The Issue The issue for consideration in this case is whether Respondent, Alfred O. Bonati's, license as a medical doctor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, (Board), was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent, Dr. Alfred O. Bonati, is licensed as a medical doctor in Florida, and holds license No. ME 0038324. In November, 1984, T.M.S. was experiencing back problems when she was doing strenuous work in her home. On November 13, 1984, she sneezed and experienced a sharp pain in her low back and the back of both legs. She fell to the floor as a result, but subsequently got up and drove herself to work. Shortly thereafter, the pain increased and after several hours, she called her husband and asked him to take her home. When she got home, she called her family physician who scheduled her for an examination that day. The pain worsened, however, and when her husband called the doctor back to report this, he was advised to take her to the hospital where the doctor would meet them. When Ms. S. arrived at the emergency room, the doctor took x-rays and examined her. Thereafter, he gave her a shot and a prescription for pain and sent her home for strict bed rest. She complied, but after being home only 10 minutes, experienced "terrible" back spasms. When her husband called the emergency room doctor about this, he advised bringing her to the hospital in an ambulance, and upon arrival, she was admitted. At the hospital, Ms. S. was seen by her family doctor and two others he called in, an orthopedic surgeon and a neurologist. While Ms. S. was in the hospital, she underwent a CAT scan and was diagnosed as having a herniation at L 4-5, and a ballooning at L 3-4. She was released from the hospital with an order of six weeks strict bed rest and traction, and prescriptions for various medications. After four weeks with no improvement, she called her family physician who referred her to Dr. Bonati on December 15, 1984. When Ms. S. went to her first office visit with the Respondent, she brought her x-rays and CAT scan results and outlined for him the sequence of events described above. Respondent conducted an examination of Ms. S. in his office, after which he told her she had a torn muscle, not a herniated disc. He indicated to her that with rest, the muscle would heal and the pain leave. In addition, however, he gave her an injection for pain. Ms. S. saw Respondent two or three more times before her visit in April, 1985. On each visit, she told him the pain was not going away. In response, he told her to be patient and to continue to rest and use an electrical stimulator he had given her for pain - nothing else. When, at the April visit, some five months after she started seeing Respondent without relief, he suggested doing another CAT scan, she advised him then she had brought with her on her first visit the results of her CAT scan, and he then indicated he wanted to do a myelogram. Before this time, however, even though she had suggested other tests, he had declined to do any. Ms. S. went to the hospital for three days in April, 1985 for the myelogram. Afterwards, Respondent told her the test showed two herniations, one at L 3-4 and one at L 4-5, and recommended surgery. He performed the surgery in July, 1985, delaying to that time because of his absence from the country. She claims to have been in constant pain the entire time. Following the surgery, however, Ms. S. was in worse pain than before, experiencing pain in additional areas of her body. When Respondent came to see within an hour after she woke up, he appeared to be upset. He asked her then why she had not told him she had meningitis. Though she had never had that disease, he claimed her back was full of scar tissue. When Ms. S. went to see Respondent again, to have the stitches removed, ten days after she was released from the hospital, She advised him of continuing and increased pain. He indicated the pain could be caused by several things: muscle relaxation, nerve reaction, or tendonitis which, he decided, was the actual cause of her pain. He told her to continue the electrical stimulation and the pain would go away. It never did though she continued to see him periodically and report pain. In October, 1985, she again went to see Respondent, alarmed due to her constant pain. At this point, Respondent said he needed to do another myelogram, which he did, and afterwards told her it showed a herniated disc at L 4-5. He told her at this time she must have re-injured her back and recommended a second surgery. She agreed. Respondent performed the second operation without any resultant change in her pain level. He indicated to her he had again seen a lot of scar tissue which he cleaned out and her spine was now perfect. Nonetheless, when she saw him again after her discharge from the hospital, she told him her pain still existed and was increasing. She told him she also was experiencing numbness in her foot and pain in her hip. In December, 1985, Ms. S. called Respondent about her pain and he put her into the hospital for stronger pain medication and traction. At this time, she told him of a test she had heard of, magnetic resonance imaging, (MRI), and asked him about