Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 13-16, 1992, petitioner, James S. Moore, a chiropractic physician, was a candidate on the chiropractic licensure examination. Doctor Moore is a recent graduate of Life Chiropractic College and was taking the examination for the first time. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Chiropractic (Board). On July 2, 1992, DPR issued a written uniform grade notice advising petitioner that while he had received passing grades on the X-ray interpretation and technique portions of the examination, he had received a score of 70.5 on the physical diagnosis portion of the test. A grade of 75.0 is necessary to pass this part of the examination. By letter dated September 23, 1992, petitioner requested a formal hearing to contest his score. In his letter, Dr. Moore generally contended that he had been denied licensure without any reason or explanation, and that during the review process his contentions were not given meaningful consideration. As further clarified at hearing, petitioner contended that he should have received higher scores on procedures 1, 2, 7, 10, 15, 17 and 18 of the physical diagnosis portion of the examination, and thus he should have received a passing grade. That portion of the test is a practical examination requiring the candidate to give verbal and demonstrative responses to a series of questions designed to test the candidate's diagnostic skills. Among other things, the candidate is required to perform certain tests and procedures on a volunteer patient. To memorialize a candidate's performance, the examination is videotaped, and a copy of petitioner's performance is found in joint exhibit 1 received in evidence. Petitioner generally contends that he should have received a higher grade on the above questions. To support his position, petitioner testified on his own behalf and presented the testimony of his uncle-employer, a chiropractic physician in Jacksonville, Florida, who has seven years experience in the field. Respondent offered the testimony of a Miami chiropractic physician who has been a grader on the examination for the last twelve years and was accepted as an expert in the field of chiropractic. It is noted that both physicians reviewed petitioner's examination prior to giving testimony. However, respondent's expert did not regrade the examination but rather evaluated the questions, petitioner's responses and the grades of the two examiners who graded petitioner to determine if the scores were within acceptable guidelines. As might be expected, the two physicians offered conflicting opinions regarding petitioner's examination scores. In resolving the conflicts in the testimony, the undersigned has accepted the more credible and persuasive testimony, and this testimony is embodied in the findings below. There are two independent chiropractors who grade each candidate on the physical diagnosis part of the examination. Each examiner is given one hour of standardization training prior to the examination, there is no discussion by the examiners during the examination itself, and they grade independently of one another. There is no evidence to support a finding that the two examiners who graded petitioner conferred with each other prior to assigning a grade or otherwise acted improperly in the performance of their duties. In order to preserve the confidentiality of the examination, the questions or information given to a candidate will not be repeated verbatim here but rather only a general description will be given. As to question 1, petitioner was penalized one point (or given a grade of three out of four points) because he stated that the normal range for a particular joint was at 100 degrees. He derived this answer from the American Medical Association Guidelines for Impairment, which is the standard used for disability evaluation. Because impairment standards are not synonymous with a normal range of motion, petitioner's response was incorrect and his score of three should not be changed. In procedure 2, the candidate was given a hypothetical case history of a female patient and was required to choose four appropriate orthopedic tests that related to her condition and to then perform each test. The question noted that if an incorrect test was selected, no credit would be given even if the test was performed correctly. Petitioner selected only two correct tests and accordingly received a grade of two out of four possible points. Respondent's expert confirmed that only two correct answers were selected, and thus petitioner's grade should not be changed. Among other things, procedure 7 required the candidate to use and interpret the Wexler scale, a reflex scale used by chiropractic and orthopedic physicians. Petitioner contended that the Wexler scale is considered zero to five, and he used this range to fashion his answer. Although at hearing respondent asserted that the scale is actually zero to four, it now concedes that petitioner's response was correct and that his grade on this question should be adjusted upward by 1.5 points. Procedure 10 related to diagnostic imaging and generally required the candidate to select the appropriate x-rays to be taken for a given set of facts. Because petitioner failed to take a necessary spot hip x-ray, he did not receive full credit on the question. At hearing, petitioner contended that the omitted x-ray would over-radiate the patient and that the large views taken of the patient would give sufficient detail of the primary complaint area. However, these contentions are rejected as not being credible. Therefore, the request to change the grade on this procedure should be denied. In procedure 15, petitioner was given certain information concerning a patient and was required to make a specific diagnosis to be written in the patient's records. The question also provided that if an incorrect diagnosis was selected, the candidate would receive no credit. In this case, petitioner failed to select the proper diagnosis. His response that the patient suffered from a "sprain/strain" of a particular muscle was incorrect since there is no such thing as a sprain of a muscle. Indeed, only joints and ligaments can be sprained. Although respondent's expert conceded that the correct answer was not "easy" to ascertain, all candidates faced the same level of difficulty on the question and thus no change in petitioner's grade is warranted. Petitioner next contends that he was given an incorrect grade on procedure 17, which required him to identify which physical examination procedures (more than one) he would use based upon a hypothetical patient history. The question provided that unless all procedures were identified, no credit would be given. Because petitioner did not state that he would take the patient's vital signs, a necessary procedure for a new patient, he properly received a zero score. Finally, procedure 18 used the same hypothetical patient history given in procedure 17 and required the candidate to demonstrate on a volunteer patient the necessary examination procedures. Of particular significance was the requirement that the candidate not only correctly perform the procedures, but also demonstrate those procedures in the usual and customary order. Unfortunately, petitioner performed the first of four procedures last, which would affect the reliability of the findings, and thus he received no credit. Therefore, petitioner's grade on this question should not be changed. In summary, with the exception of procedure 7, the scores given to petitioner on each of the challenged procedures are supported by logic and reason, and there is no justification in changing the overall score to a passing grade. In addition, the test was fairly administered in every respect to all candidates, including the provision in some questions that unless the entire question was correctly answered, no partial credit would be given. Thus, petitioner's contention that he should have received partial credit instead of no credit on several questions is without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order raising petitioner's grade on the physical diagnosis part of the May 1992 chiropractic licensure examination from 70.5 to 72.0 but denying his petition in all other respects. DONE and ENTERED this 4th day of January, 1993, at Tallahassee, Florida. DONALD R. ALEXANDER 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 4th day of January, 1993. Respondent: APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6162 1-2. Partially adopted in finding of fact 5. 3-4. Partially adopted in finding of fact 6. Partially adopted in finding of fact 7. Partially adopted in finding of fact 8. Partially adopted in finding of fact 9. Partially adopted in finding of fact 10. Partially adopted in finding of fact 11. NOTE: Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Vytas J. Urba, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Dr. James S. Moore P. O. Box 229 Doctor's Inlet, FL 32030 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0752
