The Issue Whether respondent should license petitioner as a dentist, despite the results of his manual skills examination, on account of the alleged unfairness of Examiner No. 170?
Findings Of Fact Petitioner Mohammed Hossein Teimourijam, who has practiced dentistry for five years and once taught dentistry at the National University of Iran, took the dental manual skills examination respondent administered in November of 1987. The examination consisted of nine procedures which each examinee performed on "dental mannequins." By reference to the number with which each applicant identified all of his procedures, examiners recorded their evaluations. Petitioner's Exhibit No. 1. Petitioner's original score was arrived at, as follows: PROCEDURE 006 154 170 AVERAGE 1 2 2 2 2.0 2 2 2 1 1.66 3 2 2 1 1.66 4 5 5 3 4.33 5 3 3 2 2.66 6 5 4 4 4.33 7 2 3 3 2.66 8 4 4 1 3.0 9 3 3 1 2.33 Respondent's Exhibit No. 3; Petitioner's Exhibit No. 3. Anonymous examiners, who did not see petitioner or any other examinee at work, began grading only after the applicants had finished the assigned procedures. The Board preserved the physical product of each procedure, along with the standardized rating sheets three examiners (Nos. 006, 154 and 170, in petitioner's case), filled out in evaluating each procedure. When respondent Board apprised Dr. Teimourijam that he had scored 2.71, below the 3.0 "necessary to achieve a passing status," Petitioner's Exhibit No. 3, he requested reconsideration. As a result, a consultant to respondent, who had attended the same standardization session as the original graders, reviewed the grading sheets and the procedures. With respect to procedures 8 and 9, the consultant concluded either that one of the original graders' comments was not physically verifiable or that one of the original grades was indefensible. Accordingly, three new graders evaluated petitioner's procedures 8 and 9. The results of the regrading were 3, 3 and 4 for each procedure, which brought petitioner's final grade to 2.84.
The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1993.
The Issue Whether or not Petitioner may be granted a passing grade upon her Dental Mannequin Examination dated June, 1986, a precursor to further examination for licensure. BACKGROUND AND PROCEDURE Petitioner is a post-1962 graduate of the University of Havana (Cuba) Dental School. At the commencement of formal hearing, Petitioner raised as a constitutional challenge, the bar existing in Section 466.006, Florida Statutes, to persons in her circumstances taking the Florida Dental Board Mannequin Examination an unlimited number of times whereas similar graduates prior to 1962 are permitted unlimited examination attempts. She also raised a further challenge to the recent amendment, effective 1991, barring any examination whatsoever of unaccredited dental school graduates. These challenges were treated by the undersigned as a single motion to hold a statute unconstitutional and denied as without jurisdiction and authority. The parties stipulated to the admission in evidence of 10 joint exhibits. Petitioner testified on her own behalf, presented the oral testimony of Lucinda Richards, and had one exhibit admitted in evidence. Respondent presented the oral testimony of Dr. Theodor Simkin, D.D.S., and had admitted one exhibit. The transcript was duly filed and each party has timely filed post-hearing proposals, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner, a 1978 graduate of the University of Havana, was an applicant for licensure by examination to practice dentistry in the State of Florida. As a foreign graduate of a non-accredited school, Petitioner had taken the Manual Skills, or Mannequin, portion of the examination on two previous occasions in 1982 and 1983, and failed on both occasions. After taking a remedial course, Petitioner was eligible under current law to take the examination for a third and final time. Petitioner took that examination for the third time in June 1986, and received a grade of 2.74. A grade of 3.0 is considered a minimum passing grade. Petitioner filed objections to the examination results, which were reviewed by Respondent and confirmed, and this proceeding followed. The Manual Skills, or Mannequin, portion of the dental examination, consists of nine procedures which are graded by three dental examiners who qualify under the requirements of Rule 21G-2.020, Florida Administrative Code. All examiners attend standardization courses, are evaluated, and are assigned randomly for the grading of applicants. In the instant case, the examiners for Petitioner were No. 6, Dr. Levy; No. 64, Dr. Robinson; and No. 150, Dr. Boyar, each of whom examined and graded all of Petitioner's nine procedures. The procedures are graded in a holistic manner and not as a numeric point deduction for errors or mistakes. Each examiner assigns a grade for the procedure and must document on the portion of the grade sheet any failing grade. The examiner then assigns one of the following grades for each procedure: - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimally acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Each procedure is graded by averaging the three examiners' scores to come up with a single average grade for each procedure. Procedure grades are then individually weighed and combined for an overall clinical grade, which grade must be 3.0 or above in order to achieve a passing score. All scores for examiners are reported and evaluated in Report For The State of Florida Dental Manual Skills Examination, June 1986, (Joint Exhibit F). At Page 3 of said Report, entitled "Histograms And Frequency Distribution", a set of graphs indicates that failing grades of "0", "1" or "2", should be given 18% of the time, and same would be considered a "realistic example of what might be considered ideal". A review of the 24 examiners assigned to the June 1986 Examination, however, further indicated that there was a range in the frequency of the rendering of failing grades from examiner 47, who gave a failing grade 19.4% of the time, to examiner 135, who gave a failing grade 70.7% of the time. The range for the Petitioner's three examiners, who rendered failing grades were examiner 6, 32.9% of the time; examiner 64, 51.6% of the time; and examiner 150, 29.9% of the time. All three examiners of Petitioner had given failing grades higher than the ideal curve, (51.6% to 29.9%), and all 24 examiners rendered failing grades substantially higher than the ideal curve (70.7% to 19.4%). It is Petitioner's contention that although Respondent has made efforts to standardize its examiners' techniques and grading, the admitted range for the specific examiners who rendered failing grades were from a high of 70.7% to a low of 19.4%, when the ideal rendering of such failing grades should have been only 18%, and conversely, the range for examiners who rendered passing grades, were from a low of 29.3% to a high of 80.6%, thus establishing that "standardization" of grading has not been achieved, and that the June 1986 grades assigned to Petitioner were subjective and not reasonable and fair. Petitioner's contention, although correct in its arithmetic, is not sound in light of other mathematical principles enunciated by Lucinda Richards, an examination development specialist for the Department of Professional Regulation who was qualified and accepted as Petitioner's expert witness in testing and measurement. Petitioner's theory is a plausible inference but not a necessary one. It is not a necessary inference due to the holistic nature of the examination, because it cannot be ruled out that any three examiners were randomly assigned to grade those candidates who performed overly poorly or overly well, and because the examiner evaluation relied on by Petitioner is based on a very small number of evaluations