The Issue Whether Petitioner's licensure examination challenge should be sustained.
Findings Of Fact Petitioner is a dentist who seeks licensure to practice dentistry in the State of Florida and who was a candidate for the dental examination administered by Respondent in December 1990. Each candidate for licensure is given three opportunities to present a patient who presents certain minimal periodontal problems upon whom the candidate can demonstrate his or her proficiency in periodontics. Rule 21G- 2.013, Florida Administrative Code, provides, in pertinent part, as follows: (2)(b) ... It is the applicant's responsibil- ity to provide a patient who is at least 18 years of age and whose medical history permits dental treatment. In order that the examination may be conducted in an efficient and orderly manner, an applicant will be allowed no more than three attempts to qualify a patient during the specified check-in period for each procedure requiring a patient. The candidate is required to select five teeth that meet certain criteria from the candidate's first patient. Rule 21G-2.013, Florida Administrative Code, provides those criteria, in pertinent part, as follows: (4) The grading of the clinical portion of the dental examination shall be based on the following criteria: * * * (b) Periodontal exercise on a patient with a minimum of 5 teeth, none of which shall have a full crown restoration, all of which shall have pockets at least 4 mm. in depth with obvious sub-gingival calculus detectable by visual or tactile means and radiographic evidence of osseous destruction; at least one tooth shall be a multi-rooted molar which shall be in proximal contact with at least one other tooth; none of the 5 teeth shall be primary teeth. All calculus appearing on radiographs must be detectable by visual or tactile means. The patient is thereafter examined by two examiners who are dentists to determine whether each selected tooth meets the criteria. If the examiners determine that one or more of the teeth selected do not meet the criteria, the candidate has a second opportunity and may select additional teeth from patient one, or the candidate may present patient two and select five teeth from the new patient. If the examiners determine that one or more of the teeth selected on his second opportunity do not meet the criteria, the candidate has a third opportunity and may select additional teeth from patient two, or the candidate may present patient three and select five teeth from that third patient. If the examiners determine that one or more of the teeth selected on his third opportunity do not meet the criteria, the candidate receives, pursuant to Rule 21G-2.013(4)(b), Florida Administrative Code, a score of zero on the periodontics portion of the examination. For her first opportunity, Petitioner presented Patient #1 and selected teeth 13, 14, 19, 20, and 21. Examiners 187 and 054 examined the five teeth selected by Petitioner and rejected teeth 13, 20, and 21. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Patient #1 had been used by Petitioner during the June 1990 administration of the examination. The five teeth selected from Patient #1 in the June 1990 examination had been accepted, but the teeth that had been accepted did not include teeth 13, 20, or 21. For her second opportunity, Petitioner presented Patient #2 and selected teeth 19, 20, 21, 22, and 23. Examiners 176 and 080 examined these five teeth and rejected teeth 19, 20, and 23. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. For her third opportunity, Petitioner again used Patient #2, but substituted teeth 3, 29, and 30 for the teeth that had been rejected in opportunity two, so that the selected teeth were 3, 21, 22, 29, and 30. Examiners 162 and 195 rejected teeth 3, 29, and 30. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Petitioner thereafter received a zero on the periodontal portion of the examination, which greatly contributed to her failing the examination. Petitioner received a final grade of 2.51 on the examination. She needed a score of 3.00 to pass the examination. Each of the examiners who are used by Respondent in the administration of the dental examinations is a dentist who has been licensed in the State of Florida for a minimum of five years. Prior to the examination, the examiners undergo a day long standardization session during which the criteria to be applied and the proper method of application are taught. These dentists who serve as examiners examine the patient and the selected teeth from that patient independently of one another. Neither examiner knows the results of the examination performed by the other examiner and neither examiner knows the candidate who brought that patient to the examination. The purpose of the preliminary examination is to determine whether the teeth selected by the candidate meet the criteria established by Rule 21G- 2.013(4)(b), Florida Administrative Code. The form used by the examiners does not require that the reason for the rejection of a tooth to be stated. If both examiners reject a particular tooth, that tooth cannot be used by the candidate. Petitioner failed to present evidence upon which it can be concluded that the teeth she presented from the two patients she brought to the examination met the criteria for examination found in Rule 21G-2.013(4)(b), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenge to the dental examination. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of August, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3086 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in the first numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are adopted in material part by the Recommended Order. The proposed findings of fact in the second numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are rejected as being unnecessary to the conclusions reached. The greater weight of the evidence was that the statistics cited by this paragraph were not designed to measure the professional qualifications of an examiner or how he or she grades a particular criteria. Therefore, these statistics do not support Petitioner's contention that the teeth she selected were arbitrarily or capriciously rejected. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact in paragraphs 1-5 are adopted in material part by the Recommended. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vytas J. Urba, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Beatriz Jacobo 175 Fort Wilkinson Road Milledgeville, Georgia 31061
The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.
Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a 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 and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. 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 by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.
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 Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998.
The Issue The issue for consideration in this case is whether Petitioner should be awarded a passing grade on the clinical portion of the dental licensing examination given on December 12 through 14, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is a graduate of the University of Florida School of Dentistry and was eligible to sit for the examination for licensure as a dentist in Florida. Petitioner previously has taken and passed the written portion of the dental examination. He has taken the clinical portion of the examination twice and has received a failing grade each time. He is eligible to take the clinical portion alone for a third time, but must do so within a period of 13 months of taking it the second time or must take both the written and oral portions again. Dr. Scheutz first took the examination in June 1996. He received a passing grade in each of those examination portions which dealt with Florida laws and rules and with oral diagnosis. However, he received a grade of 2.31 on the clinical examination portion of the examination, and a passing grade was 3.0. Thereafter, in December 1996 he again took the clinical portion and this time received a grade of 2.71, still below the 3.0 passing grade. Dr. Theodor Simkin is a licensed dentist and consultant to the Board of Dentistry, who has been in the private practice of dentistry since 1950 and in Florida since 1975. He has been involved in the development, administration, and grading of the dental examination in Florida since 1979 and was a supervisor for the December 1996 examination. He is familiar with the standards applied in the clinical portion of the examination and how the examination is given and graded. Petitioner has challenged the grade he received on five separate procedures he performed during the December 1996 examination. The procedures chosen for accomplishment during the examination are not unusual procedures, but are common problems seen on a routine basis by a practicing dentist. Dr. Simkin reviewed the mannequin on which Petitioner did his work and which he presented to the examiners for grading. One of the grades challenged related to a "composite restoration" (Clinical D) for which Petitioner received a grade of 0. In this procedure the candidate is presented with a tooth on a mannequin. The candidate is instructed to cut off a corner of the tooth and then restore that corner with an amalgam restoration. The examiners are not present when the procedure is accomplished, but grade the procedure after completion. Instruction on the procedure is given to the candidate by a monitor who is present in the room but who does not grade the work done. The examination process is accomplished using the candidate number, not the candidate name, so that examiners do not know whose work at which they are looking. Once the procedure is done by the candidate, the mold is packed in the candidate's presence and is then held in the custody of the Board of Dentistry until examined independently by each of three examiners. Once graded, it is then shipped to Tallahassee and kept in a vault until needed, as here, for review by Dr. Simkin and others. Ordinarily, even if dropped, a model will not break. In the instant case, Petitioner performed the procedure on an upper right central incisor. The right corner of the tooth, approximately one-third of the tooth, was cut off and the candidate was instructed to rebuild it with a composite material. When the examiners evaluated Petitioner's work, they found that the filling was not bonded to the tooth and was loose. The loose restoration would be useless to the patient, whereas a properly done restoration should last for at least several years. On a human, the stresses applied to a tooth repair are significant, and the repair must be sufficient to withstand them. Notwithstanding Petitioner's claim that the tooth used was an artificial tooth to which the filling material does not easily bond, Dr. Simkin asserts that the bonding which occurs with a plastic tooth is different from that which occurs in a real tooth but the material can bond to the plastic tooth. He knows of no other complaints by other candidates at this examination of not being able to complete the restoration because the materials would not bond. Petitioner admits that when he did