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 issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner was an applicant for licensure by examination to practice dentistry in the State of Florida. Petitioner took the dental examination in December of 1984 and June of 1985, and obtained a total overall grade of 2.60 and 2.04; respectively. A grade of 3.00 is required to pass the examination. Petitioner is here contesting only procedure 07 in which he received a grade of 0, 0, and 0 from three (3) examiners for an average grade of zero (0) and procedure 08 in which he received grades of 0, 2, and 0 from three (3) different examiners for an average grade of 0.66 on the December of 1984 dental examination and the rejection of his periodontal patient which resulted in his receiving grades of 0, 0 and 0 from three (3) examiners for an average grade of zero (0) on procedure 04 on the June of 1985 dental examination. Examiners for the dental examination are all currently licensed dentists who have been licensed in the State of Florida for the immediate five (5) years prior to the examination who have been extensively trained and standardized by the Department of Professional Regulation. A standardization exercise takes place immediately prior to each examination during which the examiners grade identical procedures and discuss any grade variance to eliminate; as far as possible; any discrepancies in interpretation of the grading criteria. Examiners are evaluated against each other in their performance during the training and evaluated against the performance of past examiners in order to rank the examiners. The lower ranking examiners are used as supervisory personnel (monitors) to monitor the clinics. Candidates are informed of the grading criteria prior to the examination through the notice to appear and the applicable laws and rules which are sent by the Office of Examiner Services to all candidates prior to the administration of the examination. The Petitioner received and was aware of the contents of the notice to appear for the dental examination on December of 1984, specifically that portion indicating that preparation of the wrong tooth would result in failure of the procedure. Petitioner was verbally given tooth assignments, including tooth assignment for procedures 07 and 08 and Petitioner was aware that tooth assignments were posted on the wall for reference. Tooth number 4 was assigned for procedure 07 and 08 on the December of 1984 dental examination but Petitioner started preparation for procedures 07 and 08 on tooth number 13 which was the wrong tooth. The evidence was insufficient to prove that Petitioner questioned a monitor concerning the procedure to follow when the wrong tooth had been prepared for procedure 07 and 08. However, had he questioned the monitor the monitor would have instructed him to fill-out what is commonly referred to as a "yellow sheet" documenting for the file and the examiner what it was the Petitioner wanted the examiner to know about preparation of the wrong tooth. There was no "yellow sheet" concerning procedure 07 and 08 in Petitioner's file. One of the monitors for the December of 1984 dental examination, Dr. Smith; who was a monitor for the section where Petitioner was performing procedures 07 and 08, remembered being questioned by an applicant in regard to the procedure to follow when the wrong tooth had been prepared but he was not sure that it was the Petitioner. In any event, his instruction to the applicant was to fill-out the yellow slip. Relief monitors filled in for the regular monitors so it was possible that Dr. Smith was not there for the full time. Petitioner, upon realizing that he had started on the wrong tooth, completed procedures 07 and 08 on the wrong tooth, tooth number 13, and then completed procedure 07 and 08 on the assigned tooth, tooth number 4. If the preparation of the wrong tooth had of been on a live patient rather than a model, the healthy tooth structure would have been destroyed or mutilated and needlessly damaged. Procedure 04, Periodontal Evaluation, is performed on a live patient and it is the responsibility of the applicant to bring an acceptable periodontal patient for this procedure. Petitioner's patient to be used for the periodontal portion of the June of 1985 dental examination was his mother, Lavonee Perrott. For the periodontal portion of the June of 1985 dental examination, a minimum of two examiners would have examined the patient and, if there was a disagreement between these two examiners, then a third examiner was called in to examine the patient. After reviewing the X-rays of the patient's teeth provided by Petitioner and giving the patient a periodontal examination, the first two examiners rejected Petitioner's patient as not meeting the criteria of a patient for the periodontal