The Issue The issue in this case is whether Respondent is guilty of violating Section 460.413(1)(n), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of one patient.
Findings Of Fact Respondent is a chiropractor licensed to practice in the State of Florida pursuant to license number CH 0003164. D. B. first visited Respondent on July 10, 1987. She was 36 years old and complained of depression, headaches, numbness, allergies, dizziness, low back pain, neck pain or stiffness, pain between the shoulders, pain or numbness in the shoulders and hands, pain over the heart, itching, frequent urination, earache. The inception of the back and neck pain and headaches, as well as nausea, dated back to an accident almost two years earlier, which followed another accident about a year earlier. Driving, exercise, and stress aggravated these conditions, which interfered with work, sleep, and daily routines. D. B., who was taking pain, muscle-relaxant, and anti-depressant medication, reported that she had not felt really good for almost two years. During the first visit, Respondent performed a neurological examination. He recorded his findings on D. B.'s chart. He also took x-rays and maintained the exposures among the patient's records. Respondent's diagnosis was that D. B. suffered from subluxation complexes. Respondent practices subluxation-based chiropractic, which is a well- recognized school within the profession. The primary purpose of the practice is to use chiropractic adjustment techniques to reduce the subluxation complex, which may consist of two or more misaligned vertebrae in the spine. The theory of subluxation practitioners is that the misalignment produces pressure on the spinal cord, which results in symptoms elsewhere in the body. As the treatment proceeds, the subluxation practitioner monitors the reduction of the complex and any attendant symptoms. However, his primary concern is achieving a biomechanical change in the spinal structure and not symptomatic complaints of the patient. For example, D. B. showed the symptom of a pelvic deficiency. A pelvic deficiency may manifest itself in a leg that, during clinical examination, is shortened or spongy. Using the Activator, Pierce, and Pierce-Stillwagon techniques, Respondent treated D. B. nine times during July, after the initial visit, then about four times per month through November, 1987, and about eight times thereafter with the final treatment taking place in October, 1988. Using abbreviations well-recognized among other subluxation practitioners, Respondent recorded the salient details of each office visit during the entire course of treatment. He noted the numeric value for the pelvic deficiency, as measured during each office visit. He recorded the nature and location of the adjustments that he performed upon D. B. during each visit. The chiropractic records justified the treatment that Respondent administered to D. B., whose symptoms alleviated under his care.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Chiropractic enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED 14th day of December, 1989, in Tallahassee, Florida. 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 14th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1502 Treatment Accorded Proposed Findings of Petitioner 1-2: adopted. 3: rejected as unsupported by the greater weight of the evidence. 4-5: rejected as subordinate. 6-7: rejected as unsupported by the greater weight of the evidence. 8: adopted in substance. and 11-16: rejected as subordinate. and 17-18: rejected as unsupported by the greater weight of the evidence. 19-21: rejected as recitation of testimony. Treatent Accorded Proposed Findings of Respondent 1 and 4-7: rejected as not finding of fact. 2-3: adopted. 8-9: rejected as subordinate. 10-15: adopted. 16-18: rejected as subordinate. 19-21: adopted in substance. 22-37: rejected as not finding of fact, recitation or testimony, and subordinate. COPIES FURNISHED: Patricia Guilford Executive Director Board of Chiropractic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cynthia Gelmine, Staff Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack R. Elliott Arfken & Elliott 100 Rialto Place, Suite 801 Melbourne, Florida 32901 =================================================================
Findings Of Fact Petitioner qualified for and took the Florida examination for licensure as an optician during the period July 23-25, 1982. He is a licensed optometrist in Louisiana and is currently serving as an optometrist in the United States Air Force. At this examination Petitioner passed all of the examination parts except for the section on Pharmacology in which he received an amended score of A score of 70 is passing. Petitioner contests five of the questions for which his answer sheet was found to be incorrect. These are questions Nos. 6, 13, 16, 24, and 26. During his testimony petitioner conceded his answers to Questions 6, 13, 24, and 26 were incorrect and were therefore correctly so graded on the examination. His sole case rests upon Question 16 and the correct answer thereto. Question 16 provides, with a choice of four answers: Topical hypersomatic solutions (hypertonic saline) are useful in: lubrication. corneal dehydration. C antibiosis. D reducing intraocular pressure. The correct answer is "B", and Respondent selected "D." During his cross-examination Petitioner acknowledged that "D" is an incorrect answer to Question 16. Petitioner testified he thought he had selected answer "C." Expert testimony was submitted that Question 16 is not artfully drafted because of the use of the word "useful." Had the words "in causing" or some other identifying verb been added, the meaning of the question would have been clearer. Since salt has the propensity of absorbing moisture, a saline solution is useful in removing excess fluid from the eye, i.e. corneal dehydration. Eighty-four percent of those who took this examination selected the correct answer to Question 16. Only six percent selected answer "D," the solution selected by Petitioner. One hundred three persons took this examination and 88 passed. When Petitioner's examination was initially graded he scored 64. Following his objections the questions were reviewed two times, with a final grade of 69 being awarded to Petitioner on the Pharmacology portion of the examination. The only answer to the four choices that comes close to describing the propensities of topical hypertonic solution is corneal dehydration. Examination questions are prepared by Respondent's staff and submitted to reviewers for comment prior to the examination being given. Subsequent to the examination, if questions concerning the accuracy of the questions and/or answers arise the examination is again reviewed and if either question or answer is found inappropriate the examinee is not marked off for such a wrong answer.