the procedure during the June 1996 examination, the tooth bonded correctly. In light of all the evidence regarding this point, it is found that Petitioner's claim is without merit. Petitioner also challenges his score of 2.0 received for his work on an "amalgam cavity preparation" (Clinical B). This composite score was based on a 2.0 awarded by each of the three examiners. An amalgam preparation is what is done to the tooth to get it ready for filling. In this case, an actual patient, supplied by the examines, had a cavity which was reviewed by the examiners. Once the patient was accepted by the examiners, the candidate then cleaned out the cavity and got it ready for filling. Dr. Simkin's review of the documentation prepared in regard to this candidate's performance of this procedure, in his opinion, supports the grades given by the examiners. Here, Petitioner sent the examiners a note as to what he proposed to do with his patient. Petitioner sought to deviate from a normal preparation due to the location of the caries, and the monitor agreed, as did the examiners. Thereafter, the candidate did the procedure. All three examiners graded his work against his proposal and gave him a failing grade. The examiners determined that his work on this patient merited only a grade of 2.0 because, according to two examiners, the margin of the filling was not separated from the next tooth as required. As to the "posterior endodonture procedure" (Clinical M), Petitioner received an overall score of 1.3. In this procedure, the candidate is required to bring in an extracted tooth which is mounted in an acrylic block. The candidate is to remove the nerve and diseased tissue, clean the cavity, file it, fill the canals, and seal the tooth. This is known as a root canal. In grading a candidate's work, the examiners look to see that the canal is properly cleaned out, is filled properly and sealed with a surface that is slightly shorter than the apex (highest point) of the tooth. On the x-ray taken of Petitioner's sample, it is obvious, according to Dr. Simkin, that one canal is at or short of the apex, but the other is long, and this is considered unacceptable treatment. Even Petitioner agrees. Petitioner received grades of 3.0, 2.0 and 1.0 for an overall failing grade of 2.0 on the "prep. cast restoration" (Clinical F). In this instance, the procedure called for the candidate to install a gold onlay. Normally the surface to which the onlay is to be placed is reduced slightly below the abutting face. Here, though one side was acceptable, Petitioner reduced too much on the other side without reason. Petitioner claims, however, that only one of the three examiners indicated excessive reduction. That determination calls for a very subjective opinion. He cannot understand how the propriety of reduction can be determined without looking into the mouth of a patient. However, Petitioner has presented no evidence in support of his opinion. The fifth challenge relates to the grade Petitioner received in the "pin amalgam pre. procedure" (Clinical G). This involves a situation where one cusp has been removed, and in order to hold a restoration, Repin must be placed in the solid portion of the tooth. The examiners determined that Petitioner's occlusal was too shallow at 1 mm, when it should have gone down 1~ to 2 mm. This, the examiners considered, would not give enough strength to hold the amalgam properly without risk of fracture. Dr. Simkins is of the opinion that Petitioner was subjected to a standardized test which was graded fairly. It would so appear and Petitioner introduced no evidence to the contrary. Ms. Carnes, a psychometrician and an expert in testing and test development who trains examiners to ensure they are consistent in their evaluations, agrees with Dr. Simkins' appraisal. The Department of Business and Professional Regulation tries to insure through its standardization efforts that the approach to grading of each examiner is consistent and that all examiners are grading with the same set of criteria. This was done in preparation for the December 1996 dental examination and a check done after the examination showed it was graded this way. Petitioner cites by way of explanation, if not excuse, that during his senior year in dental school, he was badly injured in an automobile accident and required stitches and several weeks of physical therapy for, among other injuries, a herniated disc. When he recovered sufficiently, he finished his course work and sat for the dental examination in June 1996, passing two of three sections, but not the clinical portion. Dr. Scheutz took the clinical portion of the examination again in December 1996 and again