portion of the June of 1985 dental examination. Petitioner's patient was examined by Doctor Louis Pesce, a periodontal specialist, on June 12; 1985 several days after her examination for the June of 1985 dental examination. Doctor Pesce took X-rays of the patient's teeth and gave her a complete regular periodontal examination. Although X-rays are only an adjunct to diagnosis for periodontal disease, X-rays do reflect obvious subgingival calculus. However; probing is necessary by the examiner to determine if the subgingival calculus is present at the time of the examination. X-rays will not reveal the extent of the pocket depth of teeth. Doctor Pesce reached his conclusion that the patient met all the criteria for the periodontal portion of the June of 1985 dental examination on the assumption that pocket depths of four to seven millimeters was conclusive evidence of the presence of subgingival calculus and was non-specific as to what level it was present or on which teeth. Doctor Pesce found that on 12 to 14 teeth the patient had: pocket depths of between four to seven millimeters: subpragingival calculus; root roughness, and required tissue management. He also found sufficient osseous destruction. Doctor Pesce was the only witness to testify who had given the patient a regular periodontal examination but his recollection of the patient's condition was not always clear and his notes were apparently insufficient to refresh his memory such that he could reach a conclusion that the patient met all the criteria for a periodontal patient. Examiners are standardized to look for obvious subgingival calculus, obvious subgingival calculus being that which can obviously be seen and felt or is obvious on X-ray. Although a patient may not meet the criteria for the periodontal portion of the dental examination, this does not necessarily indicate that the patient does not need periodontal treatment. The focus of the dental examination is for minimum competency and not the competency of a specialist. Even though the patient testified that the examiners only probe two teeth, the more credible evidence was Dr. Simpkin's testimony that a patient cannot always tell where that patient is being probed. Petitioner did not examine the patient prior to the June of 1985 dental examination for the criteria but apparently relied on X-rays taken of patient's teeth by her regular dentist. See Petitioner's Exhibit 1, page 12 lines 23-25 and page 13 lines 1-6. Had Petitioner's patient been accepted by the examiners, the Petitioner would have had to receive a perfect score of 5 from each of the three examiners in order to receive a passing grade of 3 or better on the June of 1985 dental examination. Petitioner received the notice to appear for the June of 1985 dental examination and was aware of the criteria for the periodontal patient to be accepted.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 466.028(1)(y) and (m), issuing a reprimand, imposing a fine of $6,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. 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 1st day of August 1995.
The Issue Should discipline be imposed on Respondent's license to practice medicine in Florida?
Findings Of Fact Stipulated Facts and Admitted Facts: Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued License No. ME0063587. Respondent's mailing address is 1834 Southwest 1st Avenue, Ocala, Florida 34474. Respondent is board certified in Internal Medicine with a sub-specialty in Pulmonary Disease and Critical Care Medicine. On July 21, 1999, Patient F.C. presented to Respondent for the bronchoscopy and biopsy of his left lung. The results of the biopsy performed on July 21, 1999, by Respondent were benign. The final diagnosis on the cytology of the biopsy performed on July 21, 1999, by Respondent showed malignancy not identified. Additional Facts: F.C. was born on December 12, 1939. In January of 1997 he was diagnosed with small cell carcinoma of the lung with brain metastasis. He received Carboplatinum and VP-16 to treat the condition. He had a DVT in January of 1998. In 1999 F.C. was the patient of Thumati Jagalur, M.D. Dr. Jagalur referred F.C. to Anju Vasudevan, M.D., for an oncology consult. As of July 16, 1999, Dr. Vasudevan determined that given F.C.'s status two and a half years post- diagnosis, it would be worthwhile to obtain a biopsy through bronchoscopy. Dr. Vasudevan made Dr. Jagalur aware of this plan in correspondence dated July 16, 1999. This report from Dr. Vasudevan to Dr. Jagalur made mention of the results of a CT scan of the chest that had been done on F.C., in which a multi-lobular soft tissue density mass, left intrahilar posteriorly with respect to the hilum had been identified. The mass was approximately 3.5 x 4cm in diameter, according to Dr. Vasudevan's remarks to