Findings Of Fact Petitioner passed all parts of the acupuncture examination except section one of Part Four, which was the clinical practical segment of the examination. That portion required the demonstration of various needling techniques and was independently graded by two observer-examiners. Respondent then averaged the two grades to arrive at a single score for each technique Petitioner was required to demonstrate. Respondent administered its first acupuncture examination in December, 1981, and its second in August, 1982 (at issue here). The examinations were developed and administered in consultation with California examiners, since that state had the greatest experience in testing and licensing acupuncturists. Petitioner raised no factual dispute with respect to examiner credentials, qualifications tested, or the scoring system. Rather, Petitioner pointed to alleged errors by the examiners in administering and grading certain questions. Additionally, Petitioner contends the reading list given for the written portion of the examination was misleading in that it was not intended to apply to the practical portion. Petitioner points to several questions where he received full credit from one examiner and a much lower grade from the other. Rather than averaging the two grades, Petitioner believes the lower grades should be thrown out as errors. However, Respondent instructed its examiners to give full credit where they failed to observe a specific technique or were otherwise uncertain of the performance. Thus, there was no showing that these diverse grades were other than a result of an examiner's failure to observe (for which Petitioner was not penalized). Petitioner further challenges the instructions given, contending the examiner erred in administering certain questions. Again, however, it is at least as likely that Petitioner misinterpreted instructions which were properly given. Petitioner contends he was misled by the reading list provided in advance of the examination. It was not clear, as Respondent argues, that the reading list was intended only for the written portions of the examination. However, Petitioner did not show that this misunderstanding prevented him from performing satisfactorily on the practical portion of the examination. Petitioner challenges the examiner's "eyeballing" techniques to grade his selection of proper acupuncture points. Respondent concedes this is not a precise method in all cases. However, the tolerance permitted on point location will allow for slight examiner error as well as reasonable candidate error. This was shown to be an acceptable scoring method by the testimony of Respondent's expert witness.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 14th of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clarine Smissman, Esquire 217 North Eola Orlando, Florida 32801 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ann Mayne, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R. T. CARPENTER 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 14th day of July, 1983.
The Issue The issue for consideration herein was whether Petitioner was properly graded for her performance of the Procedure in the Binocular Indirect Ophthalmoscopic testing on the Florida Optometry Examination conducted in Miami, Florida, on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Board of Optometry, (Board), was the state agency in Florida responsible for the licensing of optometrists in this state. Petitioner, Rhonda L. Wicks, graduated from the Southern California College of Optometry in 1985. She was licensed as a registered optometrist in California in 1985 and was thereafter commissioned in the United States Air Force in the grade of Captain. She was assigned as an optometrist at the MacDill Air Force Base Hospital in Tampa immediately thereafter, and in 1987, was made the Chief of the optometry service at that hospital, a position she still holds. In that capacity, she supervises several other optometrists and, in addition, sees approximately 20 patients per day for a total of over 14,000 patients since assuming that position. Approximately 10% of these involve the administration of the binocular indirect ophthalmoscopic, (BIO), procedure. In addition to passing the licensure examination in California, while still in school she passed the IAB, an internationally recognized certification examination, and, in addition, passed her national boards. Dr. Wicks took the 1988 Florida optometry examination given on September 16 - 18, 1988 at the Baskin-Palmer Eye Institute in Miami, Florida. When graded, she was found to have passed all portions of the examination except the clinical portion for which, on protest, she received an additional 2.5 points which raised her score to 73.5 out of a possible 100. The passing grade in this portion of the exam is 80. Primarily, her difficulties were in the area of the BIO procedure, worth 15 points, for which she was awarded only 2.5 points. She also experienced difficulty on the retinoscopy section for which she received 0 out of 8 possible points, but does not contest her score on that portion. She contests only the evaluation and grading of the BIO procedure. Dr. Wicks was graded by two examiners on the BIO procedure, each of whom gave her a "yes" or "no" grade on each of three sections. One examiner gave her