Findings Of Fact The Petitioner, Darall J. Moore, graduated from the Ohio College of Podiatric Medicine in 1983 with a D.P.M. degree. T. 10. The Petitioner took the podiatry examination in July 1986, and did not receive a passing grade. On October 1, 1986, the Petitioner conducted a review of his examination. He arrived at 8:30 a.m. and left the review session at 1:30 p.m. R. Ex. 1. The review was conducted pursuant to the procedures outlined in P. Ex. 1, a copy of which was provided to the Petitioner by the Respondent before the review took place. The purpose of the review was to give the Petitioner an opportunity to examine the answer key and the questions asked on the examination, and to note in writing (on challenge sheets provided) his objections to the grading of particular questions by number. The procedure for examination review also provided that: Candidates may not copy any material provided for the review. No reference materials or electronic recording or photographic equipment may be brought into the review. No material may be taken out of the review. All reviews are subject to Departmental security requirements in order to insure the integrity of the examination. The review session on October 1, 1986, was conducted in a small room. The room was used by other people as well, and during the review there were conversations of people, phones ringing, and people coming in and out. Nonetheless, there does not appear to be any direct evidence that these distractions substantially impaired the Petitioner's ability to review his examination. During the review, the Petitioner submitted challenges to 20 examination questions by number. R. Ex. 1. Each of these written challenges identifies the examination question by number and provides a space for comments concerning the challenge. The procedure for examination review and challenge provides in part that "[a]ll objections must be submitted within sixty (60) days from the date of your request for a review. Objections will be analyzed by a committee of the Board of Podiatry and you will be notified of any decision." P. Ex. 1. (E.S. in original.) Before the review took place, the Petitioner was informed that he had a right "to appeal" from the "results" of his examination review. The "appeal" was to be initiated within thirty (30) days of his "receipt of . . . examination review results." The "appeal" was to contain specific reasons for the challenge, including why the Petitioner was "appealing," "what actions of the examiner(s) were unfair, and any objections made at your review." P. Ex. 1. (E.S. in original.) The Petitioner timely requested a formal administrative hearing. At the formal administrative hearing, the Petitioner presented evidence concerning five examination questions. T. 30. None of this evidence was by expert testimony, but the Petitioner referred to expert treatises in the field. The first question was to state the nerve located around the neck of head of the fibula. T. 30. Petitioner contends that his answer to the question, the common peroneal, is correct. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The second question challenged at the hearing by the Petitioner was "what dorsal cutaneous nerve communicates with the sural nerve." T. 44, 45. The Petitioner contends that the correct answer to this question, his answer, is the lateral dorsal cutaneous nerve. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The third question challenged by the Petitioner at the hearing was "what is the largest reservoir of blood in the body." T. 46. The Petitioner contends that his answer, the veins, is the correct answer. T. 47. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fourth question challenged by the Petitioner at the hearing was what is the characteristic of metatarsus adductus. T. 48. The Petitioner contends that his answer, "styloid process, prominent styloid process, based on the concave in the concavity being reversed," is the correct answer. T. 49. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fifth question challenged by the Petitioner at the hearing was never clearly stated by the Petitioner, but concerned "pathopneumonic of gouty arthritis." T. 49. The Petitioner never clearly identified the answer that he gave, but contended that his answer was partially right and that there was no other answer that he could have chosen. T. 49-50. It appears that this question was discussed and objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2, question 88. However, since the Petitioner never clearly demonstrated what the question was, or what the answer was, the testimony of the Petitioner was too unclear for there to be a finding that the answer he gave to the question was correct. The Petitioner admitted that during the review session (see R. Ex. 2) he did not provide the Respondent with all of the questions to which he had objections. T. 38. The Petitioner did not provide the Respondent with written objections to the first four questions discussed above within sixty (60) days of the review, and indeed, did not provide any such notice to the Respondent until the formal administrative hearing began. There is no evidence that the Petitioner would have passed the examination if the Respondent accepted his answer to the fifth question. The Petitioner testified that his ability to prepare for this hearing was impaired because he was not allowed to take anything into the review session and was not permitted to take anything out of the review session. He states that he could not adequately prepare for the hearing because he did not have references during the review session, and did not have a copy of the questions objected to in the review session or a copy of the examination for use at the hearing. The Petitioner represented himself without representation of a lawyer. There is no evidence that the Petitioner knew about the procedures for conducting discovery prior to a formal administrative hearing, and there is no evidence that prior to the hearing he sought any discovery of the written objections he made during the review session or of the examination questions.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Podiatry, enter its final order finding that the Petitioner, Darall Jerome Moore, has not proven by a preponderance of the evidence that his 1986 examination for licensure as a Podiatrist was improperly graded, that the procedures for review of his examination were unfair, or that he should be given a passing grade on the 1986 examination. DONE and ENTERED this 10th day of July, 1987. WILLIAM C. SHERRILL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 87-1725 The following are rulings upon findings of fact proposed by the parties, by number, which have been rejected. Findings of fact proposed by the Petitioner: 1. The record does not contain evidence (testimony or exhibits) to allow any conclusion as to the numerical grade received by the Petitioner. Thus, the finding proposed that the grade was 71.9 is rejected. There is insufficient evidence that the distractions during the review in fact substantially impaired the ability of the Petitioner to review the examination. The Petitioner did not testify that the noise or traffic caused him to be unable to concentrate or to fail to review the entire exam. See T. 28-29. The Petitioner completed twenty objections and left at 1:55 P.M., three hours before 5:00 P.M. The first sentence is rejected as not relevant. The Petitioner did not present any evidence to show how he was caused to be unable to prepare his case due to the scheduling of the hearing. It is officially recognized that the case was set for final hearing to commence August 10, 1987, by an order dated and entered May 1, 1987, and that the hearing date was changed to June 8, 1987, at the request of an attorney, Marc A. Tenney, received May 4, 1987. For these reasons, the second sentence is also rejected. Rejected for the reasons set forth in conclusions of law 2-4. The finding that it was very difficult to prepare for final hearing is rejected in finding of fact 19 and conclusion of law 6. Rejected in finding of fact 19 and conclusion of law 6. These findings are rejected in finding of fact 19 and conclusion of law 6. Rejected in findings of fact 11 through 14. Rejected in findings of fact 11 through 14. Findings of fact proposed by the Respondent: 2. The second sentence is rejected for lack of evidence in the record. COPIES FURNISHED: Marcelle Flanagan Executive Director Board of Podiatry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darall Jerome Moore, D.P.M. 5455 27th Street South, Apt. 87 St. Petersburg, Florida 33712 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Has Petitioner's challenge to the failing grade he received on the November 1988, chiropractic licensure examination been rendered moot by virtue of his having retaken and passed the examination? If not, should his challenge be sustained?