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STUART SCHLEIN vs. BOARD OF CHIROPRACTIC, 87-002851 (1987)
Division of Administrative Hearings, Florida Number: 87-002851 Latest Update: Jun. 30, 1988

The Issue The issue is whether Dr. Schlein was properly graded on the November 1986 practical examination for chiropractic. Preliminary matters At the opening of the hearing, the petitioner, Dr. Stuart Schlein, inquired whether a former member of the Florida Board of Chiropractic Examiners, Dr. Posner, could represent him in this proceeding. After inquiring about Dr. Posner's credentials, Dr. Posner was not accepted as a qualified representative, but Dr. Schlein was permitted to consult with Dr. Posner throughout the proceeding to assist in the presentation of Dr. Schlein's evidence. At the hearing, David Paulson, Ph.D., and Robert Samuel Butler, Jr., D.C., testified on behalf of both parties. Petitioner introduced exhibits 1-14, and respondent introduced exhibits 1 and 2.

Findings Of Fact Stuart Schlein, the petitioner, was a candidate during the November 1986 chiropractic examination. He was exempt from Part I (Basic Sciences Examination) and Part II (Clinical Sciences Examination) because he had already passed the National Board of Chiropractic Examiners' examination. The practical examination consists of three portions, one on x-ray interpretation, one on chiropractic technique, and one on physical diagnosis. There was no dispute with respect to the scoring of Dr. Schlein on the x-ray interpretation portion of the exam, on which he received a grade of 74.2 percent. Dr. Schlein's grade on technique was 75.0 and on physical diagnosis was 72.5, for an overall score on the three portions of practical examination of 73.9 percent. Dr. Schlein would have been eligible for registration for licensure as a chiropractor if his overall grade was 75 percent or better on the practical examination. Rule 21D- 11.003(4), (5), Florida Administrative Code. To conduct the technique and physical diagnosis portions of the practical examination, the Department of Professional Regulation hires examiners who have five or more years experience as licensed chiropractors in Florida who have not been disciplined or investigated by the Board. Rule 21D- 11.007(1), Florida Administrative Code. Pairs of examiners question each candidate. There is a standardization training session for examiners which lasts 2-3 hours the morning of the examination. During that training, the examiners learn the scoring scale to be used; candidates are scored on a scale from 1-4, with scores of four being the maximum. Examiners are told to independently evaluate the candidate's performance and are told how to record their answers on a sheet which can be scanned by computer, and are told the different content areas from which they may ask questions of candidates. For example, in the technique examination, there are four sub-areas to be covered, cervical, thoracic, occipital, and soft tissue. The examiner, individually, determines what he wishes to ask candidates from those subject areas. Both examiners' scores on each test are averaged to produce a candidate's final score for each test. The examiners change partners from the morning to afternoon examination sessions. For approximately 30 minutes before the morning or afternoon sessions, the examiners paired for that session may discuss with each other the questions which they intend to ask. To use a legal analogy, this method of testing candidate's practical knowledge is not much different than placing two examining lawyers in a room to question and evaluate a bar applicant, after merely instructing the lawyers to "ask something about evidence, about constitutional law, and about criminal law." (Transcript 137). There is no assurance that the questions posed by the examiners are at a proper level of difficulty to assess minimum qualifications for practice. There is no requirement that a given pair of examiners ask the same questions of their examinees during a morning or afternoon examination session. There is no assurance that the other examiner in the room even knows the answer to a question posed, yet both examiners are required to assign a grade for the candidate's performance on each sub-area. The Department makes a tape recording of the examination of each candidate for review. Dr. Schlein's grades on the technique and diagnosis portions of the practical examination were as follows: TECHNIQUE Examiner I Examiner 4 1. Cervical 3 4 2. Thoracic 3 3 3. Occipital 4 3 4. Soft Tissue 2 2 12 12 16 16 = 75 percent = 75 percent Average score 75 percent DIAGNOSIS Examiner 1 Examiner 4 Case History 3 3 Chiro. Exam. 2 2 Orthopedic 4 4 Neurological 4 3 Laboratory Diagnosis 3 2 Nutrition 2 [examiner failed to assign a grade] 18 14 24 20 = 75 percent = 70 percent Average score 72.5 percent Technique 75 percent Diagnosis 72.5 percent X-Ray 74.2 percent Final Average 73.9 percent Dr. Schlein objects to the grades he received for cervical and occipital on the technique exam and for neurological and nutrition in the diagnosis exam. With respect to the grade for nutrition, the Department of Professional Regulation could not explain why Examiner 4 failed to assign any grade for the candidate's answer with respect to the questions he was asked on nutrition. Dr. Schlein attempted to impeach the explanation given by Examiner 1, Dr. Butler, for the grades assigned on the four portions of the examination Dr. Schlein challenged by introducing portions of text books used in chiropractic schools which tend to support Dr. Schlein's oral answers. While the matter is not free from doubt, Dr. Schlein's text book excerpts have not convinced the Hearing Officer that the grades given are erroneous. Dr. Schlein was not properly graded, however, with respect to the area of nutrition since examiner 4 (who was not called as a witness) failed to assign any grade and the reason for his failure to do so was unexplained.

Recommendation It is RECOMMENDED that Dr. Schlein be granted the opportunity to be reexamined on the practical portion of the chiropractic examination, at no cost to him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June, 1988. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX The following are my rulings on the proposed findings of fact proposed by the petitioner. Rejected as introduction. Covered in paragraph 1. Covered in paragraph 2. Covered in paragraph 5. Covered in paragraph 6. Covered in paragraphs 1 and 5. Rejected because it is not possible to tell what the effect of the failure of Examiner 4 to give a grade on nutrition was, other than to draw the conclusion expressed in paragraph 5 of the Conclusions of Law that the examiner did not completely understand the grading instructions. Rejected for the reasons stated in paragraph 8. The finding that the testimony establishes there is no uniform method for grading examinees is implicitly accepted in paragraph 3, the remainder of the paragraph is rejected as argument. The following are my rulings of findings of fact proposed by the respondent. The Department filed no proposed recommended order. COPIES FURNISHED: WILLIAM O'NEIL, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 STUART SCHLEIN, D. C. 1035 FRANKLING ROAD APARTMENT N-208 MARIETTA, GEORGIA 30667 PAT GUILFORD, EXECUTIVE DIRECTOR BOARD OF CHIROPRACTIC DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

Florida Laws (2) 11.13120.57
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BOARD OF MEDICINE vs JAY D. FOSTER, 95-000320 (1995)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jan. 26, 1995 Number: 95-000320 Latest Update: May 07, 1997

The Issue At issue is whether respondent committed the offenses alleged in the amended administrative complaint and, if so, what disciplinary action should be taken.