Findings Of Fact Respondent has been a licensed physician in the State of Florida for 30 years. He holds license number ME 0009656. Respondent, whose specialty is general surgery, began practicing in Orlando in 1963. At no time has Respondent' practice been limited to general surgery. When Respondent arrived in Orlando in 1961, he assisted a Dr. Cox. At the time, Dr. Cox and Respondent were the only physicians providing medical services, outside of public health clinics, to the predominantly black community of the Washington Shores area of Orlando. The subject patient (Patient), who was born on December 2, 1951, selected Respondent as her primary physician in 1977. At the time, Respondent was the physician for the Patient's husband and his mother. The Patient saw Respondent Periodically for-several years. Respondent's medical records of the Patient's initial visit record complaints of headaches and dizziness and a history of glaucoma in the Patient's left eye. The glaucoma arose from a traumatic injury suffered when she was eight years old. The Respondent's treatment of the Patient during 1977-1984 is not in question in this case. After a six-month period during which she did not visit Respondent, the Patient saw Respondent on February 14, and March 12, 1985, complaining of pain in her arm. After ordering X-rays and trying Feldene for the pain, Respondent found that the Patient responded better to Indocin, which is a mild pain reliever and anti-inflammatory medication. The X-ray reports, dated March 3, 1985, indicated that the Patient's cervical and dorsal spine were normal. According to the medical records, on February 14, the Patient's blood pressure was 146/96 in her left arm and 136/95 in her right arm and her pulse was 70 and 65 respectively On the March 12 visit, her blood pressure was 149/98 and her pulse was 81. On her next office visit, May 23, 1985, the Patient complained of nervousness, as reflected in the medical records. Her blood pressure was 152/104 and her pulse was 87. Respondent prescribed Inderide 40/25 for the Patient's hypertension and Centrax 10 mg. for the Patient's nervousness. This is the first time that he had prescribed either medication for the Patient. Respondent's medical records disclose what drugs were prescribed, the strength, and the frequency that they were to be taken. Respondent's records are not as clear as to how many pills were prescribed or whether the prescriptions were refillable. By reference to pharmacy records, however, one can determine with reasonable certainty how long the Patient was prescribed Centrax and Inderide by Respondent. With this finding, it is possible to determine from Respondent's records when a reference to a drug means that Respondent is acknowledging that the Patient is still taking the drug and when such a reference means that Respondent is giving the Patient a new prescription. Inderide is a controlled substance that combines a diuretic with Inderal, which is a beta-blocker. Both ingredients are antihypertensive agents. Inderide 40/25 contains 40 mg. of Inderal and 25 mg. of the diuretic. Besides blocking beta- receptor sites, Inderal does not otherwise affect autonomic nervous system activity. Inderal may also decrease intraocular pressure, such as that associated with glaucoma. 1O. The abrupt discontinuation of Inderal is contraindicated for a broad class of patients who have angina or may be at risk of having occult atherosclerotic heart disease. Additionally, Inderal may impair certain heart functions, which "may augment the risks of general anesthesia and surgical procedures." 1991 Physician's Desk Reference, Product Information, P. 2389. Centrax is a controlled substance derived from benzodlazepine, which has depressant effects on the central nervous system. As a benzodiazepine, Centrax is capable of producing psychological and physical dependence- According to the 1991 Physician's Desk Reference: Centrax is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. . The effectiveness of Centrax in long-term use, that is, more than 4 months, has not been assessed by systematic clinical studies. The physician should periodically reassess the usefulness of the drug for the individual patient. 1991 Physician's Desk Reference, Product Information, p. 1625. The 1991 Physician's Desk Reference recommends that patients taking Centrax for long periods have blood counts and liver function tests "periodically. " Special care is advised when using Centrax in combination with other antidepressants. Side effects of Centrax include dizziness and fatigue in about 10 percent of the patients and, less commonly, headaches and slight decreases in blood pressure. On May 30, 1985, the Patient returned to Respondent's office to have a dressing changed in connection with the removal of a growth from her arm. Her blood pressure was 128/92 and pulse was 78. The Patient next visited Respondent on July 23, 1985. As directed by Respondent, the Patient had been taking the recommended dosages of Centrax and Inderide for the past two months. On this visit, she complained of weak spells. She reported that her ophthalmologist had prescribed for her Timoptic, which is a beta blocker that is available in an eye solution. Timoptic reduces intraocular pressure, such as that associated with glaucoma. The Patient's blood pressure was 146/93 and her pulse was 55. Respondent's medical records note that the Patient was taking, in addition to the Timoptic and Indocin, Centrax and Inderide 40/25. At this time, Respondent ordered laboratory work on the Patient, including a complete blood count, fasting blood sugar, the SMAC series of 23 blood tests (which would disclose certain liver dysfunctions), an EKG, and an RPR seroiogical test. The test results were normal except for indicating borderline anemia. The Patient visited Respondent a week later on July 30. Her blood pressure was 140/82 and her pulse was 63. In response to her complaints of headaches, Respondent ordered a CT scan of her brain, continued the Centrax and Inderide, as well as Hemocyte tabs for the borderline anemia. By report dated August 7, 1985, the CT scan proved normal. The Patient visited Respondent about a week later on August 8. Her blood pressure was 121/77 and her pulse 50. On this visit, Respondent directed her not to take the Zantac, which he had prescribed two weeks earlier for a possible ulcer. The Patient had never taken any Zantac. His records also notes that the Patient only briefly took Fiorinal, which Respondent had Prescribed during the prior visit, due to nasal bleeding. Five days later, as reflected in the medical records, Respondent called Dr. Ferguson, who was then the Patient's ophthalmologist. They agreed that the Patient should discontinue the Timoptic due to the low pulse. On August 16, the Patient returned to see Respondent. Her blood pressure was 122/98 and her pulse had increased to 85. The medical records report that Dr. Ferguson had discontinued the Timoptic and had substituted another medication for intraocular eye pressure. The records also show that Respondent gave the Patient a prescription for Inderide 40/25 and Centrax 10 mg, as well as a potassium supplement for leg aches and Indocin for pain and inflammation. On August 29, 1985, the Patient returned to see Respondent. She stated that her head was ready to "explode," according to the medical records. She reported that she had been taken off all eye medication. Complaining of insomnia, the medical records note Respondent's observation of constant fidgeting indicative of anxiety. Respondent decided to increase the frequency that the Patient would