Findings Of Fact The Respondent, Prince Edward Denton, D.D.S., is now, and has been at all times material to this proceeding, a licensed dentist in the State of Florida, having previously been issued license number DN 0006762. Carol Hepp has been a dental assistant for twenty-seven years. She received her initial training as a dental assistant after graduation from high school when she went to work for Dr. Seth Rhodes in North Miami Beach. Since that time she has attended many training courses in her career as a dental assistant, including expanded duties courses at Emory University and the University of Florida. Ms. Hepp was employed by the Respondent as a dental assistant for a total of approximately four and one-half years. Ms. Hepp was so employed on February 2, 1988. On February 2, 1988, patient C.H. went to the Respondent's office to obtain treatment for a cracked tooth. The cracked tooth was tooth number 18, which was the last tooth in the patient's left lower jaw. During that visit, the patient C.H. was examined by the Respondent and by his dental assistant, Carol Hepp. Ms. Hepp explained the tooth crowning procedure to the patient. Ms. Hepp took a preliminary impression of the lower jaw by placing a two-part putty-like substance called "citrocon" in a tray, placing a plastic sheet over the top, and placing the tray into the patient's mouth. She held the tray in place for approximately six minutes and then removed it. This procedure yielded an approximate image of the patient's lower teeth. The Respondent took the final impression by applying a viscous substance around tooth number 18, and then inserting the preliminary impression into the patient's mouth. The Respondent held the impression in place until it was set or non-moveable, at which time Ms. Hepp took over the task of holding the impression in place for the balance of the approximately four-minute period during which the final impression material completely set up. After the impression was finished, Ms. Hepp took it to the Respondent who examined it and approved the finished final impression. After the final impression had been taken, Ms. Hepp made a wax form for purposes of fabricating a temporary crown for C.H.`s tooth number 18. This was done prior to the "preparation" of the tooth. The "preparation" of a tooth for crowning is the actual grinding down of the tooth that is to be crowned. The Respondent, and not Ms. Hepp, ground down the patient C.H.`s tooth number 18 in preparation for crowning. Following the Respondent's "preparation" of the subject tooth, Ms. Hepp packed a cord around the tooth. 1/ The grinding down, or "preparation," of a tooth for crowning is an irremediable task, which under no circumstances should be delegated to a dental assistant. Following the Respondent's "preparation" of the tooth, Ms. Hepp then fabricated and installed a temporary crown on the patient's tooth number 18. This was done by utilizing the wax form she had previously made, filling the form with a self-curing jet material, adding tooth color, and then placing the temporary crown over the prepared tooth. At all times during the treatment of the patient C.H., the Respondent was aware of, and had authorized, each step performed by Ms. Hepp, and was available to assistt Ms. Hepp had she requested his assistance. Accordingly, Ms. Hepp was working under the direct supervision of the Respondent at all times material to this proceeding.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st day of July, 1991. MICHAEL M. PARRISH 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 31st day of July, 1991.
Findings Of Fact Dr. Roberts and His Background Dr. Steven Roberts is a dentist licensed to practice in the State of New York. He attended the United States Military Academy and received his undergraduate degree in 1970. He graduated from the New York University College of Dentistry in 1978, and practiced dentistry in New York, New York from 1978- 1987. To be licensed in New York, Dr. Roberts passed the national boards and the northeast regional board examination. During the course of his practice in New York, Dr. Roberts never received a complaint or had a claim for malpractice made or filed against him. Clinical Examinations Dr. Roberts took the Florida clinical dental examinations in June of 1986, January of 1987, and June of 1987. His grade on the June of 1987, examination is the subject of this proceeding. Dr. Roberts has successfully passed the written examination and the diagnostic examination required for licensure by Section 466.066(4)(a) and (c), Florida Statutes. Dr. Roberts' score for the June of 1987, clinical dental examination was 1.95; the minimum passing score is 3.00. The procedures tested during the June 1987, Clinical Dental Examination and Dr. Roberts' scores were as follows: The Procedure The Score The Revised Score Periodontal 1.67 Amalgam Cavity Preparation 1.67 Amalgam Cavity Restoration 3.00 Composite Preparation .67 Composite Restoration .33 Posterior Endodontics 2.00 3.66 Cast Preparation 2.67 3.00 Pin Amalgam Preparation 1.00 Pin Amalgam Restoration 1.67 Denture 3.63 Total Score 1.95 2.15 Dr. Roberts made a timely request to review his grade, and filed objections to his grades; a regrading procedure resulted in the regrading of his scores for posterior endodontics and cast restoration as set forth above. Each of the procedures tested in the clinical dental examination is scored by three different examiners. For each procedure examiners record their scores on separate 8 1/2" X 11" sheets. Each sheet has a matrix of circles which are blackened with a pencil so that they can be machine scored. On each sheet the candidate's identification number and the examiner's identification number are recorded along with the number for the procedure involved and the candidate's grade. On the sheet for each procedure the criteria for successful performance of the procedure are printed, along with preprinted comments which the examiners may use to explain the reason for the grade assigned. These comments relate to the criteria being examined. The following grades may be assigned by examiners: Complete failure Unacceptable dental procedure Below minimum acceptable dental procedure 3- Minimum acceptable dental procedure 4- Better than minimal acceptable dental procedure 5- Outstanding dental procedure An examiner is not required to mark a comment if the grade assigned is 5, a comment is marked for any grade below 5. Each procedure is graded in a holistic manner. Grades assigned by each of the three examiners for a procedure are averaged; the averaged scores for each procedure are then weighted and the weighted scores are summed to provide the overall clinical grade. By averaging the scores of three examiners for each procedure, variation from examiner to examiner is minimized. The examiners are experienced Florida dentists selected by the Board of Dentistry. An examiner must have at least five years of experience as a dentist and be an active practitioner. Potential examiners attend a standardization training exercise. This training is required by Section 466.006(4)(d), Florida Statutes. Its purpose is to instruct examiners in examination procedures and the criteria to be applied in grading. Through the training the examiner group as a whole arrives at a consensus opinion about the level of grading, so that candidates' scores on the examination will be valid and reliable. The training attempts to focus on each examiner's subjective, internalized evaluation criteria, so that they can be modified, as necessary, to reflect the consensus of all graders. A standardizer explains grading criteria to the potential examiners, and discusses various divisions among schools of thought and training on the procedures which will be the subject of the examination. The standardizer uses dental exhibits from prior dental exams as examples, and identifies grades and errors on the exhibits so that the graders learn and can adhere to uniform grading standards. The training focuses on three problems which professional literature has identified in evaluation: errors of central tendency, proximity errors, and bias a priori. Errors of central tendency result when graders are uncertain of criteria, hesitate to give extreme judgments, even in appropriate cases, and thus tend to improperly grade near the average. Proximity error is a type of halo effect which is applicable in grading of mannequin exhibits. The examiner grades all of the mannequin exhibits for each candidate at one time. If the first example of the candidate's work is especially good, and deserves a grade of 5, the grader may tend to transfer a generally positive attitude towards the next example of the candidate's work and assign a grade which may not be based solely upon the merits of that second piece of work. The same process can improperly depress the grades on subsequent mannequins if the first example of a candidate's work is poor. Bias a priori is the tendency to grade harshly or leniently based upon the examiner's knowledge of the use that will be made of the grade, rather than only on the quality of the work graded. After an 8 to 12 hour standardization training session, the Department administers an examination to those who have been trained. Those with