Findings Of Fact Petitioner, Agency for Health Care Administration, Board of Medicine, is a state agency charged with the duty and responsibility of regulating the practice of dietetics and nutrition, including the prosecution of administrative complaints, pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 468, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Jay D. Foster, is now and has been at all times pertinent to these proceedings a licensed nutrition counselor in the State of Florida, having been issued license number NC 0000273. Respondent conducts business through, and is a shareholder, officer and employee of, Body Chemistry Associates, Inc., a Florida corporation, with offices at 9155 Southwest 87th Avenue, Miami, Florida 33176. Pertinent to this case, respondent is the author of three brochures bearing the following titles: "Nutrition, Learning and Behavior " ("Brochure No. 1") [Petitioner's Exhibit 1]; "Toxic Metals: What they can mean to your health and well being" ("Brochure No. 3") [Petitioner's Exhibit 3]; and "Nutrition and the Chemistry of Arthritis" ("Brochure No. 4") [Petitioner's Exhibit 4].2 The parties stipulated, at hearing, that each of these brochures promoted the services and types of treatment respondent performed through the BodyChemTM Program, and were available in the waiting area of respondent's office. [TR., page 153]. By such stipulation, it is reasonable to infer, absent proof to the contrary (which was not forthcoming), that each brochure was available to the public upon entry to respondent's waiting area, and that the brochures were placed in such area with the intention of selling, offering to perform, or inducing members of the public to engage respondent to perform nutrition services. Petitioner has identified the following portion of Brochure No. 1 ("Nutrition, Learning and Behavior"), which it contends contains fraudulent, false, deceptive or misleading information: 3. HEAVY METAL TOXICITY: Lead, Mercury, Cadmium, and Aluminum can all be accurately tested for through a reliable Hair Analysis. By reliable, I mean tested at a reliable laboratory and interpreted by a qualified biochemist or physician. I personally know of 2 reliable hair testing laboratories in this country and have studied over 20,000 hair samples in the last decade. From this experience, I have come to the conclusion that hair analysis gives an extremely accurate indication of heavy metal build-up in the tissues of the body, as well as an indication of essential mineral excesses and deficiencies that we will talk about next. All of the toxic metals mentioned above can effect the brain and central nervous system in children and in adults. When these poisons are detected through hair analysis profile, a program of natural detoxification procedures can be started and as the metals come out, the symptoms begin to improve. We had one case study where an 18 month-old child was brought to our clinic because she could not walk. She wore braces on her legs, had pronated feet, and two pediatricians said that she was born with a "neurologic deficit". The doctors were not sure the child would ever walk, or be mentally retarded. We did a hair analysis on the child and found that she had over 5 times the adult level of Aluminum in her system! It turned out that her mother had been prescribed an antacid that contained Aluminum while she was pregnant with her daughter. The good news is that we put the little girl on a supplement program and she began to walk within 2-3 weeks! She also cut 8 teeth in 5 weeks and was running around and climbing over things within a month. So, the bottom line is that these metals can now be detected and removed through natural means. . . . [Emphasis added.] Brochure No. 3 ("Toxic Metals") observes, by way of introduction: In our modern, high-tech society, we are paying the price for convienence (sic)- in our foods, in our water, and in the rest of our enviornment (sic). Pollution, especially, heavy metal toxicity is now a common occurrence. The bad news is that many people, especially children are being effected, physically and mentally. The good news is that these poisons can be avoided, detected, and even removed from the body with natural means. The brochure then proceeds to discuss "3 common toxic metals" (lead, cadmium and aluminum), their source, the physical or mental disorders they cause, and their removal from the body. As with Brochure No. 1, Brochure No. 3 included the anecdote describing the child on whom "[w]e did a metal analysis of the . . . hair," discovered aluminum toxicity, treated through a "natural detoxification program," and her physical development rapidly improved. The brochure concludes: So, the bad news is that there are poisons in our environment that that (sic) can dramatically affect our health. The good news is that if these metals have found their way into our bodies, they can be detected and removed through a natural process of detoxification. [Emphasis added.] Brochure No. 4 ("Nutrition and the Chemistry of Arthritis") observes, by way of introduction: Arthritis is a complex disease, which can have many origins and of which there is no known cure. This purpose of this article is not to purport to have a new discovery for the cure of any type of arthritis, as I don't claim to have the cure, but rather, the reason for writing this article is education - to let people know about certain dietary, biochemical and nutritional facts which we have found can adversly (sic) affect arthritic symptoms and therefore some general safe guidelines to be aware of which might help reduce the symptoms. I will discuss several different subtopics under the general heading of this paper[.] Pertinent to this case, the brochure includes the following discussion regarding mineral imbalances: . . . When calcium is not taken with proper ratios of magnesium, manganese, zinc and other nutrients, it tends to deposit into the soft tissues. Calcified arthritic deposits can manifest, along with gall stones, kidney stones, bursitis, etc. When calcium deposits are detected, usually via a trace mineral analysis of hair, therapeutic nutritional formulas can be recommended to help your body throw off the deposits. [Emphasis added.] Here, petitioner contends that the statements contained in the brochures that hair analysis can detect a heavy metal build-up (of lead, mercury, cadmium and aluminum) in the tissues of the body, as well as an indication of essential mineral (calcium) excesses and deficiencies , and that once identified the problem can be addressed through therapeutic nutritional formulas, is false and misleading because there is no clinical correlation between hair tissue analysis and heavy metal build-up in the tissues of the body, or mineral (calcium) imbalance, and there is no course of dietary supplementation available to a nutritionist that will aid in the removal of heavy metals from the body. Petitioner further contends that the anecdote regarding the child, who was tested by hair analysis, was found to have "over 5 times the adult level of Aluminum in her system," and following a "natural detoxification program" rapidly improved, is false and misleading for the same reasons [i.e., the build-up of aluminum could not have been reliably detected by hair analysis and no course of dietary supplementation is available to a nutritionist to ameliorate the problem]. Petitioner also contends the anecdote was false and misleading because, if the aluminum build-up were the cause of neurologic damage, such damage would be permanent and not ameliorated by the removal of the aluminum. While the reliability of hair analysis as a means to detect the presence of a heavy metal build-up in the tissues of the body, as well as an indication of essential mineral imbalances, is subject to debate, the proof demonstrates that where, as here, norms or standards are shown to exist, a trace element analysis of the hair can provide a useful tool in the identification of heavy metal build-up and mineral imbalances. Contrasted with blood and urine analysis, the traditional clinical approach, where trace element concentrations are transient (related to the supply of elements in the previous hours or days), hair analysis, while offering no information on immediate levels, offers insight to the tissue level and what has been stored over a period of months. Consequently, given the proof in this case, it must be concluded that the statements contained in the brochures that hair analysis can detect the presence of a heavy metal build-up in the tissues of the body, as well as an indication of essential mineral imbalances, has not been shown to be false or misleading. Rather, hair analysis has been shown to be helpful or to offer useful information in assessing such matters. The next issue requiring resolution is whether petitioner has demonstrated, with the requisite degree of certainty, that the brochures are false and misleading because heavy metal build-ups in the tissues of the body, as well as mineral imbalances, cannot be ameliorated through a course of dietary supplementation or nutritional formulas. Considering the quality of the proof, it cannot be concluded with any degree of confidence that the brochures are false and misleading as petitioner suggests. Indeed, respondent presented persuasive proof that nutritional approaches are available to ameliorate such conditions, and petitioner did not meaningfully address, explain, or rebut such proof. [See, e.g., TR., page 249-251.] Finally, it is necessary to resolve whether petitioner's contention that the anecdote regarding the child who was tested by hair analysis, found to have "over 5 times the adult level of aluminum in her system," and following a "natural detoxification program" rapidly improved, is false and misleading. In addressing the anecdote, it is first observed, for the reasons heretofore noted, that petitioner's contention that the anecdote is false and misleading because a build-up of aluminum in the tissues of the body can not be reliably detected by hair analysis and no course of dietary supplementation is available to a nutritionist to ameliorate the problem has not been sustained. Next to be addressed is petitioner's contention that the anecdote is false and misleading because it infers that a neurologic deficit, caused by aluminum toxicity, can be ameliorated by the removal of the aluminum. According to petitioner, and its proof, any neurologic (brain) damage would be permanent, and any "major cure is not medically or physiologically possible." [Tr., page 27.] Turning to the anecdote at issue, it must be concluded that petitioner's reading is strained and that, reasonably read, the anecdote does not suggest that profound neurologic damage was or can be "cured," as petitioner's reading suggests. Moreover, petitioner's suggestion, and the proof offered to support it, that the sequelae of a neurologic insult are always permanent and not subject to improvement is, especially with regard to infants, rejected as contrary to the more credible proof. Reasonably read, the anecdote correctly observes that "toxic metals [such as aluminum] can effect the brain and central nervous system in children and adults." The symptoms or sequelae attributed to the child are consistent with aluminum toxicity, and even petitioner's expert (Dr. Hillman) conceded that the sequelae attributable to aluminum toxicity are reversible. [TR., page 66.] Moreover, improvement would be more likely in the very young. [TR., page 252-253.] Consequently, the proof fails to demonstrate that the anecdote is false or misleading as suggested by petitioner.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the amended administrative complaint be dismissed.DONE AND ENTERED this 18th day of April, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1997.

Florida Laws (4) 120.5720.42455.225468.518
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ROBERT J. DIXON vs BOARD OF CHIROPRACTIC EXAMINERS, 93-000699 (1993)
Division of Administrative Hearings, Florida Filed:Melbourne, Florida Feb. 09, 1993 Number: 93-000699 Latest Update: Nov. 10, 1993

Findings Of Fact Petitioner took the chiropractic examination given by Respondent on November 4-7, 1992. The examination consists of three parts; physical diagnosis, technique, and x-ray interpretation. The minimum passing grade on each part is 75. Petitioner received an 80 on x-ray interpretation and a 36.5 and 67.5, respectively, on the physical diagnosis and technique parts. Here, Petitioner challenges only his score of 67.5 received on the technique part of the examination. If Petitioner passes the technique portion of the examination, he will be required to pass only the physical diagnosis in order to complete the examination requirements for his license. The technique portion of the examination consists of five clinical cases and four follow-up questions on each case. The technique part of the examination is timed. Like all candidates, Petitioner was provided with a timer and informed that no more than 10 minutes was allowed for all five cases, including the 20 follow-up questions. Petitioner neither stated a need for additional time nor requested additional time to complete the technique portion of the examination. Petitioner has only one leg and would have been given additional time if requested. Petitioner's challenge to the technique part of the examination is limited to clinical Case 1. No challenge is made to the follow up questions to Case 1. Case 1 required Petitioner to set up an appropriate technique for a patient who was eight months into pregnancy. The patient had a left anterior superior ilium. The condition of anterior superior ilium is more often associated with trauma to the buttocks or a fall on one's hip than with pregnancy. Pregnancy causes the joints to move easily and requires special consideration when performing adjustments. Special consideration includes different set-up, contact, and line of drive. Petitioner's first form of adjustment for Case 1 was his own adaptation for the facts presented. Petitioner changed the contact points and line of drive from that reasonably considered appropriate under the circumstances. Once the contact points were improperly changed, the line of drive was incorrect.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's request for credit on Case 1 and a passing grade on the technique portion of the chiropractic examination given November 4-7, 1992. DONE and ENTERED this 18th day of August 1993, in Tallahassee, Florida. DANIEL MANRY 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 18th day of August, 1993 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0699 Petitioner's Proposed Findings of Fact Petitioner submitted no proposed findings Respondent's Proposed Findings of Fact 1.-8. Accepted in substance COPIES FURNISHED: Robert J. Dixon 8300 U.S. #1 North Micco, FL 32976 Vytas J. Urba, Esquire Dept. of Business and Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack Mcray Acting General Counsel Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (1) 120.57
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FRANK GIAMPIETRO vs BOARD OF CHIROPRACTIC, 90-003399 (1990)
Division of Administrative Hearings, Florida Filed:Fort Pierce, Florida Jun. 01, 1990 Number: 90-003399 Latest Update: Oct. 18, 1990

The Issue The issue in this case is whether Frank Giampietro (Petitioner) should be awarded additional credit for answers given on the chiropractic physical diagnosis practical licensure examination administered in November, 1989, and based thereon, whether he should be licensed to practice chiropractic in the State of Florida.

