The Issue The issue in this case is whether the Petitioner, Joellen L. Dreyfus, should receive a passing grade on the May 1998 Chiropractic Board Examination.
Findings Of Fact Petitioner, Joellen L. Dreyfus, applied for examination and licensure as a chiropractor and arranged to take the May 1998 Chiropractic Board Examination. She received passing grades on two sections of the examination (Florida Laws and Rules, and X- ray Interpretation) but failing grades in Physical Diagnosis and Technique. During the pendency of this proceeding, it was stipulated that Petitioner should receive a passing grade in Technique, leaving only a failing grade of 74 (with 75 passing) in Physical Diagnosis. Since 75 was passing, Petitioner would pass the examination either if she is given credit for an additional answer, or if a question for which she did not get credit is eliminated. On July 24, 1998, Petitioner telephoned Respondent, the Department of Health, to request that a "review form for Chiropractic" be sent to her address in Dunedin, Florida. On July 30, 1998, Petitioner requested a post-examination review, which provided the same address in Dunedin, Florida. Respondent arranged for the review on September 10, 1998, and attempted to notify Petitioner of the review by letter dated August 21 and postmarked August 25, 1998, and addressed to Petitioner at her address in Dunedin, Florida, certified mail, return receipt requested. Not long after asking for the review, Petitioner moved to Georgia. Petitioner gave the United States Postal Service (USPS) a forwarding address in Cartersville, Georgia, but never notified Respondent of a change of address. When the USPS received Respondent's letter to Petitioner, it placed a postal stamp dated August 30, 1998, on the envelope, bearing the Cartersville address and a request addressed to Petitioner to notify the sender (Respondent) of Petitioner's Cartersville address. The USPS attempted to deliver the letter to Petitioner at the Cartersville, Georgia, address on September 2 and 7, 1998, but could not and had to leave notices for Petitioner to claim the letter. When Petitioner did not claim the letter, the Postal Service "X"-ed out the postal stamp with the Cartersville address and returned the letter to Respondent on September 17, 1998, with a notation that Petitioner had not claimed the letter. The USPS "X"-ed out the postal stamp to signify that the Cartersville address was not a good address. Respondent received the returned letter on September 23, 1998. Because the review notice could not be delivered, Petitioner never received notice. Not having received notice, Petitioner did not appear at the scheduled examination review and was recorded as a "no-show" even though the post office had not yet delivered a return receipt to Respondent. Ten to fifteen percent of the 200 examination reviews a year do not "show." Respondent treats them the same way as it treated Petitioner in this case, which is the same way Respondent treats examination "no-shows." It is not Respondent's practice to attempt to contact either examination or review "no-shows." Petitioner did not re-contact Respondent until August 1999. Initially, Petitioner applied to re-take the Chiropractic Examination in November 1999 but withdrew her application on September 27, 1999, when she realized that her national board part I score expired on December 31, 1998, and her national board scores for parts II and III were going to expire on December 31, 1999. On December 31, 1999, Petitioner attempted to "lock-in" her national board scores but was told that it was too late. When Petitioner realized that there was no way to preserve her national board scores, she renewed her request to review the May 1998 examination. With the assistance of her new attorney, Petitioner persuaded Respondent to agree to an examination review, which was scheduled for February 2000. In its proposed recommended order (PRO), Respondent contended that examination review in February 2000 was "for the sole purpose of preparing for the next examination." (Emphasis in PRO.) Respondent cited no evidence to support this contention, and none is found in the record. Petitioner's examination challenge was filed on March 15, 1998. Respondent also contended in its PRO that Petitioner should be barred from challenging the May 1998 Chiropractic Board Examination under the doctrine of laches. But not only was laches not raised as a defense in the Joint Response to Order of Pre-Hearing Instructions or at any time prior to Respondent's PRO, there was no evidence that the delay in the examination challenge made it difficult for Respondent to defend against the challenge. Petitioner's examination challenge blamed Respondent for the delay in reviewing the May 1998 examination and for the expiration of her national board scores. It also complained of alleged lack of anonymity and erasure marks on the answer key as well as on "the visceral portion of physical diagnosis." It then challenged two specific physiotherapy questions: one dealing with ultrasound (Question 23); and another dealing with cryotherapy (Question 24). As to the ultrasound, Petitioner essentially complained that she should not have been tested on ultrasound because, as a "straight" chiropractor (as opposed to a "mixer"), Petitioner did not use ultrasound in her practice and did not study it in school. As to the cryotherapy, Petitioner also complained that the answer she gave on the examination was correct and should have received credit. Finally, Petitioner challenged the Technique section of the examination (which Respondent eventually conceded). Like Question 23, Question 24 was worth 5 points on the 100-point grading scale for the Physical Diagnosis section of the examination. Question 24 consisted of two parts, A and B, each worth 2.5 points. Question 24 dealt with the use of cryotherapy. Part A required a demonstration, which Petitioner clearly failed. (Petitioner did not challenge part A.) After Petitioner attempted her demonstration, one of the examiners asked a question that approximated but was somewhat different from the actual first subpart of Question 24B. It does not appear from the evidence that Petitioner herself read the first subpart of Question 24B; she clearly did not read the question aloud. But it does not appear that Petitioner was confused by the way in which the examiner asked the first subpart of Question 24B. Petitioner's answer to the first subpart of Question 24B varied from (was more conservative than) the accepted answer for time and length of cryotherapy treatment using ice packs. Petitioner testified that she answered conservatively because the hypothetical patient was 60 years old. Petitioner's proposed, more conservative treatment may be appropriate for 60 year-olds with diabetes, fragile skin and blood vessels, or other hypersensitivity to cold due to aging. But for most other 60 year-olds, normal cryotherapy protocol is not contraindicated. Question 24 was silent as to whether cryotherapy was contraindicated in the hypothetical patient. During the examination, Petitioner did not ask for clarification as to whether cryotherapy was contraindicated. It could not be ascertained from the videotape of the examination whether Petitioner's answer to the first subpart of Question 24B was adjusted to take into account possible contraindications due to age of the hypothetical patient. The authoritative source for the accepted answer (Applied Physiotherapy, Second Edition, by Jaskoviak and Schafer, p. 249) stated: Cold packs are usually applied for 20-30 minutes when maximum effect is to be achieved. After 30 minutes, the packs lose their necessary degree of therapeutic coolness and must be returned to the refrigerated tank. The point of the authoritative source appears to be that cold packs do not remain cold enough for maximum therapeutic effect for longer than 30 minutes, not that cold packs must be used for 30 minutes for maximum therapeutic effect. It also does not rule out more conservative treatment for a 60 year-old, even assuming no contraindications. Respondent's expert testified persuasively that the authoritative source supported and