and is for this single examination only and not for all examinations these examiners have done. Ms. Richards specifically testified that it was a possibility that on the June 1986 examination or any examination the three examiners assigned to Petitioner were randomly assigned to overly poor students and that Dr. Robinson, Petitioner's examiner whose failure rate was highest on this examination always does well on standardization testing and that, in fact, Dr. Robinson has deviated less than any other examiner in his several standardization tests over time. The undersigned accepts Ms. Richards' detailed factual evidence that the June 1986 Mannequin examination was conducted in accord with standard procedures and that Petitioner was not treated differently from other examination candidates. The undersigned further accepts Ms. Richards' expert opinion that the examination process is standardized and fair. Moreover, Dr. Theodor Simkin's testimony does not support Petitioner's analysis. Dr. Simkin, called by Respondent, has been a licensed Florida dentist since 1950. Until the last few years he has been actively engaged in dental practice. He has also been actively engaged in the training and standardization procedures for the dental examination continuously since 1979 and has served as an examiner seventeen times. For the 1986 examination in dispute, Dr. Simkin was an examination supervisor and reviewer. He is thoroughly acquainted with all the latest and accepted techniques involving the nine procedures in which Petitioner was tested in 1986. In the course of formal hearing, Dr. Simkin examined the mannequin prepared by Petitioner during her examination. Although Respondent did not tender Dr. Simkin as an expert, this formality is primarily for the purpose of permitting counsel to pose hypothetical questions, and the undersigned finds that even without the formality of tender and acceptance, Dr. Simkin's evidence is entitled to the weight and credibility accorded an expert dentist. Although he felt some examiners had individually given Petitioner better scores than she deserved, Dr. Simkin's opinion substantially supported and confirmed the individual grades assigned Petitioner by the regular examiners, and he determined that the average grade for each procedure complied with the objective criteria which examiners are required to apply. Utilizing his education, training, and experience, Dr. Simkin concurred that the appropriate overall clinical grade for Petitioner's mannequin portion of the examination should be less than the passing grade of 3.0. This evidence was not refuted. Together, Ms. Richards and Dr. Simkin established that the grading of Petitioner's examination was in accord with standard procedures.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Dentistry enter a Final Order affirming Petitioner's test scores and denying her a license to practice dentistry. DONE and RECOMMENDED this 8th day of February, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4839 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) are hereby made in accord with Section 120.59(2), Florida Statutes. Petitioner's PFOF 1-7. Accepted in FOF 1-7 respectively. Respondent's PFOF Accepted except as cumulative and unnecessary in FOF 1-2. Covered in FOF 3. Except as unnecessary covered in FOF 3. 4-8. Accepted, but none of these matters is necessary to a resolution of the issues at bar as presented or argued by Petitioner. Covered in FOF 4. Covered in FOF 5. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert Koltnow, Esquire One Datran Center, Suite 502 9100 South Dadeland Boulevard Miami, Florida 33156 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue As to Case No. 89-5273, whether Respondent committed the offenses set forth in the Amended Administrative Complaint dated December 28, 1989, and, if so, the penalties that should be imposed. As to Case No. 89-6492, whether Respondent committed the offenses set forth in the Administrative Complaint dated October 31, 1989, and, if so, the penalties that should be imposed. As to Case No. 90-5801, whether Respondent committed the offenses set forth in the Administrative Complaint dated January 18, 1990, and, if so, the penalties that should be imposed. As to Case No. 90-5802, whether Respondent committed the offenses set forth in the Administrative Complaint dated March 9, 1990, and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent, Michael Albert, was engaged in the general practice of dentistry in the State of Florida. Respondent is the holder of license number DN0009815, which was issued by Petitioner and which authorizes him to engage in the practice of dentistry in the State of Florida. His office, known as "9 to 9 Family Dental Centre" 1/ , was located at 7015 Beracasa Way, Boca Raton, Florida 33433. CASE NO. 89-5273 - PATIENT S.D. Patient S.D. is a female who was born November 6, 1950. S.D. went to Respondent for the first time in May 1987, for a general examination and cleaning. S.D. had her four front upper teeth (teeth 7, 8, 9, and 10) capped when she was between 12 and 14 years of age. The cap on one of those teeth had been chipped and had begun to flake, and S.D. wanted that crown replaced. Respondent recommended to S.D. that she have those four caps replaced to maintain a match- up in color and also recommended that she have three other teeth (teeth 12, 14, and 31) capped because those teeth had open margins. S.D. knew that Respondent's recommendation to have teeth 7, 8, 9, and 10 recapped was based solely on aesthetic considerations. S.D. concurred with the recommendations as to teeth 7, 8, 9, and 10, and S.D. agreed to allow Respondent to perform the work that he had recommended on those teeth as well as the recommendations he made as to teeth 12, 14, and 31. Respondent took x-rays of S.D. and ultimately capped the seven teeth he had identified. S.D. was uncertain as to the order in which Respondent performed this work. Respondent's records reflect that S.D. visited Respondent on May 13, 1987, and on May 21, 1987, and that during those visits the Respondent capped teeth 7, 8, 14, and 31. Respondent's records further reflect that S.D. visited Respondent on May 28, 1987, and on June 15, 1987, and that during those visits the Respondent capped teeth 9, 10, and 12. S.D. had no complaints about the work performed by Respondent until she began to develop pain in a tooth that Respondent had capped. She returned to Respondent who replaced the crown on that tooth. The pain that S.D. had experienced went away after the crown was replaced, but S.D. had lost confidence in Respondent. Consequently, S.D. went to another dentist when it was time for her six month checkup. S.D. visited Dr. Clare Garner on March 28, 1988. Dr. Garner was of the opinion that S.D. needed a root canal and a new crown on tooth 31, that she needed a new post and core on tooth 7, and that she needed a root canal on tooth S.D. did not return to Dr. Garner for follow-up care. S.D. visited Dr. Michael Flax for the first time on April 4, 1988. During subsequent visits in April and May of 1988, Dr. Flax performed root canal therapy on teeth 7 and 31. S.D. later experienced pain in tooth 10. Dr. Flax performed an apicalectomy on tooth 10 and determined that tooth 10 had a fracture at the apex which he believed was caused by an oversized post being placed inside of the tooth. Dr. Flax did not know who placed the post. S.D.'s last visit with Dr. Flax was on September 8, 1988. Dr. Flax recommended a general dentist to "take care of her crowns". 