it. He advised her that he was familiar with it; that it was being done in St. Petersburg. That same day, he admitted her to the hospital where the test was to be administered. Ms. S. was put in traction and administered pain medication while she waited for the results of the MRI. The MRI staff had indicated to her that the results would be sent with priority to Respondent the same day the test was done, but Respondent's office personnel indicated it was not received. Finally, Ms. S.'s father picked up a duplicate copy of the MRI test results from the administering facility and delivered it to the Respondent. That evening, Respondent came to Ms. S.'s hospital room, angry and agitated, and warned her against trying to sue him. At this point, she claims, she had never mentioned suit. He left her room and came back the next day. On that visit, he said he felt she was dissatisfied with him and needed to get a second opinion. He gave her some choices and she picked Dr. Day, on staff at Shands Hospital in Gainesville. Ms. S. saw Dr. Day in January, 1986. When she went for her examination, she took her records to Dr. Day, but he did not look at them He recommended additional surgery which he did. When she woke up from that surgery, her pain was gone. She still has back problems, but attributes them to a weak back. Dr. Martin Silverstein, an orthopedic surgeon and an expert in orthopedic surgery, reviewed the medical records pertaining to Ms. S.'s case and was present in the hearing room during her testimony. His review of the results of the CAT scan indicated a possible herniated disc. The symptoms described by Ms. Somers are consistent with that diagnosis. While a CAT scan is of some diagnostic benefit, the myelogram is very helpful in diagnosing a herniated disc. His review of the myelogram done of Ms. S.'s spine in May, 1985 showed a prominent left side herniated disc at L 4-5 with some lesser effect on L 3-4. In the July, 1985 surgery, Respondent did not take out disc material. His procedure was to do a small incision at L 4-5 on the right side, (Dr. Silverstein felt this description of "right" side might be a typographical error), and get to the disc, but the record does not show Respondent removed any bone or tissue getting there. He noted scar tissue which he removed, and the records denote Respondent saw the disc to be intact. As a result, he irrigated and closed the wound properly. Dr. Silverstein categorized this procedure by Respondent as merely an exploration of a disc space and removal of adhesions. The patient's pain after surgery is consistent with a herniated disc. The second myelogram showed persistence of a herniated disc at L 4-5 and a lesser bulge at L 3-4. This was no change to what was shown on the myelogram done prior to the first surgery. Nonetheless, the second surgery done by Respondent, in November, 1985, again did not remove any disc material. Again, the record shows Respondent saw lots of scar tissue, which he debrided, and saw the disc to be intact. Again, he merely irrigated and closed. In Dr. Silverstein's opinion, the Respondent's first surgery did not take care of the problem in that he didn't remove the herniated disc. The Respondent's second surgery differed from his first only in that he approached from the right side instead of the left side, and both myelograms showed herniation on the left side. This was, in his opinion, improper. During the patient's third surgery, by Dr. Day at Shands Hospital in January, 1986, the physician did a bona fide microdiscectomy, removing the ligamentum flavum. In doing so, he significantly increased exposure so he could see the problem better. This was a more adequate procedure and allowed him to see the herniated disc which he then removed. The patient's absence of pain after the surgery is consistent with removal of the disc. According to Dr. Silverstein, had the disc not been removed it could have extruded and become an emergency problem. Also, the longer there is pressure on a nerve, the less likely it is to recover. The patient could be left with residual symptomology such as pain and numbness. In Silverstein's opinion, Respondent's performance was not consistent with the standard of care for physicians which existed in 1984/1985 in that he failed to go far enough in these operations to find and remove the patient's problem which existed throughout that time. This is not to say that microdiscectomy, the procedure Respondent utilized in both the surgeries he performed, is not an accepted procedure. It is, even though Dr. Silverstein does not use it. Instead of using a microscope to examine the tissue within the incision, he uses a loup which, when combined with a somewhat more extensive incision, affords the physician a greater opportunity to identify the problem. It is in this failure to properly disclose the problem that Silverstein sees Respondent's failure, not merely the failure to achieve a favorable result. To be fair, Dr. Silverstein admits the Respondent's decision to go micro on the first surgery was appropriate and his procedure was correctly done. Since he did not see a herniated disc, he did not do the discectomy, but the witness believes that had Respondent seen a