the highest scores become the examiners, i.e., dentists who will grade candidates' work, while those with the lower scores in the training session become monitors, who supervise the candidates in their work on mannequins or on patients, but who do not actually grade student work. There is, however, no minimum score which a dentist who attends the standardization session must obtain in order to be an examiner rather than a monitor. This results, in part, from the limited pool of dentists who participate in the examination processes as monitors or examiners. For the 1987 clinical dental examination 31 dentists accepted selection by the Board and attended the standardization session, 20 were then selected as examiners and 11 became monitors for the examination. None of the dentists who attended the standardization session were dismissed by Department of Professional Regulation from further service at the examination session. The process by which the Department selected the examiners for the 1987 clinical dental exam was neither arbitrary nor capricious, but comports with Rule 21G- 2.020(4), Florida Administrative Code. The standardization training and examination of dentists to determine who will serve as examiners and monitors does not provide any bright line for distinguishing among potential examiners those who will make the most assiduous effort to apply the grading criteria explained in the training session versus those who retain an innate sense of a passing work based on what the examiner considers acceptable work in his own practice. The effort to convey to examiners the standard of "minimum competency" has imperfect success, but the Department's training is appropriate. Out-of-State Candidates' Scores 11. There is a substantial difference in the failure rates for out-of- state candidates and for in-state candidates on the clinical dental examinations. In the June of 1987, exam 82.5% of the candidates who graduated from the only in-state dental school, the University of Florida, passed the entire examination, while 54.2% of the out-of-state graduates passed, and only 37.8% of candidates from foreign schools were successful. Overall, 86.5% of the candidates passed the written portion of the examination, 93.5% the portion on oral diagnosis, but only 63.3% the clinical portion of the examination. Dr. Roberts has failed to prove that the lower pass rate for out-of- state candidates is the result of any sort of conscious effort on the part of examiners to be more stringent in grading out-of- state candidates. Dr. Kennedy's testimony indicated only that the data bear more analysis, not that they prove improper grading. Procedures Performed on Mannequins The Board of Dentistry tests between 600 and 700 dental candidates per year. It is extremely difficult for the candidates to find patients who have exactly the problem which is to be tested and bring them to the examination to work on. Some portions of the clinical dental examination, therefore, are not performed on patients, but on cast models of human teeth which resemble dentures, and which are known as mannequins. This is expressly authorized by Section 466.006(4)(a), Florida Statutes. The notice to appear which candidates receive approximately 30 days before the examination informs them of the types of mannequins which will be used in the examination. Before that time, however, dental supply companies obtain lists of those eligible to take the examination, and contact the candidates in an attempt to sell them the mannequins. Candidates must bring mannequins with them to the examination and can purchase additional mannequins for practice. Testing with mannequins is also more efficient because with live patients, the student must be graded at the time of the examination, while a model can be retained and graded a day or two later. The decision of the Board to have certain procedures performed on mannequins, so that each candidate would be graded on exactly the same procedure, is reasonable. The Board had also considered having students perform all test procedures on extracted human teeth, but there are not a sufficient number of all natural teeth available, given the number of students who are tested, both for the examination itself and for practice. The Board determined that it would be better to use mannequins for some of the procedures tested in the examination because they are readily available and students can purchase extra copies for practice. For certain procedures, such as endodontics, specific natural teeth (such as first bicuspids) are often extracted and so are generally available; for procedures performed on those teeth, it is possible to have candidates work on human teeth. By contrast, testing procedures performed on teeth such as incisors is not practicable. It is impossible to obtain enough incisors in good condition, without restorations and chips, for use during an examination. The statute governing the dental examination does require that one restoration performed by candidates must be done on a live patient, and for the June 1987, clinical dental examination that procedure was a class 2 amalgam restoration. The Board directed by rule that mannequins be utilized for five test procedures: the pin amalgam preparation and restoration, Rule 21G-2.013(3)(d), Florida Administrative Code; the endodontic procedure, Rule 21G-2.013(3)(e) Florida Administrative Code; the posterior tooth preparation for a cast restoration, Rule 21G-013(3)(f), Florida Administrative Code, the class III acid etch composite preparation and class IV acid etch composite restoration, Rule 21G-2.013(3)(g), Florida Administrative Code. Performing these procedures on mannequins is not exactly the same as performing procedures on human teeth in a patient. In view of the difficulty involved in finding patients whose teeth present virgin lesions, so that each candidate would be tested on exactly the same problem, the difficulty in grading a large number of procedures performed on live patients, and the difficulty in obtaining a large number of human teeth necessary for testing and for practice, the Board's decision to use the mannequins for these procedures is reasonable. The Legislature recognized this in Section 466.006(4)(b), Florida Statutes, which prescribes that the clinical dental examination shall include restorations "performed on mannequins, live patients, or both. At least one restoration shall be on a live patient." The Board was within its authority when it determined the procedures to be performed on mannequins. Violation of Blind Grading The dental examiners who grade the work of candidates grade blindly, i.e., they do not know which candidate's work they are grading. The Clinical Monitor and Examiner Instruction Manual for the June of 1987, examination makes this clear. At page 24 paragraph 3 the Manual states Examiners are requested to disqualify themselves at anytime they are presented with models or patients treated by a dentist who they know personally or with whom they have had professional contact. All examiners are requested to give department staff the name of any examination candidate who is personally known to them to be taking the exam. The department staff will assist the examiners in avoiding any work performed by the candidates they know. Rationale: Allegations have been made about examiners who knew candidates taking the exam even though the examiners only see candidate numbers. Monitors and Examiners are strongly urged to avoid discussion with candidates about the examination. Even conversation about non-examination related matters can be misinterpreted by other candidates as an unfair privileged communication. Despite this admonition, one of the examiners, Dr. Cohen, who knew Dr. Roberts, graded the work of Dr. Roberts. Dr. Cohen met Dr. Roberts the first time Dr. Roberts took the Florida Clinical Dental Examination in June of 1986. Dr. Roberts had with him a bag which would have identified him as a student from New York University, where Dr. Cohen had taught. Dr. Cohen came over to Dr. Roberts, introduced himself, gave Dr. Roberts his card, (exhibit 44) and invited Dr. Cohen to his hotel room where they discussed practicing dentistry in Florida. In 1986 Dr. Cohen was associated with another dentist, Gerald P. Gultz, who had recently moved to Florida from New York. Dr. Gultz had also been a part-time clinical assistant professor of dentistry at New York University College of Dentistry. After Dr. Cohen returned from the June 1986, administration of the clinical dental examination, he had a conversation with Dr. Gultz in which Dr. Cohen asked Gultz if he knew Dr. Roberts, and commented on Dr. Roberts performance on the clinical examination. Dr. Cohen said Dr. Roberts had done terribly, and Dr. Cohen believed that Dr. Roberts would never get his license to practice in Florida. (Tr. 5/26/88 at 73). Dr. Roberts saw Dr. Cohen at the January of 1987, clinical dental examination, but they did not speak. In June of 1987, Dr. Cohen also spoke briefly to the wife of Dr. Gerald Gultz, Lauren Gultz, saying that he would be seeing Dr. Roberts at the June of 1987, clinical dental examination, which was coming up. He told Mrs. Gultz that Dr. Roberts was a poor practitioner, and that he did not think he would pass the