take the Centrax from twice a day to three times a day. He also ordered T3 and T4 tests to determine if the Patient suffered from hyperthyroidism. About a week later, on September 5, the Patient revisited Respondent. Respondent prescribed an antihistamine for her complaints of hoarseness and a dry cough. The records disclose that the thyroid test results were normal. The Patient returned to Respondent on September 13. Noting less nervousness and hoarseness and only intermittent headaches, as reflected in the medical records, Respondent approved her returning to work. Her blood pressure was 130/1OO. The notes show that she is to "cont[inue]" the Inderide, Centrax, and Indocin. In the four months since the Patient commenced taking Inderide and Centrax, Respondent had seen her nine times or about once every two weeks. Respondent had also ordered substantial laboratory work to monitor the Patient's condition, consulted with her ophthalmologist with the result that she was taken off eye medication to see if her complaints would be eliminated, obtained a CT scan to rule out other sources of the headaches and related complaints, and obtained thyroid tests to rule out a thyroid malfunction. Sometime prior to the end of 1985, the. Patient changed ophthalmologists and retained Dr. Jerry Shuster to treat her glaucoma. Respondent had continued to prescribe Inderide 45/20, as he intended her to take it for an indefinite period to control hypertension. However, Respondent's prescription for Centrax had run out. On December 26, 1985, the Patient called Respondent to ask for a conference. As a result of this conversation, Respondent called Dr. Shuster and learned that, while treating her for her eye problems, he too had noticed her nervousness. The physicians agreed the nervousness would be helped by restarting Centrax. On December 26, following his conversation with Dr. Shuster, Respondent reissued the Patient's prescription for Centrax, Inderide, and Indocin. The Centrax prescription was for 60 pills with no refill; if taken at the maximum prescribed frequency, the Centrax prescription would run out in about 20 days. By contrast, the Inderide prescription was for 30 pills and allowed three refills; at one pill daily, this prescription would last 120 days. The Patient visited Respondent on January 16, 1986. Her pulse was 52, and she was treated for a vaginitis. A return visit on January 30 disclosed that her vaginitis had cleared up. The medical records note that her blood pressure was 121/89 and pulse was 69. The records also note that the Inderide, Centrax, Indocin, a cortisone (for the vaginitis), and Timoptic prescribed by Dr. Shuster would be continued. Based on the findings contained in Paragraphs 33 and 38 below, the word, "continued," as used in Respondent's medical records, means that the Patient was directed to continue taking medication from a prior prescription, not that she received a new prescription. In January or February, 1986, the Patient decided to discontinue the Centrax because of the fatigue that she associated with its use. She did not again take Centrax until about August, 1986, although she continued to take the Inderide. When she continued the Centrax, she had only what remained of the 20- day prescription that she had received on December 26, 1985. On March 11, 1986, the Patient next visited Respondent. Her blood pressure was 150/90. She complained of leg aches and exhaustion, and Respondent noted in his medical records his observations of fidgeting and restlessness. Respondent prescribed a potassium supplement for the aching leg and ordered a complete blood count, fasting blood sugar, and electrolytes test, which proved normal. Seven months passed before the Patient saw Respondent again. On October 15, 1986, she came to the office. Her blood pressure was 134/91 and her pulse was 73. She stated that she was suffering from nausea and dizziness. Respondent gave her another prescription for Inderide 40/25, Cortisporin for an unrelated ear infection, and Antivert 25 for the dizziness. Respondent prescribed no Centrax during the October 15 office visit. The Patient's pharmacy produced the prescription for Inderide, but, unlike the case with the simultaneous prescriptions for Inderide and Centrax on December 26, 1985, produced no prescription for Centrax. In the absence of any mention of Centrax in Respondent's medical records, which are thorough as to when Centrax and other medications were prescribed, there is no basis to find that Respondent wrote a new prescription for Centrax. Almost four months passed before Respondent again saw the Patient. On February 6, 1987, she visited the office because of back pain and stress-induced frequent urination. Her blood pressure was 140/87 and pulse was 75. Dr. Shuster had been prescribing her Timoptic and steroids for her glaucoma. Respondent approved the use of a heating pad and provided no other treatment. Nine months later, on November 11, 1987, the Patient returned to Respondent's office. She was suffering from pain in her right eye and suggested that the Timoptic being prescribed by Dr. Shuster was responsible. She was still taking the Inderide 40/25 that Respondent had prescribed, but had not been prescribed any more Centrax since December 26, 1985. Respondent gave her a new prescription for Centrax 10 mg., to be taken as needed but not more than three times daily. The prescription for Centrax was for 60 tablets with two refills. At the maximum allowed frequency, the Patient received a 60-day supply of Centrax. Respondent also ordered the T3, T4, and TSH thyroid tests, a complete blood count, and SMAC blood test. The results of the thyroid tests, which were reported on November 13, were normal for T4 and TSH and very slightly elevated for T3. Almost two leeks later, on November 23, 1987, the Patient returned to Respondent's office. Her blood pressure was 123/84 and her pulse 77. She was tired and weak and experienced numbness in her right leg, but she said that she was sleeping well. Respondent's notes reflect that he directed her to continue her medications, to take a vitamin B12 injection, and to call him the following day. The notation, "cont[inue] med[ication]s" did not mean that Respondent gave the Patient a new prescription; in this case, he had just given her a three months' supply only 10 days earlier. No prescriptions were produced by the Patient's pharmacy for any new prescriptions on or about November 23. Further, Respondent's testimony concerning his unwillingness to prescribe more than a limited amount of Centrax at one time is credited. On December 1, 1987, the Patient returned to the office. Her blood pressure was 127/78 and pulse 72. The notes record a conversation among Respondent, the Patient, and her husband that concluded with the decision that the Patient would speak with Dr. Shuster about her vision. Respondent prescribed Indocin, which had been used frequently in the past for an arthritic condition and general body aches. Two weeks later, on December 15, the Patient returned. Her blood pressure was 122/95 and pulse was 82. The records note that she appeared calmer. Respondent spoke with Dr. Shuster about the Patient's anxiety about losing her vision in the damaged eye, and they agreed that she needed an antidepressant. According to the records, Respondent prescribed Tofranil 25 mg. and that she continue to take her Centrax. Tofranil, which is a member of the dibenzazepine group, is an antidepressant that acts primarily by stimulation of the central nervous system. The 1991 Physician's Desk Reference suggests that the physician Prescribe a tranquillizer with Tofranil, if manic episodes occur. The use of Tofranil ended two weeks later when the Patient returned to Respondent's office on December 29 complaining of nausea. Recognizing this as an adverse reaction to Tofranil, Respondent took her off the medication. Her blood pressure was 131/96 and pulse 73 during this visit. In response to a complaint of hoarseness, Respondent ordered a chest X-ray and referred her to an ear, nose, and throat specialist. Chest and pelvic X-rays proved normal, as well as a mammogram taken at the same time. In response to complaints of diarrhea and stomach cramps, Respondent Prescribed Tagamet. He also continued the Prescription for Centrax, but did not provide her with a new