Findings Of Fact Petitioner has been licensed to practice chiropractic in the State of Rhode Island since March, 1986. He took the diagnosis portion of the chiropractic practical examination administered by the Respondent on November 9, 1989, for purposes of being licensed in the State of Florida. Petitioner received a grade of 68.7% on this portion of the exam. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam, and based thereon, whether he should have passed this examination. It was established that the physical diagnosis practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner disputed the score he received in the areas of neurology, orthopedics, and differential diagnosis. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 2 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physical diagnosis practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, one examiner gave Petitioner the grades of 2.5 in orthopedics and 3 in both neurology and differential diagnosis, while the other examiner gave him 2 in orthopedics, 2.5 in neurology and 3 in differential diagnosis. If Petitioner received two additional raw points on these three content areas which are under challenge, he would receive an overall passing score of 75%. Regarding the practical exam content area of orthopedics, the Petitioner improperly performed Apley's test, according to the expert testimony of Dr. Ordet, and incorrectly responded that the medial and lateral meniscus could not be differentiated using Apley's test. The Petitioner also improperly performed McMurray's test, as well as muscle testing of the hamstrings and quadriceps. The Petitioner's witness, Dr. Hoover, confirmed that he did not properly perform Apley's test, and did not make a determination as to the medial or lateral meniscus by rotating the patient's foot, as he could have. Regarding the neurology portion of the exam, Petitioner incorrectly identified the location of the upper motor neuron track, and according to Dr. Ordet, the Petitioner also incorrectly stated that pathologic reflexes which would actually be for a lower motor neuron lesion were the pathologic reflexes for an upper motor neuron lesion. This was a very significant error, according to Dr. Ordet, whose testimony is credited. Regarding the differential diagnosis portion of the exam, the Petitioner's response to the patient's bowel blockage was not precise or specific. Petitioner did not demonstrate that he had more than an adequate understanding of this subject area due to the nebulous answers he gave. Even the Petitioner's witness, Dr. Hoover, agreed with the grade of 3 which Petitioner received on this portion of the exam. Based on the evidence in the record, it is found that Petitioner was correctly graded on the orthopedics, neurology and differential diagnosis portions of the practical examination. It was not established that the grades given were contrary to fact or logic, and in fact, competent substantial evidence supports the grades which he received.

Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to his grades on the orthopedics, neurology and differential diagnosis portions of the November, 1989, chiropractic examination. DONE AND ENTERED this 18th day of October, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX (D0AH CASE NO. 90-3399) The Petitioner did not file specific proposed findings of fact, but did file a letter dated September 28, 1990, on October 1, 1990, addressed to the undersigned. This letter does not evidence that a copy was provided to counsel for the Respondent, and therefore, it has not been considered. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. 4. Adopted in Finding 2. 5-6. Adopted in Finding 7. 7-8. Adopted in Finding 8. 9-10. Adopted in Finding 9. COPIES FURNISHED: Frank Giampietro 1704 Adair Road Port St. Lucie, FL 34952 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792

Florida Laws (2) 120.57460.406
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GARY COOK vs BARBER`S BOARD, 97-001863 (1997)
Division of Administrative Hearings, Florida Filed:Crawfordville, Florida Apr. 15, 1997 Number: 97-001863 Latest Update: Sep. 02, 1997

The Issue The issue in this case is whether Petitioner, Gary Cook, should have received a passing score on the Barber Practical Examination taken by him in November 1996.

Findings Of Fact On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination (hereinafter referred to as the "Exam"). The Exam was scored by two examiners: Geri Scott and Don Gibson. The Bureau of Testing of Respondent, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") subsequently notified Mr. Cook that he had earned a total score of 70 on the Exam. A score of 75 is considered a passing grade. Mr. Cook was notified by the Department that he earned a total score of 14.00 points on the sanitation portion of the Exam. The maximum score which may be earned for the sanitation portion of the Exam is 25.00. On or about December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score on the Exam. Mr. Cook challenged his score on the sanitation portion of the Exam. The sanitation portion of the Exam consists of ten criteria for which points may be earned: Criteria Maximum Score Used proper linen setup for the shampoo 2 Properly stored clean and dirty linen during the shampoo 3 Washed hands before beginning the haircut 2 Used the proper linen setup for the haircut 3 During the haircut tools were replaced in sanitizer after each use 3 Properly stored clan and dirty linen during the haircut 2 Washed hands before beginning the permanent wave 2 Used the proper linen/cottonwrap setup for the permanent wave 3 Kept tools sanitized during the permanent wave 3 Properly stored clean and dirty linen during the permanent wave 2 TOTAL POSSIBLE POINTS 25 The criteria of the sanitation portion of the Exam are designated as "procedures" which candidates are required to meet during the Exam. If both examiners determine that a candidate carried out a procedure, the candidate is awarded the total available points for the procedure. If both examiners determine that a candidate did not carry out the procedure, the candidate is awarded no points for the procedure. Finally, if one examiner determines that a candidate carried out the procedure and the other examiner disagrees, the candidate is awarded half of the available points for the procedure. On the sanitation portion of the Exam Mr. Cook received no points for procedures B-2, C-2, and C-3. Mr. Cook received half the points available for procedures B-4 and C-4. Mr. Cook specifically alleged that he should have been awarded the maximum points for procedures B-2, B-4, C-2, C-3, and C-4. For procedure B-2, the examiners were to determine whether "[t]he candidate used the proper linen setup for the haircut." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not used the proper linen setup. For purposes of procedure B-2, the haircut includes shaving around the outline of the hair. Therefore, proper linen setup for the shave is a part of the haircut. Mr. Cook did not dispute the fact that he had not used the proper linen setup for the shave portion of the haircut. Mr. Cook suggested that the haircut portion of the Exam did not include the shave. The evidence failed to support this assertion. Rule 61GK3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also, Page 7 of the Candidate Information Booklet, Respondent's Exhibit 3. Mr. Cook failed to prove that he fulfilled the requirements of procedure B-2. For procedure B-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the haircut." [Emphasis added] This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. Mr. Cook, therefore, was awarded 1 point for this procedure. The examiner that found that Mr. Cook had not performed procedure B-4 properly determined that Mr. Cook had placed a box of rubber gloves on a bar behind the area in which he was working. The Department has cited no authority which defines the term "linens" as including rubber gloves. The common definition of the term "linens" does not suggest that rubber gloves constitute linens. The term "linen" is defined as follows: 1 a : cloth made of flax and noted for its strength, coolness, and luster b : thread or yarn spun from flax 2 : clothing or household articles made of linen cloth or similar fabric3 : paper made from linen fibers or with a linen finish Webster's Ninth New Collegiate Dictionary 1984. Mr. Cook should have received full credit for procedure B-4. Therefore, Mr. Cook should have received one additional point on procedure B-4. For procedure C-2, the examiners were to determine whether "[t]he candidate used the proper linen/cotton wrap setup for the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had failed to use a proper cotton-wrap setup. Mr. Cook failed to explain what steps he undertook in setting up for the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-2. For procedure C-3, the examiners were to determine whether "[t]he candidate kept tools sanitized during the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had placed rods used for the permanent on the back bar. Mr. Cook failed to prove that the did not leave rods on the back bar while performing the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-3. For procedure C-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the permanent wave." This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. The examiner who found that Mr. Cook had not met this criterion determined that Mr. Cook had left end-wraps on the back bar. Mr. Cook failed to prove that he did not leave end- wraps on the back bar. Mr. Cook, therefore, failed to prove that he fulfilled the requirement of procedure C-4. All of the criteria for the sanitation portion of the Exam are listed in a Candidate Information Booklet for the Barber Examination. See page 6 of Respondent's Exhibit 3. The booklet also explains the scoring procedure. Mr. Cook proved that he should have been awarded one additional point on the sanitation portion of the Exam. Therefore, Mr. Cook earned a total score of 71 on the Exam. Mr. Cook's score is below a passing score of 75.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Barbers Board, finding that Gary Cook should have received a total score of 71 on the Barbers Practical Examination of November 1996. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997. COPIES FURNISHED: Gary Cook 202 Mulberry Circle Crawfordville, Florida 32327 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Department of Business and Professional Regulation Board of Barbers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

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GARY SLOAN vs. BOARD OF DENTISTRY, 89-003301 (1989)
Division of Administrative Hearings, Florida Number: 89-003301 Latest Update: Apr. 11, 1990