bolstered his independent knowledge from personal education and extensive experience that the accepted answer was correct, not only generally but also in the case of a 60 year-old female with no contraindications. Petitioner's two experts testified to the contrary. But one had virtually no education, training, and experience in physiotherapy, and the other's education, training, and experience in physiotherapy was far less than Respondent's expert. When Petitioner finished her answer to the first subpart of Question 24B, one of the examiners asked a question that approximated but differed significantly from the actual second subpart of Question 24B. The second subpart of Question 24B asked for a listing of physical sensations related to cryotherapy, in sequential order. But the examiner did not initially ask for them in sequential order. The evidence was clear that Petitioner herself did not reread the second subpart of Question 24B; again, she clearly did not read the question aloud. Petitioner began to answer the examiner's question, naming second and fourth sensations in the sequence. As Petitioner paused in her response, one of the examiners told Petitioner that there were four sensations and that Petitioner was required to name all of them in sequential order. The examiner then repeated the sensation mentioned by Petitioner as the first in the sequence. Petitioner continued her response by repeating only the second sensation in the sequence, adding the third sensation in the sequence, and not repeating the fourth sensation in the sequence. Petitioner never named the first sensation in the sequence. At the end of her answer to the second subpart of Question 24B, she commented: "I'm sorry. That's the best I can do. I guess this is why I should have taken physiotherapy." Petitioner argued that the examiner(s) violated the Examiner Manual for the Chiropractic Examination May 1998 (the Examiner Manual) and, in so doing, may have misled Petitioner into thinking that the first sensation mentioned by Petitioner in her answer to the second subpart to Question 24B was the first sensation in the sequence and may have caused Petitioner to omit the actual first sensation in the sequence. The Examiner Manual stated in pertinent part: During the examination If necessary, remind the candidate to read the questions out loud for the video. Do not read the questions to the candidate or ask the candidate for additional information. (Emphasis in original.) We have agreed on the following solutions to possible problems: * * * The answer is incomplete: ask for a complete answer. * * * Avoid Giving Clues DO NOT ask any additional questions, and DO NOT provide any feedback about the correctness of the answers. When the candidate gives a wrong answer, do not ask the candidate to answer it again. You may think you are doing the candidate a favor, but most of the time candidates do not think that way. While the examiner(s) may have misled Petitioner as to the first sensation in the sequence, Petitioner also never gave the last three sensations in proper order. The evidence did not prove that the examiner(s) misled Petitioner in regard to those sensations. In addition, Petitioner more or less conceded to the examiners that she was guessing throughout her attempted answers to Questions 23 and 24. She told the examiners that she had no education in or knowledge of cryotherapy and did not use it in her practice. While correct guesses count as correct answers, Petitioner's admitted guessing supports the finding that she did not answer the second subpart to Question 24B correctly. Petitioner also argued that she should be given partial credit for her answer to the second subpart of Question 24B. But while partial credit was given for a completely correct answer to either subpart of Question 24B, partial credit was not given for a partially correct answer to a subpart. Petitioner did not prove that the it was arbitrary or unreasonable not to give partial credit for a partially correct answer to a subpart. To give Petitioner partial credit for a partially correct answer to a subpart of Question 24B would give Petitioner an unfair advantage over other candidates. Question 23 also was worth 5 points on a 100-point grading scale for the Physical Diagnosis section of the examination. Petitioner clearly did not answer Question 23 on the use of ultrasound as physiotherapy. Petitioner asserted that it was unfair and improper for Respondent to ask questions on physiotherapy on the May 1998 Chiropractic Board Examination because she had no education, training, or experience in it. Petitioner learned "straight" chiropractic at Life University in Georgia and practiced "straight" chiropractic for 12 years in Georgia. "Straight" chiropractic is limited to identification and correction of skeletal subluxations by direct manipulation. It does not use physiotherapy techniques, such as ultrasound and cryotherapy (icing). But, contrary to Petitioner's position in this case, it is found that Petitioner did have the opportunity to study physiotherapy during and after college, but she chose not to. Petitioner also asserted that Respondent gave her inadequate notice that physiotherapy questions would be on the May 1998 Chiropractic Board Examination. The Candidate Information Booklet for the May 1998 Chiropractic Licensure and Certification Examination (the Candidate Information Booklet) advised candidates approximately what areas would be covered in the Physical Diagnosis section of the examination, namely: Orthopedic and Neurological 30-35%; Diagnostic Imaging 20-25%; Case History and Physical 15-20%; Laboratory 5-10%; Diagnosis 15- 20%; and Clinical Judgment 5-10%. But it also included the following statement: Based on the Board of Chiropractic's approval of a proposal made by the Department of Business and Professional Regulation, starting with the May 1998 examination, the Physical Diagnosis portion of the examination will include questions relating to the practice of Physiotherapy. The inclusion of these questions does not alter the percentage of areas to be tested on the Physical Diagnosis portion [of] the examination, as stated in Chapter 64B2 of the Board Rules. The only other evidence as to whether inclusion of the physiotherapy questions (i.e., Questions 23 and 24) caused the percentage of areas to be tested to depart from the approximations in the Candidate booklet or the percentages stated in the pertinent Board rule was the testimony of Respondent's psychometric expert. It was her general understanding that inclusion of the physiotherapy questions did not alter the percentages because: "They are covered all through the exam I believe." But she conceded that her expertise does not extend to examination content, and she could not testify specifically as to how inclusion of the physiotherapy questions affected the percentages in the Candidate Information Booklet and in Chapter 64B2 of the Board Rules. No "content expert" addressed the issue. It is found that the only place where physiotherapy possibly might fit under the Candidate Information Booklet's description of Physical Diagnosis would be under "clinical judgment." If the physiotherapy questions were assigned to "clinical judgment" under Physical Diagnosis, the ten points assigned to those questions would have to be added to the six points assigned to "clinical judgment" on other parts of the Physical Diagnosis examination, for a total of 16 points, which exceeds the maximum percentage in the Candidate Information Booklet. (As reflected in the Conclusion of Law 42, infra, the same holds true for the percentages stated in Chapter 64B2 of the Board Rules.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Department of Health, enter a final order that Petitioner passed the May 1998 Chiropractic Board Examination. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 10th day of October, 2000. COPIES FURNISHED: E. Renee Alsobrook, Esquire Post Office Box 37094 Tallahassee, Florida 32315-7094 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-0950 Joe Baker, Jr., Executive Director Board of Chiropractic Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1983.
