The Issue The issue for consideration in this case is whether Petitioner should be awarded a passing grade on the clinical portion of the dental licensing examination given on December 12 through 14, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is a graduate of the University of Florida School of Dentistry and was eligible to sit for the examination for licensure as a dentist in Florida. Petitioner previously has taken and passed the written portion of the dental examination. He has taken the clinical portion of the examination twice and has received a failing grade each time. He is eligible to take the clinical portion alone for a third time, but must do so within a period of 13 months of taking it the second time or must take both the written and oral portions again. Dr. Scheutz first took the examination in June 1996. He received a passing grade in each of those examination portions which dealt with Florida laws and rules and with oral diagnosis. However, he received a grade of 2.31 on the clinical examination portion of the examination, and a passing grade was 3.0. Thereafter, in December 1996 he again took the clinical portion and this time received a grade of 2.71, still below the 3.0 passing grade. Dr. Theodor Simkin is a licensed dentist and consultant to the Board of Dentistry, who has been in the private practice of dentistry since 1950 and in Florida since 1975. He has been involved in the development, administration, and grading of the dental examination in Florida since 1979 and was a supervisor for the December 1996 examination. He is familiar with the standards applied in the clinical portion of the examination and how the examination is given and graded. Petitioner has challenged the grade he received on five separate procedures he performed during the December 1996 examination. The procedures chosen for accomplishment during the examination are not unusual procedures, but are common problems seen on a routine basis by a practicing dentist. Dr. Simkin reviewed the mannequin on which Petitioner did his work and which he presented to the examiners for grading. One of the grades challenged related to a "composite restoration" (Clinical D) for which Petitioner received a grade of 0. In this procedure the candidate is presented with a tooth on a mannequin. The candidate is instructed to cut off a corner of the tooth and then restore that corner with an amalgam restoration. The examiners are not present when the procedure is accomplished, but grade the procedure after completion. Instruction on the procedure is given to the candidate by a monitor who is present in the room but who does not grade the work done. The examination process is accomplished using the candidate number, not the candidate name, so that examiners do not know whose work at which they are looking. Once the procedure is done by the candidate, the mold is packed in the candidate's presence and is then held in the custody of the Board of Dentistry until examined independently by each of three examiners. Once graded, it is then shipped to Tallahassee and kept in a vault until needed, as here, for review by Dr. Simkin and others. Ordinarily, even if dropped, a model will not break. In the instant case, Petitioner performed the procedure on an upper right central incisor. The right corner of the tooth, approximately one-third of the tooth, was cut off and the candidate was instructed to rebuild it with a composite material. When the examiners evaluated Petitioner's work, they found that the filling was not bonded to the tooth and was loose. The loose restoration would be useless to the patient, whereas a properly done restoration should last for at least several years. On a human, the stresses applied to a tooth repair are significant, and the repair must be sufficient to withstand them. Notwithstanding Petitioner's claim that the tooth used was an artificial tooth to which the filling material does not easily bond, Dr. Simkin asserts that the bonding which occurs with a plastic tooth is different from that which occurs in a real tooth but the material can bond to the plastic tooth. He knows of no other complaints by other candidates at this examination of not being able to complete the restoration because the materials would not bond. Petitioner admits that when he did the procedure during the June 1996 examination, the tooth bonded correctly. In light of all the evidence regarding this point, it is found that Petitioner's claim is without merit. Petitioner also challenges his score of 2.0 received for his work on an "amalgam cavity preparation" (Clinical B). This composite score was based on a 2.0 awarded by each of the three examiners. An amalgam preparation is what is done to the tooth to get it ready for filling. In this case, an actual patient, supplied by the examines, had a cavity which was reviewed by the examiners. Once the patient was accepted by the examiners, the candidate then cleaned out the cavity and got it ready for filling. Dr. Simkin's review of the documentation prepared in regard to this candidate's performance of this procedure, in his opinion, supports the grades given by the examiners. Here, Petitioner sent the examiners a note as to what he proposed to do with his patient. Petitioner sought to deviate from a normal preparation due to the location of the caries, and the monitor agreed, as did the