Findings Of Fact Background Petitioner, Richard Alan Cohen, sat for the dental licensure examination in December 1992 and received an overall score of 2.98 for the clinical portion of that examination. The minimal passing score for the clinical portion of the examination was 3.0. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 01, 05 and 06. Respondent rejected petitioner's challenge, and petitioner filed a timely request for a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest respondent's grading of those procedures. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05. The examination procedure During the course of the examination at issue, the candidates were called upon to exhibit, with regard to procedure 06, certain manual skills relevant to an endodonic procedure. Specifically, the candidate was required to prepare a tooth, which had been extracted and mounted in a mold, for what is commonly called a "root canal." Preparing for the procedure included the cleaning and shaping of the interior of both root canals from each apex (the tip of the root) up to the access area near the crown (top) of the tooth. Thereafter, sealant was to be sprayed into the canal, and gutta percha condensed (compressed) in the canal until it was completely filled. The goal of the procedure was to get a seal within one half to one millimeter of the apex, and to fill the canal so there were no voids. The quality of a candidate's performance on the procedure was graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, a grade of "4" represented a better than minimally acceptable dental procedure, and a grade of "5" represented an outstanding dental procedure. See, Rule 61F5-2.013, Florida Administrative Code. Petitioner's examination results Petitioner received a grade of 3.66 for procedure 06, based on scores of 3, 3, and 5 from the individual examiners. Although a passing score on procedure 06, petitioner's overall score on the clinical part of the examination was 2.98; a score below the minimum 3.00 required to pass that portion of the examination. According to the grade sheets, the two examiners who assigned petitioner a grade of 3 observed that petitioner failed to properly fill the canal spaces with gutta percha. In the opinion of the one examiner who testified at the hearing, such observation was based on his examination of an x-ray (petitioner's exhibit 1D) which reflected that the canal was filled beyond the apex and there appeared to be some spacing between the wall of the canal and the filling material. A review of the examination results At hearing, the proof demonstrated that the quality of petitioner's performance on that portion of procedure 06 pertinent to this case is aptly reflected on the x-ray marked as petitioner's exhibit 1D. That x-ray reflects, with regard to one of the canals petitioner filled, what is either a void or filling material beyond the apex of the root. Either event evidences a failure to properly fill the canal space, and warrants a grade of less than 5. Here, petitioner contends he should be awarded a grade of 4 for the procedure. The proof fails, however, to support his contention. If the image reflected by the x-ray is gutta percha beyond the apex, petitioner's performance on the procedure would not meet minimally acceptable dental standards and would merit a failing grade. If on the other hand, the material extending beyond the apex is sealant or the image reflected by the x-ray is a void, the procedure was acceptable, but warranted a grade of less than 5. Under such circumstances, it is concluded that the proof fails to demonstrate that the grades of 3 accorded petitioner were baseless, lacking in reason or that in deriving such grades the examiners departed from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1994. Hearings 1550 Hearings 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 22nd day of February
The Issue The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.
The Issue The issue to be determined concerns whether the Board of Dentistry was justified in cancelling the Petitioner'S dental hygienist license for failure to timely renew it. This necessitates resolution of the question of whether the Petitioner received the required notification of impending license expiration and whether such notification was actually sent to the last known address.
