The Issue Whether Petitioner’s applications for a Florida Educator’s Certificate (teaching certificate) should be denied on the grounds set forth in the Notice of Reasons issued by Respondent on April 20, 2005.
Findings Of Fact At times relevant to this proceeding, Petitioner was employed as a behavioral specialist by Tri-County, an entity that provided certain employees to the School Board. Pursuant to his employment with Tri-County during the 2003-04 school year, Petitioner worked at Port St. Lucie High School (PSLHS) in a classroom for students who had been identified by the School Board’s Exceptional Student Education (ESE) Program as being severely emotionally disturbed (SED). Petitioner has never been employed directly by the School Board. Petitioner’s position with Tri-County did not require that he have a teaching certificate. Likewise, the work Petitioner did in the SED class pursuant to the contract between Tri-County and the School Board did not require that he have a teaching certificate. For reasons that were not revealed at the formal hearing, the SED teacher with whom Petitioner worked left his or her employment during the school year. As a result of the teacher’s absence, Petitioner took over the SED for a short period of time. There was no evidence that Petitioner’s continued employment was dependent on his having a teaching certificate. The school administration of PSLHS was required to annually check the certification of each teacher at the school and to submit to the School Board a report listing any educator who was teaching outside of his or her certified field. This report is called an “out of field” report. For the school year 2003–04, Ms. Brooks, the assistant principal of PSLHS, was required to prepare the out-of-field report for the school. Ms. Brooks initially listed Petitioner as teaching out of field. However, while preparing the out of field report, Ms. Brooks discovered what appeared to be a temporary teaching certificate bearing Petitioner’s name (the subject certificate). The subject certificate reflected that Petitioner was certified in ESE for grades K-12 for the period July 1, 2002, through June 30, 2005. Ms. Brooks located the subject certificate in a binder that contained photocopies of teaching certificates for all of the PSLHS instructional personnel. The subject certificate looked suspicious to Ms. Brooks because it had no certification number on it and because Petitioner’s name was written in a different font than the font that is typically used on teacher’s certificates. Ms. Brooks promptly reported the suspicious certificate to Ms. Thompson at the School Board office. Ms. Thompson immediately called Ms. White at the Florida Department of Education (FDOE) offices in Tallahassee. Upon investigation with the FDOE, it was discovered that the subject certificate was fraudulent. The FDOE has never issued a teaching certificate to Petitioner of any kind. Ms. Brooks testified that photocopies of teaching certificates are provided to the school by teachers and that as far as she knew, no one other than the teacher would have a copy of the teacher’s teaching certificate. It is clear from her testimony that Ms. Brooks was referring to certified teachers with properly-issued teaching certificates. It is also clear from her testimony that Ms. Brooks had no first-hand knowledge as to how or when the subject certificate was placed in the binder. Petitioner testified that he did not provide the school the subject certificate. Petitioner testified that he did not know who would have provided the subject fraudulent teaching certificate to the PSLHS and offered no other explanation as to its existence. The undersigned concludes that the evidence presented by Respondent is insufficient to establish that Petitioner furnished the subject certificate to the administration of PSLHS.3 Petitioner applied to FDOE for a teaching certificate on two occasions. Neither application has been processed to completion. On December 19, 2001, Petitioner applied for a teaching certificate in the field of athletic coaching. On December 22, 2003, Petitioner applied for a teaching certificate in the field of physical education. Those teaching certificates were never issued because Petitioner’s prior criminal history caused Professional Practices Services (PPS) to place a hold on his applications4 and because Petitioner has not provided an official transcript documenting his college degree.5 Those reasons were in addition to the reasons set forth in the Notice of Reasons dated April 20, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order deny Petitioner’s applications for teaching certificates. DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of June, 2006.