three "no's" for a 0 score. The other examiner gave her two "no's" and a "yes". As a result, she was awarded one half credit or 2.5 points for the "yes" score given her by one examiner on one third of the procedure. In preparing for the written portions of the examination, she studied the materials furnished by the Department. She also considers her taking of the IAB as preparation for this examination. As for the clinical section, she felt comfortable using the practice she has carried on for three years as appropriate preparation except for 2 procedures for which she sought and received help from two ophthalmologists on staff at the MacDill Hospital. Prior to taking the examination, she read that portion of the study guide dealing with patient criteria, and was also familiar with that portion dealing with requirements of the BIO process. To her recollection, the study guide did not mention the required position of the patient during the accomplishment of the procedures but merely outlined what the candidate would be required to demonstrate. Examination of the study guide confirms Petitioner's understanding. The Department relies on that portion of the guide found on page 7 thereof which refers to the criteria for the patient supplied by the candidate and indicates that the patient must be willing to undergo a dilation procedure in the reclined position. The Board contends this indicates "advance notice" of the requirement that the BIO procedure be accomplished in the reclined position. This does not necessarily follow, however. The morning of the examination, one of the examiners briefed the candidates on the layout of the room in which the procedures would be done and the conditions under which they would be accomplished. It was at this time that Petitioner got her first notification that the BIO procedure would be done with the patient in the reclined position. It was also at this time, during the briefing, that the candidates were advised that they were not to be permitted to move the chair in which the patient was placed. At this point another candidate, who is, as is Petitioner, short of stature, asked if the candidate could sit the patient up in the chair and this candidate was advised that she could not. Under these conditions Petitioner attempted to perform the BIO procedure. When she found she could not do it because she was not tall enough, she notified her examiners of the problem and was told by one to "do the best you can." Her complaint of inability to accomplish the procedure because of the physical problem of her height was reiterated 3 times, and on each occasion, she received the same response. In the BIO procedure, the doctor examines the patient's eye through a lens in an attempt to get a view of the patient's retina. Petitioner contends that in order to properly and accurately accomplish the procedure, the doctor has to be 23 inches away from the patient's eye. This 23 inches is made up of the following segments: the distance between the instrument lens and the patient's eye must be approximately 2 inches; the lens in the instrument has a thickness of 1 inch; and the examiner should be approximately 20 inches away from the lens. Petitioner demonstrated through a diagram that the chair in which her patient was reclined placed the back of his head 30 inches from the floor. Added to that is the average 7 inch thickness of a human head from the back to the front of the eyeball. When that 37 inches is added to the 23 inches described, (patient's eye to examiner's eye), a total of 60 inches, (5 feet), is shown. To accomplish the procedure, the candidate must bend over so that the plane of his or her face is parallel to the floor in order to allow the candidate to look, with the instrument used, down through the lens into the patient's eye. According to Petitioner, when she places her head in the appropriate position to look down through the instrument, into her patient's eye, her eye is 53 inches from the floor. This is 7 inches below where it should be in order to properly accomplish the procedure with the patient reclined on the chair as it existed the day of this examination. Petitioner is 62 inches tall when standing straight, and 53 inches is insufficient to allow her to properly accomplish the procedure. She was not allowed either to move the chair or do the procedure with the patient sitting up. The day of the examination, Petitioner tried to accomplish the procedure by standing on her toes, by leaning back, and by taking other measures in an attempt to give her an appropriate view of the patient's eye. Nothing seemed to work. It was at this time she advised the two examiners observing her that she was physically unable to accomplish the procedure due to the height situation and was told, "do the best you can." Candidates are advised, prior to the examination, that if they experience difficulty of any nature during the examination, they are to bring it to the immediate attention of the examiner, and if that does not result in correction of the problem, to fill out and submit a comment card at the end of the examination whereon the candidate outlines the nature of the problem experienced. In this case, Petitioner did not fill in the comment card because she did not think it applied to her situation. She was of the opinion the card was to be filled out only when