Findings Of Fact Petitioner, Dr. Gary Sloan, was an unsuccessful candidate for the dental examination in December, 1988. The dental examination is comprised of three portions: the written examination; the diagnostic skills examination; and the clinical (or practical) examination. A final grade of 75 is required on the written examination and the diagnostic skills examination. The minimum score required on the clinical examination is 3.0. Petitioner received scores of 88 and 77 on the written and diagnostic skills examinations, respectively. However, Petitioner received a score of only 2.80 on the clinical examination. Procedures performed in the clinical examination are graded by three examiners pursuant to a blind grading system. The grade for each procedure is determined by averaging the scores of the three examiners. Each procedure is graded in a holistic manner and not as a numeric point deduction for errors and mistakes. The highest and lowest scores an examiner can award for a particular procedure are 5 and 0, respectively. Each examiner may make comments on the score given for each procedure. Comments by an examiner are mandatory for any failing score and optional for any other score. Procedure Number 01 required Petitioner to perform a periodontal exercise on a live patient. The periodontal exercise involved a definitive debridement with a minimum of five teeth. Procedure Number 06 required Petitioner to perform an endodontic procedure on a mannequin. The endodontic procedure involved access preparation of a tooth including proper identification of canals. Petitioner was qualified as an expert in dental procedures. Petitioner is licensed in other states and has performed procedures similar to those required in Procedure Numbers 01 and 06 many times in private practice. Respondent expressly stated that it had no objection to Petitioner being qualified as an expert. Petitioner performed Procedure Numbers 01 and 06 properly. Petitioner satisfied each of the criteria for the definitive debridement required in Procedure Number 01. Petitioner left no supra-gingival or sub-gingival calculus on the patient's teeth. Any remaining root roughness was part of the patient's natural anatomy. Any remaining stain was non-removable stain. Petitioner satisfied each of the criteria for the access preparation required in Procedure Number 06 including proper identification of canals. The evidence presented by Petitioner was uncontroverted by Respondent. Respondent presented the grades and comments given by the examiners for Procedure Numbers 01 and 06 performed by Petitioner. However, Respondent did not call an examiner for either Procedure Numbers 01 or 06 as a witness in this proceeding. Respondent's expert witness was not an examiner for either Procedure Numbers 01 or 06. Therefore, Respondent presented no direct evidence to refute the evidence presented by Petitioner.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's request for a re-grade of his December, 1988, clinical examination be GRANTED and that Petitioner be given full credit for Procedure Numbers 01 and 06. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11 day of April 1990. DANIEL MANRY 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 11 day of April 1990.

Florida Laws (6) 119.07120.57455.22990.80190.80390.804
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JAMES JENKINS, JR. vs BARBER`S BOARD, 98-000448 (1998)
Division of Administrative Hearings, Florida Filed:Lakeland, Florida Jan. 26, 1998 Number: 98-000448 Latest Update: Jul. 10, 1998

The Issue Should Respondent receive a passing score on the practical portion of the Barber Examination given on January 13, 1997?

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Examination for Licensure as a Barber is administered by the Department’s Bureau of Testing and consists of two parts: Part I, Written; and Part Two, Practical. Petitioner passed Part I and Part I is not in contention. The Candidate Information Booklet for the Barber Examination (Information Booklet) provides as follows: GRADING CRITERIA FOR THE PRACTICAL EXAMINATION The performance of each candidate on the examination is evaluated by two examiners. The score necessary to achieve a passing grade shall be no less than seventy-five (75) percent out of one hundred (100) percent based on the average of the examiners’ scores. This means that a candidate will receive all the possible points for a procedure if both examiners evaluate the candidate as performing the procedure. If one examiner evaluates the candidate as performing the procedure and one examiner evaluates the candidate as failing to perform the procedure, the candidate will receive half of the possible points for the procedure. If both examiners evaluate the candidate as failing to perform the procedure, the candidate will not receive any points for the procedure. Under Part II (Practical) the candidate is graded on the following procedures. The number in parentheses is the maximum number of points that the candidate can receive upon successfully completing each procedure. Sanitation and Patron Protection (25) Technique (10) Shampoo Service (10) Haircut (45) Chemical Service (10) Total possible points (100) Based on the Examination Grade Report the Petitioner received the following scores on the procedures listed above: Sanitation and Patron Protection 24 Technique 10 Shampoo Service 10 Haircut 5 Chemical Service 0 Total points received 49 Petitioner is contesting the grading of the Haircut procedure only. The following is the criteria to be rated under the Haircut procedure: B-8. Top is even and without holes, gaps, or steps. B-9. Top (horseshoe) blends with the sides and back. B-10. Front outline are even. B-11. Haircut is proportional and sides are equal in length. B-12. Sides and back are without holes, gaps, or steps B-13 Sides blend with the back. B-14. Sideburns and outline are even. B-15. Sideburns, outline and neckline are clean shaven. B-16. Neckline is properly tapered. Examiner Jerri Scott gave Petitioner credit for correctly performing Criteria B-10 and B-12 but determined that Petitioner had failed to properly perform criteria B-8, B-9, B-11, and B-13 through B-16. Examiner Char Feliciano determined that Petitioner had failed to properly perform criteria B-8 through B-16. During the hearing, the Department agreed to grant Petitioner full credit for B-10 and B-12 since there was some inconsistency in the examiners' grading which gave Petitioner 10 points on the Haircut procedure rather than the 5 points reported on the Examination Grade Report. This gave Petitioner a total score of 54 points out of a possible 100 points on the Practical part of the examination. Each examiner individually examined the haircut performed by Petitioner and determined, based on the criteria set forth in the Information Booklet and the Examiner's Grading Sheet, that Petitioner had failed to properly perform B-8, B-9, B-11, and B-13 through B-16 The evidence is clear that Petitioner failed to properly perform B-8, B-9, B-11, and B-13 through B-16 of the Practical part of the Barber Examination given on January 13, 1997, notwithstanding the testimony of Petitioner to the contrary which I find lacks credibility. Additionally, the evidence is clear that Petitioner failed to receive a passing score on the Practical part of the Barber Examination given on January 13, 1997.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's challenge to the Practical part of the Barber Examination given on January 13, 1997. DONE AND ENTERED this 10th day of July, 1998, 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998. COPIES FURNISHED: Joe Baker, Executive Director Board of Barbers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32299-0792 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Jenkins, Jr., pro se Post Office Box 4092 Lake Wales, Florida 33853-4092

Florida Laws (1) 120.57
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DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs JOSEPH GAETA, D.D.S., 11-005793PL (2011)
Division of Administrative Hearings, Florida Filed:Miami, Florida Nov. 10, 2011 Number: 11-005793PL Latest Update: Sep. 06, 2012

The Issue The issues in this case are whether Respondent, a dentist, failed to maintain adequate records regarding his treatment of patient R.S. and/or provided R.S. dental care that fell below minimum standards of performance, as Petitioner alleges. If Respondent committed any of these offenses, it will be necessary to determine an appropriate penalty.