Prescription at the time. However, on January 8, 1988, the Patient's Pharmacy filled a new Prescription from Respondent for the Patient for 60 Centrax tablets and refillable three times. The prior Centrax Prescription could have been exhausted by this time, if the Patient took three tablets a day. The new prescription gave her a 80-day supply, if she used it at the maximum rate. The ear, nose, and throat specialist, Dr. Stephen E. Howery, saw the Patient on January 4, 1988. He noted that the Patient complained of persistent hoarseness since July, 1987, and suffered from hayfever. His impression was that she suffered from polypoid degeneration of the vocal cords and recommended antihistamines. If this treatment did not work, he recommended a laryngoscopy and stripping of the vocal cords. The Patient visited Respondent on January 12. Her blood pressure was 123/92 and pulse 69. Apparently, Dr. Howery's initial conservative treatment, which was identical to Respondent's successful treatment of the same complaint two and one-half years earlier, did not help. Outpatient surgery was performed on or about January 14, 1988. The surgery, which required general anaesthesia, was successful. In preparation for the throat surgery, the Patient stated that she was taking Centrax, Inderide, Tagamet, and Timoptic, which were all discontinued prior to surgery. Following the throat surgery, the Patient began to experience difficulty in urination. She contacted Respondent, who suggested that she go to the emergency room of a nearby hospital for catheterization. After a couple such visits, when the Patient again could not void her urine, Respondent advised that she go to the hospital. In the meantime, Respondent contacted the patient's gynecologist, Dr. Chisholm. He examined the Patient on January 20 and found no gross abnormalities except for a two cm. ovarian cyst that was not the cause of the Patient's urinary problems. Respondent also contacted a uroiogist, Dr. Helmley, who eliminated the obstruction by Performing a cystoscopy and urethral dilation on January 22 which also required a general anaesthesia. At this time, Dr. Chisholm and Respondent agreed that the Patient required the services of a psychiatrist Dr. Lillian Saavedra met the Patient while she was still in the hospital. The Patient was released from the hospital on January 24, 1988. At about this time, the Patient decided not to see Respondent anymore. She required hospitalization the beginning of February, 1988, spending two weeks in a psychiatric unit of a local hospital. By this time, she was on a variety of medications, most if not all of which had not been Prescribed by Respondent. Dr. Saavedra's final diagnosis at the conclusion of the hospitalization was that the Patient suffered from somatization disorder, possible family discord, hyperthyroidism, and glaucoma in her left eye. After a few months, the Patient discontinued seeing Dr. Saavedra and taking the antidepressant that she had prescribed for the Patient. The Patient saw another psychiatrist and later a chiropractor, and her complaints gradually diminished. Nothing in the record establishes that Respondent failed to obtain adequate laboratory testing to evaluate the condition of the Patient. From May, 1985, through January, 1988, hyroid tests, in addition to various X-rays and a CT scan. These proved normal. The implication in the allegation of inadequate laboratory testing is that Respondent misdiagnosed the Patient's condition. The record is clear that he did not fail to detect thyroid problems because, during this period, she had. none. Although the low pulse rate was properly a matter of concern, Respondent reacted to it by causing the discontinuation of Timoctin. Later, Respondent's pulse rate evidently acclimated to the beta blockers. Similarly, Respondent did not fail to diagnose the polyps on the vocal cords that were later corrected by surgery. The initial treatment of the ear, nose, and throat specialist, was the same as Respondent's successful treatment of the condition two and one-half years earlier. In view of Dr. Howery's conservative initial approach to the problem, it is impossible to infer that Respondent failed to make a missed diagnosis or untimely referred the Patient to a specialist. Respondent did not fail to diagnose any dependency upon Centrax. There are two breaks in the Centrax prescriptions. Following the commencement of Centrax on May 23, 1985, the Patient took the drug continuously far four to seven months, before a break occurred prior to the December 26, 1985, prescription. The Patient discontinued taking Centrax in January or February, 1986, so, except for what tablets may have been unused from the December 26 prescription, the Patient took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was Prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to :e effective, there is no evidence that any dependency resulted during this time. The second period of use was not Particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, renewal. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having unused from the December 26 prescription, the Patient: took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to be effective, there is no evidence that any dependency resulted during this time. The second period of use was not particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, refill. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having the Patient examined by a urologist. Respondent's medical records amply justify the various treatments that the Patient received during the years that she was seen by Respondent. The medical records are, at times, somewhat obscure as to the number of tablets prescribed at a given point. However, the records disclose A. uniform use of certain terms which, as corroborated by the pharmacy's records, provide the information from which the number of tablets can be calculated. The major exception is the Inderide, but Respondent intended to maintain this drug indefinitely. Nothing in the record establishes that Respondent failed to practice medicine with the level of care, skill, and treatment that a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances. In this finding, the relevant level of care, skill, and treatment imposed upon Respondent is not relaxed because he, a general surgeon, elected to practice general medicine or because he chose to provide medical services to a community in need of such services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. ENTERED this 9th day of July, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 9th day of July, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 7: adopted except that the evidence did not demonstrate that Centrax could not be useful for treatment of anxiety over the periods for which Respondent prescribed it to the Patient. 8: rejected as subordinate and irrelevant. Petitioner failed to prove that Centrax was inappropriately prescribed foi the Patient. 9-10: adopted. 11: adopted except that May 23, 1985, is the date that Respondent first prescribed Centrax for the Patient. 12-13: adopted in substance. 14-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as recitation of testimony. 17: rejected as unsupported by the appropriate weight of the evidence. 18 and 20: rejected as subordinate. 21: rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23 and 29-35: rejected as recitation of testimony. Dr. Garoni's testimony has not been given much weight for the reasons set forth on the record at the hearing. 24: rejected as recitation of testimony. 25: adopted in substance. 26-28: rejected as irrelevant. Petitioner failed to prove that the Centrax was responsible for any of these problems. To the contrary, the record suggests other factors responsible for these symptoms. 36 (except for (c)): rejected as recitation of evidence. 36(c): rejected as unsupported by the appropriate weight of the evidence. The indication as to amount of pills and renewability, however, is oblique and barely satisfies the requirements of recordkeeping. 37-38: rejected as recitation of evidence. 