rejected teeth 3, 29, and 30. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Petitioner thereafter received a zero on the periodontal portion of the examination, which greatly contributed to her failing the examination. Petitioner received a final grade of 2.51 on the examination. She needed a score of 3.00 to pass the examination. Each of the examiners who are used by Respondent in the administration of the dental examinations is a dentist who has been licensed in the State of Florida for a minimum of five years. Prior to the examination, the examiners undergo a day long standardization session during which the criteria to be applied and the proper method of application are taught. These dentists who serve as examiners examine the patient and the selected teeth from that patient independently of one another. Neither examiner knows the results of the examination performed by the other examiner and neither examiner knows the candidate who brought that patient to the examination. The purpose of the preliminary examination is to determine whether the teeth selected by the candidate meet the criteria established by Rule 21G- 2.013(4)(b), Florida Administrative Code. The form used by the examiners does not require that the reason for the rejection of a tooth to be stated. If both examiners reject a particular tooth, that tooth cannot be used by the candidate. Petitioner failed to present evidence upon which it can be concluded that the teeth she presented from the two patients she brought to the examination met the criteria for examination found in Rule 21G-2.013(4)(b), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenge to the dental examination. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of August, 1991. CLAUDE B. ARRINGTON 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 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3086 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in the first numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are adopted in material part by the Recommended Order. The proposed findings of fact in the second numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are rejected as being unnecessary to the conclusions reached. The greater weight of the evidence was that the statistics cited by this paragraph were not designed to measure the professional qualifications of an examiner or how he or she grades a particular criteria. Therefore, these statistics do not support Petitioner's contention that the teeth she selected were arbitrarily or capriciously rejected. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact in paragraphs 1-5 are adopted in material part by the Recommended. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vytas J. Urba, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Beatriz Jacobo 175 Fort Wilkinson Road Milledgeville, Georgia 31061