Findings Of Fact The Petitioner, Alice Kay Wynne has been licensed as a dental hygienist by the Board of Dentistry of the State of Florida. She was licensed in Florida in 1974 and practiced in Georgia and in Montana since that time. In 1975 she moved to Montana to establish a rural, dental public health preventive program. She resided from that time until approximately 1985 in Glendive, Montana. Between December 1984 and January 1988, her license was in inactive status. Pursuant to Section 466.015(1), Florida Statutes, this inactive status can be of up to four years duration. When the Petitioner renewed her license with the Board she presumably thereby notified the Board of her Glendive, Montana address. This address was maintained in the Board's records, apparently until sometime in May of 1987. In the meantime, in 1985, the Petitioner moved from Montana to Albany, Georgia. She never actually submitted a change of address notification to the Board of Dentistry, however. No statutory provision nor rule of that agency requires that such be done (although it would seem a wise course of action). The Petitioner began working as a clinical hygienist in the Navy Branch Dental Clinic of the Marine Corps Logistics Base in Albany, Georgia. During her professional tenure in Albany, Georgia, in October 1986, a notice regarding the necessity for her to renew her license and place it on active status once again before the expiration of the four year period mentioned above was sent to her then-record address in Glendive, Montana. The Petitioner never received this notice. The above statutory subsection requires that the Department of Professional Regulation give notice to an inactive licensee one year prior to the expiration of that inactive license, that is, the notice must be sent at the end of three years of inactive status. This notice is required to be sent to the licensee's last address of record. One year prior to the expiration of Petitioner's license would have been on or about December 31 or January 1 of 1986-1987. Rule 21G- 10.009, Florida Administrative Code, regarding reactivation of inactive licenses took effect December 31, 1986, containing a requirement that the above-mentioned, one year advance notice of expiration of licensure be sent by Certified United States Mail. The notice that was apparently sent to the Petitioner, however, was sent more than one year prior to the impending expiration of her license and therefore prior to the enactment of this rule requiring that notice be sent by certified mail. The notice was not sent by certified mail. There is no direct proof that it was sent by the Department or received by Petitioner. The only proof that it was sent, which the Hearing Officer accepts, is the record notation, in evidence, that it was sent to the Glendive, Montana address. It was never received by the Petitioner, however. In any event, in early 1988, knowing that she had an employment position in the Orlando, Florida area as a dental hygienist, the Petitioner inquired of the Board regarding the manner in which she should restore her license to active status. By phone call to the Board on March 28, 1988, she learned that her license had been rendered "null and void" as of January 1, 1988. She was greatly distressed by this turn of events and the following day wrote the Executive Director of the Board of Dentistry, Mr. Buckhalt, to request that her license be renewed. She informed him that she had never received notice of the impending nullification of her license, although she had filed a change of address with the post office when she moved from Montana to Georgia. Thereafter, by letter of May 11, 1988, Mr. Buckhalt informed Ms. Wynne that, at a regularly scheduled meeting of the Board, her licensure status had been considered and that the Board determined that the notice had been mailed to her last known address and that the Board concurred with the Department that Ms. Wynne's license was null and void. This letter also informed her of an opportunity to request a formal hearing concerning the issue pursuant to Chapter 120, Florida Statutes. She, of course, availed herself of that right. The above-cited statutory provision also contains a requirement that a certain minimum number of hours of continuing education shall be imposed by the Board as a condition for re- activating a license. The Petitioner received the appropriate number of continuing education credits for the years 1986, 1987 and 1988 and supplied that information to the Board. She did not formally provide the Board or the Department with a change of address notification, however. On May 6, 1987 there is an entry on the computer record of her licensure with the Board which shows that the address was then 810 Johnson Road, #6, Albany, Georgia 31705-3432. This record, Petitioner'S Exhibit 4 in evidence, appears to show that that change occurred on May 6, 1987, possibly as a result of the receipt by the Board of CLE credits mailed in, reflecting the Georgia address, although the record does not reflect this definitely. In any event, in its letter of May 11, 1988, the Board took the position that Petitioner's license was null and void and provided that notification to the Petitioner. That notification was sent by certified mail, return receipt requested.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a Final Order be entered by the Department of Professional Regulation, Board of Dentistry, according the Petitioner, Alice Kay Wynne, the opportunity to reactivate her Florida Dental Hygienist license upon demonstration of compliance with pertinent continuing education requirements and payment of all appropriate fees. DONE and ORDERED this 31st day of May, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 5th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4012 Petitioner's Proposed Findings of Fact: Accepted. Rejected as contrary to Hearing Officer's findings on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings. Rejected as irrelevant. Respondent's Proposed Findings of Fact: Respondent did not submit proposed findings of fact. COPIES FURNISHED: Alice Kay Wynne Post Office Box 50921 Albany, Georgia 31705 Reynolds Sampson, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 William Buckhalt, Executive Director Florida Board of Dentistry 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 =================================================================