equipment did not work or the examination, for some other reason that could be corrected, was not appropriate. Here, the equipment worked as it should and the test was appropriate. In addition, the examiners also did what they were supposed to do. Gregory M. Smith served as a patient for Dr. DeFrank at the same examination taken by the Petitioner. During the course of Dr. DeFrank's testing, she performed the BIO examination on him just as Petitioner attempted to do with her patient. However, Dr. DeFrank, also a short woman, was allowed to have Mr. Smith sit up for her performance of the procedure and as a result, was able to accomplish it properly. Mr. Smith had been examined by the examiners prior to Dr. DeFrank's performance of the procedure, and one of the examiners performed the BIO procedure on him while he was in a reclined positions. However, before Dr. DeFrank entered the examination room with the other examiner, Smith was returned to the upright position and Dr. DeFrank did her procedure with him in that position. Dr. James J. Murtagh, an ophthalmologist and Chief of the Ophthalmology service at the MacDill hospital, and Petitioner's supervisor, has observed her in the performance of her duties for a period of two years. He is satisfied she is fully competent to do the procedure in question and, in fact, does it on a daily basis. In his expert opinion, there is no requirement that the BIO be accomplished with the patient in a reclined position. In fact, he feels it is best that the procedure be accomplished with the patient in a position most comfortable and convenient to both the patient and the doctor. The position of the patient, reclined or erect, has no bearing on the doctor's ability to do the procedure properly from an optometric or ophthalmological standpoint. The purpose of the BIO procedure is to examine the back side of the retina. It is necessary to extend the view out to the sides and, admittedly, this can best be done with the patient reclined. He is satisfied, however, that the major portion of the back of the eye, that portion to be observed through this procedure, can be seen easily in either the reclined or the upright position. Dr. Den Beste, Respondent's expert, is of the opinion that because of the nature of the area sought to be examined, it is best that the patient be reclined so that the doctor can, without discomfort, easily move to examine all portions of the retina from the top to the bottom and from side to side. Which procedure is better, however, is of little consequence here since the issue is not which procedure is better but whether the procedure legitimately can be accomplished in an upright position. In this regard, Dr. Murtagh's opinion that it can be is not necessarily inconsistent with Dr. Den Beste's opinion that it is better done in a reclining position. In its answers to Petitioner's Request For Admissions, the Respondent admitted that the BIO procedure can be accomplished on a patient seated in an upright position. The statute does not require that the supine position be utilized for an examination but the Board requires it in its examination because: (1) it is felt the supine position is better for examination purposes, and (2) it is easier for the examiners to observe the candidate's performance of the procedure. On the other hand, a representative of the manufacturer of the instrument utilized by the optometrist in performing the BIO procedure indicated that the instrument is best used in an upright position. Nonetheless, Dr. Den Beste disagrees with this when the instrument is to be used in a qualification examination situation. Under the physical conditions confronted by the Petitioner at the examination site, however, Dr. Murtagh is convinced it would be impossible for her to have accomplished the procedure with the patient reclined. Both Dr. Den Beste and Dr. Loewe, the Department's examination specialist, indicate that when Petitioner experienced her difficulty, she should have immediately pointed out her problem and called for help. They contend that Petitioner failed to do this. The evidence clearly shows, however, that after attempting the procedure, Petitioner, on at least three occasions, advised her examiners she was unable to accomplish the procedure because of the height and distance constraints, and was advised to do the best she could. The purpose of the comment card is to afford the examiners the opportunity to look into a problem situation, take corrective action on the spot if appropriate and possible, and to take future corrective action to prevent a recurrence of the problem at some later time. If the problem complained of is merely related to candidate technique, the examiners can do nothing about it. In the instant case, however, both Den Beste and Loewe feel the Petitioner should have filled out the form when she experienced the difficulty now reported and had she done so, something might have been done at that time. Both Den Beste and Loewe, however, indicate that to the best of their knowledge, the issue of the distance, as experienced by Petitioner here, has never been raised by any examinee in the past. At the hearing, Dr. Den Beste, while denying any prior knowledge of Petitioner's inability to perform the procedure because of her short stature, indicated that if someone did claim the procedure could