The Issue The issue for determination is whether a proposed amendment to existing Rule 54Q-16.001(1), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Standing Of The Parties Petitioners Roshkind and Payne are each dentists, licensed to practice in the State of Florida and regulated by the Board of Dentistry. Both Roshkind and Payne utilize dental lasers in their practice of dentistry. Petitioners Roshkind and Payne both own laser dental equipment and employ dental hygienists in their respective practices who perform or have performed, under supervision, a task known as gingival curettage by using laser equipment. Should the rule amendment challenged in these proceedings become effective, neither Roshkind or Payne will be able to delegate the task of gingival curettage by use of laser equipment to their dental hygienists and, as a consequence, will have to perform these tasks personally. Further, in the absence of the ability to delegate performance of gingival curettage with laser equipment to dental hygienist employees, both dentists will be forced to see fewer patients if they continue the use of laser equipment for the performance of this task by themselves with a resultant increase in cost of this service to patients. Both dentists will be substantially impacted by the adoption of the rule amendment. No record testimony regarding the status of the Florida Academy of Laser Dentistry was presented during the Final Hearing by either party. Respondent Board of Dentistry is the statutory agency authorized to regulate the licensure and practice of dentistry and dental hygiene. The Respondent maintains offices at 1940 North Monroe Street, Tallahassee, Florida 32399-0765. The Proposed Rule Amendment, Statutory Basis, And The Process The existing rule, with the proposed amendment underlined, reads as follows: 59Q-16.001 Definitions of Remediable Tasks and Supervision Levels. Remediable tasks, also referred to as expanded functions of dental assistants, are those intro-oral tasks which do not create unalterable changes in the oral cavity or contiguous structures, are reversible and do not expose a patient to increased risk. The use of a laser or laser device of any type is not a remediable task. Section 466,023, Florida Statutes, provides in pertinent part that: Dental hygienists may remove calculus deposits, accretions, and stains from the exposed surfaces of the teeth and from the gingival sulcus; perform root planning and curettage; . . . and perform all tasks delegable by the dentist in accordance with Section 466.024. Section 466.024, Florida Statutes, provides: A dentist may not delegate irremediable tasks to a dental hygienist or dental assistant, except as provided by law. A dentist may delegate remediable tasks to a dental hygienist or dental assistant when such tasks pose no risk to the patient. A dentist may only delegate remediable tasks so defined by law or rule of the board. The board shall be rule designate which tasks are remediable and delegable, except that the following are by law found to be remediable and delegable: Taking impressions for study casts but not for the purpose of fabricating any intraoral restorations or orthodontic appliances. Placing periodontal dressings. Removing periodontal or surgical dressings. Removing sutures. Placing or removing rubber dams. Placing or removing matrices. Placing or removing restorations. Placing or removing temporary restorations. Polishing amalgam restorations. Polishing clinical crowns of the teeth for the purpose of removing stains but not for changing the existing contour of the tooth. Obtaining bacteriological cytological specimens not involving cutting of the tissue. Nothing in the subsection shall be construed to limit delegable tasks to those specified herein. [Notwithstanding subsection (1), a dentist may delegate the tasks of gingival curettage and root planning to a dental hygienist but not to a dental assistant]. [emphasis supp.] The term "irremediable tasks" is defined in Section 466.003(11), Florida Statutes, as: [T]hose intraoral treatment tasks which when performed are irreversible and create unalter- able changes within the oral cavity or the contiguous structures or which cause an incr- eased risk to the patient. The term "remediable tasks" is defined in Section 466.003(12), Florida Statutes, as: [T]hose intraoral treatment tasks which are reversible and do not create unalterable changes within the oral cavity or the contiguous structures and which do not cause an increased risk to the patient. In January 1992, the issue of laser use in the practice of dentistry came to the attention of the Board of Dentistry and a committee was formed to examine the issue. The Board's laser committee held numerous meetings and considered information from several sources. One committee recommendation was the language at issue in the current rule challenge. On September 17, 1993, the Board of Dentistry filed notice of the proposed laser rule with the Secretary of State's Office and with the Joint Administrative Procedures Committee. On October 8, 1994, the Board of Dentistry held a final public hearing on the proposed laser rule. This public hearing did not resolve the issues between the parties. The legislature has designated the Department of Health and Rehabilitative Services as the government agency responsible for the promulgation of rules to protect personal health and safety of persons exposed to laser devices. Section 501.122(2), Florida Statutes. Curettage In dental practice, the task known as curettage, subgingival curettage, or gingival curettage is the removal of inflamed, infected, or diseased soft gum tissue from inside an area known as the periodontal pocket. Curettage was named after the instrument by which it was first performed, a curette; however, several other instruments or devices are now used to perform the task, including curettesm sonic devices, ultrasonic devices, piezo electric devices, and lasers. As established by testimony of Petitioners' expert witnesses, Drs. Parkins and Roshkind, and corroborated by authorities relied upon by them, there is use for gingival curettage, including performance of that task by lasers. A laser is not a task.
Conclusions Based on the foregoing, it is hereby ORDERED that the proposed amendment to Rule 59Q-16.001(1), Florida Administrative Code, is an invalid exercise of delegated legislative authority under Section 120.54(4), Florida Statutes, to the extent that it seeks to prohibit performance of gingival curettage with laser technology by dental hygienists. DONE and ORDERED this 7th day of February, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 7th day of February, 1996. APPENDIX The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-16. Adopted in substance, but not verbatim. 17.-41. Rejected, unnecessary to conclusion. 42.-50. Rejected, hearsay. 51.-54. Adopted, not verbatim. 55.-57. Rejected, unnecessary. 58.-62. Accepted, not verbatim. 63.-66. Rejected, unnecessary. 67. Adopted. 68.-73. Subordinate to HO findings. Respondent's Proposed Findings. Adopted in substance. Rejected, subordinate to HO findings. 3.-6. Adopted in substance. 7.-27. Rejected, subordinate to HO summary of these matters. Further, the statements contained in exhibits are, absent stipulation of the parties, insufficient in themselves to serve as the basis for a finding of fact. 28. Rejected, subordinate to HO findings. 29.-30. Rejected, argumentative. 31. Rejected, weight of the evidence. 32.-34. Adopted, not verbatim. 35.-36. Rejected, relevance. COPIES FURNISHED: Allen R. Grossman, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jeffrey H. Barker, Esquire Post Office Box 1107 Tallahassee, Florida 32302 William Buckhalt, Executive Director Agency for Health Care Administration Division of Medical Quality Assurance 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32399 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
