The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320. Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011. Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries. Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave. On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations. Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm. Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after, Lt. Hand was asked to report to the Warden’s Office. When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance. Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was going to send her for a reasonable suspicion drug test, Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana. As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test. Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center. After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample. Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel. Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records. Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing. LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva. As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana. LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by Ms. Chandler, who is a custodian of these records. In initial screening, the THC cut-off was 50. Specimen ID# 0288508894 tested at 555. In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter. All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly. The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced. The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from Ms. Gerdon’s sample. After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding reported by the laboratory that her sample contained marijuana metabolites. Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections. The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body. Ms. Gerdon testified that her ex-husband abused her. Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband. Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center. Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident. Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta, Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac. Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship. The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate. Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches. Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee: . . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out. Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee. Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana. None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites. Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test. Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results. As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for persons to ingest marijuana without knowing that they were doing so. It was not clear why LabCorp’s testing of the January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory. Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier. Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body. Ms. Gerdon has failed to maintain good moral character. The position of Correctional Officer is one of great public trust. No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a Corrections Officer be suspended for a period of two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 28th day of December, 2012.
Findings Of Fact The Petitioner, Shelly Gans, graduated from high school in June, 1973. She attended Broward Community College during terms 1 and 3 of the 1973-74 academic year, where she earned fifteen (15) credits. She does not have two years of academic study as required by Rule 10D-41.069(5). She then attended Sheridan Vocational Technical Center from February, 1974 to February, 1975. She was thereafter employed by Dr. Stephen Katzman from March, 1975 through August, 1979 as a technologist doing laboratory testing including phlebotomy. She was thereafter employed at Florida Medical Center as a technologist doing blood banking, hematology, chemistry and part time phlebotomy. Ms. Gans passed the October, 1983 proficiency examination for clinical laboratory technologists given by the U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control. After passing the U.S. Department of Health and Human Services examination, Ms. Gans was licensed as a clinical laboratory technician by the Department of Health and Rehabilitative Services Office of Licensure and Certification, Laboratory Personnel Licensure, through June 30, 1986. In October, 1984, Ms. Gans was examined by HRS for licensure as a clinical laboratory technologist in the specialties of clinical chemistry, hematology and immuno- hematology. She passed the immunohematology examination but failed the hematology and clinical chemistry examinations. She re-applied and took those examinations in April, 1985 when she passed the hematology examination but failed the chemistry examination a second time. Under Rule 10D- 41.071(9), Florida Administrative Code, Ms. Gans was required to take continuing education before she could re-apply to sit for the chemical chemistry examination a third time. Ms. Gans enrolled in Broward Community College in the second term of the 1985-1986 school year and took three hours in general chemistry. That course ended after January 1, 1986. She re-applied for examination as a technologist in the specialty of clinical chemistry on July 14, 1986. Her application for that examination was denied on August 14, 1986 because she did not have sixty (60) semesters of college credits which the Department believed was required under Section 10D-41.C69(5), Florida Administrative Code.