Findings Of Fact Petitioner herein, Kristina V. Tignor, took the Professional Engineers Examination for the State of Florida in Orlando on April 9 and 10, 1987. On July 22, 1987 she was advised by the Department of Professional Regulation's Office of Examination Services that she had failed the examination and was given a cummulative score of principles and practice of 69.1 percent. In her initial request for review and reconsideration, Petitioner objected to the points assigned to her solutions for three problems on the test, Numbers 425, 421, and 124. She contended that as a working engineer, certain criteria and assumptions must be made in approaching any engineering problem and, because the portion of the examination in issue is graded subjectively, her answered should be reconsidered and evaluated in that light. At the hearing, Petitioner contested only the grading of questions number 124 and 421, thereby accepting the grade given for question 425. With regard to Question 124, Ms. Tignor was awarded a score of 5 on her solution to this problem. The National Council of Engineering Examiners, in its Standard Scoring Plan Outline awards a "qualified" evaluation to scores from 10 down to 6 on this question. Scores from 5 to 0 are rated, "unqualified." A score of 5 indicates the applicant has failed to demonstrate adequate knowledge in one aspect of one category. Specifically, a rating of 5 in this question indicates that the examinee displayed an inadequate knowledge of weight/volume and concrete mix design. Her computations were displayed and an incomplete or erroneous solution was arrived at which gave a generally unrealistic result. Dr. Bruce A. Suprenant a civil engineer registered in four states and who teaches engineering at the University of South Florida, reviewed the question, the Petitioner's solution, the solution proposed by the examiners, and the grading scheme for this problem and found a number of illogical items in Petitioner's solution which, to him, were difficult to understand. He found several items which had no basis and which were possibly assumed. As to Part a of Petitioner's answer, a mixture of answers, (correction for moisture), which should have been in Part b, was located in Part a. As to density, the value used by Petitioner does not appear to be reasonable based on information provided in the problem. In Dr. Suprenant's opinion, there are at least three approaches to this problem. One is the water/cement ration method. Another is the weight method. The third is the absolute volume method. The water/cement ratio method would be difficult to apply here and neither Petitioner nor the examiners used it. As to the weight method, much the same problem exists. There is insufficient information provided to satisfactorily apply this method and while the examiners did not use it, Petitioner did. Petitioner's answer has a correction for moisture in the absolute volume method on the first page of the solution form at the top. The calculations by Petitioner are assumed information not known, (volume). In addition the correction for moisture in the second part of page one is included on the top of page two. It is not a part of the solution for subpart a and should not be there. Petitioner used 150 pounds per cubic foot for concrete density in her solution and this choice is not explained. Most publications utilized by engineers suggest using tables which were not provided to the examinees and it is, therefore, illogical to assume concrete density with no history for that assumption. Petitioner's answer of 5.41 cubic yards is only slightly off the suggested answer of 5.44 cubic yards but the fact that the answers are close does not justify her assumption. It might well not come so close in other cases. As to Part b of the question calling for the water/cement ratio, the corrections for moisture of fine and coarse aggregate on page one are acceptable. On the second page, a problem arises in when the correction for moisture should decrease. Petitioner got the right factor but applied it in the wrong manner. As a result, her answer to Part b of the examination question is wrong. Her answer was 4.40 as opposed to the correct answer of 4.34. This small degree of error can be attributed to the smallness of the amount in question. Were the amounts greater, the error would be greater. As to part c of the question, which deals with the cement factor in a yard of concrete, Petitioner's approach of dividing sacks of cubic yards is correct, but the cubic yard content was determined from Part a of the question, and Dr. Suprenant does not agree with how she got her solution. He therefore questions her carryover. The standard weight of a sack of concrete is 94 pounds. The individual grading Petitioner's response to Question 124 indicates she displayed inadequate knowledge and reached a solution which gives "unrealistic results." Dr. Suprenant agrees, contending that Petitioner's performance in regard to this question indicates inadequate knowledge of weight/volume relationship. She made inadequate assumptions in formulating her answer to the question. The fact that in this problem she arrived at a solution close to the correct one does not indicate that in other problems, she would achieve the same closeness using the same procedure. In his opinion, Petitioner showed some confusion regarding the basis for solving this problem and Dr. Suprenant believes that a grade of 5 as awarded by the examiner is correct. Petitioner questioned the fact that the various technical weights and volumes, such as 94 pounds in a sack of concrete, 8.33 pounds for a gallon of water, and 27 cubic feet in a cubic yard do not appear in the problem statement. This, in the opinion of Dr. Suprenant, compounds the gravity of Petitioner's deficiency. They are routine "givens" generally accepted in the practice by engineers and it would be difficult to assume that anyone familiar with the practice of engineering would use different "givens" for these specifics. Petitioner's employer, Mr. Bishop, himself a registered civil engineer in Florida since 1958, also reviewed Petitioner's solution to Question 124. He admits that on the first page of the answer sheet, Petitioner began solving the problem in an inappropriate way. Her calculations for moisture content were correct, however. On the second paged the correction factor was put in with the wrong sign and the aggregate was given the wrong factor. As a result, the answer was off. In his practice, however, the error committed by Petitioner in these regards is both