Dr. Jagalur. The CT scan did not reveal any definite metastatic disease in the abdomen or brain pan. Dr. Vasudevan anticipated that the bronchoscopy would be performed by Nagesh Kohli, M.D., a physician practicing pulmonary medicine with Ocala Lung and Critical Care Associates in Ocala, Florida. Respondent was also a member of that practice. In anticipation of the bronchoscopy, Dr. Kohli gave pre-bronchoscopy orders on July 19, 1999. The bronchoscopy was scheduled to be conducted on July 21, 1999. These orders did not make mention of the location of the soft tissue density mass that had been previously identified in the CT scan of the chest, left intrahilar posteriorly with respect to the hilum. The bronchoscopy to be performed on patient F.C. was to take place in the Ocala Regional Medical Center, Ocala, Florida. The procedure was performed by Respondent, who substituted for Dr. Kohli. The procedure took place as scheduled at Ocala Regional Medical Center. In the records from the Ocala Regional Medical Center in the operative report, Respondent describes the pre- operative diagnosis as right lower lobe mass. The post- operative diagnosis states "No endobronchial lesions. Biopsies taken from the right lower lobe as well as right hilar Wang aspiration." The procedures were described in the report as bronchoscopy and biopsy. The report by Respondent goes on to describe examination of the trachea, the carina, and the main bronchi. These features were found to be normal. The report describes examination of the main stem bronchus left and right and other aspects of the left and right bronchus with no abnormalities found. The report further describes that "transbronchial biopsies were obtained from the right lower lobe, multiple biopsies were taken from various segments. Wang aspiration was performed times 3 from the right hilum." In his post-bronchoscopy orders Respondent referred to the specimen biopsy sites as right trans-bronchial biopsies associated with the pathology. In correspondence from Dr. Vasudevan to Dr. Jagalur following the negative results obtained in the biopsy performed by Respondent, Dr. Vasudevan expressed her belief that the biopsy done on July 21, 1999, by Respondent was in relation to the right lung, not the left lung as intended. In the correspondence from Dr. Vasudevan to Dr. Jagalur she goes on to describe how there were no indobronchial lesions noted on either side. As explained in the correspondence, Dr. Vasudevan, with F.C.'s consent, determined to arrange a CT scan guided biopsy of the left lung mass, to be followed by a repeat bronchoscopy with biopsy of the left side if the results obtained from the guided biopsy of the left lung mass were negative. The patient F.C. returned to Ocala Regional Medical Center on July 26, 1999, and the CT scan biopsy needle guided was performed, in which the spinal needle was inserted into the mass lesion in the left lower lung field. The pathology from this biopsy was negative. On August 16, 1999, patient F.C. returned to the Ocala Regional Medical Center. At that time Dr. Kohli performed a bronchoscopy with biopsy of the left lower lobe lung mass. No indobronchial lesions were seen. During the procedure the trans-bronchial biopsies performed by Dr. Kohli were in the superior segment of the left lower lobe and posteria segment of the left lower lobe. The results of the specimens revealed a grade IV carcinoma. Patient F.C. died sometime around the end of June 2001. Respondent is board certified in pulmonary medicine and critical care medicine. He performed the bronchoscopy and biopsy on F.C. as part of his practice in pulmonary medicine. Before performing the bronchoscopy and biopsy he had reviewed radio-graphic studies which revealed the mass in the left lung. No other mass was evident in the studies. The review of the film was made with the aid of a view box. In particular, when Respondent did the bronchoscopy on July 21, 1999, he displayed the aforementioned CT scans on the view box. The CT scan available to Respondent when performing the bronchoscopy had been made on July 14, 1999. Although no mention is made in the operative report prepared by Respondent on July 21, 1999, Respondent used fluoroscopy to assist in obtaining the biopsies. The procedure performed on July 21, 1999, was video- taped and available for viewing on a television screen through a live picture, to include the use of fluoroscopy. Kristine Sittrick, R.N., was employed by the Ocala Regional Medical Center on the date Respondent performed the bronchoscopy with biopsy on F.C. She had involvement in the procedure in the capacity of respiratory care therapist. At the time and at present Ms. Sittrick served as supervisor for the pulmonary lab where the procedure was being performed. During the procedure Ms. Sittrick told Respondent that F.C.'s history