Recommendation It is RECOMMENDED that Shelly Gans be permitted to sit for the technologist examination in clinical chemistry when it is next given because she meets the requirements of Rule 10D- 41.069(6), as currently written and has taken retraining in clinical chemistry after she twice failed the examination, as is required by Rule 10D-41.071(9), Florid Administrative Code. DONE and ORDERED this 23rd day of July, 1987, in Tallahassee, Florida. WILIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3670 The following constitute my rulings on proposed findings of fact pursuant to Section 120.59(2), Florida Statutes, (1985). Rulings on Proposed Findings by Petitioner The proposals by the Petitioner are generally in the form of argument rather than proposed findings of fact. Relevant proposed factual findings have been made in the Recommended Order. Rulings on Proposed Findings by Respondent Covered in Finding of Fact 4. Covered in Finding of Fact 4. Covered in Finding of Fact 1. Rejected as an improper reading of Rule 10D-41.069(6). Rejected because the issue is not when notice of the rule was given, but what the rule says. Rejected as based on hearsay. Moreover, even if it was the intention of Centers of Disease Control that the Department of Health and Human Services examination not be a permanent means of credentialing in lieu of education and experience requirements, the Department of Health and Rehabilitative Services has not implemented that intent in the rule which it enacted. Rejected as unnecessary. That Ms. Gans' application was received after January 1, 1986 is covered in Finding of Fact 4. Rejected as unnecessary. COPIES FURNISHED: Michael O. Mathis Staff Attorney HRS Office of Licensure & Certification 2727 Mahan Drive Tallahassee, Florida 32308 Shelly Gans 4163 Southwest 67th Avenue Apartment 104C Davie, Florida 33314 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether, pursuant to Section 57.111, Florida Statutes, Petitioner (all references to "Petitioner" are to Dr. Reich, even though in the preceding case he was the respondent) is entitled to attorneys' fees and costs in defending a case against him in which Respondent alleged that he was guilty of deviating from the applicable standard of care and failing to keep appropriate medical records.
Findings Of Fact At all material times, Petitioner has been a licensed physician in Florida, holding license number ME 0051631. He is Board-certified in ophthalmology. At all material times, Petitioner has been a "small business party," within the meaning of Section 57.111(3)(d), Florida Statutes. From 1996-98, Petitioner worked part-time at The Metabolic Treatment Center in Ft. Myers. Twice weekly, Petitioner visited the center and saw patients, who generally complained of symptoms consistent with metabolic conditions. Toward the end of Petitioner's term of employment at The Metabolic Treatment Center, its owners, one or more natural persons, sold the facility to a publicly traded corporation. Petitioner's relationship with the new chief operating officer was poor. One day, Petitioner reported to work and found the facility had been closed, leaving Petitioner without access to the records kept by the center. Petitioner commenced litigation with the corporate owner of The Metabolic Center to obtain copies of medical records. Petitioner obtained a court order compelling the corporation to turn over medical records, but the corporation did not do so, and the case was closed in February 1999 without Petitioner's ever obtaining the records that he had sought. The corporate owner was administratively dissolved by the Department of State in September 1999. On November 21, 2000, Respondent filed an Administrative Complaint against Petitioner concerning one patient whom he treated in 1997 at The Metabolic Treatment Center. In 2001, Respondent prepared a 50-count Administrative Complaint against Petitioner concerning 10 patients whom he had treated at The Metabolic Treatment Center. In 2001, Petitioner was represented by attorney William Furlow. Mr. Furlow and a representative of Respondent negotiated a settlement, but Petitioner claimed that he had lacked the authority to enter into the settlement. The Board of Medicine declined to reopen the settlement and issued a Final Order to this effect. Petitioner appealed to the First District Court of Appeal, which issued an opinion on March 26, 2004, requiring the Board of Medicine to give Petitioner an evidentiary hearing on the factual issue of whether he had authorized Mr. Furlow to settle the case on the conditions set forth in the settlement agreement. Rather than litigate the authorization question, the Board of Medicine filed an amended Administrative Complaint on August 20, 2004, concerning the lone patient who had been the subject of the earlier-filed Administrative Complaint, and filed a second Administrative Complaint on October 27, 2004, concerning the 10 patients who had been the subject of the never-filed, 50-count Administrative Complaint. After transmittal to the Division of Administrative Hearings, these cases, which were consolidated, became DOAH Case Nos. 04-3222PL and 04-4111PL, respectively. By the time of the filing of the 2004 Administrative Complaints, Petitioner was represented by his present counsel. However, this representation has not been continuous. Shortly before the final hearing in the consolidated cases, Petitioner's counsel moved for leave to withdraw because Petitioner had fired them. The motion was granted, an accompanying request for continuance was denied, and Petitioner represented himself at the hearing, which took place on December 6 and 7, 2005. The undersigned Administrative Law Judge issued a Recommended Order on May 5, 2006. The Recommended Order excluded all of Respondent's evidence consisting of purported medical records, except for the records that Petitioner had identified in a prehearing deposition. These evidentiary rulings left evidence concerning only four patients. The recommendation was for the Board of Medicine to enter a Final Order dismissing all charges against Petitioner concerning all but the four patients mentioned above. For these patients, the recommendation was for the Board to enter a Final Order finding Petitioner guilty of the financial exploitation of four patients, failure to perform a statutory obligation as to three patients, failure to maintain adequate medical records on three patients, preparation of inappropriate prescriptions for two patients, and violation of the applicable standard of care as to one patient. The Recommended Order recommended an administrative fine of $29,000 and five