Findings Of Fact The Respondent, Peter P. Alongi, is a licensed chiropractic physician, practicing in Fort Lauderdale, Florida. An administrative complaint was filed by the Petitioner, Florida State Board of Chiropractic Examiners, dated December 7, 1978, alleging that the Respondent engaged in deception, misrepresentation or fraud by publishing a certain advertisement. An administrative hearing was requested by the Respondent. Thereafter, a motion to dismiss was filed by the Respondent prior to the formal hearing, which was denied. Respondent Alongi casued the following advertisement to be published in the Fort Lauderdale News in the month of May 1978: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute is presently engaged in what is the most expensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignment and utilizes a screening process called contour analysis. Volunteers are being sought for screening. Contour analysis enables taking a 3 dimensional picture (called moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient sympto- matically and levels of spinal tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasm, muscle imbalance, spinal distortion and scoliosis. This is a Public Service Program for partici- pating volunteers. The doctors are contributing their time, service and facilities for the program. Anyone wishing to be a volunteer may telephone participating doctors directly for information or an appt. Dr. Peter P. Alongi Dr. Larry Burch 2821 E. Commercial Boulevard 200 SE 12 St. Ft. Laud. Ft. Laud. 491-2449 764-0444 Ms. Laura Borys read the foregoing advertisement and, thinking there would be no charge for treatment, made an appointment with Respondent Alongi. Ms. Borys had interpreted the advertisement to mean that if she presented herself as a "research volunteer" there would be no cost to her. Ms. Borys was accompanied to Respondent Alongi's office by Ms. Katherine Leight, a sister-in- law of Ms. Borys. Ms. Leight had told Ms. Borys that she felt the advertisement was soliciting for paying customers, and that she based her view on the reason that she had never seen such an advertisement by any other chiropractor. Ms. Borys would not have made the appointment with Respondent Alongi to participate as a volunteer pursuant to said advertisement if she had know that x-rays and chiropractic treatment would be on a cost basis. Respondent Alongi performed a contour analysis and gave Ms. Borys a photograph of her back. The Respondent analyzed the photograph and advised Ms. Borys that she had a back problem, and that for a fee of $50.00 she could have x-rays taken and would be charged $15.00 per visit for treatment. Upon a close reading of the foregoing advertisement it is not likely that the general public would have been mislead into believing that free treatments or x-rays would be given. Ms. Borys' sister-in-law, Ms. Leight, did not believe the advertisement was inserted for any other reason than to solicit business for the two doctors included in said advertisement. No questions were raised or evidence submitted as to what constituted the "research program" other than the taking of the picture of the back, or whether members of the public were deceived or mislead into thinking that there was in fact a valid program. Both parties submitted proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they are specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the Administrative Complaint be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of July, 1979. COPIES FURNISHED: Paul W. Lambert, Esquire 1311 Executive Center Drive Suite 201, Ellis Building Tallahassee, Florida 32301 Thomas F. Panza, Esquire 2803 East Commercial Boulevard Fort Lauderdale, Florida 3308 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, 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 2nd day of September, 1983.
Findings Of Fact The parties have stipulated to the facts in this case as follows: The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County. The advertisement was published on September 16, 1987. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center". The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..." Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control". Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. J. STEPHEN MENTON 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 29th day of April, 1991. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive Suite 177 Laguna Niguel, CA. 92677-2040 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
The Issue Has Petitioner's challenge to the failing grade he received on the November 1988, chiropractic licensure examination been rendered moot by virtue of his having retaken and passed the examination? If not, should his challenge be sustained?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: The licensure examination administered by the Board of Chiropractic Examiners in November 1988, consisted of a written examination on Florida laws and rules and a practical examination. There were three parts to the practical examination: x-ray interpretation; technique; and physical diagnosis. To pass the practical examination, a candidate needed to receive a passing grade on each of the three separate parts of the examination. Mathesie passed the written examination on Florida laws and rules, as well as the x-ray interpretation and technique portions of the practical examination. He received a failing grade, however, on the physical diagnosis portion of the practical examination. The physical diagnosis portion of the practical examination is conducted orally. To facilitate review of this portion of the examination, it is videotaped. The videotape of the physical diagnosis portion of the practical examination in controversy in the instant case was played during the course of the hearing. Each candidate taking the physical diagnosis portion of the practical examination is asked a series of questions by two examiners who also independently