of cancer was on the left side. She told Respondent this because she observed that Respondent ". . . was going into, on the right side. . . . He was looking in the area that wasn't . . . ." When asked if Respondent was performing procedures on the side that was not implicated by F.C.'s history of cancer, Ms. Sittrick stated "I believe he did." Ms. Sittrick did not recall in her testimony what exactly Respondent may have done on the right side. Ms. Sittrick further describes her concern that Respondent "knew the man's history of what was on the left . . . because he was doing the procedure for Dr. Kohli, and that was a limitation as well. I just wanted to make sure he knew the tissue was on the left." Consistent with Respondent's instructions, Ms. Sittrick wrote on the specimen labels the location that Respondent said the specimen was obtained from. That information Respondent imparted was that the specimen came from the right lung, leading to the pathology report reflecting findings in the right lung, transbronchial biopsies. When Respondent concluded the bronchoscopy with biopsy for patient F.C. he immediately dictated his operative report indicating that transbronchial biopsies were obtained from the right lower lobe. Notwithstanding contrary evidence, Respondent biopsied the mass in question from the left lung as he claimed in his testimony. The expectation in the case is that the biopsy should have been performed on the left lung. All Respondent's records prepared in association with the procedure say otherwise. Consequently, the medical record prepared by Respondent fails to justify in any manner the course of treatment involving the left lung where the biopsies were taken. Instead, the records justify the biopsies in the right lung that were not actually performed. Those are circumstances that violated the standard of care for physicians, as established through the opinion of George Schoonover, M.D., who is board certified in internal medicine and pulmonary diseases with a special qualification in critical care medicine. Dr. Schoonover's opinion is premised upon the fact that the record reflects Respondent biopsied the right lung, which was an erroneous medical record.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Count I, and finding Respondent in violation of Count II in the Administrative Complaint, issuing a letter of reprimand, imposing a $5,000.00 administrative fine, and the cost of investigation and prosecution in the amount of $3,630.50. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 15th day of February, 2002. COPIES FURNISHED: Ephraim D. Livingston, Esquire Agency for Health Care Administration Fort Knox Building II, Suite 1100 2727 Fort Knox Boulevard, Mail Stop 39-A Tallahassee, Florida 32308-6287 Paul A. Nugent, Esquire O'Hara Law Firm First Sanford Tower, Suite 600 312 West First Street Sanford, Florida 32771 Gary C. Simons, Esquire Savage, Krim, Simons and Jones 121 Northwest Third Street Ocala, Florida 34475 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent is a licensed dentist in the State of Florida, having been issued license number DN 0009725. Respondent's last known address is 1521 Powell Court, Huntington, West Virginia, 25701. The minimum standard of care for treatment of any patient with periodontal disease who anticipates orthodontic treatment requires either that the underlying periodontal disease be resolved prior to orthodontic treatment or that the periodontal disease be controlled through frequent and regular periodontal care administered concurrently with the orthodontic treatment. Orthodontic treatment can exacerbate existing periodontal disease in any patient. Adequate, frequent, and regular periodontal care is especially important for adults who typically have less bone turnover and cell repair than that found in younger patients. Responsibility for monitoring and supervising the periodontal health of a patient is shared by the orthodontist, on the one hand, and either the general dentist or the periodontist, on the other. Respondent provided dental services and treatment to Michael J. Doherty, an adult male, from November 7, 1983, until sometime in June, 1985. The dental services and treatment provided by Respondent consisted of the extraction of 4 bicuspids and the application of an orthodontic appliance. Respondent first saw Mr. Doherty on November 7, 1983, at the Omni Dental Clinic (the "Clinic"). Respondent was not the dentist of record for Mr. Doherty. The dentist of record was a general dentist who was also employed at the Omni Dental Clinic. Mr. Doherty was diagnosed by the dentist of record as having early periodontal disease. The dentist of record prescribed treatment for Mr. Doherty's periodontal disease before Respondent began orthodontic treatment. The treatment for Mr. Doherty's periodontal disease