years' probation. In Final Orders issued September 7 and October 9, 2006, the Board of Medicine substantially adopted the Recommended Order with revisions to the penalty. Petitioner appealed the Final Orders and, on January 23, 2008, the Fourth District Court of Appeal vacated the Final Orders. The reasoning of the court was that Petitioner had been denied access to medical records at The Metabolic Treatment Center, and, thus, there was no competent substantial evidence, given the clear and convincing standard, to support the findings of violations. On March 17 and 21, 2008, pursuant to the mandate, the Board of Medicine entered Final Orders dismissing all charges against Petitioner and taxing appellate costs of $610. On March 21, 2008, Petitioner filed his Petition Pursuant to the Florida Equal Access to Justice Act. The attorneys whom Petitioner had discharged immediately prior to the final hearing were re-engaged immediately after the issuance of the Recommended Order. These attorneys, who are presently representing Petitioner, prepared the briefs and argued the appeal. Petitioner seeks attorneys' fees for three phases of this litigation: 1) litigation over the purported consent agreement, concluding with the filing of the two Administrative Complaints that were transmitted to the Division of Administrative Hearings; 2) litigation in the two Division of Administrative Hearings cases through the appellate court's mandate; and 3) litigation with the Board of Medicine in obtaining the Final Order vacating the earlier Final Orders. To the extent that the first claim concerns the consent agreement, it is untimely for the reasons discussed in the Conclusions of Law. To the extent that the first claim concerns the same allegations covered in the second claim, it is part of the second claim. The second claim is really two claims: one concerns the proceeding at the Division of Administrative Hearings and culminating with the Final Orders issued by the Board of Medicine, and the second is for the appellate proceeding. The third claim really is part of the second claim, as the Board of Medicine never filed anything to initiate this phase of the overall proceeding. The question underlying the claim for attorneys' fees for the second phase of litigation is whether the Board of Medicine was substantially justified in filing the two Administrative Complaints in August and October 2004. Respondent has submitted as Respondent Exhibit A a voluminous stack of investigative reports prepared by the Agency for Heath Care Administration (AHCA) in connection with the disciplinary cases prosecuted against Petitioner. The periods of investigation run from July 9, 1998, through August 28, 2001, although the whole period is not covered and the periods covered by some reports overlap the periods covered by other reports. The investigative reports contain opinion letters from five physicians. The investigative report for the period of July 9, 1998, through September 9, 1998, contains an undated letter from Kevin M. Holthaus, M.D. Dr. Holthaus's letter addresses three patients, including one for whom AHCA had obtained medical records. Dr. Holthaus opined that Petitioner fell below the standard of care in the diagnosis and management of endocrine disorders like hypothyroidism and diabetes. Dr. Holthaus added that Petitioner failed to perform an appropriate history and physical examination prior to ordering extensive diagnostic studies. Dr. Holthaus noted that Petitioner's prescription of thyroid hormone, despite laboratory studies obviating the need for this treatment, posed a threat to the wellbeing of the patient. Dr. Holthaus's letter also states that Petitioner stood to gain from his actions, which included inadequate assessments of patient complaints and symptoms and inappropriate or inadequate diagnoses. The investigative report for October 14, 1998, through February 4, 1999, contains the notes of a telephone interview with Craig R. Sweet, M.D., who said that he had contacted The Metabolic Treatment Center about Petitioner's treatment of one patient. An unidentified person said that Petitioner no longer worked at the center, but had treated patients for nonexistent thyroid problems. Dr. Sweet stated that he had seen nothing justifying Petitioner's administration of thyroid medication or human growth hormone to the patient. This investigative report also contained a letter dated April 18, 1999, from E. Timothy Shapiro, M.D., who treats patients for a wide variety of endocrine problems. Dr. Shapiro, who was also an assistant clinical professor at the University of Miami, addressed one patient and found excessive and unjustified lab work, inappropriate treatment with thyroid hormone despite normal thyroid functions, inappropriate treatment with testosterone despite normal testosterone levels, and inappropriate treatment with growth hormone despite inadequate growth hormone testing and no clinical features of growth hormone deficiency. Dr. Shapiro concluded that the evidence "points to a scheme to extract money." The investigative report for May 2, 2000, to July 19, 2000, includes an undated letter from H. Curtis Benson, M.D. Dr. Benson found that Petitioner ordered unnecessary lab tests, treated a patient for hypothyroidism despite normal thyroid function studies, and kept "cursory" medical records containing no mention of a complete physical examination. The investigative report for September 21, 2000, through November 8, 2000, notes that one patient reported that Petitioner had told her that she had a fatal blood disease, but, when she was seen by her regular physician, he found no problems with her blood. Interestingly, this complainant was the insurance investigator who had submitted the other complaints, which were the bases of the insurance company's concern of excessive and unnecessary testing. A principal of The Metabolic Treatment Center had invited the insurance investigator to visit The Metabolic Treatment Center as a patient and see the operation for herself. Also in this report is a letter from Mr. Furlow, dated November 20, 2000, stating that many of Petitioner's records were out of his possession when he was forced out by the center. The