examiners. Thereafter, the candidate did the procedure. All three examiners graded his work against his proposal and gave him a failing grade. The examiners determined that his work on this patient merited only a grade of 2.0 because, according to two examiners, the margin of the filling was not separated from the next tooth as required. As to the "posterior endodonture procedure" (Clinical M), Petitioner received an overall score of 1.3. In this procedure, the candidate is required to bring in an extracted tooth which is mounted in an acrylic block. The candidate is to remove the nerve and diseased tissue, clean the cavity, file it, fill the canals, and seal the tooth. This is known as a root canal. In grading a candidate's work, the examiners look to see that the canal is properly cleaned out, is filled properly and sealed with a surface that is slightly shorter than the apex (highest point) of the tooth. On the x-ray taken of Petitioner's sample, it is obvious, according to Dr. Simkin, that one canal is at or short of the apex, but the other is long, and this is considered unacceptable treatment. Even Petitioner agrees. Petitioner received grades of 3.0, 2.0 and 1.0 for an overall failing grade of 2.0 on the "prep. cast restoration" (Clinical F). In this instance, the procedure called for the candidate to install a gold onlay. Normally the surface to which the onlay is to be placed is reduced slightly below the abutting face. Here, though one side was acceptable, Petitioner reduced too much on the other side without reason. Petitioner claims, however, that only one of the three examiners indicated excessive reduction. That determination calls for a very subjective opinion. He cannot understand how the propriety of reduction can be determined without looking into the mouth of a patient. However, Petitioner has presented no evidence in support of his opinion. The fifth challenge relates to the grade Petitioner received in the "pin amalgam pre. procedure" (Clinical G). This involves a situation where one cusp has been removed, and in order to hold a restoration, Repin must be placed in the solid portion of the tooth. The examiners determined that Petitioner's occlusal was too shallow at 1 mm, when it should have gone down 1~ to 2 mm. This, the examiners considered, would not give enough strength to hold the amalgam properly without risk of fracture. Dr. Simkins is of the opinion that Petitioner was subjected to a standardized test which was graded fairly. It would so appear and Petitioner introduced no evidence to the contrary. Ms. Carnes, a psychometrician and an expert in testing and test development who trains examiners to ensure they are consistent in their evaluations, agrees with Dr. Simkins' appraisal. The Department of Business and Professional Regulation tries to insure through its standardization efforts that the approach to grading of each examiner is consistent and that all examiners are grading with the same set of criteria. This was done in preparation for the December 1996 dental examination and a check done after the examination showed it was graded this way. Petitioner cites by way of explanation, if not excuse, that during his senior year in dental school, he was badly injured in an automobile accident and required stitches and several weeks of physical therapy for, among other injuries, a herniated disc. When he recovered sufficiently, he finished his course work and sat for the dental examination in June 1996, passing two of three sections, but not the clinical portion. Dr. Scheutz took the clinical portion of the examination again in December 1996 and again failed to earn a passing score. In his opinion, his knowledge has improved over time, but his procedural skills have diminished over the months due to his injuries. He contends he has work in dentistry he can do which will make accommodations for his physical condition, but does not believe he should have to wait another six months to take the examination again, especially since he would have to again take the entire examination, including those portions he has already passed since at that time more than 13 months from his last examination would have passed. Petitioner contends the clinical testing portion of the examination is too subjective to be valid. He wants to close this chapter in his life, but does not want to deal any more with the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a Final Order denying Petitioner's challenge and sustaining the award of a failing grade on the clinical portion of the dental examination taken by the Petitioner on December 12 through 14, 1996. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 27th day of June, 1997. COPIES FURNISHED: Dr. Eric J. Scheutz, pro se 332 Whispering Oaks Court Sarasota, Florida 34232 Karel Baarelag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906-0127 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceedings concern whether the Petitioner is entitled to receive a passing score on the December 1999 dental licensure examination.