consisted of: a gross scaling of Mr. Doherty's entire mouth on November 30, 1983; a prophylaxis cleaning for approximately one hour on December 14, 1983; and a periodontal scaling of the entire mouth on January 9, 1984. The patient was also instructed to increase the frequency of his brushing and other home health care. The patient was released for orthodontic treatment, and Respondent began such treatment on January 23, 1984. During Respondent's orthodontic treatment, the patient received two more prohylaxis cleanings in August, 1984, and on December 27, 1984. The diagnostic studies and periodontal treatment for Mr. Doherty prior to and during Respondent's orthodontic treatment of the patient were inadequate. Adults with existing periodontal disease should receive adequate periodontal care and monitoring every six weeks. The care required to properly treat the periodontal disease may range from basic scaling all the way to surgical procedures. Mr. Doherty received two prohylaxis cleanings during Respondent's orthodontic treatment. Responsibility for the periodontal health of a patient during orthodontic treatment is shared by the orthodontist. The condition of Mr. Doherty's periodontal disease deteriorated significantly during Respondent's orthodontic treatment. The patient consulted another orthodontis, Dr. David Kornbluth, on December 5, 1985. Dr. Kornbluth was concerned over the fact that the patient's teeth were very loose and that there was considerable pocketing in and around the teeth. Dr. Kornbluth questioned whether continued orthodontic treatment was appropriate and referred Mr. Doherty to a general dentist, Dr. Alan Burch. Dr. Burch examined Mr. Doherty on December 6, 1985, and concluded that the patient needed immediate periodontal and endodontic evaluation. Dr. Burch referred the patient to a periodontist, Dr. Leonard Garfinkel. 3/ Dr. Garfinkel examined Mr. Doherty on December 23, 1985, and diagnosed the patient as having severe periodontal disease with gross soft tissue inflammation and significant osseous loss. 4/ The condition of the patient's lower anterior teeth was poor. He had generalized pockets and excessive mobility in his teeth. The patient was instructed to discontinue orthodontic treatment and was placed on periodontic treatment consisting of three visits of deep scaling and curettage in conjunction with plaque control. The patient was also placed on a Hawley retainer to adjust his bite. 5/ The orthodontic appliance was subsequently removed and periodontic treatment in the form of deep scaling was repeated on March 27 and May 16, 1986. The patient's prognosis improved from poor to guarded. Respondent failed to meet the minimum standards of care in the practice of dentistry by applying orthodontic appliances without an accurate diagnosis of Mr. Doherty's periodontal condition. Respondent failed to meet the minimum standards of care in the practice of dentistry by providing orthodontic treatment without adequate care of the patient's underlying periodontal disease. Respondent was found guilty of negligence in the services provided to Michael J. Doherty. The adjudication of negligence was entered on January 1, 1988, in the Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida. Respondent did not fail to keep adequate medical records. The Omni Dental Clinic was not operated or controlled by Respondent. Respondent was an independent contractor of the clinic. Records for Mr. Doherty were kept by both Respondent and the patient's general dentist and were maintained by the Clinic. The Clinic went out of business and disposed of the records in a manner that made them unavailable to Respondent. Records that otherwise would have been available to the parties in this proceeding were in the possession of counsel for the plaintiffs in the civil negligence action. The records produced in this proceeding did not comprise all of the records of Respondent.
Recommendation Based upon the foregoing facts and conclusions of law, it is recommended that Petitioner enter a final order finding Respondent guilty of violating Section 466.028(1)(y), Florida Statutes, impose a $5,000 administrative fine, and suspend Respondent's license for 3 months. The final order should provide that, upon reinstatement, the Respondent's license shall be placed on probation for a period of 2 years. During the period of probation, Respondent should be required to complete 30 hours of continuing education in diagnosis and treatment planing, 30 hours of continuing education in periodontics, and 18 hours of continuing education in risk management. All continuing education should be in compliance with Florida Administrative Code Rule 21G-12. RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of July, 1991. 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 22nd day of July, 1991.