minimal and acceptable. Her choice of 150 pounds per square foot is reasonable and produced a close result, and while it is true that if the project were of a greater scale, the error might be significant for a test question, as here, the error, in his opinion, is insignificant. He feels much the same way regarding the error in Part c of the examination question. While the factors used by petitioner were wrong, the process used was correct and the answer was not unreasonably incorrect for a test solution. In an examination situation, the calculations are not being done on a continuous basis, and he feels the grade of 5 awarded is unduly harsh since the error was numerical rather than operational. In his opinion, a more reasonable grade would have been a 6 or 7. Petitioner began her solution to this problem by using one similar to that used by the examiners in their publications. Shortly, however, she realized she would not get the answer she needed by doing so and abandoned her solution. She forgot to cross it out, however, and now recognizes she should have done so. She thereafter began to accomplish a series of new calculations on the first page of the answer sheet but did not necessarily utilize that data for her solution to Part a. She admits she made an error in calculation for moisture on the second page. In that calculation, she used the study manual and admits now that she should have cited the figure she used. As to Parts b and c, her use of some figures from Part a may have thrown her answer off somewhat. However, the 5 awarded her, indicating her solution was unrealistic, is, in her opinion unfair as she considers her answer to be quite realistic. The problem did not state what solution method to use and she feels her use of givens from recognized manuals such as the 150 pounds, should not be held against her. 94 pounds for a sack of cement used by the grader was also not given and her use of other accepted numbers should not, she contends, be held against her. Petitioner believes a grade of 7 would more accurately describe the quality of her answer. A 7 means that the examinee obtained an appropriate solution but chose a less than optimum approach. The solution is, therefore, awkward but nonetheless resonable. Ms. Tignor believes that while her approach may have been awkward, she achieved reasonable solution demonstrated by the fact that it was only slightly off the correct figure. Therefore, she believes a grade of 6 would be appropriate. This examination was an open book examination and Petitioner had her manuals with her. She could have easily determined the appropriate weights an "givens" from these manuals without choosing those she used. Ms. Tignor's conclusions that her results are realistic are contradicted by the Board's expert. Realistic results are, in engineering practice, not only the figure reached but also the method used in arriving at that figure. Here, though Petitioner's results are close, the approach utilized in arriving at her solution is unrealistic. Her approach showed an inadequate knowledge of weight/volume and calculations. Consequently it is found the grade is valid and was not arbitrarily assigned. According to the Standard Scoring Plan Outline, each score from 10 through 6 has an indispensable criteria that all categories must be satisfied. Since Ms. Tignor's examination response did not satisfy all categories, the best she can be given is a 5 and that award appears to be justified by the evidence presented. Question 421 was a four part drainage problem. Petitioner used as a part of her solution calculations based on a 100 year storm and this was determined by the examiners to be inappropriate. Ms. Tignor was awarded a grade of 8 and contends she was not given appropriate credit. She relates that even Mr. Smith, the Executive Director of the Board of Professional Engineers, advised her she may not have been given full credit for her answer. She was given full credit for Part a but lost two points for part c which included a calculation error to which Petitioner admits. She contends however, it was so minor, only one point should have been deducted. Were Petitioner to receive an additional one point on this question, she would pass the examination which she failed by only one point. However, this issue must be resolved on the basis of lawfully admitted evidence and Mr. Smith's comment, being unsupported hearsay evidence, cannot itself sustain the rasing of the grade. The Standard Scoring Plan Outline for this question reflects that to receive an 8, the examinee must demonstrate that all categories are satisfied, that errors are attributable to misread tables or calculating devices, and that errors would be corrected by routine checking. The results must be reasonable if not correct. For a 9, the examinee must demonstrate that all categories are satisfied; that a correct solution is arrived at but the examinee has been excessively conservative in the choice of working values; and that examinee's presentation is lacking in completeness or equations diagrams or orderly steps in solution, etc. Subqualifications for a 9 indicates that the answer is correct but that the organization of the solution is not logical. One error in calculation in any of the Parts from a to d, which does not affect the other parts of the solution, is acceptable. Mr. Kenneth Weldon, the Assistant State Drainage Engineer for the Department of Transportation, an expert in the area of drainage to which this problem relates, reviewed the question and the Petitioner's answer thereto and would award a grade of 8 to her answer. He found various numerical mathematical errors which led to the wrong solution. In addition, Petitioner made various assumptions that, though supposedly supported, were, he felt, in error through her misinterpretation. In general, none of the actual solutions she arrived at were correct. Specifically, that portion of the problem to determine the cross sectional area of the waterway for establishing normal depth flow was done incorrectly. Because the Petitioner used incorrect equations throughout the problem, the depth flow computed is high. Petitioner did no analysis to determine whether or not any of the several situations relating to flow control were pertinent. Mr. Weldon initially felt Petitioner's answer to the question merited a grade of 6. This means that the examinee knew all the proper steps but failed to interpret some of the criteria properly. He could not award her a grade of 9 which would indicate all categories were satisfied and the solution