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 Whether Respondent violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (1998); Subsections 466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and Subsections 456.072(1)(bb), 466.028(1)(i), 466.028(1)(l), 466.028(1)(m), 466.028(1)(t), and 466.028(1)(x), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact At all material times to this proceeding, Dr. D'Amico was a licensed dentist within the State of Florida, having been issued license number DN 7121. From 1999 to 2000, Dr. D'Amico was practicing dentistry at Florida Dental, located at 1535 Prosperity Farms Road, Lake Park, Florida. Florida Dental was a clinical-type practice, with several general dentists and Dr. D'Amico, who was the oral surgeon. In January 2001, Dr. D'Amico and Dr. Charles McNamara entered into an agreement by which Dr. D'Amico agreed to purchase Dr. McNamara's office equipment and supplies and to sublet Dr. McNamara's office space located on Lakemont Avenue in Winter Park, Florida. Because of an extended illness, Dr. McNamara was no longer going to practice at the Lakemont Avenue office, but was going to work for another dentist. When Dr. McNamara vacated his office space, he took his patient records with him. Dr. D'Amico was not an independent contractor of Dr. McNamara's, and they did not share a practice. Dr. D'Amico did not leave any of his patients' records with Dr. McNamara. There was not an agreement between Dr. D'Amico and Dr. McNamara that Dr. McNamara would cover for any of Dr. D'Amico's patients. Dr. McNamara had difficulty with Dr. D'Amico paying the rent for the office space and with payments received by Dr. D'Amico from patients of Dr. McNamara. By September 2001, Dr. McNamara was ready to evict Dr. D'Amico from the premises. Dr. McNamara went to the Lakemont Avenue office to give Dr. D'Amico eviction papers, and Dr. D'Amico was not there. A woman was sitting at the reception desk, and it appeared that the practice was being moved. Dr. McNamara later returned to the office, and it was obvious that Dr. D'Amico was no longer practicing at the Lakemont Avenue address. In the fall of 2001, Dr. John M. Altomare was in the process of leaving his office located at 7145 East Colonial Drive, Orlando, Florida, and moving into a new office which was under construction. During the days and hours that Dr. Altomare was not in his East Colonial Drive office, he agreed to let Dr. D'Amico use the office space. Dr. D'Amico had a separate telephone line at the East Colonial Drive office. Dr. D'Amico did not see any of Dr. Altomare's patients at the East Colonial Drive office. Dr. Altomare did not agree to cover for Dr. D'Amico. The relationship between Dr. D'Amico and Dr. Altomare lasted approximately two to three months during the fall of 2001. In the early part of 2002, Dr. D'Amico associated himself with a dental group in Tampa, Florida. Dr. D'Amico failed to publish a notice in the newspaper of greatest circulation in the county where he practiced, advising his patients of the relocation of his practice, when he left Florida Dental and the East Colonial Drive office. The evidence did not establish that the East Colonial Drive office was outside the local telephone directory service of the Lakemont Avenue office. Vicki Bruno was Dr. D'Amico's office manager beginning on August 1, 2001. She filed the patient records and other information in the patients' files. The files were kept in a filing cabinet at the Lakemont Avenue office. When Dr. D'Amico left the Lakemont Avenue office, the files were removed from the office. When Dr. D'Amico starting working out of Dr. Altomare's office, Ms. Bruno was assigned a closet in which to store the files. The closet space was not adequate to store the files, and, at one time, Ms. Bruno placed the patient files in the trunk of her car. Dr. Edward Allen Rumberger testified as an expert witness for the Department. Dr. Rumberger has been licensed to practice dentistry in Florida since 1975 and is board-certified in oral surgery. He reviewed materials related to the four cases at issue, consisting of patient statements, interviews with other individuals, including a former employee, some of the medical records of the patients, and some of the x-rays related to the cases. Patient C.O. On June 20, 1999, C.O. needed to have some repair work done on his Hader bar and went to Florida Dental, where he had been treated in the past. C.O. normally dealt with another dentist, but on this particular visit, he was seen by Dr. D'Amico. C.O. had four implants in his upper mouth. Dr. D'Amico advised C.O. that he did not have enough support for the implants and that he needed to have two pins inserted, at a cost of $1,000 per pin. As Dr. D'Amico began working on C.O., he advised C.O. that the other implants were infected. C.O. was the last patient to leave Florida Dental on June 20, 1999. After Dr. D'Amico finished his work on C.O., he asked C.O. for a check for $5,300 for the work he had done. C.O., groggy from the anesthesia, wrote a check to Florida Dental and gave it to Dr. D'Amico. C.O. returned to Florida Dental for several more visits after his initial treatment by Dr. D'Amico. Dr. D'Amico removed all of C.O.'s original implants and put in new implants. The new implants became infected and had to be removed. The site of the implants had to be débrided. Several weeks after the débridment procedure, Dr. D'Amico did a tibial harvest and grafting to the maxilla in an attempt to provide bone which would support an implant. After C.O.'s last visit with Dr. D'Amico, C.O. experienced pain, infection, and swelling. Dr. D'Amico had given C.O. several telephone numbers at which C.O. could reach him. C.O. called the telephone numbers that Dr. D'Amico had given him, but he could not reach Dr. D'Amico at any of the numbers called. Dr. D'Amico did not give C.O. the name of another dentist to call in case of an emergency. C.O. returned to Florida Dental and advised the person in charge that he needed to have something done for him. Another dentist, Dr. Castillo, was called in to attend C.O. C.O. continued to see Dr. Castillo, who was eventually able to insert three implants in C.O.'s mouth. After C.O. began treatment with Dr. Castillo, Dr. D'Amico contacted C.O. in an attempt to get C.O. to return to him for treatment. C.O. declined further treatment by Dr. D'Amico. Dr. Rumberger reviewed the medical records relating to C.O.'s treatment by Dr. D'Amico. The medical notes consisted of a brief note that five implants were placed and another note stating "Left Tibial Harvest Global Maxillary Cellular Graft." There was no mention of the type of anesthesia that was used. The records did not contain a treatment plan, which should have been done for both the implants and the tibial harvest. There is no documentation that the procedures were thoroughly discussed with C.O. or that C.O. gave informed consent for the procedures. The records do not contain a diagnosis. The x-rays in C.O.'s file were of poor quality and were unsuitable for use in forming an opinion. The records do not justify the course of treatment used by Dr. D'Amico based on the clinical examinations and x-rays of C.O. Patient J.H. On June 12, 2001, J.H. visited Dr. D'Amico at the Winter Park office, to have four lower teeth extracted. Some of the four teeth were broken and infected, causing J.H. pain. J.H. wanted to be fitted with a partial denture after the lower teeth were extracted. Dr. D'Amico extracted the four teeth on June 12, 2001, while J.H. was under sedation. An assistant was present during at least part of the procedure. On July 11, 2001, J.H. returned to see Dr. D'Amico for examination of the extraction sites and to have an impression made for a partial denture. Dr. D'Amico asked J.H. to remove his upper denture plate. Upon examination, Dr. D'Amico found some redundant soft tissue in the posterior of J.H.'s mouth. Dr. D'Amico told J.H. that the lesions may be precancerous. Dr. D'Amico excised some tissue from both sides of D.H.'s mouth. One sample was sent to a laboratory for testing, and the laboratory results indicated that the lesion was benign. Although Ms. Bruno testified that laboratory work was not being done because Dr. D'Amico was delinquent in paying for laboratory work, the tissue sample that was sent to the laboratory in July was prior to Ms. Bruno's employment with Dr. D'Amico. On July 31, 2001, J.H. returned to