The Issue Whether petitioner should have been awarded a passing grade on the clinical portion of the September 1990 optometry licensure examination?
Findings Of Fact As instructed, petitioner reported for the clinical portion of his optometry licensure examination with his own retinoscope. But the patient he brought with him was not suitable (as a subject for another candidate) because neither of her eyes had spherical objective and subjective error cali- brated in minus cylinder form within +6.0D to -6.0D and . . . an astigmatic correction objectively and subjectively within +0.75 to +4.0D or -0.75 to -4.0D. Respondent's Exhibit No. 1. Once this was discovered, petitioner left the examination site, recruited another patient, and returned in time to take the examination with a group of about ten other applicants. An information pamphlet explained beforehand what the candidates would be asked to do during the clinical examination: . . . You will be allowed 35 minutes to com- plete this section. Two licensed optometrists will independently observe and grade you. You may conduct the specified procedures in any appropriate order. A blank sheet of paper will be provided to you to record the results of your examination. You are allowed a brief period of time to make notes on the blank sheet of paper before you enter the examination room. Tests should be done on both eyes (including dilated eye). Points will be assigned according to the criteria listed below: Patient History (5 points) Chief complaint Personal medical history Personal ocular history Family medical history Family ocular history Follow-up Information (7 points) Follow-up as necessary on the above criteria. Visual Acuity (2 points) Pupillary Examination (6 points) Pupil size Direct and consensual response to light Afferent Pupillary Reflex Confrontation Fields Test (4 points) Confrontation Fields test should be done as described in Duane, J.D. Clinical Ophthal- mology, Harper and Row. Extra-ocular muscle balance (4 points) Versions Distance cover test Objective examination (retinoscopy) (8 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. Subjective refraction (12 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. In the second section, you will examine your own patient's eyes. This portion will be graded by examiners different from the exam- iners of Section 1. They will give you direc- tions and request certain views of the eye or ask for information as observe your performance through a teaching arm on the slit lamp or a teaching mirror on the BIO. They will assign grades independently. You will be asked to do the following procedures according to the specified criteria: Binocular indirect ophthalmoscopy (15 points) Accurately views and evaluates retinal land- marks as requested. Five points will be given for each of the three areas. Note: Patient will be in reclined position during this pro- cedure. We will supply a Keeler BIO headset. However, you will be allowed to use your own BIO if it has attached teaching mirrors. Biomicroscopy (anterior segment) (16 points) Demonstrates requested view of anterior struc- tures of the eye. Four points each will be given for performance related to: Cornea Anterior chamber Lens Anterior vitreous Goldman[n] tonometry (5 points) Accurately measures intra-ocular pressure. Biomicroscopy (posterior segment) (8 points) Accurately views and evaluates posterior pole landmarks as requested with two points each for four designated areas. Note: The Zeiss slit lamps are equipped with Hruby lenses. If you prefer a fundus contact lens, or a 90 diopter lens, you must provide your own lens. Gonioscopy (8 points) Accurately views and evaluates angle structure. To protect the patient, we will put time limits on the amount of time you will have to attempt each of the section two procedures. Timing will start after you receive the instructions from the examiner and will continue until you notify the examiner to grade the procedure. Respondent's Exhibit No. 1. After petitioner's return with a patient whose eyes met the examiners' criteria, he was tested in the manner the candidate information booklet had described, which is the same procedure that has been followed since 1986. Refractions Robert Roos, a 43-year-old compound myopic astigmatic (who was assigned the number 079), was the patient it fell to petitioner to examine in section one. Before petitioner saw Mr. Roos, three licensed optometrists independently evaluated Roos' eyes. After objective refraction or retinoscopy of his right eye, they recorded astigmatic orientation or axis values of 110o, 115o and 116o, spherical values of -2.75, -2.5 and -1.75 diopters, and cyllindrical values of - 1.0, -1.75 and -1.75 diopters. Their subjective examination of the