was correct, if conservative. Petitioner's solutions were incorrect. He subsequently changed his award to an 8, however, on the basis that the Petitioner's errors were attributable to a misread table or calculating device and would be corrected by routine checking. The result was reasonable, though not correct. Mr. Weldon did not like this question even though he believed it appropriate for a one-hour exam. As written, it involves establishing and making judgements beyond what someone minimally competent would be expected to do. It requires materials that are beyond what are normally available to someone taking the exam. However, Petitioner failed to make proper provision to protect herself in a case where the question is inappropriate or incomplete. If she felt something was wrong with the question, she should have clearly stated the assumption she was making to solve the problem. This was her responsibility and she failed to do so. In Mr. Weldon's opinion, Petitioner's answer might merit a grade slightly higher but not significantly higher. His reasoning is that Petitioner misinterpreted the criteria she stated for writing the problem. Her comment that the Department of Transportation uses 100 year storm criteria was incorrect even though that statement is made in outdated Department of Transportation publications. The basis for her answer is not well established or correct, or based on engineering calculations or judgement, and at best he could award no more than an 8.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 124 and 421, respectively, of the Civil Engineering Examination administered to her in April, 1987. RECOMMENDED this 10th day of June, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5110 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner None For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated except for the characterization of several assumptions as guesses. No evidence exists to support such a characterization even though they are incorrect. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Kristina V. Tignor, pro se 2160 North Oval Drive Sarasota, Florida 34239 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact On April 8, 1980, the Petitioner sat for a nursing home administrator's examination in Tallahassee, Florida. The Petitioner had prepared for the exam and although somewhat nervous was confident that she would pass. When the Petitioner was approximately 1-1/2 hours into the exam, she discovered that she had been issued a faulty test booklet. The Petitioner noticed this when questions began to repeat on the examination and discovered that the exam contained duplicate pages. The Petitioner requested a new exam which as provided by a proctor who noted the problem with the examination book on a cover page. Following this incident, the Petitioner went back to the beginning of the exam and checked her previous answers against the new exam questions. The confusion and problems with the exam resulted in the Petitioner becoming extremely nervous and agitated. After sitting in her chair for a time, the Petitioner was able to resume the exam, although she was still in a disrupted stated. On May 12, 1980, the Petitioner received notice from the Department that she had made a 74 on the exam with 75 being a passing score. The Petitioner immediately requested that the exam materials including the two examinations and answer sheets be provided to her for purposes of review. The original examination booklets were not available to the Petitioner and have not been produced for the hearing due to their destruction immediately following the exam. The cover of the faulty booklet has been provided on which the note "Faulty booklet-excess pages", appears. The answer sheet provided at the hearing shows that the examination consisted of 150 multiple choice questions. On the first half of the exam, (number 1-75) Petitioner missed 16 questions while on the last half (number 75- 150) Petitioner Had it not been for the confusion over the exam and its undisputed negative effect on Petitioner she could have been expected to pass the exam based upon the score she received on the first half of the test. The cost of taking the first exam was $200.00 and Petitioner would be required to pay another $200.00 to be reexamined. Petitioner is familiar with the nursing home business and has a position available to her pending the outcome of this proceeding. The examination is a national exam which was not prepared by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner's exam be regraded to reflect either a passing grade of 75 or the grade she would have received on the basis of the first 75 questions. DONE and ORDERED this 13th day of November, 1980, in Tallahassee, Florida. SHARYN L. SMITH, 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 13th day of November, 1980. COPIES FURNISHED: Tina Hipple Staff Attorney Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Edward L. Trader, Esquire 903 E. Strawbridge Avenue Melbourne, Florida 32901
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 61.3%, with 221 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. It is also asserted by the Petitioner that he was given insufficient time to review his examination in order to identify problems in the grading of the examination, and that the review room was cramped and noisy. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session began at 8:30 a.m. and concluded at 1:00 p.m. on that date, and was conducted in the Respondent's office in Tallahassee, Florida. The Petitioner actually began his review at 8:35 a.m., and completed the review and left the review room at 12:52 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review, and has also failed to prove by competent substantial evidence that conditions in the review room deprived him of an opportunity to conduct a meaningful review of his exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 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 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2799 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Respondent, a physician specializing in gastroenterology, (a) mistakenly gave a patient an upper endoscopy, thereby committing the disciplinable act of performing a "wrong procedure"; and/or (b) failed to confirm the intended procedure, allegedly a colonoscopy, before performing the alleged "wrong procedure," in violation of the "pause rule." If Respondent committed these offenses, or either of them, it will be necessary to determine an appropriate penalty.
