The Issue The issue is whether Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.
Findings Of Fact Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows: Grader 27--Cervical (3), thoracic (3), occipital (3), pelvic (2), rib (3), and soft tissue (3.5). Grader 37--Cervical (3), thoracic (3), occipital (3), pelvic (3), rib (3), and soft tissue (3). Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance: Cervical (3), thoracic (2.5), occipital (3), pelvic (2), rib (3), and soft tissue (2.5). Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Chiropractic Examiners, enter a Final Order denying the request for relief filed by Jens Emilio Valle and dismissing the petition for relief. DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of August, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Examiners 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7). COPIES FURNISHED: E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067 Patricia Guilford Executive Director Board of Chiropractic Examiners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are framed by the parties' Joint Pre-Hearing Stipulation. Essentially, they are whether, in connection with his care and treatment of two patients, R.B., and D.T., the Respondent, who is an opthalmologist, violated Section 458.331(1)(t) and (m), Fla. Stat. (1993), by: gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; or (m) failure to keep written medical records justifying the course of treatment of the patients.
Findings Of Fact The Respondent, Carlos A. Solorzano, M.D., is licensed to practice medicine in Florida. He holds license ME 0041368. The Respondent practices in the field of opthalmology. He is not Board-certified. Patient R.B. The patient, R.B., a 92 year-old female, was referred to the Respondent and was seen for the first time on February 2, 1988. The Respondent diagnosed chronic uveitis (inflammation) in both eyes, secondary cataracts in both eyes, and secondary glaucoma in the right eye. The Respondent prescribed two medications (inflamase and atropine). When R.B. was next seen by the Respondent on February 11, 1988, the Respondent prescribed a third medication (betagan) and recommended a YAG laser iridotomy on the right eye to relieve high pressure. In performing an iridotomy, the opthalmologist bores a hole in the iris to relieve abnormal pressure in the eye (glaucoma). Sometimes, especially when glaucoma is caused by active uveitis, a patient can be treated effectively by controlling the inflammation solely with medication and later dilating the pupil. If successful, medical treatment obviates the need for surgery. In the case of R.B., medical treatment was not and would not be successful. As a result of chronic uveitis, R.B. had a history of abnormally high pressures in the eye. In addition, and of even more concern, the pressures were subject to "spiking" seriously high pressures. Whereas pressures of 21 mm of Mercury (Hg) are considered high normal, R.B. had readings of 38 mm Hg in both eyes on January, 24, 1988. On her first visit to the Respondent on February 2, 1988, the readings were 30 mm Hg in the right eye and 20 mm Hg in the left eye. On her second visit to the Respondent on February 11, 1988, the readings were 29 mm Hg in the right eye and 19 mm Hg in the left eye. Clearly, the Respondent's recommendation that R.B. have an iridotomy performed on her right eye was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's records indicate that, instead of an iridotomy, the Respondent performed an iridoplasty on R.B. on March 23, 1988. In an iridoplasty, the opthalmologist treats the surface of the iris with laser energy to cause some shrinkage and change of shape in the iris but does not bore a hole through the full thickness of the iris. The Respondent's medical records do not explain why an iridoplasty was performed on March 23, 1988, instead of the recommended iridotomy. The Respondent has no independent recollection of which procedure he performed and can only speculate that, if in iridoplasty was performed, perhaps it was because he was unable to complete the iridotomy and did an iridoplasty instead in preparation for a subsequent iridotomy. In that respect, the Respondent's written medical records were insufficient to justify the course of treatment of the patient. On March 28, 1988, the Respondent saw R.B. again and recommended an iridotomy on the left eye. The patient's left eye pressure reading on that day was 14 mm Hg, well within normal range. Other left eye pressure readings also were within normal range, although closer to high normal: 20 mm Hg on February 2, 1988; and 19 mm Hg on February 11, 1988. But there also was the history of a 38 mm Hg "spike" on January 24, 1988, and the history of abnormally high pressures in the patient's right eye. Despite the normal readings for the left eye, taking all of the pertinent factors into consideration, it was not proven that the Respondent's recommendation of an iridotomy for the left eye was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (A subsequent "spike" 76 mm Hg in April, 1990, further validated the recommendation.) The Respondent performed an iridotomy on R.B.'s left eye on April 20, 1988. The Respondent's medical records do not reflect the absence of cells or flares until an entry on June 6, 1988. The Respondent does not always record what he considers to be "negative findings." "Negative findings" should sometimes be recorded if they are pertinent and necessary, but these "negative findings" are subsumed in the diagnosis of chronic, rather than active, uveitis. Patients undergoing an iridotomy procedure should be seen for follow- up care within one to three days to ensure that the opening is patent, that the symptoms are relieved, and that no secondary inflammation is present. As indicated, the Respondent saw the patient, R.B., on March 28 and on April 25, 1988. The Respondent's records for those visits indicate intraocular pressures, but otherwise the Respondent's written medical records for any follow-up care on those dates were insufficient. (The March 28, 1988, records indicate an evaluation and recommendation for a iridotomies for both eyes but do not address the March 23, 1988, procedure on the right eye. The April 25, 1988, records do not address the April 20, 1988, procedure on the left eye.) The records for both of those visits indicate prescriptions for atropine, betagan, and inflamase. The next visit indicated in the Respondent's records for R.B. was June 6, 1988. At that time, the Respondent recommended a lensectomy and vitrectomy for the left eye, which he performed on August 30, 1988. A lensectomy is the removal of the lens. A lensectomy is indicated under several different circumstances. It is appropriate when a less involved cataract procedure cannot be performed, or when the anterior approach to removing a cataract cannot be utilized. A vitrectomy is the removal of the vitreous, the jelly-like material in the globe of the eye. A vitrectomy also is indicated under various different circumstances, including: biopsy; infection; blood in the eye; inflammation; and retinal repair. In the case of the patient, R.B., there was no