Findings Of Fact Introduction At all times relevant to this case, Respondent Joseph Gaeta, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Gaeta. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Gaeta committed two such offenses. In Count I of the Complaint, the Department charged Dr. Gaeta with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named R.S., whom Dr. Gaeta saw six times over a five-month period from November 15, 2002, through April 11, 2006. In Count II, Dr. Gaeta was charged with incompetence or negligence——again vis-à-vis R.S.——allegedly by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, an offense under section 466.028(1)(x). The Material Historical Facts The events giving rise to this case began on November 15, 2005, when R.S., a retired septuagenarian who spent winters in Florida but considered Michigan——where he resided the rest of the year——to be his home, arrived at Dr. Gaeta's office with an acute problem, namely a loose tooth. The tooth——#24, an incisor located in the lower jaw, center-left——had recently been knocked loose when R.S. bit into a cashew. Dr. Gaeta's office had scheduled R.S. for an immediate visit when he had called for an appointment, advising that they would "work [him] in." Upon being seen, R.S. informed Dr. Gaeta that he would be leaving in a couple of days for a cruise, and that, consequently, he wanted the bare minimum amount of dental treatment. Dr. Gaeta performed a comprehensive examination of R.S.'s mouth and took X-rays, including periapical X-rays of front tooth #9 (upper jaw, center-left) and tooth #24 . The examination revealed multiple problems besides the loose tooth, including lingual and buccal decay, bone loss, periodontal disease, and a loose amalgam filling in tooth #29 (lower right bicuspid), which filling popped out when probed. These issues were recorded in R.S.'s dental record. Dr. Gaeta prepared a treatment plan in accordance with R.S.'s desire to have as little dental work done as possible. Dr. Gaeta proposed to extract tooth #24, which was noted to have class III mobility (meaning it was quite loose as a result of bone loss caused by periodontal disease), and, in place of the absent tooth, substitute an artificial tooth known as a pontic, which would be supported by a five-unit bridge using the adjacent teeth (##22-23 and ##25-26) as abutment teeth. He proposed to place a crown on tooth #9 due to lingual decay, and another on tooth #29, from which the amalgam filling had fallen out. This treatment plan was documented in R.S.'s chart. Dr. Gaeta informed R.S. of his diagnoses, explained the treatment options, and obtained verbal consent to proceed with the prescribed course of treatment (described above). Dr. Gaeta noted in R.S.'s dental record that he "gave pt [patient] tx [treatment] plan," but did not otherwise memorialize the substance of their discussion, nor did he obtain written consent to treatment from R.S. After agreeing on a course of treatment, R.S. paid in advance for the procedures he had orally authorized Dr. Gaeta to perform. Thereafter, an anesthetic drug known by its brand name, Septocaine®, was injected to numb R.S.'s mouth, and Dr. Gaeta pulled tooth #24. He also "prepped" tooth #9, tooth #24, and the abutment teeth (##22-23 and ##25-26) and seated temporary crowns on them. Finally, Dr. Gaeta installed a temporary bridge, which would remain in R.S.'s mouth until the arrival and placement of a custom-made fixture from a dental laboratory. All of this dental work (including the use of the anesthetic), which was performed on November 15, 2005, was noted in R.S.'s chart. The evidence is in conflict as to whether Dr. Gaeta gave R.S. "post-operative" instructions following the provision of any dental treatments, including but not limited to the procedures performed on November 15, 2005. Dr. Gaeta testified that he did provide such instructions, as necessary, but did not note having done so in R.S.'s chart (which is undisputed) because in his opinion the recordkeeping laws do not require dentists to document the occurrence or substance of such routine dentist-patient communications (a legal point with which the Department disagrees). R.S. testified (via deposition) that Dr. Gaeta never provided any instructions. Neither witness is more believable than the other on this issue. As a result, the undersigned is unable to determine without hesitancy that Dr. Gaeta failed to provide post-operative instructions, as the Department alleged. The evidence offered in support of this allegation, in sum, is legally insufficient because it is not clear and convincing. R.S. next saw Dr. Gaeta on January 3, 2006. This appointment was for the purpose of making final impressions for the crowns, but R.S. presented with a new problem, which was that tooth #9 was painful. A panoramic X-ray was taken and the fact noted in R.S.'s record. Based on that X-ray plus the previous pariapical X-ray of tooth #9, which radiographs showed significant decay and a large filling in the tooth, together with the patient's complaint that the tooth was sensitive (a symptom noted in the chart), Dr. Gaeta determined that tooth #9 needed root canal therapy and documented his conclusion in the chart. Dr. Gaeta performed a root canal on tooth #9. The Department has alleged that Dr. Gaeta failed to measure the root canal length using either an X-ray or, alternatively, an instrument called an apex locator. Dr. Gaeta testified credibly that he used an apex locator to determine that the canal length was 15 millimeters. This measurement is noted in R.S.'s record, and Dr. Gaeta's testimony regarding the use of an apex locator is credited. The Department further alleged that Dr. Gaeta failed to take a post-operative X-ray to determine whether the root canal had been completely filled. The record, however, includes such an X-ray. Finally, the Department alleged that Dr. Gaeta failed to use a rubber dam when performing the root canal procedure on tooth #9. But based on Dr. Gaeta's credible testimony, the undersigned finds that Dr. Gaeta did, in fact, use a rubber dam. Dr. Gaeta did not note in R.S.'s record the use of an apex locator or rubber dam; he denies having an obligation to document the use of common dental implements in a patient's chart. Dr. Gaeta gave R.S. Septocaine® to produce local anesthesia during the root canal procedure. He did not note this fact, or the strength and dosage of the anesthetic drug administered, in R.S.'s chart. Dr. Gaeta maintains that there is no legal requirement to record such information in the patient's dental record. R.S. saw Dr. Gaeta four more times, on February 7, March 27, March 31, and April 11, 2006. Over the course of these visits, excluding the final one in April, Dr. Gaeta placed permanent crowns on tooth #9 and tooth #29 and completed the dental work required to install the permanent bridge spanning tooth #22 and tooth #26. The details of these visits are largely irrelevant, except as set forth below. During the visit on April 11, 2006, Dr. Gaeta learned that R.S.'s tooth #29, which had been crowned earlier that year, had broken near the gum line. The Department did not allege that Dr. Gaeta's treatment of tooth #29 caused the tooth to fracture, but rather charged that Dr. Gaeta: (a) placed the crown without first determining whether the tooth was strong enough to support it; and (b) failed to determine, in April 2006, why the tooth had broken. The Department failed to prove these allegations by clear and convincing evidence, as explained below. Regarding the first of these allegations, it must be observed, initially, that Dr. Gaeta is charged with failing to determine whether tooth #29 could support a crown, not with making an improper determination as measured against the standard of care. Consequently, unless the evidence shows clearly and convincingly that Dr. Gaeta placed the crown despite having not made up his mind one way or the other about the strength of tooth #29, Dr. Gaeta must be found not guilty. Indeed, strange as it sounds, Dr. Gaeta would be not guilty even if the evidence showed that he determined tooth #29 was not strong enough to support a crown and proceeded to place one anyway, for the charge, again, is failing to make a determination, not making a mistaken determination. That said, it is undisputed that the only reasonable alternative to placing a crown on tooth #29 was extraction. Contrary to the Department's allegation, the evidence suggests that Dr. Gaeta did, in fact, determine that tooth #29 might be saved with a crown——a course of treatment that would spare R.S. the loss of yet another tooth. Without more than is present in the instant record, the mere fact that tooth #29 later broke is insufficient to prove, clearly and convincingly, that Dr. Gaeta's judgment fell below the standard of care, much less that he gave little or no thought to the question of whether the tooth could support a crown, as charged. To be sure, the Department's expert witness, Dr. Spiro, testified that, in his opinion, tooth #29 should have been pulled because, he "believe[s]," the "crown to root ratio" was too high. Putting aside that Dr. Gaeta was not actually charged with violating the standard of care by crowning a tooth that could not support a crown, Dr. Spiro did not give an opinion——based on generally prevailing peer performance——as to what an acceptable crown-to-root ratio would be, nor did he (or anyone else) testify about what the crown-to-root ratio of R.S.'s tooth #29 actually was, making it impossible for the undersigned to determine independently whether the latter ratio was too high relative to the standard of care. Thus, Dr. Spiro's belief that Dr. Gaeta violated the standard of care in placing a crown on tooth #29 was an unpersuasive "net opinion" that was, moreover, plainly personal in nature as opposed to being evidently grounded on an objective standard deduced from knowledge of the prevailing practices of dentists as a group. For these reasons, Dr. Spiro's testimony in this regard is not accepted as clear and convincing evidence in support of the allegation that Dr. Gaeta failed to determine whether tooth #29 could support a crown. As for the allegation that Dr. Gaeta failed to determine why tooth #29 broke, the evidence shows otherwise. It is noted in R.S.'s chart that during the visit on April 11, 2006, Dr. Gaeta explained to R.S. that he (R.S.) was "placing extreme force" on tooth #29, which was the patient's "only posterior tooth on [the] lower right" jaw. Even assuming for argument's sake, therefore, that the standard of care required Dr. Gaeta to make a determination as to why the tooth had broken, the evidence fails to prove that he did not do so. Further, the Department neither alleged nor proved that Dr. Gaeta erred, or otherwise violated the standard of care, in determining that tooth #29 had broken apart because, being R.S.'s only lower right rear tooth, it was exposed to extreme force when R.S. chewed his food. This particular allegation, in sum, was not proved by clear and convincing evidence. The Charges The charges against Dr. Gaeta are set forth in the Complaint under two counts. In Count I, the Department accused Dr. Gaeta of failing to keep adequate dental records, an offense disciplinable pursuant to section 466.028(1)(m). The Department alleged that, in the course of treating R.S., Dr. Gaeta violated the recordkeeping requirements in 13 separate instances, which are identified in paragraph 27, subparagraphs a) through m) of the Complaint. In Count II, the Department charged Dr. Gaeta with dental malpractice, which is punishable under section 466.028(1)(x). Fifteen separate instances of alleged negligence in the treatment of R.S. are set forth in paragraph 31, subparagraphs a) through o). The allegations in paragraphs 27 and 31 are largely parallel to one another, so that, when aligned side-by-side, they can be examined in logical pairs. Generally speaking, the Department's theory in relation to each allegation-pair can be expressed as follows: Where the circumstances required that the dental act "X" be done for R.S. to meet the minimum standards of performance as measured against generally prevailing peer performance, Dr. Gaeta failed to do X, thereby violating the standard of care. Dr. Gaeta also failed to record doing X in the patient's record, thereby violating the recordkeeping requirements. The parallel propositions comprising each allegation- pair are mutually exclusive. For example, if Dr. Gaeta did not, in fact, do X, then he might be found to have violated the standard of care, if the Department were successful in proving, additionally, that, under the circumstances, X was required to be done to meet the minimum standards of performance. If Dr. Gaeta did not do X, however, he obviously could not be disciplined for not recording in R.S.'s chart that he actually performed X.2 (If a dentist were to write in the patient's chart that he performed X when in fact he had not performed X, he would be making a false record; that would be a recordkeeping violation, but it is not the sort of misconduct with which the Department has charged Dr. Gaeta.) On the other hand, if Dr. Gaeta in fact did X and failed to note in R.S.'s chart having done X, then——if the law required Dr. Gaeta to document the performance of X——he would be guilty of a recordkeeping violation. But if Dr. Gaeta performed X, then (with one exception) he could not simultaneously be found guilty, here, of a standard-of-care violation, even if he performed X negligently. This is because nearly all of the standard-of-care allegations against Dr. Gaeta involve omissions, i.e., alleged failures to act, which means that the Department's burden was to prove that Dr. Gaeta did not do X when the circumstances required that X be performed. Such a violation of the standard of care (namely, not doing X when X should have been done) is quite different from performing X negligently; the latter would be a disciplinable offense, but (with one exception) it is not the type of wrongdoing with which the Department has charged Dr. Gaeta. The specific charges against Dr. Gaeta are reproduced in the table below, which places the corresponding allegation- pairs side-by-side in separate rows. The standard-of-care violations set forth in Count II are located in column A, while the recordkeeping violations charged in Count I are listed in column B. For ease of presentation, the undersigned has reordered the allegations to some extent. Further, in several instances a subparagraph has been divided into two parts. For example, paragraph 31 k) of the Complaint is shown in the table as paragraphs 31 k.1) and 31 k.2). An empty cell——e.g., column B, row 10 (hereafter, "B10")——denotes the absence of a corresponding allegation. Text which has been stricken through, as in B12, reflects allegations that the Department either withdrew at hearing or conceded in its Proposed Recommended Order. These allegations were not proved and will not be discussed further in this Recommended Order. The Department charges Dr. Gaeta as follows: A Count II, ¶ 31: Alleged Standard-of-Care Violations B Count I, ¶ 27: Alleged Recordkeeping Violations 1 a) [F]ail[ing] to provide a comprehensive diagnosis with adequate radiographs, study models or impressions, periodontal depth probe charting, tooth charting and a comprehensive treatment plan prior to initiating root canal treatment and crown/bridge placement . . . . a.1) [F]ailing to record an overall comprehensive written diagnosis, with periodontal depth probe and tooth charting, failing to document a written comprehensive treatment plan . . . . 2 k.1) [F]ail[ing] to provide adequate diagnosis, including symptoms, with an accompanying treatment plan for Patient R.S. prior to initiating root canal i.1) [F]ailing to record an adequate diagnosis, symptoms, and accompanying treatment plan for Patient R.S. prior to initiating root canal treatment of tooth number 9 . . . . treatment of tooth number 9 . . . . 3 k.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. i.2) Respondent failed to record adequate exam results and/or perform a complete diagnosis in support of his root canal treatment for Patient R.S. 4 c) [F]ail]ing] to fully determine through diagnostic exam results whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five- unit bridge was needed[.] a.2) [F]ailing to document whether teeth numbers 22 and 26 were appropriate abutment teeth for a five-unit bridge and why an anterior lower five-unit bridge was needed[.] 5 e) [F]ail[ing] to formulate and/or present treatment options with explanation of risks/benefits to, and fail[ing] to obtain informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] c) [F]ailing to document presenting treatment options with explanation of risks/benefits to, or obtaining informed consent from, Patient R.S. prior to initiating any of the treatments provided[.] 6 f) [F]ail[ing] to fully determine through diagnostic exam results where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and fail[ing] to provide adequate diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . d) [F]ailing to notate where the amalgam filling was located on tooth number 29 and why it came loose as observed during the initial November 15, 2005, visit and failing to provide a written diagnosis to justify seating of a crown on the tooth in lieu of restoring the filling . . . . 7 g) [F]ail[ing] to provide post-op instructions or discussions for Patient R.S. following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] e) [F]ailing to record in the treatment notes that post-op instructions or discussions for Patient R.S. were provided appropriately following procedures performed November 15, 2005, January 3, 2006, and/or for any other treatment visits notated[.] 8 l) [F]ailing to take a diagnostic working length radiograph, and/or use of an apex locator, and/or take a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] j) [F]ailing to record a diagnostic working length radiograph, and/or use of an apex locator, and/or tak[e] a post-op fill radiograph during the root canal treatment provided on or about January 3, 2006[.] 