grade the candidate's answers. The examiners are experienced chiropractors who have been licensed to practice chiropractic in the State of Florida for at least five years. First-time examiners receive three hours of training in testing and grading procedures and requirements. Examiners who have previously participated in the examination process are given a one or two hour refresher course. In questioning a candidate on the physical diagnosis portion of the practical examination, the examiners must cover at least four and no more than six of the following subject areas: case history; chiropractic examination; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; laboratory diagnosis; nutrition; differential diagnosis; and clinical judgment. In addition, they are directed to ask practical questions designed to test the candidate's ability to function competently as a beginning chiropractor. Within these parameters, the examiners are expected to use their professional judgment in selecting the particular questions to ask the candidate. Examiners are not provided with any specific questions that they are required to pose. The examiners are also expected to exercise their professional judgment in evaluating the candidate's answers to their questions. The grading of these answers therefore is a "subjective" process reflecting the examiners' opinions as to the quality of the candidate's answers. For each of the subject areas covered during the physical diagnosis portion of the practical examination, the candidate receives a separate grade from each of the two examiners conducting this portion of the examination. A 4 is the highest grade the candidate can receive from an examiner for a covered subject area. This grade is reserved for answers which reflect exceptional expertise in the subject area. A grade of 3 out of a possible 4 (or 75%) is to be given where no more than adequate expertise is demonstrated. Where the candidate's answers demonstrate expertise that is more than adequate but less than exceptional, a grade of 3.5 (or 87.5%) is to be given. Where the candidate, through his answers, displays inadequate expertise, depending on the extent of the inadequacy, either a grade of 2.5 (or 62.5%), 2.0 (or 50%), or 1.5 (or 37.5%), is to be awarded. The lowest possible score a candidate can receive from an examiner is a 1 (or 25%). This grade is warranted where the candidate's knowledge of the subject matter is so lacking as to present a danger to the public. The candidate's overall average score on the physical diagnosis portion of the practical examination is obtained by dividing the candidate's total number of grade points by two (representing the number of examiners) times the number of subject areas covered by the examiners. To pass this portion of the examination, the candidate's overall average score must be at least a 3 (or 75%). If the candidate fails to attain such a score and contends that the examiners unfairly or erroneously evaluated his performance, the videotape of this portion of the examination is reviewed by other chiropractic experts. Based on the recommendation of these experts, adjustments may be made to the candidate's score. Mathesie was tested on six subject areas on the physical diagnosis portion of the November 1988, examination: case history; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; and laboratory diagnosis. He received a failing overall average grade from the two examiners of a 2.75 (or 68.75%). Following expert review, adjustments were made which raised Mathesie's overall average grade to a 2.875 (or 71.875%). This was still less, however, than the 3 (or 75%) he needed to pass. Mathesie was awarded a 3 by both examiners for his answers pertaining to case history. Both examiners' grades were subsequently increased to a 3.5 after expert review. Mathesie was asked by the examiners "the basic headings and things that [he] would be interested in having in the case history." In responding to the question, Mathesie mentioned that he would do a "general survey of their whole body," but he failed to specify that he would inquire about urinary incontinence or genital problems, specific inquiries that are routinely made by chiropractors. In view of Mathesie's failure to specifically mention these matters, it cannot be said that it was arbitrary or unreasonable to score his answer on case history no higher than a 3.5. Both examiners gave Mathesie a 2.5 for his performance on the general physical examination segment of the test. Neither of their grades was raised following expert review. On this part of the examination, Mathesie was asked to list "the vital signs." He responded, "blood pressure, pulse, respiration rate, and temperature and some sources add height and weight." Mathesie was then asked to take the blood pressure of one of the examiners, a man approaching 40 years of age. He did so and discovered that the examiner's blood pressure was 165 over 70, which Mathesie remarked "is very high blood pressure." When asked what he would tell a patient whose blood pressure remained at this level for three consecutive days, Mathesie replied that he would advise the patient that he "had an elevated blood pressure and that he should be seen by a medical doctor for further evaluation." Blood pressure of 165 over 70 is only slightly higher than normal for a man approaching 40 years of age. Contrary to what Mathesie indicated to the examiners, it is not "very high blood pressure" and, without more, is no cause for alarm. Accordingly, Mathesie's failure to receive a grade higher than a 2.5 on the general physical examination segment of the test was not without reason or logic. On the orthopedic examination segment of the test, Mathesie was awarded a 3.0 by both examiners. Expert review did not result in a change of either of these grades. On this segment of the test, Mathesie was asked to evaluate the right knee of one of the examiners. In conducting his evaluation, Mathesie failed to examine both