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Board of Dentistry, (Board) was the state agency responsible for the licensing of dentists and the regulation of the dental profession in Florida. Respondent, Carl T. Panzarella, was licensed as a dentist in Florida holding license No. DN 0008948, and was in practice in Palm Beach County. Dr. Panzarella graduated from the University of Maryland Dental School in 1981 and practiced in Baltimore, Maryland for approximately 1 year after graduation. In the Spring of 1982 he moved to Florida and for several years, up through the Autumn of 1983, worked for other dentists. At that time, however, he decided to open his own office and, in the course of preparing to do this, met with a dental supplier who advised him as to the relative merits of the locations for dental offices he was considering in various areas within Palm Beach County. After consideration of several vacant offices, he ultimately opened his practice in an office building where he was the only dentist. Within a year, however, 5 or 6 other dentists had opened in competition, primarily in retail locations in the area, where they could advertise by large signs affixed to or adjacent to their buildings. Because Respondent's practice was located in a discrete office building, he was unable to do this and he found his practice was not growing as he had desired because of that inability to attract patients. As a result, he decided to advertise. In the Spring of 1989, some 5 years after he opened his practice, and being dissatisfied with the speed with which it was growing, he attended a practice-building seminar at which one of the presentations recommended starting a dental referral service after a check was first made with the Department to see what type of activity could be approved. Considering that a good idea, Dr. Panzarella contacted 2 other dentists who shared office space and who agreed to go in with him if the proposal could be approved by both the Department and their attorney. Dr. Panzarella then called the Department's office in Tallahassee at an information number listed in one of its brochures. He was advised by an unidentified individual that there were no laws in Florida which regulated dental referral services. His lawyer and the lawyer for the other 2 dentists with whom he was considering opening the service agreed. Based on what he believed was a clear path toward the opening of such a service, Dr. Panzarella then went back to the practice-building firm and retained it to design the advertisement which he then placed in the October, 1989 edition of the telephone yellow pages in his area. As soon as the advertisement came out, Dr. Panzarella began getting a number of phone calls from dentists practicing in the local area objecting to it. Some were reasonable and some were quite vituperative in nature. At his own request Dr. Panzarella subsequently went to a meeting of the North County Dental Society at which he described his service and answered all the questions put to him by the members about it. Dr. Peter A. Pullon, President of the Central County Dental Society but not a member of the North County Society, was also present at that meeting and was most aggressive in his questioning of Respondent about the advertisement. After asking numerous pointed questions and apparently not getting the answers he wanted, Dr. Pullon left the meeting before it was terminated. In substance, however, Dr. Panzarella was told, at or after the meeting, that in the opinion of the members of the North County Society, he was in violation of the Board's advertising rules and he would either have to cancel the advertisement or let all dentists practicing in the area join his referral service. After Dr. Pullon left the meeting, the members agreed to query the Department for guidance on the issue and be bound by the Board's response, but before that could be done, Dr. Pullon, on behalf of the Central County Society, filed the Complaint which culminated in this hearing. In the interim period between the North County Society's meeting and the filing of the Administrative Complaint, Dr. Panzarella and his associates attempted to get additional dentists to sign up with their service. No one wanted to do so, however, especially in light of the complaints about it