Findings Of Fact The Respondent is a chiropractic physician who practices in Daytona Beach, Florida, and is licensed by the State Board of Chiropractic Examiners to practice in the State of Florida. The Respondent opened the office where he presently practices in September, 1978. On or about July 10, 1979, Judith M. Matovina telephoned the Respondent's office regarding severe headaches which she had been suffering. She had been referred to the Respondent by a friend, Michael Davis, who was studying to be a chiropractor, and who was also a friend of the Respondent. An appointment was initially made for Thursday, July 12; Ms. Matovina preferred to make an appointment for a time that would not interfere with her job, and an appointment was ultimately made for 10:30 a.m. on Saturday, July 14, 1979. Ms. Matovina arrived at the Respondent's office for her appointment at the scheduled time. She sat in the waiting room for approximately five minutes. Dr. Wagner came out to the waiting room after he treated another patient and introduced himself to Ms. Matovina. He gave her a pamphlet to read regarding the treatment of headaches by chiropractors, and a form to fill out which provided personal background and a description of symptoms. She filled out the form and handed it to the Respondent who escorted her to the examination room. He asked her questions about her headaches and about her personal life. She responded that she did not believe the headaches were tension related. He told her to remove her clothes and put on a gown. He left the examination room. Ms. Matovina removed her bra and blouse, but left her slacks and shoes on. After knocking, the Respondent reentered the examination room. The Respondent thereafter engaged in conduct, a portion of which was legitimate and proper chiropractic examination, treatment and therapy; and a part of which can only be construed as an effort to induce Ms. Matovina to engage in sexual activity with the Respondent. He engaged in conversation about his poor relationship with his wife, his relationships with his girlfriends, and the fact that he had had a vasectomy. Ms. Matovina had not been to a chiropractor before, and she expressed fear as to the nature of some of the manipulations and other treatment which the Respondent performed. He referred to her as "such a baby" in response to her fear. He examined her eyes, and told her that she had pretty blue eyes and that his girlfriends had brown eyes. Ms. Matovina asked him where his receptionist was, and the Respondent responded that he did not have a receptionist on Saturday because that is when he scheduled his pretty patients. During the course of one manipulation in which the Respondent held Ms. Matovina's feet, he told her that she had cute feet. In the course of one manipulation in which the patient stood against the wall with the Respondent's arm around her waist, he told her, "They are playing our song," in response to the music on the office stereo system. He held her hand as if he was going to dance with her. He kissed her twice on the shoulder, moved his hand toward her breast, and brushed his hand across her breast. Several times during the course of the examination, Ms. Matovina said that it would be best for her to leave, but the Respondent kept saying that they should try one more manipulation or therapy treatment. Ms. Matovina protested during the course of much of the treatment, and eventually insisted upon getting dressed and leaving. During the examination, the Respondent on several occasions referred to Ms. Matovina's "pretty blue eyes," to the fact that she was "such a baby," to the fact that he had other girlfriends, and a vasectomy. After she got dressed, the Respondent behaved as though none of these things had happened. Ms. Matovina insisted upon paying for the session at that time rather than the following Monday, when the Respondent wanted to schedule another session. Ms. Matovina then left the office. She was there for approximately two hours. The following week, the Respondent had his office contact Ms. Matovina to schedule further sessions, but she refused to accept or to respond to the phone calls.
The Issue Whether Petitioner is entitled to receive a passing score on the Physical Diagnosis portion of the November 2000 chiropractic licensure examination.