9 m) [F]ail[ing] to use a rubber dam was used during the January 3, 2006, root k) [F]ailing to record that a rubber dam was used in the January 3, 2006, root canal canal procedure, and/or indicate why it was not employed[.] procedure, and if it was not, why it was not employed[.] 10 b) [F]ail[ing] to either fully diagnose and/or properly treat the periodontal condition [that was] noted in Patient R.S.'s mouth during the initial exam November 15, 2005, before embarking upon complex restorative treatments including root canal and crown and bridge restorations[.] 11 n.1) [S]eat[ing] a crown on tooth number 29 in early 2006, which broke off with the tooth at the gum line[,] without first determining if tooth number 29 was strong enough to support a crown . . . . 12 n.2) [F]ail[ing] to diagnose and determine why the crown seated a few months earlier at tooth number 29 broke off with the tooth[.] m.1) [F]ailing to record in treatment notes for Patient R.S.'s April 6, 2006, visit, why the crown seated a few months earlier at tooth number 29 broke off with the tooth at the gum line . . . . 13 l) [F]ailing to record the types and amounts of anesthetic used during the January 3, 2006, root canal procedure[.] 14 i) [F]ail[ing] to take a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . g) [F]ailing to take and/or interpret in the treatment notes a diagnostic (preferably periapical) radiograph of Patient R.S.'s tooth number 9 prior to initiating root canal treatment of the tooth . . . . 15 j) [F]ail[ing] to perform any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] h) [F]ailing to record the results of any thermal, pulp, or bite percussion tests performed on Patient R.S. prior to initiating root canal treatment on tooth number 9[.] 16 d) [F]ail[ing] to fully determine through diagnostic exam results why an extraction of tooth number 24 was required and why a five- unit bridge was being fabricated instead of a three-unit bridge or some b) [F]ailing to clarify why an extraction of tooth number 24 was required and why a five-unit bridge was being fabricated instead of a three-unit bridge or some other restorative option in the treatment notes [dated] November 15, 2005, which other restorative option [on] November 15, 2005, during which Respondent extracted tooth number 24 and then prepared for a five-unit bridge from tooth sites 22-26 to replace the extracted tooth[.] indicate that Respondent extracted tooth number 24 and then prepared for a five unit bridge from tooth sites 22-26 to replace the extracted tooth[.] 17 h) [F]ail[ing] to inform f) [F]ailing to note informing Patient R.S. that temporary Patient R.S. that temporary or or permanent parathesia is a permanent parathesia is a known known risk of extractions risk of extractions when the when the patient presented on patient presented on December 9, December 9, 2005, complaining 2005, complaining on numbness in on numbness in the lingual the lingual area proximate to area proximate to the the extraction/bridge prep site. extraction/bridge prep site. Respondent further failed to re- Respondent further failed to check the parathesia and note re-check the parathesia and progress at subsequent note progress at subsequent appointments, and/or fail[ed] to appointments, and/or failed advise Patient R.S. of possible to advise Patient R.S. of referral to an oral surgeon if possible referral to an oral surgeon if needed[.] needed[.] 18 o) [F]ail[ing] to provide m.2) [F]ailing to record adequate diagnostic results diagnostic results to justify a to justify a proposed plan to proposed plan to seat crowns at seat crowns at tooth numbers tooth numbers 27 and 28, along 27 and 28, along with placing with placing implants at tooth implants at tooth numbers 29 numbers 29 and 30. and 30, after the crown seated on tooth number 29 broke off with the tooth at the gum line. The Expert Testimony The Department presented the testimony of Victor Spiro, D.D.S., on issues relating to the standard of care. Dr. Spiro was shown to have formulated his opinions without the benefit of some potentially relevant information available to the Department, e.g., the deposition of R.S., which he had not read, and some of the X-rays Dr Gaeta had taken. In addition, he misunderstood certain facts, such as the length of the dentist-patient relationship between Dr. Gaeta and R.S., which was about six months, not many years as Dr. Spiro believed. These considerations were marginally damaging to Dr. Spiro's credibility, but not as devastating as Dr. Gaeta has argued. The real problems with Dr. Spiro's testimony go to the heart of what an expert opinion must contain to be credited as evidence of a standard-of-care violation. To be convincing, the opinion needs to establish clearly the existence of a standard of care in the profession and explain how such standard applies to the facts of the case.3 As the statute plainly specifies, the standard of care must be a minimum standard of performance, not the optimal standard or best practice.4 The standard, moreover, must be based on "generally prevailing peer performance", that is, be "recognized as necessary and customarily followed in the community."5 It is therefore not sufficient for the standard-of- care expert (who likely has a keen interest in seeing his views "recognized as being 'correct' and 'justifiable'") merely to declare his personal opinions or practices and invite the fact- finder, either implicitly or explicitly, to extrapolate——from one practitioner's ideas about how the profession should perform——a generally applicable, minimum standard for all practitioners.6 Instead, to be credited, an expert's opinion on the standard of care must result from a process of deductive reasoning, based demonstrably upon an informed understanding7 of what the dental community, as a whole, generally does in a given situation.8 Here, Dr. Spiro did not convincingly articulate minimum standards of performance against which the undersigned, as fact-finder, can independently measure Dr. Gaeta's conduct. In addition, Dr. Spiro did not establish that his criticisms of Dr. Gaeta were based on a comparison of Dr. Gaeta's conduct to that which generally prevails in the relevant peer group. Indeed, the undersigned is not persuaded, much less convinced, that Dr. Spiro is familiar with the generally prevailing peer practices, if any, relevant to the charges in this case. In sum, a thorough review of Dr. Spiro's testimony leaves the undersigned with the distinct impression that Dr. Gaeta failed to measure up to Dr. Spiro's standards of performance. This is not a factually sufficient basis for the imposition of discipline. Because the Department failed to meet its burden of proof with regard to establishing the applicable minimum standards of care, it is unnecessary to make findings based on the testimony of Dr. Fish, whose opinions Dr. Gaeta offered to rebut those of Dr. Spiro. Ultimate Factual Determinations The evidence presented with regard to A1, A2, and A3 does not clearly and convincingly demonstrate that Dr. Gaeta "failed" to provide a "comprehensive diagnosis" inasmuch as the existence of a standard of care defining and requiring such a diagnosis was not proved and, in any event, Dr. Gaeta did diagnose and treat multiple problems in R.S.'s mouth. The evidence does not prove that Dr. Gaeta improperly diagnosed any of the conditions he treated. The evidence fails to establish convincingly any minimum standards of performance requiring the diagnostic tests that Dr. Gaeta allegedly failed to perform. There is, on the other hand, evidence that Dr. Gaeta performed diagnostic work on R.S., including periodontal depth probing. The evidence fails to establish convincingly the existence of a standard of care requiring (or defining) the provision of a "comprehensive treatment plan." There is, however, evidence that Dr. Gaeta developed a treatment plan for R.S., consistent with the patient's desires, which was implemented. Dr. Gaeta is not guilty of the charges reproduced in A1, A2, and A3 of the table above. The evidence fails to prove clearly and convincingly that Dr. Gaeta failed to record or include in R.S.'s chart any of the diagnoses he made, the results of examinations performed, or the X-rays taken. A dispute exists between the parties regarding whether the Department possessed all of the records comprising R.S.'s chart. The evidence suggests, as Dr. Gaeta maintains, that some materials might be missing. Given the many years that elapsed between the time Dr. Gaeta treated R.S. and the commencement of this proceeding, during which period Dr. Gaeta sold the dental practice in which R.S. had been seen and, as a result, surrendered exclusive control over R.S.'s chart, it is easy to accept that a few documents or X-rays have gotten lost or been misplaced. Dr. Gaeta was not charged, however, with failing to preserve dental records he had made, but rather with failing to enter certain required information upon R.S.'s chart.9 Therefore, he is not subject to discipline in this case for losing materials originally contained in R.S.'s chart.10 In sum, Dr. Gaeta is not guilty of the charges set forth in B1, B2, and B3 in the table above. Contrary to the allegations in A4, the evidence shows that Dr. Gaeta did, in fact, make a determination based on diagnostic examination results, including X-rays, that a five- unit bridge spanning tooth #22 and tooth #26 was appropriate. The evidence thus fails to prove clearly and convincingly that Dr. Gaeta gave little or no thought to the propriety of a five- unit bridge. He is not guilty of violating the standard of care as alleged in A4, even if his determination were wrong (which the evidence does not clearly establish either). Dr. Gaeta documented in R.S.'s chart the plan to install a five-unit bridge as a means of replacing tooth #24 with a false tooth. In doing so Dr. Gaeta clearly manifested his determination that the abutment teeth were appropriate. Although he did not write a detailed explanation of why a five- unit bridge was needed, Dr. Gaeta did prepare a dental record that justifies this course of treatment; thus he is not guilty of the recordkeeping violation alleged in B4. With regard to A5, the evidence is insufficient to prove clearly and convincingly that Dr. Gaeta failed to present treatment options, explain risks and benefits, and obtain informed consent before treating R.S., for there is credible evidence suggesting that he did those things. For that reason alone, Dr. Gaeta is not guilty of this alleged standard-of-care violation. Further, the failure to obtain informed consent is a disciplinable offense under section 466.028(1)(o) and thus is not punishable under section 466.028(1)(x), which defines the separate offense (dental malpractice) that Dr. Gaeta has been accused of committing.11 For this additional and independent reason, Dr. Gaeta cannot be found guilty of the standard-of-care violation alleged in A5. As just mentioned, providing dental services without first obtaining the patient's informed consent is an offense punishable under section 466.028(1)(o). Dr. Gaeta was not charged pursuant to that statute. Moreover, presenting treatment options, explaining risks and benefits, and obtaining informed consent do not justify the course of treatment; doing them does not transform an improper diagnosis into a correct one, nor does failing to do them deprive dentally necessary treatment of justification. Dr. Gaeta is not guilty of the recordkeeping violation as charged in B5. Contrary to the allegations in A6, the evidence shows that Dr. Gaeta provided a diagnosis for tooth #29 which supported his determination that the tooth might be saved with a crown. The evidence is undisputed that replacing the filling was not a reasonable option; the only alternative treatment was extraction. The evidence fails to establish that Dr. Gaeta was required, in meeting minimum standards of performance, to determine why the amalgam filling came loose from tooth #29. The evidence fails to prove that Dr. Gaeta was unaware of the location of the filling in tooth #29; to the contrary, there is credible evidence that he dislodged the loose filling while probing it. Dr. Gaeta is not guilty of the standard-of-care- violation alleged in A6. The notes and materials in R.S.'s chart justify Dr. Gaeta's treatment of tooth #29. No more than that is legally required. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B6. There is credible evidence that Dr. Gaeta provided post-operative instructions to R.S. In light of such evidence, the allegation that he failed to do so, as charged in A7, is not established by clear and convincing proof. Dr. Gaeta is therefore not guilty of this alleged standard-of-care violation. While the failure to give post-operative instructions might in some circumstances be shown to fall below minimum standards of performance, the failure to record in the patient's chart the giving of such instructions does not make an appropriate course of treatment unjustified, any more than giving——and noting in the record the giving of——post-operative instructions would justify an inappropriate course of treatment. The purpose of section 466.028(1)(m) is not to ensure that every dentist-patient communication is noted, every tool or instrument used listed, all actions taken, however routine, described in detail; nor is it to obligate the dentist to defend in writing his every diagnosis, treatment decision, exercise of professional judgment, and therapeutic act against potential criticism, as a sort of preemptive rebuttal to a possible future malpractice claim. Rather, the statute is designed, more modestly, to ensure that patient records contain information showing that every course of treatment has a rational basis in dentally relevant facts. Dr. Gaeta was not legally required to document his discussions with R.S. regarding post-operative instructions, and therefore he is not guilty of the recordkeeping violation as alleged in B7. The evidence shows that Dr. Gaeta used an apex locator to measure the canal length of R.S.'s tooth #9. Consequently, the allegation in A8 that he failed to do so is not established by clear and convincing evidence. Dr. Gaeta is not guilty of this charge. R.S.'s record contains X-rays and reflects the fact that Dr. Gaeta determined the canal length of tooth #9. The minimum statutory requirements were satisfied with respect to these particulars. Dr. Gaeta is not guilty of the recordkeeping violation alleged in B8. There is credible evidence, which the Department failed sufficiently to overcome, showing that Dr. Gaeta used a rubber dam when he performed a root canal on R.S. Thus, the evidence is not clear and convincing that he failed to use this common dental implement, as alleged in A9. Dr. Gaeta is not guilty of this alleged standard-of-care violation. Section 466.028(1)(m) does not demand that a patient's record reveal that the dentist used common dental tools in the customary fashion. If the statute were held to require that level of detail, the dentist would need to note, e.g., the routine use of scalers and currettes, periodontal probes, latex gloves, drills, etc.——an absurd result. Therefore, although Dr. Gaeta did not document the use of a rubber dam, he was not legally required to do so. Dr. Gaeta is not guilty of the recordkeeping charge found in 9B. The evidence shows that Dr. Gaeta diagnosed R.S.'s periodontal condition. The evidence does not clearly and convincingly establish any minimum standards of performance that Dr. Gaeta failed to meet, under the facts of this case, in addressing the periodontal condition. As a result, Dr. Gaeta is not guilty of the standard-of-care violation alleged in A10. The evidence shows that Dr. Gaeta made a determination regarding tooth #29's ability to support a crown. He is therefore not guilty of the standard-of-care violation charged in A11. The evidence shows that Dr. Gaeta made a determination concerning the cause of tooth #29's collapse. He is therefore not guilty of the standard-of-care violation charged in A12. It is undisputed that Dr. Gaeta did not record in R.S.'s chart the type and amount of anesthetic used during the root canal procedure. Dr. Gaeta contends that producing local anesthesia with Septocaine® is not "treatment" and therefore need not be noted in the dental record. This argument is rejected; the use of medicine to control pain and anxiety is surely a form of "treatment" as that term is commonly used and understood. Consequently, section 466.028(1)(m) requires that the patient record contain justification for the use of anesthetic agents, which means that the drugs and dosages administered must be documented.12 Dr. Gaeta is guilty of the recordkeeping violation charged in B13. He has, moreover, been found guilty of, and been disciplined for, recordkeeping violations on two previous occasions.13 Credible evidence, which the Department failed rebut with clear and convincing evidence, shows that Dr. Gaeta took X- rays of R.S.'s tooth #9 before initiating root canal therapy. The X-rays and other information in R.S.'s chart justified that course of treatment. The allegations in B14 are not supported by clear and convincing evidence, and thus Dr. Gaeta is not guilty of this alleged recordkeeping violation. The evidence does not demonstrate clearly and convincingly that Dr. Gaeta performed any thermal, pulp, or bite percussion tests before initiating root canal therapy. Therefore, he cannot be punished for failing to record in R.S.'s chart the results of such tests, as charged in B15. Dr. Gaeta is not guilty of this alleged recordkeeping violation.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Dr. Gaeta guilty of the recordkeeping violation alleged in paragraph 27 l) of the Complaint (failure to record types and amounts of anesthetic agents used); finding Dr. Gaeta not guilty of the remaining violations; and imposing the following penalties: suspension from practice for three months, followed by probation for 18 months with conditions reasonably related to the goal of improving Dr. Gaeta's recordkeeping skills; and a fine in the amount of $2,500. DONE AND ENTERED this 12th day of June, 2012, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2012.