Findings Of Fact The Petitioner, Carlo Coiana, was an unsuccessful candidate for the December 1999 dental licensure examination. He failed to pass several procedures of that licensure examination, according to the Department's graders and grading method. The December 1999 dental licensure examination consisted of two parts: (1) The clinical, and (2) The laws and rules section. The clinical portion consists of nine different procedures of which the Petitioner challenged six. The Department, in is scoring method, selects three examiners to grade each candidate's performance. The average of the three scores from each examiner, produces the overall grade for that procedure. Rather than having only one examiner score, the Department allows for three examiner scores because this provides a more fair, reliable indication of the candidate's competency and true score. Each examiner must be a licensed dentist for a minimum of five years and have no complaints or negative actions on his or her licensure record. Each examiner must also attend and successfully complete a standardization session which trains each examiner to use the same internal grading criteria. The examiners who graded the Petitioner's examination successfully completed the standardization session and training. During the administration of the dental examination the Department requires the use of monitors who are also licensed dentists. The monitor's role is to preserve and secure the integrity of the examination. The monitor also gives instructions to each candidate as to what to expect. The monitor has no part in the grading of the candidate's performance on the examination but acts as a messenger between the candidate and the examiner since there is a "double-blind" grading of the examination. The Petitioner contested the score he received on the Class II Composite Restoration on a model. The Class II Composite Restoration Portion of the examination is a procedure involving restoring a cavity (Class II) preparation with a tooth-colored filling. The procedure was done by the Petitioner with a comment by the examiners that there was a discrepancy in the resulting shape of the tooth and proper contact to the adjacent tooth. There was also a marginal discrepancy and a "gingival overhang." The margin is where the tooth and filling meet and there was a discrepancy felt there, a bump or a catch when the junction of the two surfaces should be smooth. A gingival overhang is in the area between the tooth where a non- smooth transition between the filling and the tooth is detected. This can be a damning area which will collect plaque and lead to re-current decay. The Respondent's expert, Dr. John Joffre, concurred with the overall findings of the examiners and felt that this procedure should not be accorded a passing score but rather the score accorded by the examiners. The Petitioner also contested the score for procedure number four of the examination, the Endodontic procedure. The Endodontic procedure of the examination is referred to as a "root canal." This procedure involves removal of the nerve and blood vessels inside a tooth in order to clean out that area. It then requires the shaping of the canal and, finally, filling it with an inert material to rid the body of the infected area in question. This procedure is performed on an extracted tooth. The minimum of the working length the Department required in order to receive a passing score for the filled material in the tooth in question was two millimeters. The Petitioner's expert had the working length of the filled area in the root canal or Endodontic procedure done by the Petitioner measured. It measured closer to three millimeters which is totally unacceptable according to Dr. Joffre. Even in accordance with the literature that the Petitioner relied upon in this case it is not provided that three millimeters short of the working length is an accepted working length, which is why the Petitioner received less than a passing score. All three examiners and the expert witness Dr. John Joffre were in agreement about this scoring. Three millimeters short of the required working length will cause the procedure to definitely fail sometime in the future and renders the procedure useless. An Endodontically treated tooth that is three millimeters short will fail clinically, and that justifies a failing grade on this procedure. The next procedure contested by the Petitioner as to score was the Amalgam Restoration done with a model. This procedure is similar to the Class II Composite Restoration. However, the difference between the two procedures is that the Amalgam is referred to as a silver filling containing mercury, silver, etc., as opposed to the Composite material in the above- referenced procedure which is a "tooth-colored" restoration. Although the Composite and the Amalgam serve the same function, they require different tasks and different procedures on how they are to be handled in their installation in the mouth. The major problem found with the Petitioner's performance on this procedure concerned an overhang. As referenced above, a gingival overhang at the margin of where the filling and the tooth meet results in a less than smooth transition and can be an area where food accumulates and decay can start anew. All three examiners also noted a problem with the proximal contour of the Amalgam restoration which has to do with the shape of the filling in terms of how it meets the tooth next to it. The testimony of Dr. Joffre, which is accepted, shows that the examiners comments and grades and Dr. Joffre's opinion itself justifies the scoring on this procedure. Dr. Joffre agrees with the examiners' scoring. The last procedures in question