herniation, he would have done the right thing. Here, however, since the myelogram showed herniation both times, Respondent was alerted to the actual condition. Myelograms are normally reliable and Dr. Silverstein knows of no incident where a myelogram showed pathology which did not actually exist when the surgeon got inside. Dr. Day's use of a midline incision large enough to disclose the problem, which permitted him to then approach the disc from the right side, was the correct way to treat the problem. Dr. Smolensky concurs with the conclusions drawn by Dr. Silverstein. His review of the records indicates that the second myelogram shows an aggravation of the herniation of the disc over that which existed before the first surgery. In his second surgical report, Respondent stated he could see the ligamentum flavum. Had Respondent removed that in his first surgery, it would not have been there for the second, and since he did not remove it in the first surgery, he could not have repaired the problem then. The records also show that Dr. Day removed a lesion that was so big, Dr. Smolensky cannot see how Respondent could have missed it unless he failed to remove the ligamentum flavum, and one cannot find any abnormality as suspected here without going past that. For these reasons, and because three weeks were allowed to go by without any action after the second surgery in which the abnormality was found, but primarily because Respondent did not extend his exploration far enough to discover the extent of the patient's problem, Smolensky is of the opinion Respondent's care did not meet the standards as they existed in 1984/1985. Dr. Smolensky has no criticism of Respondent's management of the patient from when he first saw her, nor of his postoperative treatment after the first surgery. By the same token, he does not quarrel with Respondent's use of a micro procedure, if that is what, in fact, was used. His criticism rests with the Respondent's exposure. A surgeon is taught that exposure is the key to success. The more that can be seen, the better the result. There must be a balance against the increased risk of morbidity and instability. While Smolensky finds little to fault Respondent with as a result of the first procedure, he has definite problems with Respondent's performance in the second surgery, for the reasons noted above. Respondent, a self-styled expert in arthroscopic surgery of the spine, who, he relates, lectures worldwide on the subject, began to use microsurgery because of the difficulties he had seen occur as a result of the use of laminectomy procedures. He, therefore, developed instrumentation and procedures which are now being used worldwide, and which, he claims, do less damage to the patient. He believes, regarding the first surgery he performed on Ms. Somers , that when he was cleaning up all the inflammation and scar tissue, he pushed the bulging disc back in place. Before this, the patient had normal movement range, even though she complained of back pain. Therefore, he concluded she had only a low back strain which, he felt, could be controlled by rest and the use of the stimulator. It is found, from the evidence, that in both operations Respondent performed on Ms. S., Respondent admits the possibility he did not remove enough of the ligamentum flavum. He asserts Ms. S.'s claims of continuing pain on the left side are not supported by the nurses' notes after the surgery which indicate that Ms. S. received only tylenol for her pain and was ambulatory. After that surgery, she was in the hospital for three days and came to his office somewhat later. At the time of her visit, he relates, she indicated her prior pain on the left side was gone and complained of pain on the right side and in her buttocks. Midline disc surgery is, Respondent claims, a nightmare for surgeons and herniations are missed regularly. When he did the second surgery, he still could not see the problem. He did not make a larger incision in this second surgery because he believed the problem on the left side was solved and that the problem on the right was the same and could be corrected by the use of the smaller incision process. He claims that for him to make a larger incision would mean he was not then doing microsurgery which was what the patient had agreed to. On the basis of this evidence, it is clear that had he exposed more of the spinal column, he most likely would have seen the patient's problem, as Dr. Day did, and could have corrected it. When the patient woke up in continuing pain after the second surgery, Respondent discussed a further surgery with her and her husband. He proposed to do a laminectomy, which he did not have permission to do during the prior operations, though he was somewhat reluctant to do it himself because he had already failed to solve the problem twice. He knew a laminectomy was appropriate for this patient but, being a micro surgeon, he claims to have been emotionally ill equipped to do it. The later surgery by Dr. Day at Shands corrected the problem. Respondent's post operative communications with Dr. Day indicate that as late as 1988, as a result of the last surgery, Ms. S. had an unstable back. This was the condition, Respondent