2/ There was no competent, substantial evidence that the initial crowns done by Respondent had any open margins. Respondent used a panorex x-ray together with bite-wing x-rays in performing his work on S.D. There are some areas that one can see on a periapical x-ray that one cannot see on a panorex x-ray. Likewise, there are areas that one can see on a panorex x-ray that one cannot see on a periapical x- ray. There was dispute among the experts as to whether Respondent should have also used a periapical x-ray in performing his work on S.D. Petitioner's experts clearly preferred to use periapical x-rays. The greater weight of the evidence, however, is that a panorex x-ray can provide sufficient detail when used with the bite-wing x-rays. There was no evidence that the original panorex x-ray upon which Respondent based his diagnosis had insufficient detail. The record failed to establish by clear and convincing evidence that Respondent's use of the panorex x-rays and the bite-wing x-rays fell below minimum standards of care. Dr. Flax testified that Tooth #7 should have been pulp tested for vitality before any further prosthetics were placed onto the tooth. However, he did not testify that the failure to pulp test Tooth #7 for vitality fell below minimum standards. Dr. Flax also testified that another tooth (which was not identified by number) should have been retreated with a root canal before a crown was placed on top of it. Dr. Flax did not testify that the failure to perform this root canal prior to placing the crown fell below minimum standards. Dr. Flax also testified that there was a crack in the apex of tooth #10 due to an incorrectly placed or incorrectly sized post within the tooth. He did not testify that the placing of the post fell below minimum standards and he did not know whether Respondent placed the post. Symptomatic periapical abscesses can develop at any time. The record fails to establish by clear and convincing evidence that there was a periapical abscess that existed at the time Respondent treated S.D. or that the failure to either treat or diagnosis any abscess was below acceptable standards of care. The record fails to establish by clear and convincing evidence that the root canals performed by Dr. Flax were necessary because of substandard treatment by Respondent. There was no testimony that the records maintained by Respondent were inadequate. CASE NO. 89-6492 - PATIENT E.M. E.M. is a female who 73 years of age when she first visited Respondent on April 14, 1988. The initial visit was prompted by pain from an abscess. Respondent performed root canal therapy on E.M.'s teeth 18 and 26. Between April 14, 1988, and October 5, 1988, Respondent fitted E.M. with a complete denture on her upper arch and with a bridge on her lower. The upper denture placed by Respondent did not fit correctly. On a subsequent visit, Respondent did a chair side reline of E.M.'s upper denture. There was disagreement among the expert witnesses as to whether the chair side reline was appropriate since E.M. was an edentulous patient. This conflict is resolved by finding that the chair side reline performed by Respondent did not fall below minimum standards of care. There was a substantial and significant personality disagreement between E.M. and Respondent and his staff. E.M. was unhappy with the services performed by Respondent and complained that the upper plate did not fit correctly even after the chair reline. As a result of this disagreement, E.M. refused to return to Respondent for follow-up care to adjust her dentures. Although there was testimony that Respondent should have been able to better fit E.M.'s upper denture initially, the greater weight of the evidence and the more persuasive expert testimony is that follow-up care is important for the proper fitting of dentures. Dentures have to be adjusted on the average eight times before the fit is proper and the normal break-in period for dentures is between two and six months. E.M.'s refusal to submit to follow-up treatment contributed in large part to the dissatisfaction she had with the dentures fitted by Respondent. Although E.M. complained of pain, she had not seen any dentist for over two years. At the time she was examined by Dr. Martin Staub, Petitioner's expert, on February 17, 1989, she was still able to wear the dentures that Respondent had prepared for her. Dr. Staub found that the denture adaptation was poor in the post-dam area causing the denture to slip and to have insufficient suction. Dr. Staub found that the denture finish was rough and inconsistent due to excess pieces from the reline adhering to the buccal portion of the denture and being too thick in the palatal area. Despite these findings, Dr. Staub testified that he considered Respondent's performance as a dentist had fallen below minimum standards of care only in that he should have been more patient with E.M. and that he should have been more caring and compassionate. 3/ Dr. Staub's report reflected a finding that there were open margins on teeth 19, 27, and 31. During his cross examination, he admitted that the tooth he reported as being tooth 27 could have been another tooth since Respondent's records reflect that tooth 27 had been extracted. Consequently, there would not have been a margin on tooth 27. Respondent placed the crowns on E.M.'s teeth 19 and 31 with temporary cement because Respondent anticipated that she would require periodontal treatment due to her poor oral hygiene. There was a dispute among the expert witnesses as to whether the margins that Dr. Staub observed were caused by substandard treatment by Respondent. This conflict is resolved by finding that the evidence fails to clearly and convincingly establish that these margins were the result of substandard care by Respondent. These margins could have resulted from causes that should not be attributed to Respondent. For example, there was testimony that the margins could have resulted from the temporary cement washing out or by natural changes in E.M.'s mouth. Petitioner failed to establish that the dental care and treatment rendered E.M. by Respondent fell below minimum standards of care. CASE NO. 90-5801 - PATIENT H.F. H.F. is a female who was born April 6, 1970. H.F. resided in Atlanta, Georgia, at the time of the formal hearing, but she resided in Boca Raton, Florida, with her family when Respondent examined her. H.F. was examined for the first time by Respondent on August 20, 1987. On August 2, 1988, H.F. returned to Respondent for a checkup and cleaning. Respondent diagnosed cavities in H.F.'s teeth numbers 3, 14, 15, 18, 20, 29, and 31, and presented H.F. with a treatment plan requiring all seven teeth to be filled and called for amalgam restorations. In making his diagnosis, Respondent took x-rays of her teeth, visually inspected her mouth, and probed her teeth with the use of an explorer. H.F. did not return to Respondent to have her teeth filled. On August 19, 1988, H.F. went to Dr. Anders K. Finnvold, her mother's dentist, for a second opinion. Dr. Finnvold conducted a thorough examination of H.F. Dr. Finnvold examined a copy of the x-rays that Respondent had taken of H.F., visually inspected her mouth and probed her teeth with the use of an explorer. Dr. Finnvold found no cavities. On October 12, 1989, Dr. Finnvold examined H.F. for the second time and again found no cavities. On August 2 or 3, 1990, Dr. George C. Karr, one of Petitioner's expert witnesses, examined H.F. and found clinical decay on teeth numbers 2, 3, 14, 15, and 18. Dr. Karr did not find any cavity on H.F.'s teeth numbers 20, 29, and Dr. Karr considered H.F. to have poor oral hygiene. Dr. Karr was of the opinion that Respondent had misrepresented H.F.'s condition and that his treatment plan was over-zealous and below minimum standards. A caries is a technical term for a cavity or a hole in the tooth and results from acid dissolution of the enamel and/or dentin structure of a tooth. Poor oral hygiene contributes to the development of caries. H.F. had poor oral hygiene. A caries may be diagnosed by use of an x-ray, by visually inspecting the mouth, by probing the