investigative report for March 22, 2001, through June 8, 2001, contains a letter dated January 2, 2001, from Dr. Shapiro. Stating that he had reviewed four more cases, Dr. Shapiro stated that Petitioner was performing excessive lab testing, usually of tests that carry high reimbursement levels. Dr. Shapiro questioned the accuracy of the numerous diagnoses of peripheral neuropathy, noting that Petitioner routinely ordered nerve conduction tests, which were performed by a radiologist, rather than, as was common in Dr. Shapiro's experience, a neurologist. Dr. Shapiro also stated that Petitioner treated patients with thyroid hormone despite their normal thyroid function. He concluded that this pattern of medical practice was fraudulent and below the applicable standard of care. This investigative report also contains a letter dated January 18, 2001, from Hamilton R. Fish, M.D., who had examined the records of three patients. Dr. Fish summarized his concerns as: 1) many unnecessary lab tests, including reported abnormalities in the nerve conduction studies with no follow-up or referral; 2) no follow-up or referral on a patient diagnosed with hyerinsulinemia and insulin resistance; 3) lab tests and an EKG done on one patient prior to an evaluation by a physician; and 4) inaccurate medical advice contained in The Metabolic Treatment Center handbook given to patients, such as a warning that exercise makes insulin levels rise. The investigative reports for January 12, 2001, through February 7, 2001, and March 22, 2001, through June 8, 2001, contain letters from Dr. Shapiro dated December 27, 2000, and March 19, 2001. In each of these letters, Dr. Shapiro analyzes another patient and finds excessive and inappropriate lab testing, inappropriate diagnoses and treatment, a failure to refer a patient with neuropathy to a neurologist, and a failure to meet the applicable standard of care. The transcript of the probable cause meeting held on October 22, 2004, reveals that the probable cause panel had all of the above-described investigative materials, which included extensive medical records. Counsel summarized to the panel the important portions of the Administrative Complaint concerning the 10 patients who were the subject thereof. In authorizing the filing of the Administrative Complaint, the chair noted that he had never seen such unanimity of opinion among the consultants and suggested an emergency suspension. Although the transcript of the probable cause meeting on the Administrative Complaint involving only one patient has been lost, it must be inferred, based on the memorandum of action, that a probable cause panel similarly considered the file materials and similarly authorized the filing of that Administrative Complaint a couple of months earlier. Respondent contends that Petitioner never claimed the existence of additional medical records until the final hearing. This is not exactly true, as the records contain representations that Petitioner was unable to obtain all of the records from The Metabolic Treatment Center. On the other hand, Petitioner did not provide the probable cause panels with any expert opinion in his favor, except for Petitioner's medical claims for his treatment methods, which are detailed in the Recommended Order. The first Administrative Complaint filed in this case was on November 21, 2000; it was the complaint concerning one patient, so it was the precursor to the Administrative Complaint filed on August 20, 2004, in DOAH Case No. 04-3222PL. The next Administrative Complaint was filed in 2001, and it was the precursor to the Administrative Complaint filed on October 27, 2004, in DOAH Case No. 04-4111PL. From the earliest of these dates to the latest, Respondent had a reasonable basis in fact to proceed. Viewing the investigative materials in the manner most favorable to Petitioner, they presented a conflict between mainstream medical opinions concerning the proper diagnosis and treatment of endocrinal disorders and Petitioner's opinion, unsupported by other authorities (at least, in the investigative file), that conventional, acceptable ranges for various items, such as T-3 or TSH, are wrong or that holistic approaches are medically necessary to treat certain metabolic syndromes. At best, from Petitioner's point of view, this was a conflict in opinions between five practitioners, on the one hand, and Petitioner, on the other, and the informed, well-reasoned opinions of the five experts with whom Respondent consulted provided a reasonable basis in fact for the filing of all the Administrative Complaints and all of the charges contained within them.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a licensed medical doctor, holding license number 44726. At all times material to this case, the Respondent was a physician holding board certifications in internal medicine, hematology, and oncology. Patient 1 was a patient of another hematologist, Dr. Thomas Katta. On March 17, 2003, Dr. Katta had Patient 1 admitted via the patient's internist (Dr. Frank Leiva) to Sand Lake Hospital in Orlando. The patient was anemic and thrombocytopenic and had been previously diagnosed with autoimmune hemolytic anemia, the treatment for which was transfusion. Failure to transfuse a person suffering from autoimmune hemolytic anemia can lead to death, and such a transfusion had been ordered for the patient. Dr. Katta apparently had personal obligations for the evening of March 17, 2003, and for the following day, and, in the late afternoon of March 17, 2003, he asked the Respondent to "cover" his hospitalized patients. The Respondent agreed to do so. Dr. Katta's office transmitted a list of the patients by fax to the Respondent's office. The list contained the full names and locations of Dr. Katta's other hospitalized patients, but identified Patient 1 only by last name and diagnosis ("AIHA"). The fax did not indicate the patient's first name or gender and did not specifically identify the patient's location. The Respondent made no attempt to obtain additional information from Dr. Katta or his staff. The lab work performed upon admission to the hospital indicated that the patient was severely anemic and had a critically low