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: The licensure examination administered by the Board of Chiropractic Examiners in November 1988, consisted of a written examination on Florida laws and rules and a practical examination. There were three parts to the practical examination: x-ray interpretation; technique; and physical diagnosis. To pass the practical examination, a candidate needed to receive a passing grade on each of the three separate parts of the examination. Mathesie passed the written examination on Florida laws and rules, as well as the x-ray interpretation and technique portions of the practical examination. He received a failing grade, however, on the physical diagnosis portion of the practical examination. The physical diagnosis portion of the practical examination is conducted orally. To facilitate review of this portion of the examination, it is videotaped. The videotape of the physical diagnosis portion of the practical examination in controversy in the instant case was played during the course of the hearing. Each candidate taking the physical diagnosis portion of the practical examination is asked a series of questions by two examiners who also independently grade the candidate's answers. The examiners are experienced chiropractors who have been licensed to practice chiropractic in the State of Florida for at least five years. First-time examiners receive three hours of training in testing and grading procedures and requirements. Examiners who have previously participated in the examination process are given a one or two hour refresher course. In questioning a candidate on the physical diagnosis portion of the practical examination, the examiners must cover at least four and no more than six of the following subject areas: case history; chiropractic examination; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; laboratory diagnosis; nutrition; differential diagnosis; and clinical judgment. In addition, they are directed to ask practical questions designed to test the candidate's ability to function competently as a beginning chiropractor. Within these parameters, the examiners are expected to use their professional judgment in selecting the particular questions to ask the candidate. Examiners are not provided with any specific questions that they are required to pose. The examiners are also expected to exercise their professional judgment in evaluating the candidate's answers to their questions. The grading of these answers therefore is a "subjective" process reflecting the examiners' opinions as to the quality of the candidate's answers. For each of the subject areas covered during the physical diagnosis portion of the practical examination, the candidate receives a separate grade from each of the two examiners conducting this portion of the examination. A 4 is the highest grade the candidate can receive from an examiner for a covered subject area. This grade is reserved for answers which reflect exceptional expertise in the subject area. A grade of 3 out of a possible 4 (or 75%) is to be given where no more than adequate expertise is demonstrated. Where the candidate's answers demonstrate expertise that is more than adequate but less than exceptional, a grade of 3.5 (or 87.5%) is to be given. Where the candidate, through his answers, displays inadequate expertise, depending on the extent of the inadequacy, either a grade of 2.5 (or 62.5%), 2.0 (or 50%), or 1.5 (or 37.5%), is to be awarded. The lowest possible score a candidate can receive from an examiner is a 1 (or 25%). This grade is warranted where the candidate's knowledge of the subject matter is so lacking as to present a danger to the public. The candidate's overall average score on the physical diagnosis portion of the practical examination is obtained by dividing the candidate's total number of grade points by two (representing the number of examiners) times the number of subject areas covered by the examiners. To pass this portion of the examination, the candidate's overall average score must be at least a 3 (or 75%). If the candidate fails to attain such a score and contends that the examiners unfairly or erroneously evaluated his performance, the videotape of this portion of the examination is reviewed by other chiropractic experts. Based on the recommendation of these experts, adjustments may be made to the candidate's score. Mathesie was tested on six subject areas on the physical diagnosis portion of the November 1988, examination: case history; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; and laboratory diagnosis. He received a failing overall average grade from the two examiners of a 2.75 (or 68.75%). Following expert review, adjustments were made which raised Mathesie's overall average grade to a 2.875 (or 71.875%). This was still less, however, than the 3 (or 75%) he needed to pass. Mathesie was awarded a 3 by both examiners for his answers pertaining to case history. Both examiners' grades were subsequently increased to a 3.5 after expert review. Mathesie was asked by the examiners "the basic headings and things that [he] would be interested in having in the case history." In responding to the question, Mathesie mentioned that he would do a "general survey of their whole body," but he failed to specify that he would inquire about urinary incontinence or genital problems, specific inquiries that are routinely made by chiropractors. In view of Mathesie's failure to specifically mention these matters, it cannot be said that it was arbitrary or unreasonable to score his answer on case history no higher than a 3.5. Both examiners gave Mathesie a 2.5 for his performance on the general physical examination segment of the test. Neither of their grades was raised following expert review. On this part of the examination, Mathesie was asked to list "the vital signs." He responded, "blood pressure, pulse, respiration rate, and temperature and some sources add height and weight." Mathesie was then asked to take the blood pressure of one of the examiners, a man approaching 40 years of age. He did so and discovered that the examiner's blood pressure was 165 over 70, which Mathesie remarked "is very high blood pressure." When asked what he would tell a patient whose blood pressure remained at this level for three consecutive days, Mathesie replied that he would advise the patient that he "had an elevated blood pressure and that he should be seen by a medical doctor for further evaluation." Blood pressure of 165 over 70 is only slightly higher than normal for a man approaching 40 years of age. Contrary to what Mathesie indicated to the examiners, it is not "very high blood pressure" and, without more, is no cause for alarm. Accordingly, Mathesie's failure to receive a grade higher than a 2.5 on the general physical examination segment of the test was not without reason or logic. On the orthopedic examination segment of the test, Mathesie was awarded a 3.0 by both examiners. Expert review did not result in a change of either of these grades. On this segment of the test, Mathesie was asked to evaluate the right knee of one of the examiners. In conducting his evaluation, Mathesie failed to examine both knees, although during the next segment of the test he did indicate, with some prompting by the examiners, that he "would compare bilaterally all the orthopedic tests." Bilateral examination is a standard, routine chiropractic practice which assists the chiropractor in determining whether the patient has a developmental or pathological problem. Inasmuch as Mathesie did not conduct such a bilateral examination when asked to assess the condition of the examiner's knee, he did not deserve to receive a grade higher than a 3.0 on the orthopedic examination segment of the test. On the neurological examination segment of the test, Mathesie received a 2.5 from one examiner and a 3.0 from the other examiner. After expert review, the 2.5 grade was raised to a 3.0. No change was made to the other examiner's grade. During this segment of the test, Mathesie initially failed to perform the patella reflex test bilaterally as he should have. It was only after one of the examiners suggested that it was necessary to determine a patient's normal reflexive action that Mathesie indicated he would "compare bilaterally all the orthopedic tests, all the neurological tests and reflexes." Mathesie further stated on this segment of the test that, in attempting to neurologically assess the patient, he would administer a cardinal gaze examination during which he would have the patient cover one eye and follow his finger with the other eye. Although a cardinal gaze examination may be administered in this fashion, the better method is to have the patient follow the moving object with both eyes. In view of the foregoing, a 3.0 was not an unreasonably low grade to give Mathesie on the neurological examination segment of the test. Mathesie received a 3.0 from both examiners on the x-ray technique and diagnosis segment of the test. Neither grade was changed following expert review. Mathesie was asked on this segment of the test to "set up a right [anterior] oblique." In describing how he would do so, Mathesie failed to give information concerning the film size and central ray. Given these omissions, Mathesie's failure to receive a grade higher than a 3.0 on this segment of the test was not without justification. Mathesie received a 2.0 from one examiner and a 2.5 from the other examiner on the laboratory diagnosis segment of the test. No adjustments were made to either of these grades. On this segment of the examination, Mathesie was asked what conclusions he would reach concerning the condition of a patient based on the results of blood tests revealing a hemoglobin of 8, a hematocrit of 25, and a RBC of 3.5. As Mathesie should have been aware, such test results reflect that the patient has suffered a severe loss of blood and therefore requires immediate medical attention. Mathesie, however, did not immediately recognize the seriousness and urgency of the matter. Having failed to do so, he cannot persuasively argue that the grades he received on this segment of the examination were unreasonably low. After receiving notification that he had failed the physical diagnosis portion of the November 1988, licensure examination, Mathesie retook and passed the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Chiropractic Examiners enter a final order dismissing Mathesie's challenge to the failing overall average grade he received on the physical diagnosis portion of the November 1988, licensure examination on the ground that such challenge is now moot. Should the Board decline to dismiss Mathesie's challenge on the ground of mootness, it is RECOMMENDED that the Board enter a final order rejecting such challenge as without merit and denying Mathesie the relief he has requested. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September 1989. STUART M. LERNER 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 Administrative Hearings this 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3255 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Mathesie's Proposed Findings of Fact Accepted and incorporated in substance, but not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: Accepted and incorporated by reference; Second sentence: Rejected because it is more in the nature of legal argument than a finding of fact. Moreover, in order to be qualified as an expert witness in the field of chiropractic, Dr. Ordet did not have to meet the "continuous practice" requirement of Florida Administrative Code Rule 21D-11.007. To the extent that this proposed finding suggests that the Department failed to substantially comply with any prehearing discovery order issued by the Hearing Officer or that the Department otherwise engaged in improper conduct prejudical to Mathesie, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Furthermore, while it is true that Ordet's opinion regarding Mathesie's performance was necessarily subjective in nature, based on Ordet's credentials and qualifications, it appears that the opinion he gave was an informed and educated one, notwithstanding his failure to cite any specific authoritative writing supporting his opinion. First sentence: Accepted and incorporated by reference (It should be noted, however, that although Ordet "has been out of school [as a student] for many years," he is currently on the faculty of two chiropractic colleges); Second sentence: Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Moreover, the Hearing Officer finds no persuasive support for the statement that Ordet "undoubtedly has not kept up with the advances in the chiropractic education." Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance, except for the last sentence, which has been rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence. Rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding suggests that Mathesie should not have had points taken off for indicating that he would tell a patient with a blood pressure reading of 165 over 70 to see a medical doctor, it has been rejected because it is not supported by persuasive competent substantial evidence. First sentence: Rejected because it constitutes a statement of the law rather than a finding of fact; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated by reference. Rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. (It should be noted, however, that although Mathesie did state "on the video that all tests would be done bilaterally," he made this statement following the orthopedic examination after one of the examiners suggested, through his questioning, that it was important to determine what was "normal" for the patient.) To the extent that this proposed finding suggests that Mathesie should have been awarded a grade higher than a 3.0 on the neurological examination segment of the test, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding suggests that Mathesie should have been awarded a higher overall average grade on the physical diagnosis portion of the November, 1988, licensure examination than a 2.875 (or 71.875%), it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is more in the nature of a request for relief than a finding of fact. Rejected because it is more in the nature of a request for relief than a finding of fact. The Department's Proposed Findings of Fact Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance, except to the extent that it indicates that "[c]ase history was raised to a 2.5 by both examiners." The uncontradicted evidence reveals that Mathesie originally received a 3.0 from both examiners on case history and that both of these grades were subsequently raised, following expert review, to a 3.5. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated by reference. COPIES FURNISHED: Michael W. Mathesie 8933 Northwest 51st Place Coral Springs, Florida 33067 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Chiropractic Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner should receive credit for her answers to certain specified questions on the Clinical Application of Medical Knowledge portion of the Florida Medical Licensure Examination administered November 19 and 20, 1999.
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 of Health is the state agency responsible for licensing and regulating physicians practicing medicine in Florida, including foreign-licensed physicians. Sections 458.311 and 458.3115, Florida Statutes (1999); Rule 64B8-5.002, Florida Administrative Code. In order to be issued a restricted license to practice medicine in Florida, a foreign-licensed physician must pass the FMLE, an examination that is developed by the Department and that consists of two parts; Part I tests a candidate's knowledge of Basic Science and Disease Processes, and Part II tests a candidate's knowledge of Clinical Applications of Medical Knowledge. Ms. Jimenez was accepted as a candidate for the FMLE and sat for the examination on November 19 and 20, 1999. At the time of the hearing, Ms. Jimenez had attained a scaled score of 348 on the Clinical Application of Medical Knowledge portion of the FMLE; a scaled score of 350 is required to pass Part II of the examination. The questions that comprise the Clinical Application of Medical Knowledge portion of the FMLE are objective, multiple- choice questions drawn from a bank of questions written by physicians, field-tested, reviewed, and edited. A psychometrician employed by the Department oversees the development of the examination questions. The questions for the November 1999 FMLE were drawn from the bank of questions in accordance with a test blueprint developed by a committee of physicians, and the questions were compiled into an examination. A committee of physicians then reviewed the examination to determine whether it would adequately and reliably test the candidate's ability to practice medicine with reasonable care and safety. A psychometrician employed by the Department oversaw the process of compiling the examination. The Department sends each candidate registering to take the FMLE a Candidate Information Booklet which contains, among other things, information about the test, the material to be covered on the test, sample questions, and a list of reference books that the candidates should consult in preparing for the examination. Ms. Jimenez disputes the Department's determination that the answers she gave to questions 3, 11, 81, and 183 of Part IIA and to question 113 of Part IIB of the FMLE administered November 19 and 20, 1999, were incorrect. According to the Department, the correct answer to question 3 of Part IIA of the examination is "C"; Ms. Jimenez chose answer "D." Question 3 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is included in the list of reference books provided to candidates for the examination. In this treatise, medical therapy is identified as the preferred treatment for distal dissection, that is, for a Type B or descending aortic dissection. "C" is, therefore, the correct answer to question 3 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 11 of Part IIA of the examination is "A"; Ms. Jimenez chose answer "D." Question 11 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is included in the list of reference books provided to candidates for the examination. In this treatise, it is observed that significant changes in the QRS complexes are consistent with acute myocardial infarction; all other answer choices are consistent with a diagnosis of acute pericarditis. "A" is, therefore, the correct answer to question 11 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 81 of Part IIA of the examination is "B"; Ms. Jimenez chose answer "A." Question 81 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is considered an authoritative text by physicians and which is included in the list of reference books provided to candidates for the examination. In this treatise, it is observed that the prevalence of MS varies significantly among different ethnic groups. "B" is, therefore, the correct answer to question 81 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 183 of Part IIA of the examination is "A"; Ms. Jimenez chose answer "D." Question 183 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Novak's Gynecology, 12th Edition, 1998, which is considered an authoritative text by physicians and which is included in the list of reference books provided to candidates for the examination. The question elicits the answer identifying the treatment that is most appropriate for the described patient, and, in the treatise, it is observed that hormone replacement therapy is indicated for women who are menopausal and have no contraindications. "A" is, therefore, the correct answer to question 183 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 113 of Part IIB of the examination is "A"; Ms. Jimenez chose answer "D." Question 113 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be derived from information found in the reference books entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, and Robert B. Taylor's Family Medicine: Principles and Practice, 5th Edition, 1997, which are considered authoritative texts by physicians and which are included in the list of reference books provided to candidates for the examination. The question elicits the answer identifying the intervention that is most appropriate for the described patient. It can be determined from the information contained in the treatises that the patient described in the question should not be treated with drugs but, rather, should be treated with diet and exercise. "A" is, therefore, the correct answer to question 113 of Part IIB of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the petition of Gloria Patricia Jimenez challenging questions 3, 11, 81, and 183 of Part IIA and question 113 of Part IIB of the Florida Medical Licensure Examination administered November 19 and 20, 1999.. DONE AND ENTERED this 18th day of October, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 18th day of October, 2000. COPIES FURNISHED: Gloria Patricia Jimenez 7765 Southwest 86 Street Unit F2, Apartment 209 Miami, Florida 33143 William W. Large, General Counsel Department of Health Office of the General Counsel 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 M. Catherine Lannon, Esquire Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 Theodore Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether disciplinary action should be taken against Respondent for alleged violation of Section 458.1201(1)(m) Florida Statutes, as set forth in Petitioner's complaint.