39: rejected as legal argument. There were obvious shortcomings in Dr. Garoni's testimony concerning the subject medications, and he candidly admitted his lack of familiarity with the subject drugs. Doubtlessly, Dr. Garoni is a "reasonably prudent similar physician," as described by Section 458.331(1)(t). However, it is obvious that Dr. Garoni's prudence has led him to exercise an abundance of caution when prescribing medications such as Centrax and Inderide. Dr. Garoni candidly testified, as to Tofranil and Centrax: "I'll be honest with you, I don't feel confident to tell you whether you ought to give those two drugs together. I mean, I think that's out of my field. I would never prescribe those two drugs at all . . .." Deposition of Dr. Garoni, P. 32. His testimony is elsewhere qualified with "I think" and "I feel," when referring to Respondent's treatment of the Patient. The strategic problem for Petitioner was that Dr. Garoni was not qualified to opine on the appropriateness of the medications. This fact does not of course mean that Respondent improperly prescribed medications for the Patient because Respondent, like Dr. Garoni, holds himself out as specializing in general surgery. Nothing prevented Petitioner from offering testimony from a physician qualified to opine as to the proper use of these drugs. If Petitioner felt constrained to limit itself to a physician practicing Respondent's self-declared specialty, then another general surgeon would have to be found. However, Respondent's actual practice is, by his own admission, not confined to general surgery. In this case, an internist or general practitioner would have qualified as a similar physician. In addition, nothing would have prevented Petit:Loner from supplementing the testimony of the similar physician, whether he or she was Dr. Garoni, an internist, or a general practitioner. In this manner, Petitioner could have offered the testimony of an expert specially trained or experienced in the use of these medications. 40: rejected as recitation of testimony. 41: rejected as subordinate. Treatment Accorded Proposed Findings of Respondent The proposed findings of Respondent have been adopted in substance except as otherwise indicated: 1-2: rejected as subordinate except as to Respondent. 7 (last sentence): rejected as legal argument. 10 and 12-13: rejected as recitation of evidence. 11: rejected as subordinate. 18 (after third sentence): rejected as subordinate. 20: rejected as unsupported by the appropriate weight of the evidence. 22-23: rejected as subordinate. 23 (second): rejected as irrelevant. 25: rejected as recitation of testimony and legal argument. 26 (last sentence): rejected as irrelevant. 28: rejected as recitation of evidence. 29: rejected as subordinate. 30: rejected as subordinate and irrelevant. 33: rejected as repetitious and recitation of evidence. 34 and 38: rejected as subordinate and irrelevant. 35: rejected as legal argument. 36: rejected as recitation of evidence. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Richard A. Grumberg Senior Attorney Department of Professional Regulation Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0792 Harvey M. Alper Massey, Alper & Walden, P.A. 112 W. Citrus St. Altamonte Springs, FL 32714-2577
The Issue Whether the Petitioner should receive a passing grade on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the Florida Medical Licensure Examination ("FMLE") administered November 15 and 16, 2001.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing and regulating physicians practicing medicine in Florida, including foreign-licensed physicians. Sections 458.311 and 458.3115, Florida Statutes (2001); Rule 64B8-5.002, Florida Administrative Code. The Department is also authorized to administer licensing examinations to physicians seeking to practice medicine in Florida. Section 456.017, Florida Statutes (2002). Dr. Rivero was accepted as a candidate for the FMLE and sat for the examination on November 15 and 16, 2001. Dr. Rivero attained a scaled score of 332 points on the Basic Sciences & Disease portion of the examination and 331 points on the Clinical Application of Medical Knowledge portion of the examination. Each of these portions of the FMLE administered November 15 and 16, 2001, had a minimum passing score (also known as "cut score") of 350 points. On November 15, 2001, the first day of the examination, the Department staff who were to administer the examination were notified that the Federal Express shipment of examination materials was incomplete and did not include the laboratory value sheets and the answer sheets to be used for each portion of the examination. The supervisor of the examination administration arranged to have copies of the appropriate documents available that morning. The examination candidates, who had been told to arrive at the examination site at 7:30 a.m., were not admitted to the examination room until 8:30 a.m. as a result of the problem with the laboratory value and answer sheets. The candidates were told to skip the questions that required use of the laboratory value sheets and to write the answers in the examination booklets for the questions that required use of the answer sheets. The candidates were advised prior to beginning the examination that they would be allowed additional time to transfer their answers from the booklet to the answer sheet. The examination began at 9:30 a.m. on November 15, 2001, after a delay of one hour. The administration supervisor made an error calculating the time and gave the candidates four hours and ten minutes to complete the examination, rather than the prescribed four hours. In addition, all candidates who wanted additional time to transfer their answers from the examination booklet to their answer sheets were given as much additional time as necessary. Dr. Rivero experienced stress and nervousness as a result of the delay and confusion in the administration of the examination that might have affected her performance on the examination. She did, however, have sufficient time to complete the examination on November 15, 2001, and to transfer her answers to the answer sheet. The minimum passing score on both portions of the examination was 350 points. These "cut scores" were developed for the November 2001 FMLE using the Angoff method of scoring. The Angoff Method is a widely used method for selecting the "cut score" for an examination. For each administration of the FMLE, a group of physicians are chosen to review the examination and determine, question by question, the percentage of minimally competent people who would answer each question correctly. The "cut score" for each portion of the examination is developed by averaging the responses of the physicians. The Angoff method was a valid methodology for ascertaining the "cut scores" for the November 2001 administration of the FMLE. After the examination was scored, a group of physicians and a psychometrician met to review all of the questions that were the subject of a complaint by examination candidates and all of the questions that a statistically significant number of candidates answered incorrectly. The group also conducted a Point by Serial review of the examination, which involves establishing that the candidates scoring highest on the examination answered a particular question correctly, while candidates scoring lowest on the examination answered the same question incorrectly. As part of this post-examination review, the November 2001 FMLE was reviewed for discrepancies between the order of the answers to questions in the English version of the examination and the order of the answers to questions in the Spanish version of the examination. No discrepancies were found.2 In addition, Dr. Rivero conceded that there were no discrepancies between the English and Spanish versions of the questions she answered incorrectly. The results of the review of the November 2001 FMLE established that the examination was fair, reliable, and valid. The November 2001 FMLE was developed, scored, and reviewed in accordance with the procedures normally used by the Department. Dr. Rivero has failed to establish that she should be awarded additional credit for any question the Department scored as incorrect on the Basic Sciences & Disease and on the Clinical Application of Medical Knowledge portion of the examination.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the petition of Ana Rivero challenging her failing scores on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the FMLE administered November 15, and 16, 2001. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2002.