teeth with an explorer, or by a combination of those diagnostic means. In diagnosing caries by use of an explorer, the dentist is making an educated assumption based on the resistance the dentist feels in probing a pit or fissure. In making this educated assumption, the dentist should consider the patient's oral hygiene and the patient's susceptibility to developing cavities. A catch or resistance when using an explorer indicates that either a fissure has become carious or has the probability of becoming carious. If a sharp explorer is used and it hangs on the teeth, that is indicative that there is either decay present or a situation of pre-decay. It is within acceptable standards of care to recommend filling those areas. The evidence was clear that the detection of cavities by use of an explorer is a difficult task, and that legitimate differences of opinion can occur. The disagreements between Respondent, Dr. Finnvold, and Dr. Karr illustrate that difficulty. Respondent used a sharp explorer to examine H.F.'s teeth. The explorer grabbed or stuck on teeth 3, 14, 15, 18, 20, 29, and 31, and he believed that each of those teeth should be treated in the manner he recommended. It is dentally improper to deliberately misrepresent the existence of decay and the need for treatment. However, the fact that Respondent was of the opinion that there existed cavities that Dr. Finnvold and Dr. Karr did not detect does not establish, clearly and convincingly, that Respondent deliberately misrepresented H.F.'s condition or that he failed to practice within acceptable standards of care. CASE NO. 90-5802 - PATIENT L.M. During the summer of 1987, L.M. presented to the Respondent for routine dental care. This was L.M.'s initial visit. Respondent examined L.M., took x-rays, and then advised L.M. that he suspected that she had a little problem with her gums. Respondent directed her to Dr. Rosa, 4/ a periodontist who worked in the same dental office as Respondent. Respondent advised Dr. Rosa that he felt that L.M. had a problem with her gums and asked Dr. Rosa to examine her. Dr. Rosa diagnosed periodontal breakdown and recommended an extensive treatment plan for L.M., which included root planing, dental wedge procedures, and osseous surgery. The estimate for the work to be performed was given to L.M. on a form which reflected that it was from "9 to 9 Dental Centre". Although it was established that "9 to 9 Dental Centre" was the name of the dental office in which Respondent practiced, and that L.M. associated that name with that of Respondent, there was no showing as to how or why Respondent should be held responsible for acts of Dr. Rosa. The evidence clearly establishes that Respondent was not acting below accepted standards merely in recommending that a periodontist with whom he worked examine a patient he thought may have a periodontal problem. The record does not establish that Respondent misrepresented L.M.'s condition when he asked Dr. Rosa to examine her. Petitioner's experts who later examined L.M. established that L.M. did not have periodontal problems that would justify the recommended treatment plan proposed by Dr. Rosa.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses all charges brought against Respondent in Case No. 89-5273, which dismisses all charges brought against Respondent in Case No. 89-6492, which dismisses all charges brought against Respondent in Case No. 90-5801, and which dismisses all charges brought against Respondent in Case No. 90-5802. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1991.
The Issue The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.
The Issue The issue presented is whether Petitioner achieved a passing score on the June 1999 Florida dental licensure examination.
Findings Of Fact Petitioner is licensed to practice dentistry in California and was also licensed in Georgia until he permitted his Georgia license to become inactive. He has been engaged in the active practice of dentistry for thirteen years. He has never been sued. Petitioner took the June 1999 clinical portion of the Florida dental licensure examination. He was subsequently advised that he had not achieved a passing score. Petitioner challenges the score he received on two portions of the clinical examination: his amalgam cavity preparation on the patient and his endodontic procedure on an extracted tooth. Petitioner's patient had a cavity between two teeth, although it was much lower than the contact point. The patient also had a large non-contiguous cavity in the front of the same tooth. Petitioner determined that he wished to save as much of the tooth as possible knowing that the large cavity in the front of the tooth would need to be filled. Because of the manner in which it was necessary to prepare the tooth to preserve the maximum amount of structure, he generated a monitor note explaining his approach. When he located the monitor to whom he would turn in his note, that monitor was busy viewing another patient and motioned for Petitioner to place the note at the monitor's station. Petitioner placed the note in the monitor's chair and returned to his patient. Petitioner completed the preparation procedure. While doing so, he noticed that his patient's tooth had a dead tract, a rare dental defect that would not interfere with the process. This was only the second time that Petitioner had seen a dead tract in a tooth despite his many years of practice. The first time had been while Petitioner was in dental school When his patient was graded, two of the three graders gave Petitioner a score of "0," noting that caries remained. The third grader saw no caries but noted debris remained. What the two examiners mistook for further decay was the dead tract. No debris remained. The other comments of the graders suggested that they had not seen the monitor note generated by Petitioner explaining the manner in which he was preparing the tooth and why. Despite the alleged presence of decay, Petitioner was instructed to proceed to fill the cavity. The extracted tooth on which Petitioner performed his endodontic procedure was an "easy" tooth with large canals. One grader gave Petitioner a "5," which is a perfect score. One grader gave him a "3," and the other gave him a "0." Only the grader who gave Petitioner the "0" noted that the tooth was perforated. The tooth Petitioner worked on had no perforation on the inside, and the x-rays taken during the process revealed no file or gutta percha filling off to the side of the canals. Petitioner did not perforate the tooth during his endodontic procedure. Petitioner properly performed both the amalgam cavity preparation on his patient and the endodontic procedure on the extracted tooth. He should be awarded full points on both procedures. The additional points are sufficient to give Petitioner a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a passing score on the June 1999 dental licensure examination. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 26th day of January, 2000. COPIES FURNISHED: Bill Buckhalt, Executive Director Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Gregory K. Barfield 2555 Collins Road, Penthouse 114 Miami Beach, Florida 33140 Gregory K. Barfield Post Office Box 102 Rancho Sante Fe, California 92067 Adam Keith Ehrlich, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact During the summer of 1982, Petitioner, Habib H. Ghahremannezhad, of Thibodaux, Louisiana, sent a letter to the Respondent requesting information on the requirements to take the Florida dental examination. He had been advised by a representative of the American Dental Association that foreign dentists could take the examination. 