not be accomplished because he or she was too short, there were some options open which included (1) lowering the chair, (2) adjusting the headset, or (3) pulling the patient's head into a different position so that the procedure could be accomplished. To now state that adjustments to the chair would have been acceptable provides no benefit to Petitioner here who, the evidence does not controvert, was told at the examination she was not allowed to adjust the chair at any time. According to Dr. Loewe, the test as it is configured is not designed to trick candidates. Tests are designed with the hope of fairly testing the skills of all candidates. If it appears there is a problem area, then test officials try to correct it or warn of it in the study guide. Dr. Loewe's inquiry into the examination conditions subsequent to Petitioner's examination revealed that there were several candidates who asked if it were necessary to do the BIO procedure with the patient in a supine position. She also admitted that filling out a comment card is not a prerequisite to filing a formal challenge to the grading or scoring. Dr. Loewe further indicated that if a legitimate reason existed to allow a candidate to perform the BIO procedure on a patient seated in an upright position because of some physical handicap, such as the candidate being confined to a wheel chair, they would make arrangements to accommodate the candidate. There appears to be little difference to be shown, from a practical standpoint, between someone who cannot examine a patient in a supine position because of their confinement to a wheel chair and one who cannot perform the examination appropriately because of his or her physical shortness and the resultant inability to get in a proper position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner be retested on the BIO procedure only, without payment of additional fee, either at a special examination held for that purpose or at the next regularly schedule optometry examination administered by Respondent Board of Optometry. RECOMMENDED this 23rd day of October, 1989 in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1912 The following constitutes my specific rulings pursuant to S 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 12. Accepted and incorporated herein. 13. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. - 29. Accepted and incorporated herein. 30. & 31. Accepted and incorporated herein. 32. & 33. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 40. Accepted and incorporated herein. 41. - 46. Accepted and incorporated herein. Accepted. - 51. Accepted and incorporated herein. Accepted and incorporated herein. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. - 62. Accepted. 63. & 64. Accepted and incorporated herein. 65. - 67. Accepted. 68. - 70. Accepted and incorporated herein. For the Respondent: 1. & 2. Accepted and incorporated herein. Not a Finding of Fact but a statement of the Petitioner's position. & 5. Accepted and incorporated herein. 6. & 7. Not Findings of Fact but a restatement of Petitioner's testimony. Accurate. Accepted and incorporated herein. Accepted as an accurate summary of the evidence on that point. Accepted that the problem could have been corrected. Accepted. COPIES FURNISHED: Richard M. Hanchett, Esquire Trenham, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. 2700 Barnett Plaza Post Office Box 1102 Tampa, Florida 33601 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Guilford Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Department of Professional Regulation is authorized by law to administer the acupuncture examination. The Petitioner, Michael Dechang Zeng, requested an administrative hearing to consider whether he should have received a passing grade on the August 1982 acupuncture examination. This formal hearing was noticed on April 21, 1983, and copies provided the Petitioner and Respondent by mail in accordance with the provisions of the applicable statutes and rules. The records does not reflect that the notice provided to the Petitioner was returned, as is the procedure of the Division of Administrative Hearings, and the record does not reflect that the Petitioner requested any continuation of the proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the grade received by the Petitioner on the August 1982 acupuncture examination be confirmed and approved. DONE AND ORDERED this 3rd day of August 1983 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 3rd day of August 1983. COPIES FURNISHED: Mr. Michael Dechang Zeng 1017 East Broad Street Tampa, Florida 33604 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Conclusions ARCA C.I. No.: 05-3603-000 THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. Filed October 14, 2009 2:31 PM Division of Administrative Hearings. DONE AND ORDERED on this the ' day of Odo b-L,-' , 2009, in Tallahassee, Florida. Holly Benson, Secretary / Agency for Health Care Administration AP ARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies Furnished to: Scott Wicke EmCare 1717 Main Street Suite 5200 Dallas, TX 75201 Karen Dexter, Assistant General Counsel Agency for Health Care Administration (Interoffice) Peter Williams, Inspector General Agency for Health Care Administration (Interoffice) D. Kenneth Yon, Bureau Chief Medicaid Program Integrity (Interoffice) Finance & Accounting (Interoffice) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served to the above named addresses by mail or interoffice mail this ay of (2:/4 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. 3, Mail Stop #3 Tallahassee, Florida 32308-5403 (850) 922-5873