Findings Of Fact At all times relevant to this case, Respondent Aryama Devi Sharma, M.D., was licensed to practice medicine in the state of Florida. Dr. Sharma has practiced in Broward County for nearly 20 years and has privileges at Broward General Medical Center (the "Hospital") in Fort Lauderdale, Florida. She is board-certified in gastroenterology and internal medicine. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Sharma. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Sharma committed two such offenses when she performed an upper endoscopy on a patient named G.R., instead of a colonoscopy as originally planned. The crux of this case is whether, as the Department contends, Dr. Sharma made a mistake and performed the "wrong procedure" on G.R., or whether, alternatively, Dr. Sharma deliberately changed the plan for G.R. and intentionally performed the upper endoscopy, as she maintains. As will be seen, the resolution of this essential dispute of material fact drives the ultimate determinations regarding whether Dr. Sharma performed a wrong procedure; (b) failed to obey the "pause rule," which requires a physician to stop and confirm the intended procedure and the patient's identify before proceeding; or (c) committed both of these disciplinable offenses. The events giving rise to this case began in the summer of 2007, when G.R.'s primary care physician, Dr. Valerie Solomon, referred G.R., then 60, to Dr. Sharma for a routine colonoscopy, which was overdue. As a result of this referral, Dr. Sharma saw G.R. for the first time on August 1, 2007. During this office visit, Dr. Sharma assessed G.R. and, while doing so, recorded pertinent medical information in her notes for inclusion in the patient's file. Dr. Sharma's contemporaneous notes report, for example, that G.R. complained of a change in bowel habits, occasional constipation, bloating, and heartburn. Dr. Sharma also wrote that G.R. was taking a prescription medicine called Actos for diabetes, as well as antacids as needed. Dr. Sharma performed routine abdominal and rectal examinations on G.R., who did not refuse to undergo either. (Had G.R. refused these examinations, Dr. Sharma would have discharged her from her practice.) In conducting the abdominal examination, Dr. Sharma discovered that G.R. had mild epigastric tenderness, which can be indicative of gastritis (an infection or inflammation of the stomach) or peptic ulcer disease. The rectal examination revealed occult blood——that is, blood invisible to the naked eye——in G.R.'s stool. Based on these examinations, Dr. Sharma formulated three working diagnoses: (a) occult G.I. bleeding, for which she wanted to rule out (as possible causes) cancer, polyps, and diverticulitis; (b) dyspepsia, for which she wanted to rule out peptic ulcer disease, gastroesophageal reflux disease (GERD), and Helicobactor pylori (H. pylori) infection; and (c) diabetes mellitus. These working and differential diagnoses are documented in Dr. Sharma's office notes. Dr. Sharma recommended that G.R. undergo both an upper endoscopy and a colonoscopy. Following her routine practice, Dr. Sharma explained both of these procedures to G.R., using anatomical posters in her examination room as visual aids. Dr. Sharma wrote in her office notes as follow: Plan on colonoscopy. Patient will need EGD [meaning esophagogastroduodenoscopy——in other words, an upper endoscopy], colonoscopy. Procedures explained to patient. All risks, benefits, complications and alternatives explained. [Patient] understands and agrees to proceed. Plan on EGD/colonoscopy. Schedule for colonoscopy. Dr. Sharma testified credibly, and the undersigned finds, that G.R. consented to have both procedures done. For no particular reason, it was decided that the colonoscopy would be performed first, and Dr. Sharma's staff accordingly made an appointment for G.R. to have a colonoscopy at the Hospital on August 23, 2007. Dr. Sharma signed an order for the colonoscopy, using a preprinted form for endoscopy procedures (including EGD), which was delivered to the Hospital the next day.1 On the morning of August 23, 2007, G.R. arrived at the Hospital to have the colonoscopy for which she had been scheduled. G.R. was seen upon admission by Christine Bomeisl, R.N., who obtained a medical history and checked G.R.'s vital signs. Ms. Bomeisl noted on a form called the Same Day Unit Flow Sheet that G.R. had arrived at 9:15 a.m., and that the patient reportedly had taken the laxative Fleet's Phospho-soda that day (as part of the colonoscopy prep) and vomited.2 At 9:40 a.m., G.R. signed a Consent for Operative and Invasive Procedures form, which authorized Dr. Sharma to perform a colonoscopy. Ms. Bomeisl witnessed G.R. sign the written consent form. At a few minutes past 10:00 a.m., Dr. Sharma gave G.R. a preoperative physical, during which she took a brief medical history. Pre-op visits of this nature are part of Dr. Sharma's routine practice. G.R. complained to Dr. Sharma of nausea, vomiting, and abdominal pain, which Dr. Sharma documented contemporaneously, on a form called the Short Form History and Physical Medical Clearance (the "Pre-op Form"), as "60 yr old with dyspepsia." On the line where the Pre-op Form called for entry of the patient's "chief complaint/present illness," Dr. Sharma wrote: "abdominal bloating." Upon learning that G.R. had vomited earlier and continued to be nauseas, Dr. Sharma became concerned about performing a colonoscopy. This was because, if G.R. vomited while under sedation, she might aspirate the contents of her stomach. Additionally, it was more urgent under the circumstances, in Dr. Sharma's medical judgment, to investigate G.R.'s abdominal symptoms immediately and to defer the colonoscopy, which could wait. Accordingly, Dr. Sharma decided to change the original plan and perform an upper endoscopy on G.R. that morning instead of a colonoscopy.3 Dr. Sharma explained the upper endoscopy procedure to G.R., informing G.R. that she would be putting a scope down