claims, which often comes about as the result of laminectomy, and which he was trying to avoid by doing micro surgery. Both Dr. Seiber and Dr. Smith, orthopedic surgeons who specialize in backs, examined the medical charts and records pertaining to Respondent's treatment of Ms. S.. They also reviewed the deposition given by Dr. Day and that doctor's records of his treatment of Ms. S. at Shands. They traced the course of Respondent's treatment of Ms. S. from when she first came to see him until the end. They both conclude that the Respondent failed to find the herniated disc which was present through both surgeries, but both Seiber and Smith opine the failure to find a herniated disc does not necessarily constitute a failure to afford the proper standard of care to the patient. As Seiber states, "Sometimes we miss the disk." Based on their examination of all the relevant available material in this case, both Dr. Seiber and Dr. Smith concluded Respondent's failure to find the herniated disk in his operations of July, 1985 and November, 1985 did not constitute a failure to afford appropriate standard of care to his patient on either occasion, albeit a more extensive exposure during the second surgery would have been more prudent. Dr. Seiber has known Respondent for a number of years and, even since the operations on Ms. S., has sent him several patients for surgery. In fact, he has allowed Respondent to operate on him for a herniated disk at L 4-5, right side.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board of Medicine finding that Respondent's treatment of this patient was in violation of the provision of Section 458.331(1)(t), Florida Statutes, and imposing a reprimand and probation for two years under such terms and conditions as the Board may require, including, if appropriate, a requirement for additional continuing medical education. RECOMMENDED this 30th day of July, 1994, 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 30th day of July, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2664 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted. - 9. Accepted and incorporated herein. 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. 14. & 15. Accepted and incorporated herein. 16. & 17. Accepted and incorporated herein. 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. Accepted. 23. & 24. Accepted and incorporated herein. 25. & 26. Accepted and incorporated herein. 27. - 30. Accepted and incorporated herein. 31. Accepted. Though framed by Petitioner in language directly tracking the terms of the regulatory statute allegedly violated, the proposed finding properly indicates that Respondent's management of this patient was improper and below a prudent level of care, skill, and treatment acceptable under similar conditions and circumstances. & 34. Accepted and incorporated herein. & 36. Accepted and incorporated herein. Rejected. Accepted. Rejected. FOR THE RESPONDENT: & 2. Accepted and incorporated herein. Accepted and incorporated herein as appropriate. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Rejected to the extent Respondent was justified in assuming a similar operation on the other could properly address his patient's problem, or that the repetition of an identical procedure would be acceptable. - 11. Accepted and incorporated herein. Accepted. Accepted as a statement of Respondent's position and consistent with his testimony at hearing. & 15. Accepted. 16. - 18. Accepted. - 21. Rejected as contra to the weight of the evidence. 22. Rejected. COPIES FURNISHED: Francesca Plendl, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Paul B. Johnson, Esquire Johnson & Johnson Post Office Box 3416 Tampa, Florida 33614 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department of Health, Board of Dentistry (Petitioner), against Miranda Smith, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this case, the Respondent was a licensed dentist in the State of Florida, holding license no. DN 15873, with an address-of-record at 17020 County Line Road, Spring Hill, Florida 34610, and operating a dental practice identified as "Smiles and Giggles Dentistry." On August 23, 2011, the Respondent performed a dental examination of S.W., a three-year-old female. This was S.W.'s first visit to the Respondent's office. Routine procedures at the Respondent's office included taking radiographs (x-rays) of every new patient. After checking in with the receptionist and waiting for a brief time, S.W. and her mother were called from the reception area by a dental assistant, who accompanied them to a type of x-ray machine called a "Panorex." Patients can remain in a standing position while x-rays are taken with a Panorex, and the images can be produced without requiring the insertion of x-ray film into a patient's mouth. Despite encouragement from her mother and the offer of various enticements by the dental assistant, S.W. refused to stand in the Panorex, and no x-rays were taken. After the attempt to use the Panorex failed, S.W. and her mother were taken into an examination room ("operatory"). Each operatory at the Respondent's practice contained a standard x-ray machine that required the insertion of film into