Findings Of Fact petitioner is currently licensed to practice chiropractic medicine in four states. Some of his licenses are voluntarily inactive. He is a graduate of Life University, School of Chiropractic, in Georgia. From 1992 to 1999, he taught classes in Clinical and Orthopedic Diagnosis and other clinical classes at that institution, and his final position was Director of Admissions. He currently maintains a chiropractic practice in Georgia. In November 2000, Petitioner took the Florida chiropractic licensure examination. By a January 12, 2001, examination grade report the Department notified Petitioner that he had failed the Physical Diagnosis portion of the licensure examination. The minimum passing score for the Physical Diagnosis portion was 75.00. Petitioner had scored 72.00. As such, Petitioner had failed that portion. The November 2000 chiropractic licensure examination consisted of four portions: Laws and Rules; X:-ray Interpretation; Physical Diagnosis; and Technique. Pursuant to Rule 64B2-11.003, Florida Administrative Code, candidates are required to pass all four portions of the examination. Accordingly, Petitioner's failure of only one portion resulted in his failing the examination. At the disputed-fact hearing, Petitioner narrowed his challenge of disputed questions to Tasks 6 and 7 of the Physical Diagnosis portion of the examination. Petitioner withdrew his challenge to any other portions. Therefore, to pass the entire examination, Petitioner would have to prove entitlement to three points on these two tasks. Task 6 is worth three points. Task 7 is worth two points. Petitioner contended that Tasks 6 and 7 were not worded so as to call for a precise response; that the examination questions related to those tasks were subject to different, but equally correct, assessments or clinical judgments than those approved by the Department, and that he had given equally correct assessments/clinical judgments as his examination answers; and that the scoring of the examination was flawed. Prior to the examination, candidates were provided with a Candidate Information Booklet (CIB). This preparatory booklet explains what the examination will be like, explains how it is scored, and states: The references listed below may be used to prepare for the examination. This list is not considered to be all-inclusive. Following this statement is a list of professional texts divided into categories of "Acupuncture," "Physical Diagnosis," "Technique," and "X-ray Interpretation of Chiropractic and Pathology Films." The Physical Diagnosis portion of the November 2000 chiropractic licensure examination is a practical examination which tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical patient's case history. The case history for the Physical Diagnosis portion is followed by a series of related questions. For this examination, Task 1, the case history, was related to Tasks 6 and 7, because it provided critical information relating to the history of the patient whom Tasks 6 and 7 asked the candidate to evaluate. Task 6 asked the candidate to respond to the question, "What laboratory tests or diagnostic procedures, if any, would assist in the diagnosis?" Petitioner testified that he had taken a "medical" approach to this question, which should be appropriate from the viewpoint of the "Board of Chiropractic Medicine." From Petitioner's viewpoint, Task 6; was vague and the time limitations of the examination did not allow him to go back and review the preceding patient history which might have caused him to answer differently. However, he conceded that even if he had gone back and-re-read the patient history, he probably would have answered the same way. Petitioner also conceded that candidates had the opportunity to write notes on scratch paper and were allowed to refer back to their notes for gathering or taking additional information about the patient history as they progressed through the subsequent examination. tasks/questions. Petitioner answered Task 6 by listing specific laboratory test(s) he felt were warranted, whereas the Department's scan sheet or answer key stated that the correct answer should have been "None." The Department's reviewers concluded that Petitioner's answer meant that he had given laboratory tests when none were required, based on the examination information as a whole. Task 7 asked the candidate to respond to the question, "State your reasoning for choosing these tests." Petitioner's actual answers to Task 7 were not offered at hearing. However, at hearing, Petitioner gave his reasons for ordering laboratory tests as not being satisfied with one diagnosis; because a chiropractor should pursue tests to rule out other conditions in a deductive rather than inductive manner; and because a chiropractor is obligated to make a "differential" diagnosis in every case to determine the etiology of the primary diagnosis, i.e. a tumor, so that he can speak intelligently with other health care professionals, such as a medical physicianoncologist, to whom the chiropractor will refer the patient. Petitioner's additional reasons given at hearing for the laboratory tests he would have administered (Task 6) are those given above in Finding of Fact 7. The Department's approved answer for Task 7 was again negative of any reasons for laboratory tests because, in its answer-book, there should have been no laboratory tests ordered on Task 6. Despite his discounted answers to the challenged questions, Petitioner ultimately reached the correct diagnosis for the patient to whom Tasks 1, 6, and 7 applied. He reached the correct diagnosis after receiving further information on examination tasks subsequent to Tasks 6 and 7, but he still reached the correct diagnosis without running any actual laboratory tests or receiving any hypothetical laboratory test results. At the stage of Tasks 6 and 7, he was told by examiners either that no laboratory test results were available or that all laboratory tests were normal. His reaching the correct diagnosis under these conditions demonstrates that reaching a correct diagnosis without the laboratory tests he ordered certainly was possible. Petitioner testified that in formulating his answers to Tasks 6 and 7, he had relied on a standard text, Differential Diagnosis in Primary Care, Second Edition, R. Douglas Collins, M.D. F.A.C.P.; published by J. B. Lippincott Company, which text had been used to instruct him and from which text Petitioner also had taught his chiropractic students. This text is not listed in the CIB. Petitioner also discussed portions of eight other professional health care texts which he felt supported his answers to Tasks 6 and 7. None of these texts were listed in the CIB. Although the CIB is not "all-inclusive" of generally accepted chiropractic texts, the texts listed. thereon may be presumed to be generally accepted. Texts. not listed thereon do not benefit from the CIB's "imprimitur" of general professional acceptance and reliability. Petitioner