Dr. D'Amico's office, where Dr. D'Amico removed tissue from the anterior maxillar vestibule. The lesion in the upper area was probably an epulis fissura, which would not require a biopsy, but would require justification for removal. The tissue was removed to make the area more structurally amenable to wearing a new denture. A sample was not sent to a laboratory for testing. Ten days later, J.H. returned for a post-operative visit, complaining of pain in an area where Dr. D'Amico had excised tissue. J.H. was placed under sedation, and Dr. D'Amico reopened the incision. Dr. D'Amico removed a suture needle from the site. Tiffany Callicott, who was Dr. D'Amico's assistant, was present during the procedure and witnessed the removal of the suture needle. Dr. D'Amico did not tell J.H. that a suture needle had been left in his gum. When J.H. awoke from the anesthesia, Dr. D'Amico told J.H. that he had removed a stone. Later Ms. Callicott told J.H. that Dr. D'Amico had removed a suture needle and not a stone. J.H. had difficulty in getting Dr. D'Amico to fill out and submit insurance claims for J.H.'s dental work. He went to Dr. D'Amico's office to see about the insurance. One of Dr. D'Amico's staff gave J.H. three vials containing tissue samples which Dr. D'Amico had removed from J.H.'s mouth. J.H. took the vials to his family physician so that the samples could be sent to a laboratory. J.H. was billed for laboratory analyses for the two tissue samples that Dr. D'Amico did not send to the laboratory. He was also billed for the work that Dr. D'Amico did in removing the suture needle. Lija Scherer is a medical malpractice investigator with the Department. Part of her responsibilities, include obtaining medical records for cases which are being investigated. Ms. Scherer obtained an authorization for release of patient information from J.H. and served Dr. D'Amico with a subpoena to produce the medical records for J.H. Dr. D'Amico failed to produce the medical records. The evidence is not clear how the Department obtained the dental records for J.H., but some records were furnished by the Department to Dr. Rumberger. The medical records furnished to Dr. Rumberger consisted of two anesthesia records and a few progress notes, which were in different handwritings and were not signed or identified. Patient A.P. Dr. D'Amico provided dental treatment to A.P. in September 2001. A.P. had been advised by his regular dentist that his wisdom teeth were impacted and needed to be removed. A.P. went to the office of Dr. McNamara in Winter Park, Florida, to arrange to have the teeth extracted. When A.P. arrived at the office, he was met by Dr. D'Amico, who advised A.P. that Dr. McNamara had retired and that he was taking over the practice. A.P. agreed to allow Dr. D'Amico to treat him. On the first visit, A.P. brought a panoramic x-ray which had been taken by his general dentist. Dr. D'Amico went over the x-ray with A.P., told A.P. the procedure that he would use to extract the teeth, advised A.P. that he would have anesthesia for the procedure, and advised A.P. of the number of days needed for recovery. A.P. made an appointment with Dr. D'Amico to have his wisdom teeth removed on the Friday of the following week, September 13, 1991. S.P., A.P.'s mother, accompanied A.P. to Dr. D'Amico's office for the surgical procedure. A.P. filled out a medical history form and indicated that he was allergic to codeine. A.P. was taken to a room, which contained only a chair in which A.P. sat, a stool on which Dr. D'Amico sat, and a device by which the anesthesia was to be administered. Dr. D'Amico was accompanied by an assistant. A.P. was given anesthesia through an I.V. and went completely to sleep. Dr. D'Amico extracted the four wisdom teeth. After the surgical procedure, Dr. D'Amico's assistant gave S.P. three prescriptions for A.P. and no oral post- operative instructions.1 One of the prescriptions was a pain reliever, one was an antibiotic, and one was for inflammation. Neither A.P. nor his mother was advised that the anti-inflammation medication should be started immediately following surgery. A.P. did not have the prescriptions filled until the day after the surgery. A.P. felt that one of the medications contained codeine, and he did not take that medication. The evidence does not establish that codeine or a medication containing codeine was actually prescribed. After the surgery, A.P. experienced discoloration on the arm in which the I.V. had been given. The arm turned a dark purple from his elbow to his wrist. A.P. was also experiencing pain in his jaw. On the Monday following the procedure, A.P. attempted to contact Dr. D'Amico by telephone. A.P.'s telephone calls were put through to an answering service. A.P. received no answer from Dr. D'Amico on Monday. The next day A.P. again called Dr. D'Amico and spoke with a woman with the answering service. He told the lady that it was an emergency and that he needed to speak to Dr. D'Amico. About ten minutes later, Dr. D'Amico returned A.P.'s telephone call. Dr. D'Amico advised A.P. to apply warm compresses to his arm and that it was normal to have pain after impacted wisdom teeth were removed. A.P. was told to call Dr. D'Amico's office and set up an appointment to see Dr. D'Amico in a week. A.P. was still in a lot of pain and tried to telephone Dr. D'Amico again on Wednesday and Thursday. He was unsuccessful in reaching the doctor. A.P. left messages with the answering service, but Dr. D'Amico did not respond. On Friday, September 20, 2001, A.P. again tried to telephone Dr. D'Amico. This time he was unable to reach either Dr. D'Amico or the answering service. By September 20, 2001, S.P. became frustrated with the lack of response from Dr. D'Amico to A.P.'s attempts to contact him. S.P. went back to the office where the surgery had been performed, and the office was closed. Dr. D'Amico had advised her that he would be moving his office, so she also went to the location where the office was to be moved, but that office was also closed. She left a letter marked "urgent" at both offices. The letter stated that she and her son had been unable to contact Dr. D'Amico and that her son needed to be checked because he was still in pain and his arm was swollen at the site of the I.V. injection. In the letter, S.P. listed four telephone numbers by which either she or her son could be reached. Neither A.P. nor S.P. received any response from Dr. D'Amico. S.P. called another dentist, Dr. Andre Buchs, and requested that he see A.P. Dr. Buchs, who is board-certified in oral and maxillofacial surgery, saw A.P. on September 21, 2001. Dr. Buchs diagnosed possible phlebitis of the right arm secondary to the intravenous sedation that A.P. had been given by Dr. D'Amico. Phlebitis is an inflammation of the inside of the vein. Dr. Buchs also examined A.P. for the severe pain that A.P. was having in his upper right jaw. He found that there was a hole or perforation in the sinus membrane so that there was a communication between the mouth and the maxillary sinus. About 85 percent of such openings will spontaneously close over a period of time. The treatment was to prevent the area from getting infected with antibiotic therapy and to observe the opening for two to three months. Dr. Buchs prescribed amoxicillin and told A.P. to apply warm compresses to his arm and to avoid anything that would aggravate the perforation. He also advised A.P. that if he was unsuccessful in locating Dr. D'Amico to come by for a follow-up visit. Dr. Buchs saw A.P. again on September 26, 2001. A.P. was doing better by the time of the follow-up visit. On October 17, 2001, A.P. again saw Dr. Buchs. At this time, the opening in the sinus cavity appeared to be closing. Dr. Buchs did see a raised firm lump on A.P.'s inner right arm, which meant that A.P. had a true phlebitis. Ms. Scherer obtained an authorization for release of patient information from A.P. and served Dr. D'Amico with a subpoena for the medical records of A.P. Dr. D'Amico failed to produce the medical records. Thus, there are no medical records available to document the course of treatment for A.P. Patient M.F. M.F. saw an advertisement in her local newspaper