examination. At the June 1987, exam, Dr. Roberts' periodontal patient was his uncle, Mr. Finkelstein. Dr. Cohen was one of the examiners who reviewed Mr. Finkelstein to determine whether his condition was appropriate to serve as a patient for Dr. Roberts on the periodontal portion of the examination. Dr. Cohen had a conversation with Mr. Finkelstein in which he told him "tell your dentist to do a good job". Because Mr. Finkelstein had stated that his dentist was a graduate from N. Y. U. Dental School, Mr. Finkelstein was convinced that Dr. Cohen knew exactly who the dental candidate who would work on Dr. Finkelstein was -- Dr. Roberts. After accepting Mr. Finkelstein as an appropriate periodontal patient, Dr. Cohen also served as a grader on the periodontal procedure performed on Mr. Finkelstein. After grading the work which Dr. Roberts had done, Dr. Cohen told Mr. Finkelstein to tell his dentist that Dr. Cohen would see him later in the hotel where they were staying. At the hotel, Dr. Cohen talked to Dr. Roberts about the dental examination, that he himself had to take the examination three times, although he considered himself to be a superior dentist, and that Dr. Cohen could help Dr. Roberts with his grades but that he could never grade Dr. Roberts more that one grade higher than any of the other examiners. Dr. Cohen served as an examiner (i.e. grader) for Dr. Roberts on six of the nine procedures tested. There were: procedure number 1, the periodontal evaluation where he assigned a failing grade of 2; procedure number 4, the class III composite preparation, where he assigned a failing grade of 1; procedure number 5, the class IV composite restoration, where he assigned a failing grade of 1; procedure number 6, the endodontic evaluation, where he assigned a passing grade of 3; procedure number 7, the preparation for a cast restoration, where he assigned a passing grade of 3; and procedure number 8, the pin amalgam preparation, where he assigned a failing grade of 1. This failure of blind grading is a serious irregularity in the evaluation of Dr. Roberts' performance on the 1987 clinical dental examination, given his prior negative comments about Dr. Roberts before the examination. By ignoring those scores, Dr. Roberts would be evaluated only by two examiners, on all the procedures for which Dr. Cohen gave a grade. This would mean that his scores would not be comparable with those of any other candidate, for his grade on each procedure would not be the result of blind grading by three independent examiners. Dr. Roberts' Challenges to Grades Assigned by Other Examiners The full nine procedures evaluated in the 1987 dental clinical examination and Dr. Roberts' grades were: A periodontal exercise performed on a live patient, Mr. Finkelstein, which involved the scaling of five teeth both above and below the gum and stain removal. Dr. Roberts was assigned scores of 1, 2, and 2 by the examiners (one grade of 2 was assigned by Dr. Cohen) An amalgam cavity preparation, performed on a live patient, Elizabeth Cox, which is the preparation of a tooth for filling. When the preparation is completed a proctor escorts the patient to the three examiners who independently grade this part. After grading, the patient returns to the candidate who completes the filling of the tooth (the restoration) which is subsequently graded independently by three examiners. Dr. Roberts was assigned grades of 1, 1, and 3 for the preparation (none of these grades were assigned by Dr. Cohen). A final amalgam restoration, which is the filling of the tooth prepared in the prior procedure. Dr. Roberts received grades of 3, 3, and 3 on this procedure (none of the grades were assigned by Dr. Cohen). A class III composite preparation, which is preformed on a model, not a live patient. This involves removing decay and shaping a tooth to hold a class III filling, i.e., one located on the side surface of an incisor. Dr. Roberts received scores of 1, 0, and 1 (Dr. Cohen assigned one of the grades of 1) A class IV composite restoration, which is performed on a model, not a live patient. This involves restoring a fractured tooth with a composite restoration material. On this procedure Dr. Roberts received scores of 0, 0, and 1 (Dr. Cohen assigned the grade of 1). An endodontic evaluation performed on a posterior tooth, which is performed on a mannequin, and involves the opening of a molar, and identification of the canals in the tooth in preparation for a root canal procedure. Originally Dr. Roberts received grades of 3, 3, and 0 (one of the grades of 3 was assigned by Dr. Cohen). Dr. Roberts work was regraded by three new examiners and the grades of the original examiners were discarded. Dr. Roberts ultimately received a grade of 3.67 on the endodontic portion of the examination A preparation of a posterior tooth for a cast restoration, which is performed on a mannequin. It involves preparing a tooth to receive a crown. Dr. Roberts' original grades were 2, 3, and 3 (Dr. Cohen had assigned a grade of 3 on this procedure). On review, Dr. Roberts' was regraded by three new examiners, and the original grades were discarded. Dr. Roberts received a final grade of 3 on this portion of the examination. A pin amalgam preparation, which is performed on a model, not on a live patient. This involves the preparation of a tooth to hold an amalgam filling by inserting a pin into a portion of the tooth, which serves to anchor the filling. Dr. Roberts was assigned grades of 2, 0, and 1 on this procedure (Dr. Cohen assigned the grade of 1). Pin amalgam final restoration, which is performed on a model. It involves filling a tooth with amalgam filling material. Dr. Roberts was assigned grades of 2, 1, and 2 on this procedure (Dr. Cohen assigned one of the grades of 2). Due to the involvement of Dr. Cohen in so many of the procedures involved here, Dr. Roberts performance on the June of 1987, clinical dental examination was not fairly evaluated. A fair evaluation cannot be provided after the fact by merely dropping Dr. Cohen's grades, because Dr. Roberts' performance would not be subject to the independent evaluation of three examiners. Dr. Roberts relies, to a large extent, on the testimony of Dr. Gultz as the basis for regrading his procedures to a passing grade of 3, or better. The testimony of Dr. Gultz does not, however, show that he has ever participated in the standardization exercises for examiners at Florida clinical dental examinations. Dr. Gultz experience as a clinical professor of dentistry at New York University provides a substantial basis for his evaluation of dental procedures. The difficulty, however, is that as with any qualified examiner, his evaluations will be based on internalized standards which are personal to him. There is no way to know whether Dr. Gultz standards for adequate performance are equivalent to those which the standardization training produces among examiners at the standardization exercise before a clinical dental examination. The standardization process "attempts to bring all examiners to the same level of grading, so that each [examiner] is grading in a valid and reliable manner." Clinical Monitor and Examiner Instruction Manual, June of 1987, at page 42. The Florida dental clinical examination uses a holistic grading method. Each score sheet which an examiner fills out has on it the criteria to be applied in evaluating the candidates performance on that procedure. They all contain a statement which reads: It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value, but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have any assigned numerical or point value, but are to be utilized in making a holistic evaluation of the procedure. Each grading sheet also points out to the examiner certain critical factors which, if present, require a grade of 0 for the procedure. The standardization in grading which the Board diligently attempts to achieve through the standardization training and the standardization testing of examiners done at the close of the training is elusive at best. Nonetheless, in the absence of showing that Dr. Gultz standards of evaluation are equivalent to those of an examiner trained at a standardization session, it is impossible to know whether his standards of evaluation are more rigorous or less rigorous than those reflected by the grades assigned to other candidates by the corps of examiners which evaluated the work of candidates at the June of 1987, clinical dental examination. The same is true with respect to the testimony of Dr. Simkins, the expert for the Board in this proceeding. No useful purpose would be served in attempting to choose between the testimony of Dr. Gultz, on the one hand, and the testimony of Dr. Simkins and of the other examiners who testified by deposition in this proceeding. If this were to be done, all the hearing officer would have determined is whose testimony about the appropriate grade to be assigned for each procedure is more believable. On this record it would be impossible to make a further finding about whether that more believable testimony reflects a scoring standard more stringent, less stringent or the same as that generally applied to all candidates by the corps of examiners in the June of 1987, clinical dental examination.