only asserted that the texts upon which he relied were used in many (not all) chiropractic schools. The Departments expert in chiropractic, Dr. Scott L. Drizin, testified that of the nine texts utilized by Petitioner, only P-5, Griffith's Five Minute Clinical Consult, by Mark A. Dambro, published by Williams & Wilkins, 1997, pages 628-630, constituted a generally-accepted learned treatise recognized and authoritative for use in the practice of chiropractic medicine for Florida chiropractors, and that P-3 and P-4, also texts relied upon by Petitioner, were so specialized as to rarely, if ever, be used by chiropractors. He did, however, testify that possibly P-2, Mosby's Manual of Diagnostic anal Laboratory Tests, by Kathleen and Timothy Pagana, published by Mosby Publishing Co. 1998, might have limited value to Florida chiropractors. Neither of these texts is listed on the CIB. For purposes of his own testimony, Dr. Drizin relied upon three texts, Bates, Guide to Physical Exam History Taking, (R-15); a 1995 edition of P-5, the Griffith's Five Minute Clinical Consult, which was numbered R-16; and The Merck Manual (R-17), which texts were admitted over Petitioner's objection. Of the texts utilized by Dr. Drizin, only R-15 and R-17 are listed on the CIB and only P-5/R-16 is accepted as authoritative by both Petitioner and by Dr. Drizin. However, Dr. Drizin testified credibly that all three of the texts he had used were generally-accepted as learned treatises recognized and authoritative for use in the practice of chiropractic medicine for Florida chiropractors. It is therefore found that an insufficient predicate was laid to establish that any texts other than P-5/R-16, R-15, and R-17, constituted generally accepted chiropractic texts, sufficiently reliable for making findings of fact.' Dr. Drizin is a Florida-licensed chiropractor. He has practiced in Florida for thirteen years. In addition to his doctorate of chiropractic medicine, he holds a master's degree in biomechanical trauma. He is a member, and has held office in, multiple professional chiropractic associations and has published extensively in his professional field. He is currently a licensing examiner, consultant, and coordinator for the Department. He has testified as an expert on licensing examination challenges approximately 25 times. Accordingly, by education, training, and experience, his testimony has been accorded great weight. Upon the greater weight of the credible evidence as a whole, it is found that Petitioner's responses to Tasks 6 and 7 are incorrect and the Department's answers are correct for the following reasons. Dr. Drizin, and the reliable medical references that support his opinion, established that the principal source of diagnosis information is commonly found in the history of the patient, which was described in detail in examination Task 1. At least two of the texts upon which he relied affirmatively demonstrate that the Department's answers to Tasks 6 and 7 are correct. Dr. Drizin also explained credibly and persuasively that the case progression format from Task 1 through Tasks 6 and 7, and beyond, is designed to eliminate any perception of vagueness by the candidate, so that by the time the candidate has progressed to Task 6, he or she has more than enough information to come up with a correct diagnosis without laboratory tests. The four symptoms provided prior to Task 6 disclosed a classic syndrome, which syndrome is often used in testing physicians for the type of diagnosis sought. The four symptoms are not usually found together in the same patient. Therefore, when all four symptoms are found together in the same patient, it is so unusual that they point to only one diagnosis, without the need for the laboratory tests which Petitioner responded with for Task 6. Also, some of the tests Petitioner ordered would come back as "normal" in early stages of the condition Petitioner was asked to diagnose. Therefore, the laboratory tests that Petitioner would have conducted were neither appropriate nor effective at the early stage of the disease described in Task 1 or the early stage of the examination (Tasks 6 and 7) in the diagnosis process simulated on the examination. Although Dr. Drizin, in effect, conceded that the laboratory tests Petitioner ordered would do no harm and might be peripherally valuable, he found them superfluous in the present era of managed care. He further opined that ordering every test available to rule out all possibilities besides the obvious diagnosis at so early a stage in patient assessment would be inappropriate and would constitute detrimental over-utilization of resources which exploit the patient. Moreover, Petitioner testified that he used P-5, a text on oncology, to rule out a lung abscess, but Dr. Drizin testified credibly that the patient history of no elevated temperature provided on the examination should have ruled, out a lung abcess without the need for the further tests specified in P-5 and in Petitioner's examination answers. Petitioner presented no evidence to support a human or mechanical error in creating or scoring Tasks 6 and 7 of his examination. The Departments past testing experience does not reveal anything "tricky" about Tasks 6 and 7, provided they were approached sequentially from Tasks 1 through 6 (and 7). Several previous chiropractic licensure examinations have used these questions without a high number of failures on those particular questions. Nothing in past testing history has pointed out that these questions are misleading or confusing to a high number of candidates, because a high number of candidates do not miss these questions. Two examiners independently grade each candidate's performance during the Physical Diagnosis portion of the chiropractic licensure examination. Two examiners are used to ensure fairness to the candidate and reliability of the scores. They are selected on the basis of the requirements of Rule 64B2-11.007, Florida Administrative Code. Each examiner must attend a training session for standardization purposes and to reduce subjectivity and/or discrepancies among the examiners approaches. The examiners who graded Petitioner's performance, Examiners 15 and 59, met all qualification anal training prerequisites established by statute and rule. The two examiners agreed 100 percent in scoring Petitioner's responses to Tasks 6 and 7. Both examiners gave Petitioner an °A" score, representing zero points for each task. Upon review, other fully-qualified examiners reached the same conclusion that Petitioner's answers to Tasks 6 and 7 had been correctly scored as earning zero points. These scoring methods were correct.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Health enter a final order denying and dismissing Petitioner's challenge of the score he received on the November 2000 chiropractic licensure examination. DONE AND ENTERED this 19th day of July, 2001, 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 19th day of July, 2001.