G.R.'s esophagus to look into G.R.'s stomach in an attempt to find the cause of her acute distress. Dr. Sharma told G.R. that she would take tissue for a biopsy, if necessary. G.R. agreed with this change in the plan and verbally consented to the upper endoscopy.4 Dr. Sharma wrote on the Pre-op Form that the "procedure" to be performed was "EGD + Bp" [i.e. upper endoscopy with biopsy] and that the "plan" was "EGD + Bp." In addition, Dr. Sharma checked the "yes" box next to statement: "Risks, benefits, alternatives, & complications explained."5 Dr. Sharma told Hensylene Previlor, the nurse who was preparing patients for endoscopic procedures that morning, that G.R. would be having an upper endoscopy. From that point forward, all of the members of the team involved in implementing Dr. Sharma's order proceeded with the correct understanding that Dr. Sharma intended to perform an upper endoscopy on G.R.6 G.R. was brought into the procedure room shortly before 11:00 a.m. Consistent with the Hospital's procedure for positioning a patient for an upper endoscopy, G.R. was lying on her side, facing the endoscope, her feet pointed towards the door. Thus, when Dr. Sharma entered the room, G.R. was prepared for an upper endoscopy. Two nurses assisted Dr. Sharma with the upper endoscopy, Veronica Jacob, R.N.; and Tasha Nunziato, R.N. Ms. Jacob was the "paper-side" nurse responsible for documenting the procedure. Ms. Nunziato was the "scope-side" nurse, meaning that her job was to assist Dr. Sharma with the endoscope and to help place any biopsy tissues into the correct containers. At the outset, before the "time-out" was taken (when the team pauses to confirm the intended procedure and the patient's identity), and prior to the patient's receipt of anesthesia, Dr. Sharma once again explained to G.R. that she would be performing an upper endoscopy to investigate G.R.'s abdominal complaints. Ms. Nunziato gave another explanation of the procedure, similar to Dr. Sharma's, before inserting a bite block into G.R.'s mouth. G.R. never objected to having an upper endoscopy or denied having experienced the abdominal discomfort being cited as the reason for the procedure. Dr. Sharma initiated the time-out at about 11:00 a.m. by announcing that it had begun. Everyone stopped talking and focused on the process. Ms. Nunziato examined G.R.'s identification band and read aloud the patient's name, medical record number, and birth date and verified this information with G.R. Ms. Nunziato asked G.R. if Dr. Sharma were her doctor. G.R. said "yes." Ms. Nunziato asked G.R. if she agreed that an upper endoscopy would be performed on her, and G.R. answered "yes." Ms. Jacob, too, asked G.R. whether she were there for an upper endoscopy. G.R. replied that she was.7 Ms. Jacob consulted the endoscopy nursing record during the time-out to verify the intended procedure. This record indicated correctly that G.R. was to have an upper endoscopy in accordance with Dr. Sharma's most recent treatment order, which had countermanded the original order for a colonoscopy. (Unbeknown to Dr. Sharma, however, Ms. Jacob did not review the Consent for Operative and Invasive Procedures form that G.R. had signed that morning, pursuant to which G.R. authorized Dr. Sharma to perform a colonoscopy. Dr. Sharma was unaware that G.R. had not signed a written consent concerning the upper endoscopy.) Ms. Jacob documented that a time-out had been conducted for an EGD at 11:00 a.m. Anesthesia for the upper endoscopy was started at 11:05 a.m. The procedure commended at 11:06 a.m. and was finished at 11:08 a.m. During the upper endoscopy, Dr. Sharma found a hiatal hernia, gastritis, and antral erosions. Dr. Sharma also removed some tissue from G.R.'s stomach wall for biopsy. In her postoperative procedure note, Dr. Sharma wrote that it was her plan to have G.R. "be followed up in my office, at which time the biopsies will be discussed and if the patient is Helicobactor pylori positive, then the patient will be treated for that." After the upper endoscopy was performed, Ms. Jacob took G.R. to the recovery room, where Jackie Johnson, R.N., took over the care of G.R. Ms. Johnson reviewed G.R.'s chart, including the endoscopy report. When she noticed that G.R.'s discharge paperwork was for a colonoscopy patient, Ms. Johnson asked G.R. to identify the procedure that had been performed on her. G.R. told Ms. Johnson that she had undergone a colonoscopy. Ms. Johnson then left G.R. to report the discrepancy in the paperwork to the charge nurse.8 Eventually, the unit secretary was sent to retrieve Dr. Sharma to sort the matter out. Upon being alerted to a potential problem, Dr. Sharma went to the recovery room and found G.R. there. G.R. asked Dr. Sharma about the results of the colonoscopy. Dr. Sharma replied that she had performed an upper endoscopy as they had discussed earlier that morning.9 G.R. said she thought she was to have had both procedures. Because G.R. did not want to prepare again for a colonoscopy or take another day off from work, Dr. Sharma agreed, after consulting with the anesthesiologist, to perform a colonoscopy on G.R. later that day, which was done. The pathologist who performed the biopsy on G.R.'s tissue samples found that G.R.'s stomach contained "abundant organisms consistent with H. pylori." This caused the pathologist to diagnose chronic active Helicobactor pylori gastritis. An H. pylori infection can cause dyspepsia, the symptoms of which include abdominal pain, bloating, heartburn, and vomiting. On August 24, 2007, G.R. saw Dr. Solomon, apparently for a previously scheduled appointment. G.R. told her primary care physician that the results from the previous day's procedures should be sent to Dr. Solomon, so that she (G.R.) would not need to see Dr. Sharma again. G.R. reported being upset about what had happened at the Hospital the day before; she told Dr. Solomon that she had expected to have only a colonoscopy. G.R. was scheduled to return to Dr. Sharma's office for