are called the "Patient Amalgam." These procedures, two and three, involve cutting of the tooth before the filling is actually placed into it ("cutting the box"). Procedure three is the actual filling, involving scoring what the filling is like after the filling procedure is completed. The criticism found by both examiner 304 and 346, as to the first part of the procedure, the cutting part, was ". . .did not break the gingival contact, subject to recurrent decay." The gingival contact down in the box cut for the filling must be cut deep enough to reach the point where there is a separation between the edge of the box and the adjacent tooth. Halfway down the tooth, towards the gum, the teeth are still touching. As one progresses further down toward the gum, the teeth separate because they naturally get narrower toward the gum line. A dentist needs to cut the box that the filling should be placed in down far enough toward the gum line so that he gets to the point where the teeth are no longer touching. Both dentists 306 and 346, examiners, found that he did not cut the box low enough so that he "didn't break gingival floor contact with the molar" (meaning the adjacent tooth). Thus, these examiners gave the Petitioner the lowest grade of "one" on that part of the procedure. The filling or restoration portion of the procedure failed. The filling was not adequately carved or shaped so that it was protruding too high above the adjacent tooth surfaces. This caused the patient to break the filling very shortly after it was finished and he was biting downward and putting pressure on it. Indeed it broke while the third examiner was examining the procedure. The reason why the fracture in the filling occurred was because it protruded too high. The Petitioner did not adequately reduce the size or height of the filling, so when the teeth came together the tooth below it or above it was hitting too hard against that one spot and caused the metal to break before the patient, on whom the procedure was done, ever left the building. The Respondent's expert, Dr. Joffre, who agreed with examiners comments and score, found that the Petitioner had failed to properly perform these procedures and that his score had been appropriately arrived at by the examiners. The Petitioner contested the score he received on the Fixed Partial Denture Procedure. The Department ultimately conceded that he should be awarded additional points on that procedure, however, even with the additional points awarded the Petitioner still failed to score adequately on the overall examination for passage, although he came close, with a score of 2.92 out of a minimal score of 3.00 required for passage of the examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition challenging to the grades assigned the Petitioner for the December 1999 Dental Licensure Examination and finding that the Petitioner failed to pass that examination. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Carlo Coiana N1 Via Delle Coccinelle Cagliari, Italy 09134 Cherry A. Shaw, Esquire Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Respondent's license to practice dentistry in Florida should be revoked, suspended, or otherwise disciplined, based upon the following allegations: that a diagnosis of patient P.U. was below the minimum acceptable standards; that the treatment recommended by the Respondent would have exploited the patient for financial gain.
Findings Of Fact At all times material to these proceedings, the Respondent, Russell Ernest Duke, D.D.S., was a licensed dentist in Florida, and held license number DN 0007124. The Respondent was employed as a dentist at sunbelt Dental Center. On or about July 2, 1986, at the sunbelt Dental Center located in Sarasota, Florida, the Respondent performed an examination on the teeth of P.U., a new patient who had responded to the Center's advertisement regarding a teeth cleaning and dental checkup for nine dollars and ninety-five cents. During the Center's promotion on cleanings and checkups, the Respondent maintained his regular patient schedule of eighteen patients a day. In addition, he performed examinations on patients who responded to the advertisement. X-rays were taken during the examination of the patient P.U. An explorer was used to probe and check the patient's teeth, along with the Respondent's visual examination. While the examination was being conducted, the Respondent would relate the result of his examination to his dental hygienist, Michelle Caldwell, who would chart the results on the patient record After the examination, the patient P.U. was told by the Respondent that she needed several fillings. An estimate of one hundred and eighty dollars (Petitioner's Exhibit A, Deposition of P.U.) was given to the patient. It was recommended that she obtain fillings in the following areas: tooth number 1 on the biting surface of the tooth occlusal; tooth number 3 on the occlusal and lingual areas; tooth number 16 on the occlusal surface; tooth number 17 on the occlusal surface; and tooth number 19 on the mesal, occlusal, distal and facial surfaces. On September 23, 1986, Kevin M. Larkin, D.D.S., examined the teeth of the patient P.U. During this examination, Dr. Larkin did not find any indication of carious lesions on any tooth other than tooth number 19. It was Dr. Larkin's opinion that the distal area of tooth number 19 