platelet count. At approximately 6:30 p.m. on March 17, 2003, the Respondent received a telephone call through her answering service from a hospital nurse who reported that the patient was severely anemic and that there were problems obtaining a proper blood match for the transfusion. The Respondent advised the nurse to call the blood bank and tell them to find the least incompatible blood and get the transfusion done. The Respondent did not inquire as to the patient's name or location. At about 10:19 p.m. on March 17, 2003, the Respondent was again contacted by a hospital nurse, who advised that the patient was short of breath and had tachycardia at 133 beats per minute. The nurse also advised that the blood bank had been unable to find an appropriate match for the previously ordered transfusion and that the transfusion remained uncompleted. The Respondent directed the nurse to contact the patient's primary care physician or the cardiologist on call, but did not ask the identity of either practitioner. The nursing notes indicate that the Respondent stated that she did not provide treatment for tachycardia and did not believe that Dr. Katta did either. The Respondent also advised the nurse to call the blood bank and direct them to find the least incompatible blood and perform the transfusion. The Respondent did not inquire as to the patient's name or location and provided no other direction to the reporting nurse. On the next day, March 18, 2003, at about 6:15 a.m., the Respondent was contacted by a hospital nurse, who advised that the transfusion had still not taken place. The Respondent took no action and provided no direction to the reporting nurse. The Respondent did not inquire as to the patient's name or location. Later during the morning of March 18, 2003, the Respondent attempted to locate the patient while making her rounds but was unsuccessful. In attempting to locate the patient, the Respondent talked with various hospital personnel, but had no information other than the patient's last name and diagnosis. Based on her inability to obtain any additional information, the Respondent assumed that the patient had been transfused and discharged. The patient had not been discharged, but had been transferred to an intensive care unit in the hospital. The transfusion had not yet occurred. Patient 1 died on March 20, 2003. The Respondent was unaware of the patient's death until she saw Dr. Katta at the hospital, at which time he questioned her about the patient and informed her that the patient was dead. The Petitioner presented the testimony of Dr. Howard Abel, M.D., regarding whether the Respondent met the standard of care in her treatment of the patient. Dr. Abel's testimony regarding the standard of care issues is credited and is accepted. As to the issue of the uncompleted transfusion, the evidence establishes that the transfusion did not occur while the Respondent provided hematological care for Patient 1. The Respondent should have personally contacted the blood bank to identify the cause of the inability to provide blood for the transfusion and determine whether another option was available. The Respondent should have responded to the 10:19 p.m. call on March 17 by personally examining the patient and reviewing the history and lab test results. While the Respondent's directive to contact a cardiologist was not inappropriate, breathing difficulties and tachycardia are symptomatic of severe anemia for which hematological care was required. If the Respondent determined that the symptoms were cardiac-related, the Respondent should have personally made the cardiology referral and provided the information to the cardiologist. The Respondent did not do so and was unaware of the cardiologist's identity. A review of additional lab test results including observation and evaluation of blood smears would have provided useful information as to whether the patient's condition was deteriorating and to whether the patient was developing thrombotic thrombocytopenic purpura ("TTP"), a serious condition which, left untreated, is fatal in not less than 90 percent of cases. The blood smears had been performed by the time of the phone call, but the Respondent reviewed no lab test results and made no inquiries related to the results. The failure to review lab test results may have delayed a diagnosis of TTP. While there was some disagreement between testifying witnesses as to whether or not the patient had TTP, Dr. Katta ordered that the patient be treated for TTP immediately upon his return on March 19, 2003, and there is no evidence that Dr. Katta treated the patient for TTP without reasonable cause to do so. The evidence clearly establishes that the Respondent failed to review the patient's test results that could have provided timely and useful information regarding the patient's condition. As to the Respondent's failure to locate the patient on March 18, 2003, the Respondent testified that the patient's last name was common, but the Respondent had not called Dr. Katta at the time she received the faxed list of his hospitalized patients to obtain additional identifying information. The Respondent did not request the information from the nursing staff during any of the telephone calls and made no effort to obtain the information prior to arriving at the hospital to make her rounds. The Respondent would have become aware of the patient's location had she attended to the patient's breathing difficulties and tachycardia on the night of March 17. She would have also likely reviewed the medical records and would have become aware of the admitting physician as well as other information regarding the patient's condition. The Respondent consulted with hospital personnel on March 18, 2003, in attempting to identify those patients admitted by Dr. Katta. There were approximately ten to 12 other hospitalized patients with the same last name, none of which had been admitted by Dr. Katta. The Respondent was unaware that the patient had been admitted under Dr. Leiva's name. The Respondent did not visit the ten to 12 patients with the same last name to locate the one for which she was responsible. The Respondent did not contact the blood bank, which