failed to earn a passing score. In his opinion, his knowledge has improved over time, but his procedural skills have diminished over the months due to his injuries. He contends he has work in dentistry he can do which will make accommodations for his physical condition, but does not believe he should have to wait another six months to take the examination again, especially since he would have to again take the entire examination, including those portions he has already passed since at that time more than 13 months from his last examination would have passed. Petitioner contends the clinical testing portion of the examination is too subjective to be valid. He wants to close this chapter in his life, but does not want to deal any more with the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a Final Order denying Petitioner's challenge and sustaining the award of a failing grade on the clinical portion of the dental examination taken by the Petitioner on December 12 through 14, 1996. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Dr. Eric J. Scheutz, pro se 332 Whispering Oaks Court Sarasota, Florida 34232 Karel Baarelag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906-0127 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0004795. At all times material hereto, Respondent maintained two offices for the practice of dentistry, one where he practices privately in Bay Harbor Islands and one in North Miami Beach which is also known as R & E Dental Offices or as North Dade Dental Office. Case Number 83-3976 Beatrice Gershenson On April 19, 1980, Beatrice Gershenson, in response to a newspaper advertisement, came to R & E Dental Offices complaining that her lower denture made years earlier was uncomfortable and in need of replacement. Respondent examined Gershenson on that visit and advised her that she would need to have both her upper and lower dentures replaced. During that consultation, Respondent and Gershenson agreed upon a fee of $410 for a full set of dentures. Respondent did not provide any treatment to Gershenson during her first visit. Gershenson returned to R & E Dental Offices several times during April and May 1980, during which visits she received a full set of dentures and several subsequent adjustments to those dentures. Although Gershenson's checks were made payable to Respondent, Respondent provided no treatment to her; rather, all dental services were provided to Gershenson by other employees of R & E Dental Offices. Gershenson did not see Respondent following the initial consultation until her last visit to R & E Dental Offices. At that time, Gershenson complained to him about her dentures. She advised Respondent that her dentures were flopping and that she was biting the back of her jaw. Respondent did not examine her at that time. Based upon her complaints, however, he suggested that she be provided a reline and that she use a denture cream. Gershenson refused to have a reline, became upset about having to use a denture cream, and left. On July 16, 1981, Gershenson and her dentures were examined by Dr. Leonard M. Sakrais, a dental expert retained by Petitioner. Between her last visit to R & E Dental Offices and her examination by Dr. Sakrais, Gershenson's dentures were not altered. The three deficiencies in Gershenson's dentures noted by Sakrais became the specific allegations in the Administrative Complaint filed against Respondent. Sakrais noted that the dentures exhibited open occlusion on the right side, the lower anterior teeth were set forward of the ridge making the lower denture unstable, and the upper denture was short in the tuberosity region and therefore had no retention. However, Sakrais recognized that lower dentures are typically unstable, that Gershenson's small knife-edged lower ridge made her a difficult patient to fit, and that the dentures could have very easily been made serviceable. One of the ways in which the defects could be remedied, accordingly to Sakrais, was for the denture to be relined. If a patient refuses to have a denture relined, however, there is nothing a dentist can do further. Gershenson continued to wear the dentures obtained at R & E Dental Offices without adjustment after the examination by Sakrais until she commenced treatment in June 1983 with Dr. Alan B. Friedel. She made no complaints to Friedel regarding the upper denture and only complained about the looseness of the lower denture. Friedel adjusted her lower denture and recommended that it be relined and that she use a denture cream. Friedel noted no problems with the upper denture and attributed the problems with Gershenson's lower denture to the shape and deterioration of her lower ridge. When Dr. Neil