The Issue Whether Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1997. The examination consisted of four parts: "x-ray interpretation"; "technique"; "Florida laws and rules"; and "physical diagnosis." The minimum passing score for each part was 75. Petitioner passed the "Florida laws and rules" and "technique" portions of the examination. She failed the "x-ray interpretation" and "physical diagnosis" portions of the examination, with scores of 63.20 and 70.50. respectively. As noted above, Petitioner's evidentiary presentation at hearing addressed only the "physical diagnosis" portion of the November 1997 licensure examination. On this portion of the examination, candidates demonstrated their knowledge of physical diagnosis by responding to test questions, in the presence of two examiners, either verbally or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the examiners' scores. Prior to the administration of the "physical diagnosis" portion of the November 1997 licensure examination (PD Test), examiners were provided with written instructions (Examiners' Instructions) regarding their role in the examination process and the standards they should follow in grading candidates' performance. In addition, examiners were required to attend a pre-examination organizational meeting at which they were provided with further instructions and training designed to enhance grading standardization. Questions 11 through 13 on the PD Test covered the subject of orthopedics. Candidates were presented with a written case history to which they were to refer in responding to these questions, as well as to all subsequent questions on the PD Test (including those at issue in the instant case). In question 11, candidates were asked to select (from a list) four orthopedic tests which, under the circumstances presented in the case history, were appropriate to administer to the "patient." As Petitioner conceded at hearing, of the four tests she selected, only three were appropriate. The fourth test she selected, Yergason's Test, was not an appropriate test to administer in view of the "patient's" case history. In question 12, candidates were asked to demonstrate on the "patient" how they would administer the tests they selected in response to question 11. Question 12 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting and properly demonstrating four appropriate tests; three points for selecting and properly demonstrating three appropriate tests; two points for selecting and properly demonstrating two appropriate tests; and one point for selecting and properly demonstrating one appropriate test. Both examiners awarded Petitioner two points for her response to question 12. Although she selected three appropriate tests, she properly demonstrated only two of these three tests. The test she did not properly demonstrate was Tinel's Sign. The "patient's" case history suggested that ulnar nerve, not median nerve, testing needed to be done on the "patient." There are five types of Tinel's Sign tests. One is designed to test the ulnar nerve and involves tapping on the "funny bone." Another is for testing the median nerve and involves tapping on the wrist. Petitioner demonstrated the type of Tinsel's Sign test used to probe the median nerve, when she should have demonstrated the type used to test the ulnar nerve. Because she selected only three appropriate tests and demonstrated only two of these tests properly, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 12. Question 13 required candidates to state what conditions would be suggested by positive results from the tests selected and demonstrated. Question 13 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting four appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; three points for selecting three appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; two points for selecting two appropriate tests and correctly stating, as to each, what condition would be indicated by positive results; and one point for selecting one appropriate test and correctly stating, as to that test, what condition would be indicated by positive test results. Both examiners awarded Petitioner two points for her response to question 13. Petitioner did not correctly name the condition suggested by a positive Cervical Compression test, one of the three tests she correctly selected in response to question 11. Because Petitioner selected only three appropriate tests and, with respect to one of these tests (the Cervical Compression test), failed to correctly state what condition would be indicated by positive test results, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 13. Questions 14 through 16 on the PD Test covered the subject of range of motion. In question 16, candidates were asked to explain the difference and significance between active range of motion and passive range of motion. Question 16 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for answers to question 16. Neither examiner awarded Petitioner any credit for her response to question 16. In responding to the question, Petitioner gave an accurate explanation of the difference between active range of motion and passive range of motion (by noting that the former, unlike the latter, is performed by the patient without assistance), but she did not accurately explain the significance of the difference, as required by the second part of the question. Petitioner incorrectly stated, in attempting to answer this part of the question, that active range of motion is characterized by ligament involvement. Because Petitioner did not correctly answer question 16 in its entirety, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for this question. Questions 17 through 19 on the PD Test covered the subject of neurology and focused upon muscle testing. Question 17 required candidates to name all relevant muscles that that they would test in light of the case history with which they were presented (which reflected that the "patient" had neck pain and numbness radiating down her right arm into her ring finger and little finger). Question 17 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for naming four relevant muscles; one and a half points for naming three relevant muscles; one point for naming two relevant muscles; and a half point for naming one relevant muscle. Neither of the two examiners awarded Petitioner any credit for her response to question 17. There was no connection between the muscles Petitioner named and the nerve root that the symptoms (described in the case history) suggested was the cause of the "patient's" problems. Inasmuch as Petitioner named no relevant muscles, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for question 17. Question 18 required candidates to demonstrate on the "patient" how to test two muscles selected by the examiners. Petitioner was asked to test the "patient's "triceps muscle and the interossei muscles of the "patient's" hand. The Examiners' Instructions provided that candidates should be awarded two points (full credit) for correctly demonstrating both tests and one point for correctly demonstrating one of the two tests. One examiner awarded Petitioner two points for her demonstration in response to question 18. The other examiner did not award Petitioner any points. Accordingly, Petitioner received one point (the average of the two examiners' point awards) for her response to question 18. Petitioner tested the interossei muscles of the "patient's" hand in a manner that is unconventional, but nonetheless acceptable. She did not test the "patient's" triceps muscle correctly, however, inasmuch as she did not, during her demonstration, do what was necessary to isolate that muscle. Because she performed only one of the two tests correctly, awarding Petitioner more than the one point she has already received for her response to question 18 would be inconsistent with the grading guidelines set forth in the Examiners' Instructions. To receive credit for question 19, candidates had to explain and interpret a grade level of muscle testing selected by the examiners. (There are six such grade levels: zero through five. The examiners were instructed to select one of these six grade levels.) Petitioner was asked by the examiners to explain and interpret grade level three testing. Question 19 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for responses to question 19. One examiner awarded Petitioner one point for her response to question 19. The other examiner did not award Petitioner any points. Accordingly, Petitioner received a half point (the average of the two examiners' point awards) for her response to question 19. Petitioner incorrectly stated, in response to question 19, that grade level three testing involves range of motion without gravity. Grade level three testing actually involves range of motion with gravity. Accordingly, pursuant to the scoring guidelines set forth in the Examiners' Instructions, Petitioner should not have received any credit for her response to question 19. Questions 20 and 21 on the PD Test covered dermatomes and sensory testing. Question 20 required candidates to name all relevant dermatome patterns that they would test for in light of the "patient's" case history and to demonstrate one of these tests (selected by the examiners) on the "patient." Petitioner was asked to demonstrate dermatome C5 testing. Question 20 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for correctly naming all relevant dermatome patterns and correctly demonstrating the selected test, and one point if they correctly named all relevant dermatome patterns or correctly demonstrated the selected test (but failed to do both). One examiner awarded Petitioner two points for her response to question 20. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 20. Petitioner correctly named all of the relevant dermatome patterns, but she incorrectly demonstrated dermatome C5 testing inasmuch as she focused upon the trapezium ridge, rather than the lateral aspect of the arm. Accordingly, pursuant to the grading guidelines set forth in the Examiners' Instructions, Petitioner should have received one point for question 20. Question 21 was worth two points. One examiner awarded Petitioner two points for her response to question 21. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 21. Respondent concedes that Petitioner should have received full credit (two points) for her response to question 21, and there is no evidence indicating otherwise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
Findings Of Fact In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
The Issue The issue presented is whether or not Petitioner passed the 1987 chiropractic examination.