Recommendation It is recommended that the results of the clinical dental examination which Dr. Roberts took in June of 1987, be found invalid, and that he be permitted to take the next clinical dental examination offered by the Department of Professional Regulation at no cost to him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of December, 1989. 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 8th day of December, 1989.
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
Findings Of Fact The Petitioner, a candidate for licensure as a dentist, was administered the state Dental Examination in June 1988. A part of the exam, the clinical portion, requires that each candidate perform specified procedures on a human patient. The exam procedures are performed in a clinical setting. A floor monitor is present during the examination. After each procedure is performed, the monitor escorts the patient to a grading room. In the grading room, three examiners separately and independently review each candidate's performance. The examiners generally do not discuss or otherwise communicate their opinions or the grades awarded other than to note such on the grading sheet completed by each examiner. The examiners are Florida-licensed practicing dentists. Prior to the examination, the examiners participate in a training session designed to provide a standardized, uniform reference for grading the results of a candidate's performance on the clinical exam. Each examiner awards a numerical grade between 0 and 5 for each procedure. The grade for each procedure reflects an evaluation of the whole of a candidate's performance. Comments are made by each examiner on the grading sheet, either through marking in a computer-scored portion on the sheet, or by written notes outside the computer-scored area. The criteria for each possible grade is as follows: 0--complete failure 1--unacceptable dental procedure 2--below minimal acceptable dental procedure 3--minimal acceptable dental procedure 4--better than minimal acceptable dental procedure 5--outstanding dental procedure The three scores awarded by the examiners are averaged to provide the grade for each procedure. Each candidate is identified on the grading sheet by number so as to prevent an examiner from knowing the identity of the individual candidate being reviewed. Each examiner is also identified by number. Examiners are assigned to grade a candidate through a random selection process. The test monitor is responsible for collecting the grading sheets after each examiner has completed the review. After the grading process is complete, the patient is returned to the clinic for performance of the next procedure. The grading process is repeated for each step. The Petitioner challenges the scores awarded to two of the ten procedures performed as part of the clinical exam. Procedure number two on the exam, the amalgam cavity prep, provides for the preparation of a decayed tooth for filling. Procedure number three, the final amalgam restoration, provides for the filling of the prepared cavity. The two procedures account for 20% of the total points on the clinical examination, divided between procedure two (two-thirds) and procedure three (one-third). On procedure number two, the Petitioner received a grade of 3 from examiner 133, a grade of 4 from examiner 194, and a grade of 0 from examiner 192. Examiner 192 noted that caries remained present in the prepared tooth cavity. Neither examiner 133 nor examiner 194 noted remaining caries, although both identified other areas of concern regarding the candidate's performance. According to the examination rules of the Department, a grade of 0 is mandatory if caries remain after completion of the procedure. There was no evidence to indicate that the review and scoring by examiner 192 was erroneous, beyond the fact that other examiners did not note remaining caries. It is possible, according to expert testimony, for one examiner to identify remaining caries which other examiners fail to discover. The remaining decay can be dislodged by one examiner in reviewing the procedure and therefore not visible to subsequent examiners, or the decay, loosened by the procedure, can be otherwise displaced within the patient's mouth between examinations. On procedure number three, the candidate received a grade of 3 from examiner 101, a grade of 4 from examiner 052, and a 0 from examiner 192. Examiner 192 noted that the functional anatomy, proximal contour, and margin of the amalgam restoration were deficient, further noting that a cervical shoulder existed and that the prepared area was not filled. The evidence did not indicate that the grade awarded by examiner 192 for procedure number three was erroneous or mistaken. According to the evidence, including expert testimony based upon a review of x-rays taken subsequent to completion of the procedure, the grade awarded by examiner 192 was appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of dentistry enter a Final Order dismissing the Petitioner's challenge to the grading of the two clinical procedures on the June 1988 dental examination. DONE and RECOMMENDED this 7th day of July, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 7th day of July, APPENDIX CASE NO. 89-0588 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: Rejected. The evidence did not establish that procedure number two is weighted more than all other procedures, but did indicate that procedures performed within the oral cavity are more heavily weighted that procedures performed outside the cavity. Procedures two and three are both performed within the oral cavity. Procedure two is, and, totaled, constitute 20% of the clinical examination. Procedure two provides two-thirds of the 20%, with procedure three providing one-third of the 20%. Rejected, restatement of testimony. The appropriate criteria for the 0-5 grade scale is as stated in Rule 21G-2.013 Florida Administrative Code. Rejected, not supported by weight of evidence. Both examiners noted comments on the grading sheet, either through marking within computer-scored area or by writing additional comments on the grading sheet. Rejected. The evidence did not indicate that it was "customary" for examiners to pass notes through monitors to the candidate. The witness testified that, on occasion, he had passed notes to monitors when he gave a score below three on the referenced procedures. However, there is apparently no requirement that examiners inform candidates, through monitors, of problems which are found during the grading of the candidate's work. Rejected, irrelevant. There is no requirement that the candidate should have been informed of the acceptability of his work or of his scores during the procedure. Rejected, not supported by weight of the evidence. The fact that one examiner identifies specific problem areas which are not identified by other examiners does not indicate that the scores are erroneous or that the standardization process undergone by the examiners was deficient. Rejected, conclusion of law. 14-15. Rejected, goes to weight accorded testimony of referenced witnesses. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 4. Rejected, irrelevant. 9. Rejected, as to characterization of Petitioner's testimony. COPIES FURNISHED: James Sweeting, III, Esquire 2111 East Michigan Street, Suite 210 Orlando, Florida 32806 E. Harper Field, Deputy 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 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729