had the start of a carious lesion. A watch was placed on this tooth, but a filling was not recommended at this stage in the patient's treatment plan. The patient was requested to return in six months for another examination, and a review of her treatment plan. During Dr. Larkin's initial examination, he noted that the patient had heavy staining from tobacco use. The patient chart, which is attached to Dr. Larkin's deposition, notes heavy staining in most of the same areas which had been indicated in the Respondent's examination as areas in need of fillings. Calculus deposits were also noted in Dr. Larkin's patient record during the patient's two visits. On October 19, 1987, David R. Smith, D.D.S., examined the patient P.U. at the request of the Department of Professional Regulation. During his examination, Dr. Smith found that there was surface stain on the occlusal pit on tooth number 1. There were little grooves on the biting surface of the tooth. During the visual examination, the stain in this area appeared to be caries. However, an exploration in the area with a fine-tipped explorer revealed that there was no indication of caries on this tooth. Tooth number 1 was merely pitted and stained, as reflected in the patient's record, which is Petitioner's Exhibit 4. Tooth number 3 had a small pit filling in the area described as in need of a filling by the Respondent. In Dr. Smith's opinion, there was no need for a new filling to be placed in that area. Tooth number 16 was found to be stained, but there was no decay. Tooth number 19 had a broken amalgam restoration. In Dr. Smith's opinion, this tooth was definitely defective, and the prior restoration needed replacement. The Respondent was correct in his diagnosis that a filling was needed by the patient P.U. in tooth number 19. The Respondent misdiagnosed tooth number 1, but the condition of the tooth gave all indications that caries existed in the area recorded by the Respondent. This was a "false cavity" which required the removal of soft matter within the tooth crevice, which was deeper than is normally expected. Discovery of the false cavity would require more inspection than what was completed during the general examination agreed upon by the dentist and patient during this initial visit. The Respondent's diagnosis of decay on tooth numbers 3, 16, and 17 which he determined were in need of restorative work, was the result of incompetence or negligence. The problem in these areas was staining, not tooth decay. The diagnosis was below the minimal acceptable standards of diagnosis for general practitioners of dentistry in Florida. The ability to properly diagnosis whether a tooth has decay or non-carious staining is a fundamental aspect of the practice of general dentistry. The Respondent's receptionist gave the patient P.U. a price quote for the treatment suggested by the Respondent. However, the treatment was never undertaken, and no exploitation of a patient for financial gain occurred. The problems in diagnosis in this case could have occurred as a result of a number of factors: an improper notation of stains as caries by the dental hygienist, a superficially performed initial examination, or the use of an explorer that was not sharp enough to confirm that the visual determination that caries existed was actually non-carious staining. There were no facts presented to demonstrate that the misdiagnosis was created to exploit the patient for the Respondent's financial gain. Dr. Smith, the Department of Professional Regulation's independent expert witness opined that the misdiagnosis was not done with the intention to defraud the patient. The Respondent was employed by sunbelt Dental Center on a salaried basis, and was not required to encourage treatment beyond what he deemed was necessary in his professional opinion as the examining dentist.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of Dentistry enter a Final Order finding that the Respondent, Russell Ernest Duke, D.D.S., is guilty of one violation of Section 466.028(1)(y), Florida Statutes (1986). That the penalties assessed against the Respondent include a mitigation of the penalties under Rule 21G-13.005, Florida Administrative Code. That the Respondent receive a reprimand and an administrative fine of $1,000.00. That the Board of Dentistry enter a finding that the Respondent is not guilty of a violation of Section 466.028(1)(n), Florida Statutes (1986). DONE and ENTERED this 27th day of June, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 27th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6004 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. Accepted. See HO #1 and #2. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #7. Accepted. See HO #6. Rejected as to tooth number one. Contrary to fact. See HO #13. The rest of paragraph 9 is accepted. See HO #14. Accepted. See HO #8. Reject that the diagnosis was consistent with Dr. Larkin's. See HO #6 and #12. Accept that Dr. Smith's diagnosis was different than the Respondent diagnosis. See HO #13 and #14. Accepted. Accepted. See HO #5 and #15. Rejected. Contrary to fact. See HO #17. Rejected. Speculative. Conjecture. Rejected. Speculative. Conjecture. Contrary to fact. See HO #17. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Russell Ernest Duke, D.D.S. 4125 South Cleveland Avenue Fort Myers, Florida 33907 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 William H. Buckhalt, Executive Director Florida Board of Dentistry 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0765