Findings Of Fact Respondent Fahmy M. Rizk is a physician licensed in the State of Florida who engages in the general practice of medicine at Fort Myers Beach, Florida. (Testimony of Respondent) During the fall of 1976, Joyce Weidner, Cape Coral, Florida, who was then twenty years old, was a patient of Respondent. Although she could recall making six office visits, Respondent's records reflect that only four were made during the months of October and November, 1976. On October 14, she first saw Respondent with complaints of pain in her left chest area when swallowing. At that time, she told him that she had epilepsy and was taking Dilantin for that condition. Respondent determined that she was suffering from gastritis and prescribed medication. On her next visit, Respondent prescribed a course of treatment for acne that was present on the patient's face, chest and back. During a subsequent visit on November 2, 1916, presumably to check the progress of the acne treatment, Mrs. Weidner returned to Respondent's office at which time he took her into an examining room and instructed her to disrobe. She did so and covered herself with a sheet until he returned. He proceeded to place her feet in stirrups on the examining table and conduct an internal pelvic examination with no one else in the room. He pressed her abdomen and asked her if she suffered any pain there, and she answered in the affirmative. She asked him if anything was wrong and he said something "vague" about her kidneys. After the examination, he asked her to return in two weeks. On November 16, she returned and again he told her to disrobe when in the examining room. He remained in the room while she did so and gave her nothing to cover herself with at this time. The door was closed and no one was present in the room except the patient and Respondent. Respondent again conducted an internal examination, but did not wear a rubber glove on his hand. After inserting his finger into her vagina, be then proceeded to rub her clitoris and to hold and "roll" the nipple of each breast in turn with the fingers of his other hand. During this time, he asked her if she enjoyed sexual relation with her husband and whether she desired to climax more or less often. During the examination, she had expressed concern to Respondent that her nipples might be abnormally large. While holding the right nipple, Respondent said words to the effect that her nipples would be very nice for a man to suck. At some time during the examination, Respondent may have asked her if she ever had any discharge from the nipples. After the examination was concluded, Mrs. Weidner dressed and left the office. She thereafter reported the incidents to the Lee County Medical Association who advised her to contact Petitioner. She thereafter filed a complaint with Petitioner in December, 1976 Mrs. Weidner made her complaint because she believed that Respondent's conduct toward her was unethical and "very degrading." (Testimony of Weidner, Respondents' Exhibit 5) Respondent's office records concerning Mrs. Weidner do not disclose that Respondent conducted a pelvic examination during the November 2 visit. His notes concerning the November 16 visit reflect that he had observed that her nipples were more prominent than usual and examined them with his fingers to see if there was any discharge. He also recorded that she said her mother has the same form of nipples and asked him in an emotional state if he found any abnormalities but that he assured her they were normal. His records show that he examined her vagina, cervix and ovaries and found them to be normal. (Respondent's Exhibit 3) Respondent denied in his testimony that he had given Mrs. Weidner an internal examination of her female organs during the November 2 visit. However, he testified that during the course of his treatment for her acne, he had observed that she had abnormal nipples, and he was concerned about the possibility of cancerous tumors in the breast because acne is sometimes a symptom of such a condition. He therefore examined her breasts during the November 16 visit in order to determine if there was any discharge from the nipples. Since she was concerned about the shape of her nipples and those of her mother, and due to her history of epilepsy, he did not wish to upset her regarding the possibility of tumors. To reassure her, he told her that her nipples would be very nice for her children to suck and also that her husband would be happy to suck them. He claimed that he wore a rubber glove on his right hand when examining her vagina, but no glove on the other hand which was on the abdomen. He denied touching her clitoris during the examination. Although he concede that he had asked if she had a normal sex life to determine if she ever had bleeding or pain, he denied that he had asked her if she enjoyed having sex with her husband. He admitted that there was no third person in the room during the November 16 examination of Mrs. Weidner. Respondent further acknowledged that he had been sent a letter by Petitioner after the Weidner complaint concerning examinations of female patients, and that he had written to the executive director of Petitioner stating that he would not perform any further such examinations without the presence of a third person. (Testimony of Respondent, Petitioner's Exhibit 1. Respondent's Exhibit 3) There are some endocrine hormonal causes for acne and one of these could be ovarian tumors which are hormonally active. (Testimony of Howington) It is found that although there was sufficient medical justification for Respondent to examine Mrs. Weidner's breasts and perform a pelvic examination on November 16, 1976, there was no such justification for his improper and suggestive remarks as related by the patient and admitted in part by Respondent. Neither was there any valid medical reason for rubbing her clitoris with his hand. Mrs. Weidner's recitation of the events that transpired while under Respondent's care are accepted as fact and Respondent's denials are not deemed credible. Although Mrs. Weidner's testimony concerning the number of office visits was imprecise, there is no dispute that she visited Respondent on November 2 and 16, 1976, when the improper acts occurred. On July 14, 1977, Mrs Maureen Abel, than twenty-five years old, of Fort Myers, Florida, became a patient of Respondent for treatment of a chronic skin rash. The rash was present on her chest, arms, back and stomach. During that visit, Respondent took her into his examining room with no one else present, had her pull down the top of her garment and examined the rash with a magnifying glass. He asked her if she had a problem with nervousness and she replied in the negative. During the course of further questioning, she informed him that she normally ha irregular menstrual periods. She also told him that she had a prescription for medicine from another doctor which she took when several months elapsed without a menstrual period. Respondent told her that she should be on birth control pills to regulate her period and that that would control the rash. He told her to return in ten days when he would get her started on birth control pills. He further prescribed medication for the rash. She returned on July 23 and informed Respondent that she thought she might be pregnant because he had not had a regular period and was feeling nauseous. He took her into the examining room, told her to take her clothes off and lie on the table. She did so, but there was no robe or other covering for her body. Respondent, with no third party present, examined her breasts stomach, and proceeded to perform a pelvic examination. He said that everything was normal and she did not appear to be pregnant, but had indigestion which was causing the nausea. He prescribed medication for the indigestion, gave her a four month supply of birth control pills, and told her to return in a month. On August 26, Mrs. Abel returned and told Respondent that her rash had