that Dr. D'Amico, a maxillofacial surgeon, was associated with Florida Dental. M.F. had been experiencing discomfort with her set of dentures that was not functioning properly. She felt that implants might be a better solution to her problems and that a maxillofacial surgeon could perform the procedure. In October 1999, she went to see Dr. D'Amico for a consultation. Dr. D'Amico explained that he would place six implants into her upper gum ridge and that it would take approximately four months to complete the process. Dr. D'Amico described the steps in the procedure. A week later M.F. returned to Dr. D'Amico to begin the procedure. After the implants were inserted, M.F. began a waiting period to see if the implants would be rejected. She did have pain with two of the implants, and Dr. D'Amico did further work on those implants, which resolved the pain. During the implant process, M.F. would wait until Dr. D'Amico called her to come in for further work. Frequently he would make an appointment with M.F. and not appear for the appointment. M.F. would go to different locations for her appointments with Dr. D'Amico. Some of the locations appeared to her to be dental offices and some did not. During the healing process, Dr. D'Amico placed healing columns in the implants. Impressions were made for temporary teeth. M.F. wore the temporary teeth until permanent teeth could be made. During one session in which Dr. D'Amico was making an impression for her permanent teeth, he broke one of the front teeth on the temporary set. Dr. D'Amico told M.F. that she could get some Crazy Glue and repair the tooth. M.F. tried to repair the tooth with Crazy Glue, but it would not hold. Thus, M.F. had a missing front tooth for three or four months. After Dr. D'Amico had fitted M.F. with temporary teeth, he told her that he was going to move his dental practice to Boynton Beach. She did not hear from Dr. D'Amico for approximately three or four months. M.F. went to Boynton Beach to look for him, but was unsuccessful in locating him. Dr. D'Amico finally called M.F. and set up an appointment in Winter Park to finish placing the permanent teeth. She went to the appointment. According to M.F., when Dr. D'Amico placed the permanent teeth in her mouth, the teeth did not fit. There was one central incisor in front, and the second incisor was placed to the side. M.F. complained that the upper and lower teeth on both sides did not touch, resulting in difficulty in chewing. The permanent teeth were a different color from her natural lower teeth. Dr. Rumberger opined that the provision of permanent teeth was beyond Dr. D'Amico's expertise and that Dr. D'Amico should have referred M.F. to another dentist for that procedure. In an attempt to get better articulation between the upper and lower teeth, Dr. D'Amico filed a cap on her lower teeth. The cap had been placed by another dentist. In filing the cap, Dr. D'Amico exposed the metal. He did not offer to repair the cap. Dr. Rumberger did not give an opinion on whether the filing of the cap was below the standard of care. His comment was, "That can happen." Dr. D'Amico told M.F. to try wearing the permanent teeth for two weeks. After the two weeks had passed, M.F. called Dr. D'Amico's office. She was told by the person answering the telephone that Dr. D'Amico would return her call, but he did not. Several months passed before Dr. D'Amico contacted M.F. to come in so that the permanent teeth could be cemented in place. At this time, five of the implants had permanent abutments, but one implant still had a temporary abutment. Dr. D'Amico was going to cement the teeth without replacing the temporary abutment with a permanent abutment. M.F. would not allow him to cement the teeth in place without all the permanent abutments inserted. Dr. D'Amico moved his practice again. M.F. could not locate him and wanted to have the work finished. M.F. had paid Dr. D'Amico in full, approximately $20,000, for the work prior to the work being finished. She had the implant work finished by another dentist at a cost of $9,000. M.F. brought a legal action against Dr. D'Amico to recover her money. The medical records of M.F., which were provided to Dr. Rumberger for his review, were minimal and illegible. There was no mention of a study model being used or that there was a pre-op consultation with a dentist who would construct the permanent teeth. The medical records for M.F. were inadequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. D'Amico violated Subsections 466.028(1)(m) and 466.028(1)(x), Florida Statutes (1998); Subsections 466.028(1)(i) and 466.028(1)(x), Florida Statutes (2000); and Subsections 466.028(1)(i), 466.028(1)(l), 466.028(1)(m), 466.028(1)(t), 466.028(1)(x), and 456.072(1)(bb), Florida Statutes (2001). It is further recommended that Dr. D'Amico's license be revoked. DONE AND ENTERED this 23rd day of July, 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 23rd day of July, 2004.
The Issue The issue is whether Petitioner is entitled to a passing grade on the chiropractic examination.
Findings Of Fact Petitioner took the November 1999 examination for chiropractic licensure. He passed the written part and the technique portion of the practical part. However, Petitioner failed the physical diagnosis and X-ray interpretation portions of the practical part. The physical diagnosis portion of the examination supplies candidates with a brief case history followed by several questions. Score sheets provide standards for the scoring of responses. Question 3 of the physical diagnosis portion of the examination requires the evaluators to ask the candidate to demonstrate and describe an abdominal examination and explain the significance of a digital rectal examination on the patient, who has complained of cramping, bloatedness, and distention, as well as alternating stool consistency with an irregular pattern of defacation. The evaluators assigned Petitioner no points for his responses to Question 3. For the demonstration of an abdominal examination, Petitioner failed to ensure that the abdominal muscles were relaxed in order to permit a useful examination. Petitioner attempted to listen to the spleen, prior to performing percussion and palpation, but he was not in the left lower quadrant, which is the location of this organ. Petitioner palpated the abdominal area with his fingertips, rather than his palms, and failed to perform deep palpation. Petitioner also failed to outline the liver in his demonstration. The purpose of the digital rectal examination, for this patient, was to detect blood or a palpable lesion. Petitioner incorrectly responded that the purpose of this examination was to perform a prostate examination. Petitioner's misdiagnosis of diverticulitis, in response to Question 8, reflects his limited insight into this patient's condition, for which the correct diagnosis was irritable bowel syndrome, colitis, or spastic colon. Question 17 of the physical diagnosis portion of the examination required a demonstration of the gluteus maximus and peroneus muscles. The evaluators credited Petitioner for the correct demonstration of the gluteus maximums, but not the peroneus. Petitioner incorrectly grasped the patient's calf and ankle, which precluded the isolation of the peroneus. Failing to grasp the metatarsal end of the foot prevented Petitioner from properly isolating the peroneous muscle. At the hearing, Respondent gave Petitioner full credit for his response to Question 24 of the physical diagnosis portion of the examination. Question 3 of the X-ray interpretation portion of the examination required Petitioner to examine two X-ray films, taken two years apart, and render a probable diagnosis. The vast destruction of bone mass suggested a case of neuropathic joint resulting from syphillis, but Petitioner diagnosed post-traumatic joint disease, focusing instead on the patient's physically demanding profession and her age of 37 years. However, the extensiveness of bone destruction over a relatively short period favored the diagnosis of neuropathic joint over Petitioner's diagnosis. Question 5 of the X-ray interpretation portion of the examination required Petitioner to identify the anatomical structures outlined at lumbar-3 on a specific X-ray. Petitioner identified the structures as lamina, but they were the pars interarticulares, which are isthmus between the lamina and pedicle. Question 38 of the X-ray interpretation portion of the examination required Petitioner to explain why the neural foramen, as revealed on an X-ray, appeared enlarged. Rather than cite the nondevelopment of the cervical-6 pedicle, Petitioner incorrectly chose neurofibromatosis, despite the failure of the exposed structures to reveal the angularity characteristic of this condition and the absence of any bony structure subject to the process of deterioration resulting from neurofibromatosis. Despite the concession by Respondent on Question 24 on the physical diagnosis portion of the chiropractic licensure examination, Petitioner has failed to prove that he is entitled to additional credit on the physical diagnosis or X-ray interpretation portion of the chiropractic licensure examination that he should have passed either portion of the examination.