The Issue At issue in this proceeding is whether petitioner's challenge to the grading of his dental manual skills examination should be sustained.
Findings Of Fact Background Petitioner, Jorge Jose Velis, sat for the dentistry manual skills examination pursuant to Section 466.006(3)(c)3, Florida Statutes (1991), in November 1991. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 2, 7 and 8. The respondent sustained petitioner's challenge to the grading of procedure number 7 and had such procedure regraded, but such regrading failed to raise the overall grade awarded for the procedure. Respondent denied petitioner's challenge to the grading of procedures 2 and 8. In turn, petitioner filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to contest the respondent's grading of procedures number 7 and 8. The examination procedure During the course of the examination at issue in this proceeding, the candidates were called upon to exhibit manual skills by performing various procedures on a laboratory model. The quality of the candidate's performance was then 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 particular procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, and a grade of "5" represented outstanding dental procedure. See Rule 21G-2.013, Florida Administrative Code. Each of the examiners who participated in both the original grading of petitioner's model and the regrade had been licensed by the Florida Board of Dentistry for at least five years, and had participated in a day-long standardization training session the day before the examination was offered. Based on their previous performance as graders and their performance at the November 1991 examination, these examiners demonstrated a statistically acceptable grade variation range. Petitioner's examination results and review. Petitioner received a final grade of 2.97 on the examination, which was below the minimum passing grade of 3.0. Pertinent to this case, respondent received a grade of 2.66 for procedure 7, based on scores of 1, 3 and 4 from the individual examiners, and a grade of 2.66 for procedures 8, based on scores of 3, 1 and 4 from the individual examiners. Dr. Theodor Simkin, the respondent's consultant, upon petitioner's request for a regrade, examined petitioner's models and the evaluations of the examiners with regard to procedures number 7 and 8. In Dr. Simkin's opinion, which is credited, the original grade of 1 assigned to procedure 7 did not conform with the grading criteria since petitioner's error was not serious enough to warrant a grade of one. Accordingly, Dr. Simkin recommended a regrade of procedure number 7. With regard to procedure number 8, Dr. Simkin did not recommend a regrade because in his opinion, which is credited, the low grade of 1 was warranted because of a sever undercut made by petitioner on the tooth which would prevent any crown made up for the tooth from fitting properly. Accordingly, the assignment of a failing grade of 1 for procedure number 8 was appropriate under the grading criteria. Based on Dr. Simkin's conclusions, petitioner's procedure number 7 was regraded. In such regrading, petitioner's model was hand-delivered by a Department of Professional Regulations representative to three examiners, different from the original examiners, but all of whom participated in the standardization and grading of the November 1991 examination. In the regrade, petitioner received scores of 3, 3 and 2, for an average or final grade of 2.66, the same failing score he had previously received. The scores assigned by the examiners on regrading were, however, rendered in conformance with the grading criteria, and were an appropriate reflection of petitioner's performance. Here, the proof demonstrates that the regrade of procedure number 7 and the original grading of procedure number 8 were rendered in accordance with the grading criteria, and that petitioner's final grade of 2.97 was appropriately derived. Accordingly, petitioner failed to attain a minimum passing grade on the examination.
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 23rd day of December 1992. WILLIAM J. KENDRICK 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 23rd day of December 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1 & 2. Unnecessary detail. Addressed in paragraph 5. Addressed in paragraph 10. Addressed in paragraphs 2 and 5-8. Rejected as argument or addressed in paragraph 12. Respondent's proposed findings of fact are addressed as follows: 1 & 2. Addressed in paragraphs 1 and 10. 3. Addressed in paragraphs 3 and 5. 4-9. Addressed in paragraphs 5-8, otherwise unnecessary detail. 11-12. Addressed in paragraphs 3 & 4, otherwise unnecessary detail. 