that had been raised. Once the Complaint was filed, Respondent called the Department and spoke with Mr. Audie Wilson, asking him about the propriety of a dental referral service, and again was informed there were no rules of the Board of Dentistry governing dental referral services. The advertisement in issue here was placed by Dr. Panzarella and 2 other dentists who were practicing together. The telephone number listed in the advertisement rang in one of the two offices; in Respondent's office several days a week and in his associates' office several days a week. That procedure was followed for a period of time until they were able to determine the volume of the business, at which time the referrals were turned over to a commercial answering service to handle. The referral service was not organized as a separate legal entity. The 3 dentists in question got together as a group to do it, and all calls which came in were referred either to Respondent's office or to the office of the other two dentists. All three were general dentists, and if anyone called with a specialized problem beyond their degree of competence, they did not refer that person to another dentist but, instead, directed that person to call another referral service. Respondent and his associates had written procedures under which the referrals to their practices were regulated, such as: how the calls were to be answered; who was to get the referral; and how questions asked were to be answered. Nonetheless, no one was hired by Respondent or his associates to operate the service. Any calls were answered by the regular receptionist in the office which was receiving the calls on that day. They did, however, keep records as to from whom and when the calls were received and to which office of the participants they were referred. From this, it becomes clear that the service organized by Respondent and his associates was no more than an avenue to funnel patients to their respective dental practices and was not, in fact, a bona fide referral service such as is operated by the Palm Beach County Dental Association and by others who also advertise in the phone book. The advertisement complained of here indicates that all members of the referral service had been checked on through the American Dental Association, insurance carriers, dental schools, and had a number of years in practice. In reality, these checks were done by the Respondent's wife who merely verified that the participants had the credentials claimed. The inspections of offices and equipment referred to were done by Respondent visiting his associates' office and their visiting his, and references were provided to each other. Dr. Pullon attended the North County Society's meeting where Respondent explained his service and spoke with him and his associates. Dr. Pullon has been in practice in Florida for 11 years and is licensed in Florida and other states. He is a member of and accredited by numerous accrediting agencies and organizations. In his 11 years of practice he has become familiar with referral services and it is his understanding there are only two bona fide referral organization types. One charges the client for referral to any one of several dentists in various specialties who are signed up with it. The other is operated by a dental society which refers on the basis of membership in the society. Those societies are, however, open to membership by all licensed dentists in the community. One must belong to the society to be eligible for the society's referral service. The instant situation, in Pullon's opinion, was not a bona fide referral service but more an advertisement for the participants' practices. It has been so found. Dr. Pullon filed his complaint with the Department in his capacity as President of the Central County Dental Society. On the complaint form he listed several witnesses to the operation of the service, none of whom are members of the Central County Society. After attending the pertinent meeting of the North County Society, Dr. Pullon advised Dr. Krauser, the president of that society, that he intended to advise the Respondent of the problem and would ask for an opinion from the Department before asking Respondents to pull their advertisement if it was determined to be inappropriate. He noted that if they were so advised and thereafter refused to pull the advertisement, he would then file a complaint with the Department. However, after briefing the executive committee of the Central County Society after the North County Society meeting, the committee voted to report the matter to the Department immediately. This is the second complaint Dr. Pullon has filed with the Department concerning another dentist. The former was not related to dental advertising or to this Respondent. It resulted in no action being taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case imposing on the Respondent, Carl T. Panzarella, a reprimand and an administrative fine of $1,000.00. RECOMMENDED this 12th day of October, 1992, 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 12th day of October, 1992. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 George P. Bailey, Esquire The Raquet Club Plaza 5160 Sanderlin, Suite 5 Memphis, Tennessee 38117 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation/Board of Dentistry 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant, Respondent, John W. Delk, held a license to practice dentistry, number DN 0005106, issued by the State of Florida, Department of Professional Regulation's Board of Dentistry. James Whisman was a patient at the Delk Dental Center from July 14, 1981 until May 22, 1984. Dr. John W. Delk was the dentist of record for James Whisman. On July 14, 1981, Dr. John W. Delk prepared teeth #6, 7, and 8 for crown and bridgework which included the placement of a post in tooth #8. On July 29, 1981, James Whisman returned to the Delk Dental Center to have the crowns on #6, 7, and 8 seated. On July 29, 1981, Don Berman seated permanent crowns on teeth #6, 7, and 8 for James Whisman using a permanent cement. Don Berman was a technician (dental assistant) for the Delk Dental Center and was not a licensed dentist or dental hygienist. He did not have an expanded duties certificate. On August 11, 1981, Respondent diagnosed a need, and had Berman prepare a treatment plan, for future dental work for James Whisman. During the establishment of Mr. Whisman's August 11, 1981 treatment plan, there was no documentation or oral advisement that an abnormality, such as a retained root tip or abscess, existed at tooth #10. Later, the bridge work on teeth #6, 7, 8 became loose, and Whisman called for an appointment with the Delk Dental Center. On September 21, 1981, the crowns on teeth #6, 7, and 8 were re-cemented with a permanent cement, zinc phosphate, by technician Don Berman. Dr. John W. Delk did not supervise Don Berman when he used the permanent cement to seat the crowns on teeth #6, 7, and 8 for a second time. From February 8, 1982 through February 25, 1982, Dr. James Costello provided dental services to James Whisman, specifically preparing teeth #9-15 and teeth #1-5 for crowns and bridgework and seating the crowns and bridgework. Dr. Costello did not advise James Whisman that an abnormality, specifically a retained root tip or abscess, was present at tooth #10. The patient chart for James Whisman failed to document that tooth #10 had a retained root tip and abscess present. The failure to chart a retained root tip and abscess at tooth #10 is critical to diagnosis and treatment. Fourteen months later, James Whisman returned to the Delk Dental Center for continued dental work. Respondent on March 6, 1984, diagnosed the need, and had Berman prepare a treatment plan, for fixed bridge-splints on teeth #19-22 and #27- 30. On March 7, 1984, Dr. John W. Delk prepared teeth #19- 22 and #27-30 for crown and bridgework. On March 9, 1984, Don Berman cemented temporary crowns on teeth #27-30 without supervision from Dr. John W. Delk. On March 12, 1984, Don Berman re-cemented temporary crowns on teeth #27-30, using a permanent cement called Durelon, without supervision from Dr. John W. Delk. On April 19, 1984, Don Berman used a permanent cement, Durelon, to seat the crown and bridgework on teeth #19-22 and #27-30 without supervision from Dr. John W. Delk. On May 15, 1984, James Whisman returned to the Delk Dental Center complaining of loose teeth in the area of #7 and 8. On May 22, 1984, James Whisman returned to the Delk Dental Center continuing in his complaint that teeth #7 and 8 were loose. On May 22, 1984, Don Berman did an oral inspection of teeth #7 and 8 and with the aid of a dental instrument removed said teeth. Teeth #7 and 8 fractured off inside the crowns. On May 22, 1984, based on what Don Berman had reported to him, Respondent diagnosed the need, and had Berman prepare a treatment plan, for Mr. Whisman which encompassed an estimate for two crowns, one root canal filling and two pin and core build-ups for a total fee of $708.00. On May 22, 1984, Dr. John W. Delk did not examine Mr. Whisman nor did Dr. Delk supervise the actions of Don Berman. Don Berman re-cemented the crowns for teeth #7 and 8 using a permanent cement, Durelon, with no supervision from Dr. John W. Delk. James Whisman suffered from areas of sensitivity around the bridgework, poor dental work and an unnoticed abscess and retained root tip. James Whisman discontinued the dental work with the Delk Dental Center and sought a second opinion from Dr. Albert P. Hodges on June 7, 1984. After the services performed by Dr. Delk and/or his employees, an examination of James Whisman's teeth revealed dental work that fell below the standard of care as recognized by the prevailing peer community. The standard of care for crown and bridgework recognized by the prevailing dental peer community is as follows: No open or shy margins around the crowns; no active decay present; proper retention in multiple-unit splints; proper dowel lengths in crowns that are needed to support multiple unit bridges; proper