a follow-up appointment on September 5, 2007, to discuss the results of the endoscopic procedures. G.R. did not keep this appointment. Shortly thereafter, Dr. Sharma made several attempts to contact G.R. by telephone but failed to reach her. On September 19, 2007, Dr. Sharma informed Dr. Solomon of G.R.'s biopsy results and the H. pylori infection discovered during the upper endoscopy procedure. Dr. Solomon called G.R. after receiving a copy of the pathology report and prescribed G.R. the antibiotic Prevpac to treat the H. pylori infection. Dr. Solomon documented in the patient's chart that she had prescribed Prevpac for G.R. Dr. Sharma spoke with G.R. by telephone on September 26, 2007. During this conversation, which is documented in the patient chart that Dr. Sharma maintained on G.R., Dr. Sharma confirmed with G.R. that Dr. Solomon had prescribed an antibiotic to treat G.R.'s H. pylori infection.10 Ultimate Factual Determinations G.R. checked into the Hospital on the morning of August 23, 2007, expecting to have a colonoscopy pursuant to Dr. Sharma's order. Dr. Sharma countermanded the preexisting order for a colonoscopy, however, with a superseding order announced verbally at around 10:00 a.m., which called for G.R. to have an upper endoscopy. Because Dr. Sharma had previously told G.R. that G.R. would need to have an upper endoscopy so that Dr. Sharma could determine the cause of the abdominal discomfort G.R. had been experiencing, the order for an upper endoscopy did not come out of the blue. Dr. Sharma did not make a mistake when she performed an upper endoscopy on G.R. at around 11:00 a.m. on August 23, 2007. Rather, the upper endoscopy that Dr. Sharma performed was the procedure she intended to perform, pursuant to the order she herself had given respecting G.R.'s treatment plan. The upper endoscopy, in short, was the right procedure. Dr. Sharma neither performed nor attempted to perform a wrong procedure, and therefore she is not guilty of committing an offense punishable under section 456.072(1)(bb), Florida Statutes. Before Dr. Sharma performed the upper endoscopy, she and the team paused, in compliance with Florida Administrative Code Rule 64B8-9.007(2)(b), to confirm the patient's identity, the intended procedure, and the procedure site. Accordingly, Dr. Sharma is not guilty of committing an offense punishable under section 458.331(1)(nn), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Sharma not guilty of the charges set forth in the Administrative Complaint. DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2011.
The Issue The issues in this case are: (1) whether the Petitioner should be given a passing grade on the podriatry examination he is challenging; and (2), in light of his failure to appear at the final hearing, whether the Department should assess attorney fees, costs and court costs under Section 455.229(3), Fla. Stat. (1993).
Findings Of Fact The Petitioner took the podiatry licensure examination administered by the Department on August 20, 1993, and received a failing grade. The Petitioner had due notice of the final hearing scheduled in this matter on June 14, 1994, by virtue of the Notice of Hearing issued on March 7, 1994. It also is clear that the Petitioner had actual notice of the scheduled final hearing. Counsel for the Department was in telephone communication with the Petitioner in the weeks before the scheduled final hearing and discussed the scheduled final hearing with the Petitioner. The Petitioner requested an opportunity to review the examination (for the second time) at 11:00 a.m. on the day of the final hearing (which was scheduled to begin at 1:00 p.m.) Counsel for the Department acceded to the Petitioner's request and, together with the Department's psychometrician, appeared at the final hearing site at 11:00 a.m. The Petitioner did not appear either at 11:00 a.m. or at 1:00 p.m. and had not appeared by the time the final hearing was concluded at approximately 1:33 p.m. The Petitioner gave no notice that he would not appear and has given no explanation why he did not appear. The Petitioner also has not responded to the Department's Motion for Recommended Order that Petitioner Pay Respondent's Reasonable Attorney's Fees, Costs, and Court Costs which was served on June 21, and filed on June 23, 1994. The Department expended $651.04 for fees and costs related to its attorney's preparation for, travel to and from, and participation in the final hearing. The Department expended $826.14 for fees and costs related to its psychometrician's preparation for, travel to and from, and participation in the final hearing. The Department expended $239.20 for fees and costs related to its podiatry expert's preparation for, travel to and from, and participation in the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a final order denying the Petitioner's examination challenge and assessing against the Petitioner attorney fees, costs, and court costs in the amount of $1,716.38. RECOMMENDED this 15th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1994. COPIES FURNISHED: Gerald J. Gambale 9713 Morehead Lane Port Richey, Florida 34668 Vytas J. Urba, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Diane Orcutt, Executive Director Board of Podiatric Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