a patient's mouth to produce images. The evidence fails to establish that there was any attempt to obtain images from S.W. using the x-ray machine in the operatory. After S.W. was taken into the operatory and seated, the dental assistant performed a routine cleaning ("prophylaxis") and then left the room. S.W. was cooperative during the prophylaxis. After the prophylaxis was completed, the Respondent entered the room with a different dental assistant and proceeded to perform a comprehensive oral evaluation using routine dental tools. S.W. was cooperative during the examination. The Respondent examined the condition of S.W.'s teeth and verbalized her observations to the dental assistant, who recorded the information by hand into the patient chart. According to the patient chart, the Respondent observed decay in the teeth designated as A, B, I, J, K, L, S and T. After the evaluation was completed, S.W.'s mother was advised that the Respondent had observed "eight cavities" in S.W.'s teeth. The evidence failed to establish whether the mother received the information from the Respondent or from the dental assistant. Thereafter, the dental assistant escorted S.W. and her mother to the "check out" desk, where the mother was advised to schedule a follow-up appointment for dental work related to the Respondent's observations of decay. The follow-up appointment was scheduled for November 17, 2011, and the mother was advised that sedation would be administered at that time. S.W. and her mother then left the Respondent's office. According to the patient chart, the Respondent proposed to treat the observed decay by performing resin-based composite restorations on the teeth. S.W. did not return to the Respondent's office for the follow-up appointment. The Respondent provided no further dental care to S.W. Concerned about the Respondent's evaluation of her child's teeth, S.W.'s mother spoke with a friend who had been employed as a dental assistant, and then decided to seek another opinion regarding the condition of S.W.'s teeth. On or about September 6, 2011, S.W. and her mother went to see Dr. Eva Ackley, a dentist practicing at the Ackley Dental Group, for an evaluation of the child's teeth. Dr. Ackley was aware that S.W.'s mother was seeking a second opinion of the child's dental health. S.W. was cooperative throughout her appointment with Dr. Ackley. S.W. submitted to being x-rayed at Dr. Ackley's office. Dr. Ackley examined the child's teeth and reviewed the x-ray images and observed that, although S.W. had one tooth that required follow-up observation for potential decay, there were no actual cavities requiring treatment. According to S.W.'s mother, the child has been evaluated by two other dentists since 2011, one of whom observed three cavities and the other of whom observed none. According to the mother, neither of the subsequent dentists took x-rays of S.W.'s teeth. At the hearing, the Respondent presented an "expanded functions dental assistant" employed by the Respondent, who testified as to office procedures routinely followed at the Respondent's practice. The witness was not personally involved with S.W. on August 23, 2011. The witness testified that it was sometimes difficult to obtain x-rays from younger patients and that, in such cases, x-ray images would be obtained during a follow-up visit. If required, sedation was administered to calm the patient and obtain the images. The witness testified that during the course of her employment with the Respondent, no restorative treatment had been performed on a patient without x-ray images having been obtained prior to treatment. Her testimony was credible and convincing, and it has been accepted. The witness also testified that, in cases where no x-rays were taken at an initial evaluation, the routine procedure at the Respondent's office was to document the need to obtain x-rays at a follow-up appointment in the patient's file. Although the patient records of S.W.'s evaluation by the Respondent on August 23, 2011, state that the patient "would not do any x-rays," the records do not specify that they were to be taken at the follow-up appointment. The witness testified that the failure to document the need to obtain the x-ray images in the patient records was contrary to routine office procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Amended Administrative Complaint at issue in this case. DONE AND ENTERED this 3rd day of October, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2013. COPIES FURNISHED: Susan Foster, Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Christopher Claude Torres, Esquire Casey and Torres, LLC Suite 200 1240 Thomasville Road Tallahassee, Florida 32303-8707 Adrienne C. Rodgers, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265
The Issue The issue is whether Respondent's Florida license to practice medicine should be revoked for malpractice under section 458.331(1)(t), Florida Statutes (2006).