Findings Of Fact Respondent is a licensed dentist holding license No. DN0003704. In 1980, Karen Hansen was a patient of Respondent. In August of 1980, Respondent furnished Ms. Hansen a four-unit fixed bridge encompassing the upper left cuspid, the left lateral incisor, the left central incisor, and the upper right central incisor. Despite pain and sensitivity to hot and cold, Ms. Hansen was satisfied initially with the work performed by Respondent. However, shortly after the bridge was installed, she began to experience pain and sensitivity to hot and cold, and became dissatisfied with the aesthetics of the bridge. She returned to Respondent for adjustments, but Respondent was unable to correct the problems or alleviate her pain and sensitivity. On June 8, 1981, Ms. Hansen was examined by Petitioner's dental consultant. Upon examination of Ms. Hansen, the following conditions were observed: The porcelain was badly chipped on the upper left cuspid; The facial margin of the crown on the upper left cuspid was short of the gingiva; The porcelain on the facial aspect of the upper left central incisor was chipped and a jagged edge was present; The facial margin of the crown on the right central incisor was short of the gingiva; and Occlusion was extremely heavy and traumatic in the bridge area. Ms. Hansen was examined by Petitioner's expert several months after the bridge was seated. As a result, he was unable to state with absolute certainty that the short margins existed at the time the work was completed. However, since less than a year had passed since the bridge was seated, it is likely that the short margins were present in August of 1980. The bridge provided by Respondent to Ms. Hansen is neither functionally nor aesthetically serviceable. There was nothing so unusual about Ms. Hansen's oral condition that would have made it difficult to fabricate a serviceable bridge for her. The roots of her teeth were not so large that it would have been impossible to crown the teeth to the gingiva, in accordance with acceptable dental practice. Furthermore, the patient's decision not to crown an additional tooth had no effect on the occlusion or the short margins found upon later examination of the bridge. For these reasons, the bridge furnished by Respondent to ?s. Hansen failed to meet the minimum acceptable standard of practice. Respondent first saw Eileen Murray as a patient on or about December 13, 1976. Ms. Murray at that time was a 23-year-old female who had approximately 11 teeth missing including her four wisdom teeth. At the time she was first seen by Respondent her mouth was in very poor condition. She needed bridgework involving 22 teeth, including the two upper right bicuspids which were missing. She also gave a history of having had severe bruxism for over ten years prior to seeing Respondent. The dental work performed by Respondent was completed on or about March 20, 1977. In September of 1977, Ms. Murray returned to Respondent because the porcelain on one of her bicuspids had fallen away from the gold backing. From that point until May of 1981, Ms. Murray experienced many problems with the crown and bridgework installed by Respondent and returned to his office numerous times for repairs and adjustments. In addition to the aforementioned problem, Ms. Murray again saw Respondent in March of 1978 when she experienced sensitivity to hot and cold and the short margin developed on an upper cuspid. In January of 1979, the last two teeth on the upper bridge broke away from the bridge itself. In July of 1979, the last two teeth on the lower bridge broke away. In June of 1980, the lower bridge broke into four pieces when it was removed by Respondent. Finally, in September of 1980, the porcelain chipped on the upper central incisor of the bridge. In July of 1981 Ms. Murray was examined by a consultant to Petitioner. She was also examined in September of 1981 by another consultant retained by Petitioner. Both consultants noted the following conditions present in Ms. Murray's mouth: The metal substructure of the ontics was fractured between the pontics which replaced the maxillary right, first and second bicuspids; There were open margins on the facial aspect of tooth Nos. 6, 8, 10, 11, 18, 22, and 27; There were short margins on the facial aspect of tooth Nos. 22, 23, and 26; There were short margins on the lingual aspect of tooth Nos. 3, 23, 26, and 30; Porcelain was chipped on the incisoral edge of the maxillary right cuspid and the maxillary right central; Metal was exposed on the occlusal or incisal surfaces of tooth Nos. 12, 26, 27, and 30; The porcelain in the bridge exhibited an overall contamination indicative of poor dentistry; There was generalized periodontal involvement of the soft tissues; and There was severe malocclusion. As a result of the foregoing problems, the record in this cause establishes that the work done by Respondent on Ms. Murray is not salvageable, but must be redone in its entirety. The breakage problems experienced by Ms. Murray would not have occurred had the porcelain not been of such poor quality. In addition, the metal utilized by Respondent was inadequate and could not withstand the stress of the prosthesis as designed by Respondent. When the metal substructure of Ms. Murray's bridge fractured, the bridge should have been remade, but Respondent chose not to do so. The margin on tooth No. 10 was never adequate. The incisal edges of several teeth are opaque and do not resemble natural teeth. On most teeth this is largely a cosmetic consideration, but on the molars, this thick, opaque, rounded "mothball" appearance severely effects the function of the teeth, in that the lack of a properly contoured incisal edge makes chewing extremely difficult. Apparently, little consideration was given by Respondent to the function of the bridgework. The upper bridge was apparently designed to be aesthetically pleasing, and the lower bridge was then shaped to fit around or under the upper prosthesis. This lack of consideration for function is further indicated, in part, by a flat spot on one lower tooth, and a generally poor occlusal table. The record in this cause also reflects that Ms. Murray had active periodontal disease when she first consulted Respondent. The inadequate restorative dentistry described above contributes to the progress of periodontal disease. In Ms. Murray's case, it is likely that her periodontal disease was exacerbated by the poor restorative dentistry performed by Respondent. It is clear from the record in this cause that Ms. Murray had a long history of bruxism when she was first seen by Respondent. She made this fact known to Respondent, and Respondent in fact furnished certain appliances to Ms. Murray because of her bruxing problem. In most cases, properly done crown and bridgework will eliminate bruxism. However, neither the mouth guards prescribed by Respondent nor the restorative dental work performed by him served to alleviate Ms. Murray's bruxism. However, the record in this cause establishes that the poor restorative dentistry practiced by Respondent in fact worsened Ms. Murray's bruxism. Both counsel for Petitioner and counsel for Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been included in this Recommended Order, they have been specifically rejected as either irrelevant to the issues in this cause, or as not having been supported by evidence of record.