The Issue The basic issue in this case is whether the Petitioner should be given a passing grade on the April, 1987, professional engineering examination. At the hearing the specific issues in dispute were narrowed to whether the Petitioner should be given a higher grade on each of three questions on the examination. At the hearing the Petitioner testified on his own behalf and presented the testimony of two other witnesses. He also offered several documentary exhibits into evidence. The Respondent offered the testimony of one witness and also offered several exhibits. Subsequent to the hearing a transcript of the hearing was filed with the Hearing Officer and the parties were given a reasonable time thereafter within which to file their proposed recommended orders. Both parties filed post-hearing submissions containing proposed findings of fact, conclusions of law, and recommendations. The parties' proposals have been given careful consideration in the preparation of this recommended order. All findings of fact proposed by all parties are addressed in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The April, 1987, professional engineering examination required an applicant to work four problems in the morning session and four problems in the afternoon session, for a total of eight problems. In order to pass the examination, the applicant had to achieve an average score of six points for all eight problems, or a raw score of forty-eight points. Mr. Schmidt's examination was given a total score of forty points, comprised of scores as follows: 10, 8, 5, 5, 4, 4, 3, and 1. Mr. Schmidt, therefore, needs eight additional raw points in order to receive a passing grade on the examination. An additional requirement is that in order to receive a passing grade on the examination, the applicant must score six points or more on at least five of the eight questions. Mr. Schmidt is challenging three questions on the exam, questions 114, 411 and 418. On question 114, Mr. Schmidt was given a score of four. On question 411, Mr. Schmidt was given a score of five. On question 418, Mr. Schmidt was given a score of three. At the commencement of the hearing, the Respondent stipulated that Mr. Schmidt's score of question 418 should be increased to five. The Item Specific Scoring Plan (ISSP) is a device utilized to standardize graders so that a person grading a specific problem for various different candidates would consistently apply the same score to the same type of deficiency throughout the scoring process. There was an individualized Item Specific Scoring Plan for each problem given on the subject examination. Each of the Item Specific Scoring Plans contains objective criteria for assigning from 0 to 10 points to a candidate's answer to each question. There is no evidence that the Item Specific Scoring Plans are defective or arbitrary and capricious. The percentage of successful candidates on the chemical engineering examination has been rather low on recent examinations. Approximately 15% passed the April, 1986, exam. Only 2.9% passed the October, 1986, exam, and 25% passed the April, 1987, exam. During that same period of time the success rate was generally (but not always) higher for candidates for licensure in other fields of engineering. The grade of four given to Mr. Schmidt's response to question number 114 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of five given to Mr. Schmidt's response to question number 411 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of three given to Mr. Schmidt's response to question number 418 is not consistent with the individualized Item Specific Scoring Plan for that question. The parties have stipulated that Mr. Schmidt's grade on question number 418 should be at least five. The evidence is insufficient to show that Mr. Schmidt is entitled to a higher grade than five on question number 418.
Recommendation Based on all of the foregoing, I recommend that the Board of Professional Engineers issue a final order to the following effect: Increasing Petitioner's score on question 418 from three to five, leaving Petitioner's other scores unchanged, and assigning to Petitioner a final grade of forty-two. DONE AND ORDERED this 11th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4175 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Petitioner's proposed findings regarding problem number 114 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, particularly in view of the further testimony of Dr. O'Connell to the effect that he had no quarrel with the ISSP for this question and to the testimony of both Dr. O'Connell and Dr. Hanley to the effect that the grade given to Petitioner on this question is consistent with the ISSP. Petitioner's proposed findings regarding problem number 411 have for the most part been rejected as irrelevant on the basis of testimony by both Dr. O'Connell and Dr. Hanley to the effect that the ISSP required evidence of a trial and error solution and that such a solution is not shown in the Petitioner's answer. Petitioner's proposed findings regarding problem number 418 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, in view of additional evidence to the effect that the Petitioner's boxed answer to this question was not a reasonable answer. With regard to the penultimate paragraph of the Petitioner's proposed findings, the first two sentences are essentially correct, but also irrelevant, because the burden of proof is on the Petitioner rather than on `the Respondent. With regard to the remainder of the penultimate paragraph, I have made findings regarding the success rate of chemical engineers, but find that evidence, standing along, insufficient to establish any impropriety in the examination. The final paragraph of the Petitioner's proposed findings is more in the nature of argument than proposed facts. It may well be that the Petitioner received less prehearing information from the Respondent than he was entitled to receive, but those are matters which should be raised before rather than after the hearing, and are matters which are waived if not timely asserted. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Omitted as unnecessary subordinate details. Paragraph 4: Omitted as unnecessary subordinate details. Paragraph 5: The essence of this paragraph has been accepted, but most details have been omitted an unnecessary. Paragraph 6: Accepted. Paragraph 7: Accepted. Paragraph 8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Omitted as unnecessary subordinate details. COPIES FURNISHED: Mr. Daniel B. Schmidt 2209 Northeast 15th Terrace Gainesville, Florida 32601 H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