not gone away and that she was still feeling somewhat sick. She also told him that she had taken the birth control pills but did not have a period, and was having a vaginal discharge which caused itching and concerned her. She informed him that she was gaining weight, and he said that she should go on a strict diet. He then escorted her to the examining room and closed the door. No one else was present in the room. He told her to take her clothes off and, as she did so, he took each piece of clothing and hung it on the back of a door. He told her to lie down on the examining table and, after she did so, he examined her breasts and stomach. He then "fluffed up" her pubic hair with his fingers and told her he was going to give her an internal examination. He placed her feet in the stirrup which were too far apart and caused some pain to her left leg. He did not adjust the stirrups, but massaged her left leg and the pain disappeared. He then put on rubber gloves and did an internal examination. During the course of the examination, he told her that he felt something there and wanted to take a culture. She agreed and he proceeded to insert an instrument into her vagina for this purpose. After taking the specimen and discarding the instrument, he began examining her vulva area with his fingers telling her that she was very inflamed and infected. He began rubbing the vulva area and, while doing so, told her that she was very dirty there and that she should use a mixture of peroxide and water every night to clean the area. She was insulted at this comment. He continued rubbing this area and she asked him if he knew what he was doing. He replied that he was checking for inflammation. Respondent then started rubbing her clitoris and asked her what kind of orgasms she had and if they were rapid or slow. She informed him that she was able to control herself and then told him that he was hurting her in order to get him to cease his actions. He then took her legs out of the stirrups, rubbing his hand on her left leg, up her left side to the stomach, over her breasts and to her left cheek which he patted several times. She saw his face coming towards her and jumped up and got off the table. He then grabbed her by her left arm and pulled her over by the scales, telling her that he wanted to weigh her, and directed her to stand on the scales. She did so and then dressed and left the office after paying Respondent's wife, his receptionist, the charge of $43.00. A few days later she cancelled payment on the check, but nevertheless made a claim to her insurance carrier for this amount. She thereafter sought the advice of another physician on September 22, 1977, who told her she was 16 weeks pregnant. She delivered the baby on March 10, 1978. Mrs. Abel was upset and angry that Respondent had "played" with her "private area." (Testimony of Abel, Respondent's Exhibits 5, 7-9) Respondent testified that at no time did Mrs. Abel complain of nausea or raise the possibility that she was pregnant, nor did he perform an internal examination of her on July 23. His office records for that date merely reflect that she had gas and indigestion and that he prescribed contraceptive pills. He further testified that on the August 26th visit, she complained of heavy discharge and itching of her genitals and that his internal examination on that date revealed the existence of a malodorous discharge with inflamed internal vaginal walls, and that he took a sample for culture and sensitivity. His office notes support testimony in this respect. Respondent maintained that his wife was present in the examining room to assist him in taking the specimen for laboratory analysis. She corroborated his testimony in this regard. He denied weighing the patient, advising her to use peroxide for the discharge, or rubbing her leg while in the stirrup. He further denied hanging up her clothes prior to the examination, or touching her abdomen, breast and cheek at the end of the examination. He conceded that he told her she was and showed her the speculum covered with discharge and told her to smell it because it had a bad smell and was a very bad infection. He further denied rubbing her clitoris and testified that this would have been impossible to do because she was so inflamed. He did, however, examine the vulva area for she presence of infection. He testified that it was necessary to open the vulva with one hand while inserting the speculum with the other in order to avoid taking hair with the speculum which would hurt the patient, but that he did not make the movement with his hand on her pubic hair as recounted by Mrs. Abel. Laboratory examination of the vaginal discharge sample revealed the presence of escherichia coli. (Testimony of Respondent, supplemented by Respondent's Exhibit 6, Testimony of M. Rizk) It is found that although there was sufficient medical justification for Respondent to perform pelvic examinations of Mrs. Abel on July 23 and August 26, 1977, there was no justification for his improper and suggestive remarks as related by the patient nor was there any valid medical reason for rubbing her clitoris. Mrs. Abel's recitation of the events that transpired while under Respondent's care are accepted as fact. Respondent's denials and the testimony of his wife supporting such denials in part are not deemed credible. Neither are Respondent's office records considered reliable or worthy of supporting Respondent's denials of improper conduct as described by Mrs. Abel. In response to hypothetical questions posed to Petitioner's medical experts, it was their opinion that the actions of Respondent with respect to both Mrs. Weidner and Mrs. Abel constituted immoral and unprofessional conduct and failed to conform to the standards of acceptable and prevailing medical practice in the community. The hypothetical questions were based on the words and actions of Respondent as described in the testimony of Mrs. Weidner and Mrs. Abel. It was the opinion of one expert, however, that Respondent's failure to diagnose Mrs. Abel's pregnant condition did not constitute unprofessional conduct under the circumstances. Respondent's motion to strike the testimony of these exerts based on the fact that they had reviewed summaries of Petitioner's prehearing investigation of the patients' complaints was denied because both experts testified in response to facts contained solely in the hypothetical questions and did not independently rely upon additional facts contained in the investigative reports. (Testimony of Howington, Purvis) Respondent practiced medicine Egypt for approximately twenty-five years. He came to the United States in 1971 and served as medical director of a state hospital in Kansas for approximately three and one-half years. He came to Florida some two years ago, and after being licensed in the state, started to practice in the Fort Myers area in June of 1976. A number of his former patients have written to him expressing gratitude for his professional services. (Testimony of Respondent, Respondent Exhibit 10)
Recommendation That Petitioner suspend the license of Respondent to practice medicine for a period of two years pursuant to subsection 458.1201(3)(a)4, Florida Statutes, for violation of subsection 458.1201(1)(m), Florida Statute. DONE and ENTERED this 18th day of September, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard C. McFarlain A. Russell Bobo 610 Lewis State Bank Building Tallahassee, Florida 32301 James A. Franklin, Jr. Post Office Box 280 Ft. Myers, Florida 33902 George S. Palmer, M.D. Executive Director Board of Medical Examiners Oakland Building, Suite 220 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in this case is whether Frank Giampietro (Petitioner) should be awarded additional credit for answers given on the chiropractic physical diagnosis practical licensure examination administered in November, 1989, and based thereon, whether he should be licensed to practice chiropractic in the State of Florida.