Findings Of Fact Petitioner passed all parts of the acupuncture examination except sections one and two of Part Four, which was the clinical-practical segment of the examination. That portion required the demonstration of various needling techniques and was independently graded by two observer-examiners. Respondent then averaged the two grades to arrive at a single score for each technique Petitioner was required to demonstrate. Respondent administered its first acupuncture examination in December, 1981, and its second in August, 1982 (at issue here). The examinations were developed and administered in consultation with California examiners, since that state had the greatest experience in testing and licensing acupuncturists. Petitioner raised no factual dispute with respect to examiner credentials, qualifications tested, or the scoring system. Rather, Petitioner pointed to alleged errors by the examiners in administering and grading certain questions. Additionally, Petitioner contends the reading list given for the written portion of the examination was misleading in that it was not intended to apply to the practical portion. Petitioner points to several questions where she received full credit from one examiner and a much lower grade from the other. Rather than averaging the two grades, Petitioner believes the lower grades should be thrown out as errors. However, Respondent instructed its examiners to give full credit where they failed to observe a specific technique or were otherwise uncertain of the performance. Thus, there was no showing that these diverse grades were other than a result of an examiner's failure to observe (for which Petitioner was not penalized). Petitioner further challenges the instructions given, contending the examiner erred in administering certain questions. Again, however, it is at least as likely that Petitioner misinterpreted instructions which were properly given. Petitioner also claims one grade was transferred in error from the examination sheet to the score box. However, it does not appear that the letter written by the examiner, as part of a note, was intended to be a letter grade. Rather, the grade as written in the box provided for that purpose must be accepted as the score assigned by the examiner. Petitioner failed the sanitation portion of the examination by breaking the sterile field. She denies she touched the needle to her shoe strap as stated by the examiner and claims she could not have performed the assignment with her shoe on. This contention was demonstrated to be incorrect by Respondent, and it is probable that Petitioner simply failed to notice her error during the examination. Petitioner contends she was misled by the reading list provided in advance of the examination. It was not clear, as Respondent argues, that the reading list was intended only for the written portions of the examination. However, Petitioner did not show that this misunderstanding prevented her from performing satisfactorily on the practical portion of the examination.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 14th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 14th day of July, 1983. COPIES FURNISHED: Clarine Smissman, Esquire 217 North Eola Orlando, Florida 32801 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ann Mayne, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against Respondent's license as a veterinarian based on alleged violations of Section 474.214, Florida Statutes (1997), as charged in the Administrative Complaints filed against Respondent in this proceeding. Count I of the Administrative Complaint in Case No. 00-2357 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances. Count II of the Administrative Complaint charged Respondent with a violation of Section 474.214(1)(ee), Florida Statutes (1997): failing to keep contemporaneously written medical records as prescribed by Rule 61G18-18.002(3), Florida Administrative Code. The Administrative Complaint in Case No. 00-2358 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material, Respondent was a licensed veterinarian, having been issued license number VM 0003822. Facts relating to Case No. 00-2357 On or about March 5, 1998, Respondent performed a spay on "Midnight," a dog owned by Maryjane Greene and her husband. On or about March 8, 1998, "Midnight" expired at the Greene's home. When Mrs. Greene dropped off "Midnight," she was not sufficiently informed by Respondent about her option to have a pre-anesthesia lab work-up performed. There is no indication of an offer to perform a pre- anesthesia lab work-up, nor an indication that Mr. or Mrs. Greene declined such an offer, nor a consent form declining such a work-up, noted in the medical records kept by Respondent for "Midnight." It is a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the spay of "Midnight" included Xylzine (a.k.a. Rompun) a drug with a profound and potentially deleterious effect on the heart which may cause a first degree or second degree heart block. The anesthetic protocol used by Respondent during the spay of "Midnight" also included Ketamine, which is not approved for use in dogs. When used as an anesthetic protocol, it is considered an extra-label use of the drug. An extra-label use of a drug means that there have been no safety studies completed, and it cannot be adequately predicted what effects the medication will have on an animal on a consistent basis. There is no indication in Respondent's records for "Midnight" that Mrs. Greene was informed regarding the use of Ketamine in her dog's procedure. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug and not to have the client sign a consent form. Xylazine and Ketamine are both cardiac depressants. When used in combination they each make the other more of a cardiac depressant, thus requiring the administration of another drug, such as Atropine, to minimize the cardiac depressant effect. There is no indication in Respondent's medical records for "Midnight" that Atropine or any other drug was administered, other that the Xylazine and Ketamine. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xylazine and Ketamine was a deviation from the standard of care. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xyalzine and Ketamine played a substantial role in "Midnight's" demise. Upon picking up "Midnight," Mrs. Greene was given limited post-operative instructions. She was told not to give "Midnight" water until he could walk a straight line; not to give food until he could hold water down; only leash walks for 10 days; and no baths for 7-10 days. Respondent's post-operative discharge instructions given to Mrs. Greene did not comply with the standard of care in veterinary medicine. Facts relating to Case No. 00-2358 On or about August 25, 1998, Respondent performed surgery to remove a mass from the perineal area of "Snoopy," a nine-year-old obese Beagle belonging to Juan Ferras. There is no indication in Respondent's records for "Snoopy" that the surgery was performed due to an emergency, although the credible testimony indicated that it was an emergency. Given "Snoopy's" age (nine years) and weight (60 lbs.), it would be in the dog's best interest to perform a pre- anesthesia lab work-up, or to at least offer one to the owner. Respondent did not indicate in his medical records that he offered to perform a pre-anesthesia lab work-up on "Snoopy." In view of the emergency nature of the surgery, it was not a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the procedure on "Snoopy" included Ketamine, which is not approved for use in dogs. When used, it is considered an extra-label use of the drug. Ketamine should be used with extreme caution in dogs for which the veterinarian is unaware of the renal function or the liver function of the dog. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug, and not to have the client sign a consent form. There is no indication in Respondent's records for "Snoopy" that Juan Ferras was informed regarding the use of Ketamine in his dog's procedure. Upon picking up "Snoopy," Mr. Ferras was given limited post-operative instructions. Respondent's failure to give specific post-operative discharge instructions to Mr. Ferras constituted a deviation from the standard of care. After discharge, "Snoopy" began vomiting and was readmitted to Respondent's facility on or about August 27, 1998. On or about August 28, 1998, "Snoopy" expired at Respondent's facility. There is no indication in Respondent's records on "Snoopy" that upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, Juan Ferras refused to pay or was only willing to pay a small portion of any treatment rendered to "Snoopy." Because of this finding it is unnecessary to address whether refusal to pay a fee is an appropriate defense by Respondent. Upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, "Snoopy" was determined to be approximately 11 percent dehydrated and in a state of shock. In order to correct the dehydration and maintain "Snoopy," it would have been required to administer approximately 4300-4400 ccs of fluid. Respondent's records indicate that only 800 ccs of fluids were administered to "Snoopy." This left "Snoopy" with a tremendous deficit of fluids. Respondent's explanation as to the reason for the small amount of fluid shown on "Snoopy's" chart is not credible. Respondent's failure to administer the correct amount of fluids constitutes a deviation from the standard of care. Upon readmission to Respondent's clinic, Respondnet did not draw blood or perform any type of bloodwork on "Snoopy." Respondent's failure to draw blood or perform any type of bloodwork on "Snoopy" after being readmitted for dehydration and vomiting and shock constitutes a deviation from the standard of care. The fluids which were administered to "Snoopy" were administered sub-cutaneously. The failure to insert an IV catheter to administer the fluids, rather than administering them sub-cutaneously, constitutes a deviation from the standard of care. One way of re-hydrating a dehydrated patient is by weighing the dog and then adding enough fluids to get the patient to its normal weight. There is no indication in Respondent's records that "Snoopy" was weighed at the end of the day on or about August 27, 1998, or that "Snoopy" weighed approximately 60 pounds late in the day on or about August 27, 1998. Respondent's records for "Snoopy" contain a notation at 10:00 p.m. August 27, 1998, of "ADR" which means "ain't doing right." A patient whose records indicate "ADR" should be continuously monitored or transferred to an emergency facility. "Snoopy" was not monitored overnight and through the early hours of the next morning. Had Respondent taken appropriate steps with regards to fluid resuscitation upon "Snoopy's" readmission to Respondent's facility, "Snoopy's" chance of survival would have been much higher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be render by the Board of Veterinary Medicine, as follows: Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statutes (1997), as alleged in Count I of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case NO. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(ee), Florida Statutes (1997), as alleged in Count II of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case No. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statues (1997), as alleged in the Administrative Complaint for DOAH Case No. 00-2358 (DBPR Case No. 98-21230). In light of these findings of guilt and aggravating circumstances, the following penalties are recommended: A thirty-day suspension of licensure. An administrative fine in the amount of four-thousand dollars ($4000.00). Assessing costs of investigation and prosecution, in the amount of $973.24 for Case No. 00-2357 and $684.29 for Case No. 00-2358. Five years of monitored probation upon such terms and conditions as the Board finds necessary and reasonable. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2000. COPIES FURNISHED: Walter H. Dornbusch, D.V.M. 1117 Malabar Road, Northeast Palm Bay, Florida 32907 Robert H. Hosay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sherry Landrum, Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint issued October 2, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Falowski was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 5108. Dr. Falowski was first certified in Florida to practice chiropractic medicine in 1986. Dr. Falowski also is certified to administer propriety drugs. At the times material to this proceeding, Dr. Falowski did business as Rainbow Rehabilitation, and his address of record was 4201 North State Road 7, Lauderdale Lakes, Florida 33319. On or about August 25, 2997, Dr. Falowski submitted an application for acupuncture certification to the Department. He paid a fee and was certified to take the acupuncture certification examination. His application reflects that he completed 105 hours of acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in November 1997, but he did not pass the examination. On or about April 15, 1998, Dr. Falowski submitted a second application for acupuncture certification to the Department. He paid a fee and was again certified to take the acupuncture certification examination. His application reflects that he completed acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in May 1998 and attained a passing score. On or about July 7, 1998, the Department mailed an Examination Grade Report to Dr. Falowski, advising him that he had passed the chiropractic certification examination for acupuncture. A Request for Registration Form for the Board of Chiropractic Medicine was included with the Examination Grade Report, and the instructions stated that the form and a check or money order must be returned to the Department within 45 days. The form listed a $100.00 fee for the Chiropractic Acupuncture Certification. There is nothing in the records of the Department indicating that it received the Request for Registration Form or check in the amount of $100.00 from Dr. Falowski, nor do the records reflect that Dr. Falowski has been issued an acupuncture certification.4 On or about December 28, 2005, writing was observed on the window of the Rainbow Rehabilitation office which stated: WE DO PHYSICALS & BLOOD WORK LICENSED ACUPUNCTURE EKG No acupuncture license number was listed on the window. Dr. Falowski intended to perform acupuncture treatments for any member of the public who requested these treatments at Rainbow Rehabilitation.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order Finding that Francis J. Falowski, D.C., offered to practice acupuncture when he was not certified to do so, in violation of Section 460.413(1)(t); Imposing an administrative fine against Dr. Falowski in the amount of $5,000.00; and Placing Dr. Falowski on probation for a period of two years, under such terms and conditions as the Board deems appropriate. DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 20th day of March, 2008.
The Issue The issue is whether Respondent is guilty of failing to conform to the minimal standards of acceptable and prevailing nursing practice by testing positive for cannabinoids in a pre-employment drug screen, in violation of Section 464.018(1)(h), Florida Statutes, and, if so, what penalty Respondent should receive.