Findings Of Fact Petitioner, Mary Campilii, was a candidate for the May 14-17, 1987 chiropractic examination. Petitioner achieved an overall score of 72, as reflected by an upward revision to her original score of 66, on the practical section of the examination. Petitioner achieved a score of 76 on the Florida laws and rules section of the examination. A minimum score of 75 is required to pass both the practical and laws and rules sections of the examination. Petitioner has challenged the method of grading utilized by the Respondent contending that it is subjective as it elates to her, and did not properly reflect her level of achievement and knowledge to the questions that she answered on the May 1987 examination. Petitioner failed to demonstrate that she demonstrated expert or superior knowledge in her answers to any of the questions on the May 1987 exam that she now challenges. The oral practice examination for chiropractic certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for license certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3, which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimum competency and a score of 4 is given when a candidate demonstrates superior or expert knowledge in the subject area tested. Petitioner presented Thomas P. Toja, an expert in grading chiropractic examinations for the Board, who offered his opinion that had the grading system utilized by Respondent been different, i.e. a system whereby a candidate could be accorded a score somewhere between a 3 and 4, when such candidate has demonstrated more than minimum competency but less than superior or expert knowledge in the subject area tested, a candidate, such as Petitioner, could have achieved an additional 3 points to her score of 72, and thereby received a passing score of 75. Petitioner has not, however challenged validity of the existing rule which permits Respondent to utilize the grading procedures applied in this case. Stephen Ordet, a licensed chiropractor in Florida for more than 7 years was received as an expert in the grading of chiropractic examinations in Florida, and was one of the graders during the May 1987 examination. Ordet's opinion, which is credited, was that Petitioner did not earn a score of 4 on any of the questions that she now challenges, and was correctly assigned a score of 3 for each of the responses she gave to questions she challenged. Thomas P. Hide, a chiropractor who specializes in the area of sports related injuries, was tendered and received as an expert in the area of reviewing x-rays and the grading of the chiropractic examination. Hide credibly testified and it is found that Petitioner was properly assigned a score of 3 on questions 8, 12, 20, 22, 28, 29, 30 and 33.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that she met the minimum criteria to pass the challenged chiropractic examination and deny her request for licensure. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Mary Camiplii 2921 Buckridge Trail Loxahatchee, Florida 33470 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Lawrence A. Johnson, D.C., is duly qualified and licensed to practice as a Chiropractor in the State of Florida. Dr. Johnson holds a license issued by the Florida State Board of Chiropractic Examiners. From on or about July 18, 1975 until August 18, 1975, Dr. Johnson treated Mabel-Ann Miller. Ms. Miller had been having pain in her back and legs and was seeking chiropractic treatment in the hope of alleviating the pain. Ms. Miller visited Dr. Johnson's office on approximately twenty occasions during the one month that she was under his care. The testimony from several of the witnesses was understandably somewhat vague with respect to what was said or done on any given visit. It is apparent, however, that during the early consultations with her, Dr. Johnson told her that he could help her, and that more than a year of treatment would be necessary. Dr. Johnson initially represented to her that the cost of treatment would be approximately $200, and that she would be permitted to pay $5 per week and the remainder when she finished her schooling. Dr. Johnson diagnosed a degenerated or herniated disc, a scoliosis or curvature of the spine, and a pelvic obliquity. Dr. Johnson told Ms. Miller that she was loosing fluid from her spine, and that unless she received immediate chiropractic treatment she would require an operation within a year, that the operation would have only a 50/50 chance of success, and that without chiropractic treatment she would stand a very good prospect of spending her life in a wheelchair. Mabel-Ann Miller's boyfriend, Chuck Alexander, had been Dr. Johnson's patient prior to the time that Ms. Miller went to Dr. Johnson. Alexander told Dr. Johnson about Ms. Miller, and prior to Ms. Miller's seeing Dr. Johnson as a patient, Alexander agreed to pay all of her expenses that she could not pay herself. He signed an agreement to this effect (licensee's Exhibit 6). The existence of this side agreement was not revealed to Ms. Miller until her second, third, or fourth visit. Ms. Miller became incensed at the arrangement, and told Dr. Johnson that she would pay her own bills. Dr. Johnson then related to her that the cost of her treatments would exceed $1,000. He told her that he would treat her on a "case fee" basis for $1,060.30. It was agreed that she would pay him a small portion of this case fee until she finished her schooling and was able to pay the entire bill. There after Dr. Johnson endeavored to have Ms. Miller sign a note for the "case fee". He initially requested 7 percent interest on the note, but later changed that amount to 5 percent. A copy of an agreement to pay which Dr. Johnson presented to Ms. Miller was received in evidence as Board Exhibit 6. Ms. Miller never signed the agreement. The testimony respecting Mabel-Ann Miller's condition varied somewhat. Dr. Johnson's diagnosis did not vary to an extraordinary degree, however, from the diagnosis given by other chiropractors, and by Dr. Hobby, a Medical Physician. The most creditable testimony demonstrates that Ms. Miller had a very mild curvature of the spine or scoliosis. She suffered a pelvic obliquity. Her left pelvis was 1.2 centimeters higher than her right pelvis. The pain being suffered by the patient was primarily muscular in nature. Ms. Miller would have benefited from chiropractic treatments, but her condition was not so severe as to require more than a year of intensive chiropractic therapy. Primarily she needed a good exercise program. After leaving Dr. Johnson's care, Ms. Miller submitted to the care of Dr. Hobby, who advised that she use an elevation on her shoe to level the pelvis and engage in an exercise program. She followed Dr. Hobby's advice, and at least up until the