had been having difficulty providing transfusion blood to the patient. It is reasonable to assume that the blood bank, charged with the responsibility to provide the appropriate blood supplies to the patient, would have been aware of the patient's location, and could have provided it to the Respondent. The Respondent made no effort to identify patients located in the hospital's intensive care units, despite the critical nature of the patient's condition at last report. Had she done so, she would have located the patient. The Respondent presented testimony that it was not uncommon for a physician, unable to locate a hospitalized patient, to routinely assume that the patient has been appropriately treated and has been discharged, or is deceased. However, the Respondent testified that it was unusual for her not to be able to identify and locate a patient. Even assuming that such practice is routine, it is unlikely that such an assumption could reasonably be made in the case at issue here, where the Respondent did not know the patient's name, had never seen the patient, had personally reviewed no medical records, was unable to find anyone in the hospital who could provide her with any information, and at last communication with the nursing staff had been told that a critically-needed transfusion had not occurred. The testimony is not credited and is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Vasundhara Iyengar, M.D., in violation of Subsection 458.331(1)(t), Florida Statutes (2002), and imposing a penalty as follows: a three-year period of probation; a fine of $10,000; and such additional community service and continuing education requirements as the Department of Health determines necessary. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2008. COPIES FURNISHED: Jennifer Forshey, Esquire Dorys H. Penton, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 H. Gregory McNeill, Esquire Lowndes, Drosdick, Doster Kantor & Reed, P.A. Post Office Box 2809 Orlando, Florida 32802-2809 H. Roger Lutz, Esquire Lutz, Bobo & Telfair, P.A. 2 North Tamiami Trail, Suite 500 Sarasota, Florida 34236 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
Findings Of Fact After an examination review challenge, the Petitioner was given a score of 74 percent on the written portion of the October 2, 1992, podiatric medicine examination. (He passed the other portions of the exam.) Since the written portion was a 300-question exam, the Petitioner is just three questions short of a passing grade. First Challenge On the first question challenged (Petitioner's Exhibit 1), the Petitioner's answer clearly was incorrect. But the Petitioner contends that none of the other answers were correct, either. The Petitioner's expert conceded that the answer for which credit was given is "technically correct," assuming that the drug in question is administered orally. But he contended that the answer for which credit was given would be incorrect if the drug were administered intravenously. The Department's expert disputed that the answer for which credit was given would be incorrect if the drug were administered intravenously. Moreover, the drug is not available for intravenous administration in the United States. Given those circumstances, it is found that the answer for which credit was given is a correct answer. Seventy of the examinees (58.8 percent) chose the answer for which credit was given. An even higher percentage (79.2 percent) of examinees who scored above the median grade on the exam chose that answer. Only 29 (24.4 percent) chose the Petitioner's answer. Only 13.4 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Second Challenge On the second question challenged (Petitioner's Exhibit 2), credit was given for the answer "intermittent claudication in the limb." The Petitioner answered, "paroxymal pain in the limb." The Petitioner argues that the answer for which credit was given was incorrect because, while the question asked for a "finding," the answer for which credit was given was a "diagnosis." Intermittent claudication in the limb means cramping and pain in the limb after exercise. Paroxymal pain in the limb means pain in the limb that comes and goes. The Petitioner seems to argue essentially that a "finding" must be something that the patient would report to the physician or that the physician would observe on examination. Certainly, it is improbable that a patient would complain to a physician, "I am suffering from intermittent claudication." But it is no more likely that a patient would complain to a physician, "I am suffering from paroxymal pain in the limb." On the other hand, while it would not be surprising for a patient to report, "my leg has this pain that comes and goes," it would be no more surprising for a patient to report, "my leg has been cramping after exercise." It is found that both "paroxymal pain in the limb" and "intermittent claudication" can be termed "findings" and that the Petitioner's answer was wrong. 107 of the examinees (89.9 percent) chose the answer for which credit was given. An even higher percentage (95 percent) of examinees who scored above the median grade on the exam, chose that answer. Only six (5 percent) chose the Petitioner's answer. An even smaller percentage (3.4 percent) of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Third Challenge The third question challenged (Petitioner's Exhibit 3) was the last of a series of four questions based on a hypothetical case history. In the case history, the patient presented, had an office visit, had surgery and returned to the office three days later with another complaint. The crux of the Petitioner's argument on this question is that the question is ambiguous in giving as a time reference the time when treatment was initiated. The answer for which credit was given presumes that the treatment in question was the treatment initiated upon the patient's return to the office after surgery. The Petitioner answered the question as if the treatment in question was the surgical treatment. On its face the Petitioner's argument has some appeal. But it fails to address the logical sequence of the series of four questions that followed the case history. Bearing the sequence in mind, it was not logical or reasonable for an examinee to presume that the last question was intended to return the examinee to the very beginning of the case history. 