improvement in the patient's vision (hand movement, only, in the left eye), despite the use of a strong corticosteroid, a beta blocker, and a strong pupil dilator. The patient continued to suffer from the effects of chronic uveitis. Synequies, or adhesions, continued to prevent fluid from escaping. The patient also had thick cataracts and membranes in the vitreous that were obscuring vision. Under these facts, it was not proven that the lensectomy and vitrectomy on the left eye were below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The lensectomy and vitrectomy were safer than ordinary cataract surgery in this patient and safer than not doing anything. But the Respondent's written medical records were insufficient to justify the course of treatment of the patient. They did not adequately explain the reasons for the Respondent's recommendations. Patient D.T. The patient, D.T., was referred to the Respondent for evaluation regarding a detached retina at the seven o'clock position in the right eye. On September 28, 1988, the Respondent performed a procedure known as cryopexy to reattach the patient's retina. In cryopexy, the opthalmologist applies liquid nitrogen to the area of detachment. The low temperature of the liquid nitrogen (minus 60o centigrade) causes inflammation and scarring. The scarring reattaches the retina. It was the Respondent's responsibility to check the pressure in the liquid nitrogen tank supplied by the hospital facility the Respondent was using. He failed to check the pressure and, unfortunately, it was low. The Respondent attempted the procedure despite the low pressure in the liquid nitrogen tank but was not sure if it would be effective. The Respondent wanted to proceed with a follow-up procedure using a laser to be sure the reattachment succeeded, but the patient declined. In part in order to further facilitate reattachment pending the laser procedure, the Respondent injected air into the eye to serve as an internal tamponade to put pressure on the point of reattachment to hold it in place. (Other reasons for injecting air in the eye were to maintain proper intraocular pressure and to keep fluid away from the point of reattachment for access and visibility during the subsequent laser procedure.) Unfortunately, due to gravity and the inferior position of the retinal detachment, the internal tamponade only would be effective if the patient maintained a face-down position. On follow-up the next day, the patient was maintaining proper position and the laser procedure was scheduled for the following day. But on preop evaluation on September 30, 1988, the patient was found to be in sitting position, and it was not possible to perform the laser procedure. Instead, the Respondent recommended redoing the operation. The patient declined, preferring to "wait a few days." During follow-up evaluation on October 4, 1988, it was determined that the cryopexy had been at least partially successful after all, despite the low liquid nitrogen pressure. Pigment 1+ was seen, indicating inflammation and scarring, and the area of detachment of the retina appeared to be smaller. The macula remained attached. During another evaluation October 7, 1988, it was noted that the macula still remained attached. Although the Respondent urged the patient, D.T., to have the cryopexy procedure on the right eye repeated more quickly, the patient wanted to wait, and the Respondent repeated the procedure on October 14, 1988. It was not proven that the delay in repeating the procedure was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The initial procedure apparently was at least partially successful, and the macula remained attached. In addition, inferior retinal detachments usually do not extend quickly, and it was not proven that there was any urgency in repeating the procedure. The Respondent's medical records do not include any indication that he advised or encouraged the patient not to wait until October 14, 1988, to have the cryopexy procedure repeated, but it was not proven that this omission was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent testified that he saw the patient at her home on several occasions but his medical records make no mention of any such visits. It became apparent from participating in the final hearing (and can be surmised to some extent from the Respondent's "proposed findings of fact") that the Respondent's biggest difficulty in the practice of medicine may be the difficulty he has in communicating (at least in English). It is possible that patients and other physicians perceive incompetence when they do not understand what the Respondent is telling them, whether orally or in writing. His difficulty with written English may contribute to the inadequacy of some of his medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent guilty of violating Section 458.331(1)(m), but not (t), Fla. Stat. (1993); (2) reprimanding him; and (3) imposing a $1,000 administrative fine. RECOMMENDED this 31st day of May, 1995, 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5118 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-20. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted. Subordinate to facts found. (The diagnosis was chronic, not active, uveitis.) Rejected as not proven. (Cells and flares indicate active uveitis.) Accepted. Subordinate to facts found. See 21., above. 24.-26. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to intraocular pressure. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 29.-32. Accepted and incorporated to the extent not subordinate or unnecessary. 33.-35. Accepted and incorporated. 36.-37. Accepted and incorporated. However, there also are other indications. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to "indications"; accepted and incorporated as to "discussion." Accepted and incorporated. Accepted and incorporated as to inadequate medical records; otherwise, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. 42.-44. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. (It was at least partially successful and may have been completely successful, but the Respondent was unsure due to the low pressure and wanted to repeat the procedure to make sure.) Accepted. Subordinate to facts found. (The medical records were written before subsequent follow-up evaluation showed successful cryopexy.) 47.-48. Accepted and incorporated. (As to 48., there also were other reasons for it.) Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that it was "necessary due to insufficient freezing." (The Respondent thought it was appropriate due to questions he had about the efficacy of the cryopexy and for other reasons.) Accepted but subordinate and unnecessary. (The Respondent did not perform a pneumatic retinopexy.) Rejected as not proven that it would not be "viable." Accepted that it was not appropriate, but subordinate and unnecessary. See 50., above. Also, rejected as not proven that "the patient could not be positioned to cause the desired effect." Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that "the Respondent was advised." (The Respondent made the determination.) Otherwise, accepted and incorporated. 53.