Findings Of Fact Respondent is licensed to practice medicine in Florida, holding license number ME 66823. He is a radiologist and is certified by the American Board of Orthopedic Radiology and Diagnostic Radiology. On June 17, 2004, the Board of Medicine (Board) disciplined Respondent's medical license by issuing a letter of concern, imposing a $15,000 fine, assessing $4,010.59 in costs, requiring eight hours of continuing medical education, and prohibiting him from treating or prescribing medication to members of his family. On or about October 4, 2006, while working at Drew Medical, Inc., Respondent performed a diagnostic procedure called an intravenous pyelogram (IVP) without tomograms for Patient G.P., who had complained of right-side pain and had a history of kidney stones. An IVP without tomograms is a series of time- lapse x-rays using a dye material to provide radiographically contrasting images to detect a stone in a kidney or ureter. The resulting x-ray images revealed a partial obstructing stone in the right-side kidney/ureter area, which Respondent detected and reported. One of the resulting x-ray images contained an anomaly having the classical appearance of an abdominal aortic aneurysm, including conspicuous tissue displacement and rim calcification. It had an elongated, water balloon-type appearance with calcifications on one of the walls. It was alarming or life- threatening in size, such that it could cause death by bleeding. Respondent did not mention the aneurysm in his report or recommend any further evaluation of the anomaly. Although he was tasked to look for kidney stones, Respondent's failure to report the aneurysm or recommend any further evaluation of the anomaly fell below the level of care, skill, and treatment that is recognized by reasonably prudent, similar physicians as being acceptable. Patient G.P. was admitted to Orlando Regional Hospital with a ruptured abdominal aortic aneurysm on October 6, 2006. Attempts were made to repair the rupture, but they were not successful. The patient died on October 12, 2006. By his conduct in disappearing without a trace, despite the diligent efforts of DOH to find him, and not participating in any manner in the hearing he requested to dispute the Administrative Complaint, Respondent effectively abandoned his license to practice medicine in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of medical malpractice, revoking his medical license, and imposing a $10,000 administrative fine. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Robert Dean Marshall, M.D. Apartment 310 400 East Colonial Drive Orlando, Florida 32803 Robert Dean Marshall, M.D. 5987 Southwest Moore Street Palm City, Florida 34990 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Joy Tootle, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue is whether the examination was unfairly graded, and if so, whether petitioner would have passed, if it had been graded fairly.
Findings Of Fact Petitioner Bruce K. Barr almost passed the clinical portion of the December 1981 examination administered to applicants for Florida dental licenses. On a scale of 0 to 5, he scored 2.992, rounded to 2.99, the merest fraction below the lowest possible passing grade, 3.0. In the course of the clinical portion of his examination, Dr. Barr performed various dental procedures, each of which was evaluated by three and, in one instance, five examiners. An average score was computed for each procedure and these scores were used to calculate another weighted average, which was the final score awarded Dr. Barr on the clinical portion of the examination. The following chart, based on joint exhibits B and E, reflects the scores Dr. Barr received from each examiner for each clinical procedure, reflects the average score calculated for each procedure, and indicates the weight given each procedure in calculating the weighted average of 2.99. Procedure Scores Grade for Weight Procedure Endodontics Posterior 4,3,3 3.33 7.5 percent Cavity Prep. Final 4,4,3 3.67 13.3 percent Restoration 3,3,2 2.67 6.6 percent Anterior 4,3,3 3.33 7.5 percent Amalga Denture Occlusal R & Pressure and T 2,2,2 2.00 10.0 percent Articulation 4,3,3 3.33 10.0 percent Peridontal Cavity Prep. Final 3,1,1 1.67 10.0 percent Restoration 3,2,2 2.33 5.0 percent Evaluation 5,4,4,3,2 3.60 20.0 percent Cast Gold Pin Amalgam Prep. Final 3,3,3 3.00 6.6 percent Restoration 3,3,2 2.67 3.3 percent The weight to be given each procedure is specified by Rule 21G-213(3), Florida Administrative Code. Dr. Barr contends that the 2 he received from one of the examiners who evaluated his periodontal work, the 2 he received from one of the examiners who evaluated the final amalgam restoration he performed, one of the two 3s he received from examiners who evaluated the denture pressure and articulation procedures he performed, and the 2 he received from one of the examiners who evaluated his pin amalgam final restoration were improper for various reasons. All of the clinical examiners were licensed as dentists in Florida and none had practiced less than five years. After they had been selected as examiners, they gathered for an all-day standardization session to "fine tune [the criteria] and come to a consensus about how they [we]re going to grade." (T. 62) At this session, the examiners applied the "criteria in a full mock examination. . ." (T. 62) Department heads from the dental school of the University of Florida participated in the standardization