1/ In response to his letter, the Respondent sent him the required application forms, which had a submission deadline in late September, 1982. Petitioner submitted them on time as required; and just a few weeks before the examination, in November, 1982, he received further instructions from Respondent which included the requirement that he, the candidate, bring with him to the examination a stipulated number of real human teeth in what could be described as perfect shape. Teeth of this nature are difficult to get; and though Petitioner called many practicing dentists in the area where he lived and also contacted the local dental school, he was unable to procure the appropriately preserved teeth within the short period of time between his receipt of notification of the requirement and the test. As a result, he was required to purchase a human skull from a medical supply house, from which he extracted the required teeth. These skulls are prepared for use by medical students and are dried out. The teeth in them, therefore, are brittle and fragile. Though he stored them in a glycerine/water solution up to the examination, this could not and did not restore already dehydrated, dead, brittle teeth to their former condition. The appropriate teeth would have been freshly extracted and thereafter stored in a mixture of glycerine and water which would have preserved their resiliency and rendered them not brittle and subject to easy breakage. There was no evidence presented, however, to show that Petitioner received his instructions any later than other candidates who suffered under the same handicaps as he in procuring appropriate teeth. In fact, he admits he was not singled out for late instructions, and the other candidates had the same problems. The mannequin examination consisted of at least nine different procedures. Each procedure was performed by the candidate with a monitor in the area. When the procedures were completed, they were thereafter graded anonymously (each procedure model was marked only with the candidate's examination number, not the name) by three separate examiners who independently, out of the presence of each other (and who were also identified only by a number), assigned a numerical grade to each procedure based on criteria set out on a prepared grading sheet. Under the rules for this examination, a grade of 3.0 out of a range from 0 to 5 is required to achieve a passing score. Respondent achieved a grade of 2.71, which was a failing grade and which was arrived at by averaging the three grades for each procedure, adding these nine averages and dividing by nine. Petitioner scored, as follows: (a) Procedure 01 Examiner 003 - 2 Examiner 071 - 3 average 2.67 Examiner 072 - 3 (b) Procedure 02 Examiner 072 - 3 Examiner 071 - 3 average 3.0 Examiner 008 - 3 (c) Procedure 03 Examiner 072 - 1 Examiner 071 - 1 average 0.67 Examiner 008 - 0 (d) Procedure 04 Examiner 008 - 2 Examiner 071 - 1 average 2.0 Examiner 072 - 3 (e) Procedure 05 Examiner 072 - 4 Examiner ,071 - 4 average 4.0 Examiner 008 - 4 (f) Procedure 06 Examiner 059 - 5 Examiner 066 - 3 average 4.33 Examiner 037 - 5 (g) Procedure 07 Examiner 059 - 3 Examiner 066 - 3 average 3.67 Examiner 037 - 5 (h) Procedure 08 Examiner 059 - 3 Examiner 066 - 4 average 4.0 Examiner 037 - 5 (i) Procedure 09 Examiner 059 - 0 Examiner 066 - 0 average 0.33 Examiner 037 - 1 Petitioner makes numerous allegations regarding the fairness of the examination and what he considers to be discrimination against foreign dental students. He produced, however, no evidence save his own opinion to support these claims except in the case of the instructions (Petitioner's Exhibit 1), which, on Page 3 at Paragraph 7, state that a candidate who fails this examination two times will not be eligible to take the remaining examinations for licensure "except for a candidate who graduated from the University of Havana prior to 1962, who may take [this] examination an unlimited number of times." Petitioner claims this provision discriminates against foreign dentists. If any discrimination is shown, it is clearly reverse discrimination in favor of older Cuban dentists, a decision which is an approved policy of the Respondent. Consequently, there is no showing whatever that Petitioner was in any way discriminated against. Petitioner also contests, however, the grades given him on Procedures 3 and 9. Procedure 3 was a "Dental Class III preparation for a composite restoration on a maxillary central incisor." Here, the tooth Petitioner had for preparation was one of those fragile teeth which had dried out and was brittle. As a result, the tooth broke as he was working on it. At this point, he showed his problem to the monitor, who advised him to include that area in the preparation. He did that, as instructed, and received a low grade on his procedure, which he contends was the fault of the instructions given him by the examiner. Procedure 3 was designed to test the candidate's ability to demonstrate an acceptable preparation to Respondent's standards. This preparation would be a minimal preparation which would be for a very small cavity. Petitioner was graded low on this procedure by all three examiners, who each made additional handwritten comments on the form. All comments related to excessive depth of the preparation, which is not related to the width and size of the preparation. These latter conditions could, indeed, be related to the instructions of the monitor and, if they were the only comments, might justify adjustment. However, Petitioner made his preparation too deep, in fact exposing the pulp (nerve) of the tooth. This defect is not related to the size of the preparation as increased by the instructions of the monitor to include the area in the preparation. By itself, pulpal exposure is sufficient to cause a grade of 0 for this procedure. Here, the groove was so deep and so grossly oversized it went beyond any tolerance which might be given for a situation where, like here, the examinee has no idea, because of the dead tooth and no X rays, how close to the surface the pulp is. Further, two of the three grade sheets bear the notation "SMN," which means "saw monitor's notes." This indicates that before awarding a grade, these two examiners were aware of the problem that Petitioner had and that the monitor had advised him to include the break area in the procedure. Even after making allowances for that, two of the examiners graded Petitioner's work as "1," and the other gave him "0." These grades are consistent and within normal deviation, and all are failing grades. In light of this, one cannot conclude the rating for this procedure was improper so as to merit upward adjustment. As to Procedure 9, this was to prepare a "wax-up for a cast-gold bridge on the above [formerly] prepared teeth. . ." Petitioner contends he did as directed, completed the procedure, and turned it in. In an actual clinical situation, this work would not be done in the mouth of the patient, but for examination purposes, the candidates were directed to make the wax pattern directly in the model-- a far more difficult and rarely done procedure. However, the grading criteria take into consideration the conditions under which the examinee has to work in determining a pass or fail grade. This procedure has been changed with the 1983 examination. Candidates will no longer be required to work under this previous, more difficult method. After Petitioner completed the procedure, he turned it in and left. When the first examiner looked at the device prepared by Petitioner and attempted to take it apart, he broke it. Petitioner was awarded a grade of 0 by two examiners and a "1" by the third. He contends that since his wax model was broken by the first examiner, this was not his fault, and he should not have been given failing grades. He states that when he handed the pattern in, it was intact and, contra to claims of the examiner, he does not believe the pattern broke as a result of the area of cohesion being too small, as