Scott Meyers examined Gershenson on August 3, 1984, after Friedel's treatment had been completed, Gershenson complained to him that her upper denture fit so well that she had trouble removing it. Meyers found no defects in Gershenson's dentures, as modified by Dr. Friedel, and also noted the difficulty in fitting a lower denture for a patient with a small sharp lower ridge like Gershenson's. Gershenson voluntarily terminated treatment with R & E Dental Offices without requesting a refund and without requesting that the dental work be redone. Rather, she refused Respondent's offer to reline her dentures. Case Number 84-0349 Barbara Schmidt On November 4, 1980, Barbara Schmidt came to R & E Dental Offices in response to an advertisement. Schmidt complained that an improper bite was causing loss of her natural teeth and advised Respondent that her previous dentists had recommended that she have her teeth capped and bite opened. Schmidt brought with her to that consultation X rays and study models, a lot of advice from previous dentists who had treated her, and her attorney-husband who drilled Respondent on his plan for treatment of Schmidt. During Respondent's examination of Schmidt, he noted that she suffered from an extreme loss of vertical dimension. Her teeth were very worn, and there was little enamel left on her anterior teeth. The agreed upon treatment plan for Schmidt involved a full mouth reconstruction, consisting of 15 lower crowns and 8 upper crowns. On November 4 and 11, 1980, Respondent prepared Schmidt's lower right side and lower left side and provided her with temporaries. Respondent made no attempt to increase her vertical dimension with the first set of temporaries. On November 25, 1980, Respondent took a second bite impression and made a second set of temporaries which increased Schmidt's bite by 2 millimeters. He noted that he was having trouble getting Schmidt's jaws into centric position for taking a second impression because her jaw muscles were too tense. During Schmidt's appointments on December 16 and 23, 1980, Respondent tried-in the lower metal framework, checked the margins, looked for blanching of the tissue, determined that the lower frame was acceptable and ready to be finished, and took a third bite impression due to the difficulty in getting the same registration each time that Schmidt's bite was registered. During Schmidt's January 13, 1981, appointment, Respondent began work on her upper teeth. Schmidt was placed in temporaries. When the upper metal work was tried-in on February 3, 1981, Respondent determined that the fit was correct. On February 10, 1981, Respondent inserted Schmidt's upper crowns using temporary bond and made a notation in Schmidt's records that her bridges should be removed every six months. On February 17, 1981, Respondent removed one of Schmidt's bridges, made new temporaries, and returned Schmidt's crowns and bridgework to the laboratory for rearticulation in order that the bite, with which Respondent was not satisfied, could be corrected. On this date Schmidt was in her third set of temporaries and was clearly in an unfinished stage. On February 18 and 24, 1981, Schmidt was seen by Dr. Wayne Dubin, another dentist in the same office. Schmidt's dental records indicate that on the former date Dubin re-cemented Schmidt's temporary crowns, and on the latter date he cemented with temporary bond the permanent crowns that Respondent had returned to the laboratory on February 17. On March 3, 1981, Respondent repaired Schmidt's lower right bridge, and on March 10 he cemented that bridge back into Schmidt's mouth with temporary bond. On March 17, 1981, Respondent removed one of Schmidt's bridges and returned it to the laboratory so that porcelain could be added. This was the last occasion on which he rendered treatment to Schmidt. On March 24, Schmidt was seen by Dr. Dubin at the request of Respondent. In the presence of Schmidt, Respondent requested Dubin to take over the case because Respondent was still unable to correct Schmidt's bite. Respondent told Dubin to do whatever he thought was necessary. On March 24, 1981, Dubin removed Schmidt's crowns and bridges and took a bite impression without the crowns and bridges in place in order to correct the bite problem in a different way than Respondent had previously tried. On April 7, 1981, Dubin placed Schmidt's bridges in her mouth using temporary cement. He advised her that on her next visit he would take a new set of X rays, presumably to start over again if necessary. Although Dubin was at that time Schmidt's treating dentist, she sought advice from the lady employed as the office manager at R & E Dental Offices. The two women decided