exercises (T. 81). The grade of 3.0 was chosen to represent "minimally acceptable." In no case did one examiner know what grade another examiner had given. In an effort to ensure uniformity in grading, two additional examiners were asked to evaluate a procedure, whenever any two of the first set of three scores were separated by three or more points. When additional examiners were assigned to a procedure, they were not told how many other evaluations had been performed, although circumstances were sometimes such that they could deduce that they were not among the first three examiners to evaluate. DOCUMENTATION The examiners were furnished a form for each evaluation of each of the procedures. More than 17,000 evaluations took place in connection with the December 1981 Examination. On the forms were listed the criteria to be applied and "canned comments" pertaining to each procedure. The "comments" section on the periodontal evaluation form, for example, read as follows: "0-No Comment; 1-Stain; 2-Supra-gingival Calculus; 3-Root Roughness; 4-Sub-gingival Calculus; 5-Tissue Management." The numbers were to permit coding so that the form comments could be read by a machine and do not correlate to any particular score. Examiners were asked to indicate on the form a grade for each procedure they evaluated and, for each procedure which they gave a failing grade (2.0 or lower), they were asked to assign a reason. Whether they made comments on procedures to which they gave grades of 3.0 or better was left to their discretion. PERIODONTAL EVALUATION Because of the three point spread between the 2 and the 5 he received from two of the three examiners who originally evaluated respondent's periodontal work, two additional examiners were asked to make evaluations. All five scores were then averaged, in keeping with the procedure applied in every such case. Examiner No. 36 assigned a grade of 5 and indicated, "No Comment." Examiners Nos. 37 and 71 each assigned a grade of 4 and indicated, "Sub-gingival calculus." Examiner No. 72 awarded the procedure a 3, noting root roughness and sub-gingival calculus. Examiner No. 5 assigned a grade of 2, noting sub- gingival calculus and "Tissue Management." The person on whose teeth petitioner performed the periodontal procedures had moderate roof roughness and "pockets," extensive calculus above and below the gum line, and extensively stained teeth. Respondent's Exhibit No. 3. It was a difficult assignment, and the examiners were so advised. Tissue mismanagement, if any, was not such as to justify a failing grade. Petitioner has had extensive training and experience in periodontics, which is his specialty. AMALGAM RESTORATION Examiners Nos. 5 and 72 each assigned a grade of 3 to petitioner's "final amalgam restoration," indicating problems with "functional anatomy" and "proximal contour." Examiner No. 36 gave this procedure a grade of 2, noting the same problems as the other examiners had indicated, and, in addition, "light contact" and a problem with "margin." Light contact refers to the resistance dental floss met when inserted between the filling and the adjacent tooth; and insufficient resistance could be characterized as a problem with "proximal contour." As for the pin amalgam, final restoration, all three examiners noted problems with functional anatomy. Examiner No. 37, who gave this procedure a grade of 2 wrote out "innocclusion" on the form. The other examiners assigned a grade of 3 but examiner No. 71 noted a problem with "proximal contour" and examiner No. 36 noted a problem with "margin." DENTURE PRESSURE AND ARTICULATION All three examiners who evaluated petitioner's work on dentures commented on "[e]xtension" which relates to the fit. That was the only comment of Examiner No. 72 who gave petitioner a grade of 4 on this procedure. Examiner No. 71 who awarded petitioner a grade of 3 on this, noted a problem with "surface detail" in addition. Even at the time of hearing, there was some detail on the model made by petitioner in performing the required procedure for the examination. Examiner No. 36, who also awarded petitioner a grade of 3 for this procedure, indicated still other problems: "Pressure Areas" and "Distribution." TEST DESIGN The clinical portion of the examination prescribed for licensure as a dentist proceeds on the assumption that different clinicians' evaluations of an applicant's work will vary, even after the examiners have discussed criteria for each procedure and taken other steps toward standardization. Because disagreement is anticipated, three examiners evaluate each procedure independently of one another. Whenever there was more than a two point difference between grades awarded for the same procedure, two additional examiners were called in, in an effort to enhance the reliability of the grade for that procedure. In petitioner's case, there was a three point spread between two evaluations of his periodontal work and a two point spread between different examiners' evaluations of his cast gold cavity preparation, but no more than a single point disparity on any other procedure. The test design contemplates differences of this magnitude. All these safeguards notwithstanding, the test also