occlusal contact and recognition; and treatment of any pathological condition prior to crown and bridge placement. Specifically, tooth #7 had margins that were open and shy, active decay was present and there was a distinct lack of retention to support the two-unit splint. The dental treatment provided on tooth #7 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #8 had margins that were open, active decay was present and the dowel length was totally inadequate for useful retentive support. The dental treatment provided on tooth #8 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically with tooth #10, Dr. Delk failed to diagnose and treat a retained root tip and a pathological condition which was visible and discoverable. The retained root tip and abscess were clearly visible radiographically as early as the July 14, 1981 visit to Dr. Delk's facility. James Whisman was not advised during the course of his treatment that a retained root tip existed and that the pathological condition should be treated prior to the placement of a crown over tooth #10. James Whisman's records, made at Dr. Delk's facility, failed to reflect the existence of the retained root tip and abscess at tooth #10. Failing to chart or notify the patient of the existence of a retained root tip and the accompanying cyst falls below the standard of care as recognized in the prevailing dental community. The dental treatment provided on tooth #10 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #20 had margins that were open and shy, it was sensitive to probing, and it was out of occlusion because it had no contact with the opposing tooth when the mouth was in the closed position. The dental treatment provided on tooth #20 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #21 had margins that were open and shy. The dental treatment provided on tooth #21 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #22 had margins that were shy. The dental treatment provided on tooth #22 fell below the minimum, acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #27 had margins that were shy and the crown was over-contoured causing potential gum irritation and food impaction. The dental treatment provided on tooth #27 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #29 had margins that were open and shy. The dental treatment provided on tooth #29 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Cementing crowns with permanent cement is an irremediable procedure. Cementing temporary crowns with permanent cement is justified on a short-term basis but only if the procedure is done by a licensed dentist. To be within acceptable dental standards, a dentist must do a physical oral examination of a patient before developing a treatment plan. Failure to do a physical oral examination in the development of a treatment plan falls below the minimum standards as recognized in the prevailing peer community. An assistant with an expanded duties certificate may use temporary cement only to seat temporary crowns provided a licensed dentist provides direct supervision.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Board of Dentistry enter a final order: (1) holding the Respondent guilty on both counts of the Administrative Complaint; (2) fining Respondent $1000 for each count, said amount to be paid within 30 days from the signing of the final order or Respondent's license automatically to be suspended until the fine is paid; (3) suspending Respondent's license to practice dentistry for 6 months for each count of the Administrative Complaint, to run consecutively; (4) placing Respondent on probation for 12 months subsequent to the expiration of the suspension period; and (5) conditioning reinstatement of Respondent's license to practice dentistry on successful completion of 100 hours of university credit course work in crown and bridge restorations by the end of the probation period and on an appearance by Respondent before the Board to provide evidence of compliance with the final order. RECOMMENDED this 3rd day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1987. COPIES FURNISHED: Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Michael T. Hand, Esq. 230 East Marks Street Orlando, F1 32803 John W. Delk, D.D.S. 2918 North Pine Hills Drive Orlando, F1 32808 Pat Guilford Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Wings T. Benton, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 APPENDIX To comply with Section 120.59(2), Florida Statutes (1985), the following rulings are made on Petitioner's proposed findings of fact (Respondent did not submit proposed findings of fact): 1.-3. Accepted and incorporated. 4. Accepted but unnecessary. 5.-8. Accepted and incorporated. Accepted but unnecessary. Rejected as not proved. The evidence suggested that Respondent examined the patient and instructed Berman how to prepare the plan. 11.-15. Accepted and incorporated. 16. Rejected as not proved. Dr. Costello testified he seated the crowns and bridgework, and the office notes do not reflect that Berman was involved at all. Whisman's memory probably was in error on this point. 17.-20. Accepted and incorporated. 21. Rejected. See 10 above. 22.-29. Accepted and incorporated except the correct date in 24 is March 12, 1984, and the correct teeth in 25 are #19-22, not #19-20. 30. Rejected. See 10 above. 31.-56. Accepted and incorporated. Accepted but cumulative. Accepted and incorporated. Rejected as conclusion of law. 60.-61. Accepted but unnecessary. Accepted and incorporated. Accepted but cumulative. 64.-65. Accepted and incorporated.