Findings Of Fact After an examination review challenge, the Petitioner was given a score of 74 percent on the written portion of the October 2, 1992, podiatric medicine examination. (He passed the other portions of the exam.) Since the written portion was a 300-question exam, the Petitioner is just three questions short of a passing grade. First Challenge On the first question challenged (Petitioner's Exhibit 1), the Petitioner's answer clearly was incorrect. But the Petitioner contends that none of the other answers were correct, either. The Petitioner's expert conceded that the answer for which credit was given is "technically correct," assuming that the drug in question is administered orally. But he contended that the answer for which credit was given would be incorrect if the drug were administered intravenously. The Department's expert disputed that the answer for which credit was given would be incorrect if the drug were administered intravenously. Moreover, the drug is not available for intravenous administration in the United States. Given those circumstances, it is found that the answer for which credit was given is a correct answer. Seventy of the examinees (58.8 percent) chose the answer for which credit was given. An even higher percentage (79.2 percent) of examinees who scored above the median grade on the exam chose that answer. Only 29 (24.4 percent) chose the Petitioner's answer. Only 13.4 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Second Challenge On the second question challenged (Petitioner's Exhibit 2), credit was given for the answer "intermittent claudication in the limb." The Petitioner answered, "paroxymal pain in the limb." The Petitioner argues that the answer for which credit was given was incorrect because, while the question asked for a "finding," the answer for which credit was given was a "diagnosis." Intermittent claudication in the limb means cramping and pain in the limb after exercise. Paroxymal pain in the limb means pain in the limb that comes and goes. The Petitioner seems to argue essentially that a "finding" must be something that the patient would report to the physician or that the physician would observe on examination. Certainly, it is improbable that a patient would complain to a physician, "I am suffering from intermittent claudication." But it is no more likely that a patient would complain to a physician, "I am suffering from paroxymal pain in the limb." On the other hand, while it would not be surprising for a patient to report, "my leg has this pain that comes and goes," it would be no more surprising for a patient to report, "my leg has been cramping after exercise." It is found that both "paroxymal pain in the limb" and "intermittent claudication" can be termed "findings" and that the Petitioner's answer was wrong. 107 of the examinees (89.9 percent) chose the answer for which credit was given. An even higher percentage (95 percent) of examinees who scored above the median grade on the exam, chose that answer. Only six (5 percent) chose the Petitioner's answer. An even smaller percentage (3.4 percent) of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Third Challenge The third question challenged (Petitioner's Exhibit 3) was the last of a series of four questions based on a hypothetical case history. In the case history, the patient presented, had an office visit, had surgery and returned to the office three days later with another complaint. The crux of the Petitioner's argument on this question is that the question is ambiguous in giving as a time reference the time when treatment was initiated. The answer for which credit was given presumes that the treatment in question was the treatment initiated upon the patient's return to the office after surgery. The Petitioner answered the question as if the treatment in question was the surgical treatment. On its face the Petitioner's argument has some appeal. But it fails to address the logical sequence of the series of four questions that followed the case history. Bearing the sequence in mind, it was not logical or reasonable for an examinee to presume that the last question was intended to return the examinee to the very beginning of the case history. 78 of the examinees (65.5 percent) chose the answer for which credit was given. A significantly higher percentage (80.5 percent) of examinees who scored above the median grade on the exam, chose that answer. Even more telling, only 5.9 percent of all examinees chose the Petitioner's answer, and only 1.7 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Fourth Challenge The fourth question challenged (Petitioner's Exhibit 4) asked the examinees to describe, by their choice of answers, the direction of blood flow in the veins of the lower extremities. The Petitioner's answer described flow from the "perforating veins to the deep veins." The answer for which credit was given described flow from the "superficial veins to the deep veins." The Petitioner argues that his answer was correct, and that the answer for which credit was given is incorrect because blood flows directly from the perforating veins to the deep veins. But the Petitioner's answer does not account for the fact that, within the veins of the lower extremities, blood first flows within the superficial veins towards and into the perforating veins, only then flowing directly from the perforating veins to the deep veins. The direction of blood flow in the veins of the lower extremity, taken as a whole, is most accurately described in the answer for which credit was given. 67 of the examinees (56.3 percent) chose the answer for which credit was given. A higher percentage (61.8 percent) of examinees who scored above the median grade on the exam, chose that answer. 24.4 percent chose the Petitioner's answer. 25.8 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results are not particularly helpful in affirmatively validating the Petitioner's score on this question, but neither do they invalidate his score or the question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Fifth Challenge The fifth question challenged (Petitioner's Exhibit 5) was the last of a series of three questions based on a hypothetical case history. But, in this case, the question did not depend on the case history. It simply called for the "minumum [sic] toxic dose" of a drug, in ccs. In support of his answer, the Petitioner cited documentation stating in part that the drug "has a maximum dosage of 350 mgms," which translates to 20 ccs. But the question asked for the minimum toxic dosage. The minimum toxic dosage was closer to 15, the answer for which credit was given. Initially, the Petitioner's answer erroneously was keyed in as the correct answer to this question. On review of the distribution of the answers given by the examinees, the question was "flagged" because only 20.2 percent of the examinees gave the Petitioner's answer, and even fewer of the examinees (11.1 percent) who scored above the median grade on the exam gave it. Later it was discovered that a wrong answer, namely the Petitioner's, had been keyed in as the correct answer on the answer key. The question was re-scored, using the corrected answer key. 69.7 percent chose the answer for which credit ultimately was given, and an even higher percentage (83.9 percent) of the examinees who scored above the median grade on the exam chose that answer. These results validate the Petitioner's ultimate score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Sixth Challenge On the sixth question challenged (Petitioner's Exhibit 7), the Petitioner questioned whether the answer for which credit was given produces what is described in the question, as the question asks, or whether it is a diagnosis, or description, of the condition characterized by what is described in the question. In addition, the authorities, and the expert witnesses, were in conflict as to whether, in the case of the answer for which credit was given, the fibrous thickening described in the question occurs in the intima of the veins, as the question states, or in the media of the veins. (On the other hand, there also was a conflict among the authorities and the experts as to whether the Petitioner's answer produces all of the indications listed in the question.) Only 46.2 percent of the examinees chose the answer for which credit was given. Not much more (50.6 percent) of the examinees who scored above the median grade on the exam chose that answer. 