assumes that there will be errors with respect even to average scores on given procedures. It depends for its reliability on the probability that such errors will not all be in the same direction. Florida's clinical examination employs more examiners and more procedures than any other state's, and compensating errors should make it among the most reliable of examinations of its kind. Proposed findings of fact and proposed recommended orders have been considered and, in many instances, adopted in substance. Otherwise they have been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure with leave to reapply. DONE and ENTERED this 20th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: M. Catherine Lannon, Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Bruce K. Barr, D.D.S 532 Madison Avenue New York, New York 10022 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent's proposed Rule 64B18-23.001, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Florida Medical Association is a statewide organization of approximately 16,000 physicians and osteopathic physicians licensed in Florida pursuant to Chapters 458 and 459, Florida Statutes, respectively. Petitioner assists Florida physicians in improving the health and welfare of the citizens of the State of Florida by representing the physicians in regulatory, legislative, and educational venues. Respondent Department of Health, Board of Podiatric Medicine, is the regulatory body responsible for regulating podiatrists licensed pursuant to Chapter 461, Florida Statutes. Section 461.003(5), Florida Statutes, provides that: 'Practice of podiatric medicine' means the diagnosis or medical, surgical, palliative, and mechanical treatment of ailments of the human foot and leg. The surgical treatment of ailments of the human foot and leg shall be limited anatomically to that part below the anterior tibial tubercle. The practice of podiatric medicine shall include the amputation of the toes or other parts of the foot but shall not include the amputation of the foot or leg in its entirety. A podiatrist may prescribe drugs that relate specifically to the scope of practice authorized herein. Medically and anatomically, the term "leg" means that part of the lower extremity below the anterior tibial tubercle, i.e., below the knee. The region above the knee is referred to as the "thigh." These are basic anatomy terms and definitions used by healthcare professionals, including podiatrists. These basic terms are found in the textbooks used to teach podiatric students, and podiatric schools use these definitions when requesting body parts from the State Anatomical Board. In response to an insurance carrier denying a claim on the basis that a podiatrist had treated a patient beyond the scope of the practice of podiatry, the Board considered the statutory definition of the practice of podiatric medicine. It discovered that some textbooks include a secondary definition for the term "leg" as being the entire lower extremity. The Board determined, therefore, that it would promulgate a rule using the secondary definition of leg rather than the medical or anatomical definition. It also determined it would define the term "surgical treatment," which appears in the statute. The Board's Proposed Rule 64B18-23.001, Florida Administrative Code, contains the following definitions: The term "human leg," as used in s.461.003(5), Florida Statutes, means the entire lower extremity, extending from the head of the femur to the foot, but does not include the hip joint. The term "surgical treatment," as used in s.461.003(5), Florida Statutes, means a distinctly operative kind of treatment, such as a cutting operation. As such, injections, x-rays, and other medical, palliative, and mechanical diagnostic techniques and treatments are not surgery. Specific Authority 461.005 FS. Law Implemented 461.003(5) FS. History -- New. The definition of leg in the proposed rule expands the scope of practice authorized by the statute. The definition of surgical treatment in the proposed rule expands the scope of practice authorized by the statute and creates confusion in that certain diagnostic techniques do fall under the medical definition of surgical treatment. The proposed rule substantially affects orthopedic physicians, vascular surgeons, physical medicine rehabilitation physicians, plastic surgeons, family practitioners, and other physicians in Florida, including those represented by Petitioner, in that under the proposed rule the practice of podiatry is expanded to include areas of the body treated by physicians and not by podiatrists and to allow podiatrists to perform procedures not previously authorized. Petitioner has an interest in assuring that patients are treated by appropriately trained personnel practicing within their authorized scope of practice. The proposed rule substantially affects the general healthcare of patients in the State of Florida. This is a concern for the physicians represented by Petitioner since these physicians are often involved in treating patients who have been inappropriately treated by other professionals. The proposed rule allows podiatrists to practice beyond their areas of training and expertise.