time of the hearing her condition improved, and she was no longer suffering pain. As has been said, Dr. Johnson's diagnosis of Ms. Miller's condition was not inaccurate. His statements respecting the severity of the condition were, however, quite exaggerated. Any disc deterioration that Ms. Miller suffered was very slight. Her scoliosis was not so severe as to require intensive chiropractic treatment. Her pelvic obliquity was not a severe problem. Dr. Johnson's statement that she would require surgery if she did not receive immediate chiropractic attention was not true. Neither was it true that she would require more than a year of intense chiropractic treatment. Dr. Johnson frequently utilized the "case fee" system of billing, and he attempted to utilize this system in billing Mabel-Ann Miller. Under the "case fee" system, a patient pays a lump sum for all needed chiropractic treatment rather than a per-visit fee. The testimony revealed that the average per-visit fee for chiropractic services in the St. Petersburg area varied from $8 to $12. Dr. Johnson's quoted "case fee" of more than $1,000 is so out of line with typical fees charged in the St. Petersburg area as to raise suspicions respecting Dr. Johnson's motives. There was no reason to expect that Ms. Miller required so many treatments as to justify such a case fee. Dr. Johnson's exaggerated statements respecting her condition could only have been motivated by his desire to have her contract for a fee far out of line with fees normally charged in the St. Petersburg area, and far out of line with the nature of treatment that Ms. Miller needed whatever fees were charged. Since Ms. Miller never signed a note agreeing to a "case fee" Dr. Johnson rendered her a statement for services on a per-visit or per-service basis. The statement was for $1,411.16. Ms. Miller visited Dr. Johnson's office on fewer than twenty occasions. Although she enjoyed the full range of services available at Dr. Johnson's office during these visits, the treatment and services she received were not remotely worth the amount which Dr. Johnson billed her. Dr. Johnson never had any agreement with the patient which would have justified such a bill which so far exceeds the community standards of the value of chiropractic services. During the time that Ms. Miller was under Dr. Johnson's care she received treatment known as Galvanic treatment in his office. A Galvanic machine renders heat to areas of the patient's body where the pads from the machine are placed. Use of the machine is somewhat risky in that a patient can be burned as a result of errors that are easy to make. Galvanic treatment was rendered to Ms. Miller at Dr. Johnson's office by Barbara Duynslager. Ms. Duynslager was trained in use of the Galvanic machine primarily by Dr. Johnson's wife, who served as Dr. Johnson's office manager. Dr. Johnson witnessed Ms. Duynslager using the machine on two occasions. Generally she was supervised in use of the machine, if at all, by Dr. Johnson's wife. It is normal procedure in the St. Petersburg area for chiropractic assistants to watch from five to ten Galvanic treatments and to be closely supervised on from five to ten more treatments before they are permitted to administer treatments unsupervised. Ms. Duynslager was given less training than that. Given the community standards, and given the risk involved in using the machine, it is apparent that Ms. Duynslager was not adequately trained. During the time that she was being treated, Ms. Miller received a minor burn on her lower back. There was no direct testimony from which it could be concluded that the burn came from the Galvanic machine; however, there is ample circumstantial evidence from which it can be determined that she did receive the burns from the machine. The burns appeared during the time she was receiving Galvanic treatment, the nature of the irritation is consistent with a Galvanic burn, and no other source of such an irritation was known. There was no evidence from which it could be determined that Barbara Duynslager was negligent in using the machine; however, the existence of the burn dramatizes the necessity for careful training on the machine. During late September and early October, 1975, Dr. Johnson consulted Philip W. Settepani, as a patient. Mr. Settepani was experiencing back pains, and he sought chiropractic assistance from Dr. Johnson. Dr. Johnson showed Settepani x-rays of his back, and described what Dr. Johnson characterized as "spurs" on the x-rays. Mr. Settepani was quite upset at what he saw on the x- rays, and he eventually sought and received chiropractic treatment from a Dr. Tilka rather than Dr. Johnson. Dr. Tilka did not describe Mr. Settepani's condition as "spurs". This led Mr. Settepani to believe that Dr. Johnson either made an erroneous diagnosis or misrepresented the diagnosis in order to scare the patient. Several of the expert witnesses who testified identified Mr. Settepani's condition as spurs . It is apparently the use of that term which caused Mr. Settepani to complain to the Board of Chiropractic Examiners. There is no evidence from which it could be concluded that Dr. Johnson made an erroneous diagnosis of Mr. Settepani, or made any fraudulent or misleading statements to Mr. Settepani. In early February, 1976, Ms. Shirley Sabo visited Dr. Johnson's office as a patient. Dr. Johnson's wife told Ms. Sabo that Dr. Johnson never had a patient he couldn't cure, and that the cure would be quick. There was no evidence from which it could be determined that these statements were authorized by Dr. Johnson. Dr. Johnson informed the patient that she would require approximately one year of treatment, and that the cost would be $1,000. Ms. Sabo did not continue treatment with Dr. Johnson. She eventually received treatment from another Chiropractor and was billed $160 for x-rays and twelve visits. The fee quoted by Dr. Johnson was far out of line with customary fees in the St. Petersburg area, and is difficult, if not impossible, to justify. Nonetheless, there is no evidence from which it could be determined that Dr. Johnson misrepresented any facts to Ms. Sabo. Dr. Johnson instituted two law suits under the name Accident & Industrial Injury Clinic, Inc. The name Accident & Industrial Injury Clinic, Inc. was recorded in the public records of Pinellas County as a fictitious name for Johnson Chiropractic Clinic. Dr. Johnson performs as a sole practitioner. There was no other evidence respecting any advertising undertaken by Dr. Johnson in the name of a clinic, or any announcements made by Dr. Johnson that his office was a clinic.
The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
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: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