this item was graded as passing in the prior procedure. In addition, Petitioner contends that even if the wax cohesion was insufficient, this still does not justify a "0," since there were at least three other major areas which should be considered. However, review of the grading sheets, at least for Examiners 059 and 037, shows that numerous other deficiencies were found in Petitioner's procedure here, aliunde the wax cohesion and breakage, and these other deficiencies would justify a failing grade--even a "0." In the area of the broken wax pattern, however, examiners are indoctrinated as to all procedures to be tested the day before the examination and go over them thoroughly in advance. As to wax patterns, they are told at this time that the pattern may be removed, but only using "utmost care." Here, the candidate is asked to make a wax pattern for a 3/4 crown for one tooth, the back attachment to be waxed to a full crown. The stability of the pattern to withstand withdrawal is related to how well the procedure is waxed. In the opinion of Dr. Agnini, the Respondent's expert, sufficient wax could have been inserted to strengthen the wax pattern as it was being built under exam conditions. The examiner's (059) comments were that he broke the pattern and that the attachment was poor. It was the poor attachment that caused the device to break. Review showed that it was insufficiently waxed (See sheet for 059, Comment 5d.), and this did not meet the criteria. Respondent's witness concedes the possibility that the wax pattern breaking influenced in a negative fashion the judgment of the graders. However, as previously found, there were several other identified deficiencies on this procedure, and the low grades awarded rate to the procedure in its entirety--not solely to the fracture. There is no showing this procedure was unfairly or improperly graded. Although the examiners are not told how to withdraw the pattern during the standardization briefing other than to do it carefully, all examiners are licensed dentists and should know how to remove a wax pattern.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That a final order be entered by the Board of Dentistry finding that Petitioner has failed to achieve a passing score on the December, 1982, Dental Mannequin Examination and upholding the grade awarded to him on that examination. RECOMMENDED this 8th day of November, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983.
The Issue The issue is whether Ms. Gioia is eligible for re-examination of her clinical dental skills after having failed the clinical dental examination three times. She seeks to be re-examined without completing either a one year general practice residency or a minimum of one academic year of undergraduate clinical course work in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation.
Findings Of Fact Ms. Gioia first attempted the clinical dental licensure examination in June, 1987. On June 11, 1987, during the periodontal portion of the examination, Ms. Gioia was found to be in possession of a periodontal chart, which a monitor regarded as unauthorized written material for an examination candidate to have. The monitor made a report of an irregularity during the examination. On September 3, 1987, Ms. Gioia received from the Board of Dentistry a notice that she had failed to obtain a passing score on the June, 1987, clinical dental licensure examination, and that the Board had been presented with evidence that during the examination she had unauthorized written material in her possession, viz., a periodontal chart, which constituted a violation of Section 466.028(1)(bb), Florida Statutes, and Rule 21-11.007(1)(e), Florida Administrative Code, and that she would not be permitted to be re- examined until she completed a two credit hour college level course in ethics. The letter also notified her that: You may seek review of the above, by filing a petition with the Executive Director of the Board within twenty-one (21) days of your receipt of this notice. You may request a formal proceeding pursuant to Section 120.57(1), Florida Statutes, or informal proceedings pursuant to Section 120.57(2), Florida Statutes. If you request formal proceedings, the petition must contain the information required by Rule 28-5.201, Florida Administrative Code. Ms. Gioia then retained counsel, Kenneth Muszynski, and requested an informal hearing on September 28, 1987. The matter came before the Board of Dentistry on July 23, 1988, at its meeting in Tallahassee. According to the Final Order entered by the Board on October 14, 1988, (Board Exhibit 3) the Board found: . . . based upon [Ms. Gioia's] testimony relating to her possession of the periodontal chart, the Board determines that [her] possession of the periodontal chart did not constitute any intentional violation of examination rules or an attempt to obtain a license by fraud and ordered that she: . . . be certified for licensure without restriction upon her successful completion of the licensure examination. That Final Order effectively rescinded the requirement that she take an ethics course before she could be examined a second time. No appeal from that Final Order was ever taken. There is no indication in the evidence that Ms. Gioia ever challenged the finding made in the Board's September 3, 1987, letter that she had failed to obtain a passing score on the clinical dental examination given in June, 1987. Rather, she had challenged the allegation of misconduct which had resulted in a restriction on her ability to take the examination again. Ms. Gioia took the clinical dental examination for a second time in December of 1987, and did not obtain a passing score. She took the clinical dental examination for a third time in June of 1988, and again failed to receive a passing score. As a result, she received a letter on August 5, 1988, from the Board of Dentistry which states, in pertinent part: Pursuant to Florida Statutes 466.006(4)(b)5., . . . "If [an] applicant fails to pass the clinical examination in three attempts, he shall not be eligible for re-examination unless he completes additional education requirements established by the Board." Therefore, you are not eligible to sit for the Florida Dental Examination until you complete a one year general practice residency or a minimum of one academic year of undergraduate clinical coursework in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation. This letter prompted Ms. Gioia to request a review of her score on the June, 1988, clinical dental examination. After the review, Ms. Gioia was informed that the review did not result in an alteration of her grade, and if she wished to initiate a formal administrative hearing to challenge her grade she must do so within 30 days from the date of that October 4, 1988, letter. A petition for formal administrative hearing was filed, again by Kenneth Muszynski, on her behalf on November 14, 1988, which instituted this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the petition for formal hearing filed by Ms. Gioia which contended that her score on the clinical dental examination in June, 1987, should not be counted due to monitoring misconduct which unsettled her, and ordering that she not be certified to re-take the clinical dental examination until she completes the education requirements imposed in Rule 21G-2.021(2), Florida Administrative Code. DONE and ENTERED this 23rd day of August, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1990. Copies furnished: Vytas Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 D. Carlton Enfinger, Esquire Barrett, Bajoczky, Hoffman and Harper 131 North Gadsden Street Post Office Box 1501 Tallahassee, Florida 32301-1501 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner earned a passing grade on the May, 1986, dental mannequin examination?