Findings Of Fact At all material times, Respondent has been licensed as a practical nurse, holding license number PN 0892481. Respondent has practiced 18 years as a licensed practical nurse without prior discipline. Respondent's license is active, although she is not currently employed as a nurse due to what appears to be a serious case of diabetes, which has necessitated the amputation of part of one of her legs. In August 1995, Respondent applied for a nursing job with The Pines of Sarasota. She was hired on August 24, 1995, and her first day of work was August 30, which was an orientation program that took place on a Wednesday. Respondent was hired to work 16 hours a week, consisting of weekends only. Her first regular day of work was September 2, 1995, which was a Saturday. Respondent reported to work that day and worked her regular shift. Respondent was dissatisfied with the working conditions. She complained that all of the other staff took off for a break and left her alone on the unit. It is unclear if Respondent worked, or was supposed to work, on September 3. However, she was due to work on September 9, but she did not show or call in. On September 11, Respondent mailed a short letter of resignation. The evidence is clear that The Pines required that Respondent take and pass a urine test for drugs. The evidence is vague and conflicting as to when Respondent took this test. Testifying by telephone due to a problem with the service of a witness subpoena, a technical director of the laboratory that conducted the urinalysis offered the only direct testimony on Petitioner's behalf concerning the urinalysis. Respondent offered the only direct testimony on her behalf concerning this matter. Petitioner's witness testified that the urine sample was collected on Wednesday, August 30, and analyzed the next day. However, he was not the person who collected the sample; he supervised technicians who did the actual work. Respondent testified that she went to the laboratory and gave the urine sample on Wednesday, September 6. Respondent's ability to cross examine Petitioner's witness from the laboratory was impeded by his presence by telephone, as was the strength of his testimony. He testified from some documents that counsel did not appear to have available to them. Petitioner was unable to authenticate and introduce into evidence various documents present at the hearing and purportedly involving the subject drug test. There are some unresolved issues concerning the urine test. First, no one at the laboratory checked any photo identification of Respondent prior to taking the sample or gave her a copy of the laboratory documentation. These omissions raise the possibility of confusion in identification of the subject and the test results. Second, the laboratory did not appear to report the results to Respondent or promptly to The Pines. The Pines and Respondent litigated an unemployment compensation case in November 1995, but no one mentioned the failed drug test. The Pines filed a complaint with Petitioner, which led to the investigation that led to this case, in January 1996. The apparent failure of the laboratory to notify promptly The Pines and Respondent of the positive results undermines the credibility of their handling of the sample and test results and effectively prevented Respondent from obtaining a retest of the sample or, if practical, a second test. It is more likely than not that Respondent had consumed marijuana and thus failed the urine test. However, for the reasons already stated above, Petitioner has failed to prove these material facts by clear and convincing evidence.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the administrative complaint. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Craig A. McCarthy General Counsel's Office Medical Quality Assurance Allied Health Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Cathy L. Lucrezi Cathy L. Lucrezi, P.A. 2256 Heitman Street Fort Myers, Florida 33901 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the examination, its administration, or its grading were arbitrary or capricious.
Findings Of Fact Su-Jung Shiuey sat for the acupuncture licensure examination on July 18 through 20, 1986, in Orlando, Florida. The examination included a requirement for candidates to demonstrate practical clinical skills including sanitation, needling technique, and point location. A passing score of 70 on the clinical practical portion of the examination is required of candidates. Su-Jung Shiuey failed to locate four points in the point location portion of the examination. See Respondent's exhibits 3 and 4. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Su-Jung Shiuey failed to demonstrate proper needling techniques. See Respondent's exhibits 2 and 3. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Each of the examiners was a licensed acupuncturist in Florida. Each of the examiners worked with a co-examiner, and all examiners are required to score candidates independently. Each of the examiners' grade sheets for these two portions of the examination made the same findings and similar observations. Su-Jung Shiuey received 66 points on the clinical practical portion of the examination and was denied licensure. Su-Jung Shiuey presented no independent testimony or evidence to discredit the qualifications of Respondent's witnesses or evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Dr. Su-Jung Shiuey's request for increased score, or reexamination without fee, should be DENIED. DONE AND ORDERED this 9th day of January, 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1987. COPIES FURNISHED: Dr. Su-Jung Shiuey (Petitioner's husband) 331 Bloomfield Avenue Nutley, New Jersey 07110 Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