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0004795. At all times material hereto, Respondent maintained two offices for the practice of dentistry, one where he practices privately in Bay Harbor Islands and one in North Miami Beach which is also known as R & E Dental Offices or as North Dade Dental Office. Case Number 83-3976 Beatrice Gershenson On April 19, 1980, Beatrice Gershenson, in response to a newspaper advertisement, came to R & E Dental Offices complaining that her lower denture made years earlier was uncomfortable and in need of replacement. Respondent examined Gershenson on that visit and advised her that she would need to have both her upper and lower dentures replaced. During that consultation, Respondent and Gershenson agreed upon a fee of $410 for a full set of dentures. Respondent did not provide any treatment to Gershenson during her first visit. Gershenson returned to R & E Dental Offices several times during April and May 1980, during which visits she received a full set of dentures and several subsequent adjustments to those dentures. Although Gershenson's checks were made payable to Respondent, Respondent provided no treatment to her; rather, all dental services were provided to Gershenson by other employees of R & E Dental Offices. Gershenson did not see Respondent following the initial consultation until her last visit to R & E Dental Offices. At that time, Gershenson complained to him about her dentures. She advised Respondent that her dentures were flopping and that she was biting the back of her jaw. Respondent did not examine her at that time. Based upon her complaints, however, he suggested that she be provided a reline and that she use a denture cream. Gershenson refused to have a reline, became upset about having to use a denture cream, and left. On July 16, 1981, Gershenson and her dentures were examined by Dr. Leonard M. Sakrais, a dental expert retained by Petitioner. Between her last visit to R & E Dental Offices and her examination by Dr. Sakrais, Gershenson's dentures were not altered. The three deficiencies in Gershenson's dentures noted by Sakrais became the specific allegations in the Administrative Complaint filed against Respondent. Sakrais noted that the dentures exhibited open occlusion on the right side, the lower anterior teeth were set forward of the ridge making the lower denture unstable, and the upper denture was short in the tuberosity region and therefore had no retention. However, Sakrais recognized that lower dentures are typically unstable, that Gershenson's small knife-edged lower ridge made her a difficult patient to fit, and that the dentures could have very easily been made serviceable. One of the ways in which the defects could be remedied, accordingly to Sakrais, was for the denture to be relined. If a patient refuses to have a denture relined, however, there is nothing a dentist can do further. Gershenson continued to wear the dentures obtained at R & E Dental Offices without adjustment after the examination by Sakrais until she commenced treatment in June 1983 with Dr. Alan B. Friedel. She made no complaints to Friedel regarding the upper denture and only complained about the looseness of the lower denture. Friedel adjusted her lower denture and recommended that it be relined and that she use a denture cream. Friedel noted no problems with the upper denture and attributed the problems with Gershenson's lower denture to the shape and deterioration of her lower ridge. When Dr. Neil Scott Meyers examined Gershenson on August 3, 1984, after Friedel's treatment had been completed, Gershenson complained to him that her upper denture fit so well that she had trouble removing it. Meyers found no defects in Gershenson's dentures, as modified by Dr. Friedel, and also noted the difficulty in fitting a lower denture for a patient with a small sharp lower ridge like Gershenson's. Gershenson voluntarily terminated treatment with R & E Dental Offices without requesting a refund and without requesting that the dental work be redone. Rather, she refused Respondent's offer to reline her dentures. Case Number 84-0349 Barbara Schmidt On November 4, 1980, Barbara Schmidt came to R & E Dental Offices in response to an advertisement. Schmidt complained that an improper bite was causing loss of her natural teeth and advised Respondent that her previous dentists had recommended that she have her teeth capped and bite opened. Schmidt brought with her to that consultation X rays and study models, a lot of advice from previous dentists who had treated her, and her attorney-husband who drilled Respondent on his plan for treatment of Schmidt. During Respondent's examination of Schmidt, he noted that she suffered from an extreme loss of vertical dimension. Her teeth were very worn, and there was little enamel left on her anterior teeth. The agreed upon treatment plan for Schmidt involved a full mouth reconstruction, consisting of 15 lower crowns and 8 upper crowns. On November 4 and 11, 1980, Respondent prepared Schmidt's lower right side and lower left side and provided her with temporaries. Respondent made no attempt to increase her vertical dimension with the first set of temporaries. On November 25, 1980, Respondent took a second bite impression and made a second set of temporaries which increased Schmidt's bite by 2 millimeters. He noted that he was having trouble getting Schmidt's jaws into centric position for taking a second impression because her jaw muscles were too tense. During Schmidt's appointments on December 16 and 23, 1980, Respondent tried-in the lower metal framework, checked the margins, looked for blanching of the tissue, determined that the lower frame was acceptable and ready to be finished, and took a third bite impression due to the difficulty in getting the same registration each time that Schmidt's bite was registered. During Schmidt's January 13, 1981, appointment, Respondent began work on her upper teeth. Schmidt was placed in temporaries. When the upper metal work was tried-in on February 3, 1981, Respondent determined that the fit was correct. On February 10, 1981, Respondent inserted Schmidt's upper crowns using temporary bond and made a notation in Schmidt's records that her bridges should be removed every six months. On February 17, 1981, Respondent removed one of Schmidt's bridges, made new temporaries, and returned Schmidt's crowns and bridgework to the laboratory for rearticulation in order that the bite, with which Respondent was not satisfied, could be corrected. On this date Schmidt was in her third set of temporaries and was clearly in an unfinished stage. On February 18 and 24, 1981, Schmidt was seen by Dr. Wayne Dubin, another dentist in the same office. Schmidt's dental records indicate that on the former date Dubin re-cemented Schmidt's temporary crowns, and on the latter date he cemented with temporary bond the permanent crowns that Respondent had returned to the laboratory on February 17. On March 3, 1981, Respondent repaired Schmidt's lower right bridge, and on March 10 he cemented that bridge back into Schmidt's mouth with temporary bond. On March 17, 1981, Respondent removed one of Schmidt's bridges and returned it to the laboratory so that porcelain could be added. This was the last occasion on which he rendered treatment to Schmidt. On March 24, Schmidt was seen by Dr. Dubin at the request of Respondent. In the presence of Schmidt, Respondent requested Dubin to take over the case because Respondent was still unable to correct Schmidt's bite. Respondent told Dubin to do whatever he thought was necessary. On March 24, 1981, Dubin removed Schmidt's crowns and bridges and took a bite impression without the crowns and bridges in place in order to correct the bite problem in a different way than Respondent had previously tried. On April 7, 1981, Dubin placed Schmidt's bridges in her mouth using temporary cement. He advised her that on her next visit he would take a new set of X rays, presumably to start over again if necessary. Although Dubin was at that time Schmidt's treating dentist, she sought advice from the lady employed as the office manager at R & E Dental Offices. The two women decided that rather than having Schmidt continue with Dubin, she should see Dr. Lawrence Engel the "E" of R & E Dental Offices. On the following day Engel saw Schmidt for an occlusal adjustment. During the examination, Schmidt's jaw muscles went into spasm, and she was unable to make the appropriate movements so that Engel could make the appropriate adjustments. Engel suggested to Schmidt that she go home, practice moving her jaw in front of a mirror in the privacy of her