78 of the examinees (65.5 percent) chose the answer for which credit was given. A significantly higher percentage (80.5 percent) of examinees who scored above the median grade on the exam, chose that answer. Even more telling, only 5.9 percent of all examinees chose the Petitioner's answer, and only 1.7 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results validate the Petitioner's score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Fourth Challenge The fourth question challenged (Petitioner's Exhibit 4) asked the examinees to describe, by their choice of answers, the direction of blood flow in the veins of the lower extremities. The Petitioner's answer described flow from the "perforating veins to the deep veins." The answer for which credit was given described flow from the "superficial veins to the deep veins." The Petitioner argues that his answer was correct, and that the answer for which credit was given is incorrect because blood flows directly from the perforating veins to the deep veins. But the Petitioner's answer does not account for the fact that, within the veins of the lower extremities, blood first flows within the superficial veins towards and into the perforating veins, only then flowing directly from the perforating veins to the deep veins. The direction of blood flow in the veins of the lower extremity, taken as a whole, is most accurately described in the answer for which credit was given. 67 of the examinees (56.3 percent) chose the answer for which credit was given. A higher percentage (61.8 percent) of examinees who scored above the median grade on the exam, chose that answer. 24.4 percent chose the Petitioner's answer. 25.8 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. These results are not particularly helpful in affirmatively validating the Petitioner's score on this question, but neither do they invalidate his score or the question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Fifth Challenge The fifth question challenged (Petitioner's Exhibit 5) was the last of a series of three questions based on a hypothetical case history. But, in this case, the question did not depend on the case history. It simply called for the "minumum [sic] toxic dose" of a drug, in ccs. In support of his answer, the Petitioner cited documentation stating in part that the drug "has a maximum dosage of 350 mgms," which translates to 20 ccs. But the question asked for the minimum toxic dosage. The minimum toxic dosage was closer to 15, the answer for which credit was given. Initially, the Petitioner's answer erroneously was keyed in as the correct answer to this question. On review of the distribution of the answers given by the examinees, the question was "flagged" because only 20.2 percent of the examinees gave the Petitioner's answer, and even fewer of the examinees (11.1 percent) who scored above the median grade on the exam gave it. Later it was discovered that a wrong answer, namely the Petitioner's, had been keyed in as the correct answer on the answer key. The question was re-scored, using the corrected answer key. 69.7 percent chose the answer for which credit ultimately was given, and an even higher percentage (83.9 percent) of the examinees who scored above the median grade on the exam chose that answer. These results validate the Petitioner's ultimate score on this question. The Petitioner did not prove either that the answer he chose was correct, that he should have been given credit for his answer or that the question should have been discarded. Sixth Challenge On the sixth question challenged (Petitioner's Exhibit 7), the Petitioner questioned whether the answer for which credit was given produces what is described in the question, as the question asks, or whether it is a diagnosis, or description, of the condition characterized by what is described in the question. In addition, the authorities, and the expert witnesses, were in conflict as to whether, in the case of the answer for which credit was given, the fibrous thickening described in the question occurs in the intima of the veins, as the question states, or in the media of the veins. (On the other hand, there also was a conflict among the authorities and the experts as to whether the Petitioner's answer produces all of the indications listed in the question.) Only 46.2 percent of the examinees chose the answer for which credit was given. Not much more (50.6 percent) of the examinees who scored above the median grade on the exam chose that answer. 29.4 percent chose the Petitioner's answer, and 41.8 percent of the examinees who scored above the median grade on the exam chose the Petitioner's answer. While these results may not in themselves invalidate the Petitioner's score on this question, they seem to be consistent with the conflict in the authorities. The Petitioner may have proved at least that this question should have been discarded. But it is not necessary to reach a specific finding whether the Petitioner proved either that the answer he chose was correct, that he should have been given credit for his answer, or that the question should have been discarded. In light of the previous findings, even with credit for this question, the Petitioner would not have enough additional points to pass the exam.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Business and Professional Regulation, Board of Podiatric Medicine, enter a final order denying the Petitioner's exam challenge. However, it also is recommended that the Department reconsider the use of the sixth question challenged (Petitioner's Exhibit 7) on future examinations. RECOMMENDED this 22nd day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2645 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Petitioner not having filed any: 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence that there is "no distention of superficial veins." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Edmund J. McGrath, D.P.M. 1660 Gulf Boulevard, Apartment 601 Clearwater, Florida 34630 Vytas J. Urba, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750 Diane Orcutt, Executive Director Board of Podiatric Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Should Petitioner be deemed to have passed the Principles and Practice Chemical Engineering Exam?