Findings Of Fact The Petitioner took the May, 1986, State of Florida dental mannequin examination. In August, 1986, the Petitioner was notified that she had failed the dental mannequin examination. She was awarded an overall score for the 9 procedures of the examination which were graded, of 2.80. A score of 3.00 is the minimum passing score for this examination. The Petitioner was also sent a document which informed her that she could request a copy of the grade sheets completed by the examiners who graded her exam and that she could request a face-to-face meeting to discuss her grades or she could send written objections which would be considered in reviewing her score. The Petitioner's scores for each of the 9 procedures were as follows: Procedure Average Score 1 3.33 2 4.00 3 3.33 4 3.00 5 1.33 6 3.33 7 3.00 8 2.66 9 1.00 By letter dated August 8, 1986, the Petitioner requested that the individual examiners' grade sheets for each of the procedures be sent to her. On August 22, 1986, the Petitioner requested the grade sheets by telephone. By letter dated September 3, 1986, the Petitioner again requested that her grade sheets be sent to her and requested that an appointment be scheduled for her to meet with the Respondent's consultant to review her May, 1986 dental mannequin examination scores. The Petitioner believed that she was required to attend a face-to-face meeting with the Respondent's consultant who reviewed objections to the results of the May, 1986 dental mannequin examination. Because of the Petitioner's difficulty understanding English, she did not understand that she could send written objections in lieu of actually attending a review session with the Respondent's consultant. By letter dated September 8, 1986, the Petitioner was sent the grade sheets she had requested. By letter dated September 11, 1986, the Petitioner was notified that an appointment for September 26, 1986, had been scheduled for the Petitioner to meet with the Respondent's consultant to review her May, 1986 dental mannequin examination scores or, in the alternative, for the Petitioner's written objections to be considered. By letter dated September 17, 1986, the Petitioner submitted written objections to the Respondent. The Respondent acknowledged receipt of the Petitioner's written objections on September 24, 1986. On September 26, 1986, the Petitioner met with Sue Ellen Hamilton, D.D.S, the Respondent's consultant. As a result of this meeting and the Petitioner's written objections, Dr. Hamilton recommended that procedures 1 and be regraded. The Petitioner requested a response to her written objections from the Respondent by letter dated November 11, 1986. The Respondent informed the Petitioner by letter dated November 18, 1986, that the results of the regrade of procedures 1 and 2 had resulted in a decrease in her overall score from 2.80 to 2.60. In particular, the Petitioner was awarded a score of 3.00 for procedure 1 and a score of 2.66 for procedure 2. By letter dated December 16, 1986, the Petitioner requested a formal administrative hearing. The Respondent receives 100 to 200 objections to the results of dental mannequin examinations which must be processed. Due to the volume of objections received by the Respondent, and the procedures which the Respondent must follow to review objections, it takes 2 and 1/2 to 3 months to review a candidate's objections. The time which it took the Respondent to review the Petitioner's objections was reasonable. The State of Florida dental mannequin examination is a practical examination designed to test several specified clinical skills. Each of 9 separate procedures are separately graded. Each of the procedures are graded by different examiners. Each examiner grades a procedure independently. A grade of from 0 to 5 is assigned by each examiner. The final score for each procedure is determined by averaging the 3 grades given to that procedure by the 3 examiners. The final score for the 9 procedures is a weighted average of the sum of the 9 scores. Examiners are experienced Florida dentists selected by the Board of Dentistry. They must have at least 5 years of experience as a dentist. Examiners receive 8 to 12 hours of training prior to participating in an examination. The training, referred to as a "standardization exercise," involves review of the criteria by which each procedure is required by rule to be judged. Some of the dentists who take the standardization exercise who are not designated as examiners act as monitors. Monitors are present during the examination. They are instructed not to assist candidates during the examination and candidates are told that monitors are not there to assist them. If a candidate wishes to note a problem, they are instructed to do so and the monitors acknowledge that a problem has been noted by the candidate. Monitors do not, however, confirm that a problem exists and candidates are so informed before the examination. Application of the grading criteria is not a mathematically precise exercise. There is no mathematical formula for deducting any specific number of points or fractions of a point for shortcomings in a candidate's performance. Examiners use an holistic approach to grade each procedure. Examiners record the grade they award to a procedure on a form. If a failing score is given on a procedure, the examiner is required to include on the form written comments sufficient to justify the failing grade. These comments do not have to include everything the examiner thinks is wrong with the procedure, but must include enough to justify a failing grade. No information concerning the Petitioner's identity was disclosed to the examiners during the examination. The Petitioner was assigned an identification number which was recorded on her work and her grade sheets. The examiners did not, however, see the Petitioner or know anything about her. The examination was conducted in a laboratory, the Petitioner's work was placed in a box by a monitor and the box was taken to another room by a monitor where it was graded. If a regrade is recommended by a consultant, as was done in this case, the procedures for which a regrade is recommended must be sent to 3 different examiners throughout the State. These new examiners regrade the procedure and return their results to the Respondent. The regraders do not know the identity of the candidate being regraded. The average grade given to the Petitioner for her performance on the dental mannequin examination of May, 1986, was fair and reasonable for her performance on each of the procedures. Procedure number 5 is a endodontic procedure--instrumenting of the canal of a tooth that has been infected, so that the canal can be drained of matter which might become infected and the ultimate filling of the tooth. In layman's terms, the procedure is the performance of a root canal. Ideally, the canal should be cleared to within 5 millimeters from the apex of the tooth. The tooth on which the Petitioner performed this procedure was only cleared to within 2.5 millimeters from the apex. This is unacceptable. The passage did not go any further because ledging had occurred. Ledging was caused by the Petitioner and occurred when the instruments used to clear the canal went out of the canal at an angle into the tooth. When this occurs the problem usually cannot be corrected and the portion of the canal below the ledging cannot be cleared. When the Petitioner experienced the ledging, she believed that the canal had an obstruction in it. The x-rays of the tooth, however, showed the ledging and that there was no obstruction in the canal. The Petitioner asked a monitor to verify that she had encountered an obstruction. Monitors are instructed not to assist or approve in any way a candidate's work. The Petitioner was told this before the examination. The monitor, therefore, did not and could not verify that there was an obstruction in the tooth the Petitioner was working with. Once the Petitioner experienced a problem with the tooth, it was her responsibility to deal with it in the best manner possible. Again, the Petitioner was confused as to the function of the monitor because of her language problem.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the May, 1986, dental mannequin examination was a failing grade. DONE and RECOMMENDED this 22nd day of July, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0208 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Proposed Finding of Paragraph Number in Recommended Order Fact Number of Acceptance or Reason for Rejection (A) 2-14. 1 4. 2 5. 3 6-7. 4 9. 5 9-13. Not a proposed finding of fact. Not supported by the weight of the evidence. Not supported by the weight of the evidence and irrelevant. Irrelevant. 10-13 Not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant. (B)-(B)(2) Not supported by the weight of the evidence. (B)(3) 21. To the extent that this paragraph suggests that the Respondent's witness denied the truth to protect the Respondent, this proposed finding of fact is not supported by the weight of the evidence. Not supported by the weight of the evidence. (C)(1)-(6) Not supported by the weight of the evidence. (D)(1)-(4) Irrelevant and not a proposed finding of fact. COPIES FURNISHED: Dr. Bao-Kiem Dam 4581 Charnock Drive Irvine, California 92714 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination is whether Petitioner successfully completed the December 1999 dental licensure examination.