29.4 percent chose the Petitioner's answer, and 41.8 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. While these results may not in themselves invalidate the Petitioner's score on this question, they seem to be consistent with the conflict in the authorities. The Petitioner may have proved at least that this question should have been discarded. But it is not necessary to reach a specific finding whether the Petitioner proved either that the answer he chose was correct, that he should have been given credit for his answer, or that the question should have been discarded. In light of the previous findings, even with credit for this question, the Petitioner would not have enough additional points to pass the exam.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Business and Professional Regulation, Board of Podiatric Medicine, enter a final order denying the Petitioner's exam challenge. However, it also is recommended that the Department reconsider the use of the sixth question challenged (Petitioner's Exhibit 7) on future examinations. RECOMMENDED this 22nd day of September, 1993, 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 22nd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2645 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Petitioner not having filed any: 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence that there is "no distention of superficial veins." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Edmund J. McGrath, D.P.M. 1660 Gulf Boulevard, Apartment 601 Clearwater, Florida 34630 Vytas J. Urba, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750 Diane Orcutt, Executive Director Board of Podiatric Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration herein is whether Respondent's license as a physician in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Rolando C. Jamilla, was licensed as a physician in Florida. The Board of Medicine is the state agency charged with the regulation of the practice of medicine in this state. Respondent's office for the practice of general medicine in located in Ft. Myers, Florida and Respondent is also the medical director at the Lee Convalescent Center, a nursing home for the elderly with between 140 and 160 beds. Patient A. J. entered the emergency room at Lee Memorial Hospital in Ft. Myers on the afternoon of August 13, 1983, complaining of shortness of breath. A 55 year old male, he previously had been diagnosed as having chronic lung disease, and was a heavy smoker. The physician on duty in the emergency room, Dr. Gavin, treated A.J. with intravenous aminophylline, a bronchodilator, and ordered a theophylline level drawn. Theophylline is a medication the level of which can be measured in the patient's serum. It is a drug which falls within the purview of the proscription in Section 458.331(1). The theophylline test ordered by Dr. Gavin indicated that A.J. had a theophylline level of 11.0 mcg/ml. A normal therapeutic range for theophylline is 10 to 20 mcg/ml. Excessive levels of the substance can result in theophylline toxicity manifested by rapid cardiac rhythm disturbances and possible cardiac arrest. It can also cause neurotoxicity and neurologic seizures. Respondent first saw A.J. at about midnight after his admission and confirmed the orders previously given by Dr. Gavin, continuing the aminophylline. When he saw A.J. the following day, Respondent continued the aminophylline regimen for another day at which time A.J.'s breathing was much more regular and easy and the aminophylline treatment was discontinued. Respondent did not order an aminophylline level test at that time because, in his opinion, since the therapy was being discontinued, the test would not have been of value. A.J.'s condition continued to improve after Respondent discontinued the aminophylline therapy on August 15, 1983 and on the morning of August 18, 1983, Respondent indicated his intent to discharge the patient the following day. However, during that evening, prior to discharge, A.J.'s condition worsened and the proposed discharge for the following day was cancelled by Dr. Bercau, the on-call physician. At this time, A.J. was again suffering severe shortness of breath, and aminophylline, along with other broncodilators, was again ordered by Dr. Bercau. Since, on August 19, 1983, A.J. was still experiencing breathing difficulties, Respondent continued the aminophylline therapy and ordered a series of tests be run on the patient which included an electrocardiogram, a chest x-ray, and a CPK (measure of blood enzyme). Respondent also requested that A.J. be seen in consultation by Dr. Charles, a cardiac specialist. On August 20, 1983, Dr. Bercau, believing that the patient was experiencing cardiac problems, had him transferred to the telemetry unit for continued and detailed monitoring of his cardiac situation and ordered a theophylline level test run on him. This showed that the patient's theophylline level was 36.8 mgc/ml, considered to be in the toxic range. Both Respondent and his expert agreed that at this point, A.J. was experiencing theophylline toxicity. As a result of the chemical tests, Dr. Bercau ordered the aminophylline therapy be discontinued as of the evening of August 20, 1983 and directed another theophylline level test be run. The result of this test, done on the morning of August 21, 1983, indicated A.J.'s theophylline level had reduced to 27.6 mcg/ml, still considered to be in the toxic range, and the doctor's notes for this day indicate that though the theophylline level was high, it was much better than it had been. Notwithstanding this entry in the doctor's notes, on August 22, 1983, Respondent again ordered the resumption of aminophylline therapy. The records do not reflect any indication that Respondent attempted to determine his patient's theophylline level before resuming this therapy. On August 24, 1983, A.J. began to have premature ventricular contractions, a cardiac rhythm disturbance. When Dr. Charles saw the patient that same day, he indicated that these arrhythmias were "most likely" due to the effect of the aminophylline administered. Dr. Charles ordered this drug be discontinued at that time. On August 30, 1983, A.J. was examined by Dr. Dosani, a pulmonary specialist, who ordered the administration of steroids in an effort to counteract the patient's bronchospasms. This apparently was successful since the patient's condition improved and he was discharged from the hospital on September 3, 1983. Aminophylline is a drug which can produce cardiac arrythmia and both cardiac and neurological toxicity can be an outgrowth of theophylline toxicity. Respondent admitted at the hearing he was aware that aminophylline can produce cardiac arrythmia. Respondent's expert, Dr. Chadha, a specialist in lung diseases, utilizes aminophylline on a daily basis since it is widely used in his specialty. Dr. Chadha could find no reason for Respondent to order a theophylline level test when there were no indications of problems manifested to Respondent and he had discontinued the administration of the drug. The patient presented no evidence of toxicity and the two other physicians who were treating the patient at the time both prescribed administration of aminophylline as well as other medication at the time Respondent did. Petitioner's expert, Dr. Cohen, opined that the prescribing of aminophylline simultaneously with oral choledyl is inappropriate and excessive and life-threatening to the patient. According to Dr. Chadha, a review of theophylline level test results at Lee Memorial Hospital for June, 1989, revealed that 31% showed a level in excess of the maximum therapeutic level of 20 mgc/ml. In Dr. Chadha's opinion,, levels of this drug within the body are extremely hard to control. Whereas Dr. Cohen was of the opinion that the Respondent's treatment of his patient, A.J., in these particulars, constituted a failure to practice medicine with the appropriate level of care, skill and treatment recognized as reasonably prudent by similar physicians under similar circumstances, Dr. Ratnesar, an internist testifying as an expert for the Respondent, was