that rather than having Schmidt continue with Dubin, she should see Dr. Lawrence Engel the "E" of R & E Dental Offices. On the following day Engel saw Schmidt for an occlusal adjustment. During the examination, Schmidt's jaw muscles went into spasm, and she was unable to make the appropriate movements so that Engel could make the appropriate adjustments. Engel suggested to Schmidt that she go home, practice moving her jaw in front of a mirror in the privacy of her home, and then return so that he could complete her adjustment. Schmidt returned to Engel approximately one week later and brought her husband with her. While Mr. Schmidt engaged in a tirade and Dr. Engel engaged in adjusting Mrs. Schmidt's bite, there was a power failure in North Miami Beach. The Schmidts were given their choice of waiting until electrical power resumed or leaving and coming back at another time. After advising the office manager that they would return and that would also complete paying the agreed upon fee for dental services, the Schmidts left. They did not, however, return, and they did not, however, complete paying their bill. Instead, on May 18, 1981, Mrs. Schmidt picked up her records, X rays, and study models. She did not speak with Respondent about her voluntary termination of treatment, about a refund of the monies paid for treatment, or about her dental work being completed or redone. Schmidt was not released from treatment by any dentist at R & E Dental Offices. When Schmidt released herself from treatment, none of the three dentists who had treated her had indicated that her case was completed or close to completion. Rather, more temporaries were being made, her crowns and bridgework were being returned to the laboratory, new X rays were being ordered, and one dentist was in the middle of an adjustment when the electrical power failed. Moreover, the dental work made for her had been cemented with temporary bond, and no one had indicated that permanent cementing was likely at any time soon. The only discussion which had occurred regarding the use of permanent cement occurred with Respondent when he explained to her that sometimes sensitive areas are alleviated when permanent cementing takes place. That discussion took place prior to the time that Respondent referred Schmidt to Dr. Dubin with instructions to do whatever Dubin thought necessary. During the time that Respondent was treating Barbara Schmidt, she was seeing other dentists for the purpose of having them monitor Respondent's work. Since neither Schmidt nor her monitoring dentists advised Respondent that he was being monitored, the only information available to those dentists was that provided to them by Barbara Schmidt. They, therefore, did not have the benefit of Respondent's input into their opinions, and Respondent likewise was not given the benefit of their input into his decisions. In addition to seeing a Dr. Coulton and a Dr. Souviron, Schmidt consulted twice with Dr. Alvin Lawrence Philipson, a dentist having some business dealings with Mr. Schmidt. Schmidt saw Dr. Philipson for Use first time on February 11, the day after her permanent lowers were inserted with temporary cement. Six days later Respondent removed Schmidt's lower left bridge and sent it back to the lab to be remade in order to correct the bite and alleviate an area causing sensitivity. When Philipson next saw her in March of 1981 he was of the opinion that Respondent had provided treatment which failed to meet minimum standards. That opinion, however, was based upon the information given to him by the Schmidts that Respondent was finished with the case and ready to permanently cement all bridgework. At the time that he rendered his opinion, Philipson did not know that Schmidt was about to be referred by Respondent to another dentist, i.e., Dr. Dubin for that doctor to do whatever he thought was necessary in order to help Mrs. Schmidt. After Schmidt discharged herself from the care of the dentists at R & E Dental Offices, she continued to wear the crowns and bridgework in their temporized state without treatment from April 8, 1981 (the day of the power failure) until July 7, 1982 when she sought dental treatment from Dr. Donald Lintzenich. By this time she had also developed periodontal problems, most likely as a result of neglect. Schmidt began treating with Tintzenich in July of 1982, and Lintzenich also referred her to other specialists for necessary treatment such as root canals and periodontal treatment. Although many changes were made to the crowns and bridgework Schmidt received from R & E Dental Offices by Lintzenich and the other dentists to whom he referred her, during the first four months that he treated