-54. Accepted and incorporated. Accepted but subordinate and unnecessary. Rejected as as not proven and as contrary to facts found and to the greater weight of the evidence. 57.-58. Accepted and incorporated. Accepted but subordinate and unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. See 45., above. 61.-65. Accepted but subordinate and unnecessary. 66.-67. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Respondent's Proposed Findings of Fact. (The Respondent's "proposed findings of fact" were presented in an unorthodox fashion that makes ruling difficult. He introduced a subject on a sheet of paper, sometimes commented on the subject, and attached copies of medical records in evidence that relate to the subject. These rulings are restricted to the Respondent's comments and attempt to follow the format chosen by the Respondent. No rulings are made on the attached copies of medical records as they are accepted but subordinate.) FACTS RELATED TO PATIENT #1, RB LASER PROCEDURES. Accepted and incorporated to the extent not subordinate or unnecessary. REGARDING HIGH INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) REGARDING A VERY HIGH SECOND EPISODE OF INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) POINT REGARDING THE APPOINTMENTS. As to R.B., accepted but subordinate and unnecessary. As to the other patients, rejected as not supported by any evidence. PATIENT RB DIDN'T HAVE ACTIVE UVEITIS . . .. First sentence, accepted and incorporated. Second sentence (regarding slit lamp), accepted but subordinate and unnecessary. (AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) THE SURGICAL PROCEDURE LENSECTOMY VITRECTOMIE [sic]. Generally accepted and incorporated to the extent not subordinate or unnecessary. REGARDING SLIT LAMP EXAMINATIONS. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) FACTS RELATED [TO] PATIENT #2, DT PAGE# 5. Accepted and incorporated. PAGE# 6. Accepted and incorporated. PAGE# 7. Accepted (assuming "denied to" means "refused to") but largely subordinate and unnecessary. Only "home visits" comments are incorporated. PAGE# 8. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the allegation that the proliferative vitreous retinopathy occurred between the two surgeries.) PAGE# 9. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 10. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 11. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that, after the second surgery, the Respondent did not advise the patient concerning alternatives such as pars plana vitrectomies.) PAGE# 12. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent went on vacation in October, 1988.) COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre - Legal A Tallahassee, Florida 32399-0792 Carlos A. Solorzano, M.D., pro se 7211 North Dale Mabry Highway, #101 Tampa, Florida 33614 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Respondent medical physician violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; Subsection 458.331(1)(m), Florida Statutes, by failing to keep medical records to justify the course of treatment of a patient; and/or Subsection 458.33(1)(p), Florida Statutes, by performing surgery at the spinal level of C6-7 without patient consent and without statutory exception.
Findings Of Fact Petitioner, through the Board of Medicine, is the state agency which licenses and has regulatory jurisdiction of medical physicians. At all times material, Respondent has been a licensed medical physician in the state of Florida, having been issued license No. ME 0017399. He is board-certified in orthopedic surgery, is a member of many spine-specialized medical societies, and is highly published in the field of spinal surgery. He has devoted 100 percent of his practice to spinal surgery since 1989. On or about August 16, 1991, Patient R.L., then a thirty-two-year-old woman, was referred to Respondent with complaints of neck and shoulder pain due to a work-related accident. On August 16, 1991, Respondent diagnosed R.L. as having cervical spondylosis with radiculopathy, and thoracolumbar scoliosis. He recommended she undergo magnetic resonance imaging (MRI) of her cervical spine at North Florida Regional Medical Center (NFRMC). R.L. underwent MRI of her cervical spine at NFRMC on September 20, 1991. The radiologist's report of R.L.'s September 20, 1991, MRI indicated no disc herniation, central stenosis, or foraminal impingement at the C3-4 and C4-5 disc levels or at the C6-7 and C7-T1 levels. The radiologist's report did indicate that at the C5-6 level there was a small abnormal posterior protrusion of disc material, centrally and slightly eccentric towards the right side and that axial images demonstrated a small, right-sided central/right paracentral herniation. The report added that a very mild and early uncontrovertral spurring was noted at this level but was not resulting in impingement for exiting nerve roots. R.L. next saw Respondent on September 24, 1991. On that date, Respondent reviewed R.L.'s cervical spine MRI with her and diagnosed a probable small central and right paracentral herniation at the C5-6 level. Respondent was then of the opinion that the cervical spine MRI did not clearly delineate a disc herniation at R.L.'s C5-6 level. Respondent accordingly recommended that R.L. undergo a myelogram-CT scan. Respondent did not indicate to R.L. that he detected any pathology at C6-7. On October 29, 1991, R.L. underwent a cervical myelogram and CT scan at NFRMC. The radiologist's report indicated an extradural defect at C5-6, which was moderate in size and touched the cord but which did not cause any cord compression. The report also stated that the nerve sleeved well and that there was a very slight posterior subluxaton of C5 on C6 associated with this. The report did not indicate any pathology at C6-7. R.L. next saw Respondent on November 14, 1991. On that date, Respondent reviewed R.L.'s cervical myelogram and CT scan with her, diagnosed a herniated nucleus pulposus at C5-6, and recommended C5-6 anterior cervical fusion with plates. Respondent did not, on that date, indicate to R.L. that he had identified any pathology at C6-7. R.L. testified that before surgery, Respondent did not tell her that he would be removing any disc other than the one at C5-6; that he did not indicate he thought R.L. would need more surgery than the surgery planned at C5-6; or that he might discover something during the planned surgery which would require the removal of any disc different than C5-6. Respondent testified that he did not recall whether he did or did not tell R.L. that C6-7 might some day require an operation or that C6-7 might need work while he was operating on C5-6. His office notes for January 21, 1992, only state She returns today for her preoperative visit. The nature and extent of her surgery has been explained to her and she voices understanding. R.L.'s and Respondent's testimony agree that before surgery, Respondent intended to remove and fuse only at C5-6; that R.L. understood and agreed that Respondent would remove only the disc at level C5-6 and fuse it; and that before surgery, neither of them expected Respondent to operate at a level of R.L.'s cervical