Florida Laws (6) 120.569120.57120.60120.6817.002466.028 Florida Administrative Code (1) 64B5-17.002
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DOUGLAS E. KOWALCZYK vs. BOARD OF DENTISTRY, 84-002285 (1984)
Division of Administrative Hearings, Florida Number: 84-002285 Latest Update: Oct. 25, 1984

Findings Of Fact Petitioner was an applicant for licensure by examination to practice dentistry in the State of Florida. The practical examination, which is the portion here contested, consisted of 11 procedures, each of which is graded separately by three examiners. Petitioner took the dental examination in December, 1983, and obtained a total overall grade of 2.93 (Exhibit 3). A grade of 3.0 is required to pass the examination. He is here contesting only procedures No. 01 in which he received grades from the three examiners of 3, 3, and 0 (Exhibit 1); and procedure No. 05 in which he received grades of 2, 3, and 0 from three different examiners. Examiners for the dental examination are all currently licensed dentists in the State of Florida who have been extensively trained and standardized by the Department of Professional Regulation. A standardization exercise takes place immediately prior to each examination during which the examiners grade identical procedures and discuss any grade variances to eliminate, as far as possible, any discrepancies in interpretation of the grading criteria. Examiners are selected based on their experience as examiners and their ability to grade without extremes of harshness or leniency. Candidates are informed of the grading criteria prior to the examination through the notice to appear (Exhibit 4) and the applicable laws and rules which are sent by the Office of Examiner Services to all candidates prior to the administration of the examination. In procedure No. 01 (Exhibit 1) one of the examiners found caries not removed in the preparation process, noted on the grade sheet where the caries was located, and gave a mandatory zero for this procedure. Although the other examiners did not see this caries, and gave grades of 3, it was in a difficult place to see and feel with the explorer. The examiner who found the caries submitted a note to the monitor (Exhibit 7) to have all decay removed before the tooth was filled and the monitor's notation on Exhibit 7 indicates this was done. In procedure No. 05 (Exhibit 2) which involved cleaning a specified number of teeth, one examiner found stain and root roughness and gave a grade of 2; a second examiner found root roughness and gave a grade of 3; while the third examiner found supra-gingival calculus, root roughness and subgingival calculus, and gave a grade of 0. One of the expert witnesses who testified was the examiner who graded Petitioner a failing grade of 2 on this procedure. Since he did not actually see subgingival calculus but saw stain and felt the rough tooth, he did not give a zero mark which he would have given had he also seen the subgingival calculus. The Notice to Appear (Exhibit 4) and the rules sent to the candidates are clear that all subgingival and supra-gingival foreign particles must be removed and a grade of zero is mandatory if the procedure is not completed, which would include removal of all calculus. The comments on the grade sheets support the grades awarded. Here, two of the three examiners gave Petitioner a failing grade on procedure No. 05 and the fact that only one of the examiners saw the subgingival calculus does not indicate this grade is erroneous. These grades were not very different but merely reflect different degrees of similar conditions as they were observed by the examiners.