13. Addressed in paragraph 8. COPIES FURNISHED: Jose I. Perez, Esquire Grove 2000 Building Suite 100-D 2000 South Dixie Highway Miami, Florida 33133 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact The Department is charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456, 466, and 120, Florida Statutes (2003). At all material times to this proceeding, Dr. Nguyen was a licensed dentist in the State of Florida, having been issued license number DN0014768. On April 17, 2002, Patient J.N. presented to Dr. Nguyen complaining with pain from a broken tooth. She brought a full set of x-rays taken by another dentist approximately a year before her visit to Dr. Nguyen. J.N. filled out a form entitled "Health Questions." J.N. indicated on the form that her teeth were sensitive to cold. He examined J.N.'s teeth and saw that tooth 30 was fractured to the gum line. J.N. complained that the broken area of the tooth was sharp and was rubbing against her tongue causing irritation. His examination further revealed that she had some slight gum disease in the upper right side. J.N. was not experiencing a throbbing pain from tooth 30, and tooth 31 was not giving her any discomfort. Her discomfort was due to the inflammation of her gums and her tongue. Dr. Nguyen did a percussion test, i.e. tapping on the tooth, and probed in her mouth, measuring the tooth. Dr. Nguyen did not do any vitality testing and did not perform any periodontal charting of the teeth. J.N. did not want Dr. Nguyen to take any additional x-rays since she had brought a full set of x-rays with her. Dr. Nguyen felt that the set of x-rays that J.N. provided was sufficient for him to be able to treat J.N. for her fractured tooth. The x-rays did not show the fracture, but fractures may not necessarily show up on an x-ray. Dr. Nguyen told J.N. that she may or may not need a root canal. Dr. Nguyen discussed treatment options with J.N., and she decided to have a three-quarter crown on one tooth and an overlay on the other tooth. He removed all of the fracture of tooth 30 and made impressions for the three-quarter crown and inlay, which were sent to the laboratory for the fabrication of the crown and inlay. She left the office with temporary teeth on teeth 30 and 31. Dr. Nguyen made the following progress note concerning his treatment of J.N. on April 17, 2002: pt came in w/ fmx from another DDS. Dr. Richardt in Bonita. Both 30 & 31 have very large old fractured decay amalgam. Both lingual cusps #30 fractured to gingival line. Complaint of "uncomfortable." #30 prep for crown / 3/4 crown. #31 prep for MOB onlay. Composite provisional. A few days later, J.N. called Dr. Nguyen's office complaining of a lot of pain. J.N. was given a prescription for penicillin and Tylenol No. 3. On April 26, 2002, J.N. returned to Dr. Nguyen's office complaining of pain. She had taken the prescribed pain medication prior to her visit so that it was difficult for Dr. Nguyen to assess the pain. Dr. Nguyen made an adjustment to her bite and told her that if the pain continued that he would refer her to an endodontist. Dr. Nguyen asked J.N. to stop taking the pain medication and return to his office after 5 p.m. that day so that he could accurately assess her pain without having the pain medication masking the pain. She did not return to his office. On May 1, 2002, J.N. went to see another dentist, who referred J.N. to Juan Pablo Rodriguez, D.D.S. (Dr. Rodriquez), who specializes in root canals. J.N. complained to Dr. Rodriguez that she was having pain in tooth 30 and it was waking her up at night. Tooth 31 did not respond to cold. Dr. Rodriguez diagnosed J.N. with irreversible pulpitis for tooth 30, which means that the nerve of the tooth had inflammation, and that the nerve would not get better, but would die. He determined that tooth 31 was non- vital or necrotic. On May 8, 2002, J.N. called Dr. Nguyen's office and stated that she wanted to have her tooth extracted rather than have to pay for a root canal. She indicated she wanted her money back. The next day, J.N. came to Dr. Nguyen's office demanding her money back and wanting her x-rays. Dr. Nguyen kept the original x-rays and provided J.N. a copy of the x-rays which she had furnished him on her initial visit. J.N. had paid Dr. Nguyen a portion of his fees by credit card, and a portion of his fees had been paid by J.N.'s dental insurance plan. Dr. Nguyen refunded all fees paid to him. Melvin A. Platt, D.D.S., testified as an expert witness for the Department. It is Dr. Platt's opinion that Dr. Nguyen, in relation to his treatment of J.N., did not practice dentistry within the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. His opinion is based on Dr. Nguyen's failure to determine the need for a root canal prior to preparing the teeth for restoration. According to Dr. Platt, Dr. Nguyen should haven taken an x-ray of teeth 30 and 31, performed vitality testing, and done periodontal charting. Dr. Platt was also of the opinion that the dental records maintained by Dr. Nguyen regarding his care of J.N. failed to justify his course of treatment. According to Dr. Platt there was nothing in the progress notes to justify going ahead with the restorations without any prior testing of any kind. Dr. Nguyen's license has previously been disciplined by the Department for failing to include in an advertisement the statement required by Section 456.062, Florida Statutes (1999). Department of Health v. Luyen Nguyen, D.D.S., Case No. 2000- 01848 (Dept. of Health 2002).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Luyen Nguyen, D.D.S., did not violate Subsection 466.028(1)(m), Florida Statutes, but did violate Subsection 466.028(1)(x), Florida Statutes; imposing a $1,000 administrative fine; and issuing a reprimand. DONE AND ENTERED this 4th day of March, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 4th day of March, 2004.