spine different than C5-6. Experts for Petitioner and Respondent, (Drs. Gonzalez- Perez and Smith respectively), concurred that if Respondent discussed the proposed procedure, most common and potential risks and complications, and the potential course of rehabilitation with R.L., and if Respondent and R.L. then reached a mutual decision to operate, full disclosure and informed consent had occurred, regardless of whether a written consent form had been filled out and signed. On January 29, 1992, R.L. signed an NFRMC "Authorization for Surgical Treatment and/or Special Procedure" which provided: I, the undersigned, a patient in the below named hospital, hereby authorize Dr. Lowery (and whomever he may designate as his assistants) to administer such treatment as is necessary, and to perform the following operation: anterior cervical fusion and instruments with autolugus and/or bone bank bone and such additional operations or procedures as are considered therapeutic on the basis of findings during the course of said operation. I also consent to the administration of such anesthetics as are necessary with the exception of none. Any tissues or parts surgically removed may be disposed of by the hospital in accordance with accustomed practice. I hereby certify that I have read and fully understand the above AUTHORIZATION FOR SURGICAL TREATMENT, the reasons why the above-named surgery is considered necessary, its advantage and the possible complications, if any, as well as possible alternative modes of treatment, which were explained to me by Dr. Lowery. I also certify that no guarantee or assurance has been made as to the results that may be obtained (Underlined portions were written in; the remainder was pre-printed). The foregoing hospital authorization did not identify the level of the cervical spine where the procedure would be performed. It merely indicated that an anterior cervical fusion would be performed, without stating which of the seven vertebrae were intended to be fused. Dr. Gonzalez-Perez, Petitioner's expert witness, testified that this is not the type of release a reasonable and prudent physician would use for informed consent. Petitioner contends that Respondent's use of the authorization form deviated from the level of care, skill, and treatment recognized by a reasonable and prudent physician as being acceptable under similar facts and circumstances, but even Petitioner's expert, Dr. Gonzalez-Perez, testified that such a form is usually filled-out by a nurse employed by the hospital, and that if Respondent and R.L. went through an informed consent conversation prior to surgery, that would be sufficient, without a written acknowledgement or authorization, for Respondent to have met the standard of care for informed consent and patient pre-authorization for surgery at the mutually understood level of C5-6. On February 3, 1992, Respondent performed an anterior cervical fusion with plates on R.L. at NFRMC, with the intention of operating at the C5-6 level of R.L.'s cervical spine. In doing so, he utilized a portable fluoroscopy unit, intraoperatively, to ascertain the correct level of R.L.'s cervical spine for the anterior cervical fusion with plates. The success of such a procedure depends upon properly identifying the pathological discs. It is critical to correctly ascertain the site where the surgery is to be performed. Failure to correctly identify the location for surgery can result in a failure to perform the intended surgery, a failure to resolve the problem which required the surgery, and/or performing surgery in a location not requiring surgery. The method Respondent used was to palpate the boney structures, make an incision to the vertebral bodies, insert a single needle, take an X-ray, and see if the needle had correctly located where surgery should take place. Respondent's expert, Dr. Smith, and Respondent testified that they prefer the one-needle method utilized by Respondent. Dr. Gonzalez-Perez admitted that use of X-rays, including fluoroscopy in the operating room in order to locate the level of the operation is the "gold standard" of care in this type of orthopedic surgery. He would have used a two- needle technique for locating and checking the location of the surgical site, but even he considered the one-needle method to constitute acceptable medical practice. In R.L.'s case, Respondent placed the single needle at the C7-T1 level, and the fluoroscopic lateral spot films of R.L.'s cervical spine obtained in the operating room showed the needle at the C7-T1 level. Respondent, however, concluded incorrectly that the fluoroscopic lateral spot films showed a needle at the C6-7 level. Respondent miscounted from the vertebra landmark of what he thought was C-2, and removed and fused the wrong disc. On February 3, 1992, after drawing the conclusion that the intraoperative fluoroscopic lateral spot films showed a needle at the C6-7 level of R.L.'s cervical spine, Respondent proceeded with an anterior cervical fusion with plates at what he assumed was the C5-6 level of R.L.'s cervical spine, which, in fact, was the C6-7 level. Respondent, in fact, performed an anterior cervical fusion with plates at the C6-7 level of R.L.'s cervical spine. Respondent surmised in his testimony that he had been confused because on R.L., the C-2 and C-3 structures were very similar. Dr. Gonzalez-Perez maintained that Respondent should have been able to locate the correct level based on the jaw bone and part of the skull being visible in the first and pre-removal X-ray (lower image of P-7). Respondent disagreed that skull and jaw are the best landmarks. Dr. Smith testified that C-2 and C-3 look similar due to their scalloped edges, but either would be an appropriate point from which to begin counting. He, personally, would normally begin counting with C-2, which is a very distinctive- looking vertebra. He opined that even reasonable and prudent physicians can make mistakes in counting and removing the wrong disc. Dr. Gonzalez-Perez felt that Respondent could have and should have involved others in the operating room in counting vertebrae and selecting the surgical location. Respondent disagreed, maintaining that only the surgeon should make such a decision. Dr. Smith testified that he, personally, asks someone else in the operating room to check him after he has counted. Petitioner contends that by failing to correctly identify the level of the spine and to make certain of the operative level before proceeding, Respondent failed to practice with the level of care, skill and treatment which is recognized by a reasonable and prudent medical physician under similar facts and circumstances as being acceptable and that Respondent had the information and should have been able to properly and correctly count the levels of the cervical spine and find the appropriate disc. However, even Petitioner's expert, Dr. Gonzalez-Perez, testified that Respondent met the standard of care up to the point at which Respondent performed the actual operation, and that operating at an unintended level is a known complication of such surgery, as stated in the textbooks. Respondent testified that during the surgery, he found