Findings Of Fact Petitioner has been licensed to practice chiropractic in the State of Rhode Island since March, 1986. He took the diagnosis portion of the chiropractic practical examination administered by the Respondent on November 9, 1989, for purposes of being licensed in the State of Florida. Petitioner received a grade of 68.7% on this portion of the exam. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam, and based thereon, whether he should have passed this examination. It was established that the physical diagnosis practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner disputed the score he received in the areas of neurology, orthopedics, and differential diagnosis. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 2 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physical diagnosis practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, one examiner gave Petitioner the grades of 2.5 in orthopedics and 3 in both neurology and differential diagnosis, while the other examiner gave him 2 in orthopedics, 2.5 in neurology and 3 in differential diagnosis. If Petitioner received two additional raw points on these three content areas which are under challenge, he would receive an overall passing score of 75%. Regarding the practical exam content area of orthopedics, the Petitioner improperly performed Apley's test, according to the expert testimony of Dr. Ordet, and incorrectly responded that the medial and lateral meniscus could not be differentiated using Apley's test. The Petitioner also improperly performed McMurray's test, as well as muscle testing of the hamstrings and quadriceps. The Petitioner's witness, Dr. Hoover, confirmed that he did not properly perform Apley's test, and did not make a determination as to the medial or lateral meniscus by rotating the patient's foot, as he could have. Regarding the neurology portion of the exam, Petitioner incorrectly identified the location of the upper motor neuron track, and according to Dr. Ordet, the Petitioner also incorrectly stated that pathologic reflexes which would actually be for a lower motor neuron lesion were the pathologic reflexes for an upper motor neuron lesion. This was a very significant error, according to Dr. Ordet, whose testimony is credited. Regarding the differential diagnosis portion of the exam, the Petitioner's response to the patient's bowel blockage was not precise or specific. Petitioner did not demonstrate that he had more than an adequate understanding of this subject area due to the nebulous answers he gave. Even the Petitioner's witness, Dr. Hoover, agreed with the grade of 3 which Petitioner received on this portion of the exam. Based on the evidence in the record, it is found that Petitioner was correctly graded on the orthopedics, neurology and differential diagnosis portions of the practical examination. It was not established that the grades given were contrary to fact or logic, and in fact, competent substantial evidence supports the grades which he received.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to his grades on the orthopedics, neurology and differential diagnosis portions of the November, 1989, chiropractic examination. DONE AND ENTERED this 18th day of October, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX (D0AH CASE NO. 90-3399) The Petitioner did not file specific proposed findings of fact, but did file a letter dated September 28, 1990, on October 1, 1990, addressed to the undersigned. This letter does not evidence that a copy was provided to counsel for the Respondent, and therefore, it has not been considered. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. 4. Adopted in Finding 2. 5-6. Adopted in Finding 7. 7-8. Adopted in Finding 8. 9-10. Adopted in Finding 9. COPIES FURNISHED: Frank Giampietro 1704 Adair Road Port St. Lucie, FL 34952 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner is licensed to practice chiropractic in the State of Florida, and is seeking certification in physiotherapy. She took the practical examination in physiotherapy administered by the Respondent on November 11, 1989, receiving a grade of 71.8%. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if she should be granted additional credit on this practical exam, and based thereon, whether she should receive certification in physiotherapy. It was established that the practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner solely disputed the score she received in the content areas of ultrasound and cryotherapy. In each of these areas, she received a score of 3 out of a possible 4 credits. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 1 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physiotherapy practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, each examiner graded Petitioner's practical examination the same in all four content areas. Instead of the score of 3 on both the ultrasound and cryotherapy portions of the physiotherapy exam, if Petitioner received a 4 on either portion from one of the two examiners, a 3.5 on either portion from both examiners, or a 3.5 on both portions from only one examiner, she would receive an overall grade of 75%, which is the minimum passing score. Thus, if she received one additional raw point in these two content areas which are under challenge, she would receive a passing score. Regarding the practical exam content area of ultrasound, the Petitioner used a device known as a "coupling cushion" in applying ultrasound over bony prominences in the shoulder area in order to protect her patient from burning. This cushion is basically a water-filled container placed between the ultrasound device and the patient's skin. In addition, when the patient complained of no improvement in his condition after five days, the Petitioner raised the intensity of the ultrasound. Both Drs. Jeffrey Gordon and Ronald Scott, who were accepted as experts in physiotherapy, testified that the Petitioner's use of a coupling cushion and increasing the intensity of ultrasound after five days in response to patient complaints were acceptable methods of treatment. Support for the use of a coupling cushion over bony prominences while administering ultrasound is also found in authoritative treatises, Applied Physiotherapy and Physical Agents for Physical Therapists, excerpts of which were introduced at hearing. Dr. Scott was one of the two examiners who graded Petitioner's practical exam. He testified he gave her a score of 3 in ultrasound because, while Petitioner did demonstrate an adequate knowledge and understanding of the use of ultrasound, she did not demonstrate a depth of understanding regarding the use of ultrasound over bony prominences without a coupling cushion. He testified that there are other acceptable, and perhaps more efficient, ways of applying ultrasound to a shoulder than through a water coupling. However, he conceded that the Petitioner was never questioned about different theories or techniques of application for ultrasound. On the "comments" portion of the examination grade sheet, Dr. Scott included the following note next to Petitioner's grade in ultrasound: "limited and instructed poorly". He explained that this meant Petitioner had demonstrated limited knowledge of the content area. However, this conflicts with his assessment at hearing, and with the excerpts from treatises in the record which confirm the method of treatment demonstrated by the Petitioner. While Dr. Scott testified that there are other acceptable methods of applying ultrasound over bony prominences, none were specifically