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order dismissing Petitioner's petition. DONE AND ENTERED this 26th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 26th day of September, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Chiropractic Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Gregory W. Stancel 2256 Iris Way Fort Myers, Florida 33905 Cherry A. Shaw Senior Examination Attorney Department of Health General Counsel's Office 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue in this case is whether Respondent, Andrew Logan, M.D., committed a violation of Section 458.331(1)(t), Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on April 30, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Andrew Logan, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0058658. Dr. Logan's last known business address is 8551 West Sunrise Boulevard, Suite 105, Plantation, Florida 33322. At the times material to this matter, Dr. Logan was certified in ophthalmology. He specializes in medical and surgical ophthalmology. Dr. Logan received a bachelor of arts degree in biology in 1982 from Brown University. He received his medical degree in 1986 from the University of California, San Francisco.2 Dr. Logan completed a residency in ophthalmology. Dr. Logan has practiced medicine in Florida since 1990. At the times relevant to this matter, Dr. Logan worked in a group practice in Plantation, Florida. Most of his practice consisted of an office practice, seeing patients. He also performed some laser and minor surgeries in the office. Approximately once a week, for half a day, he performed surgery out of the office at "three hospitals and surgical centers." Dr. Logan's license to practice medicine has not been previously disciplined. The Department's Administrative Complaint and Dr. Logan's Request for Hearing. On April 30, 2003, the Department filed an Administrative Complaint against Dr. Logan before the Board of Medicine (hereinafter referred to as the "Board"), alleging that his treatment of one patient, identified in the Administrative Complaint as C. S., constituted gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. In particular, it is alleged in the Administrative Complaint that Dr. Logan violated the Standard of Care in "one or more of the following ways": Respondent failed to identify the correct patient for the implantation of the 23 diopter lens; Respondent failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered; Respondent implanted the wrong lens into the left eye of Patient C.S. The factual allegations of the Administrative Complaint, although stated differently, essentially allege that Dr. Logan operated on the wrong patient. Dr. Logan filed a request for a formal administrative hearing with the Department, which was filed by the Department with the Division of Administrative hearings. Treatment of Patient C.S. C.S., who was 70 years of age at the time of the incident involved in this matter, began seeing Dr. Logan for eye care in approximately February 1997. C.S. developed cataracts in both eyes, for which Dr. Logan diagnosed and suggested surgical treatment.3 Dr. Logan explained the procedure he believed necessary to remove C.S.'s cataracts to her and obtained her approval thereof. The procedure to be performed on C.S., known as phacoemulisification, consisted of making an very small incision in her eye, breaking up her natural, or intraocular, lens with ultrasound, irrigating the eye, and then suctioning out the destroyed lens and irrigation material. Once the intraocular lens is removed, it is replaced with an artificial lens, the power and model of which is selected by the physician. Dr. Logan determined that the lens needed to restore C.S.'s vision in her left eye after removal of her intraocular lens was a 15-diopter lens. The "diopter" of a lens relates to the corrective power of the lens. C.S. was scheduled for the planned cataract surgery on her left eye at the Surgery Center of Coral Springs (hereinafter referred to as the "Surgery Center") for the morning of September 5, 2000.4 C.S. was one of at least two patients scheduled for surgery by Dr. Logan that morning. The Surgery Center is a free-standing center where various types of surgery are performed. Dr. Logan was not an owner or employee of the Surgery Center. He did not hire, nor could her fire, any employee of the Surgery Center, and none of the equipment utilized in the Surgery Center was owned by him.5 Consistent with established procedures, the Surgery Center was faxed information concerning C.S.'s scheduled surgery. In particular, the facsimile identified C.S. by name, which eye was to be operated on (her left eye), and the power (15-diopter) and model number of the replacement lens Dr. Logan had determined was necessary to restore C.S.'s vision after the surgery. The day before C.S.'s scheduled surgery, Dr. Logan was provided with C.S.'s patient records and the records of the other patient scheduled for surgery on September 5, 2000. He reviewed those records either that afternoon or that night. He also took the records with him to the Surgery Center where he reviewed them again. On or around the morning of September 5, 2000, the Surgery Center's nurse manager took the facsimiles that had previously been sent to the Surgery Center by Dr. Logan's office and retrieved the lens for each patient scheduled for surgery that day. When the nurse manager retrieved the lens, she was expected to ensure that the ordered lens, both as to power and model, were available, and that they were within their expiration date. She then bundled the lens and the facsimile. Three lens per patient were routinely retrieved. The bundles were then placed on a table in the operating room in the order they were supposed to be used. The order of surgery for September 5, 2000, had been prearranged and that information was available on a list prepared by the Surgery Center to all of those involved in the surgery that morning, including Dr. Logan and his surgery team. C.S. had been scheduled to be the second patient seen that morning. When C.S. arrived at the Surgery Center she was eventually taken to a pre-operation room (hereinafter referred to as "pre-op") to be readied for surgery. The patient who had been scheduled for the first surgery of the morning (hereinafter referred to as the "First Scheduled Patient"), had been late arriving on September 5, 2000. C.S. had come early. Therefore, C.S. was taken to pre-op in place of the First Scheduled Patient. What exactly transpired after C.S. was taken to pre-op was not explained. The nurse manager, who had overall responsibility for getting patients ready for surgery did not testify during this proceeding and the circulating nurse, Ann Tuza, was unable to recall what took place in any detail. What was proved is that Dr. Logan was not informed of the switch and the records and lens, which had been placed in the order of the scheduled surgeries for that day, were not changed to reflect that C.S. would be taken to surgery in place of the First Scheduled Patient. Therefore, although C.S. was the first patient into