a disc fragment and a tear in the posterior longitudinal ligament (PLL) at the wrong level (C6-7) where he removed the wrong disc, and that during the surgery, he relied upon this discovery as indicative that he was operating at the correct location/level (C5-6). Respondent testified that he removed the piece of disc at C6-7 in one piece, found a rent in the PLL behind it, and believed the pathology he had found corresponded to what he had expected to find at the C5-6 level, based on his preoperative evaluation. Dr. Gonzalez-Perez testified that a rent in the PLL cannot be seen until the disc is removed, so viewing it does not verify the location at which a discectomy should occur. He also stated that although a surgeon tries not to push down, occasionally s/he must dig in and push tissue to the back so as to remove the desired tissue and that portions of the disc may remain in the disc space until they are scooped out. Therefore, the procedure itself can result in a tear of the PLL. In light of the pre-operative tests not showing disc material or a PLL tear, Petitioner urges that the conclusion be drawn that Respondent's surgery itself caused the tear and protrusion at R.L.'s C6-7 level, but Dr. Gonzalez-Perez did not clearly state such a conclusion. Dr. Smith testified that finding such pathology after beginning the disc removal would have been a comforting (re- enforcing) sign to any surgeon that s/he had operated at the correct level, but Dr. Smith acknowledged that such a sign would not identify the correct disc for removal before removal actually began. Due to the superiority of Respondent's and Dr. Smith's cervical spine surgical experience over that of Dr. Gonzalez- Perez, who does only an average of two cervical spine operations per year, and due to Respondent's explanation of how the PLL/annulus structures differ in the cervical spine from the lumbar spine, it is found that even if the Respondent did not see the disc fragment and PLL rent until after he began removal of the C6-7 disc, the pathology at C6-7 reasonably reinforced Respondent's belief that he was operating in the correct location of C5-6 for the duration of the operation. No one clearly testified that the C6-7 removal and fusion was necessary on February 3, 1992, or that it would become necessary at some later date. Likewise, no one clearly testified that the removal and fusion at C6-7 was not necessary on February 3, 1992, or would not have become necessary later. Dr. Smith testified that in his pre-operative discussions with his own patients, they usually tell him to fix any additional unexpected pathology he finds once he begins an operation. The evidence falls short of being clear and convincing that the wrong disc removal and fusion on February 3, 1992, resulted in any subsequent damage to R.L.'s spine. While still in the operating room, Respondent checked his work with a second fluoroscopic image (upper image of P-7). Respondent and both experts agreed that this second image would cause a surgeon who thought he had counted correctly to assume he had removed the correct disc and created a good fusion at the correct level. However, the two experts concurred that there were no clear landmarks whatsoever on this view to show that the operation had occurred at either the correct or the incorrect level. Respondent's operative report for the February 3, 1992, procedure incorrectly described removal of the C5-6 disc space. On February 4, 1992, postoperative X-rays taken at NFRMC showed that the anterior cervical fusion with plates had, in fact, been performed at the wrong level, C6-7, of R.L.'s cervical spine. Copies of the report concerning the X-rays were supplied to Respondent at about that time. About a week later, the radiologist's narrative to the same effect was provided to Respondent. Nonetheless, Respondent did not discover his error for nearly six months. After the surgery, R.L. continued to experience pain, presumably because she still had the same uncorrected, pre- operative problem at C5-6. R.L. returned to Respondent on an outpatient basis on February 11, 1992. On that date, Respondent performed a radiographic examination of R.L.'s cervical spine but made no mention to her that the anterior cervical fusion with plates had been performed at the wrong level. He made no such notation in her chart. Respondent told R.L. that he had looked at the X- rays and everything had gone well and everything looked good. R.L. next saw Respondent on March 12, 1992, when he again performed a radiographic examination of R.L.'s cervical spine. At that time, Respondent made no mention of the C6-7 level of the anterior cervical fusion with plates in her chart and again did not tell R.L. that he had removed the wrong disc and fused the wrong location. R.L. next saw Respondent on April 23, 1992, and again Respondent did not reveal his error to R.L., but he did make a narrative note to her chart which stated that R.L. "is now approximately eleven weeks from having an ACF, C6-7." Even so, Respondent did not discover he had operated on the incorrect level until R.L.'s July 23, 1992 visit, at which time, he informed R.L. what had occurred. Respondent's July 23, 1992, narrative note for R.L.'s chart makes the statement that I have explained that there is a discrepancy in her clinical exam and also the intraoperative findings and postoperative x- rays, both to the patient and her rehabilitation counselor, Ms. Terry L. Smith, R.N. Respondent clearly remembered the presence of the nurse on July 23, 1992.1 Dr. Gonzalez-Perez opined that Respondent's performance was acceptable up to the operation itself, but was not up to the acceptable level of care thereafter, because from the first (lower image P-7) fluoroscopy image, Respondent should have been able to tell the needle was on the wrong level by counting vertebrae; because Respondent should have involved others in the operating room in analyzing the X-ray; because Respondent should not have removed the C6-7 disc, based on his own preoperative work-up; and because Respondent should not have relied on the rent and fragmentation at C6-7 to confirm his conclusion that he was operating at the correct level/location. Dr. Gonzalez-Perez faulted Respondent's record-keeping for failing to write in a recommendation; because his records did not justify the removal and fusion at C6-7; and because Respondent did not follow his own initial surgical plan. Ultimately, however, Dr. Gonzalez-Perez testified that it is not "malpractice" to operate at the wrong level, provided the error is discovered at the end of the operation, because one may decide to re-operate correctly. Dr. Smith's opinion was that an acceptable level of care had been met if Respondent informed the patient of his error once he discovered it. There is no dispute that at the July 1992 office visit, Respondent offered to do the C5-6 surgery for R.L. immediately. Respondent has had no prior or subsequent disciplinary actions against him. This event occurred three years after he began to devote himself exclusively to spinal surgery. Eight years have passed since this event. There is no evidence of any other level of practice problem of any kind.