knees, although during the next segment of the test he did indicate, with some prompting by the examiners, that he "would compare bilaterally all the orthopedic tests." Bilateral examination is a standard, routine chiropractic practice which assists the chiropractor in determining whether the patient has a developmental or pathological problem. Inasmuch as Mathesie did not conduct such a bilateral examination when asked to assess the condition of the examiner's knee, he did not deserve to receive a grade higher than a 3.0 on the orthopedic examination segment of the test. On the neurological examination segment of the test, Mathesie received a 2.5 from one examiner and a 3.0 from the other examiner. After expert review, the 2.5 grade was raised to a 3.0. No change was made to the other examiner's grade. During this segment of the test, Mathesie initially failed to perform the patella reflex test bilaterally as he should have. It was only after one of the examiners suggested that it was necessary to determine a patient's normal reflexive action that Mathesie indicated he would "compare bilaterally all the orthopedic tests, all the neurological tests and reflexes." Mathesie further stated on this segment of the test that, in attempting to neurologically assess the patient, he would administer a cardinal gaze examination during which he would have the patient cover one eye and follow his finger with the other eye. Although a cardinal gaze examination may be administered in this fashion, the better method is to have the patient follow the moving object with both eyes. In view of the foregoing, a 3.0 was not an unreasonably low grade to give Mathesie on the neurological examination segment of the test. Mathesie received a 3.0 from both examiners on the x-ray technique and diagnosis segment of the test. Neither grade was changed following expert review. Mathesie was asked on this segment of the test to "set up a right [anterior] oblique." In describing how he would do so, Mathesie failed to give information concerning the film size and central ray. Given these omissions, Mathesie's failure to receive a grade higher than a 3.0 on this segment of the test was not without justification. Mathesie received a 2.0 from one examiner and a 2.5 from the other examiner on the laboratory diagnosis segment of the test. No adjustments were made to either of these grades. On this segment of the examination, Mathesie was asked what conclusions he would reach concerning the condition of a patient based on the results of blood tests revealing a hemoglobin of 8, a hematocrit of 25, and a RBC of 3.5. As Mathesie should have been aware, such test results reflect that the patient has suffered a severe loss of blood and therefore requires immediate medical attention. Mathesie, however, did not immediately recognize the seriousness and urgency of the matter. Having failed to do so, he cannot persuasively argue that the grades he received on this segment of the examination were unreasonably low. After receiving notification that he had failed the physical diagnosis portion of the November 1988, licensure examination, Mathesie retook and passed the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Chiropractic Examiners enter a final order dismissing Mathesie's challenge to the failing overall average grade he received on the physical diagnosis portion of the November 1988, licensure examination on the ground that such challenge is now moot. Should the Board decline to dismiss Mathesie's challenge on the ground of mootness, it is RECOMMENDED that the Board enter a final order rejecting such challenge as without merit and denying Mathesie the relief he has requested. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September 1989. STUART M. LERNER 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 Administrative Hearings this 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3255 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Mathesie's Proposed Findings of Fact Accepted and incorporated in substance, but not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: Accepted and incorporated by reference; Second sentence: Rejected because it is more in the nature of legal argument than a finding of fact. Moreover, in order to be qualified as an expert witness in the field of chiropractic, Dr. Ordet did not have to meet the "continuous practice" requirement of Florida Administrative Code Rule 21D-11.007. To the extent that this proposed finding suggests that the Department failed to substantially comply with any prehearing discovery order issued by the Hearing Officer or that the Department otherwise engaged in improper conduct prejudical to Mathesie, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Furthermore, while it is true that Ordet's opinion regarding Mathesie's performance was necessarily subjective in nature, based on Ordet's credentials and qualifications, it appears that the opinion he gave was an informed and educated one, notwithstanding his failure to cite any specific authoritative writing supporting his opinion. First sentence: Accepted and incorporated by reference (It should be noted, however, that although Ordet "has been out of school [as a student] for many years," he is currently on the faculty of two chiropractic colleges); Second sentence: Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Moreover, the Hearing Officer finds no persuasive support for the statement that Ordet "undoubtedly has not kept up with the advances in the chiropractic education." Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance, except for the last sentence, which has been rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence. Rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding suggests that Mathesie should not have had points taken off for indicating that he would tell a patient with a blood pressure reading of 165 over 70 to see a medical doctor, it has been rejected because it is not supported by persuasive competent substantial evidence. First sentence: Rejected because it constitutes a statement of the law rather than a finding of fact; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated by reference. Rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. (It should be noted, however, that although Mathesie did state "on the video that all tests would be done bilaterally," he made this statement following the orthopedic examination after one of the examiners suggested, through his questioning, that it was important to determine what was "normal" for the patient.) To the extent that this proposed finding suggests that Mathesie should have been awarded a grade higher than a 3.0 on the neurological examination segment of the test, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding suggests that Mathesie should have been awarded a higher overall average grade on the physical diagnosis portion of the November, 1988, licensure examination than a 2.875 (or 71.875%), it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is more in the nature of a request for relief than a finding of fact. Rejected because it is more in the nature of a request for relief than a finding of fact. The Department's Proposed Findings of Fact Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance, except to the extent that it indicates that "[c]ase history was raised to a 2.5 by both examiners." The uncontradicted evidence reveals that Mathesie originally received a 3.0 from both examiners on case history and that both of these grades were subsequently raised, following expert review, to a 3.5. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated by reference. COPIES FURNISHED: Michael W. Mathesie 8933 Northwest 51st Place Coral Springs, Florida 33067 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Chiropractic Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The Respondent is a chiropractic physician who practices in Daytona Beach, Florida, and is licensed by the State Board of Chiropractic Examiners to practice in the State of Florida. The Respondent opened the office where he presently practices in September, 1978. On or about July 10, 1979, Judith M. Matovina telephoned the Respondent's office regarding severe headaches which she had been suffering. She had been referred to the Respondent by a friend, Michael Davis, who was studying to be a chiropractor, and who was also a friend of the Respondent. An appointment was initially made for Thursday, July 12; Ms. Matovina preferred to make an appointment for a time that would not interfere with her job, and an appointment was ultimately made for 10:30 a.m. on Saturday, July 14, 1979. Ms. Matovina arrived at the Respondent's office for her appointment at the scheduled time. She sat in the waiting room for approximately five minutes. Dr. Wagner came out to the waiting room after he treated another patient and introduced himself to Ms. Matovina. He gave her a pamphlet to read regarding the treatment of headaches by chiropractors, and a form to fill out which provided personal background and a description of symptoms. She filled out the form and handed it to the Respondent who escorted her to the examination room. He asked her questions about her headaches and about her personal life. She responded that she did not believe the headaches were tension related. He told her to remove her clothes and put on a gown. He left the examination room. Ms. Matovina removed her bra and blouse, but left her slacks and shoes on. After knocking, the Respondent reentered the examination room. The Respondent thereafter engaged in conduct, a portion of which was legitimate and proper chiropractic examination, treatment and therapy; and a part of which can only be construed as an effort to induce Ms. Matovina to engage in sexual activity with the Respondent. He engaged in conversation about his poor relationship with his wife, his relationships with his girlfriends, and the fact that he had had a vasectomy. Ms. Matovina had not been to a chiropractor before, and she expressed fear as to the nature of some of the manipulations and other treatment which the Respondent performed. He referred to her as "such a baby" in response to her fear. He examined her eyes, and told her that she had pretty blue eyes and that his girlfriends had brown eyes. Ms. Matovina asked him where his receptionist was, and the Respondent responded that he did not have a receptionist on Saturday because that is when he scheduled his pretty patients. During the course of one manipulation in which the Respondent held Ms. Matovina's feet, he told her that she had cute feet. In the course of one manipulation in which the patient stood against the wall with the Respondent's arm around her waist, he told her, "They are playing our song," in response to the music on the office stereo system. He held her hand as if he was going to dance with her. He kissed her twice on the shoulder, moved his hand toward her breast, and brushed his hand across her breast. Several times during the course of the examination, Ms. Matovina said that it would be best for her to leave, but the Respondent kept saying that they should try one more manipulation or therapy treatment. Ms. Matovina protested during the course of much of the treatment, and eventually insisted upon getting dressed and leaving. During the examination, the Respondent on several occasions referred to Ms. Matovina's "pretty blue eyes," to the fact that she was "such a baby," to the fact that he had other girlfriends, and a vasectomy. After she got dressed, the Respondent behaved as though none of these things had happened. Ms. Matovina insisted upon paying for the session at that time rather than the following Monday, when the Respondent wanted to schedule another session. Ms. Matovina then left the office. She was there for approximately two hours. The following week, the Respondent had his office contact Ms. Matovina to schedule further sessions, but she refused to accept or to respond to the phone calls.