same eye yielded axis values of 107o, 110o and 111o, spherical values of -2.25, -2.25 and -1.75 diopters, and cyllindrical values of -1.5, -1.5 and -2.0 diopters. After the examiners' retinoscopy and subjective refraction, but before the candidates evaluate the patients, their left eyes are dilated with drops containing 1.0% tropicamide and 2.5% neosynephrine, the same solution that has been used since 1983. The result is left-eyed cycloplegia, paralysis of the intraocular muscle which precludes normal pupillary response of the kind petitioner observed (and reported as +4) in Mr. Roos' right eye, just before performing the refractions. (Patients' left eyes are dilated so candidates can perform other procedures.) As required, petitioner performed his own objective refraction with a retinoscope. He reported an astigmatic orientation of 105o, assigned a spherical value of -0.75 diopters, and put the cylindrical value at -2.25 diopters, for Mr. Roos' (undilated) right eye. After subjective evaluation, he reported a prescription he said effected a correction to 20/20 (a claim no examiner had occasion to evaluate), an axis value of 100o, a spherical value of -1.25 diopters and a cylindrical value of -2.0 diopters. In keeping with the grading protocol applied evenhandedly to all candidates, petitioner's evaluations were compared, item by item, to those of the examiner who most nearly agreed with his conclusions. This yielded discrepancies of 5o, 1.0 and 0.5 diopters for the retinoscopic or objective refraction results; and of 7o, 0.5 and 0.0 diopters for the subjective results. In no case did his results fall between differing examiners' results, although he agreed with one examiner on one result. Petitioner received two points for the objective refraction portion of the test and three points for the subjective portion. Chamber Depth For section two of the clinical portion of the test, Mr. Roos returned to the candidate with whom he came to the examination, and petitioner turned to the eleventh-hour recruit who had accompanied him. Reading the prescribed script, an examiner instructed petitioner in these words: Estimate the depth of the anterior chamber using the Von Herrick-Shaffer technique. Remember that IV is wide open and I is narrow. Respondent's Exhibit No. 2. The anterior chamber is deepest at the center and shallowest near the limbus, where the cornea joins the sclera, and aqueous fluid filters out of the eye. Because the angle at the junction affects the rate of flow, the depth at the chamber periphery is more likely to be of clinical significance than the depth at the center. The Von Herrick-Shaffer technique is a means of measuring chamber depth at the periphery, and not in the middle: a slit lamp casts the cornea's shadow on the chamber floor, and the ratio between the length of the shadow and the width of the cornea is determined. By whatever technique, custom and practice mandate measurement of the depth of the anterior chamber at the edge. When petitioner reported the depth at the center of the chamber, neither examiner (both of whom evaluated independently) awarded any points. Tonometry The Goldmann tonometry portion of the test required candidates to gauge intraocular pressure by placing fluorescein on the white of the patient's eye, then placing a probe and aligning the mires of the tonometer. An examiner read to each candidate these directions beforehand: Add fluorescein to non-dilated eye. Perform applanation tonometry and indicate when you have the proper measurement. You will be given a maximum of 2 minutes to perform this procedure. Respondent's Exhibit No. 2. Because the first examiner gave petitioner full credit, and the second gave him no credit, he received half credit for this part of the examination. At hearing, petitioner testified that he was not ready for the second examiner to grade, and conceded that the mires were no longer in alignment when the second examiner checked. (The second examiner also noted a misplaced light source.) But petitioner, who had the prerogative to "indicate when [he] ha[d] the proper measurement," Respondent's Exhibit No. 2, and did so before the first examiner checked, said nothing to the second examiner (who followed closely on the first) to indicate that he felt the measurement was no longer "proper."
Recommendation It is, accordingly, recommended that respondent deny petitioner's application for licensure on the basis of the September 1990 optometry licensure examination, without prejudice to any subsequent application. RECOMMENDED this 10th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1991. COPIES FURNISHED: Alejandro M. Tirado 606 First Street Neptune Beach, FL 32266 Vytas J. Urba, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792