The Issue Whether or not Petitioner may be granted a passing grade upon her Dental Mannequin Examination dated June, 1986, a precursor to further examination for licensure. BACKGROUND AND PROCEDURE Petitioner is a post-1962 graduate of the University of Havana (Cuba) Dental School. At the commencement of formal hearing, Petitioner raised as a constitutional challenge, the bar existing in Section 466.006, Florida Statutes, to persons in her circumstances taking the Florida Dental Board Mannequin Examination an unlimited number of times whereas similar graduates prior to 1962 are permitted unlimited examination attempts. She also raised a further challenge to the recent amendment, effective 1991, barring any examination whatsoever of unaccredited dental school graduates. These challenges were treated by the undersigned as a single motion to hold a statute unconstitutional and denied as without jurisdiction and authority. The parties stipulated to the admission in evidence of 10 joint exhibits. Petitioner testified on her own behalf, presented the oral testimony of Lucinda Richards, and had one exhibit admitted in evidence. Respondent presented the oral testimony of Dr. Theodor Simkin, D.D.S., and had admitted one exhibit. The transcript was duly filed and each party has timely filed post-hearing proposals, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner, a 1978 graduate of the University of Havana, was an applicant for licensure by examination to practice dentistry in the State of Florida. As a foreign graduate of a non-accredited school, Petitioner had taken the Manual Skills, or Mannequin, portion of the examination on two previous occasions in 1982 and 1983, and failed on both occasions. After taking a remedial course, Petitioner was eligible under current law to take the examination for a third and final time. Petitioner took that examination for the third time in June 1986, and received a grade of 2.74. A grade of 3.0 is considered a minimum passing grade. Petitioner filed objections to the examination results, which were reviewed by Respondent and confirmed, and this proceeding followed. The Manual Skills, or Mannequin, portion of the dental examination, consists of nine procedures which are graded by three dental examiners who qualify under the requirements of Rule 21G-2.020, Florida Administrative Code. All examiners attend standardization courses, are evaluated, and are assigned randomly for the grading of applicants. In the instant case, the examiners for Petitioner were No. 6, Dr. Levy; No. 64, Dr. Robinson; and No. 150, Dr. Boyar, each of whom examined and graded all of Petitioner's nine procedures. The procedures are graded in a holistic manner and not as a numeric point deduction for errors or mistakes. Each examiner assigns a grade for the procedure and must document on the portion of the grade sheet any failing grade. The examiner then assigns one of the following grades for each procedure: - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimally acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Each procedure is graded by averaging the three examiners' scores to come up with a single average grade for each procedure. Procedure grades are then individually weighed and combined for an overall clinical grade, which grade must be 3.0 or above in order to achieve a passing score. All scores for examiners are reported and evaluated in Report For The State of Florida Dental Manual Skills Examination, June 1986, (Joint Exhibit F). At Page 3 of said Report, entitled "Histograms And Frequency Distribution", a set of graphs indicates that failing grades of "0", "1" or "2", should be given 18% of the time, and same would be considered a "realistic example of what might be considered ideal". A review of the 24 examiners assigned to the June 1986 Examination, however, further indicated that there was a range in the frequency of the rendering of failing grades from examiner 47, who gave a failing grade 19.4% of the time, to examiner 135, who gave a failing grade 70.7% of the time. The range for the Petitioner's three examiners, who rendered failing grades were examiner 6, 32.9% of the time; examiner 64, 51.6% of the time; and examiner 150, 29.9% of the time. All three examiners of Petitioner had given failing grades higher than the ideal curve, (51.6% to 29.9%), and all 24 examiners rendered failing grades substantially higher than the ideal curve (70.7% to 19.4%). It is Petitioner's contention that although