home, and then return so that he could complete her adjustment. Schmidt returned to Engel approximately one week later and brought her husband with her. While Mr. Schmidt engaged in a tirade and Dr. Engel engaged in adjusting Mrs. Schmidt's bite, there was a power failure in North Miami Beach. The Schmidts were given their choice of waiting until electrical power resumed or leaving and coming back at another time. After advising the office manager that they would return and that would also complete paying the agreed upon fee for dental services, the Schmidts left. They did not, however, return, and they did not, however, complete paying their bill. Instead, on May 18, 1981, Mrs. Schmidt picked up her records, X rays, and study models. She did not speak with Respondent about her voluntary termination of treatment, about a refund of the monies paid for treatment, or about her dental work being completed or redone. Schmidt was not released from treatment by any dentist at R & E Dental Offices. When Schmidt released herself from treatment, none of the three dentists who had treated her had indicated that her case was completed or close to completion. Rather, more temporaries were being made, her crowns and bridgework were being returned to the laboratory, new X rays were being ordered, and one dentist was in the middle of an adjustment when the electrical power failed. Moreover, the dental work made for her had been cemented with temporary bond, and no one had indicated that permanent cementing was likely at any time soon. The only discussion which had occurred regarding the use of permanent cement occurred with Respondent when he explained to her that sometimes sensitive areas are alleviated when permanent cementing takes place. That discussion took place prior to the time that Respondent referred Schmidt to Dr. Dubin with instructions to do whatever Dubin thought necessary. During the time that Respondent was treating Barbara Schmidt, she was seeing other dentists for the purpose of having them monitor Respondent's work. Since neither Schmidt nor her monitoring dentists advised Respondent that he was being monitored, the only information available to those dentists was that provided to them by Barbara Schmidt. They, therefore, did not have the benefit of Respondent's input into their opinions, and Respondent likewise was not given the benefit of their input into his decisions. In addition to seeing a Dr. Coulton and a Dr. Souviron, Schmidt consulted twice with Dr. Alvin Lawrence Philipson, a dentist having some business dealings with Mr. Schmidt. Schmidt saw Dr. Philipson for Use first time on February 11, the day after her permanent lowers were inserted with temporary cement. Six days later Respondent removed Schmidt's lower left bridge and sent it back to the lab to be remade in order to correct the bite and alleviate an area causing sensitivity. When Philipson next saw her in March of 1981 he was of the opinion that Respondent had provided treatment which failed to meet minimum standards. That opinion, however, was based upon the information given to him by the Schmidts that Respondent was finished with the case and ready to permanently cement all bridgework. At the time that he rendered his opinion, Philipson did not know that Schmidt was about to be referred by Respondent to another dentist, i.e., Dr. Dubin for that doctor to do whatever he thought was necessary in order to help Mrs. Schmidt. After Schmidt discharged herself from the care of the dentists at R & E Dental Offices, she continued to wear the crowns and bridgework in their temporized state without treatment from April 8, 1981 (the day of the power failure) until July 7, 1982 when she sought dental treatment from Dr. Donald Lintzenich. By this time she had also developed periodontal problems, most likely as a result of neglect. Schmidt began treating with Tintzenich in July of 1982, and Lintzenich also referred her to other specialists for necessary treatment such as root canals and periodontal treatment. Although many changes were made to the crowns and bridgework Schmidt received from R & E Dental Offices by Lintzenich and the other dentists to whom he referred her, during the first four months that he treated Schmidt Lintzenich left the crowns and bridgework from R & E Dental Offices in Schmidt's mouth. Although Lintzenich began treatment of Schmidt in July 1982, he was still treating her at the time of the Final Hearing in the cause and was, at that point, considering redoing work he had placed in her mouth. The numerous experts in dentistry presented by both Petitioner and Respondent agree that Barbara Schmidt's is an extremely difficult reconstruction case and that a quite extended period of time is necessary for the correction of her dental problems. Further the experts agree on nothing. Each of Petitioner's experts disagrees with almost everything stated by the remainder of Petitioner's experts. For example, Philipson recommends increasing Schmidt's bite; Glatstein believes that Schmidt's bite needs to be reduced; and Lintzenich opines that any attempt to change the vertical dimension would constitute treatment below the minimum acceptable standard. Some of Petitioner's experts believe that Schmidt's periodontal problems existed before she sought treatment by Respondent, and some of them believe that her periodontal problems commenced after she had terminated treatment with Respondent. Although most of Petitioner's experts agreed that Respondent's work fell below minimum standards, they also admit their opinions would be different if they had known that Respondent had not completed his work on Schmidt and had not discharged her but rather had referred her to another dentist with instructions to do whatever was necessary. Only Dr. Glatstein maintained that Respondent's work was substandard at any rate, an opinion he confers on Lintzenich's work, too. The Administrative Complaint filed herein charges that Respondent's treatment of Schmidt failed in the following "specifics": the work has no centric occlusion; the bite is totally unacceptable and if not corrected will cause irreversible damage to the temperomandibular joint; and the contour of the teeth and embrasure space for the soft tissues were unacceptable and ultimately will result in periodontal breakdown. All of the experts who testified agree that Barbara Schmidt's bite is/was not correct. She initially sought treatment because her bite was not correct and is still undergoing treatment because her bite is not correct. There is no consensus on any of the other charges in the Administrative Complaint; in fact, there is no consensus as to the meaning of some of the words' used. For example, some dentists believe that the term "contour of the teeth" encompasses open margins while others believe that an open margin is the space between the tooth and the crown. Few dentists, however, believe that an Administrative Complaint which states that the contour of teeth is unacceptable advises a licensee that he is charged with defective work because of open margins. Even if open margins were part of the term "contour of the teeth," the Administrative Complaint fails to notify anyone that the open margins are the part of the contour that is alleged to be defective or even which teeth are involved. There is no basis for choosing the opinion of one expert in this case over the other experts who testified herein. Further, many of the opinions are based upon information that was either erroneous or false, such as the information that Respondent had completed treatment and discharged Schmidt.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaints filed herein and dismissing them with prejudice. DONE and RECOMMENDED this 20th day of May, 1985, at Tallahassee, Florida. LINDA M. RIGOT 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 20th day of May, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201 Algis Augustine, Esquire 407 South Dearborn Street Suite 1300 Chicago, Illinois 60605 Stephen I. Mechanic, Esquire Allan M. Glaser, Esquire Post Office Box 398479 Miami Beach, Florida 33139 Ronald P. Glantz, Esquire 201 S.E. 14th Street Fort Lauderdale, Florida 33316 Steven Rindley, D.D.S. 251 NE 167th Street North Miami Beach, Florida 33162 Steven Rindley, D.D.S. 1160 Kane Concourse Bay Harbor Islands, Florida 33154 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry 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 Whether the Petitioner should receive on the the clinical portion of the examination additional credit, which is sufficient to receive a passing grade on the December 1997 dental licensure examination.