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SHAHRAM SHAHMOHAMADY, D.M.D. vs DEPARTMENT OF HEALTH, BOARD OF DENISTRY, 00-004055 (2000)
Division of Administrative Hearings, Florida Filed:Miami, Florida Oct. 03, 2000 Number: 00-004055 Latest Update: Apr. 12, 2001

The Issue Whether Petitioner is entitled to a passing grade on the dental examination given on June 4-7, 2000.

Findings Of Fact Shahmohamady took the clinical portion of the dental licensure examination on June 4-7, 2000. He received a failing score of 2.98. The clinical portion of the dental examination consists of nine parts: a written clinical, three patient procedures, and five mannequin procedures. The five mannequin procedures consist of the endodontic, preparation for a three- unit fixed partial denture, the Class IV composite, the Class II composite, and the Class II amalgam. Shahmohamady challenges the grades that he received for the preparation for a three-unit fixed partial denture and the Class IV composite. The Department retains examiners and monitors during the examination. The examiners actually grade the clinical procedures performed by the candidates during the examination. The monitors give instructions to the candidates, preserve and secure the integrity of the examination, and act as messengers between the examiners and candidates. The procedures are blind graded independently by three examiners. The examiners do not know the name of the candidates they are grading. Each examiner grades the procedures independently of the other examiners. Discussion among the examiners is not allowed. The three examiners' grades for each procedure are averaged for the overall grade for the procedure. Each examiner must attend and successfully complete a standardization course prior to the examination. The standardization session trains each examiner to use the same grading criteria. After the examination is concluded and the final grades are given, the Department performs an analysis of the examiners' grading to determine the reliability of each examiner's grading. Candidates and examiners do not have contact during the examination. If a candidate has a problem during the examination, he is to alert a monitor. Candidates may fill out a Monitor-To-Examiner Instruction form, advising the monitor of any problem experienced during the examination. The monitor will read the comments of the candidate, and if the monitor agrees with the comments the monitor will write his monitor number on the form and circle the number. The monitor will provide the comment forms to the examiners when they are grading the procedures. Each examiner is to read the comment forms. The examiner is to acknowledge that he has read the forms on the grade sheet by either writing SMN followed by the number of comment sheets he read for all the procedures or by writing under each procedure SMN followed by the number of comment sheets that he read for that particular procedure. Shahmohamady filled out a Monitor-to-Examiner Instructions form on June 6, 2000, for the preparation for a three-unit fixed partial denture procedure and wrote the following: Doctor, As I was prepping tooth #20 on the sital aspect, the gas torch of the Candidate sitting in front of me (one row over) suddenly burst into a 3 foot flame that caused everyone to yell out. I inadvertently looked up and saw the flame without knowing where it was coming from and paniked [sic] and my bur gouged the mesial aspect of #19 (area of box [sic] There is no disagreement among the parties that the incident involving the gas burner occurred and no disagreement that points should not have been deducted for the gouge of the adjacent tooth resulting from the gas burner incident. The clinical procedures are graded on a scale of zero to five, with five being the best score. If an examiner gives a score of less than five, the examiner is to list a comment number, which corresponds to a list of comments for each procedure. The examiner may also list a comment number for things that the examiner observes during the grading, but for which no points are deducted. For procedure 7, which is the preparation of a three-unit fixed partial denture, the comment list to be used by the examiner was as follows: Outline Form Undercut Insufficient Reduction Excessive Reduction Marginal Finish Unsupported Enamel Parrallelism Mutilation of Opposing or Adjacent Teeth Management of Soft Tissue X Additional Comments - Written For procedure 7, Shahmohamady received a score of 5 from Examiner 289, a score of 4 from Examiner 315, and a score of 3 from Examiner 366. Each of the examiners was given the Monitor-to Examiner Instructions form with the note from Shahmohamady concerning the Bunsen burner incident. Shahmohamady challenges the score that he received from Examiner 366. Examiner 366 put numbers 4, 5, and 8 on the comment portion of the grading sheet for procedure 7. Those comments referred to excessive reduction, marginal finish, and mutilation of opposing or adjacent teeth. He indicated that he had read the three comment sheets that were submitted for the mannequin procedures and so indicated by writing "SMN-3" on the grading sheet for Shahmohamady. Examiner 366 did not deduct points for the mutilation of the adjacent tooth due to the Bunsen burner explosion. The grade which Shahmohamady received for procedure 7 is correct and should not be increased. After a candidate receives his grades for the dental examination, he may request an administrative hearing if he fails the examination. When the Department receives a request for an administrative hearing, the Department will regrade the procedures done by that candidate. The top three examiners from the examination based on the post-examination analysis that is done by the Department are chosen to regrade the procedures which are being contested. In addition to regrading candidates who have failed the examination, the examiners also regrade some candidates who have successfully passed the examination in order to ensure the integrity of the regrading process. Shahmohamady challenged the grade he received on procedure 7 and procedure 4; thus his examination was regraded. Each of the grading sheets had the following comment listed on the grading sheet for procedure 7 prior to the regrading: "Ignore nicked adjacent tooth bunson [sic] burner explosion." Procedure 7 was regraded by three examiners, one of whom was Examiner 366. Examiner 366 again gave Shahmohamady a score of three and included comment 4 on the comment section. Examiner 298 gave Shahmohamady a score of 2 for the procedure, included comment 4, and wrote "overtapered" on the grading sheet. Examiner 316 gave Shahmohamady a score of 3 and included comments 1, 4, and 5. Comment 1 referred to outline form. On regrading, Shahmohamady received an overall lower score for procedure 7 than he did in the original grading. Procedure 7 was graded correctly, and Shahmohamady is not entitled to additional points for that procedure. Shahmohamady challenged the score that he received for the Class IV composite restoration. He received an overall score of 2.66. The Class IV composite restoration is a procedure that involves the candidate's ability to cut a section of the tooth off the corner of the biting edge of the front tooth below the level where it contacts the adjacent tooth. The candidate is required to restore the contact and the tooth structure to proper form and function in a tooth- colored material. Based on the expert testimony of the Department's witness, Dr. Dan Bertoch, the restoration done by Shahmohamady was not done properly and would fail prematurely. Examiner 366 opined that Shahmohamady did not appropriately restore the proximal anatomy and the proximal contour. Shahmohamady did not properly perform the Class IV composite restoration procedure and should not be given a passing score for that procedure. Petitioner claims that Examiner 366 consistently graded Shahmohamady lower than the other two examiners. Based on the post-examination statistical analysis performed by the Department, Examiner 366 tied for second place in reliability for scoring. On a scale of 100, he scored 96, which is considered to be excellent. The other two examiners who were grading Shahmohamady clinical procedures scored lower on reliability than Examiner 366. Examiner 366's was a reliable grader and correctly graded Shahmohamady's examination.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Shahram Shahmohamady failed the clinical portion of the June 4-7, 2000, dental examination with a score of 2.98. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 1st day of February, 2001. COPIES FURNISHED: Orlando Rodriquez-Rams, Esquire Lerenzo & Capua 9192 Coral Way, Suite 201 Miami, Florida 33165 Cherry Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-0792 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701

Florida Laws (1) 120.57 Florida Administrative Code (1) 64B5-2.017
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