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Medicine enter a final order finding Respondent guilty of violating Subsections 458.331(1)(m),(p), and (t), Florida Statutes, with mitigating circumstances, reprimanding him for same, and imposing a $750.00 fine. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 28th day of December, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, Michael Selinsky, was a candidate for the chiropractic examination given in November of 1987. The practical examination is composed of three portions, X-ray interpretation, technique and physical diagnosis, and a score of 75% must be achieved on all three subject areas in order to pass. The petitioner received a score of 77.1 on the X-ray interpretation area, a score of 77.5 on the technique area and a score of 72.5 on the physical diagnosis area. In this proceeding, petitioner challenges two of the scores he received on the examination in the area of physical diagnosis. The physical diagnosis portion of the examination consists of oral questions posed to the candidate by two examiners. The answers are graded on a scale of 1 to 4, with 4 being the highest grade. Petitioner challenges the grade of 3 one of the examiners gave him for the "neurological" portion of the exam and the grade of 2 another examiner gave him for the "X-ray technique & diagnosis" portion of the examination. On these two areas of the examination, Examiner number 14 awarded petitioner a grade of 3 on both areas. Examiner number 23 awarded petitioner a grade of 4 on the "neurological" portion anal a grade of 2 on the "x-ray technique & diagnosis" portion. During the neurological section of the oral examination, petitioner was requested to demonstrate upon a live model how he would test the extensor hallicus longus muscle for the L-5 mytome. In response, he extended the great toe in the wrong direction. In responding to a question concerning an upper motor neuron lesion and a lower motor lesion, petitioner's answers were very incomplete. During the X-ray technique portion of the oral examination, petitioner was requested to demonstrate with a live model how he would position a patient for a lateral shoulder x-ray. The petitioner responded that he had never heard of such a position, but then attempted to position the patient. In fact, there is no way to take an x-ray of the lateral shoulder view because two bones would be superimposed. While this might be viewed as a "trick" question, petitioner should have been aware that no such x-ray could be taken. During another x-ray positioning question, petitioner failed to turn the patient's head. Also, during the X-ray technique portion of the oral examination, petitioner was asked to identify three factors that affected his exposure to radiation as an operator. The petitioner's answer included such things as lead- lined booths, lead-lined walls in the x-ray room and proper film developing to decrease the number of retakes. Several times, the examiners asked him questions regarding his answers, and the petitioner responded that he was not sure. When considering an operator's safety with regard to radiation exposure, there are three fundamental and established factors to take into account: time of exposure, distance and shielding. The petitioner's answers had relevance to patient safety, but not to the safety of the operator. In spite of prodding and grilling by the examiners with regard to operator safety, petitioner was unable to elucidate the three fundamental factors of radiation safety.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition be DISMISSED. Respectfully submitted and entered this 17th day of October, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 17th day of October, 1988. COPIES FURNISHED: Copies furnished: William A. Leffler, III, Esquire Bruce D. Lamb, General Counsel Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750 Michael Selinsky Pat Guilford, Executive 5259 Wayside Court Director Spring Hill, Florida 34606 Board of Chiropractic Examiners Lawrence A. Gonzalez, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750
The Issue The central issue in this case is whether Petitioner should be granted additional credit for the responses given during his practical examination for licensure which was conducted during November, 1991, and for which Petitioner entered this challenge.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner, David Sanders, is a candidate for chiropractic licensure. His candidate for licensure number is 200142, and he took the November, 1991, practical examination administered by the Department. Petitioner received a score of 64.0 on the practical examination. Petitioner's score fell below the minimum score for passing, 75.0. Petitioner timely challenged the examination results and claimed that the Department had incorrectly graded Petitioner's responses and performance during the examination. In this case, the practical examination was administered by two examiners who, independently of one another, scored the responses given by Petitioner when presented with two case studies. For Case 1, the scoring was divided into fourteen sections or subsections where the candidate was evaluated and given points based upon the responses given. For the orthopedics section of Case 1, the Petitioner was given a scenario of facts from which he was to determine the appropriate tests to be administered to the patient. Following selection of the tests to be given, Petitioner was required to perform the test. For an inappropriate test, no points were awarded, even if the candidate performed the test correctly. Of the nine tests listed, four were to be chosen and performed. One point was awarded for each appropriate test correctly performed. In response to the orthopedics section, Petitioner selected three appropriate tests to perform. Consequently, the maximum grade, per examiner, he could have received was a score of three. Petitioner received a score of two from one examiner, and a three from the other. The first examiner commented that the Yeomans test was wrong. Since Yeomans was an appropriate test to perform, and Petitioner correctly performed the test, Petitioner should have received a three on that section from that examiner. Under the neurological subsections of Case 1, Petitioner was required to identify, based upon the fact scenario given, four muscles which should be examined and tested. Petitioner only identified three relevant muscles. Consequently, he received a score of three from each examiner. The scoring on this subsection was correct. Under subsection 8 of the neurological portion Petitioner received no credit as he failed to select three appropriate tests and correctly interpret the responses. Accordingly, the scoring on this subsection was correct. The final subsection of the neurological portion was the diagnosis rendered based upon all the findings of the scenario and test results. Since Petitioner rendered an inappropriate diagnosis, no points were awarded. The scoring on this subsection was correct. Case 2 of the physical examination contained nine sections or subsections for which Petitioner could have received credit. The first section