Findings Of Fact Petitioner, Neda Raeisian, was a candidate for the dental licensure examination administered by the State of Florida in December 1997. The dental examination administered in December 1997 consisted of three parts: a "Florida Laws & Rules" part, an "Oral Diagnosis" part, and a "Clinical" part. The Petitioner received passing scores on the "Florida Laws & Rules" and "Oral Diagnosis" parts of the examination. Petitioner received a score of 2.95 on the Clinical part of the examination. A score of 3.00 was required on the Clinical part of the examination. The Petitioner failed the Clinical portion by .05 of a point, and, therefore, she failed the overall dental examination. Three examiners grade each candidate's clinical portion of the dental examination. Three examiners are used because by averaging the scores of the three examiners, the Respondent is more likely to capture the candidate's true score than by using one or two examiners. Before an examiner may be used for an examination, he or she must be recommended by an existing examiner or by a member of the Board of Dentistry. The proposed examiner may not have any complaints against his or her license and he or she must have been actively practicing and licensed for at least five years in the State of Florida. The examiner must complete an application that is sent to the Board of Dentistry examination committee, where it is then reviewed by the committee, and if approved, the examiner is entered into the pool of examiners. Before every examination, the Respondent conducts a standardization session, which is a process by which examiners are trained to grade using the same internal criteria. The Respondent uses assistant examiner supervisors who are appointed by the Board to train examiners on the different criteria that are used during the examination. The assistant examination supervisors go through and describe what a score of five would be, all the way down to a zero, the different criteria for each of those particular grades, and under what circumstances those grades should be given. After the examiners go through a verbal training, they are shown slides of teeth and told what the score on that procedure should be. After the standardization, there is a post- standardization exercise where the examiners are required to grade five mannequin models to make sure they have been able to internalize the criteria. After the post-standardization exercise, the Respondent evaluates the examiners to determine whether they are acceptable to use during the examination. There are also post-examination checks on the examiner, whereby the Respondent decides whether or not to use the examiners again. The Respondent runs the post-examination statistical checks to make sure that the examiners grade with consistency and reliability. There is generally a very high agreement rate between the examiners. Typically if there is an inconsistency in grading, it is usually the examiner who gives the higher grade that is incorrect because he or she missed an error; any error found by an examiner must be documented. The examiners grade the examination independently of each other; that is, they do not confer with each other while scoring the examination. The examination is also double-blind graded. Double- blind grading is the process through which examiners have no contact with the candidates. The examination is conducted in such a way that there is one clinic that is monitored by a licensed dentist in which the candidates actually perform the procedures. When the candidates are finished a proctor walks the patient over to another clinic where the examiners are located, and the examiners grade the examination. The candidates perform the patient portion of the examination on human beings that they are responsible for bringing in. If the patient has the necessary characteristics, the patient could serve for two different candidates or on two different examinations. The examination is a minimum competency examination. The grading system used during the clinical portion of the examination is as follows: A zero is a complete failure, a one is unacceptable dental procedure; a two is below minimally acceptable dental procedure; a three is minimally acceptable procedure, which is the minimum required to pass the clinical portion; a four is better than minimally acceptable dental procedure; and a five is outstanding dental procedure. An overall score is determine by averaging the three examiners' scores on the eight clinical procedures, putting different weights into a formula, and calculating the final grade. It is required in Board rule that the scores of the examiners be averaged. The Petitioner challenges the score given to her for her performance on Procedure 03, "Amalgam Final Restoration," of the Clinical portion of the examination. The Petitioner performed Procedure 03, the "Amalgam Final Restoration," on a live patient, Ms. Desiree Peacock. The Petitioner's performance on Procedure 03 was graded by three examiners: examiner number 290, identified as Dr. Richard Tomlin, of Pinellas Park, Florida; examiner number 299, identified as Dr. Haychell Saraydar, of Pinellas Park, Florida; and examiner number 176, identified as Dr. Leonard Britten, of Lutz, Florida. The Petitioner received a grade of 4 on a scale of 0-5 for her performance on Procedure 03 by examiner number 290; and a grade of 3 on a scale of 0-5 for her performance on Procedure 3 by examiner number 299. However, she received a grade of 0 on a scale of 0-5 for her performance on Procedure 03 by examiner number 176. The reason the Petitioner was given a score of 0 on procedure 03 by examiner number 176 was that the examiner felt that there was a lack of contact at the amalgam restoration site. The Respondent's dental expert, Jorge H. Miyares, D.D.S., testified that a score of 4 is given on Procedure 3 when, in the judgment of the examiner, there are only minor errors present which will not jeopardize the procedure; that a score of 3 is given on Procedure 03 when, in the judgment of the examiner, the procedure is completed at entry level; and that a score of 0 on Procedure 03 is mandatory if there is a total lack of contact. The examiners are taught and trained to check for contact when grading a candidate's performance on Procedure 03, as a lack of contact is a very significant error that jeopardizes the integrity of the amalgam restoration. There are two different types of contact involved in a Class II Restoration. The type of contact that was referenced by Examiner 176 in his grade documentation sheet is proximal contact. Proximal contact is when a tooth is restored, the proximal tooth next to it must be touching the tooth that has been prepared. Contact is something that either does or does not exist between two teeth. Contact is checked visually and by running a piece of dental floss between the teeth to see if there is resistance. Examiners 290 and 299 would have been required to give the Petitioner a grade of 0 on Procedure 03 if they had found a lack of contact. The findings of examiners 290 and 299 during their review of the Petitioner's performance on Procedure 03 were inconsistent with the findings of examiner 176 (lack of contact) during his review of the Petitioner's performance on Procedure 03. The inconsistency between the findings of examiners 290 and 299 and the findings of examiner 176 during their review of the Petitioner's performance on Procedure 03 were statistically unusual. Respondent performed Procedure 03 on the patient Desiree Peacock. Following the exam, Peacock used dental floss on the affected area and she believed she felt resistance. Although the grading on Procedure 03 of the clinical portion of the examination is inconsistent, the Respondent followed its standard testing procedures for the December 1997 dental examination. The evidence is insufficient to prove that the Respondent's examiner acted arbitrarily or capriciously or with an abuse of discretion in refusing to give the Petitioner a passing grade on procedure 03 of the clinical examination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petitioner's challenge to the grade assigned her for the clinical portion of the December 1997 dental licensure examination. DONE AND ENTERED this 22nd day of September, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of September, 1998. COPIES FURNISHED: Anne Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399 Dr. Neda Raeisian 2161 Lake Debra Drive Apartment 1726 Orlando, Florida 32835 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast Bin A-02 Tallahassee, Florida 32399-1703