Findings Of Fact Petitioner has been given a temporary permit to practice dentistry due to his being a resident in training. In December 1999, Petitioner took the dental licensure Examination. He successfully completed the Laws and Rules part of the Examination having received a score of 78.00, where a minimum score of 75.00 was required to pass that part. Petitioner failed to successfully complete the Clinical part of the Examination having received a score of 2.89, where a minimum score of 3.00 was required to pass the Clinical part. As a result, Petitioner failed to successfully complete the overall Examination. On the Periodontal section of the Clinical part, Petitioner received a score of 1.66. He challenges this score. Each candidate is graded by three examiners. Each examiner is a dentist who is licensed in the State of Florida, with a minimum of five active years' experience, and who, among other things, has no complaints or negative actions against his/her license. Before every examination, each examiner is trained in evaluating a procedure to make sure that the procedure is properly performed. The Department of Health (Department) conducts training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida. To further their training, the examiners after receiving verbal training are shown slides of teeth which do not meet the clinical criteria of the examination. Following the standardization, to make sure that the examiners have been able to internalize the criteria, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where models are used and the examiners check for errors on the models. The examiners are evaluated on how they perform when they grade the models, to make sure that the examiners are grading the candidates the same, using the same criteria, and with reliability. Each examiner grades the examination independently. The examiners do not confer with each other while scoring the examination. The examiners do not have contact with the candidates. As to grading, the average of the three grades from the examiners produces the overall grade for the exercise performed by the candidate. Having three examiners grading provides a more reliable indication of the candidate's competency and true grade. Furthermore, the examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored. When the candidate completes the procedures, a proctor accompanies the human patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. Monitors are used by the Department at the examination. The role of a monitor is to preserve and secure the integrity of the examination. The monitor, among other things, gives instructions to the candidates, answers questions of the candidates, and acts as a messenger between the candidate and the examiner. Monitors also ensure that candidates do not have contact with the examiners. For the Periodontal section, a candidate, as Petitioner, performs a periodontal exercise on a human patient who is chosen by the candidate. The human patient must also be approved by the Department in accordance with criteria specified by rule.2 The criteria includes a requirement that the human patient must have a minimum of five teeth, each of which must have pockets of a minimum of four mm in depth with sub-gingival calculus. Petitioner chose his human patient. The Department approved Petitioner's human patient. Petitioner's human patient was a periodontally involved patient. Petitioner performed the periodontal exercise on his human patient. Petitioner's exercise was graded by three examiners, i.e., Examiners 131, 346, and 264. All three examiners participated in and successfully completed the standardization training, and it is inferred that they were considered qualified to act as examiners for the Examination. Petitioner's examination was double-blind graded. Each examiner independently graded Petitioner's examination. Examiner 131 found no errors and awarded Petitioner a grade of five (5). Examiner 346 found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). Examiner 264 also found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). The criteria for the Periodontal exercise mandates a grade of zero (0) where there is gross mutilation of gingival tissue.3 Consequently, Examiners 346 and 264 had no choice but to award Petitioner a grade of zero (0). After the grading, both graders who found gross mutilation of gingival tissue made written comments, regarding the tissue mutilation, on the Examiner-To-Monitor Instructions form. Examiner 264's comment was "Please have candidate place perio pak, area 26, 27, 28" and was not intended to be instructions to Petitioner but was directed to follow-up work or to attention that the human patient may need afterwards. The Examiner-To-Monitor Instructions form, with the written comments, was provided to the monitor who related the comments to Petitioner. The monitor did not allow Petitioner to view the written comments. The monitor informed Petitioner that further work needed to be done as to the human patient. The monitor indicated on the Examiner-To-Monitor Instructions form that Examiner 264's comment was related to Petitioner by the monitor writing "Candidate complied with" and writing and circling his assigned monitor number. The monitor writing "Candidate complied with" meant only that the monitor informed Petitioner that further work needed to be done, not that the Petitioner correctly performed the procedure. No evidence was presented that Petitioner sutured the human patient or that he placed a perio pak on the affected tissue of areas 26, 27, and 28. The evidence shows that the monitor only related to Petitioner that further work needed to be done without the monitor specifying what needed to be done. Moreover, the evidence shows that the monitor did not indicate that Petitioner had done what was requested of him. A candidate is not informed of his/her performance by the examiner because there is no contact between the examiner and the candidate. Additionally, such notification at the Examination site is not done because it is believed to have the effect of alarming the candidate and raising the candidate's anxiety level. The human patient was not informed that there was mutilation of soft tissue as a result of the periodontal exercise. Before an individual is accepted by the Department as a patient, the individual must complete and sign a "Patient Disclosure Statement and Express Assumption of Risk" form. This form, among other things, relieves the Department of any responsibility for poor work done by a candidate or for notifying the human patient of any poor work done by the candidate and places the responsibility on the human patient to have a licensed dentist check the work done by the candidate. The grading of Petitioner's Periodontal exercise is not arbitrary or capricious or an abuse of discretion. The grading process is not devoid of logic and reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order dismissing Rami Ghurani's examination challenge to the periodontal section of the clinical part of the dental licensure examination administered in December 1999. DONE AND ENTERED this 15th day of December, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2000.