Findings Of Fact Petitioner sat for the Principles and Practice of Engineering Examination on April 1O, 1987. The examination consisted of an applicant completing eight problems. On each problem, an applicant could receive from 1 to 10 points. A score of 5 or less was considered "unqualified", a score of 6 or more was considered "qualified". In order to pass the examination, an applicant needed to receive a total raw score of 48 or more, out of a possible score of 80. Petitioner received a raw score of 43 on his examination. Petitioner is challenging the scores for problems 110, 111, and 414. On problem 110, Petitioner received a score of 1. On problems 111 and 414, Petitioner received scores of 4. An Item Specific Scoring Plan (ISSP) was prepared for each examination problem. The ISSP was to be used by the persons grading the exam to assure that all solutions were graded consistently. The ISSP set forth the criteria to be used in grading the solution to a problem and set forth guidelines to be used in determining the points to be given to the solution. In addition to the ISSP, a preferred solution was prepared for each problem. The scores of 4 given for Petitioner's solutions to problems 111 and 414 are consistent with the ISSPs for those problems. The score of 1 given to Petitioner's solution for problems 110 is not consistent with the ISSP and the preferred solution for that problem. In order to receive a score of 8, the ISSP requires that a solution contain the following: ALL CATEGORIES satisfied, errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct. An operable system is presented, containing all the key elements, but calculations may involve minor errors in math or transcribing data. Answers obtained for requirement (b) are reasonable. May have assumed an excessively high, but not obviously unreasonable, exit water temperatures, c.g. 150F. Petitioner's solution to problem 110 presented an operable system containing all key elements. The errors committed by Petitioner were caused by misreading a table and by transcribing the wrong data. Petitioner's solution to problem 110 should have received a score of 8. Petitioner should have received a raw score of 50 on the exam.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order giving Petitioner a passing grade on the Principles and Practice Chemical Engineering Examination. DONE and ENTERED this 11th day of May, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4412 Petitioner filed a post-hearing submission consisting of a two page letter containing nine paragraphs. The second to fourth paragraphs are numbered 1., 2. and 3. The findings of fact contained in the letter are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Paragraph in Letter Ruling and Recommended Order Paragraph Number First Not a finding of fact. Second, Third and Fourth Rejected as not supported by the evidence for solution to problems 111 and 414. Accepted for solution to problem 110. RO6-10. Fifth Argument. Sixth First sentence accepted. RO11. Rest of paragraph is irrelevant. Seventh Rejected as argument and contrary to weight of the evidence. Eighth Argument. Ninth Not a finding of fact. COPIES FURNISHED: Edwin K. Middleswart 3805 Dunwoody Drive Pensacola, Florida 32503 John B. Carr, Esquire 320 West Cervantes Pensacola, Florida 32501 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner qualified for and took the Florida examination for licensure as an optician during the period July 23-25, 1982. He is a licensed optometrist in Louisiana and is currently serving as an optometrist in the United States Air Force. At this examination Petitioner passed all of the examination parts except for the section on Pharmacology in which he received an amended score of A score of 70 is passing. Petitioner contests five of the questions for which his answer sheet was found to be incorrect. These are questions Nos. 6, 13, 16, 24, and 26. During his testimony petitioner conceded his answers to Questions 6, 13, 24, and 26 were incorrect and were therefore correctly so graded on the examination. His sole case rests upon Question 16 and the correct answer thereto. Question 16 provides, with a choice of four answers: Topical hypersomatic solutions (hypertonic saline) are useful in: lubrication. corneal dehydration. C antibiosis. D reducing intraocular pressure. The correct answer is "B", and Respondent selected "D." During his cross-examination Petitioner acknowledged that "D" is an incorrect answer to Question 16. Petitioner testified he thought he had selected answer "C." Expert testimony was submitted that Question 16 is not artfully drafted because of the use of the word "useful." Had the words "in causing" or some other identifying verb been added, the meaning of the question would have been clearer. Since salt has the propensity of absorbing moisture, a saline solution is useful in removing excess fluid from the eye, i.e. corneal dehydration. Eighty-four percent of those who took this examination selected the correct answer to Question 16. Only six percent selected answer "D," the solution selected by Petitioner. One hundred three persons took this examination and 88 passed. When Petitioner's examination was initially graded he scored 64. Following his objections the questions were reviewed two times, with a final grade of 69 being awarded to Petitioner on the Pharmacology portion of the examination. The only answer to the four choices that comes close to describing the propensities of topical hypertonic solution is corneal dehydration. Examination questions are prepared by Respondent's staff and submitted to reviewers for comment prior to the examination being given. Subsequent to the examination, if questions concerning the accuracy of the questions and/or answers arise the examination is again reviewed and if either question or answer is found inappropriate the examinee is not marked off for such a wrong answer.