of Case 2 required Petitioner to obtain a history from the patient. To achieve a perfect score on this section, the candidate had to inquire into seven or more areas of relevant history. If so, the score for the section would be a four. In this case, Petitioner should have received a four from both examiners regarding the history taken. As it was, Petitioner only received a three from the examiners. In order to receive credit on the physical-selection portion of the test, Petitioner was required to auscultate the heart and lungs, and purcuss the chest. Since he failed to do so, the scoring on this subsection was correct. In connection with subsections 18 and 19 of Case 2, Petitioner failed to receive full credit because he did not indicate an appropriate laboratory test. Had Petitioner requested a SMAC test, full credit would have been given for both subsections. As it was, because Petitioner failed to request a SMAC test, he could not receive credit on either subsection. The scoring on these subsections was correct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Chiropractic Examiners enter a final order changing Petitioner's score on the November, 1991, physical examination as noted above in order to recalculate and determine whether or not Petitioner failed the examination through no fault of his own. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1992. APPENDIX TO CASE NO. 92-2709 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: With regard to paragraph 1, with the deletion of the words "on physical diagnosis" in sentence 1, the paragraph is accepted. Paragraph 2 is accepted. Paragraph 3 is rejected as contrary to the weight of the evidence. Paragraph 4 is accepted. Paragraphs 5 through 9 are accepted. COPIES FURNISHED: David Sanders 359 Glenwood Avenue Satellite Beach, Florida 32937 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Chiropractic Examiners 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are promoted through an administrative complaint brought by the State of Florida, Department of Health and Rehabilitative Services (Petitioner) against David J. Samara, M.D. (Respondent) in which the agency seeks to impose a $250 fine under the authority of Section 468.3101, Florida Statutes. In particular, the Petitioner requests that the Respondent be fined based upon his allowing Beth Walton to perform radiographic procedures at a time when that individual did not hold a radiologic technologist certificate. This conduct on the part of the Respondent is said to be a violation of Section 468.3101(1)(i), Florida Statutes, and Rule 10D-74.58(1)(e), Florida Administrative Code.
Findings Of Fact Chapter 468, Florida Statutes, Part IV, empowers Petitioner to regulate persons seeking or holding certificates to use radiation on human beings as radiologic technologists. This regulation excludes licensed practitioners. One of the categories of licensed practitioners would be a practitioner licensed to practice medicine in the state of Florida. Respondent is licensed to practice medicine in the state of Florida. He practices urology and general medicine. The administrative complaint which underlies this action was sent by certified mail on May 29, 1986, directed to the Respondent. It calls for the imposition of an administrative fine in the amount of $250 against Dunn Avenue Medical Center. See Petitioner's Exhibit 4 admitted into evidence, a copy of the administrative complaint. Dunn Avenue Medical Center is not a legal entity. This description characterizes the medical offices located at 1124 Dunn Avenue, Jacksonville, Florida. It does not describe a corporation or partnership, nor is it a fictitious name duly registered. From this information and the fact that the opportunity to request a hearing says "he" and not "it," it is presumed that the complaint concerns Respondent. He has acted in accordance with that impression by timely requesting a formal hearing. Respondent practices medicine at the Dunn Avenue location on an average of two days a week. Other physicians work at that location during the work week. Those individuals are not employees of the Respondent. They are independent contractors who pay for the use of the facility at Dunn Avenue and to use employees who work at the Dunn Avenue location. The real property at the Dunn Avenue office is rented by David J. Samara, M.D., P.A., a corporation in which the Respondent is a principal. This lease arrangement with the property owner of the Dunn Avenue location was signed by Respondent and another physician, Samir Najjar. Dr. Najjar is an employee of the Respondent. The other physicians who have been referred to in the previous paragraph as independent contractors are persons other than Dr. Najjar. Those individuals would include Doctors Wernow, Fuller and Tho Nguyen. One of the employees hired by Respondent and paid by the David J. Samara, M.D., P.A. was one Laura Beth Walton. She was employed as a medical assistant. This employment occurred in the early part of 1986. When she was hired, the understanding between the Respondent and Ms. Walton was to the effect that on March 20, 1986, she was expected to stand examination to obtain a certificate as radiologic technologist. She took the job a couple of weeks before this examination was to be given. At the time that she was hired, Respondent explained that she could not do any x-ray procedures until she had obtained a license. She was told that Respondent would attempt to obtain a temporary license for her benefit; however, that license was never obtained. During the time frame countenanced by the administrative complaint, Respondent performed all x-ray procedures related to his patients that would have transpired at the Dunn Avenue location. Nonetheless, he allowed Ms. Walton to escort the patients into the x-ray room and assist them in changing their clothing in anticipation of those procedures. He also explained to Ms. Walton how the x-ray procedures were conducted and taught her about the positioning of patients who were being examined through the x-ray procedures. Respondent allowed Ms. Walton to position patients while in his presence and with his ability to make changes in their positioning if he felt that Ms. Walton's positioning was incorrect. Respondent positioned the x-ray tube and performed the study, to include the engagement of the x-ray device. Ms. Walton was allowed to process the x-ray films. Gary L. Tomaszewski, Public Health Physicist Manager involved in the Petitioner's Radiologic Technology program, testified that the positioning of a patient is a part of the process of radiologic technology. Mr. Tomaszewski is qualified to give this opinion, and his opinion concerning the positioning of patients is accepted. Ms. Walton, during her employment at the Dunn Avenue location, conducted x-ray procedures for Drs. Wernow and Fuller without the benefit of their supervision. Respondent had not condoned this conduct on the part of Ms. Walton. Again, these procedures done at the behest of Drs. Wernow and Fuller were procedures for independent contractors who were utilizing the Dunn Avenue medical facilities. Ms. Walton, during her employment at the Dunn Avenue