of the opinion after reading the medical charts involved, that the care and treatment given in this case by Respondent was well within medical standards. This opinion was confirmed by Dr. Charles, the cardiologist mentioned previously. Respondent admitted another patient, J.H., to the hospital on August 27, 1983. The admitting documents indicated the patient was being admitted for the treatment of pulmonary distress when in reality as admitted by Respondent at hearing, the hospital admission was primarily a "social admission" necessary as a prerequisite to the placement of the patient in a nursing home. The patient, J.H., was not in any actual pulmonary distress either at the time of admission nor at any time during his stay, and Respondent admits this. Nonetheless, Respondent prescribed Theo-Dur, a theophylline bronchodilator, and Halcion, a tranquilizer, for the patient. It is well accepted in medical circles that Halcion should be used with caution when a patient is known to have a respiratory condition because the medication effects the central nervous system which, when depressed, can have an adverse effect on the respiratory function. Dr. Cohen is of the opinion that the prescription of Theo-Dur and Halcion, conjunctively, to the patient was inappropriate and the medical records on this patient fail to indicate a medical basis for it. The records make no reference to diagnostic tests ordered by Respondent for the patient and in Cohen's opinion, they are inadequate and do not justify the treatment provided. Respondent rebuts this contention urging that the use of the two drugs together is neither contraindicated nor harmful. This position is supported by information from the manufacturer of Halcion that there is no known contraindication for its use with Theo-Dur. In fact, none of the witnesses, including Dr. Cohen, could provide any firm evidence of contraindication in the use of the two drugs. Further, the four physicians who testified on behalf of Respondent were of the opinion that his records regarding this patient were adequate. Patient C.T. was a 79 year old woman admitted to the hospital on April 13, 1983, suffering from vaginal bleeding. She was admitted from a nursing home where Respondent had been her treating physician. She was a patient in the nursing home as a result of a stroke she sustained in 1976. Several days prior to her admission to the hospital, Respondent had attempted a pelvic and a bimanual examination of the patient at the nursing home to attempt to confirm the area from which the patient was bleeding. The bimanual examination was unsatisfactory due to her obesity and, because she had a protruding hernia in the abdominal wall. Upon admission, Respondent did not perform any additional specified area examination of the patient either with a speculum or bimanually because of her advanced age and the fact that her family preferred no further discomfort be imposed on her. As a result, Respondent made a presumptive diagnosis that the patient was suffering from cancer of the uterus/cervix, but this was not confirmed by actual examination. The patient was treated medically to stop the bleeding and she was returned to the nursing home with no further complications. Though the examination at the nursing home by the Respondent was characterized as satisfactory and though no positive diagnosis could be confirmed of the cause of the bleeding, Respondent failed to request a gynecological consultation for the purpose of further diagnosis. Due to the family's wishes, however and the advanced age of the patient, this may not necessarily constitute a failure to take proper care. When Dr. Cohen gave his opinion that the failure to do a bimanual and pelvic examination was improper, he was apparently unaware that Respondent had done these examinations at the nursing home three days prior to the patient's admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Rolando C Jamilla, M.D., be placed on probation by the Board of Medicine for a period of two (2) years under such terms and conditions as are specified by the Board, and that as a part thereof, he complete no less than 40 hours of continuing medical education in subjects specified by the Board. RECOMMENDED this 18th day of September, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5414 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. Accepted and incorporated herein. 2.-4. Accepted and incorporated herein. 5. Accepted and, as it pertains to failure to monitor theophylline levels, incorporated herein. 6.-11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.&14. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for the finding that the patient's life was endangered. Rejected. 21.&22. Accepted and incorporated herein., Accepted and incorporated herein but not necessarily dispositive. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. &29. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected. Accepted and incorporated herein. For the Respondent: 1.&2. Accepted and incorporated herein. 3.&4. Accepted and incorporated herein. 5. Accepted and incorporated herein. 6.&7. Accepted and incorporated herein. 8.-11. Not a Finding of Fact but a recitation of testimony. 12.-16. Restatements of the evidence. 17.&18. Accepted and incorporated herein. 19A-D. Not a Finding of Fact but a recitation of testimony. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 James A. Neel, Esquire 3440 Marinatown Lane, N.W. North Fort Myers, Florida 33903 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Petitioner applied for and took the 1982 acupuncture examination consisting of four parts. He failed Part IV the clinical practical, or hands- on, part of the examination dealing with needle insertions, manipulation and needle removal, patient care, sanitation and antiseptic application. In 1983 the Florida Legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section. In December, 1984, Petitioner was notified in writing as to his 1984 examination results and was advised in an accompanying document that the deadline for filing an application to retake the acupuncture examination in 1985 would be May 24, 1985. That same accompanying document also advised Petitioner that candidates who failed either section 1 or section 2 of Part III must retake both section 1 and section 2 of Part III. Petitioner made the decision that he would not take the 1985 acupuncture examination but rather would wait until the 1986 acupuncture examination was given. However, when Petitioner "got laid off" from his employment, he decided to take the 1985 examination, mailing his application therefor the day before the deadline. In July, 1985, Petitioner retook Part III of the acupuncture examination. Petitioner received a score of 54 on the written practical section and a score of 65 on the clinical practical section. A score of 70 or greater on both sections is required in order to achieve a passing grade for Part III. Petitioner requested a review of his grades. That review revealed that although errors were found in scoring the written practical section, Petitioner's adjusted grade on that portion of the practical Part of the examination remained below the required 70. The review of the clinical practical section of that Part of the acupuncture examination revealed that both examiners who graded Petitioner on the clinical practical section evaluated Petitioner identically as to those areas in which Petitioner's performance was inadequate, agreeing item by item.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner failed both sections 1 and 2 of Part III of the 1985 acupuncture examination; denying Petitioner's request that his grade be set aside and that he be permitted to retake the examination without first completing the educational requirements; and denying Petitioner's application for certification to practice acupuncture in the State of Florida. DONE and RECOMMENDED this 24th day of October, 1986, at Tallahassee, Florida. LINDA M. RIGOT 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 24th day of October, 1986. COPIES FURNISHED: Marcelle Flanagan, Executive Secretary Board of Acupuncture 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce Alexander, Esquire 9200 South Dadeland Boulevard Suite 515 Miami, Florida 33156 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