described. Indeed, Dr. Gordon pointed out that the failure to use a coupling cushion over a bony prominence would be neglectful since it would likely subject the patient to burning. There is no basis in the record to support Dr. Scott's comment that Petitioner was instructed poorly, and to the contrary, the only treatises in the record support the treatment methods used by the Petitioner. The other examiner, who was not present to testify, made the comment on his grade sheet for the Petitioner that she "needs work" in ultrasound. No evidence was presented to support this rather imprecise assessment. It is conceded by Respondent's expert witness, Dr. Scott, that Respondent's answer was acceptable. Based on the evidence in the record, it is found that Petitioner was incorrectly graded on the ultrasound portion of her practical examination. Rather than a grade of 3, meaning she gave an adequate answer, the evidence establishes that the technique she used was consistent with the only authoritative treatises in the record, as well as with the expert testimony of Dr. Gordon. The use of a coupling cushion over bony prominences is recommended to avoid burning the patient while administering ultrasound. Increasing the intensity of ultrasound after five days when the patient complains of no improvement, is reasonable and acceptable practice. However, since Dr. Scott testified that there are other unspecified methods which could also have been used in this situation, it cannot be found that Petitioner's answer was "exceptional", and therefore deserving of a grade of 4. Rather, she demonstrated a degree of knowledge and understanding between the grades of 3 and 4, or 3.5, which she should have received from both examiners on the ultrasound portion of this exam. Regarding the exam content area of cryotherapy, the Petitioner treated the patient, diagnosed as having a mild to moderate lumbar sprain/strain injury, by applying a cold pack wrapped in a warm, moist towel for ten to twenty minutes. Drs. Scott and Gordon acknowledged that this was an acceptable form of treatment for this condition. Authoritative treatises introduced in evidence confirm that this treatment is recommended, although other forms of treatment were also noted, including placing a cooled pack directly on the skin, or wrapping it with a dry towel. There is a conflict among the authorities regarding the placement of a cold pack directly on the skin. In her response on this content area, the Petitioner did not demontrate that she understood this conflict in authorities, but rather expressed the view, adopted by one authority, that cold packs should never be placed directly on the skin. Based upon the evidence in the record, it is found that Petitioner received the correct grade of 3 from both examiners on the cryotherapy portion of the practical examination. In contrast to the ultrasound portion of the exam, for cryotherapy there is clear evidence of conflicting methodologies for the treatment of a lumbar sprain/strain with cold packs. Petitioner did not demonstrate her knowledge of these conflicting methodologies, but simply demonstrated the one method which she prefers, which while acceptable, is not exclusively appropriate. Since the Petitioner's score should have been increased by .5 point on both examiners' grading sheets in the content area of ultrasound, she should have received one additional raw point, which results in her achieving an overall average of 75% on the practical examination, the minimum passing score.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to her grade in cryotherapy, but granting her challenge to the ultrasound portion of the November, 1989, chiropractic physiotherapy certification examination and awarding Petitioner a grade of 3.5 in ultrasound instead of 3, thereby increasing her overall grade from 71.8% to 75%, the minimum passing score, and as a result, approving Petitioner's certification in physiotherapy. RECOMMENDED this 18th day of October, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. CASE NO. 90-3402 Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 6, but otherwise Rejected as unnecessary. Adopted in Findings 7-10. Adopted and Rejected, in part, in Findings 11, 12. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 2. Adopted in Findings 7, 8, but otherwise Rejected as unnecessary. Adopted in Findings 3, 6, 8. Adopted in Finding 12, but Rejected in Finding 10. Adopted in Finding 8, but Rejected in Findings 9, 10. Adopted in Findings 11, 12. Adopted in Finding 12, but Rejected in Findings 10, 13. COPIES FURNISHED: Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792 Brian S. Fischer, Esquire 3695 W. Boynton Beach Blvd. Suite 8 Boynton Beach, FL 33436 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner took the chiropractic examination given by Respondent on November 4-7, 1992. The examination consists of three parts; physical diagnosis, technique, and x-ray interpretation. The minimum passing grade on each part is 75. Petitioner received an 80 on x-ray interpretation and a 36.5 and 67.5, respectively, on the physical diagnosis and technique parts. Here, Petitioner challenges only his score of 67.5 received on the technique part of the examination. If Petitioner passes the technique portion of the examination, he will be required to pass only the physical diagnosis in order to complete the examination requirements for his license. The technique portion of the examination consists of five clinical cases and four follow-up questions on each case. The technique part of the examination is timed. Like all candidates, Petitioner was provided with a timer and informed that no more than 10 minutes was allowed for all five cases, including the 20 follow-up questions. Petitioner neither stated a need for additional time nor requested additional time to complete the technique portion of the examination. Petitioner has only one leg and would have been given additional time if requested. Petitioner's challenge to the technique part of the examination is limited to clinical Case 1. No challenge is made to the follow up questions to Case 1. Case 1 required Petitioner to set up an appropriate technique for a patient who was eight months into pregnancy. The patient had a left anterior superior ilium. The condition of anterior superior ilium is more often associated with trauma to the buttocks or a fall on one's hip than with pregnancy. Pregnancy causes the joints to move easily and requires special consideration when performing adjustments. Special consideration includes different set-up, contact, and line of drive. Petitioner's first form of adjustment for Case 1 was his own adaptation for the facts presented. Petitioner changed the contact points and line of drive from that reasonably considered appropriate under the circumstances. Once the contact points were improperly changed, the line of drive was incorrect.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's request for credit on Case 1 and a passing grade on the technique portion of the chiropractic examination given November 4-7, 1992. DONE and ENTERED this 18th day of August 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0699 Petitioner's Proposed Findings of Fact Petitioner submitted no proposed findings Respondent's Proposed Findings of Fact 1.-8. Accepted in substance COPIES FURNISHED: Robert J. Dixon 8300 U.S. #1 North Micco, FL 32976 Vytas J. Urba, Esquire Dept. of Business and Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack Mcray Acting General Counsel Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