location, was never the holder of a certificate as radiologic technologist issued pursuant to Chapter 468, Florida Statutes. It is suggested by the witness Walton that one x-ray procedure was done for the benefit of Respondent's patient Virginia Reinhart without the Respondent's being present and supervising Walton and upon his instigation. Respondent denies this set of events, and his denial is found to be more compelling than the testimony offered by Ms. Walton. Neither the Respondent nor the arrangement for independent physicians to use employees paid by David J. Samara, M.D., P.A. and equipment in the office contemplated an arrangement in which an unqualified person, such as Ms. Walton, could perform x-ray procedures. That is to say that neither the Respondent in his individual capacity as a physician nor as a principal within the Samara P.A. contemplated this extra-legal activity by Ms. Walton. Equipment at Dunn Avenue, to include the x-ray machine, was owned by the David J. Samara, M.D., P.A. The initial awareness which the Petitioner had of the activities of Ms. Walton related to patient x-rays occurred based upon an inspection of the Dunn Avenue medical office performed on April 8, 1986. At that time, the Petitioner was under the impression that the name of the facility was Dunn Avenue Medical Center. That impression continued at the point of granting an opportunity for the problem to be redressed on April 22, 1986, when correspondence addressed to Dunn Avenue Medical Center purported to allow the "center" to explain why administrative action should not be taken against it for the use of Ms. Walton as an uncertified operator performing radiographic procedures. Response to that overture was delayed based upon the lack of knowledge of that correspondence on the part of Respondent. Subsequently, the Respondent did offer explanation by correspondence of May 16, 1986. Petitioner's Exhibits 1 through 3, respectively, are items pertaining to the inspection, notice to show cause and response to that notice. These items were received into evidence. The case was not resolved by the Respondent's explanation and there ensued the administrative complaint and request for hearing.
Findings Of Fact Petitioner was a candidate for the May 1988, Chiropractic Physiotherapy certification examination. The exam consists of a written and an oral part, covering various areas of chiropractic physiotherapy. The written and oral parts of the exam are graded separately and a candidate must score 75 points on each part in order to pass and be certified in Physiotherapy. Petitioner had previously passed the written portion of the exam and was attempting only the oral portion of the physiotherapy exam. Petitioner claims he was incorrectly graded on the oral exam in the areas of manual, ultrasound and galvanic therapy. At the hearing Petitioner abandoned his claim that he was incorrectly graded on the galvanic therapy portion of the exam and that claim is not considered further for purposes of this recommended order. Petitioner obtained a score of 66.6 on the oral exam. The oral practice exam for physiotherapy certification is graded subjectively according to a candidate's response to questions asked by two grading chiropractors. The graders have been licensed to practice chiropractic for more than five years in Florida and have undergone some grade standardization training prior to examining the candidate for certification. Each grader assigns his or her point score independent of the other grader. A candidate's response therefore has two scores assigned by each grader. The points given by each grader are totalled. The two totals are then averaged together for the overall score on the exam. Some difference in the points assigned often occur. However, the difference between the two scores seldom exceeds 1 point and would therefore not be an unreasonable discrepancy when consideration is given to the effects of grading a subjective test and the effects of averaging the two point scores given by each grader. The grade range is from 1-4 points with one being the lowest score and four being the highest score. A score of 4 points is given when a candidate demonstrates superior or expert knowledge in the subject area tested. A score of 3 points is given when a candidate demonstrates minimal competency in the subject area tested. A score of 2 points is given when the candidate's answer is wrong but not dangerous to the patient. A score of 1 point is given when a candidate's response is wrong and dangerous to the patient. Dr. Brennan scored a 1.5 and 2.5 on the manual portion of the exam and a 1.5 and 2.5 on the ultrasound portion of the exam. In both instances Petitioner's answers to the questions covering the manual and ultrasound areas of the exam were wrong. Therefore the scores given by each grader could not exceed 2.9 points. Even if the highest allowable score is awarded for Petitioner's responses the additional points are not sufficient to raise Petitioner's score to a 75. Based on the above facts Petitioner has failed to present sufficient evidence to establish that he should be certified in Chiropractic Physiotherapy. More importantly, however, Petitioner's answer to the ultrasound portion of the exam was wrong and dangerous to the patient. Petitioner was clearly confused by the manner in which the question was asked by the examiner. However, the confusion did not exclude the candidate's ability or opportunity to give the correct answer in order to take the safest course of therapy to the patient. To Petitioner's credit he did demonstrate competency in his responses to the other question pertaining to the ultrasound area. It was the application of that knowledge that Petitioner failed to demonstrate. The explanations given by each grader, justifying a failing score given to the candidate, reflect the above. Therefore, neither of the graders scores on the ultrasound portion of the exam can be said to be incorrect and should remain the same. Petitioner failed to demonstrate that the two grader's scores on the manual and ultrasound portion of the exam were devoid of logic or reason for its respective assignment. Petitioner, therefore, failed to demonstrate that he was incorrectly graded on the oral exam and should be certified in Chiropractic Physiotherapy.
Recommendation Based on the foregoing Findings of Fact acid Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that he was incorrectly graded on the Chiropractic Physiotherapy exam and should be certified in the area of Chiropractic Physiotherapy. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. DIANE CLEAVINGER 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 30th day of May, 1989. APPENDIX The facts contained in paragraphs 1, 2, 3 and 4 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 5 and 6 of Respondent's Proposed Findings of Facts are subordinate. COPIES FURNISHED: Brian P. Brennan 5828 Rawson Lan Pensacola, Florida 32503 E. Harper Field General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Kenneth Easley Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Pat Gilford Executive Director 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729