Schmidt Lintzenich left the crowns and bridgework from R & E Dental Offices in Schmidt's mouth. Although Lintzenich began treatment of Schmidt in July 1982, he was still treating her at the time of the Final Hearing in the cause and was, at that point, considering redoing work he had placed in her mouth. The numerous experts in dentistry presented by both Petitioner and Respondent agree that Barbara Schmidt's is an extremely difficult reconstruction case and that a quite extended period of time is necessary for the correction of her dental problems. Further the experts agree on nothing. Each of Petitioner's experts disagrees with almost everything stated by the remainder of Petitioner's experts. For example, Philipson recommends increasing Schmidt's bite; Glatstein believes that Schmidt's bite needs to be reduced; and Lintzenich opines that any attempt to change the vertical dimension would constitute treatment below the minimum acceptable standard. Some of Petitioner's experts believe that Schmidt's periodontal problems existed before she sought treatment by Respondent, and some of them believe that her periodontal problems commenced after she had terminated treatment with Respondent. Although most of Petitioner's experts agreed that Respondent's work fell below minimum standards, they also admit their opinions would be different if they had known that Respondent had not completed his work on Schmidt and had not discharged her but rather had referred her to another dentist with instructions to do whatever was necessary. Only Dr. Glatstein maintained that Respondent's work was substandard at any rate, an opinion he confers on Lintzenich's work, too. The Administrative Complaint filed herein charges that Respondent's treatment of Schmidt failed in the following "specifics": the work has no centric occlusion; the bite is totally unacceptable and if not corrected will cause irreversible damage to the temperomandibular joint; and the contour of the teeth and embrasure space for the soft tissues were unacceptable and ultimately will result in periodontal breakdown. All of the experts who testified agree that Barbara Schmidt's bite is/was not correct. She initially sought treatment because her bite was not correct and is still undergoing treatment because her bite is not correct. There is no consensus on any of the other charges in the Administrative Complaint; in fact, there is no consensus as to the meaning of some of the words' used. For example, some dentists believe that the term "contour of the teeth" encompasses open margins while others believe that an open margin is the space between the tooth and the crown. Few dentists, however, believe that an Administrative Complaint which states that the contour of teeth is unacceptable advises a licensee that he is charged with defective work because of open margins. Even if open margins were part of the term "contour of the teeth," the Administrative Complaint fails to notify anyone that the open margins are the part of the contour that is alleged to be defective or even which teeth are involved. There is no basis for choosing the opinion of one expert in this case over the other experts who testified herein. Further, many of the opinions are based upon information that was either erroneous or false, such as the information that Respondent had completed treatment and discharged Schmidt.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaints filed herein and dismissing them with prejudice. DONE and RECOMMENDED this 20th day of May, 1985, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1985. COPIES FURNISHED: Julie Gallagher Attorney at Law Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Kern, Esquire 1143 East Jersey Street Elizabeth, New Jersey 07201 Algis Augustine, Esquire 407 South Dearborn Street Suite 1300 Chicago, Illinois 60605 Stephen I. Mechanic, Esquire Allan M. Glaser, Esquire Post Office Box 398479 Miami Beach, Florida 33139 Ronald P. Glantz, Esquire 201 S.E. 14th Street Fort Lauderdale, Florida 33316 Steven Rindley, D.D.S. 251 NE 167th Street North Miami Beach, Florida 33162 Steven Rindley, D.D.S. 1160 Kane Concourse Bay Harbor Islands, Florida 33154 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners 207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her reliance upon visual caries-detection preclude a finding of caries in this patient. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.
Recommendation It is RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License Examination and determining that he has passed this part of the dental examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
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.