surgery, the records and lenses of the First Scheduled Patient were not replaced with C.S.'s records or lens. As was his practice, before going into the operating room, Dr. Logan went to pre-op to administer a local anesthesia. Dr. Logan, who had not been informed that the second scheduled patient, C.S., had been substituted for the First Scheduled Patient, administered the anesthesia to C.S. Dr. Logan found C.S. asleep. Dr. Logan did not recognize C.S. and he did not speak to her, as would have been his practice had she been awake, or otherwise identify her. Dr. Logan injected a local anesthesia by needle under and behind C.S.'s left eye,6 a procedure referred to as a "block" or "retrobulbar block."7 After the block had time to take effect, which normally took approximately five to ten minutes, Nurse Tuza went to retrieve C.S. from pre-op and bring her to the operating room. C.S. was brought into the operating room by Nurse Tuza and prepared for surgery. She was covered completely except for her feet and her left eye, which had an "X" placed over it to identify the eye to be operated on. Nurse Tuza remained in the operating room, along with a scrub technician, who assisted Dr. Logan, and a nurse anesthetist. None of these individuals apparently checked to ensure that they were correct in their assumption that the patient was the First Scheduled Patient. Dr. Logan, who did not recall what he did between seeing C.S. in pre-op and arriving at the operating room, completed scrubbing and entered the operating room where C.S. awaited. He had placed his charts in the operating room. His routine after arriving in the operating room was to go to the head of the patient and adjust a microscope used during the surgery. It is inferred that he did so on the morning of September 5, 2000. Although C.S. was awake when she was taken into the operating room and during the surgery, no one, including Dr. Logan, asked her her name. Nor did anyone, including Dr. Logan, check to see if she was wearing a wrist-band which identified her. Instead everyone, including Dr. Logan, assumed that they were operating on the First Scheduled Patient. Not actually knowing who he was operating on,8 Dr. Logan performed the surgery scheduled for the First Scheduled Patient on C.S. Although the procedure her performed on C.S., fortunately, was the same one scheduled for C.S., the diopter of the replacement lens was not.9 The First Scheduled Patient was to receive a 23-diopter lens, rather than C.S.'s 15- diopter lens. Dr. Logan placed the 23-diopter lens in C.S.'s eye, completed the procedure, and C.S. was taken to recovery. When Nurse Tuza went to get the next patient for surgery, who she expected to be C.S., she discovered for the first time that C.S. had been substituted for the First Scheduled Patient. She immediately informed Dr. Logan of the error. Dr. Logan went to the recovery room and, after ensuring that C.S. was alert enough to comprehend what he was saying, informed C.S. of the error. She consented to Dr. Logan's suggestion the he take her back into the operating room, remove the 23-diopter lens, and replace it with the correct, 15-diopter lens, which he immediately did. The replacement procedure required no additional trip to the Surgery Center, anesthesia, or incisions. C.S. recovered from the procedures without problem or direct harm. She continued to see Dr. Logan as her eye care until a change in insurance prevented her from doing so. Standard of Care. There was little dispute that Dr. Logan "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S." These facts, which form the factual basis for the Department's allegation that Dr. Logan violated the Standard of Care, have been proved. Including Dr. Logan, five physicians gave opinions in this proceeding as to whether Dr. Logan's actions violated the Standard of Care: Drs. William Cobb, Harry Hamburger, Joel Kramer, and Lowell Sherris. The testimony of Drs. Cobb and Kramer, primarily, and, to a lesser degree, the testimony of the Dr. Logan and the other two physicians, support a finding that Dr. Logan's actions, as alleged in the Administrative Complaint, constitute a violation of the Standard of Care. The testimony of Drs. Cobb, Kramer, and Sherris, which was credible and persuasive, have been summarized in the Department's proposed recommended order, and will not, in light of recent changes in Section 456.073(5), Florida Statutes, be summarized in any detail here. All of the physicians who testified, including Dr. Logan, agreed that a physician must know on whom he or she is operating and that operating on the wrong patient or inserting the wrong lens in a patient's eye is inappropriate. Dr. Logan, with Dr. Hamburger's support, attempted to prove that Dr. Logan did not violate the Standard of Care, despite the fact that he "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S.," by suggesting the following: It is reasonable and common practice in the South Florida community for a physician to rely on the staff of a surgical center to identify a patient prior to surgery and bring the patients [sic] back in the order originally anticipated. Dr. Logan had several safeguards in place to avoid the error that occurred in this case. The standard of care does not require that physician act as a supervisor who is responsible for every act of the healthcare provided team. This incident occurred due to an error of the staff at the Surgical Center at Coral Springs. . . . . Respondent's Proposed Final [sic] Order, paragraph 78. The proposed findings quoted in paragraph 37 are based primarily on Dr. Hamburger's, and to a lesser extent, Dr. Logan's, assertion that the surgery was a team effort, that the team had established procedures to identify the patient, and that the team failed in this instance to properly identify the patient. This testimony, and the proposed findings quoted in paragraph 37 are rejected. Nothing in the procedures followed in this instance alleviated Dr. Logan's responsibility to ensure that he actually established for himself who he was about to perform surgery on, a task which would have taken little effort.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Andrew Logan, M.D., has violated Section 458.331(1)(t), Florida Statutes (2000), as alleged in the Administrative Complaint, requiring the payment of an administrative fine of $5,000.00, completion of four hours of continuing medical education in risk management, and attendance at a one hour lecture on wrong patient surgery and how to avoid it, and issuing Dr. Logan a letter of concern from the Board of Medicine. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004.
The Issue The issue in this case is whether Petitioner, Jennifer Lee Brown, D.M.D., should receive a passing grade on the December 1997 Florida dental licensure examination.
Findings Of Fact Petitioner, Jennifer Lee Brown, D.M.D., is a graduate from the University of Florida College of Dentistry. Respondent, the Department of Health (hereinafter referred to as the "Department"), is responsible for the licensure of dentists in the State of Florida. In December 1997 the Florida Department of Business and Professional Regulation, on behalf of the Department, administered the Florida dental licensure examination which persons wishing to practice dentistry in the State were required to pass. Dr. Brown took the December 1997 dental examination (hereinafter referred to as the "Examination"). The Examination consisted of clinical, Florida laws and rules, and oral diagnosis parts. The clinical portion of the Examination consisted of 8 procedures: procedures 1-3 and 5-9. Each procedure was graded by three separate examiners. The scores awarded by the three examiners on each procedure were averaged, resulting in a truer score. Each procedure had standardized "comments" concerning a candidate's performance on the procedure which examiners could note. Examiners were selected from individuals recommended by existing examiners or members of the Board of Dentistry (hereinafter referred to as the "Board"). Prospective examiners could not have any complaints against their license and they were required to have actively practiced dentistry and