Respondent has made efforts to standardize its examiners' techniques and grading, the admitted range for the specific examiners who rendered failing grades were from a high of 70.7% to a low of 19.4%, when the ideal rendering of such failing grades should have been only 18%, and conversely, the range for examiners who rendered passing grades, were from a low of 29.3% to a high of 80.6%, thus establishing that "standardization" of grading has not been achieved, and that the June 1986 grades assigned to Petitioner were subjective and not reasonable and fair. Petitioner's contention, although correct in its arithmetic, is not sound in light of other mathematical principles enunciated by Lucinda Richards, an examination development specialist for the Department of Professional Regulation who was qualified and accepted as Petitioner's expert witness in testing and measurement. Petitioner's theory is a plausible inference but not a necessary one. It is not a necessary inference due to the holistic nature of the examination, because it cannot be ruled out that any three examiners were randomly assigned to grade those candidates who performed overly poorly or overly well, and because the examiner evaluation relied on by Petitioner is based on a very small number of evaluations and is for this single examination only and not for all examinations these examiners have done. Ms. Richards specifically testified that it was a possibility that on the June 1986 examination or any examination the three examiners assigned to Petitioner were randomly assigned to overly poor students and that Dr. Robinson, Petitioner's examiner whose failure rate was highest on this examination always does well on standardization testing and that, in fact, Dr. Robinson has deviated less than any other examiner in his several standardization tests over time. The undersigned accepts Ms. Richards' detailed factual evidence that the June 1986 Mannequin examination was conducted in accord with standard procedures and that Petitioner was not treated differently from other examination candidates. The undersigned further accepts Ms. Richards' expert opinion that the examination process is standardized and fair. Moreover, Dr. Theodor Simkin's testimony does not support Petitioner's analysis. Dr. Simkin, called by Respondent, has been a licensed Florida dentist since 1950. Until the last few years he has been actively engaged in dental practice. He has also been actively engaged in the training and standardization procedures for the dental examination continuously since 1979 and has served as an examiner seventeen times. For the 1986 examination in dispute, Dr. Simkin was an examination supervisor and reviewer. He is thoroughly acquainted with all the latest and accepted techniques involving the nine procedures in which Petitioner was tested in 1986. In the course of formal hearing, Dr. Simkin examined the mannequin prepared by Petitioner during her examination. Although Respondent did not tender Dr. Simkin as an expert, this formality is primarily for the purpose of permitting counsel to pose hypothetical questions, and the undersigned finds that even without the formality of tender and acceptance, Dr. Simkin's evidence is entitled to the weight and credibility accorded an expert dentist. Although he felt some examiners had individually given Petitioner better scores than she deserved, Dr. Simkin's opinion substantially supported and confirmed the individual grades assigned Petitioner by the regular examiners, and he determined that the average grade for each procedure complied with the objective criteria which examiners are required to apply. Utilizing his education, training, and experience, Dr. Simkin concurred that the appropriate overall clinical grade for Petitioner's mannequin portion of the examination should be less than the passing grade of 3.0. This evidence was not refuted. Together, Ms. Richards and Dr. Simkin established that the grading of Petitioner's examination was in accord with standard procedures.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Dentistry enter a Final Order affirming Petitioner's test scores and denying her a license to practice dentistry. DONE and RECOMMENDED this 8th day of February, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 8th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4839 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) are hereby made in accord with Section 120.59(2), Florida Statutes. Petitioner's PFOF 1-7. Accepted in FOF 1-7 respectively. Respondent's PFOF Accepted except as cumulative and unnecessary in FOF 1-2. Covered in FOF 3. Except as unnecessary covered in FOF 3. 4-8. Accepted, but none of these matters is necessary to a resolution of the issues at bar as presented or argued by Petitioner. Covered in FOF 4. Covered in FOF 5. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert Koltnow, Esquire One Datran Center, Suite 502 9100 South Dadeland Boulevard Miami, Florida 33156 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