to be licensed as a dentist in Florida for a minimum of five years. Prospective examiners were required to file an application with the Board's examination committee. Prior to the Examination, a "standardization" session was conducted for the examiners selected. During the session, examiners were trained how to grade the Examination using the same internal criteria. The standardization session was conducted by assistant examiner supervisors appointed by the Board. After completion of the standardization session, and before the Examination, examiners were required to grade five mannequin models in order to evaluate the examiners' understanding of the grading criteria. Each examiner's performance was evaluated to determine whether the examiner should be used during the Examination. The examiners who graded Dr. Brown's clinical part of the Examination were designated as Examiners 168, 176, 195, 207, 264, 290, 298, and 299. All of these examiners completed the standardization session and the post-standardization evaluation. During the clinical part of the Examination, the examiners were required to grade each procedure independently, without conferring with each other. The clinical part of the Examination was "double blind" graded. Examiners did not see the candidates they were grading or watch their work. The test procedures were performed in a clinic in the presence of a licensed dentist. After the procedure was completed, the patient or tooth was taken to another clinic where the examiners reviewed the work performed on the patient and graded the procedure. The examiners had no direct contact with any candidate. Candidates were permitted to use "monitor-to-examiner" notes to convey information to the examiners that a candidate wanted the examiners to take into consideration when grading a procedure. Any such notes were read by the examiners and initialed "SMN" (saw monitor note) before they actually looked at the patient or tooth. For the clinical part of the Examination the following grading system was used: Zero: complete failure; One: unacceptable; Two: below minimally acceptable. Three: minimally acceptable. Four: better than minimally acceptable. Five: outstanding. After the Examination was graded, all examiners underwent a post-examination evaluation. Grades awarded by each examiner were compared to other examiners for consistency. All of the examiners who graded Dr. Brown's clinical part of the Examination were found to have performed acceptably. Dr. Brown was subsequently informed that she had failed to obtain the minimum passing grade of 3.00 for the clinical part of the Examination. Dr. Brown was informed that she had been awarded a score of 2.67. Dr. Brown was also informed that she passed the other two parts of the Examination. Dr. Brown challenged the scores she had been awarded on the clinical part of the Examination for procedures 2, 5, 6, 7, 8, and 9. The procedures challenged were graded by examiners 176 (graded all the challenged procedures), 195 (graded procedures 5- 9), 207 (graded procedure 2), 298 (graded procedure 2), and 299 (graded procedures 5-9). The Department conceded that the scores awarded Dr. Brown on procedures 7 and 8 were incorrect. As a result, the Department agreed that Dr. Brown's overall score for the clinical part of the Examination should be raised to 2.82. The evidence failed to prove that Dr. Brown should have received a higher score on procedures 7 and 8. Procedure 2 consisted of an amalgam (filling)n preparation on a human patient. Dr. Brown was required to select a tooth and, after the selected tooth was checked by an examiner, complete preparation for the amalgam. Dr. Brown wrote three monitor-to-examiner notes during procedure 2. All three examiners wrote "SMN" on all three notes. Dr. Brown received an average score on procedure 2 of 3.66. Dr. Brown was awarded the following individual scores for her performance on procedure 2: Examiner Score 176 4 207 4 298 3 Examiners 176 and 298 noted the following comment concerning Dr. Brown's performance on procedure 2: "Depth Prep." Examiner 298 also noted the following comment: "Marginal Finish." Examiner 207 noted the following comment: "Retention Form." Dr. Brown admitted that her performance on procedure 2 was not ideal, but expressed concern that she was graded down for matters dealt with in the monitor-to-examiner notes. Dr. Shields opined that it was possible for the examiners to have reduced the score awarded to Dr. Brown on procedure for depth preparation, marginal finish, and retention form and not have graded her down for the monitor-to-examiner notes. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 2 of the clinical part of the Examination. Dr. Brown received a fairly consistent score from all three graders. Procedure 5 was a "class IV composite restoration." This procedure involved the selection of a tooth by Dr. Brown which she was then required to make a slice cut on to replicate a fracture. Dr. Brown was then required to restore the simulated fractured tooth to its normal contour and function. The procedure was performed on a mannequin. Dr. Brown received an average score of 1.66 on procedure 5. Dr. Brown was awarded the following individual scores for her performance on procedure 5: Examiner Score 176 3 195 0 299 2 Examiners 176 and 195 noted the following comment concerning Dr. Brown's performance on procedure 5: "Proximal Contour." Examiners 176 and 299 noted the following comment concerning Dr. Brown's performance on procedure 5: "Margin." Finally, the following additional comments were noted by the examiners: Examiner Comment: 195 Functional Anatomy Mutilation of Adjacent Teeth 289 Gingival Overhang Dr. Brown's challenge to her score for procedure 5 was essentially that Examiner 199 had given her such a low score on this procedure and procedures 7 through 9 when compared to the scores awarded by Examiners 176 and 298. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 5. Dr. Shields' opinion was based generally upon his 21 years of experience as a dentist. More specifically, Dr. Shields based his opinion upon his examination of the actual tooth that Dr. Brown performed procedure 5 on. Dr. Shields found excess material left at the gingival or gum portion of the tooth. Dr. Shields also found that Dr. Brown attempted to polish the material off and had flattened some of the surface of the tooth. Apparently, based upon Examiner 195's comment notes, Examiner 195 was the only examiner to catch these deficiencies in Dr. Brown's performance on procedure 5. Dr. Shields also found slight damage on the mesial, the approximating surface of the lateral incisor, the tooth next to the tooth that was restored. The evidence failed to prove that Dr. Shields' opinions concerning Dr. Brown's performance on procedure 5 were not reasonable and accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 5 of the clinical part of the Examination. Procedure 6 required that Dr. Brown perform an Endodontic Evaluation of the Maxillary First Premolar. Dr. Brown was required to select an extracted tooth, a maxillary tricuspid, examine x-rays of the tooth, and then perform a root canal on the tooth. The tooth had two roots. The root canal involved creating an opening in the tooth and removing the pulpal tissue from the two nerve canals of the tooth (a debridement). The canals were to be shaped for an obturation or the filling of the canal. A final x-ray of the tooth was taken after the procedure was completed. Dr. Brown received an average score on procedure 6 of 1.00. Dr. Brown was awarded the following individual scores for her performance on procedure 6: Examiner Score 176 3 195 0 299 0 All three examiners noted the following comment for Dr. Brown's performance on procedure 6: "Proper Filling of Canal Spaces with Gutta Percha." Gutta Percha is the material that was used by Dr. Brown to fill the canal of the roots after she completed the debridement. Examiner 195 noted the following additional comment for Dr. Brown's performance on procedure 6: "Access Preparation." Examiner 299 noted the following additional comment: "Shaping of Canals." Dr. Brown's challenge to her score for procedure 6 was based in part on her concern that Examiners 199 and 299 had given her a score of 0 on this procedure while Examiner 176 had given her a score of 3. Dr. Brown admitted that she had caused the gutta percha to extrude through the apex of the canals. She argued, however, that gutta percha is reabsorbed by the patient. Therefore, Dr. Brown suggested that her performance was "clinically acceptable." Dr. Brown questioned how one examiner, Examiner 176, could conclude that her performance was in fact clinically acceptable, while the other two examiners concluded it was not. The difficulty with Dr. Brown's position with regard to procedure 6 is that she assumes that the only deficiency with her performance was the extrusion of gutta percha and that it was not a significant deficiency. The evidence failed to support this position. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 6. His opinion was based upon the fact that the extrusion of gutta percha was very significant on one of the canals: it extended a millimeter and a half. On the other canal it was a half of a millimeter. Filling the canal one half millimeter to a millimeter is considered ideal. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. During the standardization session, examiners were told that extrusion of gutta percha more than a half millimeter through the apex was to be considered an error of major consequence. Candidates who extruded guttal percha more than a half millimeter were not to receive a grade higher than one. In light of the instructions during the standardization session, it was more likely that Examiner 176 gave Dr. Brown too high of a score on procedure 6. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 6 of the clinical part of the Examination. Procedure 9 was a pin amalgam final restoration. Although this procedure involved, in a lay person's terms, a filling, what exactly was involved in this procedure was not explained during the formal hearing. Dr. Brown received an average score on procedure 9 of 1.66. Dr. Brown was awarded the following individual scores for her performance on procedure 9: Examiner Score 176 4 195 0 299 1 All three examiners noted the following comment concerning Dr. Brown's performance on procedure 9: "Functional Anatomy." Examiners 195 and 299, who both graded Dr. Brown below minimal acceptability, also noted the following comments: "Proximal Contour," "Contract," and "Margin." Dr. Brown failed to present any evidence to support her claim that she should have received a higher score for procedure Dr. Brown simply questioned the fact that Examiner 195 had graded her low on all the clinical procedures. Dr. Shields opined that Dr. Brown should not receive a higher score on procedure 9. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 9 of the clinical part of the Examination. Dr. Brown's challenge in this case was based largely on the fact that Examiner 195 had graded her performance on procedures 5, 6, and 9 as a zero, procedure 7 as a one, and procedure 8 as a two. Other than the fact that Examiner 195's scores were consistently low, the evidence failed to prove that Examiner 195 improperly graded Dr. Brown except as conceded by the Department on procedures 7 and 8. Comparing the scores awarded by Examiner 195 to Examiner 176 does raise some question as to why there was such a discrepancy in the two examiners' scores. When the scores on procedures 5, 6, and 9 of all three examiners are compared, however, Examiners 195 and 298 generally were consistently below acceptable, while Examiner 176's scores were generally higher on these three procedures: Examiner Procedure 5 Score Procedure 6 Score Procedure 9 Score 176 3 3 4 195 0 0 0 299 2 0 1 This simple mathematical comparison, however, is not sufficient to conclude that Examiner 195 scored too low or that Examiner 176 scored too high. Other than a simple comparison of the scores of the three examiners, the only evidence concerning whether Examiner 195 graded too low based upon the scores alone was presented by Ms. Carnes, an expert in psychometrics. Ms. Carnes opined that Examiner 195's performance was acceptable, except with regard to procedures 7 and 8. The evidence failed to refute Ms. Canres' opinion. Based upon the weight of the evidence, Dr. Brown's score for the clinical portion of the Examination, as adjusted by the Department during the final hearing of this case, was reasonable and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health, Board of Dentistry, dismissing Dr. Brown's challenge to the amended grade awarded for the clinical part of the December 1997 Dental Examination. DONE AND ENTERED this 14th day of September, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1998. COPIES FURNISHED: Jennifer Brown Post Office Box 39 Starke, Florida 32091-0039 Anna Marie Williamson, Esquire Office of the General Counsel Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 William Buckhalt, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Dr. Gary Sloan, was an unsuccessful candidate for the dental examination in December, 1988. The dental examination is comprised of three portions: the written examination; the diagnostic skills examination; and the clinical (or practical) examination. A final grade of 75 is required on the written examination and the diagnostic skills examination. The minimum score required on the clinical examination is 3.0. Petitioner received scores of 88 and 77 on the written and diagnostic skills examinations, respectively. However, Petitioner received a score of only 2.80 on the clinical examination. Procedures performed in the clinical examination are graded by three examiners pursuant to a blind grading system. The grade for each procedure is determined by averaging the scores of the three examiners. Each procedure is graded in a holistic manner and not as a numeric point deduction for errors and mistakes. The highest and lowest scores an examiner can award for a particular procedure are 5 and 0, respectively. Each examiner may make comments on the score given for each procedure. Comments by an examiner are mandatory for any failing score and optional for any other score. Procedure Number 01 required Petitioner to perform a periodontal exercise on a live patient. The periodontal exercise involved a definitive debridement with a minimum of five teeth. Procedure Number 06 required Petitioner to perform an endodontic procedure on a mannequin. The endodontic procedure involved access preparation of a tooth including proper identification of canals. Petitioner was qualified as an expert in dental procedures. Petitioner is licensed in other states and has performed procedures similar to those required in Procedure Numbers 01 and 06 many times in private practice. Respondent expressly stated that it had no objection to Petitioner being qualified as an expert. Petitioner performed Procedure Numbers 01 and 06 properly. Petitioner satisfied each of the criteria for the definitive debridement required in Procedure Number 01. Petitioner left no supra-gingival or sub-gingival calculus on the patient's teeth. Any remaining root roughness was part of the patient's natural anatomy. Any remaining stain was non-removable stain. Petitioner satisfied each of the criteria for the access preparation required in Procedure Number 06 including proper identification of canals. The evidence presented by Petitioner was uncontroverted by Respondent. Respondent presented the grades and comments given by the examiners for Procedure Numbers 01 and 06 performed by Petitioner. However, Respondent did not call an examiner for either Procedure Numbers 01 or 06 as a witness in this proceeding. Respondent's expert witness was not an examiner for either Procedure Numbers 01 or 06. Therefore, Respondent presented no direct evidence to refute the evidence presented by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's request for a re-grade of his December, 1988, clinical examination be GRANTED and that Petitioner be given full credit for Procedure Numbers 01 and 06. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11 day of April 1990. DANIEL MANRY 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 11 day of April 1990.
